MORE TRANSPARENCY IN INTERNATIONAL

COMMERCIAL ARBITRATION: TO HAVE OR

NOT TO HAVE?

Sherlin Hsie-lien Tung& Brian Lin

ABSTRACT
Transparency in international arbitration has increasingly
become a hot topic in recent years whether it is from the eyes of a
party, arbitral institution or the legal community in general. Under
a traditionalist view, confidentiality is one of the central pillars of
arbitration. However, the evolution and rise in use of international
arbitration, in particular investor-State arbitrations, has resulted in
an increase in demand for more openness and transparency in
international arbitral proceedings.
This article will examine the question of where the balance
should be between confidentiality and transparency in international
commercial arbitration proceedings. The authors will analyze this
question by looking at the pros and cons of confidentiality and
transparency in both ad hoc and institutional arbitration
proceedings from the perspectives of the parties, arbitral institutions
and international legal arena.


Sherlin Hsie-lien Tung currently splits her time as the Litigation, Arbitration and Special Projects
Counsel at Semperit AG Holdings in Vienna (Austria) and as a Senior Associate with CMS Hasche
Sigle in Hong Kong as a member of its the International Arbitration Practice. She is admitted to
practice law in the states of New York and California and holds degrees from the University of
California Los Angeles, University of San Diego School of Law and Stockholm University. The
author can be reached at: Sherlin.tung@cms-hs.com.

Brian (Po Yen) Lin is currently an Associate with Fangda Partners in Beijing as a member of its
Dispute Resolution Practice. Brian is admitted to practice law in the state of New York, holds both
common and civil law degrees from McGill University as well as a Masters of Laws degree in
Arbitration & Dispute Resolution from the University of Hong Kong. The author can be reached at:
brian.lin@fangdalaw.com.

Electronic copy available at: https://ssrn.com/abstract=3188001

 22 11(1) CONTEMP. ASIA ARB. J. 21 [2018

KEYWORDS: international arbitration, transparency, confidentiality,

institutional rules, ad hoc arbitration, efficiency, costs, arbitral precedence

Electronic copy available at: https://ssrn.com/abstract=3188001

 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 23
TO HAVE OR NOT TO HAVE?

I. INTRODUCTION

Gone are the days where it is automatically assumed as a fact that private
parties are able to resolve their disputes behind closed doors, away from both
the public eye and the oversight of courts, in international commercial
arbitration proceedings. While confidentiality of arbitration proceedings has
always been, and still remains, one of the core attractions to users,1 the rise
in investor-State arbitration cases as well as the general public’s interest in
arbitration has resulted in a demand for more openness and transparency in
international arbitration proceedings.2
Following this evolution of international arbitration, confidentiality and
transparency are now both considered general values of international
arbitration.3 Though they have been described as “competing values”, some
scholars see the possibility of adjusting one to the other depending on the
specific case.4 This may be the case for investment arbitration matters where
procedural transparency is necessary for the public to be informed of whether
a dispute exists and whether there is any wrongful behavior on the part of a
state. 5 For international commercial arbitration (hereinafter “ICA”),
however, this determination is more nuanced because both private and public
interests are directly involved in such disputes.6
This article will take a look at confidentiality and transparency in ICA
from the perspectives of the parties, international institutions and
organizations, and the overall international legal arena in order to draw a
conclusion as to whether there should be more transparency in ICA
proceedings.
In analyzing this question, this article is comprised of five sections. First,
the authors will look at the general advantages and disadvantages of
confidentiality in ICA. Second, the authors will discuss the issue of
confidentiality in ICAs administered by arbitral institutions. Third, the
authors will then shift their focus to confidentiality in ad hoc arbitrations.
Fourth, the authors will show that the determination of whether or not there
should be more transparency in ICA proceedings will depend on the
audience of such transparency. And finally, the authors will conclude
whether there should be more transparency in ICAs.

1
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 2780 (2d ed. 2014); NIGEL
BLACKABY ET AL., REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION 124 (6th ed. 2015).
2
Gabriele Ruscalla, Transparency in International Arbitration: Any (Concrete) Need to Codify the
Standard?, 3(1) GRONINGEN J. INT’L L. 1, 8 (2015).
3
Id. at 6.
4
Id.
5
See generally Hong-Lin Yu & Belen Olmos Giupponi, The Pandora’s Box Effects Under the
UNCITRAL Transparency Rules, 2016(5) J. BUS. L. 347 (2016).
6
Ruscalla, supra note 2, at 6.
 24 11(1) CONTEMP. ASIA ARB. J. 21 [2018

II. THE GENERAL ADVANTAGES AND DISADVANTAGES OF

CONFIDENTIALITY IN INTERNATIONAL COMMERCIAL
ARBITRATION

The advantages of confidentiality in ICA are well established, however,

as mentioned, in recent times there have been increasing concerns about
openness and transparency. This has prompted much discussion about the
potential and actual adverse effects that confidentiality may have on ICA as
a whole. As such, the authors shall set out some of the arguments both for
and against confidentiality in ICA below before making a determination as
to whether or not there should be more transparency in ICAs.

