SSRN Id2558743
SSRN Id2558743
SSRN Id2558743
By Elina Zlatanska
Reprinted from:
ARBITRATION: The International Journal of Arbitration, Mediation and Dispute Management
Vol. 81 No. 1 February (2015) Sweet & Maxwell pp. 25-37.
© Chartered Institute of Arbitrators 2015. All rights reserved. Registered Charity: 803725
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ARBITRATION
The International Journal of Arbitration, Mediation and Dispute Management
1. Introduction
For many years, confidentiality in international commercial arbitration has been taken for
granted and no one questioned its ambit and effectiveness.1 It was only in the 1990s that
the extent of confidentiality in arbitral proceedings became a widely debated topic.2 Since
then, a considerable amount of ink has been spilled on the subject.3 More recently, calls for
increased transparency in the field have added a new dimension to the debate by arguing
that the publication of awards is one of the most significant ways to achieve this.4 Even
though some of the leading arbitrators have recognised the practical importance of publishing
awards and have supported the idea that systematic publication can increase confidence
and transparency in the system as a whole,5 the vast majority of international commercial
arbitral awards are still unpublished or published only sporadically.6
As a result, much of the information concerning international commercial arbitration
and the arbitrators’ decision-making approach is obtained through anecdotal sources7 and
a number of published awards. Currently, there is no uniform practice of publishing awards
1
Confidentiality is generally understood as covering: (1) the very existence of the dispute and the commencement
of arbitral proceedings; (2) the course of the proceedings; and (3) the award.
2
The decision of the Australian High Court, which held that confidentiality is not an essential attribute in arbitration,
came as a great shock to the arbitral community. It cast serious doubts on the nature of confidentiality because it
departed from the long-standing English doctrine establishing an implied duty of confidentiality. See Esso Australia
Resources Ltd v The Honorable Sydney James Plowman [1995] HCA 19. The decision was confirmed shortly after
in Commonwealth of Australia v Cockatoo Dockyard Property Ltd [1995] 1005 NSWLR 662.
3
See generally Arbitration International (1995) and the ICC Bulletin (2009), which dedicated whole issues to the
matter. See also Hans Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration Agreement”
(2000) 11 American Review of International Arbitration 567.
4
For the purposes of this paper, “transparency” should be understood as the access to information about the
decision-making process and publicity of the reasoned awards. The issue of transparency has been mainly addressed
in connection with investment arbitration and while it may seem less compelling in the area of international commercial
arbitration, it should not be disregarded. See Klaus Peter Berger, Creeping Codification of the New Lex Mercatoria
(Alphen aan den Rijn: Kluwer Law International, 2010), p.85; Jan Paulsson, “Cross-Enrichment of Public and Private
Law Dispute Resolution Mechanisms in the International Arena” (1992) 9 Journal of International Arbitration 65;
Cindy Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14
American Review of International Arbitration 121 and Catherine Rogers, “Transparency in International Commercial
Arbitration” (2006) 54 University of Kansas Law Review 1301.
5
See generally, Julian D.M. Lew, “The Case for the Publication of Arbitral Awards” in Jan C. Schultz and Albert
Jan Van den Berg (eds), The Art of Arbitration: Essays on International Arbitration—Liber Amicorum Pieter Sanders
(Alphen aan den Rijn: Kluwer Law and Taxation Publishers, 1982), pp.223–232; William W. Park, “Private
Adjudicators and Public Interest: The Expanding Scope of International Arbitration” (1986) 12 Brooklyn Journal of
International Law 630; Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International
Commercial Arbitration (Alphen aan den Rijn: Kluwer Law International, 1999), pp.188–189; Smit, “Breach of
Confidentiality as a Ground for Avoidance of the Arbitration Agreement” (2000) 11 American Review of International
Arbitration 567, 583; and Alexis Mourre and Alexandre Vagenheim, “Arbitral Jurisprudence In International
Commercial Arbitration: The Case For A Systematic Publication Of Arbitral Awards in 10 Questions” (2009), http:
//kluwerarbitrationblog.com [Accessed December 9, 2014].
6
Jean Francois Poudret and Sébastian Besson, Comparative Law of International Arbitration (London: Sweet &
Maxwell, 2007), p.319 and Alexis Mourre, “The Case for the Publication of Arbitral Awards” in Alberto Malatesta
and Rinaldo Sali (eds), The Rise of Transparency in International Arbitration (New York: JurisNet, 2013), p.64.
