Frustrations of an international arbitration researcher
We live in a world where pretty much everything is accessible with a few clicks. Yet in researching how international arbitrations are conducted, I am always frustrated as to how little information is readily available and accessible.
Back in 2011 I wrote an article on bifurcation of proceedings and in particular whether bifurcation shortened or extended the time of an arbitration. I analysed 174 concluded ICSID cases and shared my findings, accepting, of course that they were of limited utility due to fact that each case had its own complexities and nuances which would have affected the time taken to reach a final award. The article is the one that I am asked about most frequently and I have been considering updating it for a while now. Given that 8 years have elapsed since I wrote it, I hoped that I would have more reliable data on which to base my update but unfortunately this has not proved to be the case. I will once again be limited to an analysis of the concluded ICSID cases. Whilst better than nothing, the peculiarities of investment treaty arbitration mean that any information gleaned from a review of concluded investment treaty cases is not necessarily applicable to commercial arbitrations.
The principle of confidentiality in international arbitration frequently frustrates the researcher. Conducting empirical research into international commercial arbitration proceedings is almost impossible due to the paucity of available information.
Traditionally, the major arbitral institutions have been reluctant to publish awards. The ICC does publish extracts of selected redacted awards and procedural orders but personally I have found them difficult to get hold of and often not very useful in terms of the information they contain. Extracts are generally not released until three years after the arbitration proceedings have closed. The SCC also publishes selected redacted awards or decisions with the parties’ consent. The other major international arbitration institutions will not publish awards without the express consent of the parties.
There is some light on the horizon. In due course, the website Arbitrator Intelligence, together with Wolters Kluwer, will publish 485 international arbitration awards. These commercial awards were collected by Arbitrator Intelligence and, I understand, will be sanitized where appropriate to protect confidential information. This is a major step in improving access to information as to how international arbitration proceedings are conducted. I have been a major supporter of Arbitrator Intelligence since it began. Being able to review how commercial arbitrations are really conducted will be invaluable, but the data is not available yet and it isn’t clear when it will be. In the meantime, the researcher is in the same situation she was in eight years ago, left with the ICSID website and seeking to extrapolate trends from the limited data that is available to her.