A. Advantages of Confidentiality in International Commercial

Arbitration

ICA is a private dispute resolution mechanism that allows parties to

resolve their disputes in a private forum rather than in a national court. It is
therefore important to remember that commercial arbitration proceedings are
not subject to the same requirements as litigation in national courts such as
public access to, or public records of, court proceedings.
Against this context, confidentiality is one of the foundational pillars of
arbitration which attracts potential users and which promotes an efficient
arbitral process.
1. A Key Characteristic and Selling Point of Arbitration — It is well
established that confidentiality is one of the key characteristics of arbitration
which draws parties to ICA as their preferred method of dispute resolution
as transnational corporations believe that business secrets and confidential
information will be better protected in ICA than in international litigation.7
In 1995, Stephen R. Bond, the then Secretary General of the ICC
International Court of Arbitration, noted that the users of ICA almost always
mentioned the fact that the arbitral proceedings and the resulting award do
not enter into the public domain as a feature which attracted parties to it.8
Mr. Bond further emphasized that: “[I]t became quickly apparent to [him] that
should the ICC adopt a publication policy or any other policy, which would
mitigate or diminish the strict insistence on confidentiality by the ICC this would
constitute a significant deterrent to the use of ICC arbitration.”9
Two decades later, confidentiality remains a key feature preferred by the
users of arbitration proceedings. In the 2010 survey conducted by Queen

7
See BLACKABY ET AL., supra note 1, ¶ 2.192; see generally Ruscalla, supra note 2.
8
See generally Stephen Bond, Expert Report of Stephen Bond Esq (in Esso/BHP v. Plowman), 11(3)
ARB. INT’L 273 (1995).
9
Id.
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 25
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Mary (hereinafter “2010 Survey”), 62% of all respondents who took part said
that confidentiality was “very important” to them, the highest option
available for a response. Another 24% said that confidentiality was “quite
important”, the second highest available option. 10 The importance of
confidentiality to users is further strengthened by the 2015 survey conducted
by Queen Mary (hereinafter “2015 Survey”) whereby “confidentiality and
privacy” was ranked as the second most valuable characteristic by
participating in-house counsel.11
2. A Driver of Efficient Arbitral Proceedings — Aside from being an
important characteristic to users of ICA, another advantage of confidentiality
in ICA is that it also encourages an efficient arbitral process. By doing so,
confidentiality can be said to offset somewhat the increasingly higher costs
of arbitration, which was the factor singled out as the worst characteristic of
ICA in the 2015 Survey by 68% of respondents.12
One way that ICA, as opposed to in litigation, achieves this through
confidentiality is by providing great value to commercial parties in allowing
parties to engage in the settlement of their disputes in private. This enables
parties to project an image of stability to the world, unlike in court
proceedings where the existence of a dispute is made public. As such,
settlement is encouraged in a way that may not be possible when the public
eye is fixated on the parties.13
In addition to fostering efficiency through privacy, confidentiality in
ICA also encourages an efficient arbitral process through the limiting of
disclosure of commercially-sensitive documents.14 As Redfern and Hunter
put it: “One of the advantages of arbitration is that it is a private proceeding,
in which the parties may air their differences and grievances, and discuss
their financial circumstances, their proprietary ‘know-how’, and so forth,
without exposure to the gaze of the public and the reporting of the media.”15
Confidentiality has in this way also been credited as a safeguard to the
fairness and integrity of the arbitral process.16 This is because it allows the
parties to submit their dispute to a single forum while also limiting the

10
SCH. OF INT’L ARB., QUEEN MARY UNIV. OF LONDON, 2010 INTERNATIONAL ARBITRATION
SURVEY: CHOICES IN INTERNATIONAL ARBITRATION 29 (2010), http://www.arbitration.qmul.ac.uk/
media/arbitration/docs/2010_InternationalArbitrationSurveyReport.pdf. Please note that the survey
was not exclusive to international commercial arbitration.
11
SCH. OF INT’L ARB., QUEEN MARY UNIV. OF LONDON, 2015 INTERNATIONAL ARBITRATION
SURVEY: IMPROVEMENTS AND INNOVATIONS IN INTERNATIONAL ARBITRATION 6 (2015), https://sho
p.americanbar.org/PersonifyImages/ProductFiles/262739281/4-And%20Justice%20for%20All.pdf.
12
Id. at 7.
13
BORN, supra note 1, at 2781.
14
Id.
15
BLACKABY ET AL., supra note 1, at 134.
16
Francisco Blavi, A Case in Favour of Publicly Available Awards in International Commercial
Arbitration: Transparency v. Confidentiality, 2016(1) INT’L BUS. L.J. 83, 87 (2016).
 26 11(1) CONTEMP. ASIA ARB. J. 21 [2018

dissemination of the parties’ commercially-sensitive information,17 which in

turn lessens the probability of third parties intervening in the proceedings or
of undue influence being exercised by non-parties.18 This accordingly leads
to less time and costs spent on the proceedings.
A confidential arbitration may also allow a party to escape scrutiny from
its customers or the market during the course of the dispute. It may also give
parties the courage to take positions they would otherwise not have taken
were the proceedings publicized,19 potentially creating more opportunities
for settlement and increasing the overall efficiency of the arbitral process.
Finally, the confidentiality of an arbitral award, once rendered, may help
ensure that the parties comply with such award. Enforcement proceedings of
arbitral awards are commenced in national courts only when parties fail to
comply with an arbitral award. By commencing a proceeding in a national
court, unless a protective order is issued or the court of enforcement has
unique confidentiality provisions for enforcement proceedings, the arbitral
award will enter into the public domain 20 whereby the detailed facts and
substantive arguments for the dispute are also made public. Accordingly, in
order to prevent the contents of the award from being made available to the
public, the parties have the incentive to voluntarily comply with the award,
which promotes the efficiency of the arbitral system.
Confidentiality is, as such, not only a fundamental characteristic of ICA
that parties covet, it also promotes the time and cost efficient conduct of
arbitral proceedings. However, in spite of these advantages, confidentiality
may also be detrimental to the development of ICA as a whole.

