By: John Johnson
Global Arbitration Review (“GAR”) is the leading resource on international arbitration news and community intelligence. Every year, GAR hosts an international arbitration conference featuring leading arbitrators and judges from around the world to speak on pressing issues and trends facing the international arbitration community. This year, GAR held a conference in which one of the topics covered was transparency in international arbitration. Due to the tensions between confidentiality and transparency in international arbitration and the implications therein, this subject has always been one of close study and debate. One such debate can be seen on display at the International Chamber of Commerce (“ICC”), one of the leading arbitral organizations in the world.  Since 2016, the ICC has worked on increasing transparency, albeit slowly, culminating in the new transparency rules that go into effect in 2021.
What does confidentiality entail in international arbitration?
Confidentiality is one of the main reasons that arbitration has so much appeal for businesses, organizations, and countries alike. Confidentiality allows the disputants the ability to conceal their internal documents and machinations from the eyes of the public. According to Avinash Poorooye and Ron´an Feehily:
confidentiality reduces the possibility of damaging continuing business relations, and avoids setting adverse judicial precedents. Additionally, the process offers parties the freedom to make arguments that they would be reluctant to make in a public forum. The private nature of arbitral proceedings offers disputants a forum where they can keep their disputes away from the intrusiveness of the media and the prying eyes of their competitors.
Arbitration confidentiality allows the parties to not worry about competitors stealing their business secrets, and arbitration confidentiality allows governments the ability to save face on the global stage, as potentially awkward or uncomfortable revelations stay hidden from public notice and public court documents.
What does transparency entail in international arbitration?
Transparency is a concept in international law that has never been truly defined by arbitration courts or international tribunals. Despite this, one can still piece together what a transparent arbitration would look like based on ideals and public perceptions behind what it means to be transparent. Transparency likely looks like a system in which the public and interested international organizations and entities would be able to easily access the court documents and discovery that the parties in arbitration used in addition to a full court or judicial body opinion. Many tout transparency as an important part of legitimizing arbitral decisions and for ensuring public good. One would imagine that many organizations involved with advocating for underrepresented or oppressed populations would be keen on accessing details and information from certain countries or companies that may be oppressing them. Thus, many public good organizations call for increased transparency in international arbitration.
What will the future hold?
While it is impossible to accurately discern the future with absolute certainty, some overarching trends can be used as predictors or guideposts as to what the future holds. Many practitioners seem to think that because more cases are being brought before international arbitration tribunals, the public is paying more and more attention to arbitration as a mechanism that has actual public policy and real-world implications. With more and more eyes focusing on the arbitration process, many are becoming increasingly frustrated with the opaque and murky nature of the arbitration proceedings. Many practitioners, including those at GAR, seem to think that as the businesses and countries driving arbitration become increasingly frustrated with the hidden nature of arbitration proceedings, they will advocate domestically and through international channels for more arbitration transparency. Some practitioners believe that this transparency will dissuade businesses, international organizations, and countries from using arbitration as a preferred dispute resolution mechanism. Others still think that things will continue to boom as usual. As arbitration enters its “golden age,” only time will be the judge on whether arbitration becomes more transparent for public consumption, and if so, if this transparency will create another preferred dispute resolution process, or if the disputants will deal with arbitration despite its loss in transparency. Given recent trends, most notably with the ICC and their pro-transparency changes in arbitration proceedings, and public calls for transparency, it seems that the writing is on the wall for the extremely confidential nature of arbitration.
 Who We are, Glob. Arb. Rev., https://globalarbitrationreview.com/static/who-we-are (last visited Oct. 8, 2020).
 GAR Interactive: Moscow, Glob. Arb. Rev., https://gar.live/interactivemoscow2020 (last visited Oct. 8, 2020) (detailing a brief history of GAR Interactive).
