I recently visited the Peace Palace in The Hague.  The structure and layout of the building is a testament to its unique purpose.  Andrew Carnegie contributed the funds to build the palace under two conditions:

(1) that it contain the largest international law library in the world, and

(2) that each member country contribute gifts to decorate the palace. 

As you walk through the halls of this massive building, one is able to observe the range of artistic contribution from Japanese wall carpets to Byzantine mosaics to statues of important peace campaigners from around the world.  There is no rhyme or reason to the décor in the palace—a museum curator would probably scoff at the muddled assortment.  There is no continuity, no theme, and no geographic cohesions.  As we toured the Permanent Court of Arbitration (one of the organisations that sits at the Peace Palace), I began to see how this amalgamation of art from all over the world is symbolic of the very nature of the Permanent Court of Arbitration (PCA).   While founded in the beginning of the 20th century, there are currently 111 state parties.  Arbitration is a unique dispute resolution mechanism where countries with vastly different legal systems can come together and resolve their disputes.  The PCA hears various disputes between states, between states and private entities, and between private entities and international organisations.  The PCA provides a venue and creates rules for parties from around the world to resolve their disputes.

Beyond the general feelings of respect for the PCA as a functioning body within the Peace Palace, I was particularly fascinated by one aspect of the PCA.  More and more parties consent to having public hearing and posting their awards.  One of the many advantages of confidential arbitrations it that the matter is removed from the public eye and the international reputation of both parties is shielded.  However, more recently, parties agree to public arbitrations for the sake of transparency and public diplomacy.  A recent example is the Abyei Arbitration.  This case was an intra-state dispute between two parties in Sudan regarding the implementation of the 2005 Comprehensive Peace Agreement—in particular, the boundaries and demarcation for the Abyei land territory.  Negotiations and diplomacy had failed and neither party wanted to rely on the country’s constitutional court to interpret and apply the constitutional settlement agreement.

While some international criminal tribunal are public, the decision to publicize the Abyei arbitration was somewhat rare.  The parties chose to broadcast the Abyei arbitration live on the web, offering many benefits to the public. The public could follow the details of the arbitration including the expert testimony and the contribution of the five-panel tribunal.  By observing the trial, the individuals in Sudan could better understand the outcome and believe that it was a just decision arrived at fairly.  Furthermore, neither party had to lose face politically because neither party was seen as “giving in” of “settling” since the decision was handed-down from the tribunal.  As a safeguard, the public could put pressure on the government to accept the decision as final and binding if it failed to implement the final decision.

There are benefits to public arbitration but these options have yet to be fully explored.  As hoped for in the Abyei case, transparent arbitrations have the potential to create national healing after diplomacy and negotiations have failed.  Transparent arbitrations can also be used to put public pressure on certain entities.   Do public arbitrations work particularly well when the issues are at a diplomatic or international level? Is there broad application to the benefits of a public arbitration or is it limited to certain types of cases? How important is the confidential aspect of arbitration—and is arbitration still arbitration without it?

What do you think?   

Mikita is the Editor-in-Chief of ADR Times. As an associate at Northrup Schlueter LLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.