by M. Florencia Villaggi
A large portion of International Commercial Arbitral Awards in different jurisdictions are unpublished. The public only has access to them when they are challenged in a judicial court. The majority of arbitration users highly value the confidentiality of the awards, but at the same time there are substantial benefits from its public disclosure.
This essay focuses on whether it would be beneficial to promote the publication of International Commercial Awards; and if it is the case, how such publication could be conducted in order to reconcile it with the user’s expectations of confidentiality. When confidentiality is not specified in the arbitration agreement, its existence and scope varies in light of the different standards that may regulate it. Therefore, the essay starts by analysing the treatment given to the issue in institutional arbitration rules, domestic legislation and case law. It continues to discuss the arguments both pro and against mass publication of International Commercial Awards. And lastly, it concludes that an increase in publication of awards is desirable, but it should not be achieved through the expense of completely depriving arbitration users of their confidentiality. The author therefore proposes a compromising solution to reconcile both interests at stake, by the implementation of a mechanism that would promote publication of International Commercial Awards with minimal impact on the parties’ confidentiality expectations. Publication of arbitral awards in the proposed way could bring greater transparency to the system, strengthen the fairness and quality of arbitrators, proceedings and awards, and contribute to the development and evolution of arbitration.
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