To Publish, or Not To Publish Arbitral Awards: That is the Question…

By Elina Zlatanska

Reprinted from:
ARBITRATION: The International Journal of Arbitration, Mediation and Dispute Management
Vol. 81  No. 1 February (2015)  Sweet & Maxwell pp. 25-37.

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 ARBITRATION
The International Journal of Arbitration, Mediation and Dispute Management

Volume 81 Issue 1 February 2015

ISSN: 0003–7877
Editorial Board
Dr Michael O’Reilly
Editor
Professor Derek Roebuck
Editor Emeritus
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Hew R. Dundas
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To Publish, or Not To Publish Arbitral Awards:
That is the Question …
Elina Zlatanska

1. Introduction
For many years, confidentiality in international commercial arbitration has been taken for
granted and no one questioned its ambit and effectiveness.1 It was only in the 1990s that
the extent of confidentiality in arbitral proceedings became a widely debated topic.2 Since
then, a considerable amount of ink has been spilled on the subject.3 More recently, calls for
increased transparency in the field have added a new dimension to the debate by arguing
that the publication of awards is one of the most significant ways to achieve this.4 Even
though some of the leading arbitrators have recognised the practical importance of publishing
awards and have supported the idea that systematic publication can increase confidence
and transparency in the system as a whole,5 the vast majority of international commercial
arbitral awards are still unpublished or published only sporadically.6
As a result, much of the information concerning international commercial arbitration
and the arbitrators’ decision-making approach is obtained through anecdotal sources7 and
a number of published awards. Currently, there is no uniform practice of publishing awards

1
Confidentiality is generally understood as covering: (1) the very existence of the dispute and the commencement
of arbitral proceedings; (2) the course of the proceedings; and (3) the award.
2
The decision of the Australian High Court, which held that confidentiality is not an essential attribute in arbitration,
came as a great shock to the arbitral community. It cast serious doubts on the nature of confidentiality because it
departed from the long-standing English doctrine establishing an implied duty of confidentiality. See Esso Australia
Resources Ltd v The Honorable Sydney James Plowman [1995] HCA 19. The decision was confirmed shortly after
in Commonwealth of Australia v Cockatoo Dockyard Property Ltd [1995] 1005 NSWLR 662.
3
See generally Arbitration International (1995) and the ICC Bulletin (2009), which dedicated whole issues to the
matter. See also Hans Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration Agreement”
(2000) 11 American Review of International Arbitration 567.
4
For the purposes of this paper, “transparency” should be understood as the access to information about the
decision-making process and publicity of the reasoned awards. The issue of transparency has been mainly addressed
in connection with investment arbitration and while it may seem less compelling in the area of international commercial
arbitration, it should not be disregarded. See Klaus Peter Berger, Creeping Codification of the New Lex Mercatoria
(Alphen aan den Rijn: Kluwer Law International, 2010), p.85; Jan Paulsson, “Cross-Enrichment of Public and Private
Law Dispute Resolution Mechanisms in the International Arena” (1992) 9 Journal of International Arbitration 65;
Cindy Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14
American Review of International Arbitration 121 and Catherine Rogers, “Transparency in International Commercial
Arbitration” (2006) 54 University of Kansas Law Review 1301.
5
See generally, Julian D.M. Lew, “The Case for the Publication of Arbitral Awards” in Jan C. Schultz and Albert
Jan Van den Berg (eds), The Art of Arbitration: Essays on International Arbitration—Liber Amicorum Pieter Sanders
(Alphen aan den Rijn: Kluwer Law and Taxation Publishers, 1982), pp.223–232; William W. Park, “Private
Adjudicators and Public Interest: The Expanding Scope of International Arbitration” (1986) 12 Brooklyn Journal of
International Law 630; Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International
Commercial Arbitration (Alphen aan den Rijn: Kluwer Law International, 1999), pp.188–189; Smit, “Breach of
Confidentiality as a Ground for Avoidance of the Arbitration Agreement” (2000) 11 American Review of International
Arbitration 567, 583; and Alexis Mourre and Alexandre Vagenheim, “Arbitral Jurisprudence In International
Commercial Arbitration: The Case For A Systematic Publication Of Arbitral Awards in 10 Questions” (2009), http:
//kluwerarbitrationblog.com [Accessed December 9, 2014].
6
Jean Francois Poudret and Sébastian Besson, Comparative Law of International Arbitration (London: Sweet &
Maxwell, 2007), p.319 and Alexis Mourre, “The Case for the Publication of Arbitral Awards” in Alberto Malatesta
and Rinaldo Sali (eds), The Rise of Transparency in International Arbitration (New York: JurisNet, 2013), p.64.
7
These include case reports, attorney “war stories” and experience shared at conferences. See Christopher Drahozal,
“Of Rabbits and Rhinoceri: A Survey on Empirical Research in International Commercial Arbitration (2003) 20
Journal of International Arbitration 23. See also Bernando Cremades and Stephen Plehn, “The New Lex Mercatoria
and The Harmonization of The Laws of International Commercial Transactions” (1984) 2 Boston University of
International Law 318 and Joshua Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of
International Arbitral Awards” (2012) 28 Arbitration International 447, 476.

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26 Arbitration

and the existing compilations published by internationally renowned arbitral institutions

have been criticised for being biased and not representative of the whole.8 It has been argued
that sometimes the redaction of the awards is so extensive that it is unclear how the arbitrators
reached their decisions,9 thus the publication becomes somewhat futile. Moreover, there is
a danger of the development of a parallel market for the “unlawful” publication of awards,
either through information leaks or the emergence of “private libraries” of arbitral awards
in law firms benefitting members of an exclusive “club”.10
The aim of this article is to review the advantages and disadvantages of systematic
publication of arbitral awards in order to raise further awareness of the importance of the
subject.11 It will also critically analyse various suggestions for the implementation of
publication mechanisms and the establishment of awards repositories and, finally, make
some suggestions for the future.

