Can Justice Be Served Without Transparency in International Commercial Arbitration?

Transparency is not to be construed as a waiver of the rights to confidentiality of the parties. The Rule of Law, Court Procedural Rules, accountability and transparent legal processes undoubtedly have been the cornerstones of litigation, and foundation of the Courts, rendering justice to the disputants. The international commercial arbitration enshrined with party autonomy and confidentiality, is a forum with an objective of preserving business-sensitive information and identities of the parties, from the public domain. This feature of arbitration was neither designed to imply secrecy in arbitral procedure, nor in the administration by any institution. The transparency of litigation in Courts, if enhances the trust of the parties and provides a just and legal forum for the redress of their issues, shouldn’t the parties then be expecting the same or better quality of transparency and justice, when they opt for arbitration, as an alternative dispute resolution forum?The recent launch of UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitrations which focused on disclosure or publication of information related to an arbitration matter is a welcome step in setting the stage for future ICSID arbitrations. Now, the next step is the need to elaborate on the importance of transparency, in corporate governance of international commercial arbitral institutions (“AI”), in terms of their accountability to stakeholders. This Paper endeavours to set the stage for the development of “UNCITRAL Rules for Corporate Governance of International Arbitral Institutions,” for ensuring transparency and accountability in administration of international commercial arbitrations. The objective is that AIs should also be aligned with some Principles of Corporate Governance, like OECD, so as to make international arbitrations transparent and fair for the business entities. The transparent and fair governance of an AI will minimize avenues for pursuing trials in appeal courts after the arbitration as underlying secondary objectives of some parties, under the pretext of need for development or evolution of laws. The balance between privacy, confidentiality, transparency of the due process and development of arbitration law can only be achieved through a uniform framework of code of corporate governance for the AIs. The UNCITRAL is the most appropriate neutral body for the development of such a framework