Lloyd's Maritime and Commercial Law Quarterly
PUBLICATION OF ARBITRATION AWARDS
A curious and interesting conflict has gradually emerged over the last few years, between the so-called inherent confidentiality of the arbitration process and the now widely recognized desirability of the publication of awards as part of the movement towards the development of a law of international trade as a separate entity from municipal systems of law, sometimes broadly described as the lex mercatoria.
The dilemma has been highlighted by the undeniably legitimate publication of the awards of the Iran-United States Claims Tribunal, which (with limited exceptions) are expressly placed in the public domain by an agreed amendment to Art. 32 of the UNCITRAL Arbitration Rules1 as well as by the ad hoc (and arguably haphazard) publication of other awards in various journals by the agreement of the parties.
The comprehensive publication of awards of the Iran-United States Claims Tribunal2 has emphasized both the quality and quantity of the material that flows from the pens of experienced arbitrators, both on substantive and procedural aspects of international arbitration.
For examples, one need look no further than the exceptionally thorough review of the development of the “law” (if there is such a thing) relating to the basis of compensation for nationalization of foreign property by a sovereign state, set out in the separate opinions of the presiding arbitrator, Judge Gunnar Lagergren and Judge H. M. Holtzmann in the INA Corporation case;3 or the analysis, by the same American arbitrator, of Arts. 38 and 40 of the UNCITRAL Arbitration Rules in relation to the basis for awarding the costs of legal representation4. There are many other examples of the legitimate publication of awards which have proved to be of the greatest value for practitioners and students alike.
Unfortunately, however, a “parallel market” has also emerged in which copies of awards are “leaked” to, or otherwise acquired by, various journals or academic institutions for publication. One recent and striking example has been ventilated in
1. Final Tribunal Rules of Procedure, adopted 3 May 1983; see Yearbook Commercial Arbitration, Vol. VII (1983) p. 251.
2. In Iranian Assets Litigation Reporter, Mealey’s Litigation Reports, and the Iran-United States Claims Tribunal Reports.
3. INA Corporation v. The Government of the Islamic Republic of Iran; reported in Mealey’s Litigation Reports: Iranian Claims, August 1985, p. 2084; extracts from the Separate Opinions are also reproduced in Yearbook Commercial Arbitration, Vol. XI (1986) pp. 312 et seq.
4. Sylvania Technical Systems Inc. v. The Government of the Islamic Republic of Iran; separate opinion of H. M. Holtzmann, Iranian Assets Litigation Reporter, p. 10, 860 at 10, 863.
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