The Rules and Ways of International Commercial Arbitration
One of the advantages of arbitration is the fact that it is completely secret. But, exactly, what do we mean by “confidentiality” here? The requirement of secrecy, taken in its broadest meaning, encompasses a significant number of components of the arbitral system. For International Commercial Arbitration this works fine.
However, since this notion is not defined and does not have a criteria that allows the degree of intensity particular to each of the procedural parts that it encompasses to be appraised, its utility has been called into doubt in certain instances. This is the situation in terms of the scope of the secrecy requirement imposed on the arbitral decision itself. As a result, will the disclosure of arbitral decisions contribute to the strengthening of international arbitration? And, if that’s the case, shouldn’t a new technology be created to make its distribution easier? The goal of this research will be to provide answers to these issues.
Arbitration is a dispute-resolution technique that falls under the authority of a single court and has several benefits, such as speed and secrecy. Arbitration is a secret or at the very least discrete form of justice in order to best safeguard trade secrets in the latter scenario. To ensure that this discretion is maintained, the concept of secrecy in arbitration law has steadily developed.
However, What Precisely Does The Idea of Secrecy Encompass Is a Good Question
Numerous elements of the arbitral procedure are subject to the obligation of confidentiality, including the arbitral deliberation3, the arbitration award (unless the parties agree otherwise), the parties, the arbitrators (except in the event of a disclosure obligation imposed by law), the experts, the arbitration centers (in the case of an institutional arbitration), the documents in the file, and so on.
From there, the question arises as to whether the confidentiality relating to each of these elements should be understood in the same way and whether the degree of intensity of the confidentiality relating to each of these elements is the same.
The Right Legal Solution
From a legal standpoint, the principle of confidentiality has been recognized in internal arbitration law, in the Code of Civil Procedure concerning arbitral proceedings, and in international arbitration law.
Due to the evolution of the law of investment arbitration, which provides for the transparency of the arbitration procedure due to public interests that are referred to the arbitrators, this recognition did not extend to international arbitration law, as a result of which the law of investment arbitration has not yet been recognized. Anyhow, confidentiality is not defined and there are no standards that may be used to determine what one should consider to be secret.
The majority of national regulations establishing a principle of secrecy are ambiguous; they do not identify which components of the process are protected, nor do they indicate which individuals are subject to the requirement of confidentiality. In order to address this shortcoming, the secrecy of arbitration is often requested by the parties and is therefore explicitly stated, for example, in the arbitration agreement or the act of assignment. Finally, the majority of arbitration rules include a requirement that all information be kept secret.