Devika Khanna and Richard Power recently addressed the issue of transparency in arbitration - Devika as Chair of a panel at the London Centre of International Law Practice Annual Conference on Energy Arbitration & Dispute Resolution in the Middle East & Africa and Richard at the 2017 Cambridge Arbitration Day. Although the general view is that increasing transparency is a good thing, in this interview Devika and Richard share their thoughts on why the issue isn't quite that straightforward.
What do we mean when we talk about transparency in arbitration?
Richard: Transparency covers a wide range of topics, all of which are related to how much visibility the parties and the general public has regarding the constitution of the arbitral tribunal and the tribunal's handling of the case before it. So transparency would cover the publication of information regarding a potential arbitrator's background, previous case history and maybe even views on certain topics, as well as the question of whether awards should be published, whether hearings should be confidential or held in public, and whether interested parties should be allowed to make submissions at proceedings.
Devika: I agree, transparency is a broad topic and I think that when entering into any debate about it at a conference or with colleagues it is important to be clear about the 'type' of transparency you are discussing. Recent English court decisions on challenges to arbitrators have brought that element of transparency to the fore in commercial arbitration but in the context of investor-state arbitration, questions of transparency are usually more focussed on the public interest in the state's activities. In that arena, access to information is key and decisions must not be seen to be made behind closed doors.
Why is transparency such a hot topic for international arbitration?
Richard: The starting point for any arbitration was that it was a private and confidential dispute resolution process, outside the ambit of the national courts. Proceedings were conducted privately, third parties generally couldn't join in and awards were not published. Demands for transparency were a reaction to that. While that's still largely the case for commercial arbitrations, investor-state arbitrations have become much more transparent. However, the recent backlash against globalisation has led to increased public awareness of investor-state arbitrations and there has been widespread criticism of 'secret...