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Transparency In Arbitration

Transparency in Arbitration is the major topic of this essay. Arbitration is a form of conflict resolution in which the parties agree to have their disagreement resolved by an arbitrator (one or more) in an arbitral tribunal with an odd number of members. Through this approach, the parties agree to settle their disagreement in a private, confidential setting. Transparency denotes openness as well as the absence of deception, misrepresentation, or error. Transparency simply guarantees that everyone has access to the rules and procedures.

In this argument paper we will see first the importance and advantages of Transparency in Arbitration.

The Flow Chart Of This Paper Will Be As Follows As We Will See First Positive/Advantages Of Transparency In Arbitration:
  1. Importance of transparency in arbitration.
  2. Types of Transparency.
  3. Transparency and Confidentiality.
  4. Steps taken by International Arbitration organization to improve transparency in arbitration.
  5. Steps taken to be improve Transparency.

Importance Of Transparency In Arbitration
Arbitration is a form of conflict resolution in which the parties agree to have their disagreement resolved by an arbitrator (one or more) in an arbitral tribunal with an odd number of members. Through this approach, the parties agree to settle their disagreement in a private, confidential setting. Transparency denotes openness as well as the absence of deception, misrepresentation, or error. Transparency simply guarantees that everyone has access to the rules and procedures.

Transparency in arbitration would mean open access to all the relevant information relating to the arbitration process, the arbitrator and the organization.

Now we are going to see why transparency is important?
  1. In arbitration, transparency fosters responsibility and diversity.
  2. Transparency strengthens the parties' faith in the arbitrator and creates trust in the arbitration process.
  3. Transparency ensures that the organisation is legitimate.
  4. Transparency ensures that the company isn't lying about anything.
  5. Transparency would increase the parties' involvement in the arbitration process.
  6. The term "transparency" refers to both parties being equally informed. As a result, the parties are placed on an equal footing for the drafting of the arbitral ruling.

Types of Transparency:
  1. Organizational Transparency, as defined in Article 11(4) of the ICC Rules, aims to make arbitral institutions' case management and decision-making processes more visible.
  2. According to Article 41 of VIAC's Rules of Arbitration and Conciliation (Vienna Rules), legal transparency entails disclosing the legal features of the arbitral ruling and the application of guidelines to resolve the dispute.
  3. The goal of Transparency of Proceedings is to make the arbitral proceedings and awards public.

Transparency and Confidentiality
The terms "transparency" and "confidentiality" are interchangeable. Both are necessary for the arbitration process to work. Transparency is vital because it promotes accountability and diversity, strengthens the parties' faith in the arbitrator, and ensures that the arbitration process is conducted fairly.

It also ensures that the organisation is not dishonest or misrepresenting anything. Transparency implies that all participants are well-educated and prepared to make informed decisions and represent themselves appropriately in the process.

In most cases, the participants in a disagreement have their swords drawn, and any breach of their secrecy will further sour their relationship. No significant material should be released to a third party, according to an arbitrator. In a commercial dispute, the parties have a lot riding on the outcome, and a violation of confidentiality might cost them a lot of money. Many claim that making the arbitration procedure open will reduce the secrecy quotient. This is not the case, though.

The confidential information is always protected and classified. Information relating to the process, budget, award or the background check of the arbitrator is crucial to enhance neutrality in arbitration. The increase in the awareness about the transparency of the procedure would make the parties believe in the process of arbitration and thus consider it as a viable option for dispute resolution.

Steps taken by international arbitration organization to improve transparency in arbitration

The International Bar Association

The Guidelines on Conflicts of Interest in International Arbitration (the Guidelines) were created in the year 2004. General Standard 3 outlines the norms that govern an arbitrator's responsibilities for protecting confidentiality and neutrality, as well as the arbitrator's obligation to reveal any material that might jeopardise the parties' confidentially.

Revealing information is crucial for maintaining the neutrality and increasing confidence of the parties towards the arbitrator.

AAA/ICDR The American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR)

In 2013, the Arbiter and Mediator Search Platforms were established, allowing users to search for the best appropriate arbitrator from a list of 6000 arbitrators. The function was created to guarantee that search results are as efficient as possible. The Arbitration information is accessible via specific tabs designed to provide the best search results, assisting the searcher in locating a suitable arbitrator.

The ICDR also ensures that gender neutrality is maintained while choosing an arbitrator. One of the most striking features of the AAA and ICDR is that they publish the information regarding the monetary expenditure incurred in the arbitration.

THE ICC The International Chamber of Commerce (ICC)
In 2016, the ICC began publicising the arbitrator's bio in situations when the case is still ongoing. The data encompasses all of the complexities of the arbitrator's working life. At the ICC MENA meeting in Abu Dhabi earlier this year, the subject of openness was highlighted. Similarly, The International Institute for Conflict Prevention and Resolution's work have strengthened openness in arbitration (CPR). The attorneys might ask questions about the arbitrator overseeing the case through the due diligence report. According to the rates and successful closures, the arbitrators in CPR are ranked. CPR ensures the appointment of diverse arbitrators through the Equal Representation in Arbitration Pledge.

