Introduction

[M]aintaining the status quo that is giving deference to 'party autonomy' shall be nothing less than turning a blind eye to the obvious need of promoting transparency in international arbitration.1

There has been a general trend towards increasing transparency2 affecting nearly all international arbitration institutions. The demand for transparency is reflected in the efforts recently taken by institutions to adjust their rules and practices, as well as in the initiatives that non-profits have taken to capitalize on the market-driven desire for insight into international arbitration. These moves have been made with some caution, however, given the concern over confidentiality expressed by users of international arbitration.

Although there is no doctrine of binding precedent in international arbitration proceedings, efforts to increase transparency can have a substantial effect on the weight precedent is given in international arbitrations, and could assist in the development of a de facto stare decisis doctrine. Whether a doctrine of precedent is desired in international arbitration depends on the role one believes international arbitration should have. Is arbitration a private dispute mechanism where an ad hoc tribunal resolves a dispute on the sole basis of the facts of the case before it, deriving its legitimacy from the parties' desire to have their dispute resolved privately by impartial arbitrators rather than through the state courts? Or, is arbitration a legal mechanism parallel to the public justice system, deriving its legitimacy from consistency in results and predictability? There is no simple answer. The uniqueness of each case, which underlies the former conception, must be reconciled with the practice of arbitrators to cite other cases in their reasoning and their attempts to promote adjudicatory consistency,3while the latter conception has to take into account conflicting awards based on similar facts.4

This article explores the growing trend towards transparency in international arbitration, its relationship to precedent, and the benefits and costs associated with increased transparency.

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The growing trend towards transparency

As can be seen from questionnaires such as the 2015 International Arbitration Survey conducted by Queen Mary University of London in partnership with White & Case (the '2015 International Arbitration Survey'), 5 users of international arbitration desire greater insight into the decision-making processes of international arbitration institutions, but also want to keep sensitive information confidential.6 The participants at the 2017 Vienna Arbitration Days (Austria's leading arbitration conference) echoed that desire and described legal transparency as 'crucial' for international arbitration.7 Young associates and students expressed a wish to have a comprehensive body of law regarding international arbitration from which to learn,8 while more experienced practitioners voiced a similar wish in order to better formulate their arguments and identify 'trends in jurisprudence'.9 Arbitrators attending this conference also indicated that they would appreciate the 'guidance' that would come from 'an established body of law' and the legal certainty and predictability that would follow10 (i.e. the precedential effect of transparency).

In response to these demands, the majority of arbitral institutions have recently taken steps to improve transparency while attempting to address concerns about privacy and confidentiality.11 Given the degree of attention given to the subject, the literature on trends and recent developments in the field of international arbitration is rich with talk of transparency. What is surprising, however, is that a term so widely used is so rarely defined. Many of the practitioners and academics calling for greater transparency12 do so in the hopes of legitimizing the dispute resolution mechanism by increasing predictability and consistency.13 On the other hand, those that oppose the implementation of transparency measures typically cite confidentiality concerns.14 Interestingly, the precedential effect of increasing transparency is rarely evoked.

As was discussed by the panelists at the 2017 Vienna Arbitration Days conference, transparency in international arbitration falls into one of the following three categories: organizational transparency, legal transparency, and transparency of proceedings.15 The first covers requests for arbitral institutions to be more open about their case management and administrative decision-making procedures. The second consists of requests for the reasoning behind a decision to be included in the award and for arbitral decisions to be published. The last category covers calls for proceedings and hearings to be public. What impact transparency initiatives will have invariably depends on which of the above categories they fall under.