7
These include case reports, attorney “war stories” and experience shared at conferences. See Christopher Drahozal,
“Of Rabbits and Rhinoceri: A Survey on Empirical Research in International Commercial Arbitration (2003) 20
Journal of International Arbitration 23. See also Bernando Cremades and Stephen Plehn, “The New Lex Mercatoria
and The Harmonization of The Laws of International Commercial Transactions” (1984) 2 Boston University of
International Law 318 and Joshua Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of
International Arbitral Awards” (2012) 28 Arbitration International 447, 476.
2. General Remarks
Privacy and confidentiality12 undoubtedly make arbitration very attractive to the business
community. Confidentiality, in particular, is often cited as one of the most valued components
of international commercial arbitration.13 Nevertheless, whilst the parties have a right to
privacy, which is a direct consequence of the contract to submit their case to a “private” as
opposed to public tribunal, the duty of confidentiality does not always apply automatically.14
Its scope and extent depend on the parties’ choice or the applicable laws and rules.
The existing national laws and arbitration rules, however, are far from settled. They vary
from country to country15 and often have serious flaws.16 Moreover, confidentiality can be
overridden in certain situations17 with the precise reach of the exceptions uncertain and the
8
Christopher Drahozal, “Arbitration by the Numbers: The State of Empirical Research on International Commercial
Arbitration” (2006) 22 Arbitration International 297 and Drahozal, “Of Rabbits and Rhinoceri” (2003) 20 Journal
of International Arbitration 23, 25. See also Alexis Mourre, “Precedent and Confidentiality in International Commercial
Arbitration: the Case for the Publication of Arbitral Awards” in Emmanuel Gaillard and Yas Banifatemi (eds),
Precedent in International Arbitration, International Arbitration Institute Series No.5 (New York: Jurisnet, 2008),
p.39.
9
Colin Y.C. Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a
Repository of Awards” (2005) 1 Asian International Arbitration Journal 175.
10
Martin Hunter, “Publication of Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly
139. See also Hrvoje Sikiric, “Publication of Arbitral Awards” (1997) 4 Croatian Arbitration Yearbook 175.
11
The question of whether published awards should be given a precedential value is beyond the scope of the present
article.
12
Even though the terms “privacy” and “confidentiality” are sometimes used interchangeably, they are in fact
different. The former means that the hearings are held in camera, whilst confidentiality refers to the obligation of the
participants involved in the proceedings not to reveal information regarding the arbitration to strangers. See Julian
Lew, “Expert Report on Esso/BHP v Plowman” (1995) Arbitration International 284. See also Gary B. Born,
International Commercial Arbitration (Alphen aan den Rijn: Kluwer Law International, 2009), pp.2250–2251 and
Amy Schmitz, “Untangling the Privacy Paradox in Arbitration” (2006) 54 University of Kansas Law Review 1214.
13
Julian D.M. Lew et al. (eds), Comparative International Commercial Arbitration (Alphen aan den Rijn: Kluwer
Law International, 2003), p.7. See Christian Bühring-Uhle et al., Arbitration and Mediation in International Business
(Alphen aan den Rijn: Kluwer Law International, 2006), p.108. Other research shows, however, that confidentiality
is not always the most valued attribute of arbitration, see generally Richard W. Naimark and Stephanie Keer, “What
Do Parties Really Want From International Commercial Arbitration?” (2002) 57 Dispute Resolution Journal 78; and
School of International Arbitration, Queen Mary University of London, 2010 International Arbitration Survey:
Choices in International Arbitration (London: Queen Mary, University of London, 2010).
14
Mauro Rubino-Sammartano, International Arbitration Law and Practice (Alphen aan den Rijn: Kluwer Law
International, 2001), pp.799–800.
15
Whilst courts in England, France and Singapore recognise an implied duty of confidentiality, the courts in
Australia, Sweden and US have held that confidentiality depends on the express agreement of the parties.
16
See, e.g. Michael Hwang and Katie Chung, “Defining the Indefinable: Practical Problems of Confidentiality in
Arbitration” (2009) Journal of International Arbitration 642.
