On 9 April 2025, during the Paris Arbitration Week, Benoit Kohl (President, CEPANI) participated in a panel discussion hosted in August Debuzy’s offices, featuring representatives from European arbitral institutions. Moderated by August Debuzy’s Valéry Denoix de Saint Marc, the panel also included Marc Henry (Chairman, AFA), Niamh Leinwather (Secretary General, VIAC), Thomas Vaal (Secretary General, NAI), and Ulrike Ganterberg of Gantenberg Legal, who provided the viewpoint of arbitrators and counsel.
The panel addressed the following question: do arbitral institutions operate as fortresses, impenetrable and defending their operational secrecy, or as guest houses, accessible, open and welcoming?
The discussion evolved around three main topics: (i) accessibility; (ii) transparency; and (iii) relation with arbitrators.
There was consensus that arbitral institutions are accessible to arbitration users, making every effort in this regard. Arbitration users may (and do) visit their premises and contact the institutions’ secretariats by phone. Often, a specific member of the secretariat is designated as the “go-to person” for a particular case, to ensure seamless access to the institution’s services.
Unsurprisingly, there are limits to the assistance that the institutions may provide, imposed by the equality of arms principle: parties may receive clarifications about the financial aspects of a case or the interpretation of the institutional rules, but advice on a specific case is prohibited. And of course, as with most real-world scenarios, it is not always easy to distinguish what would amount to advice and what would not.
A key trend recognized by panellists is the push for enhanced transparency driven by two main objectives: (i) increasing predictability, to counter criticisms that arbitration impedes the development of case law (e.g., the concern voiced in Germany that post-M&A disputes routed to arbitration hinder the development of case law on relevant valuation methodologies), (ii) demonstrating that arbitration is evolving into an open and diverse market, far from the cliché of an exclusive private club.
Institutions publish statistics on cases, arbitrators, parties. They disclose governance structures, including decision-making bodies and appointment processes. Certain also share information on the identity of the arbitrators appointed, including information regarding arbitrators sitting together, and provide to the parties the reasoning of decisions on arbitrators’ challenges. Measures fostering further transparency, such as disclosing the cost and the duration of arbitrations are also being considered.
A question strongly debated between panellists and participants was whether greater transparency is what the arbitration users need – or want. As a panellist observed, everyone wants transparency – as long as it does not come to their doorstep. For instance, parties usually object to the publication of a sanitised version of their award. A solution in that regard, adopted by one of the institutions, is to publish a very concise summary of the award, while expanding on the decision on the legal issues, in order to foster predictability and consistency in arbitration decisions.
Lastly, the panel delved into the issue of transparency in arbitrator appointments. Do institutions maintain arbitrator lists? (Most institutions have such lists, and often these lists are available to the parties.) Are these lists binding? (No, institutions are not bound to appoint someone from the list.) Are arbitrators removed from such lists? (Removing an arbitrator from the institution’s list is not a simple matter. There are institutions -not represented on the panel- that abandoned lists altogether, exactly because of the difficulty to remove individuals from the list). And the trickier question: Are there black lists? Unsurprisingly, there was no answer to that one.
In a nutshell, this was a very interesting and insightful discussion between the panellists, with a strong participation from the public. We left persuaded that arbitral institutions are more like guest houses than fortresses, but we also understood the reasons why certain rooms in these guesthouses remain locked.
