TOPIC- Need for Balancing Confidentiality and Transparency in

International Commercial Arbitration

Author- Himanshi Khivsara

PRN- 20010143033
 INTRODUCTION

Globalization has influenced the economy in diversified ways. Development and use of
technology have made things advanced as now it is easy to connect and communicate with
people. People from the same or different beliefs can come together to achieve a common
objective and when they codify it, it takes the form of a Contract. Since every path cannot be
the path without stones as sometimes there can be a conflicting interest that takes the form of
dispute. As the Contracts formed are legally binding on the parties the solution for the same
can also be achieved in different legal ways like Court Settlement, Outside the Court
Settlement, Arbitration. 
Disputes referred by the parties are solved either by formal sitting of Court or the other mode
is when parties opt for a friendly solution or closed-door solution, which is Arbitration. In
other words, commercial arbitration is a process initiated by the parties selected the third
person who listens to the disputes, arguments & thereafter collects evidence & presents the
same in an arbitral tribunal, arbitrator comes to end solution for a particular dispute. It
depends on the parties' wish to choose the form of Arbitration, which are: Ad Hoc,
Institutional Arbitration. There are several benefits for which parties opt Arbitration, like
expenses, flexibility, etc. One such benefit is confidentiality which is higher in arbitration as
if the party chooses to go to court for settlement, there are high chances of escape of
information as the court are obliged to keep all the records of proceedings. Henceforth to
encourage confidentiality arbitration is considered as a better option. 
Sometimes the advantage becomes the problem as the decider has to decide the limit of
transparency and confidentiality with regards to the interest of the parties & in case of
International commercial matters, like for example Investor and the other state where large
Public Interest is involved and the information shared may be against any or other person
transparent values. One of the Models which govern the ICA is UNCITRAL, which provides
the structure or the way ICA should work & it is silent about the clause of Confidentiality,
ending by creating the complex situation. It is in hands of the parties to decide which
information is confidential and about what they wish to be transparent. 
International Commercial Arbitration is a private forum that allows the parties to resolve the
disputes privately and not in the national court. Henceforth parties can choose the Jurisdiction
(laws) which they wish to follow. For example, Some nations believe in more transparency
and less Confidentiality (Australia, U.K), and some believe in implied obligations:
Singapore.  
Taking the small example of any business organization. There is a rule of balancing
transparency against the rule of Confidently as it is important in every case be it for an
organization to people or people to the organization. The best way is to deal with this is the
balance between the both. The organization should set out the limits of Confidentiality. In the
matter of ICA, it is also the fact as there is a thin line in any subject matter to be considered
as confidentiality or to be more transparent. The main task is to maintain the balance between
transparency and confidently to achieve a win-win solution at the International level. 

STATEMENT OF PROBLEM

Contracts are made between the parties to fulfill the obligations which are agreed by the
parties mutually. While performing the duties, there are many crossways of the parties that
convert into disputes and push them to go to court. Over the period, there are now many ways
by which parties can solve the issues personally or not in official courts, such as arbitration.
In this parties' go either to an arbitration institution or to a personal arbitrator. 
Contracts can be between the people of the same nation or it could be between the people of
different nations. In an International scenario, parties prefer not to go to court and tries to
solve the problem in a closed-door like arbitration as in this the liberty is with the parties that
what they wish to disclose and what they don’t want to. Confidentiality is what attracts the
parties as this way, they can keep their secrets to themselves. But on the opposite side, it is
also true that transparency is also required to solve the dispute as the parties have to be
transparent about the matter and related circumstances. This creates the problem of judgment
that what comes in the confidential information according to one party, may not be the same
for another party. Another side of this is the clause or internationally applicable law for the
extent of confidentiality. 
By the time the closed-door solution is no more closed-door as to solve many disputes parties
have to reveal many things which maybe are subject to confidentiality. Confidentiality and
Transparency are considered to be the Central Pillar of any matter. Though they are
“competing values” in nature but are always subject to question when there is a need to find
the root cause of any subject matter. On the other hand, there is another problem of “How
much transparency”? while deciding any matter in arbitration, full liberty is in hands of the
parties that how much they want to share. This sometimes arise the question of personal wish
which can mislead the case. As any matter which is to be decided should be free from any of
the myth or wrong believing. And arbitration at commercial level public interest also plays
the role. Hence, the alarming problem in matters of commercial arbitration or International
Commercial Arbitration is the judgment of transparency with regards to Confidentiality. 

RESEARCH QUESTIONS

1. Whether there is any separate Confidentiality clause in UNCITRAL?

2. Should there be a balance between Confidentiality and Transparency?
3. Would a specific Confidentiality clause benefit the ICA Proceedings?
4. Is there any way to achieve the win-win solution?

