International Arbitration and Transparency

Abstract

Over the past 15 years, a significant “transparency gap” has developed between the investment treaty arbitration and international commercial arbitration regimes. With increasing frequency in investment treaty cases, the public is provided with some form of access to documents and hearings as well as opportunities for participation through written amicus submissions; only to a very limited extent have such developments occurred within the international commercial arbitration regime.

This chapter examines whether the existing transparency gap should be maintained, considering three factors: (i) the nature of the public interest; (ii) the role of confidentiality; and (iii) the role of party autonomy.

This chapter concludes that the transparency gap should — as a general matter — be maintained. Although the public interest in particular international commercial arbitration cases can be significant — most notably in cases involving State entities or statutory claims — on a systemic level the public interest in international commercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve State entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy.

But with respect to public availability of arbitral awards, this chapter concludes that the transparency gap should be narrowed significantly, given larger developments regarding international commercial dispute resolution and public access to decision-making. In two separate contexts — investment treaty arbitration and the recently-developed set of international commercial courts based in Asia, the Middle East, and Europe — a common understanding is emerging that the resolution of international commercial disputes should, at the same time, provide guidance for the business community through the development of coherent jurisprudence.

With a view to increasing the public availability of commercial arbitration awards, this chapter proposes three alternative models for rulemaking: (i) a default rule model, (ii) a modified mandatory rule model, and (iii) a mandatory rule model.

Keywords: commercial arbitration, investment arbitration, investment treaty arbitration, transparency, confidentiality, amicus, party autonomy

JEL Classification: K33