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Essay / Transparency in Arbitration - 2989
IntroductionA key aspect of any democratic society is the right to information which guarantees citizens knowledge of the activities of their government. This right is an expression of the public interest that, since it is taxpayers who fund government programs, they have a legitimate interest in knowing how their funds are used. Arbitration as an alternative means of dispute resolution has the main advantages of being faster and confidential than the litigation process; thereby safeguarding the commercial interests of the parties to the arbitrations. This public interest of; Protecting the commercial nature of arbitration appears to conflict with the public interest of citizens having access to state-held information that may arise from arbitration proceedings. The question, then, is whether public bodies should forgo the benefits of arbitration, relative to litigation. in the name of guaranteeing the right to information. What if there was a way for agencies to enjoy all the benefits of arbitration while ensuring the public interest in their transactions? By considering the right to information, the degree of confidentiality in arbitration proceedings as well as the permissible levels of transparency in arbitration, this essay demonstrates that arbitration as a means of resolving disputes involving state agencies should not be excluded due to its strict confidentiality requirements. Transparency in Arbitration Proponents of increased transparency in commercial arbitration rely on public participation in many of the issues decided in commercial arbitration. They argue that the public interest necessitated measures such as mandatory publication of paper documents, which goes well beyond simply amending the UNCITRAL Rules. There are other aspects, for example the question of applicable law or State immunity. UNCITRAL should formulate its transparency standards in the form of rules rather than guidelines, because rules carry more weight in facilitating arbitrations than guidelines. Transparency helps promote the rule of law, good governance, due process and the right of access to information. In conclusion, it is possible for the parties to include a provision requiring confidentiality of evidence and the arbitration procedure. However, it must be understood that this right is not absolute. Therefore, since the requirement of confidentiality in arbitral proceedings is not absolute, courts may intervene to remove confidentiality where there is a substantial public interest in the subject matter of the dispute.. .