Precedent and development of law: Is it time for greater transparency in International Commercial Arbitration?

Precedent and development of law: Is it time for greater transparency in International Commercial... Abstract International Commercial Arbitration (ICA) continues to be widely chosen as the preferred method of dispute resolution for parties, particularly where matters cross international boundaries. However, with the divergence of cases from open courts to predominantly closed arbitration hearings, questions of transparency have, and will continue to arise. This article is situated within the framework of transparency and asks whether confidentiality should still hold to be the norm in arbitration. Additionally, questions are asked around the development of law and operation of precedent in ICA. Indeed, what this article ultimately seeks to achieve is evaluating whether arbitration can serve as a mechanism for generating privately made law. 1. INTRODUCTION International Commercial Arbitration (ICA) has achieved considerable success as a highly efficient mechanism employed in the resolution of transnational business disputes.1 Its origin arises from an agreement between private parties to resolve any disputes between them; as such, authority stems from the contractual autonomy of individuals to order their affairs.2 With the rise of ICA, there has been a discernable decline in the number of commercial disputes appearing in courts of the leading common law jurisdictions.3 The most notable exception to this is the England and Wales Commercial Court which has indeed continued to see an increasing caseload.4 Unsurprisingly, questions have and continue to be raised regarding the place of confidentiality,5 development of law,6 and the place of precedent, if at all any in ICA.7 This article will critically examine the aforementioned topics within the broader framework of transparency in ICA; albeit development of law will take a secondary focus. Section 2 will critique what can be seen as a natural association of confidentiality and arbitration8 and in doing so, will seek to justify the need for greater frequency in publication of ICA awards. Section 3 will then proceed in examining whether precedent currently exists in both a theoretical and practical form. Section 4 will then examine whether there is a place for precedent in ICA. Indeed, this author aligns with the idea that whilst there may be scope for precedent in ICA, it would be very different from its conventional common law understanding.9 The evaluation offered in this article should not be interpreted as identifying a crisis in ICA; perhaps the questions raised by this piece are better seen as part of a broader question of confidence in ICA.10 Ultimately, this article concludes that although meaningful change is needed in ICA to achieve greater transparency, its realization will be largely contingent on support by ICA users.11 2. CONFIDENTIALITY IN ICA 2.1 Problems with confidentiality in ICA It cannot be denied that the confidential nature of ICA has been a drawcard for some to move their disputes away from the traditional open court system. However, amongst parties and arbitral institutions, this appears to have led to a tendency to automatically associate confidentiality with arbitration.12 This unfavourable development is only further complicated by the presumption that confidentiality is a necessary corollary to the privacy of proceedings.13 Indeed, it is quite important to distinguish between the two. Whilst the former revolves around restrictions on the publication of proceedings, awards and evidentiary documents which can vary in degree and depend on discretion,14 the latter focuses on the nature of closed proceedings which is a relatively absolute determination.15 Conflating the two makes any discussion of introducing minimum publication standards in ICA particularly difficult, as it may be viewed as an attack undermining privacy, which is arguably one of ICA’s key enticements.16 Admittedly, whilst confidentiality has nevertheless played a part in ICA’s success, it has come at the cost of accepting an obscure, or perhaps more accurately, an opaque decision-making process.17 Whilst confidentiality is still important,18 the relative importance of confidential proceedings has diminished in comparison to other key features of arbitration.19 Thus, it is time for serious consideration as to whether confidentiality should remain the status quo in ICA proceedings. Greater transparency and publication in ICA cannot be meaningfully brought about without offering a sound justification for doing so. This begins with accepting that it is not just the parties to the arbitration proceeding which are affected or interested in the matter. The confidential nature of ICA has implications for commercial certainty,20 for future litigants,21 public confidence,22 and also for government.23 Indeed, commercial certainty involves not only how contractual provisions are construed or whether agreements are upheld, but also additionally involves a reputational aspect. The very sanctity of a contract may be compromised where a party blatantly disregards contractual obligations because of a lack of fear for reputational harm, given the nature and content of proceedings remains undisclosed.24 Self-determination over contractual formation and arbitration agreements can no longer be used to justify blanket secrecy,25 alongside the excuse of needing to protect business and trade secrets.26 Confidential information which is not necessary to comprehending a ruling can be redacted where needed,27 and awards can be anonymized.28 Whilst some disprove of using anonymity, arguing ‘open justice is a hallmark of democratic society’,29 one should be cautious to not overregulate the freedom of private parties. There is both a place and need for a balance between publicity and confidentiality. Admittedly, there is an attempt to balance publicity and confidentiality; however, it is a balance that remains significantly skewed in favour of the latter. Typically, state legislation and courts have required confidentiality provisions to give way where arbitral disputes are of public interest, involving concerns such as public health and safety.30 This would nevertheless appear a predominantly common law holding, with the exception of England and Singapore, as there is suggestion that European nations are reluctant to endorse public interest as a valid exception to confidentiality.31 Additionally, there are only few arbitral tribunals with rules in place on publication of awards, which are nevertheless published in limited form.32 The problem arises with this approach when recalling in what circumstance a case will come before a court for it to then determine there is a public interest which necessitates publicity. A court cannot request or require a proceeding to be brought before it from an arbitral tribunal. Thus, there is a heavy reliance on a party to the proceedings to bring the matter before a court in order for the public interest protection to be enlivened. Indeed, even if a party were to bring a matter before a court, it is quite difficult to say they are doing so out of their own concern with the public interest. Ultimately, the public interest dynamic has not been a shift in principle but rather a determination that courts have been engaged to resolve on a case-by-case basis. To bring a case from arbitration to court requires that there be a valid issue to make a switch, which is a limited approach itself. More often than not, this will be determined by the terms of the arbitration agreement itself. On their part, Australian courts appear as strictly seeking to uphold arbitration agreements, with any resulting unfairness being justified as a consequence of contractual freedom.33 Additionally, the avenue to invalidate an arbitration agreement in court in Australia is very limited,34 as is the avenue offered by the New York Convention on Enforcement and Recognition of awards.35 More importantly, the party seeking to bring a court proceeding needs to have a worthy reason to justify the additional expense to be entailed, which parties already deem to be a high-cost process.36 However, where courts have indeed been in a position to make determinations of public interest they have arguably done so with success.37 Without simplifying the nature of the case, Esso was deemed to fall within the public interest exception, and thus revealed what would otherwise have been confidential documents produced in arbitration. Confidentiality here had to give way to the public interest as the outcome of proceedings was deemed to likely impact pricing of consumer utilities, thus being of sufficient public importance and warranting dispensing of blanket confidentiality.38 Subsequently, in Cockatoo Dockyard, a similar result was held, where the purpose of disclosing the presence of asbestos was held necessary ‘for the protection of public health and restoration of the environment’.39 Importantly, it is not just Australia which has taken such stands against confidentiality. The Ohio Court of Appeals took a similar approach in relation to a contract which mandated confidentiality whilst on the other hand, endorsed unfair and deceptive practices which was deemed to have ‘an impact … upon society as a whole’.40 In England, it has been said that, if the principle in Esso were to be followed, it would create an inhospitable climate for arbitration, ultimately leading to an exodus of cases to more relaxed plains of arbitration.41 Yet, that very same fear did not materialize in Sweden which boasts its own reputable arbitration climate when it followed a similar approach to Australia.42 What should be of concern however, is attempts of parties to contract into confidentiality to unimaginable ends. In the case of Associated Electric, the contract provided that the award at no time was to be disclosed to any individual or entity not covered by the agreement, meaning, a winning party would have difficulty in obtaining involuntary enforcement of the award.43 Unfortunately, the safety net of public interest, at least in the Australian context, appears to have been drawn back and restricted in both the domestic44 and international arbitration scene with restrictive amendments to respective legislation.45 Given ICA’s continued preference for confidentiality and the narrowing of public protective mechanisms, with the idea that ‘the windows and doors should be opened, and the roof should be taken off’,46 arbitration can no longer be easily dismissed. Accepting this argument is accepting a need for ICA to evolve and adapt, but it is not a complete overhaul that ICA is in need of. 2.2 The need for greater publication ‘…the contents… documents, testimony, affidavits… and the arbitration result will not be disclosed at any time to any individual or entity, in whole or in part, which is not a party to the arbitration between AEGIS and European Re.’47 The substantial shift of commercial disputes from court trials to private dispute resolution such as arbitration has involved obtaining convenience and efficiency, largely at the expense of transparency.48 Whilst the preceding analysis recognized the importance still placed on confidentiality, this portion of the article will now address why publication is not as detrimental as it may seem. Importantly, such an analysis requires bearing in mind that there is a substantial interest in awards and their publication outside the immediate scope of those before the tribunal.49 Without publication of awards, absolute or even exceedingly broad confidentiality can result in an indefensible loss of information from the public domain.50 It should at the outset be admitted that there are valid arguments against greater publication. It seems apparent that the biggest hurdle arises in trying to justify why arbitrating parties should bare the additional cost of publishing awards, which would certainly have to be more extensively reasoned than in some current practices.51 Additionally, any resulting ‘precedent’52 arising out of the award is deemed to be an uncompensated benefit, gifted to other parties.53 However, to an extent this is a rather circular argument, as publishing of awards can yield positive results for the parties coming before ICA.54 There are positive cost implications in having prior awards available to articulate your own arguments.55 Not only are arguments likely to be shortened but also there is a shortening of time taken to create an argument which in turn will arguably shorten the length of proceedings and the time taken to hand down an award. Nevertheless, there is concern that publication may foster an environment where arbitrators feel compelled to go beyond resolving the present dispute. The arising fear is that arbitrators will instead take focus on developing the law or advertising their competencies to potential future parties.56 Perhaps this view overstates the potential consequences of publication. First, for the law to develop through an arbitration award would require a strict commitment to the doctrine of precedent as in most common law countries. Secondly, arbitrators advertising their abilities may indeed be healthy for ICA, given the lack of scrutiny and transparency around arbitrator appointment and performance. Publication of an award may reveal particular biases and the method of reasoning undertaken by an arbitrator.57 This is extremely important given one particular study has revealed the overwhelming majority of dissenting opinions in arbitrations have been written by arbitrators appointed by the losing party.58 The significance of such a revelation is only appreciated when seen in light of what is held to legitimate arbitration, that is, the confidence of both parties in an arbitrator.59 Moreover, publication allows courts to determine whether the reasoning offered in an arbitrators’ award meets not only the parties’ contractual obligations but also legal obligations, the latter obviously being relevant where the law requires a minimum or sufficient level of reasoning.60 This should not, however, be equated with the idea that arbitrators are to be held to the standard of a judge,61 indeed if that is what parties sought they would rightly choose litigation over arbitration. Difficulty in justifying publication on a broader scale is hampered by the lack of authority and guidance on the matter. Turning to the United Nations Commission on International Trade Law (UNCITRAL) Model Law rules for guidance, particularly as they are held in high esteem and widely used by parties, the rules avoid providing any express direction on publication. Whilst Article 35(2) regarding ‘recognition and enforcement’ may be open for interpretation as to whether it requires publication and transparency, the UNCITRAL Model Law Working Group in proposing a model law on ICA refrained from inserting any express provision.62 Regardless of what interpretation achieves, it must be remembered that the rules only apply when selected by parties. Thus, in taking somewhat of a neutral stance, the UNCITRAL laws have since left parties to their own devices in determining questions of publication.63 Over three decades on from what is arguably a critical document in ICA, publication remains very much still discussed, and is perhaps much less controversial than before. Indeed, the concerns of prior times have arguably lessened and in particular, the argument that business interests and trade secrets need to be protected unravels quite quickly. As earlier mentioned, protection of such concerns has been something which courts have achieved particularly well and on this basis there is not much room to proceed with the argument that arbitrators cannot maintain such a standard. Whilst anonymizing awards and redacting confidential information is not a preferable approach for some,64 it should be held as a necessary compromise in order to shed light on ICA. Indeed such an approach has been rightly taken up by various tribunals.65 The importance of publication becomes apparent when bringing an arbitral dispute over an issue that has not yet been decided by a court, but to the knowledge of practitioners has indeed been decided before another ICA tribunal. The manner in which the issue was previously argued and the verdict reached to an extent becomes irrelevant when faced with privacy of awards, given all parties, even the present tribunal itself may be unaware of the award.66 This lack of openness and certainty is further compounded where there exist numerous awards on the issue and a level of consistency across the decisions cannot be gauged.67 In a highly commercialized space, businesses