Equity has always protected certain information from unauthorised misuse. In Coco v A N Clark (Engineers) Ltd (1968) 1A IPR 587, Megarry J dated this jurisdiction to before 1535, saying: ‘The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust’. However, equity’s protection is not unlimited. Four elements must be satisfied in order for an equitable obligation of confidence to arise: (1) The information must be specifically identified. (2) It must have the necessary quality of confidence. (3) It must have been received by the defendant in circumstances that import an obligation of confidence. (4) There must be an actual or threatened misuse of the information, contrary to the plaintiff’s wishes. Any kind of information might be protected by the equitable obligation of confidence, such as trade secrets or commercially valuable information that cannot otherwise be protected by patent, trademark or copyright law. It can also be used to protect personal information. Confidential information can take virtually any form.

Chapter 3 examines the historical origins of the standing, cause of action, and damages ideas that are at the heart of this study. The focus is on decisions of ad hoc arbitral tribunals and ‘mixed claims commissions’ of the nineteenth and first half of the twentieth centuries, in particular the Venezuelan and Mexican Commissions of 1903 and 1923–1934 respectively. The chapter aims to understand the context and function of the concepts from which the current position on shareholder standing and international causes of action evolved. It concludes that mixed claims commissions and ad hoc tribunals were already attentive to and dealt with the effects of overlaps between national and international claims. This chapter suggests that contemporary investment tribunals should adopt a similar approach.

Chapter 6 focusses on causes of action in investment arbitration, including the distinction between contract and treaty claims and the notion of ‘fundamental basis of the claim’. The chapter disputes the alleged independence between contract rights and obligations, on the one hand, and treaty rights and obligations, on the other. Tribunals need to recognize substantive overlaps between contract and treaty claims when addressing the substance of IIA claims. Thus, parallel local proceedings, all the provisions of the relevant contract (including forum selection clauses), and the conduct of both contractual parties are relevant factors in deciding the admissibility of treaty claims.