By: Mahasweta Muthusubbarayan
The ‘Transparency v. Confidentiality’ debate has gained momentum in recent times, both in the context of domestic and international arbitration. There are numerous facets to this debate, with a large number of advocates for either side. The case for both sides has been advanced on numerous grounds, all of which can be broken down into two broad grounds- first, compliance with the essential features of arbitration and second, the need to maintain credibility of arbitration as a favourable mode of dispute resolution. However, does this debate relate only to the final arbitral awards or the entire process of arbitration, including the proceedings? How does it differ based on the type of arbitration- commercial, investment, consumer, class arbitration, etc.? How does it affect the parties involved? What are the possible benefits of both confidentiality and transparency? What is the current legal regime regarding this? These are some of the questions that will be attempted to be answered in this essay.
WHAT IS INTERNATIONAL ARBITRATION?
Before delving into the whole confidentiality v. transparency conundrum, it is important to understand what international arbitration is exactly. Quoting Article 1(3) of the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (hereinafter UNCITRAL) verbatim, an arbitration is international if:
(a) The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or
(b) One of the following places is situated outside the State in which the parties have their places of business:
(i) The place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
(c) The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.
From the above definition, it can be interpreted that an arbitration can be international on the basis of four aspects- the place of residence or place of business of the parties (depending on whether the arbitration is commercial or not, and whether the parties are individuals or corporations or States, etc.), the place of arbitration, the place where the obligations in question arose and the subject-matter of the dispute and the arbitration agreement. At least one of these four aspects should involve a trans-national angle for the arbitration to be considered international. While the UNCITRAL definition is worded keeping in mind that the model law is meant for international commercial arbitrations, the same definition can be extended to non-commercial arbitrations as well, to determine when an arbitration is international, at a conceptual level.
It is important to note that there are several concepts which are closely associated with confidentiality and transparency, and which are often confused and used interchangeably. These concepts are examined below.
The term which is most-confused with confidentiality is privacy. While privacy is an essential ingredient of arbitration as a process, the same cannot be easily said for confidentiality. Privacy essentially means that the arbitration takes place behind closed doors, and the members of the general public are not allowed to view the proceedings, in fact, no person, apart from the parties, their counsels, the arbitrator(s) and the people who aid in the whole process, such as witnesses, experts, stenographers, etc. is allowed to sit in on the proceedings, without the prior express authorisation of the parties and the arbitrator. This means that arbitral proceedings are free from public attention, allowing the parties to iron out their dispute in a private, informal setting. On the other hand, confidentiality pertains to the materials produced, the information divulged during the proceedings and the contents of the award. Confidentiality is in essence the obligation to not disclose information or documents relating to an arbitration to any third party. Confidentiality obligation extends to initial submissions, documents such as pleadings, written submissions, witness evidence, evidentiary documents, hearings and the award and its reasons. Confidentiality is useful where the parties want to keep certain information private, for e.g., trade secrets. Thus, while ‘privacy’ means that, no third party can attend arbitral conferences and hearings; ‘confidentiality’ refers to non-disclosure of specific information in public.
The concepts that are most often confused with transparency are public access and disclosure. The three are conflated because commonly transparency is defined simply as a synonym for ‘accountability’ or ‘openness’. However, while they all contribute towards accountability as a whole and are somewhat inter-twined, the three concepts are not entirely the same. Public access is the antonym of the concept of privacy, meaning that the public have unhindered access to the proceedings and are free to observe and report the same whenever they choose. Similarly, disclosure is the opposite of confidentiality, although on a smaller scale. Disclosure obligations are principally directed at substantive information and are designed to benefit those receiving the relevant information. Its primary purpose is to enable recipients of the information to make strategic choices. Transparency, in the adjudicatory context, means the ready availability to interested parties of the rules that regulate an adjudicatory decision-making process, thereby facilitating monitoring of the adjudicator. Transparency and disclosure may be considered as somewhat related, with disclosure often facilitating and aiding transparency
THE EFFECT OF TYPE OF ARBITRATION ON THE CONFIDENTIALITY V. TRANSPARENCY DEBATE
One of the key undercurrents in the whole debate is that the same uniform rule of confidentiality or transparency cannot be applied everywhere, and not just because of implementation problems. The type of arbitration also plays a part in determining how much confidentiality or transparency is needed. The basis for this argument is simple logic.