 See Stefano Azzali, Confidentiality vs. Transparency In Commercial Arbitration: A False Contradiction To Overcome, N.Y.U. L. Blog (Dec. 28, 2012), https://blogs.law.nyu.edu/transnational/2012/12/confidentiality-vs-transparency-in-commercial-arbitration-a-false (explaining the landscape of the transparency and confidentiality debate in international arbitration); Emily Cossgrove & Acacia Hosking, Open Up! How Far Should Transparency in International Commercial Arbitration Go?, King & Wood Mallesons Blog (Apr. 12, 2018), https://www.kwm.com/en/knowledge/insights/how-far-should-transparency-in-international-commercial-arbitration-go-20180412 (exploring if third party funding will help in creating transparency in international arbitration).
 Arbitration, Int’l. Chamber Of Com., https://iccwbo.org/dispute-resolution-services/arbitration (last visited Oct. 8, 2020).
 See Chris Parker & Susan Field, ICC Court Announces New Policies to Foster Transparency and Ensure Greater Efficiency, Herbert Smith Freehills Blog (Jan. 8, 2016), https://hsfnotes.com/arbitration/2016/01/08/icc-court-announces-new-policies-to-foster-transparency-and-ensure-greater-efficiency; see also ICC Unveils Revised Rules of Arbitration, Int’l. Chamber Of Com., https://iccwbo.org/media-wall/news-speeches/icc-unveils-revised-rules-of-arbitration (last visited Oct. 8, 2020) (detailing new changes to arbitration proceedings, including the disclosures of third-party funding in an attempt to increase transparency in cases before ICC tribunals).
 Alexis C. Brown, Presumption Meets Reality: An Exploration of the Confidentiality Obligation in International Commercial Arbitration, 16 Am. U. Int’l L. Rev. 969, 972–73 (2001).
 Avinash Poorooye & Ron´an Feehily, Confidentiality and Transparency in International Commercial Arbitration: Finding the Right Balance, 22 Harv. Negot. L. Rev. 275, 278 (2018).
 See Pedro J. Martinez-Fraga, Juridical Convergence in International Dispute Resolution: Developing a Substantive Principle of Transparency and Transnational Evidence Gathering, 10 Loy. U. Chi. Int’l L. Rev. 37, 71 (2012).
 See generally Poorooye & Feehily, supra note 9, at 282.
 See generally Julia A. Maupin, Transparency in International Investment Law: The Good, the Bad, and the Murky, Transparency in Int’l Law 142, 142 (emphasizing that transparency is “oft invoked and seldom defined,” but still sought after as many as a way to keep a functioning democracy afloat).
 Id. at 147.
 See Anne Peters, The Transparency Turn of International Law, 1 The Chinese J. of Glob. Governance 3, 14-15 (2015).
 See ICC Arbitration Statistics Reflect Strong Arbitration Trends Worldwide, Vinson & Elkins Insights (July 2, 2019), https://www.velaw.com/insights/icc-arbitration-statistics-reflect-strong-arbitration-trends-worldwide (highlighting the ICC’s recent statistics showing an increased use in arbitration for all manners of disputes); see Paul Bland, Democracy Works: General Mills Drops Forced Arbitration Claim After Public Outcry From Consumers, Pub. Just. Blog (Apr. 20, 2014), https://www.publicjustice.net/blogdemocracy-works-general-mills-drops-forced-arbitration-after-outcry-from-consumers.
 See generally Marlon Meza-Salas, Confidentiality in International Commercial Arbitration: Truth or Fiction?, Klewers Arb. Blog (Sep. 23, 2018), https://arbitrationblog.kluwerarbitration.com/2018/09/23/confidentiality-in-international-commercial-arbitration-truth-or-fiction.
 Peters, supra note 16.
 See Ben Rigby, A New Golden Age, ICLG (June 14, 2016), https://iclg.com/cdr/arbitration-and-adr/6459-a-new-golden-age (reviewing a recent conference featuring keynote speaker Dr. Robert Gaitskell, who espoused the merits of arbitration and outlined future conflicts).
 Parker & Field, supra note 6.