require certainty to know how to structure their affairs, how their contracts will be interpreted, and how to best navigate these challenges.68 This nevertheless reveals a lack of future guidance for parties,69 and the effect is perhaps most felt by one-time users of arbitration. Confidentiality and a lack of publication enhances the likelihood of success for repeat users who have first-hand experience in how prior proceedings have been determined, whereas their counterparts may not be able to access or utilize prior awards.70 This inevitably creates a legal market whereby the choice of legal counsel and arbitrators will be highly influential on the end result, not because of a difference in competence, but rather as a result of divergent access and knowledge of prior awards. Thus, publication goes towards creating a level playing field, whereby success in a dispute is less likely to be determined by who has the most experienced practitioner, but rather predominantly by the merits of the case. Additionally, a better reasoned award may indeed foster a greater degree of acceptance of arbitral decisions whilst lessening the possibility of awards being challenged.71 This only further adds weight to justifying paying for more well-reasoned awards. Ultimately, the most obvious achievement to arise out of greater publication will be confidence in arbitration as a result of the increased public scrutiny it fosters.72 And whilst some raise the question of why stop at publication and why not further encroach into regulating ICA,73 the simple answer is perhaps that certainty, legitimacy, and transparency can all be achieved without major structural reform.74 3. PRECEDENT IN ICA ‘Arbitration however, does not exist for the purpose of making law, but as a means of resolving disputes between parties.’75 The question of whether precedent does exist in ICA, should exist, and whether it has any role in developing the law, is by no means a new one. Over time this question has remained prominent in academic discussions and continues to warrant attention in light of the laws development being questioned. Whilst Lord Thomas’ paper on the laws development or lack thereof, has been criticized, perhaps it is so because of the means by which he proposes to achieve development. He proposes development should occur namely through reformulation of section 69 of the English Arbitration Act, with the aim of opening a greater avenue for appeals, arguably leading to a greater caseload for the court system.76 However, the appeals avenue may not be the most appropriate path for the laws development, given the substantial added costs to be incurred through appealing in the court system.77 Arbitral precedent may offer an alternate avenue for the laws development. Thus, following on from the idea of greater publication, this section will seek to explore whether precedent does exist both theoretically and practically in arbitration and if so, to what extent. What should be remembered as paramount is that users of ICA primarily seek dispute resolution rather than contribute to the advancement arbitral jurisprudence.78 3.1 Is there a theoretical basis underpinning the existence of precedent At the outset one may think that ICA does not and cannot play a part in the development of laws, particularly because its jurisdiction is enlivened only as a result of an inter-party agreement. These agreements more often than not provide the law to be applied and can limit the scope in which law is applied. Indeed, this is but one means by which parties have been able to gauge some predictability in ICA.79 In these circumstances one could rightfully question how the law could be developed when development particularly operates to extend the law, largely in uncharted areas. To enable a tribunal to develop law, particularly where the law applied does not emanate from the same state as the seat of arbitration, exposes the most controversial issue with ICA developing the law. Indeed as a national law is being applied, it is the legislature, or courts of that state and not ICA which is tasked with the province of lawmaking.80 To further undermine the idea of precedent existing, one needs to only remember that the arbitral award is binding only on the parties before the tribunal, and generally has no immediate effect beyond them.81 This view, although not incorrect does overlook an important feature of ICA. It overlooks that development of the law can occur through legislative and contractual interpretation. In addition to this, ICA tribunals may find themselves confronted by an issue, either yet to be heard before a national court or falling outside of the scope of law provided. Thus, reliance on a form of precedent, if at all, will occur whilst rules are in the course of development and no clear authority exists.82 Whilst particularly clear that arbitral precedent exists in the International Centre for Settlement of Investment Disputes (ICSID) and arbitrators do indeed cite other awards,83 it is far less clear whether such a trend exists in ICA.84 What is clear on the contrary, is that there exists no express prohibition on the application of precedent, nor an express mandate requiring its application. This does, however, merit exploring where precedent may theoretically fit into the ICA regime, and a number of proposals can be put forward on this front. Some have suggested that the doctrine of precedent has through usage and practice attained the status of International customary law.85 Proponents of this view submit that precedent is a universal doctrine of customary practice and can be referred to by arbitral tribunals under Article 31(3)(c) of the Vienna Convention.86 Whilst this argument has merit in regards to ICSID and bilateral investment treaty arbitrations, reliance on principles, such as precedent, which is not confined territorially, provides a less convincing argument in regards to ICA.87 What must be borne in mind here is that ICA tribunals are located in common law, civil law, and even Islamic law nations whereby precedent, and if it indeed exists, will hold a varying degree of applicability. In the scope of ICA where tribunals are applying predominantly a national law to an international transaction, it seems somewhat unusual to attribute to precedent the status of general principle when its very presence itself is uncertain. Following on from this, there is merit in exploring whether there is an intersect in the application of INCOTERMS, lex mercatoria, and trade usages, and whether this results in the creation of a source of arbitral precedent.88 These terms can be broadly seen as a means to framing contractual obligations and interpretation. As such they do not take the place of substantive law in governing a contract, but rather exist in subordination to or in support of the law chosen to apply between the parties. On the other hand, when applying non-national rules such as the UNIDROIT principles, it would be paradoxical to do anything other than look to arbitral precedents, as the alternative is the application of non-national rules to national law.89 To a certain degree, INCOTERMS, lex mercatoria, and the like can be seen as arising out of custom and repeated practice. It has been suggested, whilst acknowledging the oversimplification that given custom is based on precedent and given arbitration is based on custom, arbitration must be equated to precedent.90 The usefulness of such an association is questionable, and to an extent may muddy the waters so to speak, rather than clarify the ambiguity around whether precedent exists. Whilst custom in its various forms maintains an invaluable role in aiding and supplementing transactions between parties, it cannot be the theoretical underpinning that supports the existence of precedent in ICA. The UNCITRAL Model Law on ICA with its 2006 amendments would appear to provide the most appropriate source for a theoretical underpinning of precedent in ICA. However, there is still an absence of any explicit reference to the existence of precedent; precedent can only be founded by way of interpretation. The 2006 amendments saw the introduction of Article 2A ‘International origin and general principles’ and in particular section (1), which makes reference to the ‘need to promote uniformity in its application and observance of good faith’.91 This should however, be read in light of Article 8 of the General Assembly resolution which established the United Nations Commission on International Trade Law (UNCITL). Article 8 sought to further achieve harmonization and unification of international trade law,92 and this can still be seen today as a valued goal by UNCITL.93 Given promotion of uniformity has been a long-standing goal, it comes as no surprise that this is interpreted as imposing a mandatory requirement on arbitral tribunals to take notice of decisions made by other arbitral tribunals.94 If this were, however, to be a mandatory requirement, it would only seem logical to expect a greater sense of clarity in texts as to whether precedent truly exists in ICA. Nevertheless, whilst this part of section III failed to uncover an express theoretical underpinning of precedent in arbitration, the following section will seek to uncover whether any implied basis of precedent has been carried into practical effect. 3.2 Does precedent in ICA exist in practice? ‘For a rule-making mechanism to operate, arbitration awards must be available in sufficient quantity to permit the emergence of trends and the distinction of lines of identical or similar solutions.’95 The above quote highlights that what is needed for precedent to develop effectively is the availability of awards; however, the same is equally needed to identify whether precedent, if at all, has any current operation. As earlier highlighted, the lack of publicized awards will here impair any effort to outline the presence of precedent confidently. Thus, the pre-eminent conclusion to be reached is that one cannot expressly and definitively declare that the doctrine of precedent exists in ICA.96 Whilst not only difficult to gauge, there are proponents who take the view that arbitration as it stands cannot be reconciled with a coherent system of precedent. This position is substantiated by the simple fact that there is inconsistency with the standard of reasoning, if at all any, contained within arbitration awards.97 To an extent this may be a structural incapacity, that is, the tribunal rules do not provide for reasoned awards or at least in the depth required for precedent to develop.98 On the other hand, there may be an express agreement between parties, whether by reason of expediency or confidentiality to only require an award to identify only the successful party and nothing more than that. Nevertheless, arbitrators appear to increasingly refer to, and rely on prior awards.99 Despite the lack of awards available to undertake an in-depth analysis not only of arbitral citation practices but also arbitrator use and reasoning of prior awards, data does exist, albeit to a very limited extent. In particular, one study focused specifically on awards produced by the International Chamber of Commerce. The policy of the Chamber at the time in which this research was conducted mandated the publication of 12 per cent of all awards, notwithstanding with a three-year delay after the award has been handed down.100 Out of a review of 190 awards, approximately 15 per cent had cited prior awards albeit in a limited extent.101 This is comparably better than some other arbitration sectors and in particular, the International Federation of Consulting Engineers. A study of awards handed down by the Federation revealed from a pool of 100 awards, only six referred to previous decisions and almost always focused on statute of limitations questions.102 Likewise, the study on the International Chamber of Commerce awards revealed that arbitrators more often than not cite prior awards on matters of jurisdiction and admissibility.103 Thus, the difference is not by any means overly significant and worthy of celebration; indeed it does not necessarily provide room to conclude that precedent does exist in arbitration. Perhaps the better understanding is ‘that arbitrators do what they want with past cases and that there is no clear practice in this field’.104 Naturally, one would reasonably expect the Convention on Contracts for the International Sale of Goods to be a field professing an abundance of arbitral precedent. This is particularly so given the Conventions importance, which in Australia has seen it incorporated into both State105 and Commonwealth legislation in full, with paramount standing over inconsistent domestic law.106 Of 500 awards available for survey which deal with the Convention, only 100 were available in sufficient detail to examine the operation of precedent.107 Of those 100, only six awards referred to past decisions with limited influence; indeed, scholarly writings appeared to be of greater attraction to arbitrators than prior awards.108 However, particular results in Italy may provide some solace. One particular line of cases dealt with the determination of whether seller guarantees in respect of shares fell within the substantive law of the Italian Civil Code or were to be treated as sui generis contractual guarantees.109 Five arbitral awards were decided in a consistent manner.110 Whilst facing the challenge of inconsistent decisions handed down by the Italian Corte di Cassassione, the eventual awards were not only decided consistently, but also all took up a consistent approach in deciding the issue. Although not binding on one another, these awards have been able to produce homogenous persuasive authority, which arguably would be of important focus were the issue to arise once again.111 Whether or not this falls inline with the idea that tribunals operating in ‘specialised commercial contexts’ tend to create case law,112 or whether this indicates a broader appreciation of case law is open to be determined. What can be confirmed, however, is further more valuable analysis is contingent upon greater award availability, particularly as precedent be it binding or persuasive, necessitates publication at minimum to a sample size representative of past awards.113 In addition, any possibility to examine the perceived view of arbitrators as ‘law makers’, by way of case law to say the least, will have to wait until the prerequisite of publication is improved.114 Yet, what further analysis cannot account for is the instances in which arbitrators have prior cases in mind and do indeed place reliance on them, but because they have not previously been published the content of those awards remains unknown to parties.115 In situations of the like, the Paris Cour d’appel has previously held that there is no due process right obliging arbitrators to provide parties with unpublished awards it intends to rely on, prior to handing down its decision.116 To this authors knowledge there is nothing to suggest that this position has since changed. Whether in this instance an arbitrator has cited a prior award out of an abundance of caution, or whether they have independent reasons such as morality remains unknown.117 What this section has inevitably shown is that precedent has neither been worshipped nor entirely ignored;118 the following section will explore how precedent can, however, maintain a more consistent place in ICA. 4. IS THERE A PLACE FOR PRECEDENT IN ICA? 4.1 A greater presence for precedent in ICA ‘Reasoned, accessible awards may yield a system of arbitral precedent by provoking a process of reflection, deliberation, and consensus building among arbitrators.’119 It may be thought that to endorse greater use of precedent may require substantial reform to current ICA practices; however, this is largely determinant on the conception of precedent held in mind. With common law conceptions of precedent, which broadly speaking have binding implications, the presence of appellate tribunals to ensure not only a system of hierarchy,120 but also uniformity across cases,121 suddenly becomes relevant to considerations. Such reform is likely to come about only if the users are willing to pay for such a service,122 and in a system largely driven by user needs, ICA would not necessarily seem to be conducive to precedent building.123 Thus, what is needed is rather a system which will not blindly bind, but rather takes greater focus on the norm being propagated within.124 At least for the purposes of ICA there would need to be a shift away from the conception of precedent as being predominantly binding. What is in need is a system which operates horizontally, particularly as there