As most arbitrations are confidential, the publication of ICC arbitration awards has historically been uncommon.
In January 2019, however, the ICC International Court of Arbitration adopted changes to its practice that will soon be implemented. In this regard, the ICC released an updated Note to the Parties and Arbitral Tribunals. Its main purposes were to adapt its policies in order to provide more transparency and to further increase efficiency.
In order to increase transparency, the ICC Secretariat focused on two main measures:
I. Providing More Information on ICC Arbitrations
The ICC Secretariat will be adding new types of information for publication on the ICC Court of Arbitration’s website from 1 July 2019. Under the previous rule, which itself went into effect only on 1 January 2016, information published was exclusively regarding the composition of current ICC arbitration tribunals. Under Paragraph 36, information on the sector of industry involved, and about counsel representing parties, will now also be publicly reported:
For arbitrations registered as from 1 July 2019, the Court will also publish on the ICC website the following additional information: (vi) the sector of industry involved and (vii) counsel representing the parties in the case
Paragraph 37 of the Note states that publication will occur once the Terms of Reference have been transmitted to, or approved by, the Court, and will be updated when legal counsel changes:
This information will be published after the Terms of Reference have been transmitted to, or approved by, the Court and will be updated in the event of a change in the arbitral tribunal’s composition or party representation (without however mentioning the reason for the change).
In addition, under Paragraph 38, this information will remain on the ICC’s website indefinitely:
This information will remain on the ICC website after the closure of the arbitration unless the concerned individual withdraws his/her consent in accordance with applicable data protection regulations.
II. Publication of ICC Arbitration Awards
The ICC also takes a big step towards transparency by providing for the potential publication of all ICC arbitration awards made as from 1 January 2019. However, there is a time lapse criterion of at least two years after their notification under Paragraph 43:
The Secretariat will inform the parties and arbitrators, at the time of notification of any final award made as from 1 January 2019, that such final award, as well as any other award and dissenting or concurring opinion made in the case, may be published in its entirety no less than two years after the date of said notification. The parties may agree to a longer or shorter time period for publication.
The ICC indicates that it believes this will facilitate the development of trade worldwide:
Publicising and disseminating information about arbitration has been one of ICC’s commitments since its creation and an instrumental factor in facilitating the development of trade worldwide.
While this is debatable, it will certainly make ICC arbitral jurisprudence more accessible and should be a boon to arbitration counsel.
There are opt-out provisions in Paragraph 43 by which any party may at any time object to the publication of the award:
At any time before publication, any party may object to publication or require that any award be in all or part anonymised or pseudonymised, in which case the award will not be published or will be anonymised or pseudonymised.
Also, the parties may choose for the publication of a redacted version of the award. Moreover, the parties may agree to a longer or shorter time-period for the award’s publication.
When a confidentiality agreement covers certain aspects of the arbitration or of the award, then publication will be subject to the parties’ consent, according to Paragraph 45 of the Note.
The use of arbitration requires a constant building of trust with its users as the leading method of international dispute settlement.
Beyond the obvious advantages of arbitration such as speed and enforceability, increasing transparency in terms of the counsel serving in arbitrations and the publication of arbitral awards should be a boon to the users of arbitration.
While arbitral jurisprudence is by its nature non-binding, making the decision-making process more transparent must be applauded.
International Chamber of Commerce. ICC issues updated Note providing guidance to the parties. 19 Dec. 2018. Available at: https://iccwbo.org/media-wall/news-speeches/icc-issues-updated-note-providing-guidance-parties/
International Chamber of Commerce. Note to the Parties and Arbitral Tribunal under the ICC Rules of Arbitration. 1 Jan. 2019. Available at: https://cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf
Monika Hartung. Chapter II: The Arbitrator and the Arbitration Procedure, Transparency In Arbitration Institutions’ Scrutiny Of Arbitrators’, in Christian Klausegger, Peter Klein, et al. (eds), Austrian Yearbook on International Arbitration 2018, Manz’sche Verlags- und Universitätsbuchhandlung, pp. 41 – 51