Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 151

NUMÉRO SPÉCIAL AFRIQUE
9. Virtually all major institutional rules are aligned in their view that arbitration
hearings are private. The ICC Rules state in article 26.3 that the arbitral tribunal
controls the hearings, where all the parties can be present. Unless the arbitral
tribunal and the parties agree to the contrary, no one else can attend. The ICDR,
LCIA, SIAC, ICSID, WIPO and - notably for purposes of this paper - Arbitration
Foundation of South Africa (AFSA) 1
rules contain similar provisions, and so do the
rules of business arbitration bodies like the Austrian Federal Economic Chamber,
the Swiss Chambers' Arbitration Institution, the CIETAC and the JCAA. Article 28.3
of the UNCITRAL Arbitration Rules spells out this position in similar terms. 2
10. It is therefore not controversial that arbitration hearings are private.
Commensurately, and if the hearing is closed to the public, it seems logical (as
suggested in England and Wales as well as Singapore) that the documents and
evidence exchanged should be - and remain - confidential.
11. However, this logic does not necessarily hold true in every jurisdiction
or under every arbitration regime. Whereas privacy refers to the exclusion of the
public and third parties from the arbitral proceedings, confidentiality involves a
broader duty for parties and arbitrators to refrain from revealing/disclosing the
information and documents that relate to the arbitration. As seen in Section II
below, confidentiality in arbitration is not axiomatic, as different legal systems
have differing views and expectations regarding its scope, extent, and exceptions.
Transparency and openness
12. In contrast, transparency refers to the degree of public access to, or scrutiny
of, the arbitration process and the arbitral award. At its core, " greater transparency
would likely increase knowledge and understanding of the arbitral process, thereby
increasing the legitimacy of the use of [arbitration] more generally " . 3
13. It follows that transparency in arbitration has at least the following benefits: 4
(a) Publication of reasoned awards would bring about the development of
consistency in the law of arbitration in any particular jurisdiction, or globally;
(b) Greater transparency can also promote democratic principles because the
affected stakeholders, such as the shareholders of a publicly held corporation
and customers, have an opportunity to observe the outcome;
(c) Increased transparency is also essential to ensuring accountability and
public trust in arbitrations that involve state-owned bodies, where public funds
are used to cover the legal costs and possible awards.
1. See rule 21.2.1 of the AFSA Commercial Rules for Domestic Arbitrations, available at https://
arbitration.co.za/domestic-arbitration/commercial-rules/ and rule 21.7 of the AFSA International
Arbitration Rules, available at https://arbitration.co.za/international-arbitration/international-rules/.
2. Stating that " Hearings shall be held in camera unless the parties agree otherwise. The arbitral
tribunal may require the retirement of any witness or witnesses, including expert witnesses, during
the testimony of such other witnesses, except that a witness, including an expert witness, who is a
party to the arbitration shall not, in principle, be asked to retire. "
3. Buys, C., " The Tensions between Confidentiality and Transparency " American Review of
International Arbitration 14 (2003) 121, at p. 135.
4. Gu, W., " Confidentiality Revisited: Blessing or Curse in International Commercial Arbitration? "
American Review of International Arbitration 15 (2006) 607 available at SSRN: https://ssrn.com/
abstract=2641317, at pp. 24 - 25.
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https://arbitration.co.za/domestic-arbitration/commercial-rules/ https://arbitration.co.za/domestic-arbitration/commercial-rules/ https://arbitration.co.za/international-arbitration/international-rules/ https://ssrn.com/abstract=2641317 https://ssrn.com/abstract=2641317

Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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