2. General Remarks
Privacy and confidentiality12 undoubtedly make arbitration very attractive to the business
community. Confidentiality, in particular, is often cited as one of the most valued components
of international commercial arbitration.13 Nevertheless, whilst the parties have a right to
privacy, which is a direct consequence of the contract to submit their case to a “private” as
opposed to public tribunal, the duty of confidentiality does not always apply automatically.14
Its scope and extent depend on the parties’ choice or the applicable laws and rules.
The existing national laws and arbitration rules, however, are far from settled. They vary
from country to country15 and often have serious flaws.16 Moreover, confidentiality can be
overridden in certain situations17 with the precise reach of the exceptions uncertain and the
8
Christopher Drahozal, “Arbitration by the Numbers: The State of Empirical Research on International Commercial
Arbitration” (2006) 22 Arbitration International 297 and Drahozal, “Of Rabbits and Rhinoceri” (2003) 20 Journal
of International Arbitration 23, 25. See also Alexis Mourre, “Precedent and Confidentiality in International Commercial
Arbitration: the Case for the Publication of Arbitral Awards” in Emmanuel Gaillard and Yas Banifatemi (eds),
Precedent in International Arbitration, International Arbitration Institute Series No.5 (New York: Jurisnet, 2008),
p.39.
9
Colin Y.C. Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a
Repository of Awards” (2005) 1 Asian International Arbitration Journal 175.
10
Martin Hunter, “Publication of Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly
139. See also Hrvoje Sikiric, “Publication of Arbitral Awards” (1997) 4 Croatian Arbitration Yearbook 175.
11
The question of whether published awards should be given a precedential value is beyond the scope of the present
article.
12
Even though the terms “privacy” and “confidentiality” are sometimes used interchangeably, they are in fact
different. The former means that the hearings are held in camera, whilst confidentiality refers to the obligation of the
participants involved in the proceedings not to reveal information regarding the arbitration to strangers. See Julian
Lew, “Expert Report on Esso/BHP v Plowman” (1995) Arbitration International 284. See also Gary B. Born,
International Commercial Arbitration (Alphen aan den Rijn: Kluwer Law International, 2009), pp.2250–2251 and
Amy Schmitz, “Untangling the Privacy Paradox in Arbitration” (2006) 54 University of Kansas Law Review 1214.
13
Julian D.M. Lew et al. (eds), Comparative International Commercial Arbitration (Alphen aan den Rijn: Kluwer
Law International, 2003), p.7. See Christian Bühring-Uhle et al., Arbitration and Mediation in International Business
(Alphen aan den Rijn: Kluwer Law International, 2006), p.108. Other research shows, however, that confidentiality
is not always the most valued attribute of arbitration, see generally Richard W. Naimark and Stephanie Keer, “What
Do Parties Really Want From International Commercial Arbitration?” (2002) 57 Dispute Resolution Journal 78; and
School of International Arbitration, Queen Mary University of London, 2010 International Arbitration Survey:
Choices in International Arbitration (London: Queen Mary, University of London, 2010).
14
Mauro Rubino-Sammartano, International Arbitration Law and Practice (Alphen aan den Rijn: Kluwer Law
International, 2001), pp.799–800.
15
Whilst courts in England, France and Singapore recognise an implied duty of confidentiality, the courts in
Australia, Sweden and US have held that confidentiality depends on the express agreement of the parties.
16
See, e.g. Michael Hwang and Katie Chung, “Defining the Indefinable: Practical Problems of Confidentiality in
Arbitration” (2009) Journal of International Arbitration 642.
17
See Julian Lew who states “[f]rom my own experience, there are many arbitrations which necessitate reference
to other parties or keeping them advised or informed of developments”, Lew et al. (eds), Comparative International
Commercial Arbitration (2003), pp.283–284. See also Valerie Denoix de Saint Marc, “Confidentiality of Arbitration
and the Obligation to Disclose Information on Listed Companies or During Due Diligence Investigations” (2003)
20(2) Journal of International Arbitration 211; Fabrice Fages, “La confidentialité de l’arbitrage à l’épreuve de la
transparence financière” (2003) 1 Revue de l’Arbitrage 5 and Nigel Blackaby, Constantine Partasides, Alan Redfern

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 27

degree of protection subject to changes depending on the context. This makes it unclear
whether confidentiality extends to awards and whether it covers the final outcome or only
the reasoning of awards. Consequently, parties and their lawyers should not automatically
assume that privacy equates to absolute confidentiality of the arbitration itself, the
proceedings and the award.18
It is also important to understand that certain awards may sooner or later find their way
into the public domain. This is the case when a procedure for recognition or enforcement
of an award is initiated under the New York Convention 1958, when there is a challenge
or an appeal against an award in national courts where the proceedings are held coram
publico.19
It is now well established that the unauthorised publication of awards, that is, unilateral
publication by one party, is prohibited and such a breach of confidentiality is subject to the
same sanctions that apply to contractual breaches of confidence.20 On the other hand, it is
widely recognised that the publication of awards, when done in an anonymous manner,
without revealing the names of the parties and sensitive information, does not breach the
confidentiality principle.21 This is notably the case with publications made by arbitral
institutions.22 The arbitral community, however, is still very much divided on this and the
debate over whether publication of awards is advantageous or detrimental to the system
continues.

3. Arguments in Favour of Publication

It is believed that keeping a repository of arbitral awards can serve the wider public interest23
as well as the ultimate self-interest of parties.24 The following sections summarise the most
frequently used arguments in favour of systematic publication and show that a body of
published awards can be beneficial in various ways: for practitioners as well as newly

