London International Disputes Week provided a huge array of events addressing many different aspects of London’s approach to dispute resolution. These included complex commercial cases, the threats posed by new commercial courts in other jurisdictions, and alternative dispute resolution techniques and tactics. There were also plenty of sessions focused on international arbitration.
Philippa Charles was invited to moderate a session hosted at the offices of DLA Piper in London with Arbitral Women, an organisation that brings together female dispute resolution practitioners. The topic was the balance between the push for transparency in arbitration processes and the confidentiality of the process. Confidentiality has always been valued by users as a key advantage and distinctive attribute of arbitration by contrast with the public nature of proceedings in national courts.
The four speakers were Lucy Greenwood of Greenwood Arbitration, Elinor Thomas from DLA Piper, Georgina Barlow from Vinson & Elkins, and Sarah Vasani from Addleshaw Goddard. The topics considered included:
- Publication of arbitral awards – good or bad? Could it reduce diversity in the arbitrator pool? Might we see the arrival of “issue conflict” challenges in commercial arbitration cases whereby an arbitrator is asked to recuse herself because of statements made in a previous case decision? Lucy spoke on this topic and revealed that whilst in principle she is in favour of transparency initiatives, on this topic she is definitely opposed to the proposal. This is on the grounds that it has the potential to cause more problems than it addresses. Not least of these potential problems is the impact on parties’ expectations and the dubious value of a body of “precedent” decisions, which will inevitably be only a subset of the cases decided by a particular arbitrator.
- Diversity and transparency initiatives: what do we learn from the statistics published by institutions and how does it help to advance diversity in arbitrator selection? Is the sort of information we want (about arbitrator attitudes to, for example, document production) ever going to be achievable from aids such as online directories? Can we discern who may be over-committed as an arbitrator from published information about who is sitting where? And will that dissuade parties from “choosing IBM” by going for a well-known name over a less known one? Georgina gave some valuable insights on this issue from the perspective of counsel advising a party.
- Lessons learned from the experience in investor-state arbitrations: how far are states willing to go to support transparency initiatives? Sarah addressed this topic by reference to the low take-up of state signatories to the Mauritius Convention on transparency in arbitration. She also referenced the low level of public interest in those cases where efforts are made to provide more insight into what is going on in the hearing rooms where investor-state disputes are decided. She pointed out that views of the live-stream of hearings at the International Centre for Settlement of Investment Disputes (ICSID) in Washington are very low in number. Perhaps the existence of such initiatives provides comfort, even though state and public engagement is low. If the state parties to this type of case continue to be resistant to participation, it does not suggest that, longer-term, these initiatives are likely to bear fruit.
- Finally, Elinor addressed the question of third party funding in arbitration matters and the extent to which disclosure of funding arrangements is either required, expected, or relevant to the matters before a tribunal. Does the knowledge that a case is funded provide a ‘halo effect’ confirming the bona fides and putative merits of the funded party’s case? Or does disclosure trigger a wave of satellite or collateral disputes relating to potential conflicts of interest between the arbitrators and the funder, or concerning whether the existence of a funding arrangement automatically requires provision of security for costs? This is an area that remains generally under-regulated. There is a distinction of approach between those institutions which require disclosure of the existence of a funding arrangement and those which leave it to the discretion of the tribunal.
Lively discussion between the panellists and some interesting interventions from the attendees brought the event to a close. The fundamental conclusion, perhaps, being that transparency initiatives that are motivated by good intentions can have a number of unintended negative consequences and should, therefore, be approached with caution.
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