B. Criticisms of Confidentiality in International Commercial

Arbitration

While confidentiality in ICA may be advantageous for commercial

parties as well as a key factor in users choosing arbitration, it is important to
note that most jurisdictions provide for confidentiality in commercial
arbitration proceedings only when it is established by the applicable law, by
the lex arbitri or by the consent of all parties.21 In spite of the traditionalist
view of arbitration, there has also been a rise in criticism of confidentiality
in ICA proceedings.

17
BORN, supra note 1, at 2782.
18
Id.
19
Gu Weixia, Confidentiality Revisited: Blessing or Curse in International Commercial Arbitration,
15 AM. REV. INT’L ARB. 607, 629 (2005).
20
Sarthak Malhotra, Transparency in International Commercial Arbitration: The Road Ahead, INT’L
L. SQUARE (Oct. 12, 2016), https://ilsquare.org/2016/10/12/transparency-in-international-commerci
al-arbitration-the-road-ahead/.
21
Ruscalla, supra note 2, at 10.
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 27
TO HAVE OR NOT TO HAVE?

Lord Neuberger enunciated quite aptly the tensions and concerns that
have been spurred by perhaps an overemphasis on confidentiality in his
speech at the Chartered Institute of Arbitrators Centenary Celebration:

I suppose that it may be that too much openness will kill off
arbitration, but unnecessary privacy is a real concern. This is a
difficulty with arbitration as a dispute resolution process recently
identified by [Hong Kong Chief Justice] Geoffrey Ma. There
have been intermittent calls for the publication of arbitral awards
for decades.22

Confidentiality is an important characteristic of arbitration but too much

of anything is never a good thing. While invaluable for the companies who
wish to discretely resolve their disputes or commercial parties who would
like to preserve their trade secrets, an excess of confidentiality can have
repercussions.
While ICAs are usually conducted between private parties, one of the
disputing parties can be a State, a State entity or a State instrumentality.23
For these types of cases, public interest is involved. Due to this presence of
public interest issues, the general public could be affected by the outcome of
a commercial arbitration proceeding in several ways.24 As such arbitrations
may lead to outcomes which may heavily impact them, the public has a right
to know more about why and how a tribunal may have come to their decision.
ICAs may also deal with issues such as misconduct or unlawful activities
such as corruption, bribery, money laundering and fraud. These issues may
involve not only private individuals but also public officers or officials of
foreign transnational corporations. These issues affect public policy, which
is one of the stronger rationales for having more transparency and for
trumping confidentiality.25
ICA is a legal order and has established procedures depending on the
framework of the parties’ agreement. Confidentiality in ICA cases affects the
development of the so-called autonomous arbitral legal order as well as the
arbitral procedure.26
In addition to the arbitral procedure itself, there are at least three classes
of documents that may be covered by the obligation of confidentiality: (i)
inherently confidential documents; (ii) documents disclosed by parties for
22
David Neuberger, Lord Neuberger of Abbotsbury, Speech at Chartered Institute of Arbitrators
Centenary Celebration, Hong Kong: Arbitration and the Rule of Law ¶ 22 (Mar. 20, 2015), https://w
ww.supremecourt.uk/docs/speech-150320.pdf.
23
Ruscalla, supra note 2, at 8.
24
Id. at 3.
25
Yu & Giupponi, supra note 5, at 352.
26
Ruscalla, supra note 2, at 9.
 28 11(1) CONTEMP. ASIA ARB. J. 21 [2018

the purposes of the arbitration; and (iii) the award.27 If awards fall under the
obligation of confidentiality, it becomes difficult to uphold a standard of
quality for all parties who make use of the arbitral process, which will
undercut the legitimacy of arbitration. The previous statement is of course
exclusive of awards that undergo a scrutiny process under certain
institutional rules.
Keeping arbitral awards confidential can result in further harm to the
arbitral process such as making it more difficult to hold arbitrators
accountable for the awards rendered, creating a lack of consistency in
relation to the interpretation of similar legal provisions and issues and, as
mentioned above, hindering the development of the law in many important
commercial areas.28 The next sections elaborate on these detrimental effects,
focusing on the confidentiality of arbitral awards, in more detail.
1. Accountability of Arbitrators — Jeremy Bentham once said: “Where
there is no publicity, there is no justice. Publicity is the very soul of justice.
It is the keenest spur to exertion and the surest of all guards against
improbity. It keeps the judge himself while trying under trial.”29
If arbitral awards are kept confidential it means that we are blind to the
way that arbitrators are performing in their roles as fact-finders and contract
interpreters.30 These are important functions that the way arbitrators perform
such functions should be made known to parties, arbitral institutions and the
overall legal community.
Given the reality that it is extremely onerous to challenge an arbitral
award, it is not inconceivable that some arbitrators may be fine with not
giving full effect to the law.31 In the best case, well drafted and informative
arbitral awards are sealed and locked away due to the need for
confidentiality. In the worst case, arbitrators who render bad arbitral awards
are not being held accountable. Irrespective of whether a rendered award is

