Confidentiality vs Transparency in International Arbitration: An Austrian Perspective

Advance publication

Published 7 March 2012

Introduction

Confidentiality and arbitration are two terms that are very often mentioned in connection, albeit with varying results. Indeed, the issue of whether and to what extent confidentiality forms an integral part of international commercial arbitration proceedings is one that has been repeatedly and continuously forming the object of discussions among authorities in the field of international commercial arbitration. The confidential nature of the arbitral procedure is widely praised as a major advantage of arbitration over state court litigation by practitioners, irrespective of legal background , and in fact, is perceived by "the client" as a defining element of arbitration. However, while there is a broad consensus that arbitral proceedings are private, i.e. not open to the public, that is to third parties that are completely alien to the proceedings, it is disputed whether there is a general obligation to keep the proceedings and their contents confidential, and if so, who is bound by such a duty.

This contribution shall, after giving a brief overview of some representative positions in national laws and institutional rules, provide some insight into the legal situation under Austrian law and under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules), with regard to the confidentiality obligations of arbitrators, parties and arbitral institutions involved in international commercial arbitration proceedings.

^{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}

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