and Martin Hunter, Redfern and Hunter on International Arbitration, 5th edn (New York: Oxford University Press,
2009), p.138.
18
See generally Claude R. Thompson and Anne M.K. Finn, “Confidentiality in Arbitration: A Valid Assumption?
Proposed Solution!” (2007) 62 Dispute Resolution Journal 76 and L. Yves Fortier, “The Occasionally Unwarranted
Assumption of Confidentiality” (1999) 15 Arbitration International 131.
19
François Dessemontet, “Arbitration and Confidentiality” (1996) American Review of International Arbitration
303. But see Jan Paulsson and Nigel Rawding, who point out in “The Trouble with Confidentiality” (1994) ICC
Bulletin 56, fn.18 that “in many if not most jurisdictions, a third party cannot get a copy of the award from the court”.
For an interesting view on confidentiality in court proceedings related to an arbitration, see V.V. Veeder, “Transparency
of International Arbitration: Process and Substance” in Loukas Mistelis and Julian D.M. Lew (eds), Pervasive Problems
in International Arbitration (Alphen aan den Rijn: Kluwer Law International, 2006), pp.89–102.
20
See Adam Samuel, “The Unauthorized Publication of Arbitral Awards” (1989) Lloyd’s Maritime and Commercial
Law Quarterly 158 and Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration Agreement”
(2000) 11 American Review of International Arbitration 567, 582. For a different view, see Hunter, “Publication of
Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139, 141.
21
Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
pp.188–189; Pieter Sanders, Quo Vadis Arbitration: Sixty Years of Arbitration Practice (Alphen aan den Rijn: Kluwer
Law International, 1999), p.14 and Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration
Agreement” (2000) 11 American Review of International Arbitration 567, 583.
22
See generally Sigvard Jarvin and Yves Derains (eds), Collection of ICC Arbitral Awards/Recueil des sentences
arbitrales de CCI, 1974–1985, Vol.1 (Alphen aan den Rijn: Kluwer Law & Taxation, 1990), Sigvard Jarvin, Yves
Derains and Jean-Jacques Arnaldez (eds), Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de
CCI, 1986–1990, Vol.2 (Alphen aan den Rijn: Kluwer Law & Taxation, 1994), Jean-Jacques Arnaldez, Yves Derains
and D. Haschler (eds), Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de CCI, 1991–1995, Vol.3
(Alphen aan den Rijn: Kluwer Law International, 1997), Jean-Jacques Arnaldez, Yves Derains and D. Haschler (eds),
Collection of ICC Arbitral Awards/Recueil des sentences arbitrales de CCI, 1996–2000, Vol.4 (Alphen aan den Rijn:
Kluwer Law International, 2003), Jean-Jacques Arnaldez and Yves Derains (eds), Collection of ICC Arbitral
Awards/Recueil des sentences arbitrales de CCI, 2001–2007, Vol.5 (Alphen aan den Rijn: Kluwer Law International,
2009) and Jean-Jacques Arnaldez and Yves Derains (eds), Collection of ICC Arbitral Awards/Recueil des sentences
arbitrales de CCI, 2008–2011, Vol.6 (Alphen aan den Rijn: Kluwer Law International, 2013). See also International
Council for Commercial Arbitration (ICCA), Yearbooks on Commercial Arbitration (The Hague: ICCA, 1976–2013).
23
This includes but is not limited to shareholders, policy-making bodies, consumers, members of the judiciary,
etc.
24
Thomas Carbonneau, “Rendering Arbitral Awards with Reasons: The Elaboration of a Common Law of
International Transactions” (1985) 23 Columbia Journal of Transnational Law 579, 607.

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28 Arbitration

qualified arbitrators, often from different legal backgrounds, who will gain greater awareness
of how to apply certain principles and deal with complex procedural issues arising in arbitral
proceedings; for academics who will identify opportunities to carry out research on important
areas which currently remain neglected, and for parties who will gain knowledge to enable
them to make better-informed decisions when selecting arbitrators.

Development of law
To begin with, the international business community needs a stable body of rules.25 Today,
international commercial arbitration increasingly contributes to the development of norms
of commercial usage.26 The insight of arbitrators is, therefore, extremely valuable because
it reaffirms and sometimes even produces procedural and substantive rules,27 which can
then become part of practice and be followed in the future.28 The publication of arbitral
awards can therefore contribute to the uniform and autonomous development of international
arbitration law,29 as well as the lex mercatoria.30 Consequently, the special status of the
international commercial arbitration regime will be enhanced and the process will become
further “a-nationalised”.31

Certainty and predictability

Secondly, international business requires certainty and predictability.32 Arguably, the
publication of awards will increase the foreseeability of outcomes.33 This will help the
parties decide whether it is worth starting arbitration proceedings in the first place. Whenever
the parties realise that their claim is not well founded, they may be discouraged from pursuing
it, and the number of frivolous claims will thus drop. Parties can learn from the mistakes
of others and perhaps will be more inclined to resolve the dispute in an amicable way,
especially when they realise that they may lose.34 In cases where the parties decide to use
arbitration, consideration of previous awards would help their lawyers plan and prepare
more efficiently ahead of arbitration proceedings.35

25
Carbonneau, “Rendering Arbitral Awards with Reasons” (1985) 23 Columbia Journal of Transnational Law
579, 607.
26
Gopalan Sandeep, “New Trends in the Making of International Commercial Law” (2004) 23 Journal of Law
and Commerce 117.
27
For example, arbitrators have developed specialised rules in the areas of conflict of laws, the taking of evidence
and bribery, see Catherine Rogers, “The Vocation of the International Arbitrator” (2005) 20 American University
International Law Review 957, 999–1002.
28
Hans Smit, “Substance and Procedure in International Arbitration: The Development of a New Legal Order”
(1991) 65 Tulane Law Review 1309, 1311.
29
Hans Smit, “The Future of International Commercial Arbitration: a Single Transnational Institution?” (1986)
25 Columbia Journal of Transnational Law 9, 31.
30
See Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
p.189; William Park, “National Law and Commercial Justice: Safeguarding Procedural Integrity in International
Arbitration” (1989) 63 Tulane Law Review 673, 673–674; Klaus Peter Berger, Private Dispute Resolution in
International Business: Negotiation, Mediation, Arbitration Handbook, Vol.II (Alphen aan den Rijn: Kluwer Law
International, 2009), p.317; Pieter Sanders, “Commentary on UNCITRAL Arbitration Rules” in Pieter Sanders (ed.),
Yearbook of Commercial Arbitration, Vol.II (Alphen aan den Rijn: Kluwer Law International, 1977), pp.208–209
and Jean-Michel Jacquet, “Avons-nous besoin d’une jurisprudence arbitrale?” (2010) 3 Revue de l’Arbitrage 448.
31
Lew et al. (eds), Comparative International Commercial Arbitration (2003), pp.659–660. See also Carbonneau,
“Rendering Arbitral Awards with Reasons” (1985) 23 Columbia Journal of Transnational Law 579, 599.
32
Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14 American
Review of International Arbitration 121, 136. See also, Karton, “A Conflict of Interests: Seeking a Way Forward on
Publication of International Arbitral Awards” (2012) 28 Arbitration International 447, 459.
33
Gaillard and Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (1999),
pp.188–189 and Mourre and Vagenheim, “Arbitral Jurisprudence In International Commercial Arbitration” (2009),
http://kluwerarbitrationblog.com [Accessed December 9, 2014].
34
Anjanette Raymond, “Confidentiality, in a Forum of Last Resort? Is the Use of Confidential Arbitration a Good
Idea for Business and Society?” (2005) 16 American Review of International Arbitration 507.
35
This is particularly true for maritime arbitration where published awards are believed to “serve as a guide, not
only for the resolution of disputes, but also as a means of avoiding disputes”, see Society of Maritime Arbitrators,
Inc, “Maritime Arbitration in New York”, http://www.smany.org/sma-pubs.html [Accessed December 9, 2014].

