Confidentiality In Arbitration

Given the limitations of legislating confidentiality through institutional arbitration rules, and the non-uniform treatment of confidentiality in national laws of even arbitrationfriendly jurisdictions; it is crucial that both counsel and parties settle all important issues of confidentiality at the outset of the arbitration.

An oft-cited benefit of international arbitration is the confidentiality that parties assume automatically attaches to the arbitral proceedings and all the documents generated in the course of the arbitration. In reality, no universal consensus has been reached in the national laws of popular arbitration seats or current institutional rules as to (i) the existence or (ii) scope of a duty of confidentiality in arbitration. More significantly, even where a duty of confidentiality exists, there is no consistent formula or international arbitration standard for the exceptions to confidentiality.

Global Survey: A general obligation of confidentiality in arbitration?

A global survey of existence of duty of confidentiality shows that national laws are divided into jurisdictions (i) which adopt the UK common law position on an implied duty of confidentiality; (ii) whose legislation regulates confidentiality to varying degrees; and (iii) whose legislation is silent on the duty of confidentiality (and do not follow the Commonwealth position).

UK Common Law Position

The English position on the duty of confidentiality is succinctly encapsulated by Lawrence Collins LJ in Emmott v Michael Wilson & Partners Limited (“Emmott”) :

“[a]n implied obligation (arising out of the nature of arbitration itself) on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration, or disclosed or produced in the course of the arbitration, or transcripts or notes of evidence in the arbitration or the award, and not to disclose in any other way what evidence has been given by any witness in the arbitration, save with consent of the other party, or pursuant to an order or leave of the court.”