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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Regulating Opacity

Regulating Opacity

Shaping How Tribunals Think

Chapter:
(p.379) 23 Regulating Opacity
Source:
Practising Virtue
Author(s):

David D Caron

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198739807.003.0024

This chapter looks at the issue of transparency in international arbitration by considering an aspect of arbitration where the opposite condition remains quite accepted; namely, the opacity of the deliberations of the arbitral tribunal. It considers how the institutional structure of arbitration shapes the decision-making process of arbitration tribunals even though that process is as a general matter conducted out of sight of the parties or the public generally. A core conclusion is that the risks posed by opacity arguably are mediated significantly by a number of regulatory devices expressed in terms of procedural rules. The chapter is organized into three parts. The first examines the justification and procedural construction of the opacity granted to arbitral decision-making; the second examines the regulation of the opacity created; finally, it identifies the gain and challenge of a regulatory perspective.

Keywords:   transparency, international arbitration, opacity, deliberations, arbitral tribunal, arbitral decision-making

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