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 29

Consistency
International companies usually rely on numerous contracts between different parties for
their business ventures. The arbitration clauses in these contracts are not necessarily the
same, and this can produce multiple arbitrations arising out of the same transactions. The
risk is that different tribunals may give different solutions on similar issues of fact and law.
Without the publication of awards, it would be impossible to prevent divergent decisions
that can pose a threat to the credibility, the reliability and, ultimately, the authority of
international arbitration. It is expected that consistency will contribute to the uniform
application of rules and promote a better understanding of the process, which will lead to
a better acceptance of the system as a whole.36

Legitimacy
Moreover, the publication of awards will make the system more transparent and fair by
allowing the public to see that justice is done.37 Even though it can be argued that arbitration
is not about doing justice, but rather deciding specific cases, as Hans Smit argues, arbitration
is a social phenomenon and decisions on disputes can have effects on society at large.38 In
other words, a relatively homogeneous body of awards can further promote arbitration as
an efficient and reliable means of settling disputes.39 Thus, if the work of arbitrators is
rendered more visible, the legitimacy of the system will be strengthened: future users of
arbitration will gain a better understanding of the process and will be encouraged to use it,
whilst existing users will be more likely to use it again because they will be convinced they
can get a fair hearing which meets their (reasonable) expectations.40

Education and training

A rapidly changing global economy generates increasingly complex trade relations involving
parties from different parts of the globe. Such a world requires highly skilled arbitrators
who can solve disputes in an expeditious and efficient manner. Unlike law students, who
can see how law is interpreted and applied through case law, students of arbitration are
currently deprived of such a “privilege”. The availability of published awards will help to
train new arbitrators,41 as well as making practising arbitrators more aware of the reasoning
of other arbitrators and of the way in which they applied the laws and rules when faced
with similar situations.42 Furthermore, arbitral tribunals are often composed of arbitrators
who come from different legal backgrounds and who may have different approaches
concerning the application of certain principles. The published awards will offer insight as
to how to apply those principles.43
36
Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14 American
Review of International Arbitration 121, 136.
37
Following the famous expression that “justice should not only be done but should manifestly and undoubtedly
be seen to be done” coined by Lord Hewart CJ in Rex v Sussex Justices Ex p. McCarthy [1924] 1 K.B. 256.
38
Smit, “Breach of Confidentiality as a Ground for Avoidance of the Arbitration Agreement” (2000) 11 American
Review of International Arbitration 567, 580.
39
Pierre Tercier, “La légalité de l’arbitrage” (2011) 3 Revue de l’Arbitrage 663, 633–664.
40
Christopher Kaczmarek, “Public Law Deserves Public Justice. Why Public Law Arbitrators Should be Required
to Issue Written, Publishable Opinions” (2000) 4 Employee Rights and Employment Policy Journal 319 and Naimark
and Keer, “What Do Parties Really Want From International Commercial Arbitration?” (2002) 57 Dispute Resolution
Journal 78, 81.
41
See Alexis Brown, who argues, “Just as future lawyers and judges (at least in common law nations) learn by the
case method, future arbitration counsel and arbitrators could learn from the work of those already established in the
field” in Alexis Brown, “Presumption Meets Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration” (2001) 16(4) American University International Labor Review 1019.
42
Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a Repository
of Awards” (2005) 1 Asian International Arbitration Journal 175, 176.
43
For example, as regards the disclosure of information on appointments to show they are unbiased and impartial
or in relation to security for costs. See Mary Elizabeth Hiscock and William van Caenegem (eds), The

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30 Arbitration

Quality of arbitral awards

The publication of awards, including the names of the arbitrator(s),44 would, presumably,
make them more careful when writing an award45 since they would more meticulously
clarify their analysis and justify their decisions.46 In other words, the publication of awards
is crucial for ensuring high-quality decision-making by arbitrators.47 This may further
stimulate the arbitrators to make novel and creative propositions48 because for the moment
“much of the creative efforts of [the arbitral] tribunals is not generally known”.49 It will
also contribute to better scholarly commentaries that will fill in the gaps between theory
and practice and allow the collection of important data through empirical research.50 This
will lead to the development of a coherent doctrine of authoritative writings that can be
used as guidance in future disputes.51

Neutrality
Another important benefit of the publication of awards is the prevention of conflict of
interests. This is very important since the arbitration field is often described as closed to
newcomers and said to favour repeat players, “especially in more complex matters”.52 It is
true that the pool of arbitrators has expanded in the past two decades but, in reality, it is
usually the same people acting as arbitrators, counsel, experts and commentators. There is
a real concern that arbitrators will favour the parties who appoint them regularly in different
cases because this will guarantee even more appointments in the future. This being so, it is
not surprising that challenges to the impartiality and independence of arbitrators have
increased.53 Even though most of the challenges are just tactical and aimed at sabotaging
the proceedings, they may have a negative impact on the arbitrator’s reputation and parties
may, eventually, lose confidence in the process.