17
See Julian Lew who states “[f]rom my own experience, there are many arbitrations which necessitate reference
to other parties or keeping them advised or informed of developments”, Lew et al. (eds), Comparative International
Commercial Arbitration (2003), pp.283–284. See also Valerie Denoix de Saint Marc, “Confidentiality of Arbitration
and the Obligation to Disclose Information on Listed Companies or During Due Diligence Investigations” (2003)
20(2) Journal of International Arbitration 211; Fabrice Fages, “La confidentialité de l’arbitrage à l’épreuve de la
transparence financière” (2003) 1 Revue de l’Arbitrage 5 and Nigel Blackaby, Constantine Partasides, Alan Redfern
degree of protection subject to changes depending on the context. This makes it unclear
whether confidentiality extends to awards and whether it covers the final outcome or only
the reasoning of awards. Consequently, parties and their lawyers should not automatically
assume that privacy equates to absolute confidentiality of the arbitration itself, the
proceedings and the award.18
It is also important to understand that certain awards may sooner or later find their way
into the public domain. This is the case when a procedure for recognition or enforcement
of an award is initiated under the New York Convention 1958, when there is a challenge
or an appeal against an award in national courts where the proceedings are held coram
publico.19
It is now well established that the unauthorised publication of awards, that is, unilateral
publication by one party, is prohibited and such a breach of confidentiality is subject to the
same sanctions that apply to contractual breaches of confidence.20 On the other hand, it is
widely recognised that the publication of awards, when done in an anonymous manner,
without revealing the names of the parties and sensitive information, does not breach the
confidentiality principle.21 This is notably the case with publications made by arbitral
institutions.22 The arbitral community, however, is still very much divided on this and the
debate over whether publication of awards is advantageous or detrimental to the system
continues.
and Martin Hunter, Redfern and Hunter on International Arbitration, 5th edn (New York: Oxford University Press,
2009), p.138.
18
See generally Claude R. Thompson and Anne M.K. Finn, “Confidentiality in Arbitration: A Valid Assumption?
Proposed Solution!” (2007) 62 Dispute Resolution Journal 76 and L. Yves Fortier, “The Occasionally Unwarranted
Assumption of Confidentiality” (1999) 15 Arbitration International 131.
19
François Dessemontet, “Arbitration and Confidentiality” (1996) American Review of International Arbitration
303. But see Jan Paulsson and Nigel Rawding, who point out in “The Trouble with Confidentiality” (1994) ICC
Bulletin 56, fn.18 that “in many if not most jurisdictions, a third party cannot get a copy of the award from the court”.
For an interesting view on confidentiality in court proceedings related to an arbitration, see V.V. Veeder, “Transparency
of International Arbitration: Process and Substance” in Loukas Mistelis and Julian D.M. Lew (eds), Pervasive Problems
in International Arbitration (Alphen aan den Rijn: Kluwer Law International, 2006), pp.89–102.
20
See Adam Samuel, “The Unauthorized Publication of Arbitral Awards” (1989) Lloyd’s Maritime and Commercial
Law Quarterly 158 and Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration Agreement”
(2000) 11 American Review of International Arbitration 567, 582. For a different view, see Hunter, “Publication of
Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139, 141.
21
Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
pp.188–189; Pieter Sanders, Quo Vadis Arbitration: Sixty Years of Arbitration Practice (Alphen aan den Rijn: Kluwer
Law International, 1999), p.14 and Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration
Agreement” (2000) 11 American Review of International Arbitration 567, 583.
22
See generally Sigvard Jarvin and Yves Derains (eds), Collection of ICC Arbitral Awards/Recueil des sentences
arbitrales de CCI, 1974–1985, Vol.1 (Alphen aan den Rijn: Kluwer Law & Taxation, 1990), Sigvard Jarvin, Yves
Derains and Jean-Jacques Arnaldez (eds), Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de
CCI, 1986–1990, Vol.2 (Alphen aan den Rijn: Kluwer Law & Taxation, 1994), Jean-Jacques Arnaldez, Yves Derains
and D. Haschler (eds), Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de CCI, 1991–1995, Vol.3
(Alphen aan den Rijn: Kluwer Law International, 1997), Jean-Jacques Arnaldez, Yves Derains and D. Haschler (eds),
Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de CCI, 1996–2000, Vol.4 (Alphen aan den Rijn:
Kluwer Law International, 2003), Jean-Jacques Arnaldez and Yves Derains (eds), Collection of ICC Arbitral
Awards/Recueil des sentences arbitrales de CCI, 2001–2007, Vol.5 (Alphen aan den Rijn: Kluwer Law International,
2009) and Jean-Jacques Arnaldez and Yves Derains (eds), Collection of ICC Arbitral Awards/Recueil des sentences
arbitrales de CCI, 2008–2011, Vol.6 (Alphen aan den Rijn: Kluwer Law International, 2013). See also International
Council for Commercial Arbitration (ICCA), Yearbooks on Commercial Arbitration (The Hague: ICCA, 1976–2013).
