Securing Confidentiality in International Commercial Arbitration

Advance publication

Published 7 March 2012

Introduction

Confidentiality is often referred to as an "expectation" of the parties in international commercial arbitration. However, as one of the earlier discussions of the topic already noted "Parties may be astonished to find, when they actually test the matter, that the rule of confidentiality is not reliable". Most arbitration laws are silent on the issue. With the notable exception of England, there are few court decisions dealing with the confidentiality of the arbitral process.

It is, therefore, not surprising that the existence and scope of possible confidentiality obligations in arbitration have been intensely debated over the last fifteen years. Those who consider confidentiality an essential attribute of international arbitration tend to support the view that there is an "implied" obligation of confidentiality in the absence of a regulation in the applicable arbitration law or an express confidentiality agreement between the parties. The opposing view asserts that, in most jurisdictions, there simply is no authority in favour of the proposition that arbitration is "by its nature" confidential.

There is, however, widespread agreement that parties who wish to keep the arbitral process confidential would be ill advised to leave this question to be determined by the (few) existing statutory provisions or the case law. Even in England, where the courts have had numerous occasions to pronounce themselves on the issue of confidentiality, the limits of a generic confidentiality rule have not yet been defined.

^{Footnotes omitted from this introduction. Presentation given at the Warsaw Conference on Confidentiality vs. Transparency in International Arbitration, which took place on 9 February 2011 at the University of Warsaw. See conference report by M. Neumann; "Confidentiality vs. Transparency in International Arbitration - Conference Report", TDM 2 (2011),}^{www.transnational-dispute-management.com/article.asp?key=1719}

Other recently published material:

Complete listing of Advance publication.