Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
The VIAC has published a selection of 60 anonymised awards rendered under the Vienna Rules to provide insight into various procedural and substantive issues, which have arisen over the last years in commercial arbitration. This publication of selected arbitral awards is a response to the increased call for measures to ensure greater transparency of arbitral proceedings by way of enhanced access to reasoned arbitral awards.
The ICC announced earlier this year that new policies to foster transparency are to be adopted. More specifically, the ICC declared that, as of 1 January 2016, the International Court of Arbitration will publish the names of the arbitrators and their nationality, if the appointment was made by the ICC Court or by the parties, whether each arbitrator is the president, a sole arbitrator or party-appointed arbitrator.
In addition, on 8 October 2015, the ICC Court agreed for the first time – on the condition that all parties to an arbitration agree and that the request is made before a decision is reached – to provide the parties with its reasons in respect of:
- Challenges to an arbitrator under Article 14 of the ICC Rules.
- Decisions to initiate replacement proceedings and subsequently to replace an arbitrator on the ICC Court’s own motion under Article 15(2) of the ICC Rules.
- Decisions on consolidation of arbitration proceedings under Article 10 of the ICC Rules and prima facie decisions on jurisdiction under Article 6(4) of the ICC Rules.
The Portuguese Association of Arbitration, as well as some Arbitration Centres aim to promote transparency in arbitration by the approval of arbitrators’ deontological codes.
Increasing transparency of the arbitral proceedings is a constant priority of the arbitral institutions in Romania.
To increase transparency in arbitration, the SCC provides the Swedish Arbitration Portal since 2012. This database offers free access to English translations of decisions from all instances of the Swedish courts on issues related to international and domestic arbitration.
To date, the UAE’s main arbitral institutions have not taken concrete steps to promote transparency in arbitration.
There are currently no broad initiatives to strengthen transparency in arbitration. On the contrary, Art. 44 Swiss Rules explicitly stipulates that all awards, orders, and materials submitted by a party in the course of an arbitral proceeding are to be kept confidential, unless agreed otherwise by the parties.
There have been few dedicated measures to promote transparency, primarily as a result of the lack of investor-state arbitrations, where the tension between confidentiality and tension is usually most apparent. New Zealand has not yet been party to any investment treaty arbitrations. New Zealand has been party to one ICSID arbitration, Attorney-General v Mobil Oil NZ Ltd  2 NZLR 649 (HC), but in this case the Tribunal’s jurisdiction was founded in contract.
Malaysia has made great strides in promoting transparency in investment arbitration. It unreservedly ratified the TPPA which includes an investment arbitration mechanism that encourages public participation (Chapter 9, TPPA). Adopting the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, TPPA investment arbitration hearings are open to members of the public who may file amicus curiae submissions.
However, the move towards greater transparency in arbitration in Malaysia has thus far been limited to investment arbitration. Parties to Malaysian commercial arbitrations have thus far favoured confidentiality.
Customarily, commercial arbitrations are confidential, and all of the major organizations take steps to protect this confidentiality by not publishing anything associating parties with awards. Even so, organizations like the AAA do publish summaries of awards that do not mention the parties involved.
Other types of arbitration, such as labor arbitration, are usually not confidential, and awards and other decisions are usually published. ICSID has also taken steps to increase transparency of arbitral proceedings in the context of investor-state dispute resolution.
In 2013, SIAC introduced a new set of rules which allowed SIAC to publish redacted awards for the first time. This was a progressive development and brought SIAC in line with the ICC regime. Shortly after the introduction of this new rule, SIAC, in collaboration with legal publisher LexisNexis, published a volume entitled Singapore Arbitral Awards 2012, described as the ‘most comprehensive set of redacted arbitral awards decided in Singapore.’
While the new 2016 SIAC Rules retained SIAC’s ability to publish awards with all identifying information redacted, the new rules introduced a provision that requires SIAC to obtain the consent of all parties and the arbitral tribunal before it could do so. SIAC Arbitration Rules, Rule 32.12.
In addition, SIAC is about to release the SIAC Investment Arbitration Rules which also would address confidentiality and transparency in investment arbitration. An updated draft of the SIAC Investment Arbitration Rules will follow later in the year.
Singapore has not yet signed the 2014 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention).
Yes, in Brazil the arbitration institutions always seek to adopt measures to promote transparency in its arbitration proceedings.
There has been no promotion of transparency in commercial arbitrations per se, but there is a trend toward greater transparency. At least one arbitrator, in a case involving a matter of public interest, ordered the arbitration itself be public, as the presumption of a private hearing may be rebutted. Canada has also made efforts to include transparency provisions for investment arbitrations under bilateral investment and free trade agreements. Canada’s model bilateral investment treaty includes mandatory public access to hearings and documents and submissions by non-disputing parties. Canada was a proponent of the UNCITRAL Transparency Rules and has incorporated them into recent bilateral investment treaties.
Transparency in arbitration is a new issue being discussed in Panama. Arbitral institutions in Panama have started organizing seminars and lectures to discuss the issue of transparency in arbitration and what steps can be taken to promote transparency in said institutions.
The Spanish Arbitration Club has promoted transparency in arbitration by publishing the awards.
There is no specific regulation or intention by arbitral institutions to promote transparency in arbitration.
In October 2015, the ICC started to communicate the reasons of a number of decisions issued under the ICC Rules to promote more transparency in their arbitration proceedings. It is required that the parties agree on that communication. A certain discrepancy between transparency and confidentiality still exists. In January 2016, the ICC announced to publish the names of the arbitrators sitting in ICC cases on their website in the future. We see similar trends with other institutions as well. Institutions (DIS, ICC) also plan to publish (more) awards rendered under their rules.
In order to promote transparency, some arbitral institutions publish anonymous awards on their websites.
No. However, Lord Chief Justice Thomas instigated debate on the transparency of jurisprudence in arbitral awards, in the context of the development of the common law.
Not as yet.
There is no express provision in Polish law for confidentiality or transparency of arbitral proceedings. The Rules of the Court of Arbitration at the Polish Chamber of Commerce provide that proceedings before the arbitral tribunal are confidential. However, upon consent of both parties, the tribunal may permit third parties to attend the hearing. Awards are also confidential. Nonetheless, the Arbitral Council may decide to publish a ruling (redacted to assure the anonymity of the parties) if neither party objects to publication within 14 days after service of the ruling.