23
This includes but is not limited to shareholders, policy-making bodies, consumers, members of the judiciary,
etc.
24
Thomas Carbonneau, “Rendering Arbitral Awards with Reasons: The Elaboration of a Common Law of
International Transactions” (1985) 23 Columbia Journal of Transnational Law 579, 607.
qualified arbitrators, often from different legal backgrounds, who will gain greater awareness
of how to apply certain principles and deal with complex procedural issues arising in arbitral
proceedings; for academics who will identify opportunities to carry out research on important
areas which currently remain neglected, and for parties who will gain knowledge to enable
them to make better-informed decisions when selecting arbitrators.
Development of law
To begin with, the international business community needs a stable body of rules.25 Today,
international commercial arbitration increasingly contributes to the development of norms
of commercial usage.26 The insight of arbitrators is, therefore, extremely valuable because
it reaffirms and sometimes even produces procedural and substantive rules,27 which can
then become part of practice and be followed in the future.28 The publication of arbitral
awards can therefore contribute to the uniform and autonomous development of international
arbitration law,29 as well as the lex mercatoria.30 Consequently, the special status of the
international commercial arbitration regime will be enhanced and the process will become
further “a-nationalised”.31
25
Carbonneau, “Rendering Arbitral Awards with Reasons” (1985) 23 Columbia Journal of Transnational Law
579, 607.
26
Gopalan Sandeep, “New Trends in the Making of International Commercial Law” (2004) 23 Journal of Law
and Commerce 117.
27
For example, arbitrators have developed specialised rules in the areas of conflict of laws, the taking of evidence
and bribery, see Catherine Rogers, “The Vocation of the International Arbitrator” (2005) 20 American University
International Law Review 957, 999–1002.
28
Hans Smit, “Substance and Procedure in International Arbitration: The Development of a New Legal Order”
(1991) 65 Tulane Law Review 1309, 1311.
29
Hans Smit, “The Future of International Commercial Arbitration: a Single Transnational Institution?” (1986)
25 Columbia Journal of Transnational Law 9, 31.
30
See Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
p.189; William Park, “National Law and Commercial Justice: Safeguarding Procedural Integrity in International
Arbitration” (1989) 63 Tulane Law Review 673, 673–674; Klaus Peter Berger, Private Dispute Resolution in
International Business: Negotiation, Mediation, Arbitration Handbook, Vol.II (Alphen aan den Rijn: Kluwer Law
International, 2009), p.317; Pieter Sanders, “Commentary on UNCITRAL Arbitration Rules” in Pieter Sanders (ed.),
Yearbook of Commercial Arbitration, Vol.II (Alphen aan den Rijn: Kluwer Law International, 1977), pp.208–209
and Jean-Michel Jacquet, “Avons-nous besoin d’une jurisprudence arbitrale?” (2010) 3 Revue de l’Arbitrage 448.
31
Lew et al. (eds), Comparative International Commercial Arbitration (2003), pp.659–660. See also Carbonneau,
“Rendering Arbitral Awards with Reasons” (1985) 23 Columbia Journal of Transnational Law 579, 599.
32
Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14 American
Review of International Arbitration 121, 136. See also, Karton, “A Conflict of Interests: Seeking a Way Forward on
Publication of International Arbitral Awards” (2012) 28 Arbitration International 447, 459.
33
Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
pp.188–189 and Mourre and Vagenheim, “Arbitral Jurisprudence In International Commercial Arbitration” (2009),
http://kluwerarbitrationblog.com [Accessed December 9, 2014].
34
Anjanette Raymond, “Confidentiality, in a Forum of Last Resort? Is the Use of Confidential Arbitration a Good
Idea for Business and Society?” (2005) 16 American Review of International Arbitration 507.
35
This is particularly true for maritime arbitration where published awards are believed to “serve as a guide, not
only for the resolution of disputes, but also as a means of avoiding disputes”, see Society of Maritime Arbitrators,
Inc, “Maritime Arbitration in New York”, http://www.smany.org/sma-pubs.html [Accessed December 9, 2014].
Consistency
International companies usually rely on numerous contracts between different parties for
their business ventures. The arbitration clauses in these contracts are not necessarily the
same, and this can produce multiple arbitrations arising out of the same transactions. The
risk is that different tribunals may give different solutions on similar issues of fact and law.
