Confidentiality Vs. Transparency In International Arbitration: Striking The Right Balance

Abstract

Confidentiality and transparency are the most complicated policy issues concerning the international arbitration process. Although confidentiality was regarded as the pillar of the commercial arbitration, the rising tendency to impose the transparency, particularly when dealing with states, or public interests, has redefined the limits of the arbitral practice. In the paper, I will discuss how arbitral institutions and states have tried to achieve a balance between the two competing principles. This study is done by examining the rules and cases of the International Chamber of Commerce (ICC), the United Nations Commission on International Trade Law (UNCITRAL) and the International Centre for Settlement of Investment Disputes (ICSID) to identify the dynamic tension between the freedom of parties and the right to information by the citizens. The discussion points to the slow-moving transparency towards the lack of transparency, especially when it comes to investor-state disputes, yet confidentiality in purely private proceedings. It is concluded in this paper that the standards of judicial review should be reviewed in a nuanced and contextual manner and not on a consistent standard in order to retain the foundation and effectiveness of international arbitration.