Transparency In Arbitration

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A key aspect of any democratic society is the right of information which guarantees citizens knowledge of the activities of their government. The right is an expression of public interest that since it is the taxpayers who bank roll the government programmes, they have a valid interest in knowing how their funds are being put to use.
Arbitration as a means of alternative dispute resolution has the key advantages of being more expeditious and confidential than the litigation process; therefore safeguarding the commercial interests of the parties to arbitrations. This public interest of; protecting the commercial nature of arbitration seems to be in collision with the public interest of citizens accessing information held by the state that might arise out of arbitration proceedings.
The issue therefore is whether state bodies should forego the benefits of arbitration, as compared to litigation, in the name of securing the right to information. What if there was a way by which agencies could enjoy all the advantages accruing from arbitration while at the same time guaranteeing the public interest in their dealings?
By considering the right to information, the degree of confidentiality in arbitration proceedings as well as the allowed levels of transparency in arbitration, this essay demonstrates that arbitration as a means of adjudicating disputes involving state agencies shouldn’t be ruled out on account of its strict confidentiality requirements.
Transparency in Arbitration
Proponents of expanding transparency in commercial arbitration rely on the public’s stake hold in many issues adjudicated under commercial arbitration. They argue that the interest the public has necessitated measures like compulsory publi...

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...ires more than amendment of the UNCITRAL Rules. There are other aspects e.g. question of applicable law or state immunity.
UNCITRAL should fashion its transparency standards in the form of rules instead of guidelines, because rules have greater force in facilitating arbitrations than guidelines. Transparency contributes to promoting the rule of law, good governance, due process and rights to access of information.

In conclusion, it is possible for the parties to include a provision requiring confidentiality in reference to the evidence, and the proceedings of the arbitration. It must however be understood that this right is not absolute. Therefore, considering that the confidentiality requirement in arbitral proceedings is not absolute, courts can intervene to dispense with confidentiality, where there is a substantial public interest in the subject matter. .
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