Shaping How Tribunals Think
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.
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