Internationalisation of Law: Legislating, Decision-making, Practice and Education (Cheltenham: Edward Elgar,
2010), p.283 and Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain
a Repository of Awards” (2005) 1 Asian International Arbitration Journal 175, 177.
44
Currently, the practice in international commercial arbitration is not to reveal the names of arbitrators in published
awards. The view of the author is that the names of the arbitrators should be published.
45
Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a Repository
of Awards” (2005) 1 Asian International Arbitration Journal 175, 178. See also Richard Reuben, “Constitutional
Gravity: a Unity Theory of Alternative Dispute Resolution and Public Civil Justice” (2000) 47 UCLA Law Review
949.
46
Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
318. See also Martin Hunter, who praises the Iran-US Claims Tribunal awards, which were valuable to scholars and
students and contributed to the increase in their quality and quantity, in Hunter, “Publication of Arbitration Awards”
(1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139.
47
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 31–32. Thomas Carbonneau, “Arbitral Adjudication: A Comparative Assessment of Its Remedial and Substantive
Status in Transnational Commerce” (1984) Texas International Law Journal 39.
48
Sophie Hornay, “Réputation de l’arbitre et décision arbitrale: Quelques éléments d’analyse économique” (2012)
4 Revue de l’Arbitrage 763.
49
Smit, “Substance and Procedure in International Arbitration” (1991) 65 Tulane Law Review 1309, 1311, 1313.
50
There are various areas of research in arbitration which need further elaboration but they cannot be studied
because of lack of published sources. See Christopher Drazohal and Richard Naimark (eds), Towards a Science of
International Arbitration: Collected Empirical Research (Alphen aan den Rijn: Kluwer Law International, 2005),
p.7. See also David Caron and Lee Caplan (eds), The UNCITRAL Arbitration Rules: Commentary (Oxford: Oxford
University Press, 2013), p.755.
51
Susan Frank, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law
Through Inconsistent Decisions” (2005) Fordham Law Review 1614.
52
Smit, “Substance and Procedure in International Arbitration” (1991) 65 Tulane Law Review 1309.
53
See generally Sam Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a “Real
Danger Test” (Alphen aan den Rijn: Kluwer Law International, 2009), pp.1–287. See also Geoff Nicholas and
Constantine Partasides, “LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish” (2007) 23
Arbitration International 1.

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 31

Integrity and reputation of arbitrators

It is argued that the publication of awards will help prevent instances of misconduct and
misapplication of the law.54 Unlike national courts where there is an appellate institution
which can rectify any misapplication of the law, the review of arbitral awards is not
performed by a superior court. The publication of awards will allow some kind of external
scrutiny and control over the arbitrators’ decision-making or, as Jeremy Bentham puts it
“[p]ublicity is the very soul of justice. It is the keenest spur to exertion, and the surest
of all guards against improbity. It keeps the judge himself, while trying, under trial.”55
Besides, the publication of awards under arbitrators’ names will assist them in building
their reputation which they require in order to become established in the field and to be
recognised by their peers.56 This is very important because it will ensure respect and
reliability amongst the members of an arbitral tribunal.57

Equality of arms
Purportedly, one of the great advantages of arbitration is that parties can choose the most
suitable individual to decide their case. In reality, however, information about arbitrators
is usually scarce58 and, more often than not, the choice is made by an institution to which
parties have submitted their dispute and not the parties themselves.59 Access to published
awards under one’s name will help arbitrators build a track record, which will allow parties
to make well-informed decisions as to who is the best-suited individual to deal with their
case.60 Moreover, publication of awards will remove the inequalities between “one-shotters”
and “repeat players” who happen to be parties to the same dispute. In arbitration, new users
have, by default, limited or no information about how to proceed and what to expect from
the arbitration process. As a result, they are in a less favourable position when faced with
experienced parties who have been involved in numerous arbitration proceedings, especially
when selecting arbitrators.61

Status of arbitration institutions

Finally, it has been said that publication of awards rendered under the auspices of a given
institution would enhance its reputation. Parties not only will have a better idea of which
institution is the most appropriate to hear their specific dispute, but also will have more

54
Chang-fa Lo, “On a Balanced Mechanism on Publishing Arbitral Awards” (2008) 1 Contemporary Asia Arbitration
Journal 244.
55
Jeremy Bentham in John Bowring (ed.), The Works of Jeremy Bentham, Vol.IV (Edinburgh: William Tait, 1843),
p.316.
56
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 31–32. See also Hornay, “Réputation de l’arbitre et décision arbitrale” (2012) 4 Revue de l’Arbitrage 761.
57
Michael Mcllwrath and John Savage, International Arbitration and Mediation: A Practical Guide (Alphen aan
den Rijn: Kluwer Law International, 2010), p.252.
58
Arbitral institutions have started to reveal more information about arbitrators sitting on their panels. See, e.g.
the London Court of International Arbitration (LCIA) which published extracts of decisions on challenges to arbitrators
in (2011) 27(3) Arbitration International 283.
59
Lew et al., Comparative International Commercial Arbitration (2003), pp.32–33.
60
Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
319, 321.
61
See the difference between “repeat players” and “one-shotters” in Mark Galanter, “Why the ‘Haves’ Come out
Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law and Society Review 98, 98–100. See also Raymond,
“Confidentiality, in a Forum of Last Resort?” (2005) 16 American Review of International Arbitration 503.

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confidence that a given institution can handle their case in a reliable and careful manner.62
This may also promote “healthy” competition amongst the arbitral institutions.63

4. Arguments against Publication

A number of well-grounded arguments have been put forward against the publication of
awards. They are based on the premise that confidentiality derives from party autonomy
and extends to all parts of the arbitration, including the award. In other words, the award
is simply a matter of a private contract between the parties64 and, as such, should not be
disclosed to the public.

Erosion of arbitration
First, by allowing a systematic publication of awards, arbitration will lose one of its key
hallmarks, namely, confidentiality.65 As a result, parties and their witnesses may become
reluctant to admit certain facts during the proceedings and less prone to seek a settlement
through negotiation.66 This may, in addition, impair the co-operation and good relations
between businesses that are vital for their growth.67 The main concern is that arbitration
will become very similar to litigation and this may deter parties from using it to settle their
disputes.68 Therefore, arbitration should be seen as a single process and the award cannot
be considered separately as something requiring less confidentiality.69

Protection of technical and business data

Parties may fear that they will no longer be able to safeguard certain types of sensitive
information such as, inter alia, client lists, trade secrets, know-how, intellectual property
and research and development. Having control over such information protects parties from
competitors who would like to obtain such information in order to use it for their own
benefit.70 Moreover, it has been argued that even when the names of the parties and all other
information that may harm their interests are deleted during the redaction process, it is still
possible to identify them.

