Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
International Arbitration (3rd edition)
No specific measures have been taken in this regards.
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 ICC has also 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 November 2016, referring to its impending 2017 Rules, the ICC Court announced important amendments to the ICC Rules of Arbitration “with the aim of further increasing the efficiency and transparency of ICC arbitrations”.
Thus, Article 11(4) of the 2017 ICC Rules of Arbitration provides that “[t]he decisions of the Court as to the appointment, confirmation, challenge or replacement of an arbitrator shall be final”, deleting the sentence from the 2012 Rules stating that “the reasons for such decisions shall not be communicated”.
The arbitral institutions that are established in Cyprus have their own policies and their own code of conduct. Therefore, it is not to our knowledge whether special measures are taken to promote transparency in arbitration procedures.
In the past, some awards have been published in an anonymized form in order to increase transparency.
Recent years saw increased focus on transparency in domestic arbitration.
With regard to transparency of arbitration proceedings, the Law on Arbitration and Permanent Rules on Arbitration at SCC contain no provisions regulating this area, so in practice, the issue of transparency and confidentiality remains a matter of agreement of the parties in particular proceedings.
On the other hand, BAC Rules provide for confidentiality of arbitration proceedings and the award, however, in the interest of transparency, BAC Rules allow the institution to publish arbitral awards or excerpts thereto, after they have been anonymized, unless the party to the proceedings request in writing that the award is not published.
Although currently there is no specific measures regarding promoting transparency in arbitration, several arbitration institutions have launched online arbitration systems. CIETAC released its online arbitration system in 2009. Shenzhen Arbitration Commission unveiled its “Cloud Arbitration” system in 2017. These systems are specially designed for efficient resolution of E-commerce disputes.
CIETAC have been publishing its annual reports since 2000, and it has also published case analyses on anonymized cases of a broad spectrum of dispute types. Moreover, CIETAC’s newly published investment arbitration rules also emphasizes on transparency.
As for BAC, it was the first arbitration institution in China to require that arbitrators who do not agree or refuse to sign the arbitral award must submit their dissenting opinions to both parties along with the arbitral award. In 2014, BAC has added into its Rules of Arbitration a table of arbitration fees. Lastly, the 2015 Arbitration Rules provide that upon a joint request by both parties, or a request by one party that has been approved by the BAC, the BAC may appoint one or more stenographers to record the hearing.
According to the Rules of the Court of Arbitration at the Polish Chamber of Commerce, the Arbitral Council can decide about publication of an award, if anonymity is ensured and neither of the parties objected to the publication of the award within 14 days following delivery thereof. An analogous provision is included in the Rules of the Lewiatan Court of 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.
The ICC announced in 2017, the opening of a new representative office which will be established in the ADGM. This office became operational in 2018.
The ICC Rules 2012, Article 11(4) provides that:
‘the decision of the Court as to the appointment, confirmation, challenge or replacement of an arbitrator shall be final, and the reasons for such decisions shall not be communicated’.
The ICC Rules 2017, will remove the restriction on the Court’s ability to communicate to the parties the reasons for its decisions related to the ‘appointment, confirmation, challenge or replacement of an arbitrator’.
Should the Court elect to do so, it will illuminate the reasons behind the Court’s action, which the parties may consider important to their case.
The LCIA publishes information in relation to costs and duration of cases it has administered in order to offer the public a level of insight into its activities.
The SCCA is supportive of and promotes transparency in arbitration proceedings.
Generally, the KSA has attempted to improve transparency in its judicial system by publishing, for the first time, hundreds of court judgments in 2013.
Yes. Several arbitral institutions in the U.S. have moved toward more open and transparent processes. For instance, the AAA and the ICDR have taken steps in recent years to enhance transparency surrounding the selection of arbitrators. In 2013 and 2017 respectively, the AAA and the ICDR introduced arbitrator and mediator search platforms that allow users to search the institutions’ entire rosters of arbitrators and mediators. Both institutions also make information about the costs and duration of proceedings publicly available.
The CPR has recently increased efforts to promote transparency as well. The CPR launched its Due Diligence Evaluation Tool in 2010, which allows counsel to conduct due diligence on potential arbitrators by connecting them with other counsel who recently appeared before the arbitrator.
VIAC has published a selection of awards in an anonymised form to increase transparency. As of 1 January 2017, VIAC is publishing the names of the arbitrators sitting on pending cases.
There are no measures known to us that have been taken by the arbitral institutions in Nigeria to promote transparency in arbitrations. Although arbitral institutions have been admonished to consider amending their rules to incorporate principles that will foster transparency in the arbitral process, the arbitration institutions continue to ensure the confidentiality of arbitration process.
The approval of a Code of Conduct for the Arbitration by the Portuguese Arbitration Association is one example.
The Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry also approved recently a document with “Criteria for the Appointment of Arbitrators”.
Russian arbitral institutions generally elude taking active measures to promote transparency. After the 2015 reform, however, Russian law imposes a number of transparency-related obligations on arbitral institutions. In particular, an arbitral institution must publish in its website information about its owners, a list of potential arbitrators recommended by it, consisting of no less than thirty persons. Further, in the context of arbitration of corporate disputes, an arbitral institution is obliged to publish information about a statement of claim within three days after it was filed.
Given the absence of arbitral institutions in Ireland, this issue does not arise here.
In accordance with recent developments in international arbitration, the OCC has adopted a new remuneration schedule which limits the arbitral tribunal’s fees and expenses. By using the schedule, the parties can calculate the costs of the arbitration proceedings with increased certainty. This transparency with regard to costs, gives the parties an improved basis for making an informed decision with regard to whether or not to initiate arbitration proceedings.
Pursuant to section 43, DIS Arbitration Rules, conduct of the arbitration, i.e. its subject matter and the parties involved, is confidential and the arbitral award may only be published upon consent of the parties. Neither the DIS Arbitration Rules nor the provisions of the ZPO explicitly provide for the issuance of a dissenting opinion within the arbitral tribunal, though the arbitral tribunal is responsible for the content of its decision. A dissenting opinion therefore may be added by one of the arbitrators.
We have not observed any particular measures taken by the Permanent Arbitration Court of the Croatian Chamber of Economy.
At the time, the CAM Santiago, as the principal arbitration institution in Chile, is not promoting any specific policy related to transparency in arbitration. As a matter of fact, neither its Domestic Arbitration Rules nor its International Rules of Arbitration provide for specific regulation in relation to the confidentiality of the arbitral proceedings.
Nevertheless, in practice, all of the arbitral proceedings being substantiated before CAM Santiago are confidential, as only the parties and arbitrators involved in the dispute may access the case file and any information related to the arbitration.
As for the arbitral award, Article 33(8) of the Rules of International Comercial Arbitration of CAM Santiago states that the award will be confidential, unless the parties agree otherwise or if “disclosure thereof is required for a challenge procedure, fulfillment or enforcement of the award, or the law or any judicial authority requires disclosure”. Although there is no similar provision in the Domestic Arbitration Rules, the domestic award will become part of the public record if it is challenged before a local court, as stated in Article 9 of the CJO.
Over the past years CAM Santiago has been publishing domestic and international awards rendered by its arbitrators, always maintaining the identity of the parties as confidential.