Have measures been taken by arbitral institutions to promote transparency in arbitration?
International Arbitration (2nd Edition)
Through its latest revision, the AIAC Arbitration Rules 2018 have incorporated the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (‘UNCITRAL Transparency Rules’) into its framework. The UNCITRAL Transparency Rules are applicable to AIAC-administered investment arbitrations and prescribe highly transparent arbitral proceedings.
At the time, the Santiago Arbitration and Mediation Center (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 Commercial 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 Code of Judicial Organization.
Finally, 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.
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”.
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.
Under the DIS Arbitration Rules, the conduct of the arbitration proceedings and the parties involved are confidential (section 43.1). Arbitral awards can only be published with the consent of the parties (section 42).
One of the aims of the initiated revision of the DIS Arbitration Rules (see question 6 above) is to increase transparency of the arbitration proceedings.
Any notable shifts as regards transparency in arbitration have not been experienced. However, the ICAC continues to publish extracts from its awards (subject to confidentiality) on the official ICAC's website. The Recommendatory List of the ICAC Arbitrators is also publicly available.
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 ICC announced in 2017, the opening of a new representative office which will be established in the ADGM.
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.
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.
The Spanish Arbitration Club created the so called “Arbitral Code on Good Practices” (Código de buenas practices arbitrales) which is aimed at arbitral institutions. The referred code pretends to gather some ethical and moral principles which arbitral institutions may take into account.
Arbitral institutions will have to release the information about their by-laws and main financing sources. They will also have to inform about the proceedings through which its management body exercises management faculties.
Additionally, in case the arbitral institution holds a list of arbitrators, it should disclose the criteria used in order to select arbitrators and the established proceedings in order to become a member of such list.
Finally, the Arbitral Code on Good Practices also establishes that arbitral institutions have the obligation to publish both its institutional fees and the arbitrator’s fees, together with other costs which may be related to the arbitration proceeding.
With regard to transparency of arbitration proceedings, the Law on Arbitration and Permanent Rules on Arbitration at SCC contain no provisions regulating this manner, so in practice, the issue of transparency and confidentiality remain 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.
The arbitration proceedings, including the records, evidence and the arbitral award, are confidential and must not be published.
Information is deemed confidential if it is intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information must not be disclosed. This includes:
- Communications (oral or written) made in a dispute resolution proceedings, including memoranda, notes or work products of the neutral party or non-party participant.
- Pleadings, motions, manifestations, witness statements, reports filed or submitted in arbitration.
The restriction on confidentiality applies to all the participants in the arbitration proceedings, including parties, arbitrators and non-party participants such as witnesses, resource persons or experts and institutions.
Transparency in terms of appointment of independent and impartial arbitrator is being followed in India since long; however, after the amendment to the Arbitration and Conciliation Act, 1996, the procedure has now become much more transparent.
Yes, the LAM and the regulations issued by the different arbitration centers promote transparency in arbitration. The LAM and the regulations issued by the arbitration centers establish that arbitrators have to reveal to the director of the arbitration center any cause of legal incapacity that could prevent the arbitrator from exercising his or her duties.
No specific measures have been taken in this regards.
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.
We have not observed any particular measures taken by the arbitral institutions.
We are not aware of such measures.
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”.
In line with other leading international arbitral institutions, the CAM periodically: (i) publishes a chart with the names of appointed arbitrators, (ii) releases its decisions on arbitrator challenges, which are made by the same council that makes appointments, and (iii) publishes final awards in a sanitized format, in accordance with the arbitration rules and the guidelines drawn up by the CAM itself in collaboration with LIUC — University of Castellanza, Italy.
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 confidentialty of arbitration process.
VIAC has published a selection of awards in an anonymised form to increase transparency. Further, VIAC is publishing the names of the arbitrators sitting on cases pending as of January 1, 2017.
All major commercial arbitration institutions in the United States provide for confidentiality of an arbitration award, and often of the arbitration process itself. In an effort to provide some transparency, several organizations, including the AAA and the ICC, publish anonymized award summaries that do not disclose the parties’ identities or confidential commercial information. By contrast, ICSID frequently publishes awards, decisions, and submissions if the parties consent, and the United States Department of State maintains a public web page with links to its submissions in investor-State disputes.
Not substantial ones. The publication of redacted awards would be a step towards this direction. However, the somewhat antagonistic notion of confidentiality is still given priority amongst practitioners and is hence valued more by arbitral institutions.
As stated above (see answer to question 6), there are several private institutes in Israel that offer arbitration services. All such institutions provide for confidentiality of an arbitration award as well as the arbitration process itself. Nevertheless, these institutes also emphasize, inter alia, that the arbitration services they offer are also based, inter alia, on the principle of transparency towards the parties. To the best of our knowledge, no initiative as to the issue of transparency of arbitral proceedings is being promoted.
The LCIA publishes information in relation to costs and duration of cases it has administered.
Increasing transparency of the arbitral proceedings is a constant priority of the arbitral institutions in Romania.
There is no specific regulation or intention by arbitral institutions to promote transparency in arbitration.