27
Michael Hwang S.C. & Katie Chung, Defining the Indefinable: Practical Problems of
Confidentiality in Arbitration, 26(5) J. INT’L ARB. 609, 611 (2009).
28
See generally Elina Zlataska, To Publish, or Not to Publish Arbitral Awards: That Is the
Question…, 81(1) INT’L J. ARB., MEDIATION & DISP. MGMT. 25, 27-31 (2015).
29
Ben Juratowitch QC, Seminar in London on Difficult Issues in Commercial, Investor-State, and
State-State Dispute Resolution: Differences and Commonalities, Departing from Confidentiality in
International Dispute Resolution 1 n.1 (June 8, 2017), https://www.biicl.org/documents/1676_201
7.pdf (citing Jeremy Bentham as quoted in Rt Hon Beverley McLachlin PC, Chief Justice of Can.,
Lecture at Annual International Rule of Law, London: Openness and the Rule of Law (Jan. 8, 2014)
and Jeremy Bentham, Publicity in the Courts of Justice, in BENTHAMIANA: SELECT EXTRACTS FROM
THE WORKS OF JEREMY BENTHAM 115 (J.H. Burton ed., 1843)).
30
See Sir Bernard Rix, Address at Jones Day Professorship in Commercial Law Lecture, Singapore:
Confidentiality in International Arbitration: Virtue or Vice? ¶ 43 (Mar. 12, 2015), https://la
w.smu.edu.sg/sites/default/files/law/CEBCLA/Notes_Confidentiality_in_International_Arbitration.
pdf.
31
Neuberger, supra note 22, ¶ 23.
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of excellent or poor quality, the arbitration community suffers from the

confidentiality of arbitral awards.
Publication of arbitral awards would enhance the quality of arbitral
awards as arbitrators would feel pressured to get the law right, given that
their decision would be subject to public scrutiny just as court judgments
are. 32 Publication of arbitral awards would also provide parties, arbitral
institutions and the legal community with more insight into and knowledge
of the individuals to whom they are entrusting the resolution of their
disputes. Given that a party’s selection of their arbitrator is arguably the most
important factor in an arbitration, there would be great value in the increased
legitimization of arbitration through the transparency that would result from
the publication of awards.
2. Consistency in Arbitral Awards — Another corollary that flows from
the publication of arbitral awards is that it would help eliminate
inconsistencies in the interpretation of same-fact disputes or even cases of
similar facts and legal issues. One criticism often raised in ICA is the
possibility that laws are applied inconsistently in similar arbitration
matters.33
A publically available award would not only be more economically
efficient as it would allow a subsequent tribunal to review the analysis of the
facts and application of the law to the same factual matrix, should the tribunal
agree with the analysis, it would also promote consistency in arbitral awards
or at least establish why arbitral tribunals differed in their decisions.
This consistency, while clearly important in the situation of same-fact
disputes, should not be underestimated where the same legal provisions are
to be applied to similar facts. Many international disputes involve similar
issues of law or fact.34 With a system of publicized arbitral awards, it would
foster an environment where arbitral tribunals can examine the awards of
their peers and then slowly work to an equilibrium where there will be
enough predictability with regards to the application of a particular type of
clause of with regards to the applicable of certain legal rules.
When such a level of predictability is reached, parties will be more
informed with respect to the validity of their claim and in turn be more
informed in deciding whether to start contentious proceedings or to focus on
settlement instead.
3. Development in an Autonomous Legal Order — In addition to more
consistency amongst awards, another advantage of publishing arbitral

32
Id.
33
Delissa A. Ridgway, International Arbitration: The Next Growth Industry, 54(1) DISP. RESOL. J.
50, 52 (1999), cited in Brown, infra note 34, at 1018-19.
34
Alexis C. Brown, Presumption Meets Reality: An Exploration of the Confidentiality Obligation in
International Commercial Arbitration, 16(4) AM. U. INT’L L. REV. 969, 1018 (2001).
 30 11(1) CONTEMP. ASIA ARB. J. 21 [2018

awards includes a growth in “case-law”. Even if arbitral awards do not have

precedential clout per se, they still have persuasive value and could
“coalesce into collective arbitral wisdom” to be studied by arbitrators,
counsel and parties alike.35
As things currently stand, there is a large gap of international
commercial law that has disappeared from the ambit of domestic courts. The
“feedstock” of commercial law is drying up. For example, shipping disputes
are nearly always referred to arbitration and the resulting awards rarely make
it to the enforcement stage. This all leads to an “ossification” of the law in
both civil but especially in common law jurisdictions.36
Confidentiality has its advantages and disadvantages, some of which
have been covered by the authors above. The following section will examine
the obligation of confidentiality in the context of institutional arbitration.

III. ARBITRAL INSTITUTIONS AND CONFIDENTIALITY

As indicated before, while there is no express requirement of

confidentiality in arbitration proceedings it is still considered one of the key
characteristics of ICA. Domestic arbitral legislation of many jurisdictions
remains silent on the issue and even where a duty of confidentiality is
recognized, it manifests sometimes as a development in case law as opposed
to being expressly found in legislation.37
The leading arbitral institutions, in contract, explicitly recognize the
requirement of confidentiality in international arbitrations and have reflected
this in their respective rules. This grants parties who opt for institutional
arbitration instead of ad hoc arbitration a clearer picture of the nature and
scope of confidentiality that will apply to their arbitration. In this regard, two
different categories of confidentiality will be examined below: that of
confidentiality of the arbitral proceedings in relation to third parties and that
of confidentiality of decisions and actions of arbitral institutions.

