Confidentiality vs Transparency in International Arbitration: The English Perspective

Advance publication

Published 7 March 2012

Introduction

Confidentiality is often stated to be a key reason why businesses choose to arbitrate rather than litigate. In a recent survey of in-house counsel conducted by the School of International Arbitration at Queen Mary University in London, 84% of those surveyed admitted to choosing arbitration at least in part because of its "confidentiality".

This is not surprising if one considers how widespread is the misconception that arbitration proceedings are automatically confidential. According to the aforementioned survey, over 50% of interviewees believe that arbitration axiomatically implies confidentiality.

However, if arbitration is by definition private, it is not necessarily confidential. Privacy in respect of arbitration relates to the idea that the hearing of the dispute and the tribunals' deliberations are conducted behind closed doors, "in camera". But the concept of confidentiality, in the context of arbitration, goes far beyond this. It is often expected to mean that nothing from the proceedings may be made available to third parties, including inter alia (1) the evidence and documents produced by the parties, (2) the arbitrators' awards, but also (3) the very existence of the arbitration.

In practice, the degree of confidentiality that may be achieved in any given arbitration will depend on the legal framework applicable to the procedure of that arbitration; that is, principally, the arbitration rules agreed upon by the parties and the lex arbitri.

Having been entrusted with the arduous task of discussing the issue of confidentiality from the English perspective, this paper will therefore focus on (1) English arbitration law and (2) the institutional rules and practice of the London Court of International Arbitration (the "LCIA"), the LCIA being the major arbitral institution in England.

^{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}

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