is no means by which to create a meaningful hierarchical ordering amongst existing tribunals, or at least in a consensual manner. Without hierarchy and alongside the emergence of more arbitration institutions, there is a reasonable expectation that there will be an increase in overlap and contradiction in reasoning and results.125 This is exactly where precedent may indeed have a part to play. Before proceeding with this idea further, it is perhaps appropriate to deal with what has to date been seen by some as a hindrance to establishing greater uniformity in ICA. The difference between common law and civil law has been seen as a barrier to achieving uniformity, and particularly so in respect of precedent, given it exists as an outright doctrine in the former whilst in the latter it may indeed exist in a much watered down form. The doctrine of precedent is embedded within common law and mandates that a court be bound by prior decisions where those decisions have been handed down by a court with higher authority in the hierarchy.126 Although the doctrine has worked relatively well, it has also been acknowledged to have its limitations and where courts have needed to, a departure from precedent has occurred. As Lord Denning rightfully said ‘If we never do anything which has not been done before …. The law will stand still whilst the rest of the world goes on’.127 In contrast, civil law does not place the same emphasis on precedent, but it is also not discarded outright. Civil law nations have in contrast taken up notions such as jurisprudence constante, arrêt de principe, standige Rechtsprechung and Rechtserkenntnisquelle.128 Without undermining and simplifying the importance of such principles, they broadly involve the consideration of prior cases, particularly where there is a long line of consistent reasoning.129 Most importantly, such notions do not form a source of law-like precedent which is binding on the court.130 Nevertheless, a civil law judge may also apply the stare decisis of a prior decision simply out of a fear of being overturned on appeal.131 Over time, distinctions between common law and civil law such as that highlighted above, are losing ground day after day in the realm of arbitration,132 as arbitration has become a unique combination of both systems.133 It may be argued that arbitral awards have no precedential value in ICA, particularly because the tribunal is not pronouncing a judgment in the name of a state.134 This does, however, overlook the fact that precedent can have value beyond its lawmaking function. In its defacto form as opposed to de jure form, civil law tends to require that a prior decision be seriously considered as there is no obligatory requirement imposed on a body to follow a decision.135 As such, an arbitrator may indeed find themselves inspired by a prior award.136 Given the lack of hierarchy, this then requires dealing with the notion, what makes a decision of another tribunal persuasive.137 One response to this is that an arbitrator may seek out an award on the basis that they themselves are intrigued into how others have handled the issue.138 This in itself does not, however, identify why they should afford that reasoning any weight. An award may carry persuasive authority as a result of the arbitrator standing behind the award.139 Some arbitrators will inevitably be held in higher esteem not only by the arbitrating parties, but also more importantly by their fellow arbitrator colleagues,140 which can then bolster support for results in a subsequent case.141 Nevertheless, an arbitrator remains unbound by a previous decision because at the end of the day it must be remembered that arbitrators get their power as a result of party autonomy which entails no duty to national law.142 However, what provides for greater persuasion than simply the reputation of the arbitrator is the reasoning they offer which substantiates their award. To maintain a high standard of persuasion what is required is that the substance of the decision displays a degree of homogeneity with prior arbitral awards.143 Perhaps also to an extent homogeneity with national courts where they have applied the same law in question to international contracting parties in an international context. Thus, where a subsequent arbitrator is called upon to decide a similar point of law, the earlier authority will undoubtedly exert persuasive authority in reaching a decision.144 Whether this consistency establishes a norm so to speak is up for debate; what is clear, however, is that a subsequent judge cannot indiscriminately apply this norm.145 Every judge, and arbitrator for that matter, decides the legal question before them according to their own convictions.146 In such a system an arbitrator’s conviction is enlivened by precedent as the starting point,147 whereby precedent provokes a process of reflection and deliberation which ultimately seeks to be a consensus building exercise.148 Inevitably the value of precedent in ICA becomes linked to the quality of the prior awards.149 As such, persuasiveness so to speak requires more than just the idea of precedent to exist. Precedent does not only require reflection and deliberation of the material before the tribunal. Arguably, precedent instils upon an arbitrator a moral obligation to follow precedent in order to foster a normative environment which entails a certain level of predictability.150 Contrarily, whether there exists a legal obligation to do so is a matter open for debate.151 In this application, precedent in no means exists to bind future parties, but rather seeks to impose a level of influence which will shape the behaviour of both arbitrators and contracting parties,152 the former perhaps more accurately described as a ‘decisional burden’.153 Crucially, what this maintains is that each case is decided on its own merits, leaving sole discretion to the arbitrator as to how a prior award is to affect the present dispute, if at all.154 Whilst an arbitrator may rely on a past award in a consistent line of cases,155 precedent may also be seen to obligate an arbitrator to explain their departure or change of position from preceding cases.156 Such an explanation is vital not only in fostering a change in the laws application but also fostering acceptance of that change, given a lack of consistency contributes to mistrust in ICA.157 Indeed, depending on the quality of the award it may even go a long way to engendering voluntary compliance, thus disposing of the need of subsequent enforcement proceedings, and even potentially disposing of appeal proceedings. 4.2 Precedent in ICA: a beneficial possibility or an admirable goal? ‘Forcibly imposed transparency reforms would have to be imposed at the international level, and would ultimately require a fundamental reordering of the system.’158 Precedent would go a long way in making the law both clear and predictable whilst maintaining development in a principled fashion which has been accurately described as forming a ‘bedrock’.159 It is this bedrock upon which contracting parties order their affairs and determine whether they will bind themselves through contractual agreements.160 Consistent following of precedent has been associated with a freeze in the law;161 to avoid this requires a balance between certainty and evolution of the law,162 which as this piece has argued, is likely best achieved by non-binding precedent. Whilst others have argued that binding precedent can ‘harmonize and advance commercial law and practice’,163 this is at best an admirable goal.164 Nevertheless, evolution of the law, or elsewhere discussed as development of the law is not by any means a recent concern; what Lord Thomas has done is merely reignite debate. His Honour Carston Smith during his time as Chief Justice of the Supreme Court of Norway raised the same concerns over arbitration preventing courts from developing commercial precedent in 1992.165 Development may not occur in the sense that a tribunal will enter unchartered territory and produce a binding law as would a court. This is to be held in contrast to the idea that when applying a national law in ICA, the law is sufficiently developed to be predictable, and the arbitrator has no role in developing rules of a national law.166 It cannot be said that an arbitrator will never have to extend the law to a new or specific scenario. In doing so, there is argument to be made that in application of law, an arbitrator may form a consistent line of precedent, and in this particular context of arbitration, an arbitrator may be viewed as a legitimate producer of law.167 A better terminology for this practice would appear to be ‘soft lawmaking’,168 where arbitrators have indeed shown concern regarding the potential impact of their awards on the laws development.169 What would appear to add further to this soft lawmaking power is the esteem in which commercial arbitrators have been held by particular judges. In this regard, Lord Denning expressed his view that arbitrators in ICA were better placed to make contractual interpretations and determinations with a greater commercial sense.170 Indeed, he went so far as to say that in a one-off case as is typically the situation in ICA, an arbitrator would be more likely to make the correct decision in comparison to a judge, as a judge is likely to take a strict literal sense to a contract.171 It, therefore, comes as no surprise that courts have taken the stance of not second guessing the substantive correctness behind arbitral awards.172 Further supporting this acceptance is the understanding of the judiciary that parties themselves have agreed to submit to the arbitrator for a final decision rather than to a judge.173 Given the importance of finality mentioned here, it is important to highlight in what manner the use of precedent may affect finality. Rather than hinder finality, precedent can act to bolster finality, particularly as a lack of precedent would result in commercial parties repeatedly having to arbitrate to resolve similar disputes.174 Whilst it had been earlier highlighted that there are likely to be heavily divergent cases, it would be somewhat of a naiveté to suggest that no like cases will ever be decided. Perhaps non-binding precedent would garner greater support when viewed in another light. In a recent survey,175 participants indicated that counsel in arbitration would be best off working with opposing counsel to narrow the issues in dispute, which may even foster support for settlement.176 Precedent would have a role here particularly where a line of consistent decisions exist, as reliance on precedent could shorten the length of submissions, shorten deliberation before an arbitrator, and indeed shorten the time an arbitrator takes to hand down an award. Unsurprisingly, this was the number one response when participants were asked what could arbitration do better,177 which is inevitably linked to participants’ dissatisfaction with the cost of arbitration, seen here as ICA’s worst feature.178 Whilst a court system receives public subsidies, arbitration relies on the private funding of disputants. Thus, to introduce any form of precedent would at first require an increase in the overall cost of arbitration, as it would involve more extensive award writing and secondly, a system of publication whereby awards would be accessible. Whether or not this cost would be offset at a later date by reducing the scope of proceedings and improving the efficiency at which they are run is unknown. Perhaps the cost feasibility of promoting precedent is best left to a pilot programme which would be able to make conclusions in a cost–benefit analysis. 5. CONCLUDING REMARKS This article has sought to give light to ongoing concerns of transparency in ICA. In doing so, this article offered an account of why transparency is seen as a necessity in arbitration, and has examined various ways in which it can be achieved. First, this article examined the confidential nature of ICA and why it has proven to be problematic. It must be admitted there remains certain concerns of parties which ought to be protected through maintaining confidentiality in certain proceedings and awards. More generally, however, a greater balance needs to be achieved between confidentiality and transparency, which this article has identified could be more readily done through greater publication practices. Moving forward to the idea of precedent in ICA, this article explored whether there was a theoretical underpinning of precedent in ICA and secondly whether precedent existed in practice. Generally, this question could not be firmly answered at least to the extent of current practices. Whilst there are various indications that precedent has a place in ICA, the scope of such a presence cannot be gauged accurately without further examination of awards which are currently either inaccessible or unpublished. In light of this, it was argued that perhaps the better approach to shedding light on ICA was to move away from common law conceptions of precedent towards a non-binding, persuasive system of precedent. Doing so would likely foster greater support amongst both arbitral institutions and disputants which is crucial to implementing any change. At this point what should be remembered is that precedent is inherently associated with a minimum level of award publication, as the former cannot develop effectively without the latter. This in itself is not a small feat to achieve and although transparency is a worthwhile objective, the likelihood of generating political support for such reform is uncertain.179 Nevertheless, such support is crucial in achieving such change. What can be stated with confidence, however, is that concerns around confidentiality, publication, precedent and the overarching theme of transparency will not leave the field of ICA just yet. Perhaps the next question to be asked is, is a system of precedent better suited to substantive law or arbitral procedural law? Indeed, the forum is ideally set for further discussion given the theme set for the next International Council for Commercial Arbitration conference to be held in 2018: ‘Evolution and Adaption: The Future of International Arbitration’.180 If ICA is to achieve or maintain its status as an autonomous dispute resolution system, acknowledging the role of precedent is a necessary precondition.181 Footnotes 1 Francisco Blavi, ‘The Role of Arbitral Precedent in International Commercial Arbitration: Present and Future Developments’ (2015) 6 Resolved: Journal of Alternative Dispute Resolution 1, 2. 2 Akshay Kolse-Patil, ‘Precedents in Investor State Arbitration’ (2010) 3 The Indian Journal of International Economic Law 37, 46. 3 Vijaya Kumar Rajah, ‘W(h)ither Adversarial Commercial Dispute Resolution?’ (2017) 33 Arbitration International 17, 18. 4 ibid 17; William Rowley, London ArbitrationunderAttack (1 August 2016) The International Dispute Resolution Centre Limited, 10 <https://www.idrc.co.uk/media/26078/rowley_-_london_arbitration_under_attack.pdf> accessed 23 March 2018. 5 Sir Bernard Eder, ‘Does Arbitration Stifle Development of the Law? Should s.69 be Revitalised?’ (Paper presented at Chartered Institute of Arbitrators AGM Keynote Address, London, 28 April 2016) <https://www.londonarbitrators.org/does-arbitration-stifle-development-law-should-s69-be-revitalised-sir-bernard-eders-keynote-address> accessed 23 March 2018. 6 Lord Thomas, ‘Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts and Arbitration’ (Paper presented at The Bailii Lecture, London, 9 March 2016) <https://www.judiciary.gov.uk/wp-content/uploads/2016/03/lcj-speech-bailli-lecture-20160309.pdf> accessed 23 March 2018 . 7 Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 Journal of International Dispute Settlement 5. 8 Mark C Weidemaier, ‘Toward a Theory of Precedent in Arbitration’ (2010) 51 William and Mary Law Review 1895, 1899. 9 Klaus Peter Berger, ‘To What Extent Should Arbitrators Respect Domestic Case Law? The German Experience Regarding the Law on Standard Terms’ (2016) 32 Arbitration International 243. 10 Quentin Tannock, ‘Judging the Effectiveness of Arbitration through the Assessment of Compliance with and Enforcement of International Arbitration Awards’ (2005) 21 Arbitration International 71, 74. 11 It is important at this point to highlight that although this piece focuses specifically on international commercial arbitration, the issues discussed are widely applicable to all forms of arbitration. As such this piece also makes use of text which has specific focus on other forms of arbitration but nevertheless remains relevant to the discussions within this article. 