Guest blog written by: Keona Febrian (CAPLUS research Intern, 2024)
The University of Sydney Law School was honoured to host the UNCITRAL RCAP Symposium: Navigating Transparency and Confidentiality in International Arbitration [podcast here] alongside UNCITRAL Regional Centre for Asia and the Pacific (RCAP), in collaboration with UNCITRAL National Coordination Committee for Australia (UNCCA), the Sydney Centre for International Law (SCIL), and the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS).
The symposium provided new insights into the obstacles and advantages transparency and confidentiality in international arbitration. Organised in collaboration with UNCITRAL, the event featured Ms. Athita Komindr, Head of UNCITRAL RCAP, along with renowned scholars and practitioners Prof. Luke Nottage, Dr. Caroline Kenny KC, and Mr. Nick Gallus to share their expertise. Associate professor Jeanne Huang offered expert commentary, providing her perspective on how these developments shape the rising growth of arbitration a digital era. Moderated by Ms. Inma Conde, the Secretary of UNCCA, the symposium delved into the complexities, challenges and benefits of this evolving legal field.
Ms.Athita Komindr, the head of UNCITRAL, started with a short introduction on the event itself. This symposium was part of a global event to highlight the significance of emerging legal instruments in creating favourable environments in resolving cross-border disputes. Ms.Athita continues with discussing UNCITRAL transparency standards and how it was the first successful endeavour to reform investor and state disputes. These standards focus on providing transparency in disputes while balancing it with the need for confidentiality in private matters to increase participation overall. The UNCITRAL arbitration rules has recently adopted a new article 1(4) in relation to its application. Ms.Athitha discusses how together, the UNCITRAL rules on transparency and the Mauritius Convention on Transparency, takes into account both the public interest in investor-state dispute settlements. Following the adoption of the standards, there is an increase in transparency in disputes.
Professor Luke Nottage discussed the tensions of transparency in arbitration, highlighting Australia and Japan specifically (selecting key Powerpoints here). He addressed the expectations of transparency, particularly in Asian international commercial arbitration. International commercial arbitration is still the preferred method of resolving disputes over litigation due to its confidentiality, transparency and speed advantages. However, this confidentiality can be a double-edged sword, decreasing cost and delays but potentially contributing to an information-asymmetry. He discussed the Mauritius convention, starting with the struggles of getting it ratified in Asia. He highlighted that the regime may be perceived as not being complementary to the more authoritarian regimes in Asia and that because of how much time had already passed, the convention may cover less treaties now – suggesting the need for a new Protocol. He also provided a short case study on Zeph’s Investment Treaty arbitrations between Clive Palmer’s Singapore-incorporated company and the Government of Australia where it showed that transparency can benefit efficiency
Next, Dr Caroline Kenny spoke about balancing confidentiality and transparency in international arbitration. Kenny noted how the confidentially and transparency are often viewed as mutually exclusive and that confidentiality and privacy are often merged as one concept. The vast majority of jurisdictions do not implement transparency as part of the arbitration, withholding the publication of the final result of such resolutions. She continues by explaining how transparency is especially sought after in Investor-state arbitrations because of how it deals with the wrongful behaviour of states. The session featured the importance of having modern law address confidentiality and transparency , but how the law struggles with this as it is a modern reproduction of the 1976 arbitration laws which was silent on confidentiality and how confidentiality was viewed as an implied practice in arbitration due to its nature of being a confidential process. Modern law has failed to address confidentiality due to a lack of uniformity across national and arbitration rules on the matter. Jurisdictions such as England and Singapore view confidentiality as a fundamental aspect of arbitration, while Sweden views it as important but not legally binding.
Nick Gallus covered the topic on confidentiality and transparency in contractual arbitration involving the State, proposing that in these matters confidentiality is not neglected. He started with echoing Professor Luke Nottage’s discussion of the Zeph’s arbitration and talked about how this arbitration originated from a prior contractual arbitration. He continued by discussing his personal experience facing a party that had used confidentiality in arbitration as a sword by restarting the same case with the same parties in a different arbitration court, citing that Res judicata was not triggered because the first arbitration was confidential. Gallus explained how the origin of developing the Mauritius Convention was based on significant public policy considerations that could potentially lead to large monetary liabilities for public treasuries, citing these as reasons often given for transparency in investment treaty arbitrations. These factors are also applicable to contractual arbitrations.
Associate Professor Jeanne Huang closed the symposium with a talk on transparency and confidentiality in the National Administration along with a summary of the key takeaways. She focused on a consensual approach vs mandatory law approach in implementing transparency and confidentiality. Further, she established that the issues surrounding transparency and confidentiality goes beyond the disputing parties’ interests, it revolves around the actual jurisdiction’s legal, government systems and public concerns. Professor Jeanne Huang added to the topic her own expertise in privacy, which means personal information protection, connecting it to the main topic as explaining that arbitrations and dispute resolution as a place to process and understand information.
The symposium was an insightful discussion on how transparency and confidentiality can work together to create an efficient and pleasant environment for arbitrations, both government and private arbitrations. It focused on key challenges in being implemented in more jurisdictions and the potential ways to get around it. Public policy implications and accountability seem to be a major factor in transparency for investor-state arbitrations. Each speaker stressed that transparency requirements should be tailored to each jurisdiction and that collaboration is required to promote larger legal discourse surrounding this topic. It concluded with an hopeful view of the future developments in arbitration.
A recording of the session can be found at: https://www.sydney.edu.au/law/news-and-events/podcasts.html