62
Lew, “The Case for the Publication of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration
(1982), pp.223–232.
63
See Catherine Rogers, who argues that there are also severe information asymmetries that prevent the market
for arbitrator services from being fully competitive, in Rogers, “The Vocation of the International Arbitrator” (2005)
20 American University International Law Review 957, 999–1002.
64
Jerzy Jakubowski, “Reflections on the Philosophy of International Commercial Arbitration and Conciliation”
in Schultz and Van den Berg (eds), The Art Of Arbitration (1982), p.182. See also Lew, “The Case for the Publication
of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration (1982), p.225.
65
Hunter, “Publication of Arbitration Awards” (1987) 3 Lloyd’s Maritime and Commercial Law Quarterly 139,
142, where he argues that “erosion of the right to confidentiality will, in time, serve only to erode the value of the
arbitration process to the international business community”. See also Delissa Ridgway, “International Arbitration:
The Next Growth Industry” (1999) Dispute Resolution Journal 52.
66
Gu Weixia, “Confidentiality Revisited: Blessing or Curse in International Arbitration” (2004) 15 American
Review of International Arbitration 632. See also Amanda Norris and Katina Metzidakis, “Public Protests, Private
Contracts: Confidentiality in ICSID Arbitration and the Cochabamba Water War” (2010) Harvard Negotiation Law
Review 56.
67
Norris and Metzidakis, “Public Protests, Private Contracts: Confidentiality in ICSID Arbitration and the
Cochabamba Water War” (2010) Harvard Negotiation Law Review 60.
68
Ioanna Thoma, “Confidentiality in English Arbitration Law: Myths and Realities about its Legal Nature” (2008)
25 Journal of International Arbitration 313, 314; Gu Weixia, “Confidentiality Revisited” (2004) 15 American Review
of International Arbitration 630.
69
Alan Shilston, “Should Arbitration Awards be Made Public?” (1993) 59 Arbitration 57.
70
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 459.

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 33

Additional cost and delay

Furthermore, some argue that arbitration will lose its efficiency due to the added costs and
time of issuing an award suitable for publication. The extra costs will include fees for both
the arbitrators and counsel who will be involved in the preparation of such an award and
the additional work for ensuring that the text does not contain any confidential information.71
Some commentators go as far as to predict that international commercial arbitration will
eventually crumble under “its own weight and size”72 and will give way to another alternative
dispute resolution (ADR) mechanism that will be able to offer quick and effective settlement
of trade-related disputes.73

Distinctive features of international commercial arbitration

A distinction has been drawn between international commercial arbitration and other types
of international arbitration that may require greater transparency.74 In reality, the term
transparency does not have a settled meaning and creates more problems than it solves.75
Besides, the adoption of new transparency provisions does not guarantee that arbitrations
will be resolved in a more just or predictable way.76 Whilst investment arbitration suffers
from widespread challenges to arbitrators and is criticised as “unfair”, this is not applicable
in the context of commercial arbitration (at least for now).77 Unlike investment, sports or
public international arbitration, which develop rules through a relatively homogeneous
decisions, international commercial arbitration does not need a body of coherent law because
arbitrators mostly apply domestic laws that have been sufficiently developed.78

It is all about rough justice

In practice, the majority of awards will not be of much value. This is because disputes
usually involve a unique set of facts and the decisions have to take into account a diversity
of factors.79 Consequently, they will not serve as a useful guide for future disputes as it is
impossible to draw general conclusions from them.80 Accordingly, awards are addressed
only to the parties and limited to “doing justice” in the particular situation.81 In other words,
the function of arbitration is to “decide, not to teach”82 and arbitrators’ decisions should not

71
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 483.
72
Fali Nariman, “The Spirit of Arbitration—The Tenth Annual Goff Lecture” (2000) Arbitration International
263–264.
73
For an overview of the most frequently used ADR mechanisms, see Jason Crook, “What is Alternative Dispute
Resolution (ADR)?” in Julio César Betancourt (ed.), What is Alternative Dispute Resolution (ADR)? (London: CIArb,
2010).
74
Caron and Caplan (eds), The UNCITRAL Arbitration Rules: Commentary (2013), p.756.
75
Anibal Sabater, “Towards Transparency in Arbitration (A Cautious Approach)” (2010) 5 Publicist 53.
76
Sabater, “Towards Transparency in Arbitration (A Cautious Approach)” (2010) 5 Publicist 53.
77
Karton, “A Conflict of Interests” (2012) 28 Arbitration International 447, 475.
78
Gabrielle Kauffman-Kohler, “Arbitral Precedent: Dream, Necessity or Excuse?” (2007) 23(3) Arbitration
International 376.
79
Lew, “The Case for the Publication of Arbitral Awards” in Schultz and Van den Berg (eds), The Art of Arbitration
(1982), p.225.
80
Shilston, “Should Arbitration Awards be Made Public?” (1993) 59 Arbitration 57.
81
Buys, “The Tensions between Confidentiality and Transparency in International Arbitration” (2003) 14 American
Review of International Arbitration 121, 135. But see Peter Cresswell who argues that “any award will affect the
business and people” in “The Future of Arbitration in the Changing World of Dispute Resolution” (2013) 79(3)
Arbitration 294.
82
Nariman, “The Spirit of Arbitration—The Tenth Annual Goff Lecture” (2000) Arbitration International 262.
See also Fali Nariman in Albert Jan Van den Berg (ed.), Quo Vadis Arbitration? 50 Years of the New York Convention:
ICCA International Arbitration Conference, ICCA Congress Series, Dublin, 2009, Vol.14 (Alphen aan den Rijn:
Kluwer Law International, 2009), p.635.

