Necessary and practical: A national law obligation to public international commercial arbitral awards

Abstract

The confidentiality attaching to arbitral proceedings and awards remains of uncertain scope globally. The weight of current opinion appears, however, to be in favour of greater transparency, and as part of this, a number of scholars and commentators have made a strong case for the sanitised publication of arbitral awards by arbitral institutions. This paper goes a step further, and makes the case for a national law obligation to publish awards. It does so on the basis that there are significant public interests in the making available of certain information contained within arbitral awards; interests for which institutions have little or no incentive to provide. The paper uses New Zealand as an example, considering both the desirability of publication at the national level, and to the extent publication is desirable, how a mechanism to facilitate publication should be designed. It suggests a “statement of arbitral jurisprudence”, to be published annually by the Ministry of Justice, as the most appropriate way forward.