Organizational transparency

Steps have recently been taken by numerous international arbitration institutions to increase the information that is publicly available regarding administrative decision-making and case management, including information on the cost and duration of an arbitration. For example, ICC has recently amended Article 11(4) of the ICC Rules of Arbitration (effective 1 March 2017) in order to allow the International Court of Arbitration (the 'ICC Court') to provide reasons for its decisions regarding the appointment, removal, challenge, or replacement of an arbitrator, if so requested by a party.16 The President of the ICC Court stated that this was 'an increased measure [Page43:] of transparency and accountability to our users'.17 Additionally, in June 2016 ICC started publishing the names of the arbitrators serving in cases it administers, together with information on how the arbitrator was appointed.18

Another initiative taken by ICC in 2016 aimed at increasing transparency was to amend the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration,19 issued by the Secretariat of the ICC Court, with regard to the disclosure of potential conflicts of interest.20 ICC's commitment to increase organisational transparency can actually be observed as early as October 2015, when a former version of the above-mentioned Note was modified in relation to the justification of decisions on prima facie jurisdiction, consolidation of proceedings, and the exclusion and replacement of an arbitrator.21

In response to users' concerns about the cost and the length of proceedings, reports providing information on administrated arbitrations are also becoming more common. In 2016, the Stockholm Chamber of Commerce (SCC) published a report containing information on costs in SCC arbitration, the apportionment of costs by tribunals, and the length of disputes.22 The report's stated aim was to 'increas[e] confidence in and transparency of SCC practice'.23

The London Court of International Arbitration (LCIA) published a report the previous year giving information on the average cost and duration of LCIA arbitrations.24 This information was provided by the LCIA 'to assist users in making informed choices' and specifically mentioned that respondents to the 2015 International Arbitration Survey had expressed interest in such data being published.25

Finally, the American Lawyer's Arbitration Scorecard is an example of an initiative emanating from a body other than an arbitration institution, which seeks to increase organizational transparency regarding who the players are in international arbitrations and the amounts in dispute. It 'lays out a secret and growing world of huge international disputes dominated by a small but elite group of law firms and arbitrators'.26

Legal transparency

An increase in legal transparency is particularly relevant to the issue of precedent, in the context of both investment arbitration and commercial arbitrations. Although no international commercial arbitration institution publishes completely unredacted awards, several publish excerpts or summaries of arbitral decisions. For example, ICC publishes excerpts and summaries of awards in its International Dispute Resolution Bulletin (formerly International Court of Arbitration Bulletin); the International Centre for Dispute Resolution (ICDR) has been publishing excerpts or summaries of selected arbitral awards in its ICDR Awards and Commentaries since 2012; and the Vienna International Arbitral Centre (VIAC) has published about 60 awards.27 VIAC is allowed to publish (anonymised) summaries or extracts of awards under Article 41 of the VIAC's Rules of Arbitration and Conciliation.28 In light of the public interest in international investment arbitration proceedings, there is a long-standing history of publication of decisions and awards in this context. Many of these can be found on the website of the International Centre for Settlement of Investment Disputes (ICSID), for example.

In addition to arbitral institutions, non-profit organizations have begun to capitalize on the market-driven demand for increased transparency in international arbitration. Arbitrator Intelligence is a perfect example of a potential game-changer in the world of international commercial arbitration. Once it is launched in June 2017, Arbitrator Intelligence will be a non-profit that functions as an 'interactive [Page44:] informational network' aimed at redressing informational 'inefficiencies and inequities' in the process of selecting arbitrators.29 In order to 'jumpstart' Arbitrator Intelligence, a pilot project was launched which involved collecting as many arbitral awards as possible in order to develop research tools. Arbitrator Intelligence stressed that they would contact the parties involved with the awards collected in order to give them an opportunity to redact sensitive information.30 The American Lawyer's Arbitration Scorecard has called Arbitrator Intelligence an 'immediate and market-friendly way to promote the diversity of decision-makers in all global arbitration'.31 Although the aim of this organisation is to introduce greater fairness into the arbitrator selection process and increase arbitrator accountability, it is likely that its impact will be much larger than merely assisting users to select arbitrators since it will create research tools on arbitral awards.32

A recent development towards greater legal transparency in the field of international investment arbitration is the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the 'Mauritius Convention on Transparency'),33 which was adopted in 2014 and is scheduled to enter into force on 18 October 2017.34 In signing this convention, states35 undertake to apply the United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency in Treaty-based Investor-States Arbitration, which came into effect in 2014.36 These are procedural rules that are designed to make investor-state arbitrations 'open and accessible to the public' through UNCITRAL's Transparency Registry.37 UNCITRAL stated that the registry provides 'a consolidated, transparent and easily accessible global case record database for such arbitrations, which often deal with subjects of public interest'.38 Although there are currently only seven cases registered,39 it has the potential to become a valuable resource.

