Although there is a move towards greater transparency in the international arbitration, it must be noted that even under the rules of every arbitration in the world, there is always a condition for confidentiality or privacy. This paper will argue about this trend and to evaluate up to what extend that the disclosure can be made even under this condition of confidentiality.
Under the ICC Arbitration Rules (1998), based on Article 20, it is stated that the arbitral may take measures for protecting trade secrets and confidential information. It is also mentioned under the article 21, the Arbitral Tribunal shall be in full charge of the hearings, at which all the parties shall be entitled to be present. Save with the approval of the Arbitral Tribunal and the parties, persons not involved in the proceedings shall not be admitted. Furthermore, other instance such as the AAA/ICDR International Arbitration Rules, hearings are private unless the parties agree otherwise or the law provides to the contrary, the tribunal may require any witness or witnesses to retire during the testimony of other witnesses, the tribunal may determine the manner in which witnesses are examined. Under the SIAC Rules, based on article 39.1, unless otherwise agreed by the parties, a party and any arbitrator, including any Emergency Arbitrator, and any person appointed by the Tribunal, including any administrative secretary and any expert, shall at all times treat all matters relating to the proceedings and the Award as confidential. The discussions and deliberations of the Tribunal shall be confidential.
Under the SIAC Rules itself concerning confidentiality, it is stated that, historically, parties enter into arbitration agreements with a view of “keeping their quarrels from the public eyes, and of avoiding that discussion in public, which must be a painful one, and which might be an injury even to the successful party to the litigation, and most surely would be to be unsuccessful”. Ethical guidelines can also bind international arbitrators to obligations of confidentiality, such an obligation is commonly implied as terms of the arbitrator’s contract, unless the parties and the arbitrator expressly agreed otherwise. Specifically, in the SIAC Code of Ethics for an Arbitrator, it is expressly stated that the arbitrator is in a relationship to trust to the parties and should not, at any time, use confidential information acquired during the course of the proceedings to gain personal advantage for others, or to affect adversely the interest of another.
It is also noted that based on Rule 40.1, provides the decisions of the President, the Court and the Registrar, “Except as provided in these Rules, the decisions of the President, the Court and the Registrar with respect to all matters relating to an arbitration shall be conclusive and binding upon the parties and the Tribunal. The President, the Court and the Registrar shall not be required to provide reasons for such decisions, unless the Court determines otherwise or as may be provided in these Rules. The parties agree that the discussions and deliberations of the Court are confidential.”
Confidentiality most of the time can be said as the key point of arbitration, as confidentiality is often cited as one of the main advantages of arbitration over litigation. However, it should not be taken for granted that an arbitration and matters pertaining to it would be treated as confidential (and the extent of that confidentiality) would depend on the lex arbitri and the terms of the parties’ agreement, which include the arbitral rules that the parties to adopt. Under the Singapore law itself, recognizes an implied duty of confidentiality arising out of the nature of arbitration itself. In the words of Justice Chan Seng Onn in the Singapore High Court case of AAY and others v AAZ, with Singapore as the seat of arbitration, ‘confidentiality will apply as a substantive rule of arbitration law, not through IAA or the AA, but from the common law’.
However, it must be noted that there are several exceptions of disclosing the arbitration proceedings under the confidentiality based on the common law. Firstly, there is parties’ consent thereto, express or implied, secondly, it is ordered by a court, thirdly, it is reasonably necessary for the protection of the legitimate interests of a party, fourthly, it is required in the interests of justice, or it is in the public interest. But, the application of these established exceptions to the duty of confidentiality arising under Singapore law is dependent upon the context and circumstances of the particular case, including the nature of the information or documents sought to be disclosed, to whom disclosure is sought to be made, and for what purpose.
As confidentiality is known as the essence of the arbitration itself, the “confidentiality” itself was being criticized. General public interest, predictability and consistency in decision-making can be said to support a need for transparency in both investor-state arbitration and international commercial arbitration. While it is also true what the critics said, but doesn’t it undermine the essence of the arbitration itself? These diverging interests must, therefore, be balanced in the quest for transparency.
UNCITRAL has in recent years created several instruments aimed at increasing transparency, especially in investor-state arbitration. Among those instruments are the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the “UNCITRAL Transparency Rules”), which are a set of procedural rules that provide for transparency and accessibility to the public of treaty-based arbitration. Scope of the UNCITRAL Transparency Rules are as follows, during the notice of arbitration has been received by the respondent, the repository shall promptly make available to the public information regarding the name of the disputing parties, the economic sector involved and the treaty under which the claim is made. In regards to the publication of documents, the documents that shall be made available to the public: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defense and any further written statements or written submissions by any disputing party; a table listing all exhibits to the aforesaid documents and to expert reports and witness statements, if such table has been prepared for the proceedings, but not the exhibits themselves; any written submissions by the non-disputing Party (or Parties) to the treaty and by third persons, transcripts of hearings, where available; and orders, decisions and awards of the arbitral tribunal. The hearings itself must be presented for the evidence or for oral argument shall be public. However, it must be noted that there are exceptions to such transparency under the UNCITRAL Transparency Rules, specifically in Article 7. Several exceptions which still need to prevails are, confidential business information , information that is protected against being made available to the public under the treaty , information that is protected against made available to the public, in the case of the information of the respondent State, under the law of the respondent State, and in the case of other information, under any law or rules determined by the arbitral tribunal to be applicable to the disclosure of such information or information the disclosure of which would impede law enforcement.
Having said the transparency rules under the UNCITRAL Rules on Transparency, it only prevails in the investor-state arbitration, not to the International Commercial Arbitration disputes. In the sphere of the International Commercial Arbitration, it still remained undisclosed. Some scholars seem to be of the opinion that transparency is an important feature in investor-state disputes, but does not automatically suit commercial arbitration. This opinion seems to result from the traditional view that private relationships, such as the relationship between two companies, mean private disputes. For instance, certain institutions, such as the ICC, publish selected awards in redacted form, while others, such as the Hong Kong International Arbitration Centre (the “HKIAC”), do not generally publish awards. However, the ICC has explained that, in practice, it would not publish an award if doing so would be contrary to a confidentiality agreement between the parties.
Despite the undeniable benefits of publishing parts or the entirety of the awards, various arguments favor requiring party consent for the publication of awards.