Law Essay: Critical Assessment on International Arbitration
Question
Task: “A company which goes to arbitration in England can be completely confident, not only that any hearing will be held in private, but that all aspects of the arbitration proceedings will remain confidential”. Critically assess the above statement with reference to UNCITRAL, ICC and LCIA arbitration rules, secondary sources and case law.
Answer
Introduction
The main purpose of this law essay is to reflect on the given question that generally focuses on the attribution proceedings that will remain confidential. As per the given statement, "a firm that goes to arbitration in UK can be wholly confident with private hearing and all the factors of the arbitration proceedings will remain confidential." Hence, the overall study will focus on the critical assessment of theassertion that has been discussed above with reference to UNCITRAL, ICC, and LCIA arbitration regulations, secondary resources, and case law. However, Arbitration Act 1996 imposes to both international and domestic arbitrations where the arbitration seat is England, Northern Ireland, or Wales. Also, common law is appropriate in understanding the activity or setting up alternative regulations on parties and arbitrators, for example, confidentiality.
A critical assessment on the given statement
London is a chosen arbitration seat for dispute resolution for several international business entities. Though where neither either of the parties to the appropriate agreement nor the matter of the subject of a particular agreement has any terms to England. Still, parties require London as the arbitration seat in order to benefit from within other aspects, an apparent, neutral, and globally acknowledged as the pro-arbitration legal system. However, as per ( ) parties preferring London as an arbitration seat also take reassure from the fact that English law as it associates with arbitration is mature and that the courts of English are refined in terms of the system in which they practice their decision-making authority over English seated arbitration. Here, what might in those situations be antagonizing is how little, as compared to the other jurisdiction of Europe, English law has to articulate concerning the corporate disputes arbitrary.
It is generally believed as a subject of trade deals that arbitration proceedings will be both confidential and private. The initial assumption is particularly correct. Attributions are said to be private in that arbiter who are not a party to the agreement of arbitration cannot concentrate any hearings or perform any part in the proceedings of attribution. Since the 1990s, the second assumption is not. . Confidentiality is discussed with the obligations of the parties to one another not to release facts regarding the arbitration to arbiter that do not adopt attribution as an all-encircling rule and certainly in certain situations that will not implement at all. As per the studies, it has been found that the parties to arbitration agreements presume that it does. In fact, surveys recommend that confidentiality is one of the key factors that commercial parties prefer arbitration over proceedings of court as well as process flexibility of the process and the competence to appoint an arbitrator of choice.
The traditional speculation with confidential arbitrations, which is said to be a fair one on the face of it, gives rise to the arbitration through the private agreement. It is a contractual agreement to arbitrate (and generally, arbitration rules of a pre-agreed set with the assistance of administrating body, like ICC or LCIA are used), which gives the legal framework necessary for the arbitration. A local court is formal is a process of formal dispute resolution, which is provided and maintained by the state, but this is immanently different and, therefore, open to the public and press, varying in degrees.
When there was a growth in international arbitration use, a closer contemplation of various aspects of arbitration started to take place. However, traditional speculation dealt a severe blow in the 1990s. The idea of an inclusive responsibility of concealment in arbitration was rejected by the jurisdiction, when the problem came in front of the jurisdiction of Australia and Sweden in between the 90s, that the confidentiality in arbitration included the extent level of consideration . This became the topic for discussion in many jurisdictions and new legislation in some areas about confidentiality in arbitration. In order to clarify the position on confidentiality, many of the recognized arbitral institutes led to the amendment of their rule.
The rule to decide which will regulate their arbitration should have considerable autonomy by the important arbitral mainstay that pirate, but unfortunately, there were no similar approaches between the legislators and the arbitral institutions, other than to recognize or to seek reflection in different ways. In order to make a welshing position to state that the arbitration has no confidentiality, both the legislators and arbitral bodies made a move, covering different scopes, while others consider such a duty a matter of the parties' agreement and left entirely. A Serious questions, such as which confidentiality obligations to an extent, when the arbitral institution rules were particularly imposed through it in opposition to the state legislation that can be enforced, aroused further.The arbitration confidentiality depends upon the contract of the mediators, if the regulations of arbitration are agreed by them or not, and also upon the law at the seat of the arbitration. The person, who is not legitimately compelled by the agreement of arbitration, who has the access of the parties of arbitration to obtrude rules and private information, makes the issues of confidentiality more complex.
As per the research, it has been found that with more than 88% of cases in 2019 seated in London, the LCIA statistics are arbitration reflective activity in London. There are several records that have been identified wherein arbitration was referred to LCIA. ( ) states that the benefits of confidentiality in the procedures of arbitration are understood well and the security of responsive proprietary facts, joinedin the midst of the competence to maintain an active commercial affiliation, for instance, are two aspects supporting the confidentiality maintenance in the proceedings of arbitration. On the other hand, there is certain distrust that the confidentiality concern in arbitration has gathered considerable notice from the public in recent years. Particularly, the ISDS (investor-state argumentresolution) command has come within extreme protection over its efficiencies as a setting means by the disputes of investors. One of the key arguments has been acquired the need for clarity concerning the method. The system is examined by several as being covered with privacy, in spite of the considerations on public interest habitually at play. In concern to other laws and jurisdiction, the amenities within the agreement of arbitration are commonly pinned to English law. Under the act of 1996, section 5, it is said that the agreement of arbitration or its evidence should be in writing; as per this section, written evidence, authorize an agreement, reciprocate of communications are allowed. The 1998 model act and the new edition of the Model act, proposed in 2006, are required for this reflection. All the writing, either it is cathodic transmission records or communications, including email, have to be made clear, in accordance with the English court, as writing is kept as a means of record.