Transparency of proceedings

Calls to increase the transparency of proceedings have mainly been targeted at investment arbitration rather than commercial arbitration. In the eyes of users, international commercial arbitrations do not raise issues of public interest in the same way as investor-state disputes, so the need to increase transparency may be less significant. As one commentator has observed: 'It is because of this distinction between commercial and investor-state arbitration that extending the application of the UNCITRAL Rules on Transparency in Treaty-based Investor State Arbitration to commercial arbitrations is not desirable.'40 Likewise, the participants at the 2017 Vienna Arbitration Days conference noted that 'an endeavor to transport the UNCITRAL Rules on Transparency to commercial arbitration [would] be overreaching'.41 Many expressed the view that transparency reforms for commercial arbitration should be consistent with the private nature of commercial arbitrations and must protect confidential information. Most participants were indeed opposed to increased transparency of proceedings in commercial arbitration, given that the parties to a commercial arbitration have a legitimate interest in keeping the proceedings confidential.42

Pressure for transparency in international arbitration proceedings stems from the idea that transparency is a basic requirement of any legitimate legal system. In her article 'Transparency in International Commercial Arbitration', Professor Catherine Rogers stated:

Having opted for a system that aims to bring a rule of law to international commercial disputes, parties and those providing legal services cannot pull the curtains around the system [Page45:] and turn out the lights. Transparency is an inherent feature of rule of law. If international commercial arbitration's users want the benefits of a rule-based system, they cannot reject the transparency that comes with it.43

Edna Sussman, a full-time arbitrator and mediator, has argued for more information to be made public for pragmatic reasons such as case strategy.44 She is reported as stating:

Understanding how arbitrators think, what they favor, how they make decisions, and how they work together can guide counsel in devising their strategy and developing their presentations. For their part, arbitrators want to provide a fair hearing that meets the parties' needs.45

She is also reported as explaining that the availability of more information can help arbitrators:

Knowing how other arbitrators handle various procedural aspects, what influences their thinking, and what they prefer can inform arbitrators in conducting their own arbitrations most effectively.46

Finally, some users have argued that the right to fair and impartial proceedings includes public hearings in arbitral proceedings. Proponents of this view have cited Article 10 of the Universal Declaration of Human Rights47 and Article 6 of the European Convention on Human Rights48 in support of their argument.49 Those advocating for public hearings in arbitral proceedings have observed that, upon entering into arbitration agreements, parties are generally deemed to have waived their right to a public hearing, this fundamental right should still be addressed because it is a 'basic principle under human rights law', guaranteeing fairness and accountability.50 Additionally, these human rights concerns are important to the legitimacy of private arbitral proceedings.51

The relationship between transparency and precedent

Precedent cannot develop in a vacuum. The unavailability of arbitral awards and decisions and lack of information thereon prohibits its development. This is why precedent has played a minor role in arbitration, particularly in international commercial arbitration.52 As transparency increases and information about prior awards and decisions becomes more readily available, precedent (more likely to be de facto rather than a formal doctrine) may slowly begin to develop. This is likely to result primarily from parties citing prior cases to persuade tribunals to adopt the same position in their own case, and arbitrators citing prior arbitral awards in their desire to be consistent.

Although advances in organizational transparency can lead to consistency in administrative matters, they do not carry much precedential effect because such matters seldom affect the decision on the merits. On the other hand, efforts to increase legal transparency and the transparency of proceedings are likely to result in greater consistency among arbitral awards, and thus increase the weight of precedent in arbitration. An obvious example is the publishing of arbitral awards. If awards are not available, then no doctrine of precedent can develop since prior decisions and the reasoning behind them remain unknown. However, once awards become available, citing to them becomes not only possible, but appealing to parties as a way of reinforcing their position in the eyes of the tribunal. The rules of virtually all international arbitration institutions require arbitrators to provide the reasoning for the decision reached in the award.53 If awards were to become public, such reasoning could be used to justify future awards on similar issues or distinguish them from prior cases where the facts were different.

