Publication of Awards: “Promising Future Standard or Unfortunate Transparency Hype?”
The very first joint conference of Young ITA and the Young Austrian Arbitration Practitioners (YAAP), organized by Andreas Schregenberger, Alexander G. Leventhal, Lisa Beisteiner and Christian Koller was held under the title “Publication of Awards: ‘Promising Future Standard or Unfortunate Transparency Hype?’” in Vienna on 20 February 2020, on the eve of the annual Vienna Arbitration Days.
Following introductory remarks by Natascha Tunkel (KNOETZL, Vienna), two panels consisting of lawyers with diverse backgrounds addressed potential advantages and concerns related to the publication of arbitral awards in commercial arbitration.
The first panel, moderated by Andreas Schregenberger (GABRIEL Arbitration, Zurich), dealt with “Chances and Risks”.
Ryan Manton (Three Crowns, Paris) examined some of the risks that may follow from the greater publication of awards, focusing on the preferences of users of arbitration. He noted that 73% of the respondents to Queen Mary University’s 2018 International Arbitration Survey considered confidentiality to be either “very important” or “quite important”, and he suggested that the greatest risk of pushing parties towards publishing more awards is that the views of those who choose, and therefore sustain, international commercial arbitration will be ignored. Dr Manton acknowledged the possibility that users’ preferences may change over time and observed that some institutions, such as the ICC following the introduction of its opt-out procedure for the publication of awards in its 2019 Note to Parties, appear to be seeking to nudge users in that direction. But he also raised the point that some of the main arguments in favour of publishing awards raised difficult questions; for example, the argument that publishing awards would satisfy a public interest for greater transparency obscured difficult questions about who determines the public interest, especially in circumstances where some sovereign States and State-owned entities themselves appear to prefer maintaining the confidentiality of awards.
As to the chances, Katia Rener (Wenger & Vieli, Zurich) noted that publicizing awards might contribute not only to an increase in transparency in international commercial arbitration but also to a development of the law – especially with regard to specific (arbitration-related) procedural matters or the interpretation of international conventions or trade usages. Moreover, it might provide a certain degree of quality assurance by essentially holding arbitrators accountable for their decisions and subjecting them to an external “peer review”. Finally, Dr Rener noted that publicizing awards might also serve an educational purpose by providing a database from which arbitrators could draw inspiration from.
The second panel, moderated by Tamara ManasijeviÄ (ARP, Vienna) aimed to explore “Different Perspectives on the Publication of Awards”.
From the academic perspective, Markus P. Beham (University of Passau) commented that a greater window into practice would be an invaluable asset, particularly in certain types of recurring factual scenarios. According to Dr Beham, the question of “representativeness” of the sample of published awards is less important than the reasoning of the individual award. He concluded by adding that, historically, it might be important to recognize that the core concerns in the development of this dispute resolution method were arbitrator selection and trust, not confidentiality.
According to Joseph Schwartz (WAGNER Arbitration, Berlin), from a decision-making perspective, the publication of commercial arbitral awards remains desirable despite the obvious challenges. While case law and legal interpretation of the respective substantive law will be available in many jurisdictions (in the form of national court decisions), the publication of commercial arbitral awards still seems highly relevant for the development of the law with regard to the interpretation of arbitration laws and rules of procedure. Furthermore, arbitral awards would partake in the development of the substantive law, particularly in areas in which disputes are commonly resolved through arbitration. Dr Schwartz added, however, that safeguarding a neutral and representative picture seems challenging in an environment where parties decide about the publication of awards themselves and the self-regulation through appeal proceedings does not occur.
Approaching the issue from a client’s perspective, Maria Gritsenko (VEON, Amsterdam) commented that she does not see the advantages of systemic publication of arbitral awards, especially given the practical difficulties of suitably anonymizing an award. At the same time, she acknowledged that the international arbitral community (including its clients) would benefit from a wider publication of the (anonymized) decisions on issues proper to the arbitral process (such as arbitrator challenges, disclosure matters, security for costs). She added, however, that it is also important to preserve the right to disclose an award (in subsequent or connected proceedings, for example), subject to adequate control by a court.
Providing insights into an institutional approach, Klaudia Dobosz (Vienna International Arbitral Centre/VIAC, Vienna) pointed out that Article 41 of the Vienna Rules allows the Board and the Secretary General to publish anonymized summaries or extracts of awards – and other decisions of the arbitral tribunal – in journals or VIAC’s own publications, unless a party has objected to publication within 30 days of service of the award. Based on this provision, VIAC selected 60 arbitral awards (out of 1,600) highlighting (mainly) procedural and occasionally substantive issues that have arisen and evolved from 1975 to 2015 and which have been considered to be of great avail for the arbitration community. With a 2nd edition planned, this publication has and will continue to respond to the increasing calls of parties, counsel and arbitrators alike for greater transparency in commercial arbitration proceedings in the form of enhanced accessibility of arbitral awards and their content and reasoning.
Finally, in his closing remarks, Christian Koller (University of Innsbruck, YAAP co-chair) also referred to a potential competition to arbitration in the form of specialized courts and judges, which might increase in the future because of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The publication of arbitral awards of a high standard might play a significant role in counter-balancing this competition.