On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (“Note”).
In summary, the Note (paragraphs 41 through 46) provides, among other new issues, that, as of January 1st, 2019, ICC awards may be published.
The Secretariat will inform the parties and arbitrators, at the time of notification of any final award made as from 1 January 2019, that such final award, as well as any other award and dissenting or concurring opinion made in the case, may be published in its entirety no less than two years after the date of said notification. The parties may agree to a longer or shorter time period for publication.
At any time before publication, any party may object to publication or require that any award be in all or part anonymised or pseudonymised, in which case the award will not be published or will be anonymised or pseudonymised.
In case of a confidentiality agreement covering certain aspects of the arbitration or of the award, publication will be subject to the parties’ specific consent.
The Secretariat may anonymise or pseudonymise personal data included in the award as necessary pursuant to the applicable data protection regulations.
The Secretariat may always, in its discretion, exempt awards from publication.
Comment:
- The Note provides an opt-put system. Parties desiring confidentiality will be able to decide whether to authorize publication of the award or not. In the absence of any statement, the awards may be published.
- On the assumption that publication ensures better award quality (admittedly, a matter for debate to a certain extent), we may see in the future more parties agreeing at the commencement of the arbitration to authorize publication on an anonymised basis.
- Note that dissenting opinions may be published as well. This possibility could probably enhance award quality further.