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34 Arbitration

be constantly scrutinised because “[u]nlike a judge, an arbitrator is neither publicly chosen

nor publicly accountable”.83

Impact on parties’ reputation

Moreover, information about the dispute and the arbitration may jeopardise the parties’
reputation, especially following a loss that may have an adverse effect on future business
ventures. The publication of an award may lead to further disputes against the losing party
in similar cases, who may suffer for a long time and incur further economic loss.84

Proliferation of literature
Also, there is a plethora of publications, including textbooks, journal articles and guidelines,
publicising information and analysing current issues in international commercial arbitration.85
At the same time, the number of published awards has steadily increased.86 The dissemination
of information has been further eased by the internet and now many of the publications are
available in electronic form. Consequently, it may be considered that there is abundant
information circulating in the arbitration arena and through experience sharing at conferences
and seminars. The requirement for greater transparency is thus fulfilled.

Risk for the business of arbitral institutions

Moreover, if an institution decides to systematically publish awards, its expenses will
increase, which will entail an increase in the cost of the service provided. The money will
be needed for keeping a repository of arbitral awards, which can turn out to be very expensive
for an institution involved in hundreds of cases annually.87 The institution will also need to
employ more staff and will need more space to store hard copies of the awards. More
importantly, there is a risk of “flight” from institutions allowing systematic publication of
awards in favour of other forums that safeguard the principle of confidentiality.88 This may
cause a loss of market share because those institutions will become less attractive in the
eyes of arbitration users.

5. In Search of a Solution
The arguments for and against the publication of awards often take an extreme position. At
one end of the spectrum lies the idea that awards can transcend the limited context of the
dispute at hand and become a “public good” similar to court judgments.89 At the other end
is the view that the current regime protects parties’ interests and rights and the publication
of awards without their consent will only have a detrimental impact on international
commercial arbitration practice. In the search for a middle ground, scholars have suggested
the following mechanisms.

83
See Kaczmarek, “Public Law Deserves Public Justice” (2000) 4 Employee Rights and Employment Policy Journal
319, 328.
84
See Sikiric, “Publication of Arbitral Awards” (1997) 4 Croatian Arbitration Yearbook 175, 185–186; and Paulsson
and Rawding, “The Trouble with Confidentiality” (1994) ICC Bulletin 50.
85
Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards” (2012)
28 Arbitration International 447, 475.
86
Dora Marta Gruner, “Accounting for the Public Interest in International Arbitration: The Need for Procedural
and Structural Reform” (2003) 41 Columbia Journal of Transnational Law 959.
87
Ong, “Confidentiality of Arbitral Awards and the Advantage for Arbitral Institutions to Maintain a Repository
of Awards” (2005) 1 Asian International Arbitration Journal 175, 179.
88
Patrick Neill, “Confidentiality in Arbitration” (1996) 12 Arbitration International 287, 315–316. See also, in
the context of maritime arbitration, Petros Tassios, “Choosing the Appropriate Venue: Maritime Arbitration in London
or New York?” (2004) 21 Journal of International Arbitration 359.
89
Rogers, “The Vocation of the International Arbitrator” (2005) 20 American University International Law Review
957, 999.

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 35

Automatic mechanism
The first proposal establishes a mechanism which requires the parties themselves to identify
confidential information which they would not like to see published. The arbitrator will
then produce two arbitral awards: one will contain all the confidential information and a
second one will be edited to remove all sensitive information. The former will be delivered
to the parties whilst the latter will be automatically published.
The benefits of this mechanism are twofold. The parties will be involved in the process
of deciding what to include and exclude and arbitrators, rather than administrative staff
working for an arbitral institution, will perform the redaction of awards based on parties’
objections.90 On the other hand, the issuing of such an award will turn out to be more costly
and will take more time, and the question of who will pay for the additional costs arises.

Uniform award template

Another suggestion is that all arbitral awards should be divided into three parts: (1)
description of the facts; (2) procedural issues; and (3) the reasons and the decision. The
adoption of such a format will facilitate the quick and efficient sanitation of awards because
the different parts can be easily edited to protect parties’ interests and sensitive information.
As with the automatic mechanism, the parties will be given the text of the award before
publication and they can raise further objections.91
Whilst such a solution may remove the problems connected to additional costs and delay
when preparing the award, it seems very implausible to impose such a template on arbitrators
all over the world, who have entirely different writing styles and who change their own
style from one award to another.

Centralised body in charge of publication

The creation of a transnational arbitration institution was first proposed by Hans Smit. He
argued that the interests of international commercial arbitration cannot be served by a
constantly growing number of arbitral institutions, each of which has different rules and
processes.92 A somewhat similar proposition has been advanced in relation to the publication
of awards. It has been suggested that a public regulatory body in charge of overseeing and
regulating arbitral institutions and keeping a depository of arbitral awards, statistics and
other arbitration-related information should be established. Such an international institution
has to be created by a new treaty or by amending the New York Convention.93
The negotiation and adoption of a new international treaty will take a great deal of time
and it is very unlikely to have the same success as the New York Convention. Also, it is
difficult to imagine that all the signatories of the Convention will agree on changing the
existing text.94 Moreover, the creation of an international arbitral institution raises more
questions than it solves. Which country will host such a permanent body? Who will be in
charge of it? Who will pay for its constitution? Who will pay the staff who will work there?

90
Lo, “On a Balanced Mechanism on Publishing Arbitral Awards” (2008) 1 Contemporary Asia Arbitration Journal
244, 247–248.
91
See Karton, “A Conflict of Interests: Seeking a Way Forward on Publication of International Arbitral Awards”
(2012) 28 Arbitration International 447, 476, 479–480.
92
Smit, “The Future of International Commercial Arbitration” (1986) 25 Columbia Journal of Transnational Law
9, 29–30.
93
Gruner, “Accounting for the Public Interest in International Arbitration” (2003) 41 Columbia Journal of
Transnational Law 959, 961–963.
94
For a full list of the countries who have signed the New York Convention, see http://www.uncitral.org [Accessed
December 9, 2014].