London Court of International Arbitration (LCIA)
The year was 2006. The LCIA was the first arbitral organisation to draught rules addressing the issues that arbitrators encounter. According to the Singapore International Arbitration Centre (SIAC) Rules of 2016, every challenge to an arbitrator brought under Rule 16 must be reasoned unless the parties agree otherwise[1]. Several organisations compile cost and expenditure tables for arbitration proceedings. LCIA and SCC (Stolkhome Chambers of Commerce), the HKIAC, and the SIAC are examples of similar organisations.

The Mauritius Convention on Transparency was accepted by the United Nations Commission on International Trade Law (UNCITRAL) in 2014. The transparency registry is utilised in some investment arbitrations when the agreement stipulates that the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration must be followed. All important papers necessary to guarantee transparency in the arbitration proceedings are kept in the transparency registry.

Confidentiality in the arbitration is extremely required to ensure the confidence of the parties. therefore, The UNCITRAL Transparency Rules have important "exceptions to transparency" with regards to"confidential or protected information" and are intended to ensure the "integrity of the arbitral process.".

Confidentiality in the arbitration is extremely required to ensure the confidence of the parties. therefore, The UNCITRAL Transparency Rules have important "exceptions to transparency" with regards to"confidential or protected information" and are intended to ensure the "integrity of the arbitral process.".

The ICC has recently embraced even more measures to increase efficiency, transparency, and diversity as part of its continuous efforts to react to the demands and concerns of users. Deliberations regarding the publishing of the parties' arbitral awards would take place under this arrangement. The parties will have the option of opting out of having their awards published. The ICC would even compile a list of arbitrators to guarantee that the process of selecting arbitrators is as efficient as possible.

Steps to be taken to improve transparency
Arbitrator selection process
Specialized bodies that choose arbitrators should guarantee that the arbitrator selection process is based on the arbitrator's merit. The parties should be given the option of naming their preferred arbitrators. The parties' trust in the process would be boosted if the arbitrator was chosen properly. The arbitrator's history, including any relevant ties to the contested topic, should be investigated. A comprehensive background investigation of the arbitrator would qualify him or her as a qualified impartial third party. Because the arbitrator serves as a judge, every occurrence in his personal life that might jeopardise his role as an impartial third party should be disclosed.

Publication of the arbitration awards
Unlike other methods of Alternative Dispute Resolution, arbitration is a law-driven process. The arbitrator is bound to follow guidelines laid by the organization under which the arbitrator works. Since the position of an arbitrator is decided by the guidelines the arbitrator should make use of the guidelines to dictate to him the procedure of the arbitration. The parties should be given a brief introduction like a demo of the guidelines to be followed in the arbitration process.

The organization should also ensure that the parties have full knowledge of the allied sections related to the arbitration procedure such as the amount of money spent, the background of the arbitrator, the qualification of the arbitrator, arbitrator fees, etc.

Now We Will See Other Side Of The Coin

Transparency vs. "Confidentiality", "Public Access" and "Disclosure"

While we're on the subject of secrecy, it's fair to say that it's one of the most important benefits and distinguishing characteristics of commercial arbitration, which is sometimes confused with arbitration openness. Transnational firms think that corporate secrets and private information will be better secured under ICA than in international litigation, as evidenced by the fact that confidentiality drows parties to ICA as their preferred means of conflict settlement.

In a Queen Mary study performed in 2010 (hence "2010 Survey"), 62 percent of all respondents indicated secrecy was "extremely essential" to them, the highest answer choice given. Another 24% said anonymity was "very essential," making it the second most popular choice. The value of secrecy to users was reinforced by a 2015 study done by Queen Mary (hereafter 2015 Survey), in which "confidentiality and privacy" was identified as the second most desirable attribute by participating in-house counsel1". For several reasons, a contested view of Transparency and Confidentiality might have an impact on ICA.

Effects on ICA due to disputed understanding between Transparency and Confidentiality

First, while commercial arbitrations are often conducted between private individuals, one of the contesting parties might be a government, a government institution, or a government instrumentality. In reality, a State can operate both in its sovereign capacity (jure imperii) and in its private capacity in international economic arbitrations under public international law (jure gestionis).

In the latter instance, even in purely commercial international arbitrations, the public interest might be engaged. Second, because of the prevalence of public interest concerns, the conclusion of a commercial arbitration procedure might influence the broader public in a variety of ways. Cases involving national defence, agriculture, a State's oil, gas, and other natural resources, and commercial arbitration are just a few examples of public interests at risk in commercial arbitration.

Third, in commercial arbitration proceedings involving wrongdoing or criminal acts (such as corruption, bribery, money laundering, and fraud) by public authorities or officials of foreign multinational businesses, openness is critical. In such instances, (international) public policy takes precedence over privacy. Fourth, the establishment of the so-called autonomous arbitral legal order16 might be influenced by secrecy.

