International Commercial Arbitration In The Tech Industry: Balancing Trends Of Confidentiality And Transparency

Abstract

International commercial arbitration has long been admired for its private, efficient, and party-controlled system of dispute resolution. It is especially appealing to multinational technology firms, who frequently have to contend with cutting-edge proprietary information, cross-border intellectual property, and intricate commercial contracts. The confidentiality of arbitration offers protection for trade secrets, reduces repetitional risks, and allows firms to have control over their disputes. But as technology leaves an increasing mark on public life and involves issues of public concern, regulatory compliance, and human rights, the very nature of confidentiality in arbitration is being subjected to unprecedented scrutiny. In the technology sector, where firms exist as both commercial entities and as platforms for public utility, the call for transparency, especially in cases involving labour rights, data privacy, and antitrust conduct has increased exponentially. The need for balancing the requirements of confidentiality against the imperatives of transparency has emerged as a core normative challenge in international commercial arbitration. This tension between confidentiality and transparency is the central theme of this article.

This article examines the new and consequential tension, in particular, as it pertains to arbitration disputes that arise within the tech sector. Through a critical analysis of exemplary case studies, including Apple v. Qualcomm and Uber v. Indian Regulatory Authorities, it delves into how confidential arbitration has at times squarely collided with the larger aims of regulatory oversight, the development of legal precedent, and public accountability. These cases are not only legal milestones but also a marker of a broader shift in the perception of international arbitration, in particular, when areas of business that overlap with the public attempt to conceal disputes from the public eye. Ultimately, this article contends for an overhauled model of international arbitration, one that takes into account the evolving role of tech companies as quasi-public actors and that acknowledges that certain disputes, despite arising from private agreements, have public implications that necessitate at least some measure of transparency. Arbitration does not have to be jettisoned; rather, its frameworks must evolve to meet the complexities of the digital age. Only through doing so can it maintain its legitimacy while advocating the virtues of accountability and justice in an increasingly globalized world.