We live in an age where public scrutiny has become commonplace. Many assume it to be a given.
It is a trend that can be seen in both the governmental and commercial spheres. While transparency in the former has firm foundations, it has become increasingly important in the latter. For corporates, transparency is said to enhance brand reputation, and with it the development of a more effective working environment with employees and potential recruits. Just as importantly, it helps police any commitment to effective governance and good citizenship.
New regulations and legislation have been proposed or promulgated in various jurisdictions, such as the recent Corporate Transparency Act (the ‘CTA’) in the United States. Intended to take effect in 2022, the CTA will require companies to disclose their true owners when the company is formed, tempering the mischief that shell companies can create.
While this trend has played out most vocally in the world of politics and social media, the accompanying expectations of transparency, candour and openness have been felt everywhere. That includes our own world: that of international arbitration.
It is, perhaps, ironic that when rights to privacy have developed legal force (or been strengthened in those jurisdictions where they had existed previously), the blurring between that which is ‘public’ and that which is ‘private’ has become more pronounced. Nevertheless, this trend gives rise to a natural tension between one of the hallmarks of international arbitration—that of privacy—and a developing desire towards transparency.
Does that tension matter? Is transparency important? Does it trump privacy? Are the concepts even related? This essay seeks to provide an overview of that tension, and asks not just whether they can be reconciled, but whether reconciliation is even necessary.
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