Confidentiality and Transparency: Balancing Competing Claims under OHADA Law on Arbitration Proceedings

Abstract

Arbitration has become an effective alternative dispute resolution mechanism and its basic purpose is to bring about cost-effective and expeditious resolution of dispute. We are aware that arbitration is the expression of party autonomy hence, parties to such disputes may decide whether on confidentiality and/or transparency rules to settle their disputes. The problem of arbitration law and proceedings especially those in the OHADA zones are many and difficult. This is so because of the tension to put in place an appropriate balance between confidentiality and transparency, and the question of defining these terms in the context of the OHADA Uniform Act on arbitration proceedings. Also, it has failed to make clear provisions on the sanctions in case of breach of these principles. In view of the above difficulties, this paper aims at examining the effective application of confidentiality and transparency in arbitration proceedings after a lucid analysis of both concepts. The paper also seeks to bring out the possible balance between confidentiality and transparency and to examine procedural peculiarities of confidentiality and transparency without leaving out their effects in case where both concepts are respected and where they are not respected in the course of arbitration proceedings. In order to attain the above objectives, analytical and doctrinal research methods have been adopted. It is therefore recommended that arbitral institutions, especially those in the OHADA zone, should strive to remove uncertainties on confidentiality and transparency protection regime in international arbitrations by making detailed confidentiality and transparency provisions with effective implementation. This will go a long way to ensure smooth functioning of arbitration as an effective tool for conflict resolution.