국제중재에서의 투명성과 기밀성의 경계(境界)

This article clarifies demarcation between transparency and confidentiality of international arbitration, including general commercial arbitration and investor - state arbitration. At present, there are more and more demands for greater transparency in international arbitration. However, it is difficult to agree with the view that strengthening transparency is only desirable direction for reforming international arbitration. In fact, confidentiality has been emphasized rather than transparency in arbitration practices, and the confidentiality of arbitration and closed arbitral hearing have been regarded as one of the advantages of arbitration versus court litigation as a traditional characteristic of arbitration. The laws and regulations on arbitration in each country are roughly classified the following three categories: expressly recognizing the confidentiality obligation of arbitration, acknowledging the implied obligation of arbitration, or denying even the implied obligation of arbitration. In the international community, an agreement on the confidentiality obligation of international arbitration has not yet been established, but progress is being made to improve transparency. The rough boundary criteria of transparency and confidentiality can be sorted from the first rank to the fifth rank according to the priority as follows. Subordinate information should in principle comply with the transparency or confidentiality criteria of the senior information. If the transparency and confidentiality of certain information are in the same rank, the arbitrator could decide whether to disclose or not disclose by way of balancing the interests. In short, the ranking of transparency or confidentiality is applied flexibly considering the characteristics of case by case. Information that should be disclosed in a transparent manner with the highest priority is general information about the arbitration rules and procedures, and guidance information for arbitrators' convenience such as the arbitrator's list of arbitrators. Such information requires not only passive disclosure but also active publicity and announcement. If the transaction to be disputed is a crime or a serious illegal activity and information on the risk of terrorism or human life should also be disclosed in first place. The object of confidentiality of the second rank is the trade secret of the party. The object of the third degree of confidentiality is the confidentiality of the hearing and the arbitration award according to the public interest. Transparency ranked at third is the disclosure of the hearing and the arbitration award according to material public interest. The fourth-ranked transparency object is the case where third-party observation on the hearing and disclosure of arbitration award is allowed under the agreement of the parties. The object of confidentiality in the fourth place is the case of a non-disclosure of a hearing or arbitration award under an arbitration contract or arbitration rule. The object of confidentiality of the fifth place is the cases where the parties have concluded an NDA as a general contract or a confidentiality clause on general contract which is subject to dispute, not an arbitration contract.