A. Confidentiality of the Arbitral Proceeding to Third Parties

The first category of confidentiality that will be canvassed is that of the

arbitral proceedings with respect to third parties. This would include, for
example, the arbitral proceedings as such, any documents produced during
the course of the arbitration, any submissions by the parties, and even
deliberations of the tribunal and the ensuing final award. As will be seen
below, institutions do not adopt a uniform approach, but the rules of different

35
Gu, supra note 19, at 630.
36
See Neuberger, supra note 22, ¶ 24.
37
See BORN, supra note 1, at 2783, 2791-800 (§ 20.03[D]).
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 31
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institutions represent rather a spectrum of levels of protection that

institutions are willing to offer to parties.
The following table sets outs confidentiality provisions of a handful of
leading arbitral institutions:

TABLE 1:

Institution Rule

Article 39 of the Arbitration Rules of the new Chinese

Arbitration Association, International 2017 (hereinafter
“CAAI Rules”), in force as of 1 July 2017, provides for
confidentiality and states that unless otherwise agreed by
the parties or required by applicable law, parties,
arbitrators and administrators of the CAAI shall keep all
Chinese matters confidential. This is also extended to emergency
Arbitration arbitrators and expert witnesses.
Association,
International It also mandates that the arbitral proceedings be kept
(hereinafter confidential unless the parties agree otherwise.
“CAAI”) Finally, the tribunal’s deliberations are also explicitly
covered by an obligation of confidentiality under this
article.
The CAAI Rules also allow for sanitized versions of
awards to be published if a request is made to the CAAI
and neither party objects within the required time limit.

Article 42 of the HKIAC 2013 Administered Arbitration

Rules deals with confidentiality and specifically prohibits
parties from publishing, disclosing or communicating
any information relating to the specific arbitration or the
Hong Kong arbitral award.
International
Arbitration It goes further to explicitly set-out the confidential nature
Centre of the deliberations of the tribunal.
(hereinafter However, it does also provide for conditions, which
“HKIAC”) satisfied, would allow for the publication of an award.
It will be helpful to note that the HKIAC is currently in
the process of amending its rules and Article 42 is
expected to be one of the provisions to be updated.
32 11(1) CONTEMP. ASIA ARB. J. 21 [2018

The ICC Arbitration Rules 2017 (hereinafter “ICC

Rules”) do not specifically indicate that all ICC
arbitrations are confidential. Instead, in the absence of
party agreement, the ICC empowers the tribunal, upon a
party’s request, to make orders concerning the
confidentiality of the arbitral proceedings or of any other
matter in connection with the arbitration at the request of
any party.
Furthermore, it empowers the tribunal to take measures
International to protect trade secrets and confidential information.
Chamber of
Commerce Notwithstanding the above, Appendices I and II of the
(hereinafter ICC Rules provide that all work by the Court and the
“ICC”) Secretariat remain confidential and decisions of the
Secretariat and Court remain confidential, including
scrutiny of the award, and shall not be disclosed to
anyone outside of the ICC, including the parties, unless
the Rules provide otherwise.
The confidentiality obligations of the Court and
Secretariat are confirmed by the Secretariat’s Guide. The
Secretariat’s Guide further provides that the ICC will
only publish awards with the parties consent or, if there
is no consent, it will publish awards in redacted format.

Article 30 of the LCIA Rules of Arbitration 2014

provides for confidentiality of the arbitration proceedings
London and prohibits parties from publishing any documentation
Court of and information unless otherwise required by law, to
International protect or pursue a legal right, or to enforce or challenge
Arbitration an award in legal proceedings before a state court or other
(hereinafter legal authority.
“LCIA”) It also provides for confidentiality of the deliberations of
the arbitral tribunal and publication of the arbitral awards
only with prior written consent of the parties.
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Rule 39 of the SIAC Rules 2016 imposes obligations of

confidentiality on all matters relating to the proceedings
of an arbitration, including the award and deliberations of
the tribunal.
Singapore
International It then sets out a list of exceptions to the obligation of
Arbitration confidentiality and grants power to tribunals to “take
Centre appropriate measures”—including issuing an order or
(hereinafter Award for costs—if a party breaches the confidentiality
“SIAC”) obligations set out under its rules.
Furthermore, Rule 32.12 of the SIAC Rules 2016 grants
the SIAC the power to publish awards with the consent
of the parties.

Article 3 of the SCC Rules of Arbitration (2017) provides

Stockholm that unless the parties have agreed otherwise, the parties,
Chamber of SCC and the arbitral tribunal shall maintain the
Commerce confidentiality of the arbitration and of the award.
(hereinafter
“SCC”) Article 9 of Appendix I of the SCC rules further states
that the institution shall keep the arbitration confidential.

All of the above-listed arbitral institutions have express confidentiality

provisions for arbitrations conducted under their respective rules except for
the ICC. What is interesting to note is that the ICC is the only institution
listed above, that does not impose an obligation on parties or the tribunal to
maintain confidentiality of arbitration proceedings. Instead, the ICC places
an obligation on its Court and Secretariat to keep such arbitration
proceedings confidential,38 but leaves to the parties to determine whether it
wishes for such arbitration to be confidential.

38
See Int’l Chamber of Commerce [hereinafter ICC], Arbitration Rules Mediation Rules, at 44, app.
I, art. 6 (2017), http://icc.se/wp-content/uploads/2015/04/ICC-865-1-ENG-Arbitration-_-Mediation-
Rules-1.pdf.
 34 11(1) CONTEMP. ASIA ARB. J. 21 [2018

TABLE 2:

Arbitral
CAAI HKIAC ICC LCIA SIAC SCC
Institution
General
Confidentiality • • * • • •
Clause
Explicitly
Inclusive of
• • •
Emergency
Arbitrators
Explicitly
Inclusive of
• • •
Expert
Witnesses
Explicitly
Inclusive of the
• • •
Arbitral
Institution
Explicitly
Inclusive of the • • *
Secretariat
Explicitly
Inclusive of
• • • •
Tribunal’s
Deliberations
Explicitly
Allows for
• • • •
Publication of
Awards
* The work of the ICC Court is deemed confidential and must be expected by everyone who
participates in such work. As such, while there is no express provision in the ICC Rules that make
the arbitral proceedings confidential, there is an obligation imposed under the ICC Rules on the ICC
Court and Secretariat to maintain confidentiality on all matters administered by the ICC.

