25 October 2016
Arbitrators, academics, users of arbitration and legal practitioners from around the world recently convened in Hong Kong for a seminar exploring the relationship between transparency and confidentiality in arbitral proceedings. Hosted by Latham & Watkins, the event focused on a key debate shaping arbitration both in Asia — which has seen a rise in cross-border disputes — and globally. International arbitration partners Sophie Lamb, Ing Loong Yang and Simon Powell facilitated the panel discussion with a number of Asia’s leading international arbitration practitioners.
The first panel — featuring Neil Kaplan CBE QC SBS and Christopher Moger QC, moderated by Ms. Lamb — considered the legitimacy of international arbitration in the investor-state context; examined important reforms designed to build transparency into the fabric of investor-state arbitration; and asked whether the visible participation of nongovernmental organizations as amicus interveners meet the criticisms that have been levied against the system.
In the sphere of commercial arbitration, the panel discussed whether litigation and arbitration need to be recalibrated, and in particular, whether it is the role or purpose of commercial arbitration to assist in developing the common law. The panel considered the time and cost implications of greater court intervention (for instance, by widening the scope for appeals from arbitral awards); shared anecdotal experiences on movements away from arbitral rules that might allow a re-opening of arbitral awards by the courts; and more generally, whether developments that risk compromising the finality of arbitral proceedings and certainty over its process, cost and timing would be welcomed by users of arbitration. Panelists also remarked upon the vast body of case law already available, the buoyancy of litigation in the English courts, the availability of at least some redacted arbitral awards, and what implications a more interventionist appeal system might have for London as a seat of arbitration. The panel observed that arbitration can itself be used to run test cases for industry-wide agreements, thereby promoting certainty and efficiency for users of model form contracts.
The second panel — featuring John Beechey CBE and Teresa Cheng GBS SC JP, moderated by Mr. Yang — considered the case for transparency in commercial arbitration. Panelists considered the meaning of transparency, in contrast to confidentiality, and asked how much of the process remains confidential considering disclosure obligations of public companies and deliberate courting of the media as part of the litigation strategy, among other factors. The panel considered the case for encouraging transparency of process in commercial arbitration, including through publishing data on the parties and their chosen arbitrators and on decisions on challenges to arbitrators. Users of arbitration confirmed that confidentiality was still important to them. The panel highlighted the differences in treatment of confidentiality across several jurisdictions. In particular, panelists discussed whether putting it on a statutory footing in England as in Hong Kong would serve a useful purpose, including by materially influencing the choice of seat.
Latham & Watkins sponsored the seminar as part of the 2016 Hong Kong International Arbitration Week, an annual event organized by the Hong Kong International Arbitration Center (HKIAC) to exchange insights on the changing landscape of international arbitration. The seminar focused on themes that figured prominently throughout the weeklong program. For instance, Ms. Lamb participated in and won a debate at the ADR in Asia Conference — the flagship event of Hong Kong International Arbitration Week, which attracted hundreds of attendees — over whether media leaks (“arbileaks”) are a sustainable way of encouraging transparency in international arbitration. Seventy-one percent of the audience said that they disagreed, despite being in favor of greater openness in investor-state cases.