The Rise of Transparency in International Arbitration - Chapter 5 - Users Need More Transparency in International Arbitration
MICHAEL MCILWRATH is Associate General Counsel of Litigation for GE Oil & Gas, based at the company's headquarters in Florence, Italy. He is co-author of the book International Arbitration and Mediation: A Practical Guide (Kluwer 2010), host of International Dispute Negotiation (http://www.cpradr.org), the podcast of the International Institute for Conflict Prevention & Resolution (CPR), winner of the CEDR award for Innovation in ADR, and a contributing editor of the Kluwer International Arbitration blog. Mr. McIlwrath is a director and past-president of the Board of Directors of the International Mediation Institute, a non-profit in the Netherlands promoting quality, standards, and transparency in mediation. Mr. McIlwrath previously practiced with Willkie Farr & Gallagher.
ROLAND SCHROEDER is Senior Counsel, Litigation and Legal Policy, for the General Electric Company. Responsibilities include the management of significant U.S. and international litigation; internal investigations and management of compliance risk; coordination and oversight of domestic and international ADR initiatives; and the implementation of company-wide legal policy in these and other areas. He is a founding member of the Corporate Counsel International Arbitration Group, a member of CPR's Executive Committee, a member of the ICC Commission on Arbitration, and Chair of the Corporate Counsel subcommittee of the USCIB. Mr. Schroeder previously practiced with Shearman & Sterling in Washington, D.C., and has more than 20 years of experience in litigating and arbitrating complex commercial disputes domestically and internationally.
We initially drafted this chapter as a presentation for the 2010 Fordham Conference on International Arbitration and Mediation. It was subsequently published in the volume of academic papers by conference participants.
In our earlier version, we focused on a number of initiatives being adopted by arbitral institutions to address user concerns about proceedings having grown excessively long and expensive. Our thesis was, and remains, that such initiatives are likely to succeed only when they are accompanied by a high degree of transparency about the arbitral process, i.e., information that is not widely available today. We argued that institutions should take the bold step of making information about their proceedings publicly available in a format that permits users to assess and compare how different institutions and arbitrators conduct proceedings, while maintaining the confidentiality of the participants and the substance of their dispute.
In the short time since we drafted our paper, however, one institution did take a bold step towards transparency but one that frankly, we did not contemplate at the time of writing. Specifically, the Milan Arbitration Chamber promulgated a new rule providing for the publication of arbitral awards in anonymous format (without any information identifying the parties).