Improving transparency in international arbitration: digital solutions
Published on 19th May 2021
The confidentiality of arbitrations is one of the features favoured by parties subject to disputes. However, that confidentiality can also affect the accessibility of arbitration as a process. A number of digital solutions have now been implemented aimed at providing greater transparency over the arbitral process while maintaining the parties' confidentiality.
Parties often choose to conduct disputes by arbitration due to the confidentiality (and indeed, privacy) of the process. The subject matter of the dispute, pleadings, witness statements, expert reports, any award and even the very existence of the arbitration may all remain confidential. Historically, that has meant that the arbitral process, at least outside of the world of investor-state arbitration, has in many cases been effectively cloaked in secrecy.
However, recently, digital solutions have been implemented by arbitral institutions with the aim of increasing the transparency of arbitration as a dispute resolution process to assist in the accessibility and reliability of arbitration, while protecting the confidentiality that is still favoured by parties across the globe.
The Transparency Lighthouse - Lima, Perú
Arbitration in Latin America has grown in popularity and use in recent decades. Although its practice differs in the various centres, the region has been consolidating in order to appear more arbitration friendly. In order to instil confidence and ensure the credibility of arbitration as a process, the Arbitration and Mediation Center of the Lima Chamber of Commerce (CCL) designed and launched in 2019 a digital platform called "Faro de Transparencia" (Transparency Lighthouse). The information published on the platform refers to cases administered by the CCL since 2012.
The platform makes available: the list of national and international arbitrators, names of arbitrators constituting tribunals, sanctions to which arbitrators have been subjected, awards vacated by the judiciary, full texts of awards to which the Peruvian state was a party, and anonymised summaries of commercial awards. Recognising that confidentiality is one of the advantages of arbitration, the information provided by the Lighthouse is carefully curated and does not violate this principle.
The aim of the Transparency Lighthouse is for the parties to have greater oversight of the arbitral process and, by having access to this type of information, to be able to make informed decisions as to the choice of arbitrators.
Rosa Bueno de Lercari, former president of the Arbitration and Mediation Center of the CCL and principal supporter of the Transparency Lighthouse in 2019 considers that publishing this information promotes market competition: users will choose arbitrators who adopt good practices, which will make the processes more efficient and increase confidence in arbitration.
Other arbitral institutions have designed similar platforms with similar aims.
The International Chamber of Commerce (ICC) has created case and arbitral tribunal directories which provide access to information regarding the arbitrator's name, nationality, role in the arbitral tribunal, how the arbitrator was appointed and the status of the case. From January 2020, the ICC has also included details as to the sector of industry involved and counsel representing the parties in the case. The directories are expressly stated to provide "key information on ICC arbitration cases without compromising expectations of confidentiality" as "increasing the information available to parties, the business community at large and academia is key in ensuring that arbitration remains a trusted tool to facilitate trade".
In 2018, the London Court of International Arbitration (LCIA) also created a database of the LCIA Court's decisions regarding challenges in relation to arbitrators in cases administered by the institution since 2010. The database provides an anonymised summary of each case, the challenge and the court's decision. The LCIA considers that providing details of decisions on arbitrator challenges gives guidance in relation to acceptable standards of conduct and provides a greater understanding of the reasoning applied by the LCIA court in relation to such decisions. Such information therefore allows parties to be better informed as to the appointment of arbitrators and in raising challenges to arbitrators if such circumstances arise.
Similarly, Queen Mary University's Arbitrator Intelligence, which provides objective reports on arbitrators, "aims to promote transparency, accountability, and diversity in arbitrator selection by increasing access to critical information about arbitrators and their decision-making".
What does greater transparency mean for international arbitration?
The appetite for greater transparency in relation to international arbitration is growing and the development of digital platforms to aid accessibility and reliability is aimed at meeting this need while maintaining the confidentiality that surrounds the existence of many of those disputes.
In a world where parties have a wide choice as to how to conduct their disputes, if we are to enter the "age of arbitration" then these digital solutions and future developments will be key to enabling parties to make informed decisions as to how, when and where to conduct their disputes and who they wish to be presiding over them. The more transparent the process, the more likely it is that parties will see arbitration as a reliable method to conduct their disputes and advancements in technology, such as artificial intelligence, are only likely to assist.