Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration

Abstract

The debate regarding the importance of transparency versus privacy and confidentiality in international arbitration is at a crossroads. On April 1, 2014, UNCITRAL's "ground-breaking" Rules on Transparency in Treaty-Based Investor-State Arbitration ("Transparency Rules") took effect. But the limited scope of the Transparency Rules leaves international commercial arbitration in the dark.

Commentators and organizational proponents of the Transparency Rules, such as the Center for International Environmental Law ("CIEL"), suggest that there is a "public interest difference" between the system of investor-state arbitration (i.e. investment arbitration) and the system of international commercial arbitration. This difference is used to justify limiting the transparency trend in international arbitration to the system of investor-state arbitration because it involves disputes in which a state or state-owned-entity is a party. This paper challenges the legitimacy and sufficiency of the "public interest difference" as a rationale to determine that greater transparency is not required in the system of international commercial arbitration and it calls for the publication of non-sanitized arbitral awards. It also examines the privacy implications and, in hindsight, misguided rationale of the 1985 landmark decision of the Supreme Court of the United States in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.

Keywords: international commercial arbitration, investor-state arbitration, treaty arbitration, arbitral award, settlement, UNCITRAL, CIEL, International Chamber of Commerce, New York Convention, transparency, privacy, confidentiality, public interest, Mitsubishi Motors Corp., Sherman Act

JEL Classification: K33, K41