From the table above, one can also see that many institutions explicitly
include the tribunal’s deliberations as subject matter covered by the
confidentiality obligation. Furthermore, more and more institutions are
starting to extend the confidentiality obligation to emergency arbitrations,
expert witnesses as well as their secretariat and themselves.39 By having their

39
See the chart above.
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 35
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rules clearly delineate the scope of the confidentiality obligation, arbitral

institutions will generally give potential users of their services more
predictability regarding the actual scope and reach of the confidentiality
obligation as opposed to in an ad hoc arbitration. However, there is a further
subject matter to which confidentiality may apply in institutional arbitrations
which will be discussed below.

B. Confidentiality of Arbitral Institution Actions and Decisions

Arbitrations administered by institutions have a category of subject

matter to which confidentiality may apply which is not seen in ad hoc
arbitrations—that of confidentiality of an arbitral institution’s actions and
decisions.
As of 2010, there existed over 1200 institutions and organizations
around the world offering institutional arbitration services.40 The quality of
services of these institutions and organizations vary considerably. The
leading arbitral institutions have established Courts and Secretariats within
their respective organizations to make important decisions on procedural
issues that cannot or arguably should not be decided by an arbitral tribunal
as well as to make decisions to ensure that the arbitral procedure is moving
along smoothly.41
Irrespective of whether an arbitral institution has established separate
bodies within, arbitral institutions are tasked with the duty of monitoring the
arbitral proceedings and of taking certain procedural decisions. In the past,
such decisions by arbitral institutions remained confidential and were not
explained to the parties or to the arbitral tribunal. However, the recent rise in
demand for transparency in ICAs regarding commercial arbitration
proceedings and arbitral awards have also spilled over to decisions taken by
the institution themselves.
Parties are the customers of arbitral institutions and they demand to have
a better understanding of what they are paying for. Arbitral institutions, as
will be explained in more detail in Section IV of this article, are starting to
respond to such demands by implementing more transparency in their
decision making. Having canvassed the topic of duty of confidentiality in
institutional arbitrations the next section will discuss confidentiality in ad
hoc arbitrations.

40
Eugenio Hernandez-Breton, Institutional and Ad Hoc Arbitrations: The Role of the Applicable
Rules, in INTERNATIONAL ARBITRATION: 21ST CENTURY PERSPECTIVES 1, 7 (Paul E. Mason et al.
eds., 2010).
41
See for example, China International Economic and Trade Arbitration Commission [CIETAC],
ICC, The London Court of International Arbitration [hereinafter LCIA] and Singapore International
Arbitration Centre [SIAC].
 36 11(1) CONTEMP. ASIA ARB. J. 21 [2018

IV. CONFIDENTIALITY IN AD HOC ARBITRATIONS

Ad hoc arbitration involves arbitration outside the established

administrative bodies and is premised on the principle of party autonomy.
This results in all procedural aspects of the arbitration proceedings being left
entirely to the discretion of the parties and, once constituted, the arbitral
tribunal.42 As there is no arbitral institution involved, confidentiality in ad
hoc arbitration proceedings revolves around the parties, arbitral tribunal and
the public.
Furthermore, Ad hoc arbitrations do not only cater to party autonomy,
they also provide as much flexibility during the arbitration proceeding as the
parties desire. The parties have the option of autonomously developing a set
of arbitral rules through mutual agreement or of agreeing to a standard set of
rules that have been promulgated to assist parties specifically for ad hoc
arbitrations. Furthermore, ad hoc arbitrations also allow the parties to “mix
and match” provisions from different sets of arbitration rules.43
In light of the nature of ad hoc arbitrations, the determination of the
scope of the confidentiality obligation of such arbitrations is determined by
the parties’ agreement, whether it be in the form of express confidentiality
provisions in the agreed set of arbitral rules, confidentiality requirements of
the lex arbitri or confidentiality agreements between the parties themselves.
While parties have the ability to “mix and match” or agree to create their
own set of arbitral rules in ad hoc arbitrations, since their adoption in
December 1976 and subsequent revisions with the latest occurring in 2013,
the United Nations Commission on International Trade Law (hereinafter
“UNCITRAL”) Rules have become the standard rules of choice for ad hoc
commercial arbitrations regardless of the parties’ country of origin or
principal place of business. 44 UNCITRAL does not act as an arbitration
center.45 The initial idea behind the UNCITRAL Rules was to offer a set of
uniform arbitration rules irrespective of any arbitration institution offering
administered arbitration services.46
Parties who choose to opt for ad hoc arbitration under the UNCITRAL
Rules save the time and effort necessary to draft a comprehensive set of
arbitration rules for their own arbitration but still maintain the option of
modifying (in writing) the UNCITRAL Rules in accordance with their needs,
so long as the modifications do not conflict with a provision of the law

42
BLACKABY ET AL., supra note 1, at 42.
43
Hernandez-Breton, supra note 40.
44
Id.
45
Id. at 6.
46
See generally G.A. Res. 31/98, pmbl. (Dec. 15, 1976).
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 37
TO HAVE OR NOT TO HAVE?