One cannot deny that the whole appeal of arbitration lies in the fact that it is largely governed by the agreement between the parties and it is at the discretion of the parties to lay down confidentiality requirements in the arbitration agreement. This is primarily why private corporate houses and other parties involved in commercial disputes often turn to arbitration rather than litigation. More often than not, they feel that it will be in their interests to not subject information that may potentially expose their trade secrets to the scrutiny of the public eye. They would also want to keep the nature of their dispute confidential whenever they feel that it would adversely affect their public standing and relationship with their peers, competitors and clients. In such cases, not much of a pitch can be made for transparency as to do so would be going against the allure of arbitration and might even cause parties involved in commercial disputes to seek out other forms of dispute resolution or simply opt for litigation, seeing, as they will not be served any useful purpose by arbitration. It is for the same reason that World Intellectual Property Organisation (WIPO) has stringent confidentiality protection as the disputes before it involve intellectual property (hereinafter IP) and one can never undermine the value of IP. It is a well-known fact that IP issues are also being increasingly arbitrated in recent times.
On the other hand, this would not necessarily be the case in investor-state arbitration or arbitration between a seller/trader and a consumer. In these cases, the public would necessarily be affected by the dispute and its outcome. Let us take an instance of investor-state arbitration. The general populace of a State would undeniably be interested in knowing its government’s stance on a certain project, whether their taxes are being effectively utilised for the development of the nation, the government’s policies on environment and employment of locals, etc. They would most certainly be interested in knowing how their sovereign is going to address any dispute that has a bearing on any of the issues mentioned above. Let us also take an example of a consumer arbitration where the case involves adverse effects due to poor quality of a popular product or the seller/manufacturer’s compensation policy towards their consumers. In such cases, it goes without saying that transparency gains precedence over confidentiality as a large number of people would be impacted or empowered by the knowledge of the material facts of the case as well as the outcome. This would become even more important in the case of international class arbitrations, which are the arbitration-version of class action suits. Thus, the kind of arbitration and the subject-matter of the dispute to some extent play a role in determining whether documents and information related to the dispute, the arguments and pleadings advanced by the parties, the award and the reasons behind it, should remain confidential or not.
TRANSPARENCY FOR ALL OR TRANSPARENCY FOR SOME?
Another question to be considered regarding the quest for transparency is whether it is necessary to provide access to arbitral awards, documents, evidentiary materials, claims of the parties, etc. to the public at large or is it sufficient if access is provided to a targeted audience? The answer to this question would probably vary depending on the reason for which transparency is being advocated. For instance, in an international commercial arbitration involving high financial stakes, let us say that transparency is being advocated only for the reason that it would help parties involved in a similar arbitration in future make strategic decisions. In such a case, it is not really necessary to make the arbitral awards as well as the reasons behind them public. It would suffice if regulated access to the contents of the award was provided by the arbitral institution upon request, after taking the consent of the parties and withholding any information that the parties do not wish to disclose. Such an action would have the best possibility of balancing the competing interests of confidentiality and transparency. However, let us take the case of an arbitration involving a multinational company, and there are allegations of violations of rights of the labour class or an allegation of deficiency in the standard of products when compared with approved international standards. In such cases, where transparency is advocated for public benefit, it would be best to make the arbitral award along with the underlying reasons public. Again, let us say that transparency is advocated for improving the masses’ faith and confidence in the efficiency and integrity of the arbitral mechanism, in order to boost the credibility of an arbitral institution or an individual arbitrator. Without a doubt, in such cases, complete transparency for the benefit of all is the best policy. Thus, the whole confidentiality v. transparency debate is affected not just by the type of the arbitration in question, but also by the possible benefits aimed at being achieved by the advocates of transparency. However, for those who cry for predictability and complete disclosure in arbitration, they would do well to remember that arbitration is not and was never intended to be like a judicial process. One of the hallmarks of alternate dispute resolution systems being privacy and agreement on confidentiality, it would never be practical to aim at 100% transparency, as to do so would defeat the essence of alternate dispute resolution. This is precisely why certain disputes are incapable of being arbitrated. Thus, in cases where transparency and public scrutiny and predictability are absolutely required, litigation might well be a better option than arbitration.
