Zbornik Radova: Pravni Fakultet u Novom Sadu (Jan 2018)
Confidentiality and transparency in international arbitration
Abstract
It is very often heard that confidentiality is one of the principal advantages of arbitration. Nevertheless, confidentiality is not recognized as a general principle of arbitration and there are no provisions on confidentiality to be found in legal sources such as the New York Covention on Recognition and Enforcement of Foreign Arbitral Awards, or the UNCITRAL Model Law on International Commercial Arbitration. If arbitration is very often confidential, this comes from the nature of things rather than from hard and fast rules. This paper explores to what extent has confidentiality ceased to be the basic feature of arbitration in modern practice. The trend towards greater transparency has germinated mainly in the field of investment arbitration during the last two decades, but it had diffused accross international commercial arbitration. The UNCITRAL Rules on Transparency in Investment Arbitration are the result of that development that was driven by different forces and interests: those of arbitral institutions, arbitrators, legal counsel, non-governmental organizations, states and the general public. That development has enabled the system of quasi-precedent in investor-state arbitration and incited numerious challenges of arbitrators. It has informed the observers of gender and ethnic inequality prevailing in this line of legal business. Step by step, each segment of the arbitral procedure became open to the public in investor-state arbitrations: the names of the parties and the fact that the dispute is pending, the names of arbitrators and legal counsel, the arbitral award and the outcome of the dispute, procedural orders, memorials and exhibits, hearing and transcripts of the hearing. The things that would be just unheard of in the nineties, such as broadcasting of the hearing, started to happen in the new millenium. Influenced by this trend, the institutions predominantly operating in the field of commercial arbitration, such as the ICC, started revealing more of their own business. Although some of them, such as the LCIA still give great weight to confidentiality, it is generally difficult not to succumb in one way or another to the newest transparency trend, that is, like an irresistible force, changing the face of arbitration.
