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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  

Cindy Galway Buys

Southern Illinois University School of Law

Date Written: May 20, 2003

Abstract

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

Suggested Citation

Buys, Cindy Galway, The Tensions between Confidentiality and Transparency in International Arbitration (May 20, 2003). American Review of International Arbitration, Vol. 14, No. 121, 2003. Available at SSRN: https://ssrn.com/abstract=1330243

Cindy Galway Buys (Contact Author)

Southern Illinois University School of Law ( email )

Mailcode 6804
Carbondale, IL Illinois 62901
United States
618-453-8743 (Phone)

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