CONFIDENTIALITY AND THE ASSOCIATED BENEFITS
Sir George Jessel MR once stated about arbitration clauses: “As a rule, parties enter into these contracts with the express views of keeping their quarrel from the public eyes, and of avoiding that discussion in public.” Parties often assume an implied confidentiality obligation in arbitrations. This is a misguided notion, as stated earlier. The confidentiality obligation is determined by the agreement between the parties, the law of the nation, which is the seat of the arbitration as well as institutional rules. Thus, parties have an option of creating confidentiality obligations at various levels, by choosing a favourable seat or arbitration institution. Confidentiality obligations can also be imposed on the ‘outsiders’ who sit in on the arbitration proceedings such as fact and expert witnesses, tribunal secretaries, translators and transcribers, stenographers, etc. These third-party actors are generally not governed by the arbitral rules or arbitral agreement even though they have access to confidential information, hence the need for imposing separate obligations on them.
Some of the perceived benefits of confidentiality are-
- Protection of sensitive and proprietary information, trade secrets, intellectual property, etc.
- Confidentiality reflects the autonomy of the parties, which is the essence of arbitration as a whole.
- Confidentiality keeps a dispute private, thereby preventing any public mudslinging.
- In international commercial arbitrations, confidentiality sometimes helps in maintaining status quo in the prestige and public image of the parties, where the nature of the dispute is such that it would adversely influence their relationships with their consumers, competitors, business partners, investors, distributors and dealers, national governments, banks, financial houses, market stakeholders and regulators, etc. should it ever become public. Transparency might also affect the stock price or the customer base of the company.
- Confidentiality regarding the subject matter of a dispute and its outcome also protects the involved parties from potential future claims or disputes of the same nature with other parties who might feel encouraged to make similar claims as the party in whose favour the award is passed, if the contents of the award and the reasons behind it are made public.
- Confidentiality has the potential to make each case of arbitration original, in the sense that each case can be considered on its merits. The human mind is not infallible and pre-existing precedents sometimes tend to create a bias in the mind of the adjudicator, thereby creating a potential for lack of in-depth examination of the facts and merits of a particular case, pursuant to a superficial feeling of similarity with the decided cases.
- Confidentiality improves the efficiency of arbitration by making it practically impossible for unrelated parties to interfere, even though there is not much scope for third-party interference in the first place. At any rate, confidentiality is most preferred in international commercial arbitrations and the public tend to have little or no stake holding in such matters as they rarely involve consumer issues, health and safety issues, employment issues, etc.
- The parties may sometimes privately wish to take a different stand as opposed to one that they would feel obliged to take if exposed to public scrutiny. This is a very crucial factor in cases where a government is involved. In such cases, privacy and confidentiality will both help parties to choose a stand that they feel appropriate to the exigencies of the situation as opposed to one that they would feel obliged to take to maintain their public standing.
- The efficacy of arbitration as an expeditious and commercially attractive form of dispute resolution depends, at least in part, upon its private nature.
TRANSPARENCY AND THE ASSOCIATED BENEFITS:
Some of the perceived benefits of transparency, irrespective of the type of arbitration, are-
- Transparency will help the growth of arbitration as a freestanding and autonomous system of international justice.
- It improves accountability in the whole process, including accountability of the arbitrator and the arbitral institution towards the parties.
- It promotes wise and efficient decision making by holding the arbitrators accountable for the reasoning behind the award.
- Transparency in the process and publication of awards will bring in more predictability in arbitration.
- Transparency will help boost the credibility of the arbitrators as well as the arbitral institutions, helping potential future parties to arbitrations in selecting arbitrators or an institution of their choice, depending on the openness, predictability and efficiency of the whole process.
- Publication of reasoned awards will lead to development of arbitration jurisprudence, creating persuasive authority and precedential value for consistent ruling, somewhat similar to a judicial process. However, it is to be noted that scholars in the field of arbitration jurisprudence advocate only for persuasive precedent and not precedent in the sense of stare decisis. Arbitral precedent is no more and no less than the capacity of past arbitration awards to convince future tribunals to adhere to the solution they embody.
