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Abstract

This article considers the degree of confidentiality that applies to three forms of international dispute resolution: interState, investor-State and international commercial arbitration. The degree of confidentiality associated with investment arbitration led to calls for reform, which have led to new mechanisms and proposals to increase transparency. Problems are, however, still generated by the degree of confidentiality that persists. International commercial arbitration retains a higher degree of confidentiality, but it is now increasingly a forum for the resolution of disputes in which the parties are not the only ones to have a legitimate interest. Furthermore, prominent judges have expressed the view that so many commercial disputes are now submitted to confidential arbitration that the development of the common law is suffering. When parties to a commercial arbitration have agreed that it should be confidential, then subject to applicable law, that should and will be the position. When, however, they have not so agreed, there are good reasons to consider that an award rendered in an international commercial arbitration should not by default be confidential.

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