The relationship between transparency and precedent is closely connected to the question of predictability, which some say is essential to the legitimacy of [Page46:] any dispute resolution mechanism. In the words of August Reinisch, Professor of International Law at the University of Vienna:

Coherence and predictability of dispute settlement decisions is a crucially important aspect of any judicial or arbitration mechanism. In the long run, only predictable outcomes of any type of dispute settlement will be accepted by its users. Ultimately, predictability and coherence lead to confidence in the system and enhance its perception of being legitimate and just.54

New ICC agreement with Dispute Resolution Data

In December 2016, ICC announced it had entered into a 'cooperation agreement' with the software company Dispute Resolution Data (DRD), which collects dispute resolution data on arbitration and mediation cases, and which, in March 2017, won the 2017 Global Arbitration Review (GAR) Global Award for Best Innovation in the Field of International Arbitration.55 DRD has been in operation since December 2015.56,57 DRD currently gathers data from 16 arbitration institutions5859 and collects data from 136 nations.60 It offers an online subscription service providing information about closed arbitration and mediation cases for the purpose of assisting users to make 'sound case decisions' on a variety of topics including location, cost, time, and risk.61

The 'forecast' section of DRD is of particular relevance to transparency (and precedent) since it allows a user to review arbitration outcomes by case type. DRD hopes that researchers can benefit by gaining 'insight into how and when given case types typically conclude'.62 Collated, detailed statistics on international arbitral awards (particularly those rendered in international commercial arbitration) have not existed in the past, since awards are private and spread across multiple institutions worldwide.

DRD uses up to 100 data points for each commercial arbitration case and 45 data points for each mediation.63 Using these data points, users can evaluate likely outcomes based on variables such as amount of the claim, amount of the award, case outcomes, region, industry, national court involvement, and counterclaim rates and successes.64 DRD users are not able to compare one arbitral institution directly with another and currently cannot compare countries, but only regions.65 When an arbitral institution agrees to contribute data to DRD, it receives financial compensation, in addition to a free subscription, and although it cannot compare itself to other specific institutions, it does have the ability to compare its own analytics with the aggregate statistics.66 This ability could then be used to 'promote' their own institution or to improve on any areas.67

Andrea Carlevaris, Secretary General of the ICC Court, made clear that facilitating access to information about arbitral proceedings was one of the current priorities of the ICC Court. He was reported as saying that: 'Participation in this innovative initiative [DRD] by institutions and users worldwide will greatly contribute to increased transparency of, and ultimately trust in, the international arbitration process.'68 Bill Slate, Chairman and CEO of DRD, echoed the desire to increase transparency for closed international cases by providing process information to the public and emphasised DRD's commitment to protecting confidentiality.69

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Benefits and costs of increased legal transparency

Although there are positive consequences associated with increased efforts towards legal transparency in arbitration, there are also costs. The benefits include the creation of precedent readily available to the public; greater predictability and efficiency for practitioners, clients and arbitrators; the formulation of better case strategies and limitation of frivolous claims;70 the ability to give clearer advice to clients on possible outcomes in proceedings; and the potential for consistent and less arbitrary results.

The costs of transparency, on the other hand, range from reduced privacy and confidentiality (or complete lack thereof) to forum shopping. One of the principal reasons why a party may select arbitration as a dispute resolution mechanism is the expectation that the proceedings will remain private and sensitive information will be kept confidential. Increased transparency, particularly greater legal transparency and transparency of proceedings, threatens privacy and confidentiality, as awards, decisions, proceedings, and hearings become public.

Another concern of added transparency is the potential for forum shopping. DRD includes a section called 'Data Story | Strategy'71 illustrating how users can take advantage of DRD's services. On scrutinising the 'location' section, which shows party locations by region, the user may be inclined to pick a particular region based on the outcomes they see, which could encourage forum shopping. Increased transparency in the information available from different arbitral institutions can also guide users to make informed decisions about which institution to choose, which could also lead to forum shopping.