- Development of arbitral jurisprudence will also help potential arbitrating parties to gauge the viewpoint of potential arbitrators regarding a certain kind of matter or dispute, proving beneficial to them in their choice of arbitrator or tribunal. It will also help improve the influence of truly efficient and knowledgeable arbitrators on the development of future jurisprudence.
- Transparency will also help improve the attractiveness of international arbitration as a preferable mode of dispute resolution. The driving force of arbitral precedent is rather the arbitrators’ desire to meet the parties’ legitimate expectation that their dispute will be resolved by international adjudicators according to internationally accepted procedures and from an international perspective. That is to say, resolved in a way that is not a mere imitation of what municipal judges would do. The idea that opting for arbitration as an international means of resolving disputes implies the adhesion to a justice which is to a certain extent different from that of courts not only as regards procedure but also as to the perspective adopted for the resolution of substantive law issues.
- In the field of commercial arbitrations, frequent and consistent following of previous reasoned awards can lead to development of trade usages.
- Disclosure of information related to international commercial arbitration could enable its recipients to make important strategic decisions (such as protecting against health and safety threats or informing consumers of the products they purchase) or serve national regulatory interest (such as reducing bribery in international arbitration).
- Transparency in international commercial arbitration can also expose any underlying violation of a public interest by private parties, such as an underlying aspect of environmental liability or human rights violation.
THE LEGAL FRAMEWORK REGARDING CONFIDENTIALITY
As stated earlier, there is no implied obligation of confidentiality in all arbitrations. One of the determining factors regarding the confidentiality obligation is the law of the seat of the arbitration or the laws of the arbitration jurisdiction. Different countries have a different stance towards confidentiality. The framework of some countries is listed below.
England has a strict regime regarding the confidentiality of arbitration proceedings. The obligation is implied. In Dolling-Baker v. Merrett, it was held that parties to an arbitration proceeding were under an implied obligation to keep the documents used in the arbitration, evidence and the award confidential. However, in the case of Shipyard Trogir, some exceptions were laid down to the rule of confidentiality. They are- court order, parties’ consent, public interest and reasonable necessity.
In Singapore, the general duty of confidentiality is implied. Singapore has special provisions to protect confidentiality of arbitration-related proceedings under the Singapore International Arbitration Act and prevent these from being heard in open court. In the case of BBW v. BBX and others, the Singapore High Court confirmed that the Court has an inherent power to grant sealing orders, despite there being no express provision to this effect in Singapore’s International Arbitration Act. Justice Lee noted that both the courts and the Singapore Parliament have affirmed the public policy of keeping arbitrations confidential.
As per the Hong Kong Arbitration Ordinance, there is express confidentiality in arbitration proceedings. Parties cannot disclose any information related to the arbitration or the award to any third party. The only three exceptions are mandatory legal disclosures, disclosure necessary for enforcing a right and disclosure in course of challenging the award.
The Philippines Alternative Resolution Act, 2004 explicitly provides for confidentiality in arbitration proceedings. Courts can issue protective orders for non-disclosure of confidential documents. New Zealand also provides statutory confidentiality protection. As per the Arbitration Act, 1996, arbitration agreements are generally deemed to prohibit disclosure of confidential information.
France protects confidentiality only in domestic arbitration and not international commercial arbitration.
There is no implied confidentiality in jurisdictions like Sweden and US. Australia only recently started protecting confidentiality in international arbitration. An October 2015 amendment to Australia’s International Arbitration Act has implemented an opt-in confidentiality regime.
