The Respondent invokes in support of its application certain remarks made by the President of the Tribunal in the course of the first procedural session held on 15 July 1997 which the Respondent interprets as declaring the existence of a general principle of confidentiality of the proceedings. The remarks in question, as transcribed from the tape recording of the session, were as follows:
"So we come to item 7, Records of Hearings, which is governed by the Arbitration Rules, Article Forty-four. And that Article provides that the Secretariat shall keep minutes of hearings and specifies what is expected. It requires the minutes to be signed by myself and the Secretary General, and I note the point that they shall not be published without the consent of the parties. On this point of, if I can put it this way, confidentiality of the proceedings, it is one which is to be borne in mind by all concerned. And then, in the third paragraph of Article Forty-four, it provides that the Tribunal may, and at the request of a party shall, order that the hearings be more fully recorded, in which event certain items may be omitted from the minutes. Now, the current proceedings of today are being fully recorded and, therefore, to that extent the minutes can be abbreviated. But again, I think that there's nothing for us to do except to note that point".
The Tribunal considers that the reference in the Minutes to the "confidentiality of the proceedings" cannot by itself be taken as expressing a general requirement that the Parties refrain entirely from every public utterance mentioning the existence, or speculating upon the possible outcome, of the proceedings. Read in their context, the words used by the President, "the confidentiality of the proceedings", are no more than a paraphrase of the words immediately preceding them, namely, that the minutes of the hearing "shall not be published without the consent of the parties". The prohibition must be read as one upon the publication of the contents of any particular minute, except in so far as the minute is merely a restatement of a point already covered by the content of a public document e.g. the NAFTA itself or the Arbitration (Additional Facility) Rules.