Without the publication of awards, it would be impossible to prevent divergent decisions
that can pose a threat to the credibility, the reliability and, ultimately, the authority of
international arbitration. It is expected that consistency will contribute to the uniform
application of rules and promote a better understanding of the process, which will lead to
a better acceptance of the system as a whole.36
Legitimacy
Moreover, the publication of awards will make the system more transparent and fair by
allowing the public to see that justice is done.37 Even though it can be argued that arbitration
is not about doing justice, but rather deciding specific cases, as Hans Smit argues, arbitration
is a social phenomenon and decisions on disputes can have effects on society at large.38 In
other words, a relatively homogeneous body of awards can further promote arbitration as
an efficient and reliable means of settling disputes.39 Thus, if the work of arbitrators is
rendered more visible, the legitimacy of the system will be strengthened: future users of
arbitration will gain a better understanding of the process and will be encouraged to use it,
whilst existing users will be more likely to use it again because they will be convinced they
can get a fair hearing which meets their (reasonable) expectations.40
Neutrality
Another important benefit of the publication of awards is the prevention of conflict of
interests. This is very important since the arbitration field is often described as closed to
newcomers and said to favour repeat players, “especially in more complex matters”.52 It is
true that the pool of arbitrators has expanded in the past two decades but, in reality, it is
usually the same people acting as arbitrators, counsel, experts and commentators. There is
a real concern that arbitrators will favour the parties who appoint them regularly in different
cases because this will guarantee even more appointments in the future. This being so, it is
not surprising that challenges to the impartiality and independence of arbitrators have
increased.53 Even though most of the challenges are just tactical and aimed at sabotaging
the proceedings, they may have a negative impact on the arbitrator’s reputation and parties
may, eventually, lose confidence in the process.
Internationalisation of Law: Legislating, Decision-making, Practice and Education (Cheltenham: Edward Elgar,
2010), p.283 and Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain
a Repository of Awards” (2005) 1 Asian International Arbitration Journal 175, 177.
44
Currently, the practice in international commercial arbitration is not to reveal the names of arbitrators in published
awards. The view of the author is that the names of the arbitrators should be published.
45
Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a Repository
of Awards” (2005) 1 Asian International Arbitration Journal 175, 178. See also Richard Reuben, “Constitutional
Gravity: a Unity Theory of Alternative Dispute Resolution and Public Civil Justice” (2000) 47 UCLA Law Review
949.
46
Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
318. See also Martin Hunter, who praises the Iran-US Claims Tribunal awards, which were valuable to scholars and
students and contributed to the increase in their quality and quantity, in Hunter, “Publication of Arbitration Awards”
(1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139.
47
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 31–32. Thomas Carbonneau, “Arbitral Adjudication: A Comparative Assessment of Its Remedial and Substantive
Status in Transnational Commerce” (1984) Texas International Law Journal 39.
48
Sophie Hornay, “Réputation de l’arbitre et décision arbitrale: Quelques éléments d’analyse économique” (2012)
4 Revue de l’Arbitrage 763.
49
Smit, “Substance and Procedure in International Arbitration” (1991) 65 Tulane Law Review 1309, 1311, 1313.
50
There are various areas of research in arbitration which need further elaboration but they cannot be studied
because of lack of published sources. See Christopher Drazohal and Richard Naimark (eds), Towards a Science of
International Arbitration: Collected Empirical Research (Alphen aan den Rijn: Kluwer Law International, 2005),
p.7. See also David Caron and Lee Caplan (eds), The UNCITRAL Arbitration Rules: Commentary (Oxford: Oxford
University Press, 2013), p.755.
51
Susan Frank, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law
Through Inconsistent Decisions” (2005) Fordham Law Review 1614.
52
Smit, “Substance and Procedure in International Arbitration” (1991) 65 Tulane Law Review 1309.
53
See generally Sam Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a “Real
Danger Test” (Alphen aan den Rijn: Kluwer Law International, 2009), pp.1–287. See also Geoff Nicholas and
Constantine Partasides, “LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish” (2007) 23
Arbitration International 1.
