Transparency In Arbitration Research Articles

Justice in the balance: The crucial role of disclosure in ensuring justice in Jordanian arbitration

AbstractAs an alternative to traditional court litigation, arbitration has gained prominence in Jordan's legal landscape for its distinct attributes like speediness, confidentiality, autonomy, and efficiency. Central to the sanctity of this mechanism is the arbitrator's duty of disclosure, ensuring that the arbitration process remains impartial, transparent, and devoid of any potential bias. This paper explores the profound significance of the duty of disclosure in Jordan by analyzing the latest Jordanian Court of Cassation Decision No. 1479 of 2023, where nondisclosure by the Arbitral Tribunal led to the annulment of the arbitral award. Through juxtaposing international arbitration norms and thoroughly examining Jordanian legislation, this study underscores the consequences of nondisclosure and the paramount importance of transparency in arbitration. The insights drawn from this case reaffirm that the foundation of arbitration's credibility and trustworthiness rests on the rigorous adherence of arbitrators to disclosure, ensuring that justice is not only served but is transparently perceived.

The Confidentiality and Transparency Debate Under Investor-State Mediation


 As an important part of alternative dispute resolution, investor–state mediation is attracting increasing interest from the creators of investment treaties and institutional rules. Traditional mediation mechanisms are inherently confidential. Keeping mediation proceedings and related documents strictly confidential is crucial to successful mediation. However, investor–state disputes, which involve public interests, often do not allow for the strict confidentiality of traditional mediation. Rather, those involved in investor–state mediation face pressure to be transparent. To increase public acceptance and the perceived legitimacy of the investor–state mediation system, it is necessary to establish the right balance between confidentiality and transparency. The degrees of transparency in arbitration and mediation are not the same; there are many institutional differences in their transparency rules, such as those regarding public hearings, access to documents, and non-disputing party submissions. The degree of transparency of investor–state mediation should generally fall between the strict confidentiality of commercial mediation and the transparency of investor–state arbitration. Distinct from investor–state arbitration and its exceptions to transparency and confidentiality requirements, investor–state mediation applies confidentiality in principle, with appropriately expanded transparency exceptions to respond to the need for transparency. When constructing investor–state mediation transparency rules, it is necessary to consider many other factors, as there is no universally applicable optimal degree of transparency.

Confidencialidad, privacidad y transparencia en el arbitraje internacional

En el presente trabajo se realiza un análisis de la confidencialidad, la privacidad y la transparencia en el arbitraje internacional, teniendo en cuenta la imperiosa necesidad de una mayor transparencia en el procedimiento arbitral, principalmente en el arbitraje de inversiones. La confidencialidad y la privacidad han caracterizado siempre al arbitraje, fundamentalmente al arbitraje comercial internacional. Sin embargo, en el ámbito del arbitraje de inversiones, teniendo en cuenta el fuerte interés público presente en el mismo, la exigencia de una mayor transparencia en el procedimiento se ha convertido en un tema crucial del arbitraje internacional.

Transparency in Arbitration, Desired or Necessary?

Transparency is simply a social concept of being without bias. In arbitration, transparency is a necessity for the just determination of the dispute between parties. Transparency as used in social contexts is operating in such a way that it is easy for others to see what actions are performed. It implies openness, communication and accountability. In arbitration, transparency is shown in choice of arbitrators, third party funding, investor-state and relationships with clients. On a broader scale, transparency is an emerging, though controversial, trend in international arbitration. It is usually defined as including concepts such as public access and disclosure of documents or information. The issue of transparency is critical and a debatable issue in international arbitration. Transparency as it relates to international law is broad and has three distinct dimensions, namely; (a) institutional transparency which is the level of transparency that international organisations and institutions apply to their daily activities; (b) legislative transparency which evaluates the level of transparency of the law-making processes in international law; and (c)procedural transparency which concerns the way international courts and tribunals apply and enforce international legal norms. Transparency is essential for good governance, justice, rule of law, and equity. When arbitrators, parties, and representatives know that they are being observed by the public, they proceed with caution. When awards and decisions are not rendered behind closed doors, arbitrators are more likely to examine the case as carefully as possible to avoid strong criticism. Transparency also acts as a guide to parties of a potential arbitration by providing insight on the character and expertise of arbitrators. The issue of transparency in arbitration, whether domestic or international, cannot be overemphasized. It makes the arbitral proceedings and judicial system more reliable, predictable, and comprehensible to the public, among others. Without a doubt, transparency rules will be applied widespread. However, confidentiality issues should not be disregarded and, when necessary, should be activated.

International Experience of Applying Transparency Rules in Arbitration Processes Between Investors and States

Abstract Following modern worldwide trend of transparency, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, which were incorporated in UNCITRAL Arbitration Rules. The Convention on Transparency (the Mauritius Convention) adopted later was an attempt to resolve the situation with treaties, which were concluded prior to April 1, 2014. As soon as few previous studies covered this issue, the research is aimed to assess the extent to which the Rules on Transparency are applicable and inevitable. By way of qualitative analysis of documents covering the transparency issue in investor-state treaties and arbitration was revealed that like the treaties concluded after April 1, 2014, which were automatically covered by the scope of application, the treaties made prior to that date were dropped out of the Rules on Transparency and the parties thereto have to express an explicit will to apply the Rules on Transparency. The Mauritius Convention designated to resolve this problem still requires a member state to join the Convention to make the Rules applicable to all treaties with such member state. On the other hand, both discussed documents provide the parties with options to avoid transparency in arbitration. Thus, despite increasing mandatory transparency in national legislations, the transparency of investor-state arbitration proceedings remains the matter of a good will of the parties. This study provides the foundation for stakeholders to conduct investor-state agreements as well as arbitration processes in line with transparency. The issue of transparency in investor-state agreements and arbitration processes in different countries can be illustrated in the following studies based on this study.

Armonizando tensiones: La necesidad de transparencia en el arbitraje sin destruir la confidencialidad

In the present article, the author analyses the classic paradigm of confidentiality in commercial arbitration and the regulations of the main arbitral institutions in the world. Then goes deeper into the need for transparency in arbitration. Finally, he puts forward a series of proposals that should be put into practice to develop transparency without neglecting confidentiality.

The Issue of Confidentiality in International Commercial Arbitration

The confidentiality of international arbitration proceedings and awards is one area with a crying need for corrective hands today. The conflicting needs of confidentiality and transparency in arbitration have compelled badly the courts and law makers to come with the innovations to harmonize the conflict. The road of confidentiality in international arbitration meets a dead end after crossing the barrier of ‘privacy’ as no national or institutional laws provide expressly for confidentiality (barring few exceptions like New Zealand) because of its inherent complications. This article attempts to strike a balance between virtue and vice of confidentiality in the area of arbitration.

What You Don't Know Can Hurt You: Investor-State Disputes and the Protection of the Environment in Developing Countries

Recent years have seen a substantial increase in investor-state disputes. In many cases matters of public interest, including environmental regulations, are being tried. While it is crucial to assess the outcomes of investor-state disputes that involve matters of public policy, the procedures followed in investment arbitration make this difficult and, in some cases, impossible. This is relevant not only for researchers, but also crucially for regulators. This article focuses on how the lack of transparency in arbitration, and the lack of consistency of tribunal decisions, creates uncertainty for regulators. This uncertainty, when combined with the financial risk involved in proceeding to arbitration, may create situations in which the threat of an investment dispute is sufficient to convince a government to reverse, amend or fail to enforce an environmental regulation—a phenomenon referred to as regulatory chill. These issues are explored in an Indonesian case involving a dispute over mining contracts in protected forests.