It's worth noting that most arbitration legislation and arbitration rules don't include a "general principle of secrecy," despite the fact that some institutional arbitration rules recognise the potential for more openness in international arbitration. The American Arbitration Association (AAA Rules), the International Chamber of Commerce (ICC Rules), the Chamber of Arbitration of Milan (CAM Rules), and the International Chamber of Commerce (ICC Rules) have all produced progressive arbitration rules.

Progressive' arbitration rules include those established by the American Arbitration Association (AAA Rules), the International Chamber of Commerce (ICC Rules), the Chamber of Arbitration of Milan (CAM Rules) and the Society of Maritime Arbitrators (SMA Rules)

Confidentiality is the usual norm in all elements of the processes; the American Arbitration Association's arbitration rules state that the hearings are also held confidentially, and that the awards are not publicised unless the parties agree otherwise. The rule on the publishing of arbitral awards, on the other hand, permits the institution to publish "chosen awards, orders, judgments, and rulings that have been modified to conceal the parties' names and identifying data, unless the parties have agreed differently."

As far as the ICC Rules are concerned, although proceedings are not generally open to third parties, still access is given to the proceedings if the parties and the arbitral tribunal have so agreed . An important innovative provision in the ICC Rules is that the confidentiality rule is reversed compared to the LCIA and Swiss Rules. Article 22[3] states that:
"Upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information"

Transparency vs. Public Access
Public access allows for open scrutiny of public leaders and protects against power abuse. In a nutshell, public access refers to an individual's entitlement to attend a hearing. It is critical to distinguish transparency from public access in order to comprehend the motivations underlying calls for increased transparency in international commercial arbitration.

In international business arbitration, there is a noteworthy disparity in the handling of openness and public access, with the former being considered as a requirement while the latter is seen as optional. This disparity in treatment is due to the goals that each notion aspires to attain. Individual rights to public access have their origins in domestic principles of fairness and justice.

As one blogger points out, insisting that a Bro-zilion citizen has the right to attend an Austrian hearing controlled by German law involving Chinese and Russian parties would be absurd. Several international courts, on the other hand, advocate for public access in order to maintain openness. As a result, while public access is a tool for increasing openness, it is not An international business arbitration, there is a noteworthy disparity in the handling of openness and public access, with the former being considered as a requirement while the latter is seen as optional.

This disparity in treatment is due to the goals that each notion aspires to attain. Individual rights to public access have their origins in domestic principles of fairness and justice. As one blogger points out, insisting that a Bro-zilion citizen has the right to attend an Austrian hearing controlled by German law involving Chinese and Russian parties would be absurd. Several international courts, on the other hand, advocate for public access in order to maintain openness. As a result, while public access is a tool for increasing openness, it is not existence.

Transparency vs. "Disclosure"
Disclosure is primarily aimed at satisfying a specific regulatory purpose such as easing strains in unstable labour markets, educating consumers about the products they buy, sustaining healthy financial markets, or safeguarding the public against health and safety concerns. While transparency deals with the manner in which information should be handled, disclosure focuses on the provision of substantive information32, Transparency applies to a myriad of activities within an institution irrespective of the type of information involved, while disclosure deals with the specific disclosure of an identifiable piece of material

Although transparency and disclosure differ in nature, these concepts can coexist: the latter is an instrument to achieve the former. For example, arbitrators have to disclose any conflict of interest that may sway their opinion or affect their impartiality because such dis- closure allows arbitrators to be appointed in a transparent manner and limits the possibility of appeals of arbitral awards on the basis of bias.

Disclosure obligations focus on substantive information, whereas transparency rules focus on how that information is conducted by a particular institution. Disclosure obligations target specific information for defined regulatory purposes, whereas transparency rules apply across the board to the activities of an institution, without regard to the nature of the information involved. Even if the two can be teased apart, they can also operate in tandem. Mandatory disclosure obligations can promote transparency when the availability of specific categories of information allows monitoring of decision-making.

Conclusion
Amongst confidentiality and transparency, I deem 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, reluctance to become more transparent has increasingly been encountered with sinister suspicions of wrongdoing and equated with an unwillingness of individuals and institutions to assume responsibility for their decisions.

Not to forget Ultimately, the international arbitration community's voluntary movement toward greater transparency was made by parties who have collectively decided that they need predictable, rule-based adjudication of their disputes. Having opted for a system that aims to bring a Rule of Law to international commercial disputes, parties and those providing legal services cannot pull the curtains around the system and turn out the lights. Transparency is an inherent feature of the Rule of Law. If international commercial arbitration's users want the benefits of a rule-based system, they cannot reject the transparency that comes with it.

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 favour transparency over confidentiality.

As for the wider scope of transparency, I believe that an increase in transparency is necessary and beneficial, but only if the parties agree to such transparency. As ICA is a contractual mechanism which requires parties' consent, I 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 I believe that increased transparency in respect of publication of awards may be warranted, I 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.

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