Equality of arms
Purportedly, one of the great advantages of arbitration is that parties can choose the most
suitable individual to decide their case. In reality, however, information about arbitrators
is usually scarce58 and, more often than not, the choice is made by an institution to which
parties have submitted their dispute and not the parties themselves.59 Access to published
awards under one’s name will help arbitrators build a track record, which will allow parties
to make well-informed decisions as to who is the best-suited individual to deal with their
case.60 Moreover, publication of awards will remove the inequalities between “one-shotters”
and “repeat players” who happen to be parties to the same dispute. In arbitration, new users
have, by default, limited or no information about how to proceed and what to expect from
the arbitration process. As a result, they are in a less favourable position when faced with
experienced parties who have been involved in numerous arbitration proceedings, especially
when selecting arbitrators.61
54
Chang-fa Lo, “On a Balanced Mechanism on Publishing Arbitral Awards” (2008) 1 Contemporary Asia Arbitration
Journal 244.
55
Jeremy Bentham in John Bowring (ed.), The Works of Jeremy Bentham, Vol.IV (Edinburgh: William Tait, 1843),
p.316.
56
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 31–32. See also Hornay, “Réputation de l’arbitre et décision arbitrale” (2012) 4 Revue de l’Arbitrage 761.
57
Michael Mcllwrath and John Savage, International Arbitration and Mediation: A Practical Guide (Alphen aan
den Rijn: Kluwer Law International, 2010), p.252.
58
Arbitral institutions have started to reveal more information about arbitrators sitting on their panels. See, e.g.
the London Court of International Arbitration (LCIA) which published extracts of decisions on challenges to arbitrators
in (2011) 27(3) Arbitration International 283.
59
Lew et al., Comparative International Commercial Arbitration (2003), pp.32–33.
60
Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
319, 321.
61
See the difference between “repeat players” and “one-shotters” in Mark Galanter, “Why the ‘Haves’ Come out
Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law and Society Review 98, 98–100. See also Raymond,
“Confidentiality, in a Forum of Last Resort?” (2005) 16 American Review of International Arbitration 503.
confidence that a given institution can handle their case in a reliable and careful manner.62
This may also promote “healthy” competition amongst the arbitral institutions.63
Erosion of arbitration
First, by allowing a systematic publication of awards, arbitration will lose one of its key
hallmarks, namely, confidentiality.65 As a result, parties and their witnesses may become
reluctant to admit certain facts during the proceedings and less prone to seek a settlement
through negotiation.66 This may, in addition, impair the co-operation and good relations
between businesses that are vital for their growth.67 The main concern is that arbitration
will become very similar to litigation and this may deter parties from using it to settle their
disputes.68 Therefore, arbitration should be seen as a single process and the award cannot
be considered separately as something requiring less confidentiality.69
62
Lew, “The Case for the Publication of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration
(1982), pp.223–232.
63
See Catherine Rogers, who argues that there are also severe information asymmetries that prevent the market
for arbitrator services from being fully competitive, in Rogers, “The Vocation of the International Arbitrator” (2005)
20 American University International Law Review 957, 999–1002.
64
Jerzy Jakubowski, “Reflections on the Philosophy of International Commercial Arbitration and Conciliation”
in Schultz and Van den Berg (eds), The Art Of Arbitration (1982), p.182. See also Lew, “The Case for the Publication
of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration (1982), p.225.
65
Hunter, “Publication of Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139,
142, where he argues that “erosion of the right to confidentiality will, in time, serve only to erode the value of the
arbitration process to the international business community”. See also Delissa Ridgway, “International Arbitration:
The Next Growth Industry” (1999) Dispute Resolution Journal 52.
66
Gu Weixia, “Confidentiality Revisited: Blessing or Curse in International Arbitration” (2004) 15 American
Review of International Arbitration 632. See also Amanda Norris and Katina Metzidakis, “Public Protests, Private
Contracts: Confidentiality in ICSID Arbitration and the Cochabamba Water War” (2010) Harvard Negotiation Law
Review 56.
67
Norris and Metzidakis, “Public Protests, Private Contracts: Confidentiality in ICSID Arbitration and the
Cochabamba Water War” (2010) Harvard Negotiation Law Review 60.
68
Ioanna Thoma, “Confidentiality in English Arbitration Law: Myths and Realities about its Legal Nature” (2008)
25 Journal of International Arbitration 313, 314; Gu Weixia, “Confidentiality Revisited” (2004) 15 American Review
of International Arbitration 630.
69
Alan Shilston, “Should Arbitration Awards be Made Public?” (1993) 59 Arbitration 57.
70
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 459.
71
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 483.
72
Fali Nariman, “The Spirit of Arbitration—The Tenth Annual Goff Lecture” (2000) Arbitration International
263–264.
