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Literary Genres

However, there is very little research evidence to support such statements from experts in the field, including some from members of the legal community. Hence there is a need to undertake an evidence-based investigation into this aspect of professional practice. One such effort is the international project funded by the Research Grants Council HKSAR under Competitive Earmarked Research Grant, entitled International commercial arbitration practice: a discourse analytical study in collaboration with more than twenty international teams of researchers, drawn both from legal and arbitration practice, as well as from discourse analysis.

One of the key objectives in the project is to investigate the 'integrity' of the current international arbitration practice by analyzing various sets of complementary textual, narrative, and discursive data. In order to achieve these objectives, we use a multi-perspective and multidimensional genre analytical framework BHATIA, to integrate analyses of data collected from at least three different sources:.

It is true that arbitration and litigation practices are never so clear-cut; their boundaries are frequently blurred, at least for the outsiders, if not for the practitioners themselves. However, it is possible to take advantage of such blurring by reflexively seeking confirmations of the communicative characteristics of arbitration process by testing practitioner hypotheses against other practitioners' experiences and against the actualities of interaction in 'critical sites of engagement' SCOLLON, , especially at 'critical moments' of interaction.

We realize that in order to be rigorous in our investigation, we require not only access to actual data from practice, but also an engagement of the professional community in research collaboration. It is with this point of view that the project has sought involvement of the members of the arbitration community. The duty of confidentiality and privacy in arbitration practices and procedures, the presumed strength and one of the so-called 'selling points' of international commercial arbitration practice, seems to have become a major stumbling block for the study of arbitration as an alternative to litigation in international commercial contexts.

We have discovered that there is very limited access to the discourses of and in arbitration. So far as the written arbitration discourse is concerned, the most important genre in international contexts is what is known as arbitration awards, which are the equivalent of court judgements in litigation.

There are some awards accessible in the form of sanitised extracts published by international agencies such as the International Chamber of Commerce International Court of Arbitration. However, these awards are few and far between.

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So far as the spoken data is concerned, the most important data required is from the actual arbitration practice trial , which is almost certainly inaccessible to outsiders because of the general duty of privacy and confidentiality, which is taken as a necessary pre-requisite to an arbitration trial. However, the critical question is whether it is really the case, or is it that this requirement of confidentiality is only used as an excuse to preserve the business interests of some of the key players in the community of practice. In this context, I would like argue for a more relaxed confidentiality requirement, particularly for the advancement of research and development of the institution of international arbitration in the coming years.

Views and concerns about the necessity of taking privacy and confidentiality as a given requirement for international commercial arbitration practice are interesting, and have attracted diverse reactions, both in favour of and against, its protection from disclosure for different purposes and under different sets of conditions. I would like to discuss some of these perceptions here. There seems to be a general agreement among legal scholars, judges, and arbitration practitioners that there is a duty of confidentiality to be observed which implies that parties in dispute shall not disclose any information in and about the arbitration process, including the award, to any third parties not involved in the process.

This general expectation of confidentiality of arbitral proceedings may be absolute in some jurisdictions, and implied by laws in others. Confidentiality in this context refers to the protection from disclosure of all the information, that is, what in discourse analytical terms is called "discursive data", whether spoken or written, relating to, submitted or presented during, or resulting from an arbitral proceeding, to outsiders who are not participating or involved in the arbitral proceedings.

In this context, Article Hearings shall be held in camera unless the parties agree otherwise. The arbitration tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The implication is that, if the hearing is held in camera, and where evidence will invariably be private in nature, then all the documents presented during the hearing and also the documents resulting from the hearing, including the award itself, shall also be kept confidential.

However, this is not viewed as an absolute duty of confidentiality in arbitral proceedings. Article This rule also suggests that, if the parties agree, then the whole proceeding may be open to the public, including the publication of award. In a similar way, neither the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards , nor the European Convention on International Commercial Arbitration envisages the obligation of absolute confidentiality.

Moreover, when the award is filed in the court for enforcement then part of the award becomes public, thus undermining in effect any duty of confidentiality. In actual practice, courts in different jurisdictions have refrained from accepting an absolute duty of confidentiality. The perceptions of the arbitration community are also varied.

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Yves Fortier , for instance, rightly observes that the principle that a duty of confidentiality exists, at least, in the absolute form in which it is generally understood by most parties, is more truism than truth. The basic questions ranging from the nature and scope of the principle, in law, to its utility, in practice, to its formulation as a rule of arbitral procedure, are highly contentious, he points out. Similarly, Alexis Brown points out that a 'presumption of confidentiality, whether implied or explicit, exists between the parties to an international commercial arbitration'.

Despite the English Court of Appeal's decision in Ali Shipping v Shipyard Trogir' , which signalled a revived movement toward a judicially enforceable duty of confidentiality, he claims, the question of confidentiality in international arbitral proceedings is far from settled. These observations indicate that the duty of confidentiality is implied rather than absolute and is subject to limitations and exceptions to be decided case by case.

