19 November 2018

10 things to bear in mind regarding arbitral confidentiality

By Brendan Palmer (Dubai)

One reason for electing for arbitration as a dispute mechanism is often the confidentiality of the proceedings. But what exactly does that mean?

Here are 10 things to bear in mind: 

  1. Privacy versus confidentiality: These are separate concepts. Privacy generally refers to the exclusion of third parties from hearings, whereas confidentiality is a wider obligation not to release details of the arbitration to non-parties. 
  2. What law determines the scope of the confidentiality: In jurisdictions where confidentiality takes effect as an implied term, its scope will be governed by the law of the arbitration agreement, whereas in jurisdictions where confidentiality arises from statute, the law of the seat is likely to apply.
  3. The extent: In many jurisdictions, including England, confidentiality includes both the hearing and documents generated. Depending on the seat, and any further agreement,confidentiality might also attach to the existence of an arbitration, the parties and awards. It is generally accepted that the deliberations of arbitrators are confidential.
  4.  The persons to whom it applies: Typically confidentiality extends to both the parties and the arbitrators. It may also extend to witnesses, but acting prudently, an express agreement should be sought.
  5. Source: In some jurisdictions confidentiality is statutorily provided for, in others it arises as an implied term of the arbitration agreement (as is the case in England). Some arbitral rulesets provide for confidentiality by default (LCIA, DIAC), others do not.
  6. Agreement: In the absence of any binding legislative confidentiality or confidentiality provisions in the chosen arbitral ruleset, parties should consider an explicit agreement with respect to confidentiality, either as part of their arbitration agreement or separately. Even where confidentiality is otherwise provided for, an express agreement gives the parties to opportunity to clarify and/or tailor the extent of confidentiality agreed to apply.
  7. Prohibited disclosure: Confidentiality obligations may prevent disclosure of an award by a subsidiary to a parent company.
  8. Exceptions: Depending on the law governing the confidentiality agreement, exceptions may include (as in England): where the parties have agreed otherwise or consented to disclosure; where disclosure is required by Court Order; where disclosure is necessary to protect a legal right; or where disclosure is in the interests of justice.
  9. The Award: Whilst an award is likely to be subject to confidentiality, exceptions are likely to apply, in particular where, for example, disclosure is required to the competent court for enforcement.
  10. Related Court Proceedings: Many states legislate to preserve the confidentiality of arbitral proceedings before the Courts, with a presumption that confidentiality should apply to arbitration claims, and that hearings should be held in private.

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