TOWARDS A MORE COHERENT REGIME FOR TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION

Abstract

The benefits of greater transparency in international commercial arbitration have to be cautiously weighed against the genuine interests of the parties to the dispute. Most often, the interested parties to a dispute resist transparency reforms because confidentiality is considered to be one of the major hallmarks of arbitration, which cannot be compromised upon. However, as the demand for transparency of commercial activities increases for various reasons such as for disclosures in the interest of the public, legitimacy of the arbitration system, confidence in the arbitral process, there is naturally a need for more transparency reforms in international commercial arbitration. A coherent regime for confidentiality does not exist in international commercial arbitration. The arbitral rules and national arbitration legislations of various jurisdictions have adopted divergent approaches in dealing with the issue of confidentiality. Some require an express duty of confidentiality while some read an implied duty of confidentiality into the arbitration agreement. Over the years, precedents have laid down the rule of confidentiality and no uniform approach can be inferred from them. This paper is an attempt to suggest a transparency reform model that can be incorporated by the states in their national arbitration legislations. The model draws upon the UNCITRAL Rules on Transparency in Investor-State Arbitration, as a roadmap to develop a model more suitable for commercial disputes. It is an effort to achieve the right balance between the competing values of transparency and confidentiality, by basing the model on the notion of “more transparency, while preserving the confidentiality of the parties to the extent necessary”. The model places transparency at one end of the spectrum and confidentiality at the other end. For greater transparency, it suggests arbitral awards should be mandatorily published in a systematic manner, while maintaining an implied duty of confidentiality, by allowing publication in a redacted form if the parties object and allowing for disclosures only in genuine cases.