12 Weidemaier (n 8); Laurie Kratky Dore, ‘Public Courts versus Private Justice: It’s Time to Let Some Sun Shine in on Alternative Dispute Resolution’ (2006) 81 Chicago-Kent Law Review 463, 483; Yves Fortier, ‘The Occasionally Unwarranted Assumption of Confidentiality’ (1999) 15 Arbitration International 131, 137. 13 Michael Young and Simon Chapman, ‘Confidentiality in International Arbitration – Does the Exception Prove the Rule?’ (2009) 27 ASA Bulletin 26, 28. 14 François Perret, ‘Is There a Need for Consistency in International Commercial Arbitration?’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 25, 60. 15 Young and Chapman (n 13) 29; Thomas (n 6) 17. 16 Georgious I Zekos, ‘Precedent and Stare Decisis by Arbitrations and Courts in Globalization’ (2009) 10 The Journal of World Investment & Trade 475, 481. 17 Chief Justice Sundaresh Menon, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’ (Paper presented at the Joint Plenary Opening Session A1 International Council for Commercial Arbitration, Singapore, 11 June 2012) 17 <http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_2012.pdf> accessed 23 March 2018. 18 Joyiyoti Misra and Roman Jordans, ‘Confidentiality in International Arbitration – An Introspection of the Public Interest Exception’ (2006) 23 Journal of International Arbitration 39. 19 Diego P Fernández Arroyo, ‘Private Adjudication Without Precedent?’ in Horatia Muir Watt and Diego P Fernández Arroyo (eds), Private International Law and Global Governance (OUP 2014) 119. 20 Richard Garnett, ‘The Resurgance of Litigation in International Commercial Disputes’ (Paper presented at 2016 Supreme Court of Victoria Commercial Law Conference, Melbourne, 13 October 2016) 5 <http://law.unimelb.edu.au/__data/assets/pdf_file/0010/2154484/SCV-Conference-2016_Richard-Garnett.pdf> accessed 23 March 2018. 21 Joseph F Anderson Jr, ‘Hidden from the Public by Order of the Court: The Case Against Government-Enforced Secrecy’ (2004) 55 South Carolina Law Review 711, 715; Maria Glover, ‘Disappearing Claims and the Erosion of Substantive Law’ (2015) 124 The Yale Law Journal 3052, 3055. 22 Llewellyn Joseph Gibbons, ‘Private Law, Public "Justice": Another Look at Privacy, Arbitration, and Global E-Commerce’ (2000) 15 Ohio State Journal on Dispute Resolution 769, 787; Dore (n 12) 491. 23 Glover (n 21). 24 Epaminondas GE Embiricos, ‘Appeals from Arbitration Awards’ (Paper presented at the London Maritime Arbitrators Association 50th Anniversary Conference, London Guildhall, 18 March 2010) 4 <http://www.lmaa.london/uploads/documents/C50AppealsfromArbitrationAwards.pdf> accessed 23 March 2018. 25 Dore (n 12) 514. 26 Young and Chapman (n 13) 31. 27 Perret (n 14). 28 Eder (n 5) 3. 29 Thomas (n 6) 15. 30 Ermott v Michael Wilson & Partners Ltd (No 2) [2009] 2 ALL ER 856, 865; Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] 4 All ER 746, 769; Esso Australia Resources Limited and Others v Plowman and Others (1995) 128 ALR 391, 403-404; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, 680–82. 31 François Dessemontet, ‘Arbitration and Confidentiality’ (1996) 7 The American Review of International Arbitration 299, 312–13; Misra and Jordans (n 18) 42; Case T–353/94 Postbank NV v Commission of the European Communities [1996] ECR II–8, 90. 32 Alexis Mourre, ‘Precedent and Confidentiality in International Commercial Arbitration: The Case for the Publication of Arbitral Awards’ in Banifatemi (n 14) 39. 33 TCL Air Conditioner (Zhongshan) Co LTD v Castel Electronics Pty Ltd (2014) 311 ALR 387, 387–88. 34 International Arbitration Act 1974 (Cth) s 7(5). 35 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1959, 330 UNTS 3 (entered into force 7 June 1959) art V. 36 Rajah (n 3) 25; Irene Ten Cate, ‘International Arbitration and the Ends of Appellate Review’ (2012) 44 New York University Journal of International Law and Politics 1109, 1166. 37 A review of the following cases is by no means extensive or in depth; the purpose is merely to illustrate that the courts are capable in making such determinations around confidentiality. 38 Esso Australia Resources Limited and Others v Plowman and Others (1995) 128 ALR 391, 403–04. 39 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, 680. 40 Eagle vFred Martin Motor Co, 809 NE 2d 1161, 1163–64 (Ohio Ct App, 2004). 41 Patrick Neill, ‘Confidentiality in Arbitration’ (1996) 12 Arbitration International 287, 316; Young and Chapman (n 13) 29. 42 Young and Chapman, ibid 29. 43 Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company of Zurich [2003] 1 All ER 253, 257-260. 44 Commercial Arbitration Act 2011 (Vic) s27F-s27I; although the Victorian legislation is cited here, the reform was part of a desire to have uniform State laws on arbitration, with Canberra being the final legislature to complete the nationwide unification – the Commercial Arbitration Act 2017 (ACT) is set to commence on 4th October 2017, <http://www.legislation.act.gov.au/a/2017-7/default.asp> accessed 23 March 2018. 45 International Arbitration Act 1974 (Cth) s23C-23G; like the domestic acts, these changes essentially leave challenging confidentiality only to the parties in the dispute, effectively preventing a member of the public from challenging where there may be a legitimate public concern at stake. 46 Jan Paulsson cited in Catherine Rogers, ‘Transparency in International Commercial Arbitration’ (2006) 54 Kansas Law Review 1301, 1336. 47 Associated Electric and Gas Insurance Services Ltd (n 43) 258. 48 Glover (n 21). 49 Harpreet Kaur Dhillon, ‘A Regulatory Framework for Arbitrators and Increased Arbitral Accountability: Ideas to Reinvigorate Arbitration or Stifle It?’ (2013) 79 The International Journal of Arbitration, Mediation and Dispute Management 279, 280; Sir Bernard Rix, ‘Confidentiality in International Arbitration: Virtue or Vice?’ (Paper presented at the Jones Day Professoship in Commercial Law Lecture SMU, Singapore, 12 March 2015); <https://law.smu.edu.sg/sites/default/files/law/CEBCLA/Notes_Confidentiality_in_International_Arbitration.pdf> accessed on 23 March 2018. AITrade Finanace Incand Bulgarian Foreign Trade Bank vGiroCredit Bank Aktiengesells-chaft der Sparkassen (Supreme Court of Sweeden) (Stephen Bond and Frédéric Bachand, trans) 1235. 50 Re Anonymous, 283 F 3d 627, 637 (4th Cir, 2002); Dore (n 12) 493. 51 Unreasoned awards do not offer much utility as they may not go beyond basic facts of who it involved and which party won; Weidemaier (n 8) 1914–16. 52 Precedent here appears in commas because whether it does exist or should exist is to be explored later in this article. 53 William Landes and Richard Posner, ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1976) 19 The Journal of Law and Economics 249, 272. 54 As will be seen these benefits are contingent on the existence of a sufficient case base. 55 Weidemaier (n 8) 1927. 56 David Rivkin, ‘The Impact of International Arbitration on the Rule of Law’ (2013) 29 Arbitration International 327, 340. 57 Dhillon (n 49) 282; Menon (n 17) 19. 58 Alan Redfern, ‘The 2003 – Freshfields – Lecture Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly’ (2004) 20 Arbitration International 223, 234. 59 Jan Paulsson, ‘Moral Hazard in International Dispute Resolution’ (Paper presented at Inaugural Lecture as Holder of the Michael R Klein Distinguished Scholar Chair, University of Miami School of Law, 29 April 2010) 8 <http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf> accessed 23 March 2018. 60 Westport Insurance Corporation and Others v Gordian Runoff Ltd (2011) 281 ALR 593, 607. 61 Menon (n 17) 20. 62 United Nations Commission on International Trade Law, Report of the Secretary-General: Possible Features of a Model Law on International Commercial Arbitration, 14th Session, Agenda Item 101, UN Doc A/CN.9/207 (19–26 June 1981) [90]. 63 Dore (n 12) 486. 64 Eder (n 5) 3. 65 Rajah (n 3) 30; More recently, this can be seen in the launch of the Panel of Recognized International Market Experts in Finance (PRIME Finance) in The Hague. 66 Embiricos (n 24) 3. 67 Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arbitration International 357, 378. 68 Thomas (n 6) 10. 69 Richard Alderman, ‘Consumer Arbitration: The Destruction of Common Law’ (2003) 2 Journal of American Arbitration 1, 11; Weidemaier (n 8) 1904. 70 Dore (n 12) 502–03; Andrea Martignoni and Natalie Oliver, ‘International Arbitration – The Winds of Change’ (2017) 4 Australian Alternative Dispute Resolution Law Bulletin 11, 16. 71 Emmanuel Gaillard, ‘Foreword’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 1, 9. 72 Young and Chapman (n 13) 46. 73 Catherine Rogers, ‘Transparency in International Commercial Arbitration’ (2006) 54 Kansas Law Review 1301, 1302. 74 Tannock (n 10) 73–74. 75 Lord Saville, ‘International Financial Services Conference: Has London Met the Challenge?: Preface’ (2007)23 Arbitration International 431. 76 1996 (UK) c 23. 77 Indeed, if appellate reforms were to be made I would broadly support the views put forward in Dalma R Demeter and Kayleigh M Smith, ‘The Implications of International Commercial Courts on Arbitration’ (2016) 33 Journal of International Arbitration 441. 78 Sophie Nappert, ‘By Wit of Fortune Led: Thoughts on A Role for Precedent in International Commercial Arbitration’ (2008) 5 Transnational Dispute Management 2, 5. 79 Klaus Peter Berger, ‘The International Arbitrators’ Application of Precedents’ (1992) 9 Journal of International Arbitration 5, 11. 80 Nappert (n 78). 81 Phillip Landolt, ‘Arbitrators’ Initiatives to Obtain Factual and Legal Evidence’ (2012) 28 Arbitration International 173, 214. 82 Nappert (n 78). 83 Weidemaier (n 8) 1895. 84 Frank Spoorenberg and Jorge Vinuales, ‘Conflicting Decisions in International Arbitration’ (2009) 8 The Law of Practice of International Courts and Tribunals 91, 103; Kaufmann-Kohler (n 67) 372. 85 Mary Ayad, ‘The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea’ (2013) 14 The Journal of World Investment and Trade 918, 929. 86 ibid 919. 87 ibid 919–21. 88 Brian King and Rahim Moloo, ‘International Arbitrators as Lawmakers’ (2014) 46 New York University Journal of International Law and Politics 875, 888–89; Arroyo (n 19) 139. 89 Mourre (n 32) 51. 90 Ayad (n 85) 933. 91 See n 62; United Nations Commission on International Trade Law, UNCITRAL Model Law on International Arbitration 1985 with Amendments adopted in 2006, GA Res 61/33, UN GAOR, 61st session, 64th mtg, Agenda Item 77, UN Doc A/RES/61/33 (18 December 2006). 92 General Assembly: Resolutions Adopted on the Reports of the Sixth Committee, Establishment of the United Nations Commission on International Trade Law, GA Res 2205, UN GAOR, C.5 Comm, 21st session, 1497th mtg, Agenda Item 88 (17 December 1966) [99]–[100]. 93 United Nations Commission on International Trade Law, UNCITRAL Model Law on International arbitration 1985 with Amendments adopted in 2006 (United Nations Publication) pt III [39]–[40]. 94 Arroyo (n 19) 139; Servicios Administrativos de Emergencia SAde CVvADTSecurity Services SAde CV, Tercer Tribunal Colegiado en Materia Civil, Primer Circuito (Mexico, 19 May 2005) RC 14/2005. 95 Mourre (n 32) 48. 96 Arroyo (n 19) 126. 97 Weidemaier (n 12) 1914. 98 ibid; Enron Corp (Enron Corp & Ponderosa Assets, LP v Argentine Republic) (Decision on Jurisdiction) (ICSID Case No ARB/01/03, 2 August 2004) 12–13. 99 Kaufmann-Kohler (n 67) 357. 100 Mourre (n 32) 60. 101 Kaufmann-Kohler (n 67) 362. 102 Guillaume (n 7) 15. 103 ibid. 104 Kaufmann-Kohler (n 67) 362. 105 Goods Act 1958 (Vic) s 87. 106 Australian Competition and Consumer Act 2010 (Cth) s68; has paramount standing only within inconsistencies in the consumer act. 107 Kaufmann-Kohler (n 67) 362. 108 ibid. 109 Perret (n 14) 34–35. 110 Perret, ibid 36–37; Franco Bonelli, ‘Acquisizioni di societa e di pacchetti azionari di Riferimento: Le garanzie del venditore’ (2007) 21 Diritto Del Commercio Internazionale 293, 312. 111 Perret (n 14) 36. 112 King and Moloo (n 88) 888. 113 Nappert (n 78) 3. 114 King and Moloo (n 88) 876. 115 Berger (n 79) 21. 116 ibid. 117 Kaufmann-Kohler (n 67) 363; 374. 118 Guillaume (n 7). 119 Weidemaier (n 8) 1925. 120 Nappert (n 78). 121 Berger (n 79) 12; Alan Redfern, ‘International Commercial Arbitration: Winning the Battle’ in The Southwestern Legal Foundation (ed), Private Investors Abroad (Dallas 1989) 11–12. 122 Mark C Weidemaier, ‘Judging-Lite: How Arbitrators Use and Create Precedent (2012) 90 North Carolina Law Review 1091, 1122. 123 Nappert (n 78) 6. 124 Berger (n 79) 8. 125 Guillaume (n 7) 18. 126 Berger (n 9) 250–51. 127 Packer v Packer [1953] 2 All ER 127, 130. 128 Kaufmann-Kohler (n 67) 359–60; Berger (n 9) 254; Guillaume (n 7) 6. 129 ibid. 130 ibid. 131 Berger (n 9) 250. 132 Arroyo (n 19) 121. 133 Gabrielle Kaufmann-Kohler, ‘Globalization of Arbitral Procedure’ (2003) 36 Vanderbilt Journal of Transnational Law 1313; Bernard Hanotiau, ‘International Arbitration in a Global Economy: The Challenges of the Future’ (2011) Journal of International Arbitration 89, 97–98. 134 Landolt (n 81) 186. 135 Arroyo (n 19) 121–23; Berger (n 9) 251–53. 136 Guillaume (n 7) 6. 137 Nappert (n 78). 138 Berger (n 79) 19. 139 Blavi (n 1) 7. 140 Tai-Heng Cheng, ‘Precedent and Control in Investment Treaty Arbitration’ (2006) 30 Fordham International Law Journal 1014, 1046. 141 William Park, ‘The Predictability Paradox – Arbitrators and Applicable Law’ in Faboio Bortolotti and Pierre Mayer (eds), The Application of Substantive Law by International Arbitrators (International Chamber of Commerce 2014) 60, 64; Barton Legum, ‘The Definitions of “Precedent” in International Arbitration’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 5, 14.
 142 Blavi (n 1) 4. 143 Jeffery Commission, ‘Precedent in Investment Treaty Arbitration – A Citation Analysis of Developing Jurisprudence’ (2007) 24 Journal of International Arbitration 129, 135. 144 Perret (n 14) 25, 33; Christian Larroumet, ‘A Propos De La Jurisprudence Arbitrale’ (2006) 348 Gazette du Palais 5. 145 Berger (n 79) 8. 146 ibid. 147 ibid 5. 148 Weidemaier (n 8) 1925. 149 Nappert (n 78) 6. 150 Kaufmann-Kohler (n 67) 363, 374. 151 ibid. 152 King and Moloo (n 88) 883; Weidemaier (n 8) 1901. 153 Irene Ten Cate, ‘The Costs of Consistency: Precedent in Investment Treaty Arbitration’ (2013) 51 Columbia Journal of Transnational Law 418, 421. 154 Charles Brower, Michael Ottolenghi and Peter Prows, ‘The Saga of CMS: Res Judicata, Precedent, and the Legitimacy of ICSID Arbitration’ in Christina Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreur (OUP 2009) 843, 863. 155 Weidemaier (n 8) 1895. 156 Daimler Financial Services (Daimler v Argentina) (Opinion of Professor Domingo Bello Janeiro) (ICSID Case No ARB/05/01, 16 August 2012) [1] fn 4; Daimler Financial Services (Daimler v Argentina) (Award) (ICSID Case No ARB/05/01, 22 August 2012). 157 Ayad (n 85) 935. 158 Rogers (n 73) 1303. 159 Thomas (n 6) 2. 160 ibid. 161 Guillaume (n 7) 6. 162 ibid. 163 Rajah (n 3) 27. 164 Reiterating there is no hierarchical system in ICA, and given the independence of arbitral institutions, this is very unlikely to occur without some overriding global treaty. It would involve a substantial overhaul of current ICA practices, thus it is unlikely receive meaningful support. 165 Gillis Wetter, ‘The Internationalization of International Arbitration: Looking Ahead to the Next Ten Years’ (1995) 11 Arbitration International 117, 131. 166 Kaufmann-Kohler (n 67) 363, 375. 167 Weidemaier (n 8) 1895. 168 King and Moloo (n 88) 883. 169 ibid 877; Blavi (n 1) 6. 170 BTP Tioxide Ltd v Pioneer Shipping (The Nema) [1980] 1 QB 547, 564–65. 171 ibid. 172 Ten Cate (n 36) 1123. 173 BTP Tioxide Ltd (n 170) 565. 174 Embiricos (n 24). 175 It is worth noting here that a large portion of the participants in this survey were indeed private practitioners, arbitrators, and in-house counsel; together they represented 80% of respondents. Thus, what should be questioned is would the parties actually involved in arbitration respond in a similar manner? 176 White and Case and Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration (Report No 3, 6 October 2015) 3. 177 ibid 30. 178 ibid 2. 179 Rogers (n 73) 1328. 180 Donald Donovan, ICCA 2018 Congress Sydney: 15–18 April (2017) (International Council for Commercial Arbitration) <http://www.arbitration-icca.org/conferences-and-congresses/ICCA_2016_Congress_Mauritius/ICCA_2018_Congress_Sydney.html> accessed 23 March 2018. 181 Blavi (n 1) 10. © The Author(s) 2018. Published by Oxford University Press on behalf of the London Court of International Arbitration. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Arbitration International Oxford University Press

Precedent and development of law: Is it time for greater transparency in International Commercial Arbitration?

