One of the hallmarks of arbitration is the confidentiality of its process. But in the recent past, we have seen a push towards greater transparency in both investor-State and commercial arbitrations, and 2022 saw some leading arbitral institutions amend their rules to provide for greater public access to information about arbitral proceedings.
These changes indicate a move towards a new default rule of publication of awards, procedural orders and even written submissions, with parties having to opt out to impose the level of confidentiality that has until now been routine. The amendments also continue the trend of requiring the disclosure of some aspects of third-party funding arrangements.
We expect the drive towards greater transparency to gain speed in 2023, with more arbitral institutions following suit.
Publication of awards
Demands for transparency are at the centre of debate in the investment arbitration space, and in recent years, the arbitration community has made efforts to answer these demands. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration and the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration reflect that trend.
ICSID: In 2022, ICSID amended its arbitration rules and introduced a chapter dedicated to transparency. The key change, Rule 62, now provides that ‘awards, supplementary decisions on an award, and rectification, interpretation, and revision of an award, and decisions on annulment’ are to be published automatically unless a party objects in writing within 60 days. This is the opposite of the previous position, which required all parties to give consent for the publication of awards and decisions. In addition, Rules 63 and 64 provide for default publication of procedural orders, party submissions and supporting documents. New Rule 65 also includes a presumption that hearings will be open to the public, unless a party objects.
ICDR: The 2021 ICDR Arbitration Rules also introduced changes to the ICDR’s confidentiality regime. Less robust than the ICSID Rules, Rule 40(3) of the ICDR Rules now provides that ICDR ‘may’ publish the full text of an award if it obtains the consent of the parties. Rule 40(4) enables the ICDR to publish anonymised versions of awards, orders, decisions and rulings unless a party objects within six months.
ICC: In January 2021, the ICC published a note to parties highlighting its effort to achieve greater transparency, with all final awards made on or after 1 January 2019 presumptively subject to publication. In April 2021, ICC collaborated with Jus Mundi – a leading legal research tool – to provide full public access to all publishable ICC awards. In 2022, the ICC and Jus Mundi expanded their partnership with the ICC, giving Jus Mundi access to the ICC dispute resolution library with over 7,500 documents, including arbitral awards.
This shift is likely to have a positive impact on the legitimacy of the arbitral process. In particular, access to more precedents will help consistency and predictability, will make stakeholders more accountable, and will improve the arbitrator selection process and reduce risks of conflict of interest. Importantly, parties retain the ability to prevent publication where confidentiality is important, preserving an important advantage of arbitration for many businesses.
As arbitration funding becomes increasingly common, arbitral institutions are considering amendments to address related issues. We noted in our 2022 Trends Report that even though various rules such as those of the ICC, Delos and HKIAC have put in place regimes for disclosure of third-party funding, there is still no consensus on the topic. Since then, a few more arbitral institutions have implemented rules requiring disclosure of third-party funding.
Rule 14 of the 2022 ICSID Rules requires the ongoing disclosure of the existence of third-party funding arrangements, including the disclosure of the identity of the funder and its ultimate beneficial owners. The 2021 ICDR Rules similarly require parties to disclose the identity and nature of any third-party funder, including ‘any non-party that has an economic interest in the outcome of the arbitration’, which could include, for example insurers, parent companies or ultimate beneficial owners.
Other new rules that require disclosure of third-party funding arrangements include the 2022 PRIME Finance Arbitration Rules, which now require parties to disclose ‘the identity of any third party with a significant interest in the outcome of the dispute’ and the ‘nature’ of this interest, and the 2021 Australian Centre for International Commercial Arbitration’s Arbitration Rules, which introduced new provisions obligating parties to disclose the existence and identity of any third-party funders.
With these amendments, some degree of consensus appears to be emerging over the requirement to disclose the existence of funding, although not the funding agreement itself. This is because the primary concern in relation to such arrangements is the avoidance of undisclosed relationships between arbitrators and funding institutions, which could undermine the enforceability of awards later on.
Will other arbitral institutions catch up?
Though 2022 saw some major changes to the transparency regime in international arbitration, there is still no consensus on the subject. Major arbitral institutions such as the LCIA, SIAC, HKIAC, DIAC and SCC continue to have the default position that arbitration awards and other documents are to be kept confidential unless the parties agree to their publication. The LCIA, SIAC and the SCC are also silent on rules for disclosure of third-party funding. However, most of these rules have not been updated in the past three to five years, and it is likely that newer iterations of the rules will reflect the trend towards transparency.