RESEARCH OBJECTIVES

1. To Critically analyze the need of balance between the Confidentiality and

Transparency in International Commercial Arbitration.
2. To get insight level of awareness amongst the masses about the importance of
Transparency and the confidentiality as one root level.
3. To find out the factors which will maintain the efficiency of the attractive point of
arbitration which is flexibility and Confidentiality.
4. To evaluate the effect of transparency by overviewing different case studies of
Arbitration.
5. To purpose practical & viable solutions to balance the Confidentiality and
transparency in Commercial Arbitration.

RESEARCH METHODOLOGY

a) Sources of Data: Primary Source, Secondary Sources.

b) Method of Data Collection: Structured Questionnaire, Articles, Books.
c) Sampling Plan: Purposive Sampling
d) Tools and Techniques used for Data Collection: Google Forms (Primary Source),
literature (Secondary Source).
e) Footnote Format: Bluebook — The Uniform System of Citation (19th ed.).
 SCOPE AND LIMITATIONS

The scope of this study of to understand the concept of confidentiality and transparency in
commercial matters and the need to balance it. Confidentiality and transparency are saud to
be the central pillars in any matter. But one question that always arises is, his much of
transparency and should it be brought at the cost of confidentiality. This paper aims to
understand the need of both by referring cases and facts related to them and also the
requirement of balancing them both.
Limitations – the study though focuses upon arbitration; it has kept only international
commercial arbitration as its primary point of focus. Further as the title of the study suggests,
only the aspects of transparency and confidentiality have been taken up. There are numerous
other points of dispute which have not been referred in the study.

TENTATIVE CHAPTERS

1. Introduction: The research will begin by giving the clear idea about the commercial
Contracts made between the parties. Terms and the conditions involved in the
contracts. This chapter will be elaborated by the objective of conducting such research
and the issues or the disputes raised between the parties due to different crossways.
This will also deal with the different kinds through which the disputes between the
parties can be solved. It will end with giving brief introduction about the Commercial
Arbitration as one of the ways to solve the disputes raised between the parties.
2. Literature Review: Of relevant articles, books.
3. The Concept of International Commercial Arbitration: This chapter will deal with the
concept of the Arbitration in detail and the way it benefits to solve the International
Disputes. It will also be carry forwarded by the case studies of International
Commercial Arbitration. This chapter will later explain the two types of Arbitrations
which are: Ad Hoc and Institutional Arbitration. It will also pin point the major
attraction of the parties which leads them to choose the Arbitration as a way to solve
the disputes (Confidentiality).
4. UNCITRAL & Confidentiality: This chapter will start by explaining the forms in
which UNCITRAL governs the ICA. Pros and cons of Confidentiality and
Transparency with the help of cases on the same. It will answer the question of: Is
 there any separate clause for Confidentiality in ICA Internationally. Additionally, it
will focus on some national laws made on Arbitration which are applicable on ICA
proceedings also.
5. Confidentiality vs Transparency: Competing Values: This chapter will start with brief
introduction about how Confidentiality and transparency conflicts with each other.
What is the major harm if any of them is breached? To say what will be the
consequences if the parties chose not to be transparent and keep the information
Confidential. To analyse the thin line between any information confidential or
Transparent. How the advantage of Arbitration which is keeping the information safe
and Confidential can turn the table and lead to become major problem for any dispute.
Handed with the cases where confidentiality was misused. To conclude, this chapter
will end up with the answer which is for, would specific clause of confidentiality will
benefit the ICA.
6. Questionnaire regarding the opinion of masses about the values of transparency and
Confidentiality in Arbitration. Should the matter or the parties need to be more
transparent or the choice given to parties are fair and just?
7. Establishing Checks and Balances of Confidentiality and Transparency in
Commercial Matters: This chapter will start by explaining the thin line between the
Confidentiality and Transparency. It will also cover the present situation and answer
is there any need of more transparency in the International commercial Arbitration.
This will even consider the fact of public interest in matter of International
Commercial Arbitration. This chapter will provide the reasons for balancing the
Confidentiality and Transparency in any commercial matters and ways to checks and
balance it with due consideration of parties and public interest.
8. After analysing the National Laws related to Arbitration and Confidentiality Some
Recommendations will be there to plug out the problem of judging the information
with regards to clauses of transparency and Confidentiality and balancing the both.
9. Conclusion.

CONCLUSION

Arbitration is somehow fulfilling its main purpose by providing a flexible platform to the
parties to resolve the disputes. International Commercial Arbitration has gained momentum
from past many years. It is most likely approached way to solve the disputes as due to main
clause of Confidentiality. ICA provides the path to parties to keep some information
confidential and save the public and parties Interest. But it is again the conflicting issue as
Confidentiality come with keeping information with oneself and be less transparent, which is
hurdle between the effective solution. There is need to balance the Confidentiality and
transparency while solving any commercial dispute by Arbitration and by this way only a
win-win solution can be achieved.