International Arbitration and Transparency

Cambridge Compendium of International Commercial and Investment Arbitration (A. Bjorklund, F. Ferrari, S. Kröll eds.) (forthcoming)

25 Pages Posted: 2 Oct 2016 Last revised: 12 Aug 2019

See all articles by Mark Feldman

Mark Feldman

Peking University School of Transnational Law

Date Written: August 7, 2019

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

Suggested Citation

Feldman, Mark, International Arbitration and Transparency (August 7, 2019). Cambridge Compendium of International Commercial and Investment Arbitration (A. Bjorklund, F. Ferrari, S. Kröll eds.) (forthcoming). Available at SSRN: https://ssrn.com/abstract=2843140 or http://dx.doi.org/10.2139/ssrn.2843140

Mark Feldman (Contact Author)

Peking University School of Transnational Law ( email )

China

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