An arbitration agreement can also be used as a sovereign archive, and by innuendo, section 6, it can be integrated into commitment, and hence, arbitration agreements are not considered only as a typical part of the monetary contract. As per the common regulation, sec 81, though the verbal agreement of arbitration does not come under the limitations of the 1996 Act, it can still be identified and prescribed in the common law. In order to arbitrate their wrangle, the English court staves the agreement of partiesand endorse a pro-arbitration approach in the exhibition. The abutment may also comprise a reside of English court procedure, where a subject is to be transferred to arbitration or relief at the meantime is backing arbitration, through a frigid or anti-suit admonition . Also, in the matter of Carpatsky Petroleum Corporation and PJSC Ukranafta, the requirement of an authentic arbitration agreement between the disputes of the two parties, whether applied or no not, was considered and checked by the court. In terms of jurisdictional arguments waved by the party at their risk and pro-arbitration posture of the English Court, this major decision is a reminder. At this matter, it was noticed by the High Court that after the cooperation in the arbitration procedures and the conflicts raised by the rectitude, conducted by the parties, an agreement of arbitration could be formed. English court also identifies the agreement of multi-party to arbitrate, while the condition where there can be an indulgence of many parties, exceeding two, to the agreement of arbitration can be expressly recognized by 1996 provisional act. The recent incident of Filantona Trading and Navigator Equities provides significant supervision that a person without endorser to an agreement can implement its terms along with the clause of arbitration.
Arbitrability
The agreement under arbitration is referred under the 1996 Act section 6(1) as a contract to agree to exist arbitration or future conflicts (in case the arbiter contracted or not). The mediator might determine to comprise all conflicts happening amongst them to be determined through arbitration, or they might restrict the materials to arbitration severely to one kind of conflict or to conflicts regarding the violation of one agreement. Nevertheless, ( ) argues that there are certain forms of conflicts that could not be termed arbitration through cause of compulsory law and communal policy. For example, in the Fulham Football Club v Richards & Anr case, the Court of Appeal viewed so as to arbitrability will be judged by taking into consideration whether the subjects in the argument or hold the rights of the mediator or symbolize an effort to entrust to the authorities what is a concern of communal interest that could be decided in the restrictions of a process that generally focuses on a private contract.
Moreover, as per the research, it can be said that the firm which goes to arbitration in England can be fully confident as all the factors of the arbitration proceedings will remain confidential. When commencing arbitration under 1996 Act section 14, it delivers that the process of arbitra are initiated by written notification to the other mediator or mediators or the assigning power. This is the evade process unless the mediators consent or else. Institutional regulations could put inadvancecriteria concerning thecontented of such notification and compensation of somepreliminary institutional cost . In the modern case of FIMBank plc v KCH Shipping Co Ltd (2020) EWHC 1765 (Comm), the tribunal gives valuable direction on the process of both members of sec 12(3) of the 1996 Act in execution to extent period for initiating an arbitration.
For the global arbitrations seated in Wales and England, there seems to be the usual arbitration seat that ispreferred by the mediators or the tribunal in London. Hence, no requirement is there under English law that is evidential and technical court trials physically occur at the arbitration seat. ( ) the appropriate law under arbitral hearing will concern the significantrule selected through the mediators to the dispute merits under 1996 Act sec 46(1). Additionally, if the parties are in agreement, the tribunal might decide the dispute as per other considerations such as the rules of UNIDROIT, etc. (1996 Act sec 46(1) (b). In case, the mediators do not preferred or agreed to the significantrule, sec 46(3) of the 1996 Act needs so as to the hearing is valid the significantregulation recognized through the dispute of regulations that are related. Concerning the judgments of Sulamerica Cia Nacional De Seguros SA and others, v Enesa Engenharia S.A. and Arsanovia Ltd v Cruz City 1 Mauritius Holdings, the commercial court in VSC Steel Company Ltd and Habas Sinai Ve Tibbi Gazlar Istihsal Andistrisi AS said the appropriate regulation of the arbitration contracts are to be decided by conducting an inquiry within a three-stage: (i) articulate preference. (ii) implicitpreference, and (iii) the regulation wherein the arbitration contract has the adjoining and mainlythe actual association. However, English regulation identifies the presence of lawfulopportunity, a right that allows an individual to oppose required disclosure of certain segmentations of information.
Conclusion
In a nutshell, it can be said that as per the English regulation, parties to arbitration have an implicit obligation to keep up the secrecy of the procedures. However, this expands to the court trial, the records and compliances provided and revealed in the conflict, and the honour eventually provided by the panel. Despite the fact that there are certain potentials to this duty, in exercise, it generally reflects that the settled arbitration in London attracts a confidentiality assumption.
References
iccwbo.org, '2021 Arbitration Rules - ICC - International Chamber Of Commerce' (ICC - International Chamber of Commerce, 2021)
Lopes S (Uk.practicallaw.thomsonreuters.com, 2021)
Lw.com (Lw.com, 2021)
Smith H, 'Arbitration In The United Kingdom | Lexology' (Lexology.com, 2019)
Tirado J, 'International Legal Business Solutions - Global Legal Insights' (GLI - Global Legal InsightsInternational legal business solutions, 2021)
Toit C, 'Reform Of The English Arbitration Act 1996: A Nudge Towards Reversing The Presumption Of Confidentiality' (Arbitration Blog, 2017)
