Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
International Arbitration (4th edition)
While domestic arbitrations in Argentina are normally considered confidential –as the parties regularly agreed so–, there is an international trend towards transparency, which may impact on local arbitral institutions in the near future. For the time being, no significant measures have been taken at the local level.
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.
Yes. Several arbitral institutions that are based in the U.S. have adopted measures to promote transparency. See, e.g., AAA-ICDR’s Online Caseload Tracker; CPR’s Screened Selection Process. ICSID also has a procedure through which hearings can be opened to the public and provides video-links for remote viewing. See ICSID Convention, Arbitration Rules § 32(2). Parties can decide whether they want their hearings to be public, but transparency is the default. Additionally, the draft ICSID rule amendments have the stated goal of ensuring that “the most important documents and information are made available to the public”. See Proposals for Amendments of the ICSID Rules, Working Paper #3, ¶ 152.
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.
Article 10.6 of the DIFC-LCIA Rules states, with regard to a challenging an arbitrator that “The LCIA Court’s decision shall be made in writing, with reasons”.
The LCIA publishes information in relation to costs and duration of cases.
The ICC International Court of Arbitration [the Court], which has recently established a physical presence in Singapore, recently released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration in January 2019 [the Note], available online at https://cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf.
The Note signaled the Court’s intention to increase public availability of ICC arbitral awards in providing that final awards and dissenting or concurring opinions may be published in their entirety no less than two (2) years after notification to the parties of a given ICC arbitration.
The Note also provided for greater transparency of ICC arbitration as a matter of policy, and particularly with respect to arbitrator appointments, as follows:
‘34. […] Transparency provides greater confidence in the arbitration process, and helps protect arbitration against inaccurate or ill-informed criticism.
35. Consistent with that policy and unless otherwise agreed by the parties, the Court publishes on the ICC website, for arbitrations registered as from 1 January 2016, the following information: (i) the names of the arbitrators, (ii) their nationality, (iii) their role within a tribunal, (iv) the method of their appointment, and (v) whether the arbitration is pending or closed. The arbitration reference number and the names of the parties and of their counsel will not be published.
36. For arbitrations registered as from 1 July 2019, the Court will also publish on the ICC website the following additional information: (vi) the sector of industry involved and (vii) counsel representing the parties in the case.’
By contrast, under Rule 39 of the SIAC Rules (2016), the default position (unless the parties agree otherwise) continues to be that ‘all matters relating to the proceedings and the Award’ are strictly confidential, including the ‘discussions and deliberations of the Tribunal’ as well as the very ‘existence of the proceedings’.
The KCAB has taken measures to increase transparency with regard to arbitration costs and appointment of arbitrators. On 1 January 2018, the KCAB published its Practice Note on the Appointment of Arbitrator and the Practice Note on Arbitration Costs.
Recently, the ICC Court started publishing a note to Parties and Arbitral Tribunals on the conduct of arbitration, which enhances transparency as described below. Its latest version which can be found on the ICC’s website, is dated 1 January 2019.
At the request of any of the parties, the ICC Court may provide the reasons in respect of:
• A decision on a challenge to an arbitrator pursuant to Article 14 of the ICC Rules;
• A decision to initiate a replacement of an arbitrator on the ICC Court’s motion under Article 15(2) of the ICC Rules;
• Decisions taken in accordance with Article 6(4), (prima facie decisions on jurisdiction) and Article 10 (consolidation of arbitration proceedings).
For arbitration proceedings conducted under the ICC Rules before the entry into force of the 2017 Rules, a request for disclosure of the reasons must be made jointly by all the parties. Any request must be made before the decision for which reasons are sought. The ICC Court shall decide in its sole discretion, whether to accept or reject an application for disclosure of reasons.
The ICC Court aims to promote transparency without compromising confidentiality expectations. In accordance with this policy, unless the parties agree otherwise, the Court of arbitration shall publish on the ICC website, for arbitration proceedings registered on or after 1 January 2016, the following information:
• The names of the arbitrators;
• The nationality of the arbitrators;
• Their role in a tribunal (President, sole arbitrator, party-appointed arbitrator);
• The terms of their appointment;
• Whether the arbitration is pending or concluded.
Disclosure regarding independence and impartiality by arbitrators also concerns non-parties having an interest in the outcome of arbitration.