CONFIDENTIALITY UNDER INSTITUTIONAL RULES
Another possible route for parties to adopt confidentiality obligations is via the institutional rules of arbitral institutions. The institutional rules of London Court of International Arbitration (specifically Art. 30 of LCIA Arbitration Rules, 2014) and Singapore International Arbitration Centre (specifically Art. 39 of the 6th edn. of the Arbitration Rules of SIAC) require all matters relating to the proceedings and the award, including discussion and deliberation of the tribunal, to be confidential. As per Rule 30.3 of LCIA Arbitration Rules, 2014, LCIA does not publish any award or part of any award, without prior written consent of the parties. Rule 35 of the Arbitration Rules of Mumbai Centre of International Arbitration requires parties and tribunal to treat all matters relating to the arbitration proceedings and awards as confidential. Art. 44 of the Swiss Rules of International Arbitration, 2012 of the Swiss Chambers’ Arbitration Institution, provides for a general duty of confidentiality with regard to all awards, orders and materials submitted, in the absence of a contrary agreement between the parties and subject to some exceptions such as disclosure by legal necessity or for the purpose of challenging an award. This obligation also extends to arbitrators, experts, staff of the individual Chambers, etc. Art. 22.3 of the Arbitration Rules of the International Chamber of Commerce entitles the Arbitral Tribunal to adjudicate and pass orders on the issue of confidentiality but imposes no express confidentiality obligations.
THE LEGAL FRAMEWORK AND INSTITUTIONAL RULES REGARDING TRANSPARENCY
As mentioned earlier, transparency is primarily advocated in investor-state arbitration, consumer arbitration and other forms of arbitrations with an underlying public interest. Recently, it is being advocated that transparency should also take root in the domain of international commercial arbitration, as the public could have significant stake holding even in commercial disputes, but this stand has not really been justified largely. Countries rarely make express provisions for transparency in their domestic arbitration law. Transparency is generally interpreted when there is no implied confidentiality obligation followed in the domestic legal jurisprudence but even then, it is largely subject to the agreement between the parties. Therefore, even if the law of the seat of arbitration does not provide for implied confidentiality, the level of transparency and the publication of awards are subject to the terms of the arbitration agreement and the institutional rules applicable, if any.
One of the best examples for transparency is the OHADA treaty of Africa. OHADA or the Organisation pour l’harmonisation en Afrique du Droit des Affaires was set up in 1993 and has 17 member-states who are all western and central African countries. Some of the prominent members are Niger, Cameroon, Congo, etc. OHADA established a system of institutional arbitration administered by the Cour Commune de Justice et d’Arbitrage (hereinafter CCJA). CCJA promotes a great amount of transparency, including the publication of decisions and a number of documents relating to the arbitration. CCJA emphasises the need to maintain transparency throughout the arbitration process. There is also a Uniform Act on Arbitration that provides a foundation for all arbitrations seated in the 17 OHADA countries.
Article 22 of the model Bilateral Investment Treaty of the Indian Government has a clause requiring transparency in investor-state arbitration proceedings. Except for any confidential information, the defending party is required to disclose the notice of dispute, notice of arbitration, pleadings and other written submissions on jurisdiction and merits, transcripts of hearings and decisions, orders and awards.
The ICSID Arbitration Rules are silent on the point of transparency and confidentiality. Confidentiality or transparency in proceedings depends entirely on the discretion and will of the parties. The parties may designate certain documents as confidential or even allow the public to access hearings through online broadcasting.
The ICC Court has recently announced new policies to foster transparency and improve efficiency. ICC Arbitrators are required to submit awards to the ICC Court for scrutiny. Parties may also request the ICC Court to publish additional information about a case. Details regarding the identity and appointment of arbitrators are to be published on the Court’s website. However, the proposed policy provides an opt-out option for parties with confidentiality concerns.
The most important set of rules relating to transparency are the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration or the Transparency rules. These rules are applicable if the parties provide for the same in their agreement or if the investment treaty was concluded on or after 1 April 2014. These rules provide for publication of awards, documents and other case-related information, allow the public to access hearings and even allow third parties not involved in the dispute to make submissions. In BSG v. Republic of Guinea, the UNCITRAL Transparency rules were applied to an ICSID arbitration upon agreement by the parties.
In the field of international class arbitrations, Rule 10 of the Supplementary Rules for Class Arbitrations of the American Arbitration Association (AAA) provides that “the presumption of privacy and confidentiality in arbitration proceedings shall not apply in class arbitrations”, making public all class arbitration hearings and filings public.
