Entitled “International Arbitration and Transparency”, the chapter authored by Professor Mark Feldman was published in theCambridge Compendium of International Commercial and Investment Arbitration, focusing on the existing transparency gap between investment treaty arbitration and international commercial arbitration.
In the chapter, after identifying and examining three competing factors in the regimes of the investment treaty arbitration and international commercial arbitration - (i) the nature of the public interest, (ii) the role of confidentiality, and (iii) the role of party autonomy, Professor Feldman argues that, as a general matter, the transparency gap should be maintained. Although the public interest in certain international commercial arbitration cases can be significant, particularly those involving state entities or statutory claims, on a systemic level, the public interest in international commercial arbitration is noticeably distinguished from investment treaty arbitration. Equally important, two cornerstones of international commercial arbitration contribute to the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy.
Nonetheless, the chapter emphasizes that the existing transparency gap concerning the public accessibility of arbitral awards, in particular, should be narrowed significantly, thereby allowing the public to access arbitral decisions, mitigating pressures from both the investment treaty arbitration regime and the emerging set of international commercial courts, and facilitating developments regarding international commercial dispute resolution. To expand public access to international commercial arbitration awards, three alternative models are accordingly provided in the chapter.
TheCompendiumadopts a holistic view of international arbitration by covering all main areas of both commercial and investment arbitration. It is a cross-border, transnational resource and a tool promoting the creation of a culture of international arbitration that considers commercial arbitration and investment arbitration as part of a whole but with certain distinct features particular to each. By evaluating the existing transparency gap between the investment treaty arbitration and international commercial arbitration, Professor Feldman’s contribution, together with other entries all written by distinguished arbitration practitioners and scholars in theCompendium, provides readers and practitioners with a succinct and valuable instruction that explains the underlying concepts and suggests solutions for problems that have arisen or may arise in international arbitration.
Author: CAI Jiachun