A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards
28 Arbitration International, 2012
42 Pages Posted: 1 Apr 2012 Last revised: 17 Mar 2013
Date Written: March 29, 2012
There now appears to be general agreement that greater publication of awards would benefit the international commercial arbitration system, yet most awards remain unpublished. This article explains the current state of affairs by reference to the conflict between party and systemic interests. Since international arbitration is a private, consent-based system, party interests in keeping awards confidential are likely to trump systemic interests in publishing them — even if those systemic interests align with the long-term interests of commercial parties generally.
The conflict of interests not only explains why confidentiality of international arbitral awards remains the rule, it also points the way to a method of publishing awards that would serve systemic interests in publication while protecting party interests in confidentiality. This article proposes that arbitral institutions amend their rules to provide that the parties agree to limited publication of awards. Only those parts of awards that are of general interest will be published, while tribunals will be empowered to redact proprietary business information and any facts that might lead to identification of the parties. Parties will be able to object to the publishable text proposed by the tribunal, but not to the fact of publication.
Keywords: international arbitration, confidentiality
Suggested Citation: Suggested Citation