Confidentiality or Transparency: What Should Arbitral Institutions do?

Abstract

          This article pinpoints the question: to what extent should arbitral institutions publish arbitral awards administered by them, with regard to confidentiality and transparency concerns? While there are increasing proposals in international commercial arbitration (“ICA”) on an arbitral institution’s duty to implement more transparency in their arbitral processes to increase consistencies of legal interpretations, it is also undisputed that confidentiality—as a relatively opposite concept to transparency—still stands prominent as one of the greatest advantages of ICA. To respond to the imposed question, the article explores and defines in detail the two concepts of confidentiality and transparency; it provides competing arguments for and against each of the two concepts, considering also the role of confidentiality duty as an exception to transparency. Through these methods, the article finds that it is best to first uphold confidentiality duty when there is any. Lacking such a duty, transparency should only be implemented at stages that do not expose extensively parties’ substantive dispute information; it is suggested that transparency should only be adopted in the process of an arbitral institution’s acceptance of cases and the appointment of arbitrators.