CONCLUSION: A BALANCING ACT
The benefits of both confidentially and transparency are multi-fold. That being the situation, there can be no universal, straitjacket formula that can be applied to the confidentiality-transparency conundrum. Further, it would be a Herculean task to bring together all the Governments and arbitral institutions of the world to frame a universal confidentiality-transparency regime, not to mention implementation issues. The best approach would be to go by the exigencies, facts and merits of the individual arbitration, taking into consideration all the relevant factors that would justify confidentiality or transparency in a particular case. It is reasonably safe to conclude that complete confidentiality or complete transparency is just a myth. Complete confidentiality can never be achieved in the sense that parties will have to give up confidentiality when they decide to move the Courts against an arbitral award. Similarly, complete transparency does not sound plausible when privacy is one of the essential features of arbitration. A slowly emerging trend, which aims at balancing the two extremes of confidentiality and transparency, is to publish awards and other materials related to the proceedings with the consent of the parties, while withholding content that the parties do not wish to disclose. Parties to the arbitration can also remain anonymous if they so choose. Proceedings are being broadcast with the permission of parties. ICC is following the practice of publishing abstracts of redacted awards. Another possible option is targeted disclosure, aimed at a restricted audience. The path forward should aim at walking the line between confidentiality and transparency, at involving the parties to arbitrations in the debate, at producing viable options that would provide satisfaction to all stakeholders. In conclusion, confidentiality-transparency should always remain a balancing act, with the scales never tipping entirely in favour of one or the other.
 UNCITRAL Model Law on International Commercial Arbitration, 1985.
 Adrew Waters and Kimberly Smith, “Confidentiality In Arbitration: Fact Or Fiction?” (Watson Farley and Williams, October 2015) <http://www.wfw.com/wp-content/uploads/2015/10/WFW-ArbitrationNewsletterEdition2-Confidentiality.pdf.> accessed 26 December 2017.
 Mayank Samuel, ‘Confidentiality in International Commercial Arbitration: Bedrock or Window-Dressing’ (Kluwer Arbitration Blog, 21 February 2017) <http://kluwerarbitrationblog.com/2017/02/21/confidentialty-international-commercial-arbitration-bedrock-window-dressing/> accessed 26 December 2017.
 Catherine Rogers, “Transparency in International Commercial Arbitration” 54U Kan L Rev1301 (2006). , <http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1233&context=fac_works>
 Russel v Russel (1880) 14 Ch D 471.
 Richard Smellie, Is arbitration confidential? (Lexology, 12 March 2013) <www.lexology.com/libraray/detail.aspx?g=fe578ed6-03ca-4f77-b4f8-61094f6b901b> accessed 13 December 2017.
 Mason CJ in Esso/BHP v Plowman 11 Arb Int’l 235, 245 (1995), p 256.
 Alexis Mourre, ‘Arbitral Jurisprudence in International Commercial Arbitration: The Case For A Systematic Publication Of Arbitral Awards In 10 Questions…‘ (Kluwer Arbitration Blog, 28 May 2009) <http://kluwerarbitrationblog.com/2009/05/28/arbitral-jurisprudence-in-international-commercial-arbitration-the-case-for-a-systematic-publication-of-arbitral-awards-in-10-questions/.> accessed 26 December 2017.
 Rogers (n 4).
 (1990) 1 WLR 1205.
 Ali Shipping Corp v Shipyard Trogir  1 WLR 314.
 Singapore International Arbitration Act, s 22 and 23.
 BBW v BBX  SGHC 190.
New Zealand’s Arbitration Act, 1996, s 14B.
 Emmanuel Gaillard, “France adopts a new law”, NYLJ (Vol 245) No 15, 24 January 2011.
 Swiss Rules of International Arbitration, 2012, Art 44 <https://www.swissarbitration.org/files/33/Swiss-Rules/SRIA_english_2012.pdf.>
 Chris Parker and Susan Field, “ICC Court announces new policies to foster transparency and ensure greater efficiency” <http://hsfnotes.com/arbitration/2016/01/08/icc-court-announces-new-policies-to-foster-transparency-and-ensure-greater-efficiency/> accessed 26 December 2017.
 BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v Republic of Guinea ICSID Case No ARB/14/22.
(Mahasweta is currently a student of ILS Law College, Pune.)