Awards rendered on or after 1 January 2019 in ICC arbitrations will be published under the following conditions:
• Final awards made on or after 1 January 2019 may be published in their entirety at least two years after the date of their notification. The parties may agree on a longer or shorter period for publication.
• At any time before publication, a party may object or request that any award be anonymized partially or entirely.
• If a confidentiality agreement covers some aspects of the arbitration or award, publication will require the specific consent of the parties.
Moreover, the ICC Court also publishes information on the nature of the industry sector involved in the dispute and the name of counsel representing the parties, for all arbitrations filed after 1 July 2019.
Pursuant to section 44 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.
Arbitration and Conciliation Act, 1996 is completely transparent in nature regarding appointment of Arbitrator, proceeding of Arbitration and other. However, there is no recent measure taken by the arbitral institutions to promote transparency in arbitration in India.
Neither the Arbitration Law nor the BANI Rules contain explicit provisions on transparency. However, the Arbitration Law does require that an award sets out the opinion of each arbitrator in case of a dissenting opinion. This encourages transparency in the tribunal’s deliberations and rationale when rendering the award.
No. The Liechtenstein Rules have – among other reasons – been designed to promote the confidentiality of arbitral proceedings (see e.g. Article 18 of the Liechtenstein Rules in the context of evidentiary proceedings and Article 29 of the Liechtenstein Rules governing the principle of confidentiality in principle).
AIAC took the initiative to promote transparency when it adopted the ‘UNCITRAL Rules on Transparency in Treatybased Investor-State Arbitration’ through the AIAC Rules 2018.
No specific measures exist to that effect. However, the CRCICA publishes quarterly all statistics related to the number of cases, nationalities of participants and arbitrators, sectors of disputes. Also, the CRCICA publishes some of the arbitral awards whose proceedings were conducted under its auspices, without disclosing identities or nationalities of the parties to the dispute.
Yes. Several national arbitral centers have promoted the application of rules or measures to promote transparency in arbitration. Additionally, we must mention that the LAM by default establishes non-confidentiality of arbitration, so confidentiality must be expressly agreed by the parties to the arbitration agreement.
The permanent arbitration tribunals mainly promote transparency by publishing the, anonymized, arbitration awards.
Yes, some measures have been taken by some of the arbitration institutions to promote transparency in arbitration. For example, under International Centre for Dispute Resolution Canada’s Arbitration Rules, the Administrator, unless the parties agree otherwise, may publish selected awards, orders, decisions and rulings that have been edited to conceal the names of the parties and other identifying details.
Yes. CAM Santiago began to publish a selection of the awards rendered by its arbitrators –taking care of deleting any information about the identity of the parties involved in the cases. The selection specifies the name of each arbitrator.
Arbitral institutions in Mexico have their own rules that are very clear and stipulate matters of costs and duration. However, it is also stipulated 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 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 Arbitration Act itself, as in force from 2004, has to provisions to provide transparency in arbitration. Firstly, the duty of confidentiality will only apply when the parties have so agreed. Secondly, to ensure availability at a later stage, a signed copy of the award shall be sent to the local court and archived there. However, this is a rule commonly ignored.
Currently, the regime in effect in the Philippines in one for confidentiality of arbitration proceedings. The ADR Act explicitly provides for confidentiality of arbitration proceedings, including all records, evidence and arbitral award, and prohibits publication except with the parties’ consent or for the limited purpose of disclosing to the court of relevant documents where resort to court is allowed. (Sec. 23, ADR Act) There is no movement yet towards transparency.
As explained above, the Arbitration Law is based on internationally recognized rules and procedures. Moreover, the SCCA is modeled after internationally respected arbitration institutions. The recent modernization of arbitration rules in the Kingdom, including the establishment of the SCCA, is driven by a desire to make the arbitration process more efficient and transparent.
The Executive Yuan has published “Rules on the Organization of Arbitration Institutions, the Mediation Procedure and the Associated Costs” arising from Article 54 of the AL to require more transparency from arbitration institutions. This requires all Taiwan arbitration institutions to provide a list of their arbitrators and sets a uniform fee standard (and percentage as arbitrator compensation) for arbitration institutions. Arbitration institutions generally provide a FAQ section on their websites to introduce how arbitrations will be conducted by the institution. In addition, the Chinese Arbitration Association and the Taiwan Arbitration Association also publishes some awards that they have rendered on their websites.
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.