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Abstract

Abstract International Commercial Arbitration (ICA) continues to be widely chosen as the preferred method of dispute resolution for parties, particularly where matters cross international boundaries. However, with the divergence of cases from open courts to predominantly closed arbitration hearings, questions of transparency have, and will continue to arise. This article is situated within the framework of transparency and asks whether confidentiality should still hold to be the norm in arbitration. Additionally, questions are asked around the development of law and operation of precedent in ICA. Indeed, what this article ultimately seeks to achieve is evaluating whether arbitration can serve as a mechanism for generating privately made law. 1. INTRODUCTION International Commercial Arbitration (ICA) has achieved considerable success as a highly efficient mechanism employed in the resolution of transnational business disputes.1 Its origin arises from an agreement between private parties to resolve any disputes between them; as such, authority stems from the contractual autonomy of individuals to order their affairs.2 With the rise of ICA, there has been a discernable decline in the number of commercial disputes appearing in courts of the leading common law jurisdictions.3 The most notable exception to this is the England and Wales Commercial Court which has indeed continued to see an increasing caseload.4 Unsurprisingly, questions have and continue to be raised regarding the place of confidentiality,5 development of law,6 and the place of precedent, if at all any in ICA.7 This article will critically examine the aforementioned topics within the broader framework of transparency in ICA; albeit development of law will take a secondary focus. Section 2 will critique what can be seen as a natural association of confidentiality and arbitration8 and in doing so, will seek to justify the need for greater frequency in publication of ICA awards. Section 3 will then proceed in examining whether precedent currently exists in both a theoretical and practical form. Section 4 will then examine whether there is a place for precedent in ICA. Indeed, this author aligns with the idea that whilst there may be scope for precedent in ICA, it would be very different from its conventional common law understanding.9 The evaluation offered in this article should not be interpreted as identifying a crisis in ICA; perhaps the questions raised by this piece are better seen as part of a broader question of confidence in ICA.10 Ultimately, this article concludes that although meaningful change is needed in ICA to achieve greater transparency, its realization will be largely contingent on support by ICA users.11 2. CONFIDENTIALITY IN ICA 2.1 Problems with confidentiality in ICA It cannot be denied that the confidential nature of ICA has been a drawcard for some to move their disputes away from the traditional open court system. However, amongst parties and arbitral institutions, this appears to have led to a tendency to automatically associate confidentiality with arbitration.12 This unfavourable development is only further complicated by the presumption that confidentiality is a necessary corollary to the privacy of proceedings.13 Indeed, it is quite important to distinguish between the two. Whilst the former revolves around restrictions on the publication of proceedings, awards and evidentiary documents which can vary in degree and depend on discretion,14 the latter focuses on the nature of closed proceedings which is a relatively absolute determination.15 Conflating the two makes any discussion of introducing minimum publication standards in ICA particularly difficult, as it may be viewed as an attack undermining privacy, which is arguably one of ICA’s key enticements.16 Admittedly, whilst confidentiality has nevertheless played a part in ICA’s success, it has come at the cost of accepting an obscure, or perhaps more accurately, an opaque decision-making process.17 Whilst confidentiality is still important,18 the relative importance of confidential proceedings has diminished in comparison to other key features of arbitration.19 Thus, it is time for serious consideration as to whether confidentiality should remain the status quo in ICA proceedings. Greater transparency and publication in ICA cannot be meaningfully brought about without offering a sound justification for doing so. This begins with accepting that it is not just the parties to the arbitration proceeding which are affected or interested in the matter. The confidential nature of ICA has implications for commercial certainty,20 for future litigants,21 public confidence,22 and also for government.23 Indeed, commercial certainty involves not only how contractual provisions are construed or whether agreements are upheld, but also additionally involves a reputational aspect. The very sanctity of a contract may be compromised where a party blatantly disregards contractual obligations because of a lack of fear for reputational harm, given the nature and content of proceedings remains undisclosed.24 Self-determination over contractual formation and arbitration agreements can no longer be used to justify blanket secrecy,25 alongside the excuse of needing to protect business and trade secrets.26 Confidential information which is not necessary to comprehending a ruling can be redacted where needed,27 and awards can be anonymized.28 Whilst some disprove of using anonymity, arguing ‘open justice is a hallmark of democratic society’,29 one should be cautious to not overregulate the freedom of private parties. There is both a place and need for a balance between publicity and confidentiality. Admittedly, there is an attempt to balance publicity and confidentiality; however, it is a balance that remains significantly skewed in favour of the latter. Typically, state legislation and courts have required confidentiality provisions to give way where arbitral disputes are of public interest, involving concerns such as public health and safety.30 This would nevertheless appear a predominantly common law holding, with the exception of England and Singapore, as there is suggestion that European nations are reluctant to endorse public interest as a valid exception to confidentiality.31 Additionally, there are only few arbitral tribunals with rules in place on publication of awards, which are nevertheless published in limited form.32 The problem arises with this approach when recalling in what circumstance a case will come before a court for it to then determine there is a public interest which necessitates publicity. A court cannot request or require a proceeding to be brought before it from an arbitral tribunal. Thus, there is a heavy reliance on a party to the proceedings to bring the matter before a court in order for the public interest protection to be enlivened. Indeed, even if a party were to bring a matter before a court, it is quite difficult to say they are doing so out of their own concern with the public interest. Ultimately, the public interest dynamic has not been a shift in principle but rather a determination that courts have been engaged to resolve on a case-by-case basis. To bring a case from arbitration to court requires that there be a valid issue to make a switch, which is a limited approach itself. More often than not, this will be determined by the terms of the arbitration agreement itself. On their part, Australian courts appear as strictly seeking to uphold arbitration agreements, with any resulting unfairness being justified as a consequence of contractual freedom.33 Additionally, the avenue to invalidate an arbitration agreement in court in Australia is very limited,34 as is the avenue offered by the New York Convention on Enforcement and Recognition of awards.35 More importantly, the party seeking to bring a court proceeding needs to have a worthy reason to justify the additional expense to be entailed, which parties already deem to be a high-cost process.36 However, where courts have indeed been in a position to make determinations of public interest they have arguably done so with success.37 Without simplifying the nature of the case, Esso was deemed to fall within the public interest exception, and thus revealed what would otherwise have been confidential documents produced in arbitration. Confidentiality here had to give way to the public interest as the outcome of proceedings was deemed to likely impact pricing of consumer utilities, thus being of sufficient public importance and warranting dispensing of blanket confidentiality.38 Subsequently, in Cockatoo Dockyard, a similar result was held, where the purpose of disclosing the presence of asbestos was held necessary ‘for the protection of public health and restoration of the environment’.39 Importantly, it is not just Australia which has taken such stands against confidentiality. The Ohio Court of Appeals took a similar approach in relation to a contract which mandated confidentiality whilst on the other hand, endorsed unfair and deceptive practices which was deemed to have ‘an impact … upon society as a whole’.40 In England, it has been said that, if the principle in Esso were to be followed, it would create an inhospitable climate for arbitration, ultimately leading to an exodus of cases to more relaxed plains of arbitration.41 Yet, that very same fear did not materialize in Sweden which boasts its own reputable arbitration climate when it followed a similar approach to Australia.42 What should be of concern however, is attempts of parties to contract into confidentiality to unimaginable ends. In the case of Associated Electric, the contract provided that the award at no time was to be disclosed to any individual or entity not covered by the agreement, meaning, a winning party would have difficulty in obtaining involuntary enforcement of the award.43 Unfortunately, the safety net of public interest, at least in the Australian context, appears to have been drawn back and restricted in both the domestic44 and international arbitration scene with restrictive amendments to respective legislation.45 Given ICA’s continued preference for confidentiality and the narrowing of public protective mechanisms, with the idea that ‘the windows and doors should be opened, and the roof should be taken off’,46 arbitration can no longer be easily dismissed. Accepting this argument is accepting a need for ICA to evolve and adapt, but it is not a complete overhaul that ICA is in need of. 2.2 The need for greater publication ‘…the contents… documents, testimony, affidavits… and the arbitration result will not be disclosed at any time to any individual or entity, in whole or in part, which is not a party to the arbitration between AEGIS and European Re.’47 The substantial shift of commercial disputes from court trials to private dispute resolution such as arbitration has involved obtaining convenience and efficiency, largely at the expense of transparency.48 Whilst the preceding analysis recognized the importance still placed on confidentiality, this portion of the article will now address why publication is not as detrimental as it may seem. Importantly, such an analysis requires bearing in mind that there is a substantial interest in awards and their publication outside the immediate scope of those before the tribunal.49 Without publication of awards, absolute or even exceedingly broad confidentiality can result in an indefensible loss of information from the public domain.50 It should at the outset be admitted that there are valid arguments against greater publication. It seems apparent that the biggest hurdle arises in trying to justify why arbitrating parties should bare the additional cost of publishing awards, which would certainly have to be more extensively reasoned than in some current practices.51 Additionally, any resulting ‘precedent’52 arising out of the award is deemed to be an uncompensated benefit, gifted to other parties.53 However, to an extent this is a rather circular argument, as publishing of awards can yield positive results for the parties coming before ICA.54 There are positive cost implications in having prior awards available to articulate your own arguments.55 Not only are arguments likely to be shortened but also there is a shortening of time taken to create an argument which in turn will arguably shorten the length of proceedings and the time taken to hand down an award. Nevertheless, there is concern that publication may foster an environment where arbitrators feel compelled to go beyond resolving the present dispute. The arising fear is that arbitrators will instead take focus on developing the law or advertising their competencies to potential future parties.56 Perhaps this view overstates the potential consequences of publication. First, for the law to develop through an arbitration award would require a strict commitment to the doctrine of precedent as in most common law countries. Secondly, arbitrators advertising their abilities may indeed be healthy for ICA, given the lack of scrutiny and transparency around arbitrator appointment and performance. Publication of an award may reveal particular biases and the method of reasoning undertaken by an arbitrator.57 This is extremely important given one particular study has revealed the overwhelming majority of dissenting opinions in arbitrations have been written by arbitrators appointed by the losing party.58 The significance of such a revelation is only appreciated when seen in light of what is held to legitimate arbitration, that is, the confidence of both parties in an arbitrator.59 Moreover, publication allows courts to determine whether the reasoning offered in an arbitrators’ award meets not only the parties’ contractual obligations but also legal obligations, the latter obviously being relevant where the law requires a minimum or sufficient level of reasoning.60 This should not, however, be equated with the idea that arbitrators are to be held to the standard of a judge,61 indeed if that is what parties sought they would rightly choose litigation over arbitration. Difficulty in justifying publication on a broader scale is hampered by the lack of authority and guidance on the matter. Turning to the United Nations Commission on International Trade Law (UNCITRAL) Model Law rules for guidance, particularly as they are held in high esteem and widely used by parties, the rules avoid providing any express direction on publication. Whilst Article 35(2) regarding ‘recognition and enforcement’ may be open for interpretation as to whether it requires publication and transparency, the UNCITRAL Model Law Working Group in proposing a model law on ICA refrained from inserting any express provision.62 Regardless of what interpretation achieves, it must be remembered that the rules only apply when selected by parties. Thus, in taking somewhat of a neutral stance, the UNCITRAL laws have since left parties to their own devices in determining questions of publication.63 Over three decades on from what is arguably a critical document in ICA, publication remains very much still discussed, and is perhaps much less controversial than before. Indeed, the concerns of prior times have arguably lessened and in particular, the argument that business interests and trade secrets need to be protected unravels quite quickly. As earlier mentioned, protection of such concerns has been something which courts have achieved particularly well and on this basis there is not much room to proceed with the argument that arbitrators cannot maintain such a standard. Whilst anonymizing awards and redacting confidential information is not a preferable approach for some,64 it should be held as a necessary compromise in order to shed light on ICA. Indeed such an approach has been rightly taken up by various tribunals.65 The importance of publication becomes apparent when bringing an arbitral dispute over an issue that has not yet been decided by a court, but to the knowledge of practitioners has indeed been decided before another ICA tribunal. The manner in which the issue was previously argued and the verdict reached to an extent becomes irrelevant when faced with privacy of awards, given all parties, even the present tribunal itself may be unaware of the award.66 This lack of openness and certainty is further compounded where there exist numerous awards on the issue and a level of consistency across the decisions cannot be gauged.67 In a highly commercialized space, businesses require certainty to know how to structure their affairs, how their contracts will be interpreted, and