As previously mentioned, a contributing institution can compare itself to the aggregate statistics gathered by DRD. It is possible that institutions will strive to make themselves more attractive to potential users in the areas covered by DRD, for instance by competing to reduce the average cost or duration of arbitral proceedings. Although this may sound attractive from a client perspective, the desire to lower costs could lead to a drop in the quality of the proceedings and/or the award.

Another concern is the drafting of awards. The development of de facto precedent may cause some arbitrators to write longer decisions including considerations not necessary for the resolution of the dispute before them, but possibly of value for future proceedings. This could in turn lead to higher costs.

The development of precedent (whether individual cases or aggregated data) may have an impact on the doctrine of manifest disregard of the law.72 Manifest disregard of the law is a legal principle which, in some instances, allows an arbitral award to be vacated if an arbitrator manifestly disregards the law. A high burden must be met before an award is vacated, and vacatur on this ground is typically granted only where the tribunal recognises the applicable law, but chooses to ignore it. As an increasing number of awards become public, the weight given to arguments for and against manifest disregard of the law may evolve.

Finally, and in addition to the above, the potential costs of transparency could well be increased in the case of tribunals composed of three members rather than a sole arbitrator. Where the members of the same tribunal reach identical conclusions by applying different lines of reasoning, the question may arise as to what will be the precedent established in those cases and, a fortiori, in cases with dissenting opinions.

Conclusion

Whether the benefits of increased transparency (and the concomitant development of precedent) outweigh the costs of such transparency remains to be seen. One thing is certain, however: the trend towards more transparency in international commercial arbitrations and investment disputes continues to grow and, for now, nothing is stopping it.

1
S. Malhotra, 'Transparency in International Commercial Arbitration: The Road Ahead', International Law Square (12 Oct. 2016), https://ilsquare.org/2016/10/12/transparency-in-international-commercial-arbitration-the-road-ahead/comment-page-1/ (Web pages referred to herein were last accessed in May 2017.)

2
J. Hope, 'Transparency in international arbitration', Commercial Dispute Resolution (11 May 2016), https://www.cdr-news.com/categories/expert-views/6376-transparency-in-international-arbitration.

3
A. Reinisch, 'The Role of Precedent in ICSID Arbitration' [2008] Austrian Arbitration Yearbook 495, 507 ('[T]here is a consistent tendency of ICSID tribunals to take into account and discuss earlier investment awards when rendering their decisions. This has led to a kind of de facto case-law system whereby tribunals routinely rely upon previous decisions and discuss them as quasi-authoritative manifestations of the law.').

4
Compare LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v The Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, 46 International Legal Materials 40 (2007) with CMS Gas Transmission Company v The Argentine Republic, ICSID Case No. ARB/01/8, Award, 12 May 2005, 44 International Legal Materials 1205 (2005).

5
The 2015 International Arbitration Survey, entitled 'Improvements and Innovations in International Arbitration', was the third survey conducted through this partnership and focused on the innovations in international arbitration and possible improvements. The full survey is available at https://www.whitecase.com/publications/insight/2015-international-arbitration-survey-improvements-and-innovations.

6
S. Malhotra, supra note 1.

7
V. Pernt, 'How Much (More) Transparency Does Commercial Arbitration Really Need?', Kluwer Arbitration Blog (4 Mar. 2017), http://kluwerarbitrationblog.com/2017/03/04/how-much-more-transparency-does-commercial-arbitration-really-need/.

8
Ibid.

9
Ibid.

10
Ibid.

11
S. Malhotra, supra note 1.

12
See the 2015 International Arbitration Survey, supra note 5 and the summary of the survey's findings at http://www.arbitration.qmul.ac.uk/research/2015/.

13
J. Hope, supra note 2. (James Hope, a partner at Vinge and head of its dispute resolution group in Stockholm, wrote 'Any hint that the type of "private" justice that arbitration provides is inferior to "public" justice risks fundamentally undermining confidence in arbitration as a means of dispute resolution. Since they are sitting in private, and without having the imprimatur of the public justice system, arbitral tribunals need to do more than the courts to promote parties' trust and confidence.').

