PUBLICATION OF ARBITRAL AWARDS: BALANCING CONFIDENTIALITY AND TRANSPARENCY IN ARBITRATION
Binsy Susan & Amogh Srivastava
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With the passing of the recent amendments to the Arbitration and Conciliation Act, 1996, the Indian legislature has turned its focus to strengthening institutional arbitrations and bringing India at par with other established arbitration friendly jurisdictions. The Arbitration and Conciliation (Amendment) Act, 2019 also incorporated a widely worded confidentiality provision under Section 42A), which only encompasses limited exceptions. Evidently, with arbitration becoming a popular mode of dispute resolution in the commercial world, there are compelling reasons to statutorily recognize and adopt the practice of publication of arbitral awards, while balancing the needs of confidentiality and improving predictability and transparency in arbitration procedures.
Though some arbitration institutions in India do prescribe rules for publication of awards, there is no uniformity and consistency in the manner in which awards are published. Furthermore, in the absence of any formal framework of arbitral rules, ad hoc arbitration, which is the preferred mode of arbitration in India, also lacks any mechanism that would allow for publication of awards. The article proposes that India should consider giving statutory recognition to publication of arbitral awards and formulate a robust mechanism for its implementation, without compromising the interests of the parties to maintain confidentiality. In doing so, this article analyses the rules of leading national and international arbitration institutions regarding publication of awards. The article proposes certain legislative amendments and solutions to adopt and statutorily recognize the practice of publication of arbitral awards. The aim of the article is to reconcile confidentiality obligations and the need for transparency in arbitral jurisprudence by publication of redacted awards.