The Tensions between Confidentiality and Transparency in International Arbitration
American Review of International Arbitration, Vol. 14, No. 121, 2003
18 Pages Posted: 22 Jan 2009
Date Written: May 20, 2003
Confidentiality is often cited as one of the main benefits of arbitration as opposed to litigation. Yet, scholars and practitioners often fail to examine exactly why confidentiality is important. We also do not carefully weigh the benefits and costs of making arbitration confidential, whether we are talking about public or private international arbitration.
While confidentiality is an important aspect of international commercial arbitration, this article challenges the idea that all aspects of international arbitration must always be confidential for arbitration to be valuable. It argues that a more nuanced approach to confidentiality in arbitration may preserve the values of arbitration while at the same time enhancing the competing values to be gained by greater transparency. In particular, the article advocates the adoption of a presumption that arbitral awards should be made publicly available, unless both parties object. As will be shown herein, this presumption is justified because the benefits of greater transparency in arbitration brought about by the publication of awards often outweigh concerns for confidentiality.
Keywords: international arbitration, confidentiality, transparency
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