how to best navigate these challenges.68 This nevertheless reveals a lack of future guidance for parties,69 and the effect is perhaps most felt by one-time users of arbitration. Confidentiality and a lack of publication enhances the likelihood of success for repeat users who have first-hand experience in how prior proceedings have been determined, whereas their counterparts may not be able to access or utilize prior awards.70 This inevitably creates a legal market whereby the choice of legal counsel and arbitrators will be highly influential on the end result, not because of a difference in competence, but rather as a result of divergent access and knowledge of prior awards. Thus, publication goes towards creating a level playing field, whereby success in a dispute is less likely to be determined by who has the most experienced practitioner, but rather predominantly by the merits of the case. Additionally, a better reasoned award may indeed foster a greater degree of acceptance of arbitral decisions whilst lessening the possibility of awards being challenged.71 This only further adds weight to justifying paying for more well-reasoned awards. Ultimately, the most obvious achievement to arise out of greater publication will be confidence in arbitration as a result of the increased public scrutiny it fosters.72 And whilst some raise the question of why stop at publication and why not further encroach into regulating ICA,73 the simple answer is perhaps that certainty, legitimacy, and transparency can all be achieved without major structural reform.74 3. PRECEDENT IN ICA ‘Arbitration however, does not exist for the purpose of making law, but as a means of resolving disputes between parties.’75 The question of whether precedent does exist in ICA, should exist, and whether it has any role in developing the law, is by no means a new one. Over time this question has remained prominent in academic discussions and continues to warrant attention in light of the laws development being questioned. Whilst Lord Thomas’ paper on the laws development or lack thereof, has been criticized, perhaps it is so because of the means by which he proposes to achieve development. He proposes development should occur namely through reformulation of section 69 of the English Arbitration Act, with the aim of opening a greater avenue for appeals, arguably leading to a greater caseload for the court system.76 However, the appeals avenue may not be the most appropriate path for the laws development, given the substantial added costs to be incurred through appealing in the court system.77 Arbitral precedent may offer an alternate avenue for the laws development. Thus, following on from the idea of greater publication, this section will seek to explore whether precedent does exist both theoretically and practically in arbitration and if so, to what extent. What should be remembered as paramount is that users of ICA primarily seek dispute resolution rather than contribute to the advancement arbitral jurisprudence.78 3.1 Is there a theoretical basis underpinning the existence of precedent At the outset one may think that ICA does not and cannot play a part in the development of laws, particularly because its jurisdiction is enlivened only as a result of an inter-party agreement. These agreements more often than not provide the law to be applied and can limit the scope in which law is applied. Indeed, this is but one means by which parties have been able to gauge some predictability in ICA.79 In these circumstances one could rightfully question how the law could be developed when development particularly operates to extend the law, largely in uncharted areas. To enable a tribunal to develop law, particularly where the law applied does not emanate from the same state as the seat of arbitration, exposes the most controversial issue with ICA developing the law. Indeed as a national law is being applied, it is the legislature, or courts of that state and not ICA which is tasked with the province of lawmaking.80 To further undermine the idea of precedent existing, one needs to only remember that the arbitral award is binding only on the parties before the tribunal, and generally has no immediate effect beyond them.81 This view, although not incorrect does overlook an important feature of ICA. It overlooks that development of the law can occur through legislative and contractual interpretation. In addition to this, ICA tribunals may find themselves confronted by an issue, either yet to be heard before a national court or falling outside of the scope of law provided. Thus, reliance on a form of precedent, if at all, will occur whilst rules are in the course of development and no clear authority exists.82 Whilst particularly clear that arbitral precedent exists in the International Centre for Settlement of Investment Disputes (ICSID) and arbitrators do indeed cite other awards,83 it is far less clear whether such a trend exists in ICA.84 What is clear on the contrary, is that there exists no express prohibition on the application of precedent, nor an express mandate requiring its application. This does, however, merit exploring where precedent may theoretically fit into the ICA regime, and a number of proposals can be put forward on this front. Some have suggested that the doctrine of precedent has through usage and practice attained the status of International customary law.85 Proponents of this view submit that precedent is a universal doctrine of customary practice and can be referred to by arbitral tribunals under Article 31(3)(c) of the Vienna Convention.86 Whilst this argument has merit in regards to ICSID and bilateral investment treaty arbitrations, reliance on principles, such as precedent, which is not confined territorially, provides a less convincing argument in regards to ICA.87 What must be borne in mind here is that ICA tribunals are located in common law, civil law, and even Islamic law nations whereby precedent, and if it indeed exists, will hold a varying degree of applicability. In the scope of ICA where tribunals are applying predominantly a national law to an international transaction, it seems somewhat unusual to attribute to precedent the status of general principle when its very presence itself is uncertain. Following on from this, there is merit in exploring whether there is an intersect in the application of INCOTERMS, lex mercatoria, and trade usages, and whether this results in the creation of a source of arbitral precedent.88 These terms can be broadly seen as a means to framing contractual obligations and interpretation. As such they do not take the place of substantive law in governing a contract, but rather exist in subordination to or in support of the law chosen to apply between the parties. On the other hand, when applying non-national rules such as the UNIDROIT principles, it would be paradoxical to do anything other than look to arbitral precedents, as the alternative is the application of non-national rules to national law.89 To a certain degree, INCOTERMS, lex mercatoria, and the like can be seen as arising out of custom and repeated practice. It has been suggested, whilst acknowledging the oversimplification that given custom is based on precedent and given arbitration is based on custom, arbitration must be equated to precedent.90 The usefulness of such an association is questionable, and to an extent may muddy the waters so to speak, rather than clarify the ambiguity around whether precedent exists. Whilst custom in its various forms maintains an invaluable role in aiding and supplementing transactions between parties, it cannot be the theoretical underpinning that supports the existence of precedent in ICA. The UNCITRAL Model Law on ICA with its 2006 amendments would appear to provide the most appropriate source for a theoretical underpinning of precedent in ICA. However, there is still an absence of any explicit reference to the existence of precedent; precedent can only be founded by way of interpretation. The 2006 amendments saw the introduction of Article 2A ‘International origin and general principles’ and in particular section (1), which makes reference to the ‘need to promote uniformity in its application and observance of good faith’.91 This should however, be read in light of Article 8 of the General Assembly resolution which established the United Nations Commission on International Trade Law (UNCITL). Article 8 sought to further achieve harmonization and unification of international trade law,92 and this can still be seen today as a valued goal by UNCITL.93 Given promotion of uniformity has been a long-standing goal, it comes as no surprise that this is interpreted as imposing a mandatory requirement on arbitral tribunals to take notice of decisions made by other arbitral tribunals.94 If this were, however, to be a mandatory requirement, it would only seem logical to expect a greater sense of clarity in texts as to whether precedent truly exists in ICA. Nevertheless, whilst this part of section III failed to uncover an express theoretical underpinning of precedent in arbitration, the following section will seek to uncover whether any implied basis of precedent has been carried into practical effect. 3.2 Does precedent in ICA exist in practice? ‘For a rule-making mechanism to operate, arbitration awards must be available in sufficient quantity to permit the emergence of trends and the distinction of lines of identical or similar solutions.’95 The above quote highlights that what is needed for precedent to develop effectively is the availability of awards; however, the same is equally needed to identify whether precedent, if at all, has any current operation. As earlier highlighted, the lack of publicized awards will here impair any effort to outline the presence of precedent confidently. Thus, the pre-eminent conclusion to be reached is that one cannot expressly and definitively declare that the doctrine of precedent exists in ICA.96 Whilst not only difficult to gauge, there are proponents who take the view that arbitration as it stands cannot be reconciled with a coherent system of precedent. This position is substantiated by the simple fact that there is inconsistency with the standard of reasoning, if at all any, contained within arbitration awards.97 To an extent this may be a structural incapacity, that is, the tribunal rules do not provide for reasoned awards or at least in the depth required for precedent to develop.98 On the other hand, there may be an express agreement between parties, whether by reason of expediency or confidentiality to only require an award to identify only the successful party and nothing more than that. Nevertheless, arbitrators appear to increasingly refer to, and rely on prior awards.99 Despite the lack of awards available to undertake an in-depth analysis not only of arbitral citation practices but also arbitrator use and reasoning of prior awards, data does exist, albeit to a very limited extent. In particular, one study focused specifically on awards produced by the International Chamber of Commerce. The policy of the Chamber at the time in which this research was conducted mandated the publication of 12 per cent of all awards, notwithstanding with a three-year delay after the award has been handed down.100 Out of a review of 190 awards, approximately 15 per cent had cited prior awards albeit in a limited extent.101 This is comparably better than some other arbitration sectors and in particular, the International Federation of Consulting Engineers. A study of awards handed down by the Federation revealed from a pool of 100 awards, only six referred to previous decisions and almost always focused on statute of limitations questions.102 Likewise, the study on the International Chamber of Commerce awards revealed that arbitrators more often than not cite prior awards on matters of jurisdiction and admissibility.103 Thus, the difference is not by any means overly significant and worthy of celebration; indeed it does not necessarily provide room to conclude that precedent does exist in arbitration. Perhaps the better understanding is ‘that arbitrators do what they want with past cases and that there is no clear practice in this field’.104 Naturally, one would reasonably expect the Convention on Contracts for the International Sale of Goods to be a field professing an abundance of arbitral precedent. This is particularly so given the Conventions importance, which in Australia has seen it incorporated into both State105 and Commonwealth legislation in full, with paramount standing over inconsistent domestic law.106 Of 500 awards available for survey which deal with the Convention, only 100 were available in sufficient detail to examine the operation of precedent.107 Of those 100, only six awards referred to past decisions with limited influence; indeed, scholarly writings appeared to be of greater attraction to arbitrators than prior awards.108 However, particular results in Italy may provide some solace. One particular line of cases dealt with the determination of whether seller guarantees in respect of shares fell within the substantive law of the Italian Civil Code or were to be treated as sui generis contractual guarantees.109 Five arbitral awards were decided in a consistent manner.110 Whilst facing the challenge of inconsistent decisions handed down by the Italian Corte di Cassassione, the eventual awards were not only decided consistently, but also all took up a consistent approach in deciding the issue. Although not binding on one another, these awards have been able to produce homogenous persuasive authority, which arguably would be of important focus were the issue to arise once again.111 Whether or not this falls inline with the idea that tribunals operating in ‘specialised commercial contexts’ tend to create case law,112 or whether this indicates a broader appreciation of case law is open to be determined. What can be confirmed, however, is further more valuable analysis is contingent upon greater award availability, particularly as precedent be it binding or persuasive, necessitates publication at minimum to a sample size representative of past awards.113 In addition, any possibility to examine the perceived view of arbitrators as ‘law makers’, by way of case law to say the least, will have to wait until the prerequisite of publication is improved.114 Yet, what further analysis cannot account for is the instances in which arbitrators have prior cases in mind and do indeed place reliance on them, but because they have not previously been published the content of those awards remains unknown to parties.115 In situations of the like, the Paris Cour d’appel has previously held that there is no due process right obliging arbitrators to provide parties with unpublished awards it intends to rely on, prior to handing down its decision.116 To this authors knowledge there is nothing to suggest that this position has since changed. Whether in this instance an arbitrator has cited a prior award out of an abundance of caution, or whether they have independent reasons such as morality remains unknown.117 What this section has inevitably shown is that precedent has neither been worshipped nor entirely ignored;118 the following section will explore how precedent can, however, maintain a more consistent place in ICA. 4. IS THERE A PLACE FOR PRECEDENT IN ICA? 4.1 A greater presence for precedent in ICA ‘Reasoned, accessible awards may yield a system of arbitral precedent by provoking a process of reflection, deliberation, and consensus building among arbitrators.’119 It may be thought that to endorse greater use of precedent may require substantial reform to current ICA practices; however, this is largely determinant on the conception of precedent held in mind. With common law conceptions of precedent, which broadly speaking have binding implications, the presence of appellate tribunals to ensure not only a system of hierarchy,120 but also uniformity across cases,121 suddenly becomes relevant to considerations. Such reform is likely to come about only if the users are willing to pay for such a service,122 and in a system largely driven by user needs, ICA would not necessarily seem to be conducive to precedent building.123 Thus, what is needed is rather a system which will not blindly bind, but rather takes greater focus on the norm being propagated within.124 At least for the purposes of ICA there would need to be a shift away from the conception of precedent as being predominantly binding. What is in need is a system which operates horizontally, particularly as there is no means by which to create a meaningful hierarchical