14
See S. Malhotra, supra note 1. See also, V. Pernt, supra note 7. ('The in-house counsels confirmed that they choose arbitration for its (perceived) confidentiality, and oppose more transparency.'); See J. Hope, supra note 2 ('Parties rightly have concerns about the possible disclosure of confidential information. After all, a perception of confidentiality is one of the reasons why many parties choose arbitration; in the 2010 Queen Mary University of London/White & Case Survey: Choices in International Arbitration, 62% of respondents said that confidentiality was "very important" to them in international arbitration.')

15
V. Pernt, supra note 7.

16
Ibid.

17
See 'ICC Court amends its Rules to enhance transparency and efficiency', ICC Media Wall (11 Apr. 2016), https://iccwbo.org/media-wall/news-speeches/icc-court-amends-its-rules-to-enhance-transparency-and-efficiency/.

18
M. Altenkirch and M. Boussihmad, 'ICC publishes arbitrator's details - A New level of transparency', Global Arbitration Review (3 Nov. 2016), https://globalarbitrationnews.com/icc-publishes-arbitrators-details-new-level-transparency/.

19
Available at https://iccwbo.org/dispute-resolution-services/arbitration/practice-notes-forms-checklists/#note1

20
M. Jamka, 'Alexis Mourre: Good Change in International Chamber of Commerce', The National Law Review (14 Nov. 2016), http://www.natlawreview.com/article/alexis-mourre-good-change-international-chamber-commerce.

21
Ibid.

22
C. Salinas Quero, Costs of arbitration and apportionment of costs under the SCC Rules, Arbitration Institute of the Stockholm Chamber of Commerce (Feb. 2016), http://www.sccinstitute.com/media/93440/costs-of-arbitration_scc-report_2016.pdf.

23
Ibid.

24
'LCIA Releases Costs and Duration Data, Tools to Facilitate Smart and Informed Choices', LCIA (3 Nov. 2015), http://www.lcia.org//News/lcia-releases-costs-and-duration-data.aspx.

25
Ibid.

26
'The American Lawyer's Arbitration Scorecard Profiles Secret Billion-Dollar Disputes, 274 International Arbitrations in all', ALM (26 June 2013), http://www.alm.com/press-room/the-american-lawyers-arbitration-scorecard-profiles-secret-billion-dollar-disputes-274-international-arbitrations-in-all/.

27
V. Pernt, supra note 7.

28
Ibid.

29
See http://www.arbitratorintelligence.org/about/.

30
Ibid.

31
'"The American Lawyer": Professor Rogers' Arbitrator Intelligence Project Promoting Global Arbitrator Diversity', Penn State Law News (14 July 2015), https://pennstatelaw.psu.edu/news/american-lawyer-professor-rogers-arbitrator-intelligence-project-promoting-global-arbitrator.

32
Ibid.

33
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the "Mauritius Convention on Transparency"), UNCITRAL, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention.html.

34
'Update: Mauritius Convention on Transparency will enter into force on 18 October 2017', UNCITRAL National Coordination Committee for Australia (UNCCA) Blog (20 Apr. 2017),-https://unccablog.wordpress.com/2017/04/20/update-mauritius-convention-on-transparency-will-enter-into-force-on-18-october-2017/.

35
The signatories to this Convention are: Belgium, Canada, Congo, Finland, France, Gabon, Germany, Iraq, Italy, Luxembourg, Madagascar, Mauritius, Netherlands, Sweden, Switzerland, Syrian Arab Republic, United Kingdom of Great Britain and Northern Ireland, and the United States of America.

36
FAQ - UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, UNCITRAL, http://www.uncitral.org/uncitral/uncitral_texts/arbitration/2014Transparency_FAQ.html#purpose.

37
Ibid.

38
A. Lawson, 'EU Continues Backing UN's Arbitration Transparency Push', Law 360 (14 Dec. 2016), https://www.law360.com/articles/872574/eu-continues-backing-un-s-arbitration-transparency-push.