applicable to the arbitration from which the parties cannot derogate.47 As

such, the UNCITRAL Rules still provide parties the option of flexibility and
autonomy in ad hoc arbitrations.
While the UNCITRAL Rules were revised in 2013 to incorporate the
UNCITRAL Rules on Transparency for Treaty-based Investor-State
Arbitration, which comprehensively deals with the topic of confidentiality,
such confidentiality extends only to investor-State arbitrations.48 As such,
the Rules on Transparency are inapplicable to ad hoc ICAs under the
UNCITRAL Rules.
Unless agreed by the parties, the UNCITRAL Rules do not contain a
general obligation of confidentially of the arbitral proceeding but rather only
tangentially addresses the issue in Article 34(5), which provides as follows:

Form and effect of the award

Article 34
5. An award may be made public with the consent of all parties
or where and to the extent disclosure is required of a party by
legal duty, to protect or pursue a legal right or in relation to legal
proceedings before a court or other competent authority.49

Unlike a number of arbitral institutional rules, the UNCITRAL Rules

refer solely to the confidentiality of the arbitral award and makes no mention
of the confidentiality of the arbitral proceedings or the deliberations of the
arbitral tribunal.
Failing an express requirement of the lex arbitri of the ad hoc arbitration,
it is clear that maintaining confidentiality of ad hoc arbitral proceedings
requires party agreement. Determination of the scope of the confidentiality
to be maintained within the arbitration also depends on party agreement
absent a requirement of the lex arbitri.

V. SCOPE OF TRANSPARENCY IN INTERNATIONAL COMMERCIAL

ARBITRATIONS

As the authors have set out above, it is clear that confidentiality in ICA
proceedings is not only one of the core reasons why users enter into
arbitration but also generally an accepted implicit requirement of ICAs.
Nevertheless, there are also valid reasons for the growing trend in increased
demand for more transparency in ICA proceedings.

47
Hernandez-Breton, supra note 40.
48
See U.N. COMM’N ON INT’L TRADE L., UNCITRAL RULES ON TRANSPARENCY IN TREATY-BASED
INVESTOR-STATE ARBITRATION (2014), art. 1 (2014) [hereinafter UNCITRAL].
49
UNCITRAL, UNCITRAL ARBITRATION RULES, art. 34(5) (2013).
 38 11(1) CONTEMP. ASIA ARB. J. 21 [2018

The authors believe that determination of whether there should be more

transparency in ICAs depends on the scope of the transparency. The scope
of transparency in ICAs can be examined from two different views: (i) a
narrow scope of transparency; and (ii) a wider scope of transparency.
A narrow scope of transparency refers to ICAs administered by arbitral
institutions where the issue is confidentiality of the reasons behind the
arbitral institutions actions and decisions towards the parties and the arbitral
tribunal. A wider scope of transparency refers to both ad hoc and institutional
arbitrations whereby the issue is confidentiality of the arbitral proceedings
with regards to the general public.
The authors will briefly describe the narrow and wide scope of
transparency below before concluding on whether or not more transparency
in ICA is desirable in light of the two views on transparency.

A. Narrow Scope of Transparency

As indicated before, as of 2015, there were over 1200 arbitral institutions

and organizations worldwide offering arbitration services.50 The increase in
use of arbitrations has resulted in a rise in arbitrations administered by
arbitral institutions.
Arbitral institutions, while varying in their degree of involvement in an
arbitration proceeding, no doubt take a number of decisions which influence
the arbitral proceeding itself. These decisions include, amongst others,
procedural decisions on consolidation of arbitrations, prima facie
jurisdiction, appointment, confirmation and challenges of arbitrators, costs
of arbitration, and scrutiny of awards.51
In the past, arbitral institutions did not provide reasons when issuing
such decisions. Such lack of transparency prompted complaints from users
of institutional arbitration as well as the legal community as it resulted in
frivolous applications and increased costs as parties were not aware of
whether their applications would be successful.52 The lack of transparency
also caused parties to distrust arbitral institutions.
In response to the rising number of complaints, arbitral institutions have
recently taken steps towards more transparency.

50
Hernandez-Breton, supra note 40.
51
See Rajinder Bassi & Jon Newman, Increased Transparency in International Commercial
Arbitration, FINANCIER WORLDWIDE (Aug. 2016), https://www.financierworldwide.com/increased
-transparency-in-international-commercial-arbitration/#.WvvqWoiFPIW (setting out latest
developments in the Hong Kong International Arbitration Centre [hereinafter HKIAC], ICC, LCIA
and Stockholm Chamber of Commerce [SCC] Rules).
52
Id.
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 39
TO HAVE OR NOT TO HAVE?

The ICC in particular has recently announced a number of steps designed

to increase the transparency of its institutional decision making. 53 These
steps include communicating reasons for decisions made on the challenge of
an arbitrator, to initiate replacement proceedings and subsequently replace
an arbitrator sua sponte, consolidation of arbitration proceedings and prima
facie decisions on jurisdiction.54 It is important to note that such reasons will
only be communicated by the ICC if the parties mutually agree and request
for such reasons and that the ICC Court has full discretion to accept or reject
such request.55 The ICC also started publishing on its website the names of
arbitrators currently sitting on ICC cases, their nationality, whom the
appointment was made by and whether the arbitrator is a sole arbitrator, co-
arbitrator or President.56
Furthermore, the LCIA has, since 2014, provided reasons to parties on
its decisions with respect to challenges to arbitrators. 57 The HKIAC also
released a Practice Note on the challenge to arbitrators, which provides that
HKIAC’s determination of a challenge will be communicated to the parties,
the challenged arbitrator and, where applicable, other members of the
tribunal.58 The Practice Note also states that the HKIAC is not obligated to
provide such reasons. 59 While the SCC does not provide in its rules an
obligation to provide reasons on decisions on arbitrator challenges, it does
periodically publish summaries of its decisions on arbitrator challenges.60
The LCIA has also published data on the average costs and duration of
LCIA arbitrators 61 as has the SCC. 62 The SCC’s report further includes
details on the size of their disputes and the manner in which tribunals
apportion the costs of arbitration and legal representation.63 The stated aim
of this report was to increase confidence and transparency in SCC practice.64