ordering amongst existing tribunals, or at least in a consensual manner. Without hierarchy and alongside the emergence of more arbitration institutions, there is a reasonable expectation that there will be an increase in overlap and contradiction in reasoning and results.125 This is exactly where precedent may indeed have a part to play. Before proceeding with this idea further, it is perhaps appropriate to deal with what has to date been seen by some as a hindrance to establishing greater uniformity in ICA. The difference between common law and civil law has been seen as a barrier to achieving uniformity, and particularly so in respect of precedent, given it exists as an outright doctrine in the former whilst in the latter it may indeed exist in a much watered down form. The doctrine of precedent is embedded within common law and mandates that a court be bound by prior decisions where those decisions have been handed down by a court with higher authority in the hierarchy.126 Although the doctrine has worked relatively well, it has also been acknowledged to have its limitations and where courts have needed to, a departure from precedent has occurred. As Lord Denning rightfully said ‘If we never do anything which has not been done before …. The law will stand still whilst the rest of the world goes on’.127 In contrast, civil law does not place the same emphasis on precedent, but it is also not discarded outright. Civil law nations have in contrast taken up notions such as jurisprudence constante, arrêt de principe, standige Rechtsprechung and Rechtserkenntnisquelle.128 Without undermining and simplifying the importance of such principles, they broadly involve the consideration of prior cases, particularly where there is a long line of consistent reasoning.129 Most importantly, such notions do not form a source of law-like precedent which is binding on the court.130 Nevertheless, a civil law judge may also apply the stare decisis of a prior decision simply out of a fear of being overturned on appeal.131 Over time, distinctions between common law and civil law such as that highlighted above, are losing ground day after day in the realm of arbitration,132 as arbitration has become a unique combination of both systems.133 It may be argued that arbitral awards have no precedential value in ICA, particularly because the tribunal is not pronouncing a judgment in the name of a state.134 This does, however, overlook the fact that precedent can have value beyond its lawmaking function. In its defacto form as opposed to de jure form, civil law tends to require that a prior decision be seriously considered as there is no obligatory requirement imposed on a body to follow a decision.135 As such, an arbitrator may indeed find themselves inspired by a prior award.136 Given the lack of hierarchy, this then requires dealing with the notion, what makes a decision of another tribunal persuasive.137 One response to this is that an arbitrator may seek out an award on the basis that they themselves are intrigued into how others have handled the issue.138 This in itself does not, however, identify why they should afford that reasoning any weight. An award may carry persuasive authority as a result of the arbitrator standing behind the award.139 Some arbitrators will inevitably be held in higher esteem not only by the arbitrating parties, but also more importantly by their fellow arbitrator colleagues,140 which can then bolster support for results in a subsequent case.141 Nevertheless, an arbitrator remains unbound by a previous decision because at the end of the day it must be remembered that arbitrators get their power as a result of party autonomy which entails no duty to national law.142 However, what provides for greater persuasion than simply the reputation of the arbitrator is the reasoning they offer which substantiates their award. To maintain a high standard of persuasion what is required is that the substance of the decision displays a degree of homogeneity with prior arbitral awards.143 Perhaps also to an extent homogeneity with national courts where they have applied the same law in question to international contracting parties in an international context. Thus, where a subsequent arbitrator is called upon to decide a similar point of law, the earlier authority will undoubtedly exert persuasive authority in reaching a decision.144 Whether this consistency establishes a norm so to speak is up for debate; what is clear, however, is that a subsequent judge cannot indiscriminately apply this norm.145 Every judge, and arbitrator for that matter, decides the legal question before them according to their own convictions.146 In such a system an arbitrator’s conviction is enlivened by precedent as the starting point,147 whereby precedent provokes a process of reflection and deliberation which ultimately seeks to be a consensus building exercise.148 Inevitably the value of precedent in ICA becomes linked to the quality of the prior awards.149 As such, persuasiveness so to speak requires more than just the idea of precedent to exist. Precedent does not only require reflection and deliberation of the material before the tribunal. Arguably, precedent instils upon an arbitrator a moral obligation to follow precedent in order to foster a normative environment which entails a certain level of predictability.150 Contrarily, whether there exists a legal obligation to do so is a matter open for debate.151 In this application, precedent in no means exists to bind future parties, but rather seeks to impose a level of influence which will shape the behaviour of both arbitrators and contracting parties,152 the former perhaps more accurately described as a ‘decisional burden’.153 Crucially, what this maintains is that each case is decided on its own merits, leaving sole discretion to the arbitrator as to how a prior award is to affect the present dispute, if at all.154 Whilst an arbitrator may rely on a past award in a consistent line of cases,155 precedent may also be seen to obligate an arbitrator to explain their departure or change of position from preceding cases.156 Such an explanation is vital not only in fostering a change in the laws application but also fostering acceptance of that change, given a lack of consistency contributes to mistrust in ICA.157 Indeed, depending on the quality of the award it may even go a long way to engendering voluntary compliance, thus disposing of the need of subsequent enforcement proceedings, and even potentially disposing of appeal proceedings. 4.2 Precedent in ICA: a beneficial possibility or an admirable goal? ‘Forcibly imposed transparency reforms would have to be imposed at the international level, and would ultimately require a fundamental reordering of the system.’158 Precedent would go a long way in making the law both clear and predictable whilst maintaining development in a principled fashion which has been accurately described as forming a ‘bedrock’.159 It is this bedrock upon which contracting parties order their affairs and determine whether they will bind themselves through contractual agreements.160 Consistent following of precedent has been associated with a freeze in the law;161 to avoid this requires a balance between certainty and evolution of the law,162 which as this piece has argued, is likely best achieved by non-binding precedent. Whilst others have argued that binding precedent can ‘harmonize and advance commercial law and practice’,163 this is at best an admirable goal.164 Nevertheless, evolution of the law, or elsewhere discussed as development of the law is not by any means a recent concern; what Lord Thomas has done is merely reignite debate. His Honour Carston Smith during his time as Chief Justice of the Supreme Court of Norway raised the same concerns over arbitration preventing courts from developing commercial precedent in 1992.165 Development may not occur in the sense that a tribunal will enter unchartered territory and produce a binding law as would a court. This is to be held in contrast to the idea that when applying a national law in ICA, the law is sufficiently developed to be predictable, and the arbitrator has no role in developing rules of a national law.166 It cannot be said that an arbitrator will never have to extend the law to a new or specific scenario. In doing so, there is argument to be made that in application of law, an arbitrator may form a consistent line of precedent, and in this particular context of arbitration, an arbitrator may be viewed as a legitimate producer of law.167 A better terminology for this practice would appear to be ‘soft lawmaking’,168 where arbitrators have indeed shown concern regarding the potential impact of their awards on the laws development.169 What would appear to add further to this soft lawmaking power is the esteem in which commercial arbitrators have been held by particular judges. In this regard, Lord Denning expressed his view that arbitrators in ICA were better placed to make contractual interpretations and determinations with a greater commercial sense.170 Indeed, he went so far as to say that in a one-off case as is typically the situation in ICA, an arbitrator would be more likely to make the correct decision in comparison to a judge, as a judge is likely to take a strict literal sense to a contract.171 It, therefore, comes as no surprise that courts have taken the stance of not second guessing the substantive correctness behind arbitral awards.172 Further supporting this acceptance is the understanding of the judiciary that parties themselves have agreed to submit to the arbitrator for a final decision rather than to a judge.173 Given the importance of finality mentioned here, it is important to highlight in what manner the use of precedent may affect finality. Rather than hinder finality, precedent can act to bolster finality, particularly as a lack of precedent would result in commercial parties repeatedly having to arbitrate to resolve similar disputes.174 Whilst it had been earlier highlighted that there are likely to be heavily divergent cases, it would be somewhat of a naiveté to suggest that no like cases will ever be decided. Perhaps non-binding precedent would garner greater support when viewed in another light. In a recent survey,175 participants indicated that counsel in arbitration would be best off working with opposing counsel to narrow the issues in dispute, which may even foster support for settlement.176 Precedent would have a role here particularly where a line of consistent decisions exist, as reliance on precedent could shorten the length of submissions, shorten deliberation before an arbitrator, and indeed shorten the time an arbitrator takes to hand down an award. Unsurprisingly, this was the number one response when participants were asked what could arbitration do better,177 which is inevitably linked to participants’ dissatisfaction with the cost of arbitration, seen here as ICA’s worst feature.178 Whilst a court system receives public subsidies, arbitration relies on the private funding of disputants. Thus, to introduce any form of precedent would at first require an increase in the overall cost of arbitration, as it would involve more extensive award writing and secondly, a system of publication whereby awards would be accessible. Whether or not this cost would be offset at a later date by reducing the scope of proceedings and improving the efficiency at which they are run is unknown. Perhaps the cost feasibility of promoting precedent is best left to a pilot programme which would be able to make conclusions in a cost–benefit analysis. 5. CONCLUDING REMARKS This article has sought to give light to ongoing concerns of transparency in ICA. In doing so, this article offered an account of why transparency is seen as a necessity in arbitration, and has examined various ways in which it can be achieved. First, this article examined the confidential nature of ICA and why it has proven to be problematic. It must be admitted there remains certain concerns of parties which ought to be protected through maintaining confidentiality in certain proceedings and awards. More generally, however, a greater balance needs to be achieved between confidentiality and transparency, which this article has identified could be more readily done through greater publication practices. Moving forward to the idea of precedent in ICA, this article explored whether there was a theoretical underpinning of precedent in ICA and secondly whether precedent existed in practice. Generally, this question could not be firmly answered at least to the extent of current practices. Whilst there are various indications that precedent has a place in ICA, the scope of such a presence cannot be gauged accurately without further examination of awards which are currently either inaccessible or unpublished. In light of this, it was argued that perhaps the better approach to shedding light on ICA was to move away from common law conceptions of precedent towards a non-binding, persuasive system of precedent. Doing so would likely foster greater support amongst both arbitral institutions and disputants which is crucial to implementing any change. At this point what should be remembered is that precedent is inherently associated with a minimum level of award publication, as the former cannot develop effectively without the latter. This in itself is not a small feat to achieve and although transparency is a worthwhile objective, the likelihood of generating political support for such reform is uncertain.179 Nevertheless, such support is crucial in achieving such change. What can be stated with confidence, however, is that concerns around confidentiality, publication, precedent and the overarching theme of transparency will not leave the field of ICA just yet. Perhaps the next question to be asked is, is a system of precedent better suited to substantive law or arbitral procedural law? Indeed, the forum is ideally set for further discussion given the theme set for the next International Council for Commercial Arbitration conference to be held in 2018: ‘Evolution and Adaption: The Future of International Arbitration’.180 If ICA is to achieve or maintain its status as an autonomous dispute resolution system, acknowledging the role of precedent is a necessary precondition.181 Footnotes 1 Francisco Blavi, ‘The Role of Arbitral Precedent in International Commercial Arbitration: Present and Future Developments’ (2015) 6 Resolved: Journal of Alternative Dispute Resolution 1, 2. 2 Akshay Kolse-Patil, ‘Precedents in Investor State Arbitration’ (2010) 3 The Indian Journal of International Economic Law 37, 46. 3 Vijaya Kumar Rajah, ‘W(h)ither Adversarial Commercial Dispute Resolution?’ (2017) 33 Arbitration International 17, 18. 4 ibid 17; William Rowley, London ArbitrationunderAttack (1 August 2016) The International Dispute Resolution Centre Limited, 10 <https://www.idrc.co.uk/media/26078/rowley_-_london_arbitration_under_attack.pdf> accessed 23 March 2018. 5 Sir Bernard Eder, ‘Does Arbitration Stifle Development of the Law? Should s.69 be Revitalised?’ (Paper presented at Chartered Institute of Arbitrators AGM Keynote Address, London, 28 April 2016) <https://www.londonarbitrators.org/does-arbitration-stifle-development-law-should-s69-be-revitalised-sir-bernard-eders-keynote-address> accessed 23 March 2018. 6 Lord Thomas, ‘Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts and Arbitration’ (Paper presented at The Bailii Lecture, London, 9 March 2016) <https://www.judiciary.gov.uk/wp-content/uploads/2016/03/lcj-speech-bailli-lecture-20160309.pdf> accessed 23 March 2018 . 7 Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 Journal of International Dispute Settlement 5. 8 Mark C Weidemaier, ‘Toward a Theory of Precedent in Arbitration’ (2010) 51 William and Mary Law Review 1895, 1899. 9 Klaus Peter Berger, ‘To What Extent Should Arbitrators Respect Domestic Case Law? The German Experience Regarding the Law on Standard Terms’ (2016) 32 Arbitration International 243. 10 Quentin Tannock, ‘Judging the Effectiveness of Arbitration through the Assessment of Compliance with and Enforcement of International Arbitration Awards’ (2005) 21 Arbitration International 71, 74. 11 It is important at this point to highlight that although this piece focuses specifically on international commercial arbitration, the issues discussed are widely applicable to all forms of arbitration. As such this piece also makes use of text which has specific focus on other forms of arbitration but nevertheless remains relevant to the discussions within this article. 