39
Transparency Registry (a repository for the publication of information and documents in treaty-based investor-State arbitration), UNCITRAL, http://www.uncitral.org/transparency-registry/registry/index.jspx.

40
S. Malhotra, supra note 1.

41
V. Pernt, supra note 7.

42
Ibid.

43
C. Rogers, 'Transparency in International Commercial Arbitration' (2006) 54 U. Kan. L. Rev 1301, 1337.

44
'Authors Agree: More Information About Arbitrators Needed', Arbitrator Intelligence (6 Nov. 2016), http://www.arbitratorintelligence.org/authors-agree-information-arbitrators-needed/, referring to E. Sussman, 'The Arbitrator Survey: Practices, Preferences and Changes on the Horizon' (2015) 26(4) The American Review of International Arbitration.

45
Ibid.

46
Ibid.

47
Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 Dec. 1948, Art. 10: 'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.'

48
European Convention on Human Rights, signed on 4 Nov. 1950, Art. 6: 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial …'

49
J. Hope, supra note 2.

50
Ibid.

51
Ibid.

52
A. Reinisch, supra note 3 at 495 ('Where decisions are not publicly, or at least semi-publicly available, precedents cannot develop. This is exactly why precedent has played a relatively minor role in traditional international commercial arbitration . . .').

53
J. Hope, supra note 2.

54
A. Reinisch, supra note 3.

55
'DRD Wins GAR Global Award for Innovation', Dispute Resolution Data (30 Mar. 2017), http://www.disputeresolutiondata.com/drd_wins_gar.

56
'ICC and DRD enter into Agreement to Shed Light on Arbitration', Dispute Resolution Data (2 Dec. 2016), http://www.disputeresolutiondata.com/icc_and_drd_enter_into_agreement.

57
M. Gonzalez Mesa, 'New Commercial Arbitration Database Offers Analytics for Arbitration Attorneys', Daily Business Review (9 Jan. 2017), http://www.dailybusinessreview.com/id=1202776372213/New-Commercial-Arbitration-Database-Offers-Analytics-for-Arbitration-Attorneys.

58
See http://www.disputeresolutiondata.com/about_dc.

59
The contributing institutions are (listed in order of when they began contributing to DRD's database): Centro de Arbitraje - La Cámara de Caracas (CACC), International Center for Dispute Resolution (ICDR), Centre for Effective Dispute Resolution (CEDR), Australian Centre for International Commercial Arbitration (ACICA), Camara Di Commercio Milano (CAM), Centro de Arbitraje de la Cámara de Comercio de Panamá (CECAP), Centro de Arbitraje y Mediación de Santiago (CAM Santiago), Bahrain Chamber for Dispute Resolution (BCDR), National Chamber of Commerce of Mexico City (CANACO), Centro de Arbitraje y Conciliación de Bogotá (CCB), Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC), Centro Empresarial de Conciliación y Arbitraje (CEDCA), Cámara de Comercio y Producción de Santo Domingo, International Chamber of Commerce (ICC), Vienna International Arbitral Centre (VIAC), and Corte de Arbitraje de Madrid (CAM).

60
See http://www.disputeresolutiondata.com/.

61
Ibid.

62
See http://www.disputeresolutiondata.com/data_services_faqs.

63
M. Gonzalez Mesa, supra note 57.

64
Ibid.

65
Ibid.

66
Ibid.

67
Ibid.

68
'ICC and DRD enter into Agreement to Shed Light on Arbitration', supra note 56.

69
Ibid.

70
S. Malhotra, supra note 1 ('Such information [that promotes transparency and efficiency in the arbitral process] makes the decision making of institutions more transparent and limits frivolous and non-meritorious applications.').

71
See http://www.disputeresolutiondata.com/strategy.

72
Whether manifest disregard of the law is still a ground for vacatur in the United States is unclear following the Supreme Court case Hall Street Associates, LLC v Mattel, Inc., where the Supreme Court held that section 10 of the Federal Arbitration Act provides the 'exclusive' grounds for vacatur. 552 U.S. 576, 584-5 (2008).