Publication of arbitral awards and other decisions (most importantly, challenges to arbitrators) has become more common but is not without controversy. The trend toward more publication has the potential to change, for good or ill, many things traditionally associated with international arbitration, including confidentiality, concentration of knowledge and expertise in a more or less defined group, and the extent to which arbitral decisions and awards should have persuasive or precedential effect.
The International Commercial Disputes Committee thought it would be useful to the international arbitration community, as it considers these issues, to gather information on the differing policies and practices of the major international institutions. We surveyed ten of the major institutions of international arbitration and found great diversity among their rules and practices. At the extremes, some publish nothing and others try to publish as much as possible. Among those that publish awards or decisions, there are differences in the extent of information redacted and in what types of decisions the institutions consider important to publish. Most focus on final awards, but one institution has chosen to publish only decisions on challenges to
The International Commercial Disputes Committee hopes that this guide to the diversity of institutional practices will stimulate the ongoing debate within the international arbitration community about the pros and cons of publication and the different ways in which it can be done. It may also be useful to clients and their counsel in evaluating not just whether to arbitrate but also which institution to choose.
This report first outlines the issues posed by publication, with the goal of framing the issues and suggesting areas for further empirical and normative exploration, rather than advocating any specific practice. It then states the questions we asked of the institutions and summarizes their answers, along with other information obtained from their websites and rules.
The report ends with a selected bibliography showing where the institutions publish information on awards and other decisions and collecting citations of articles on the issues.