Arbitration and Transparency

One would suppose that the Freedom of Information Law would allow all citizens equal access to information from government bodies.

When one of the parties in a commercial arbitration has to rely on his own initiative to obtain information, for example on the company bank records, on a government grant or on government subsidies, he is advised by the Bank of Israel or the Government Authorities that he will need a court order.

However, those bound by the Arbitration Law will discover that the court does not recognize information gathering as a reason for giving disputants access to the court.

They could get access to the court via the arbitration law’s public policy clause, presenting the court with information X that showed that their case offended public policy.  However, to obtain information X, they would first need access to the court.

When the matter involves the public purse, it is not only the individual that is disadvantaged.

The Boaz Okon article on transparency in last Thursday’s “Yediot Ahronot” financial supplement  mentioned Daniela Piana’s  book “Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice”

Immediately after world war two, a lot of emphasis was placed on the reforms necessary to ensure the rule of democracy. The basic assumption then held was that the principle of the rule of law would be guaranteed because of the independence of the Judiciary. Ensuring the independence of the law system, and its ability to maintain the rule of law, was perceived as the best response to totalitarianism.

Over the last period of time it has been recognized that this is not sufficient.  The independence of the judiciary is not an end in itself.  It is the means of promoting fundamental values and in itself cannot guarantee judicial quality.

Because of this, the legal system has to create mechanisms for accountability that include full disclosure. Openness to criticism and judicial accountability is considered the “Yin” to the rule of law’s “Yang”.

On the local scene, judges have been telling government institutions to reveal information, but they themselves are shy to apply this rule to themselves. There was an effort made to prevent data being disseminated about the work of specific judges, but the Jerusalem court overruled this – a decision Okon applauds.

Okon says that experience teaches us that a policy of openness and transparency heightens the feeling of responsibility and accountability of office holders, and increases the public’s trust in them.