award by the tribunal, is a rule of international public order44; for Maître
Boisséson, the rule that such a “deliberation” should be, and should
remain, secret is a “fundamental principle, which constitutes one of the
mainsprings of arbitration, as it does of all judicial decisions”.
In adopting this approach, these distinguished French lawyers have
the support of the rules of the International Centre for the Settlement of
Investment Dispute (ICSID) which stipulates, in Rule 15, that:
The deliberations of the Tribunal shall take place in private and
Only members of the Tribunal shall take part in its deliberations.
No other person shall be admitted unless the Tribunal decides
It will not have escaped notice that, in the Swedish Court of Appeal
mentioned previously, the secrecy of the arbitrators’ deliberations was not
maintained. Indeed, it could not have been when the arbitrators
themselves were called upon to testify in court as to the meetings and
44 Professor J.D. Bredin, “Le Secret du Délibéré Arbitral” in Etudes Offertes à Pierre Bellet (LITEC).
45 de Boisséson, “Le Droit Français de l’Arbitrage National et International (1990) p.296. See also the comment in Robert “L’Arbitrage: Droit Interne, Droit International Privé (5ème Edition, Dalloz) at para. 360: “Although it is practised according to a certain number of foreign laws, notably anglo- saxon, the dissenting opinion is prohibited in French domestic law since it violates the secrecy of the tribunal’s deliberation …” (my translation).