The Singapore International Arbitration Centre (SIAC) has recently announced that it entered into a cooperation agreement with Arbitrator Intelligence, a Penn State Law-affiliated initiative, to promote the use of the Arbitrator Intelligence Questionnaire amongst SIAC’s users.
The questionnaire, which was officially launched in Singapore on 1 June 2017, is described by Arbitrator Intelligence as “a feedback questionnaire designed by AI to facilitate systematic collection of information about arbitrator case management and decision-making.” The questionnaire contains detailed questions about the proceedings, including various aspects of the procedural history, and solicits opinions regarding the individual performance of arbitrators. It is designed to be completed at the conclusion of a case and is open to all parties and counsel involved in international arbitration.
According to Arbitrator Intelligence, as part of its efforts to promote the use of the questionnaire, it intends to sign cooperation agreements with various arbitral institutions, the idea being that institutions would forward the questionnaire to parties and counsel at the end of a case in exchange for access by institutions to Arbitrator Intelligence data about arbitrators. Therefore, the cooperation agreement with SIAC, which appears to be the first of its kind, may be followed by agreements with other arbitral institutions.
This initiative, which aims to promote fairness, accountability, transparency and diversity in arbitrator appointments, is a welcome development, and the efforts of Arbitrator Intelligence and SIAC in this regard are commendable. It remains to be seen, however, whether other arbitral institutions and arbitration users will buy in to this initiative.
Keeping it confidential
One of the biggest obstacles to a widespread uptake of the questionnaire, predictably, is likely to be the issue of privacy and confidentiality of arbitral proceedings. The authors of the questionnaire have attempted to deal with this issue by not seeking information “that would readily identify the case or the parties”. Is this enough of a protection? The answer will likely depend on a number of factors, such as the:
- Express provisions of the arbitration agreement.
- Institutional rules (if applicable).
- Law applicable to the arbitration agreement.
- Law of the seat.
The SIAC Rules 2016, for example, contain a broad confidentiality obligation in Rule 39, which requires that the parties and any arbitrator “at all times treat all matters relating to the proceedings and the Award as confidential”. Rule 39.3 specifies that “matters relating to the proceedings” includes the existence of the proceedings, amongst other things. Given the broad language of Rule 39, it is quite possible that provision of “anonymised” information to a third party (such as Arbitrator Intelligence) would nevertheless amount to a breach of the confidentiality provisions in Rule 39.
Article 30 of the London Court of International Arbitration (LCIA) Rules is similarly broadly worded:
“The parties undertake as a general principle to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration…”
Though the wording of Article 30 on its face concerns the award and arbitration materials, it seems that on proper construction it would extend to information derived from those materials, including information about the arbitration’s procedural history.
In arbitrations seated in England, the position is also somewhat unclear. English law treats arbitral proceedings as private and confidential, so that neither party may disclose details of the case to third parties. The principles of privacy and confidentiality under English law derive from the nature of arbitration itself, rather than any form of privilege (paragraph 79 of Emmott v Michael Wilson & Partners). However, Cooke J’s obiter comments at paragraph 57 of Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co suggest that where there is a “legitimate reason” some disclosure of the existence and outcome of arbitration may be allowed:
“[t]here can in my judgment be no breach of duty in disclosing the fact of commencement of arbitration, the existence of an arbitration or the result of that arbitration where there is any legitimate reason to do so”.
However, it is unclear whether responding to the Arbitrator Intelligence questionnaire would amount to such a “legitimate reason” (arguably, it would not), and whether the level of detail sought in the questionnaire would in any event be too broad to fall within Cooke J’s dicta. It may well be a question of degree: arbitration practitioners’ curriculum vitae abound with high-level anonymised descriptions of cases in which they were involved, apparently without being in breach of confidentially provisions. However, a considerably more detailed description of a case, including the names of the arbitrators, even if otherwise anonymised, might well amount to a breach of confidentiality duties and obligations.
Therefore, in practice, where the seat of arbitration is in England, the prudent course of action would seem to be to seek the other party’s consent to provide responses to the Arbitrator Intelligence questionnaire.
In other jurisdictions, it is possible that the question of providing “anonymised” information about arbitration to third parties is addressed in more detail, though, given the novelty of the Arbitrator Intelligence questionnaire, it is likely that, in many jurisdictions, this issue remains untested and would have to be analysed from first principles.
More clarity on confidentiality needed to encourage uptake
It is, of course, to be hoped that questions of privacy and confidentiality will not significantly impede the uptake of the questionnaire. However, until the position on those issues is clarified in individual jurisdictions and under specific institutional rules, it is likely to be of concern to potential respondents to the questionnaire. Given the potential benefits, this might be an area where Arbitrator Intelligence and arbitral institutions, such as SIAC, could provide further guidance or even procure a legal opinion to help a broad adoption of the questionnaire.