73
For an overview of the most frequently used ADR mechanisms, see Jason Crook, “What is Alternative Dispute
Resolution (ADR)?” in Julio César Betancourt (ed.), What is Alternative Dispute Resolution (ADR)? (London: CIArb,
2010).
74
Caron and Caplan (eds), The UNCITRAL Arbitration Rules: Commentary (2013), p.756.
75
Anibal Sabater, “Towards Transparency in Arbitration (A Cautious Approach)” (2010) 5 Publicist 53.
76
Sabater, “Towards Transparency in Arbitration (A Cautious Approach)” (2010) 5 Publicist 53.
77
Karton, “A Conflict of Interests” (2012) 28 Arbitration International 447, 475.
78
Gabrielle Kauffman-Kohler, “Arbitral Precedent: Dream, Necessity or Excuse?” (2007) 23(3) Arbitration
International 376.
79
Lew, “The Case for the Publication of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration
(1982), p.225.
80
Shilston, “Should Arbitration Awards be Made Public?” (1993) 59 Arbitration 57.
81
Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14 American
Review of International Arbitration 121, 135. But see Peter Cresswell who argues that “any award will affect the
business and people” in “The Future of Arbitration in the Changing World of Dispute Resolution” (2013) 79(3)
Arbitration 294.
82
Nariman, “The Spirit of Arbitration—The Tenth Annual Goff Lecture” (2000) Arbitration International 262.
See also Fali Nariman in Albert Jan Van den Berg (ed.), Quo Vadis Arbitration? 50 Years of the New York Convention:
ICCA International Arbitration Conference, ICCA Congress Series, Dublin, 2009, Vol.14 (Alphen aan den Rijn:
Kluwer Law International, 2009), p.635.
Proliferation of literature
Also, there is a plethora of publications, including textbooks, journal articles and guidelines,
publicising information and analysing current issues in international commercial arbitration.85
At the same time, the number of published awards has steadily increased.86 The dissemination
of information has been further eased by the internet and now many of the publications are
available in electronic form. Consequently, it may be considered that there is abundant
information circulating in the arbitration arena and through experience sharing at conferences
and seminars. The requirement for greater transparency is thus fulfilled.
5. In Search of a Solution
The arguments for and against the publication of awards often take an extreme position. At
one end of the spectrum lies the idea that awards can transcend the limited context of the
dispute at hand and become a “public good” similar to court judgments.89 At the other end
is the view that the current regime protects parties’ interests and rights and the publication
of awards without their consent will only have a detrimental impact on international
commercial arbitration practice. In the search for a middle ground, scholars have suggested
the following mechanisms.
83
See Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
319, 328.
84
See Sikiric, “Publication of Arbitral Awards” (1997) 4 Croatian Arbitration Yearbook 175, 185–186; and Paulsson
and Rawding, “The Trouble with Confidentiality” (1994) ICC Bulletin 50.
85
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 475.
86
Dora Marta Gruner, “Accounting for the Public Interest in International Arbitration: The Need for Procedural
and Structural Reform” (2003) 41 Columbia Journal of Transnational Law 959.
87
Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a Repository
of Awards” (2005) 1 Asian International Arbitration Journal 175, 179.
88
Patrick Neill, “Confidentiality in Arbitration” (1996) 12 Arbitration International 287, 315–316. See also, in
the context of maritime arbitration, Petros Tassios, “Choosing the Appropriate Venue: Maritime Arbitration in London
or New York?” (2004) 21 Journal of International Arbitration 359.
89
Rogers, “The Vocation of the International Arbitrator” (2005) 20 American University International Law Review
957, 999.
Automatic mechanism
The first proposal establishes a mechanism which requires the parties themselves to identify
confidential information which they would not like to see published. The arbitrator will
then produce two arbitral awards: one will contain all the confidential information and a
second one will be edited to remove all sensitive information. The former will be delivered
to the parties whilst the latter will be automatically published.
The benefits of this mechanism are twofold. The parties will be involved in the process
of deciding what to include and exclude and arbitrators, rather than administrative staff
working for an arbitral institution, will perform the redaction of awards based on parties’
objections.90 On the other hand, the issuing of such an award will turn out to be more costly
and will take more time, and the question of who will pay for the additional costs arises.
90
Lo, “On a Balanced Mechanism on Publishing Arbitral Awards” (2008) 1 Contemporary Asia Arbitration Journal
244, 247–248.
91
See Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards”
(2012) 28 Arbitration International 447, 476, 479–480.
92
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 29–30.