12 Weidemaier (n 8); Laurie Kratky Dore, ‘Public Courts versus Private Justice: It’s Time to Let Some Sun Shine in on Alternative Dispute Resolution’ (2006) 81 Chicago-Kent Law Review 463, 483; Yves Fortier, ‘The Occasionally Unwarranted Assumption of Confidentiality’ (1999) 15 Arbitration International 131, 137. 13 Michael Young and Simon Chapman, ‘Confidentiality in International Arbitration – Does the Exception Prove the Rule?’ (2009) 27 ASA Bulletin 26, 28. 14 François Perret, ‘Is There a Need for Consistency in International Commercial Arbitration?’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 25, 60. 15 Young and Chapman (n 13) 29; Thomas (n 6) 17. 16 Georgious I Zekos, ‘Precedent and Stare Decisis by Arbitrations and Courts in Globalization’ (2009) 10 The Journal of World Investment & Trade 475, 481. 17 Chief Justice Sundaresh Menon, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’ (Paper presented at the Joint Plenary Opening Session A1 International Council for Commercial Arbitration, Singapore, 11 June 2012) 17 <http://www.arbitration-icca.org/media/0/13398435632250/ags_opening_speech_icca_congress_2012.pdf> accessed 23 March 2018. 18 Joyiyoti Misra and Roman Jordans, ‘Confidentiality in International Arbitration – An Introspection of the Public Interest Exception’ (2006) 23 Journal of International Arbitration 39. 19 Diego P Fernández Arroyo, ‘Private Adjudication Without Precedent?’ in Horatia Muir Watt and Diego P Fernández Arroyo (eds), Private International Law and Global Governance (OUP 2014) 119. 20 Richard Garnett, ‘The Resurgance of Litigation in International Commercial Disputes’ (Paper presented at 2016 Supreme Court of Victoria Commercial Law Conference, Melbourne, 13 October 2016) 5 <http://law.unimelb.edu.au/__data/assets/pdf_file/0010/2154484/SCV-Conference-2016_Richard-Garnett.pdf> accessed 23 March 2018. 21 Joseph F Anderson Jr, ‘Hidden from the Public by Order of the Court: The Case Against Government-Enforced Secrecy’ (2004) 55 South Carolina Law Review 711, 715; Maria Glover, ‘Disappearing Claims and the Erosion of Substantive Law’ (2015) 124 The Yale Law Journal 3052, 3055. 22 Llewellyn Joseph Gibbons, ‘Private Law, Public "Justice": Another Look at Privacy, Arbitration, and Global E-Commerce’ (2000) 15 Ohio State Journal on Dispute Resolution 769, 787; Dore (n 12) 491. 23 Glover (n 21). 24 Epaminondas GE Embiricos, ‘Appeals from Arbitration Awards’ (Paper presented at the London Maritime Arbitrators Association 50th Anniversary Conference, London Guildhall, 18 March 2010) 4 <http://www.lmaa.london/uploads/documents/C50AppealsfromArbitrationAwards.pdf> accessed 23 March 2018. 25 Dore (n 12) 514. 26 Young and Chapman (n 13) 31. 27 Perret (n 14). 28 Eder (n 5) 3. 29 Thomas (n 6) 15. 30 Ermott v Michael Wilson & Partners Ltd (No 2) [2009] 2 ALL ER 856, 865; Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] 4 All ER 746, 769; Esso Australia Resources Limited and Others v Plowman and Others (1995) 128 ALR 391, 403-404; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, 680–82. 31 François Dessemontet, ‘Arbitration and Confidentiality’ (1996) 7 The American Review of International Arbitration 299, 312–13; Misra and Jordans (n 18) 42; Case T–353/94 Postbank NV v Commission of the European Communities [1996] ECR II–8, 90. 32 Alexis Mourre, ‘Precedent and Confidentiality in International Commercial Arbitration: The Case for the Publication of Arbitral Awards’ in Banifatemi (n 14) 39. 33 TCL Air Conditioner (Zhongshan) Co LTD v Castel Electronics Pty Ltd (2014) 311 ALR 387, 387–88. 34 International Arbitration Act 1974 (Cth) s 7(5). 35 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1959, 330 UNTS 3 (entered into force 7 June 1959) art V. 36 Rajah (n 3) 25; Irene Ten Cate, ‘International Arbitration and the Ends of Appellate Review’ (2012) 44 New York University Journal of International Law and Politics 1109, 1166. 37 A review of the following cases is by no means extensive or in depth; the purpose is merely to illustrate that the courts are capable in making such determinations around confidentiality. 38 Esso Australia Resources Limited and Others v Plowman and Others (1995) 128 ALR 391, 403–04. 39 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662, 680. 40 Eagle vFred Martin Motor Co, 809 NE 2d 1161, 1163–64 (Ohio Ct App, 2004). 41 Patrick Neill, ‘Confidentiality in Arbitration’ (1996) 12 Arbitration International 287, 316; Young and Chapman (n 13) 29. 42 Young and Chapman, ibid 29. 43 Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company of Zurich [2003] 1 All ER 253, 257-260. 44 Commercial Arbitration Act 2011 (Vic) s27F-s27I; although the Victorian legislation is cited here, the reform was part of a desire to have uniform State laws on arbitration, with Canberra being the final legislature to complete the nationwide unification – the Commercial Arbitration Act 2017 (ACT) is set to commence on 4th October 2017, <http://www.legislation.act.gov.au/a/2017-7/default.asp> accessed 23 March 2018. 45 International Arbitration Act 1974 (Cth) s23C-23G; like the domestic acts, these changes essentially leave challenging confidentiality only to the parties in the dispute, effectively preventing a member of the public from challenging where there may be a legitimate public concern at stake. 46 Jan Paulsson cited in Catherine Rogers, ‘Transparency in International Commercial Arbitration’ (2006) 54 Kansas Law Review 1301, 1336. 47 Associated Electric and Gas Insurance Services Ltd (n 43) 258. 48 Glover (n 21). 49 Harpreet Kaur Dhillon, ‘A Regulatory Framework for Arbitrators and Increased Arbitral Accountability: Ideas to Reinvigorate Arbitration or Stifle It?’ (2013) 79 The International Journal of Arbitration, Mediation and Dispute Management 279, 280; Sir Bernard Rix, ‘Confidentiality in International Arbitration: Virtue or Vice?’ (Paper presented at the Jones Day Professoship in Commercial Law Lecture SMU, Singapore, 12 March 2015); <https://law.smu.edu.sg/sites/default/files/law/CEBCLA/Notes_Confidentiality_in_International_Arbitration.pdf> accessed on 23 March 2018. AITrade Finanace Incand Bulgarian Foreign Trade Bank vGiroCredit Bank Aktiengesells-chaft der Sparkassen (Supreme Court of Sweeden) (Stephen Bond and Frédéric Bachand, trans) 1235. 50 Re Anonymous, 283 F 3d 627, 637 (4th Cir, 2002); Dore (n 12) 493. 51 Unreasoned awards do not offer much utility as they may not go beyond basic facts of who it involved and which party won; Weidemaier (n 8) 1914–16. 52 Precedent here appears in commas because whether it does exist or should exist is to be explored later in this article. 53 William Landes and Richard Posner, ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1976) 19 The Journal of Law and Economics 249, 272. 54 As will be seen these benefits are contingent on the existence of a sufficient case base. 55 Weidemaier (n 8) 1927. 56 David Rivkin, ‘The Impact of International Arbitration on the Rule of Law’ (2013) 29 Arbitration International 327, 340. 57 Dhillon (n 49) 282; Menon (n 17) 19. 58 Alan Redfern, ‘The 2003 – Freshfields – Lecture Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly’ (2004) 20 Arbitration International 223, 234. 59 Jan Paulsson, ‘Moral Hazard in International Dispute Resolution’ (Paper presented at Inaugural Lecture as Holder of the Michael R Klein Distinguished Scholar Chair, University of Miami School of Law, 29 April 2010) 8 <http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf> accessed 23 March 2018. 60 Westport Insurance Corporation and Others v Gordian Runoff Ltd (2011) 281 ALR 593, 607. 61 Menon (n 17) 20. 62 United Nations Commission on International Trade Law, Report of the Secretary-General: Possible Features of a Model Law on International Commercial Arbitration, 14th Session, Agenda Item 101, UN Doc A/CN.9/207 (19–26 June 1981) [90]. 63 Dore (n 12) 486. 64 Eder (n 5) 3. 65 Rajah (n 3) 30; More recently, this can be seen in the launch of the Panel of Recognized International Market Experts in Finance (PRIME Finance) in The Hague. 66 Embiricos (n 24) 3. 67 Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arbitration International 357, 378. 68 Thomas (n 6) 10. 69 Richard Alderman, ‘Consumer Arbitration: The Destruction of Common Law’ (2003) 2 Journal of American Arbitration 1, 11; Weidemaier (n 8) 1904. 70 Dore (n 12) 502–03; Andrea Martignoni and Natalie Oliver, ‘International Arbitration – The Winds of Change’ (2017) 4 Australian Alternative Dispute Resolution Law Bulletin 11, 16. 71 Emmanuel Gaillard, ‘Foreword’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 1, 9. 72 Young and Chapman (n 13) 46. 73 Catherine Rogers, ‘Transparency in International Commercial Arbitration’ (2006) 54 Kansas Law Review 1301, 1302. 74 Tannock (n 10) 73–74. 75 Lord Saville, ‘International Financial Services Conference: Has London Met the Challenge?: Preface’ (2007)23 Arbitration International 431. 76 1996 (UK) c 23. 77 Indeed, if appellate reforms were to be made I would broadly support the views put forward in Dalma R Demeter and Kayleigh M Smith, ‘The Implications of International Commercial Courts on Arbitration’ (2016) 33 Journal of International Arbitration 441. 78 Sophie Nappert, ‘By Wit of Fortune Led: Thoughts on A Role for Precedent in International Commercial Arbitration’ (2008) 5 Transnational Dispute Management 2, 5. 79 Klaus Peter Berger, ‘The International Arbitrators’ Application of Precedents’ (1992) 9 Journal of International Arbitration 5, 11. 80 Nappert (n 78). 81 Phillip Landolt, ‘Arbitrators’ Initiatives to Obtain Factual and Legal Evidence’ (2012) 28 Arbitration International 173, 214. 82 Nappert (n 78). 83 Weidemaier (n 8) 1895. 84 Frank Spoorenberg and Jorge Vinuales, ‘Conflicting Decisions in International Arbitration’ (2009) 8 The Law of Practice of International Courts and Tribunals 91, 103; Kaufmann-Kohler (n 67) 372. 85 Mary Ayad, ‘The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea’ (2013) 14 The Journal of World Investment and Trade 918, 929. 86 ibid 919. 87 ibid 919–21. 88 Brian King and Rahim Moloo, ‘International Arbitrators as Lawmakers’ (2014) 46 New York University Journal of International Law and Politics 875, 888–89; Arroyo (n 19) 139. 89 Mourre (n 32) 51. 90 Ayad (n 85) 933. 91 See n 62; United Nations Commission on International Trade Law, UNCITRAL Model Law on International Arbitration 1985 with Amendments adopted in 2006, GA Res 61/33, UN GAOR, 61st session, 64th mtg, Agenda Item 77, UN Doc A/RES/61/33 (18 December 2006). 92 General Assembly: Resolutions Adopted on the Reports of the Sixth Committee, Establishment of the United Nations Commission on International Trade Law, GA Res 2205, UN GAOR, C.5 Comm, 21st session, 1497th mtg, Agenda Item 88 (17 December 1966) [99]–[100]. 93 United Nations Commission on International Trade Law, UNCITRAL Model Law on International arbitration 1985 with Amendments adopted in 2006 (United Nations Publication) pt III [39]–[40]. 94 Arroyo (n 19) 139; Servicios Administrativos de Emergencia SAde CVvADTSecurity Services SAde CV, Tercer Tribunal Colegiado en Materia Civil, Primer Circuito (Mexico, 19 May 2005) RC 14/2005. 95 Mourre (n 32) 48. 96 Arroyo (n 19) 126. 97 Weidemaier (n 12) 1914. 98 ibid; Enron Corp (Enron Corp & Ponderosa Assets, LP v Argentine Republic) (Decision on Jurisdiction) (ICSID Case No ARB/01/03, 2 August 2004) 12–13. 99 Kaufmann-Kohler (n 67) 357. 100 Mourre (n 32) 60. 101 Kaufmann-Kohler (n 67) 362. 102 Guillaume (n 7) 15. 103 ibid. 104 Kaufmann-Kohler (n 67) 362. 105 Goods Act 1958 (Vic) s 87. 106 Australian Competition and Consumer Act 2010 (Cth) s68; has paramount standing only within inconsistencies in the consumer act. 107 Kaufmann-Kohler (n 67) 362. 108 ibid. 109 Perret (n 14) 34–35. 110 Perret, ibid 36–37; Franco Bonelli, ‘Acquisizioni di societa e di pacchetti azionari di Riferimento: Le garanzie del venditore’ (2007) 21 Diritto Del Commercio Internazionale 293, 312. 111 Perret (n 14) 36. 112 King and Moloo (n 88) 888. 113 Nappert (n 78) 3. 114 King and Moloo (n 88) 876. 115 Berger (n 79) 21. 116 ibid. 117 Kaufmann-Kohler (n 67) 363; 374. 118 Guillaume (n 7). 119 Weidemaier (n 8) 1925. 120 Nappert (n 78). 121 Berger (n 79) 12; Alan Redfern, ‘International Commercial Arbitration: Winning the Battle’ in The Southwestern Legal Foundation (ed), Private Investors Abroad (Dallas 1989) 11–12. 122 Mark C Weidemaier, ‘Judging-Lite: How Arbitrators Use and Create Precedent (2012) 90 North Carolina Law Review 1091, 1122. 123 Nappert (n 78) 6. 124 Berger (n 79) 8. 125 Guillaume (n 7) 18. 126 Berger (n 9) 250–51. 127 Packer v Packer [1953] 2 All ER 127, 130. 128 Kaufmann-Kohler (n 67) 359–60; Berger (n 9) 254; Guillaume (n 7) 6. 129 ibid. 130 ibid. 131 Berger (n 9) 250. 132 Arroyo (n 19) 121. 133 Gabrielle Kaufmann-Kohler, ‘Globalization of Arbitral Procedure’ (2003) 36 Vanderbilt Journal of Transnational Law 1313; Bernard Hanotiau, ‘International Arbitration in a Global Economy: The Challenges of the Future’ (2011) Journal of International Arbitration 89, 97–98. 134 Landolt (n 81) 186. 135 Arroyo (n 19) 121–23; Berger (n 9) 251–53. 136 Guillaume (n 7) 6. 137 Nappert (n 78). 138 Berger (n 79) 19. 139 Blavi (n 1) 7. 140 Tai-Heng Cheng, ‘Precedent and Control in Investment Treaty Arbitration’ (2006) 30 Fordham International Law Journal 1014, 1046. 141 William Park, ‘The Predictability Paradox – Arbitrators and Applicable Law’ in Faboio Bortolotti and Pierre Mayer (eds), The Application of Substantive Law by International Arbitrators (International Chamber of Commerce 2014) 60, 64; Barton Legum, ‘The Definitions of “Precedent” in International Arbitration’ in Yas Banifatemi (ed), Precedent in International Arbitration (Juris Publishing 2008) 5, 14.
 142 Blavi (n 1) 4. 143 Jeffery Commission, ‘Precedent in Investment Treaty Arbitration – A Citation Analysis of Developing Jurisprudence’ (2007) 24 Journal of International Arbitration 129, 135. 144 Perret (n 14) 25, 33; Christian Larroumet, ‘A Propos De La Jurisprudence Arbitrale’ (2006) 348 Gazette du Palais 5. 145 Berger (n 79) 8. 146 ibid. 147 ibid 5. 148 Weidemaier (n 8) 1925. 149 Nappert (n 78) 6. 150 Kaufmann-Kohler (n 67) 363, 374. 151 ibid. 152 King and Moloo (n 88) 883; Weidemaier (n 8) 1901. 153 Irene Ten Cate, ‘The Costs of Consistency: Precedent in Investment Treaty Arbitration’ (2013) 51 Columbia Journal of Transnational Law 418, 421. 154 Charles Brower, Michael Ottolenghi and Peter Prows, ‘The Saga of CMS: Res Judicata, Precedent, and the Legitimacy of ICSID Arbitration’ in Christina Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreur (OUP 2009) 843, 863. 155 Weidemaier (n 8) 1895. 156 Daimler Financial Services (Daimler v Argentina) (Opinion of Professor Domingo Bello Janeiro) (ICSID Case No ARB/05/01, 16 August 2012) [1] fn 4; Daimler Financial Services (Daimler v Argentina) (Award) (ICSID Case No ARB/05/01, 22 August 2012). 157 Ayad (n 85) 935. 158 Rogers (n 73) 1303. 159 Thomas (n 6) 2. 160 ibid. 161 Guillaume (n 7) 6. 162 ibid. 163 Rajah (n 3) 27. 164 Reiterating there is no hierarchical system in ICA, and given the independence of arbitral institutions, this is very unlikely to occur without some overriding global treaty. It would involve a substantial overhaul of current ICA practices, thus it is unlikely receive meaningful support. 165 Gillis Wetter, ‘The Internationalization of International Arbitration: Looking Ahead to the Next Ten Years’ (1995) 11 Arbitration International 117, 131. 166 Kaufmann-Kohler (n 67) 363, 375. 167 Weidemaier (n 8) 1895. 168 King and Moloo (n 88) 883. 169 ibid 877; Blavi (n 1) 6. 170 BTP Tioxide Ltd v Pioneer Shipping (The Nema) [1980] 1 QB 547, 564–65. 171 ibid. 172 Ten Cate (n 36) 1123. 173 BTP Tioxide Ltd (n 170) 565. 174 Embiricos (n 24). 175 It is worth noting here that a large portion of the participants in this survey were indeed private practitioners, arbitrators, and in-house counsel; together they represented 80% of respondents. Thus, what should be questioned is would the parties actually involved in arbitration respond in a similar manner? 176 White and Case and Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration (Report No 3, 6 October 2015) 3. 177 ibid 30. 178 ibid 2. 179 Rogers (n 73) 1328. 180 Donald Donovan, ICCA 2018 Congress Sydney: 15–18 April (2017) (International Council for Commercial Arbitration) <http://www.arbitration-icca.org/conferences-and-congresses/ICCA_2016_Congress_Mauritius/ICCA_2018_Congress_Sydney.html> accessed 23 March 2018. 181 Blavi (n 1) 10. © The Author(s) 2018. Published by Oxford University Press on behalf of the London Court of International Arbitration. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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