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36 Arbitration

Online information system

It has been argued that published awards can be made available through an online database
similar to UNCITRAL’s “Case Law on UNCITRAL Texts” (CLOUT),95 whose purpose is
“to enable judges, arbitrators, lawyers, parties to commercial transactions and other
interested persons to take decisions and awards relating to those texts into account in
dealing with matters within their responsibilities and to promote the uniform
interpretation and application of those texts”.96
Such a mechanism will remove all the difficulties associated with the keeping of hard copies
by arbitral institutions and will facilitate access to information because it can be easily
accessed anywhere in the world. Nevertheless, this does not seem to solve the problem of
the fragmentation of arbitral awards, which are published on different websites and in
different journals. This exacerbates the conducting of research and undermines the
contribution of past awards to a uniform interpretation and application of the rules.

6. Suggestions for the Future

All of the proposed solutions have another significant flaw. They deal only with part of the
problem and leave aside the issues of: (1) how to protect parties from unpleasant surprises
when they have not expressly contracted for confidentiality or the rules applicable to their
arbitration do not govern the duty of confidentiality; and (2) how to facilitate the entry of
newcomers to arbitration practice. In light of this, the present article suggests that action
needs to be taken on many different levels.
First, due to the controversial results of the research conducted to date,97 more empirical
studies need to be carried out in order to better understand what parties expect when they
go to arbitration and whether confidentiality is still highly valued. This can be done by a
leading learned body such as the Chartered Institute of Arbitrators (CIArb), which has a
long tradition of promoting arbitration by means of high-quality research and publications.98
Secondly, institutions which offer training programmes, including CIArb, whose courses
are among the most renowned in the world, can make further efforts to remove barriers to
entry to the field of arbitration. Students in the later stages of their courses need to be able
to obtain first-hand knowledge and a better understanding of the arbitrator’s role and
decision-making power before embarking upon a career in arbitration. This can be done
through the development of pupillage schemes whereby prominent members sitting on
arbitration panels can become mentors to newly qualified arbitrators as well as provide
them with access to past awards.
Furthermore, the arbitral institutions need to amend their rules to include express
provisions as to the publication of awards with reasons and also provide model clauses
dealing with confidentiality before and after the award is rendered.99 Institutions that have
some publishing experience should publish guidelines for the publication of awards that

95
Emmanuel Jovilet, “Access to Information and Awards” (2006) Arbitration International 271. See also Mourre
and Vagenheim, “Arbitral Jurisprudence In International Commercial Arbitration” (2009), http://kluwerarbitrationblog
.com [Accessed December 9, 2014].
96
United Nations General Assembly, CLOUT Userguide (2010) A/CN.9/SER.C/GUIDE/1/Rev.2, http://www
.uncitral.org/uncitral/en/case_law.html [Accessed December 9, 2014].
97
See Lew et al. (eds), Comparative International Commercial Arbitration (2003), p.7; and Bühring-Uhle et al.,
Arbitration and Mediation in International Business (2006), p.108. And see generally Naimark and Keer, “What Do
Parties Really Want From International Commercial Arbitration?” (2002) 57 Dispute Resolution Journal 78; and
School of International Arbitration, Queen Mary University of London, 2010 International Arbitration Survey:
Choices in International Arbitration (2010).
98
See generally Tony Marks and Julio César Betancourt, “The Chartered Institute of Arbitrators” in Julian D. M.
Lew et al. (eds), Arbitration in England, with chapters on Scotland and Ireland (Alphen aan den Rijn: Kluwer Law
International, 2013), pp.75–88.
99
Hwang and Chung, “Defining the Indefinable” (2009) Journal of International Arbitration 642, 644.

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 To Publish, or Not To Publish Arbitral Awards: That is the Question … 37

others can follow. The efforts of the Milan Chamber of Commerce to that effect are
commendable and serve as a useful example.100
Last but not least, it would also be desirable for the international arbitral community to
reach a consensus on the value of the duty of confidentiality and whether it presents a
genuine obstacle to systematic publication of awards.101 It is advisable that uniform standards
for the application of the duty of confidentiality be developed. This can be done by way of
guidelines. The most appropriate venue appears to be CIArb.102 Given the broad acceptance
of CIArb’s Guidelines covering other areas in international commercial arbitration, which
have been particularly problematic, and their extensive use in proceedings, it can be expected
that a new set of Guidelines on the Duty of Confidentiality in International Arbitration will
be fully endorsed. The aim of the guidelines will be not only to clearly define the term
confidentiality but also to set the limits on the principle. This is necessary in order to establish
to whom it applies, what sanctions can be sought in cases of breach and whether it extends
to the whole award or just parts of it.

7. Concluding Thoughts
International commercial arbitration is a dynamic and constantly evolving process. The
protection of confidentiality is without a doubt essential for the smooth functioning of
arbitration proceedings. However, confidentiality, whilst considered to be one of the
cornerstones of arbitration, is “not reliable”.103 Having a relatively small pool of arbitrators
and counsel as well as limited information on what exactly happens in arbitration can
jeopardise the system as a whole in the long run. Balancing the parties’ private interests
with the publication of reasoned awards is not an easy task. But if we want to promote
international commercial arbitration as an efficient and reliable method for settling business
disputes, information needs to be made available to everyone who has an interest in it or
as Fouchard once put it:
“If the international community of merchants aspire to give itself an autonomous
system of law, this law has to be made known to all those who have an interest in it:
the arbitrators should not resemble the ancient pontiflex of antique Rome, who jealously
kept the knowledge of law for themselves and with it the religious and political
power.”104

100
See, e.g. Milan Chamber of Commerce, Guidelines for Anonymous Publication of Arbitral Awards (Milan:
Milan Chamber of Commerce and Università Carlo Cattaneo, n.d.), http://www.camera-arbitrale.it/Documenti
/guidelines_anonym-aw.pdf [Accessed December 9, 2014].
101
Kyriaki Noussia, Confidentiality in International Arbitration: A Comparative Analysis of the Position under
English, US, German and French Law (Heidelberg: Springer, 2010), p.181.
102
A full list of CIArb Guidelines, Protocols and Rules is available at http://www.ciarb.org/resources [Accessed
December 9, 2014].
103
Paulsson and Rawding, “The Trouble with Confidentiality” (1994) ICC Bulletin 48.
104
Klaus Peter Burger, The Creeping Codification of Lex Mercatoria, citing Philippe Fouchard, L’arbitrage
commercial international (Alphen aan den Rijn: Kluwer Law International, 2010), p.85.

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