93
Gruner, “Accounting for the Public Interest in International Arbitration” (2003) 41 Columbia Journal of
Transnational Law 959, 961–963.
94
For a full list of the countries who have signed the New York Convention, see http://www.uncitral.org [Accessed
December 9, 2014].
95
Emmanuel Jovilet, “Access to Information and Awards” (2006) Arbitration International 271. See also Mourre
and Vagenheim, “Arbitral Jurisprudence In International Commercial Arbitration” (2009), http://kluwerarbitrationblog
.com [Accessed December 9, 2014].
96
United Nations General Assembly, CLOUT Userguide (2010) A/CN.9/SER.C/GUIDE/1/Rev.2, http://www
.uncitral.org/uncitral/en/case_law.html [Accessed December 9, 2014].
97
See Lew et al. (eds), Comparative International Commercial Arbitration (2003), p.7; and Bühring-Uhle et al.,
Arbitration and Mediation in International Business (2006), p.108. And see generally Naimark and Keer, “What Do
Parties Really Want From International Commercial Arbitration?” (2002) 57 Dispute Resolution Journal 78; and
School of International Arbitration, Queen Mary University of London, 2010 International Arbitration Survey:
Choices in International Arbitration (2010).
98
See generally Tony Marks and Julio César Betancourt, “The Chartered Institute of Arbitrators” in Julian D. M.
Lew et al. (eds), Arbitration in England, with chapters on Scotland and Ireland (Alphen aan den Rijn: Kluwer Law
International, 2013), pp.75–88.
99
Hwang and Chung, “Defining the Indefinable” (2009) Journal of International Arbitration 642, 644.
others can follow. The efforts of the Milan Chamber of Commerce to that effect are
commendable and serve as a useful example.100
Last but not least, it would also be desirable for the international arbitral community to
reach a consensus on the value of the duty of confidentiality and whether it presents a
genuine obstacle to systematic publication of awards.101 It is advisable that uniform standards
for the application of the duty of confidentiality be developed. This can be done by way of
guidelines. The most appropriate venue appears to be CIArb.102 Given the broad acceptance
of CIArb’s Guidelines covering other areas in international commercial arbitration, which
have been particularly problematic, and their extensive use in proceedings, it can be expected
that a new set of Guidelines on the Duty of Confidentiality in International Arbitration will
be fully endorsed. The aim of the guidelines will be not only to clearly define the term
confidentiality but also to set the limits on the principle. This is necessary in order to establish
to whom it applies, what sanctions can be sought in cases of breach and whether it extends
to the whole award or just parts of it.
7. Concluding Thoughts
International commercial arbitration is a dynamic and constantly evolving process. The
protection of confidentiality is without a doubt essential for the smooth functioning of
arbitration proceedings. However, confidentiality, whilst considered to be one of the
cornerstones of arbitration, is “not reliable”.103 Having a relatively small pool of arbitrators
and counsel as well as limited information on what exactly happens in arbitration can
jeopardise the system as a whole in the long run. Balancing the parties’ private interests
with the publication of reasoned awards is not an easy task. But if we want to promote
international commercial arbitration as an efficient and reliable method for settling business
disputes, information needs to be made available to everyone who has an interest in it or
as Fouchard once put it:
“If the international community of merchants aspire to give itself an autonomous
system of law, this law has to be made known to all those who have an interest in it:
the arbitrators should not resemble the ancient pontiflex of antique Rome, who jealously
kept the knowledge of law for themselves and with it the religious and political
power.”104
100
See, e.g. Milan Chamber of Commerce, Guidelines for Anonymous Publication of Arbitral Awards (Milan:
Milan Chamber of Commerce and Università Carlo Cattaneo, n.d.), http://www.camera-arbitrale.it/Documenti
/guidelines_anonym-aw.pdf [Accessed December 9, 2014].
101
Kyriaki Noussia, Confidentiality in International Arbitration: A Comparative Analysis of the Position under
English, US, German and French Law (Heidelberg: Springer, 2010), p.181.
102
A full list of CIArb Guidelines, Protocols and Rules is available at http://www.ciarb.org/resources [Accessed
December 9, 2014].
103
Paulsson and Rawding, “The Trouble with Confidentiality” (1994) ICC Bulletin 48.
104
Klaus Peter Burger, The Creeping Codification of Lex Mercatoria, citing Philippe Fouchard, L’arbitrage
commercial international (Alphen aan den Rijn: Kluwer Law International, 2010), p.85.