53
Id.
54
Id.
55
Id.
56
ICC Begins Publishing Arbitrator Information in Drive for Improved Transparency, ICC (June 27,
2016), https://iccwbo.org/media-wall/news-speeches/icc-begins-publishing-arbitrator-information-i
n-drive-for-improved-transparency/.
57
See LCIA Arbitration Rules art. 29.1 (2014).
58
HKIAC, Practice Note on the Challenge of an Arbitrator (effective Oct. 31, 2014), http://hkiac.org
/sites/default/files/ck_filebrowser/PDF/arbitration/4_Practice%20Note_2014.pdf.
59
Id.
60
See Bassi & Newman, supra note 51.
61
LCIA Releases Costs and Duration Data, LCIA (Nov. 3, 2015), http://www.lcia.org/News/lcia-
releases-costs-and-duration-data.aspx.
62
Celeste E. Salinas Quero, Costs of Arbitration and Apportionment of Costs Under the SCC Rules,
ARB. INST. STOCKHOLM CHAMBER COM. (Feb. 2016), http://sccinstitute.com/media/93440/costs-of-
arbitration_scc-report_2016.pdf.
63
Id.
64
See Bassi & Newman, supra note 51.
 40 11(1) CONTEMP. ASIA ARB. J. 21 [2018

B. Wider Scope of Transparency

The wider scope of transparency in international arbitration proceedings

is applicable to both institutional and ad hoc arbitrations and addresses the
transparency of the arbitral proceedings in relation to the public domain.
As indicated above, traditionally speaking, confidentiality was a pillar
of ICA. 65 Transnational companies preferred the option of arbitration to
resolve their disputes in order to ensure that certain trade secrets were kept
confidential as well as the dispute itself in order to prevent negative effects
from its customers and the market.
Given the increase in use of ICA to resolve disputes and the reasons
listed under Section IB above, there has been a rise in demand for
transparency in ICA proceedings for the public domain. Supporters of
increased transparency of ICA proceedings toward the public domain rely on
the need for arbitrator accountability, the rule of law and the need for
predictability and certainty in the law to guide commercial behavior.66
It is in the public domain’s best interest to have more insight into how
arbitrators make their decisions, what arguments would be persuasive and
what type of evidence is considered decisive. 67 It is also in the public
domain’s best interest to be able to trace the lineage of jurisprudence
produced by a particular arbitrator in determining whether or not the
arbitrator should be re-appointed.
It is also in the pubic domain’s best interest to have the requisite
resources to evaluate how arbitral tribunals are likely to interpret certain
commercial clauses or arrangements, or decide on the consequences of
particular commercial events in past arbitral awards.68

VI. CONCLUSION

Between confidentiality and transparency, the authors believe that the

scales are rightly tipping in favour of the latter. Although confidentiality
remains one of the pillars of ICA, it has to be reconciled with the fact that in
our day and age, an unwillingness to become more transparent has
increasingly been met with sinister suspicions of wrongdoing and equated
with an unwillingness of individuals and institutions to assume responsibility
for their decisions.

65
Ruscalla, supra note 2, at 6.
66
Amy Seow, More Transparency in International Commercial Arbitration Is a Good Thing, ¶ 13
(2017), http://internationalarbitrationlaw.com/wp-content/uploads/2017/07/YSIAC-Essay-entry-pd
f.pdf.
67
Id. ¶ 12.
68
Id. ¶ 13.
 2018] MORE TRANSPARENCY IN INTERNATIONAL COMMERCIAL ARBITRATION: 41
TO HAVE OR NOT TO HAVE?

Given the evolution and rising use of ICAs versus national courts, the
authors believe that the trend towards more transparency by arbitral
institutions should continue. As evidenced by the Queen Mary International
Arbitration Survey where discontent with the lack of insight into the decision
making of arbitral institutions was raised, it is clear that parties welcome,
and will increasingly expect greater transparency from arbitral institutions.
As more arbitral institutions follow the lead of the HKIAC, ICC, LCIA, SCC
and others who are taking steps to be more open about their decision making,
such transparency within the narrow scope will become the norm. In this
respect the balance should exceedingly favor transparency over
confidentiality.
As for the wider scope of transparency, the authors believe that an
increase in transparency is good, but only if the parties agree to such
transparency. As ICA is a contractual mechanism which requires parties’
consent, the authors believe that it would be a contractual violation if there
was more transparency in the arbitral proceedings unless the parties have
expressly agreed to such transparency to the public domain. Although the
authors believe that increased transparency in respect of publication of
awards may be warranted, we also believe that one cannot simply brush
confidentiality, one of the hallmarks of arbitration, aside so lightly. An
example of taking both considerations into account would be the publishing
of redacted or sanitized awards. As such, the proper balance in respect of the
wider scope of transparency leans slightly towards transparency, subject to
the protection of legitimate concerns of confidentiality that the users of ICA
may have.
 42 11(1) CONTEMP. ASIA ARB. J. 21 [2018

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