One of the exceptions to this duty of confidentiality has been well-established in Esso Australian Resources Ltd v The Honourable Sydney James Plowman , where the Australian court decided that confidentiality was not an essential attribute when there was a legitimate interest in obtaining information of public interest. Sometimes, it is also argued that the disclosure of an arbitral award should be permissible if it helps to establish a cause of action in subsequent arbitration proceedings.


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In this context, Justice Colman J. This case established an exception to the obligation of confidentiality. An award rendered in an earlier arbitration may be disclosed in subsequent litigation to prove the basis for the subsequent claim. Sir Bernard Rix , p. The English rule is that arbitration proceedings are prima facie confidential, but there are exceptions: thus i the parties may consent to lift confidentiality; ii the arbitration proceedings may get into the courts; iii the interests of justice may require disclosure.

Although it is true that there is a large degree of variation in the perceptions about the general duty of confidentiality in international commercial arbitration, it is still very difficult to get access to the discourses of and in arbitration practice. Off-stage narratives of experience of arbitration practitioners are not very difficult to have access to, but their on-stage performance in the arbitration trial GOFFMAN, is still largely inaccessible for any kind of research.

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However, there has been a degree of relaxation observed in the case of written discourses in and of arbitration, the prime example of which is the arbitration award, to which we shall turn to now. One of the important purposes of publishing awards is to educate potential stakeholders and also the providers of arbitration services. Referring to this issue, Sir Bernard Rix , p. The more that arbitration awards are final and supplant and avoid any visit to the courts, the more commercial parties have, it seems to me, a real and justifiable interest in being able to discover for themselves how arbitration tribunals in general and individual arbitrators or boards of arbitrators in particular, decide and perform.

They should not be simply in the hands of their legal advisers, who give them anecdotal information.

Poems Are Teachers: How Studying Poetry Strengthens Writing in All Genres by Amy Ludwig VanDerwater

Moreover, the legal advisors themselves should be in a position where they can advise their clients on an informed basis about the principles applied by and performance of arbitrators. There is also the matter of accommodating public interest in the review of arbitration proceedings, which can only be served by the introduction of some transparency and disclosure of information regarding such arbitral proceedings and awards.

In view of this paper, then, there appears to be an established case for making some elements of the arbitral proceedings more transparent and free from the obligation to observe confidentiality. As one example, the UNCITRAL Notes on Organizing Arbitral Proceedings in note 32 encourages parties to include in a confidentiality agreement only those elements of the proceedings that are necessary for individual cases.

An agreement on confidentiality might cover, for example, one or more of the following matters: the material or information that is to be kept confidential e. To sum up, we may say that arbitration in recent years has become relatively more transparent in that the rules from various regulatory organizations have become accessible to stakeholders, and at the same time noting that there has been an increasing number of voluntary disclosures that provide information about the way arbitration takes place. As Catherine Rogers and Richard Cadwallader point out:. Arbitral decision making in the past occurred in a virtual black box [ At that time, international commercial arbitration was predominantly a compromise-oriented process [ Instead of formal, transparent rules, arbitrators crafted proceedings based on their culturally defined professional experiences and their sense of what was equitable and just.

As a consequence of these conditions, parties had little ability to peek at the inner workings of the decisional machine. Even if they could, the number of skilled arbitrators and recognized institutions were few, so there was no basis for comparison shopping. High rates of voluntary compliance also ensured that national courts would not be able to glimpse inside the system during enforcement proceedings. Today the situation is somewhat different. A series of reforms have made international commercial arbitration considerably more transparent, meaning that the rules that regulate decision-making are more readily available to interested parties, who in this instance are the users of the system.

Inner Workings Of The Novel: Studying A Genre

At the same time, a growing number of voluntary and involuntary disclosures provide increased information to the users, as well as to the general public, about numerous individual cases. While the disclosures generally are made for reasons other than to advance transparency, the information they provide inevitably illuminates the inner workings of the international commercial arbitration system.

The parties can also impose a contractual obligation of non-disclosure for researchers before admitting them as observers in arbitral proceedings. The following examples offer some instances of the relaxation of the absolute conditions of confidentiality.


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  5. In Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich , the Privy Council decided that the essential nature of commercial arbitration was private proceedings and that unlike litigation in public courts information is not placed within reach of the public. As such, the implied restrictions on the use of documentation and materials obtained in arbitration proceedings will have a greater impact than similar materials in litigation. However, the Privy Council significantly decided that, where the issues of confidentiality touched on the award, there may not be the same degree of implied restriction of confidentiality.

    The reasoning given was that an award may later have to be referred to for accounting purposes or in legal proceedings and for the practical purpose of enforcing the rights conferred by the award itself. Another study by the advocates of publication of awards concluded that confidentiality was not one of the most valued aspects of international commercial arbitration and that less than 10 per cent of the participants that had been surveyed had indicated confidentiality as one of the important aspects of arbitration.

    The ICC International Court of Arbitration has started publishing important extracts from its awards, after they have been adequately sanitized by the removal of any identifying information, and which are then available for comment by academics, practitioners, and other experts. The advantage of having a repository of awards can hardly be overlooked. The disclosure of such awards could be used as educational samples during the course of training of arbitrators.

    It could also lead to the development of the law and practice of arbitration and the encouragement of consistency by future arbitrators in reasoned international awards.