xr Trans-Lex.org Law Research Trans-Lex.org Law Research - Docid: 970500 -
Principle

No. XIII.5.1 - Confidentiality

(a) The parties to arbitration proceedings, whether institutional or ad hoc, are under an obligation to keep confidential all awards and orders produced by the arbitral tribunal in the arbitration, together with all materials in the proceedings created for the purpose of the arbitration, as well as all materials submitted by another party in the framework of the arbitral proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party

i)

by a legal duty vis-à-vis a third party, especially an official authority of a state ("public interest exception"),

ii)

to protect or pursue a legal right,

iii)

to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority; or

iv)

is justified by an express or implied consent of the party who produced the document during the arbitration.

(b)This undertaking also applies to the arbitrators, the tribunal-appointed experts, the secretary of the arbitral tribunal and, in case of institutional arbitration, the arbitral institution.

Commentary

1 Given the significance of the confidentiality issue for international commercial arbitration as a whole, it is surprising that most arbitration laws, including the UNCITRAL Model Law, do not contain provisions on the confidentiality of the proceedings. While some arbitration rules do contain confidentiality undertakings, others, such as the ICC Arbitration Rules, do not. It is therefore of utmost significance to determine whether a general principle related to the confidentiality of the proceedings exists in international arbitration law.

2 The English Court of Appeal in Emmott v. Michael Wilson & Partners Ltd. not only emphasized the nature of the confidentiality principle as a substantive rule of arbitration law, but at the same time made it clear that there are intrinsic limits to this principle which are ‘still in the process of development on a case-by-case basis’. The Court listed as principal cases in which disclosure will be permissible by one party to the arbitration, i.e. in which an exception to the duty of confidentiality applies:

-

express or implied consent of the other party;

-

order, or leave of the court;

-

disclosure is ‘reasonably necessary’ for the protection of the legitimate interests of one of the parties; and

-

the ‘interest of justice’ or the ‘public interest’ requires disclosure.

 3 The problem with this list of exceptions is that their precise delineation is far from clear. While the case of an express or implied consent of the other party is undisputed, the Court did not make it clear under what circumstances an order, or leave of the court could or should be granted. Also, the precise scope of the ‘interest of justice’ and ‘public interest’ exception remains unclear. It goes without saying that a mere ‘general’ public interest, e.g. one expressed in the media or the political arena, can never justify an exception to the principle of confidentiality. Only where the public interest is manifested in a statutory duty of disclosure vis-à-vis a third party, e.g. a public authority (tax, antitrust, public prosecutor, etc.) does that public interest prevail over the parties’ implied contractual duty of confidentiality. This limit to the parties’ duty of confidentiality is to be found in some arbitration rules.



Please cite as: "Commentary to Trans-Lex Principle , http://www.trans-lex.org/970500"
References
Arbitration Rules
Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules
DIS Arbitration Rules 1998, downloadable at http://www.dis-arb.de
ICDR International Dispute Resolution Procedures (including Mediation and Arbitration Rules), 2014
London Court of International Arbitration (LCIA) Rules
Swiss Rules of International Arbitration 2006
UNCITRAL Arbitration Rules 1976
UNCITRAL Arbitration Rules 2010 (revised)
WIPO Arbitration Rules
Court Decisions
John Forster Emmott v. Michael Wilson & Partners Limited [2008] EWCA Civ 184.
Oxford Shipping v. Nippon Yusen Kaisha, [1984] 2 Lloyd's Rep. 373
National Legislation
California's Ethics Standard for Neutral Arbitrators in Contractual Arbitration 2002
Scottish Arbitration Bill 2009
Contract Clauses
1. Contractual Duty of Confidentiality
Sales & Purchase Contract
Confidentiality of Proceedings
The parties agree that any arbitration proceedings hereunder will be treated as the Confidential Information of both parties and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or in accordance with the disclosure provisions of Section X.
2009
Arbitration
The Parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the Tribunal, the ICC, the parties to the arbitration, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise, or as required by the rules of the NASDAQ or of any other quotation system or exchange on which the disclosing Party's securities are listed or applicable Laws.
2012
Arbitration
The Parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the Tribunal, the ICC, the parties to the arbitration, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise, or as required by the rules of the NASDAQ or of any other quotation system or exchange on which the disclosing Party's securities are listed or applicable Laws.
2012
Merger Agreement
Confidentiality
At the request of any party, the mediators, arbitrators, attorneys, parties to the mediation or arbitration, witnesses, experts, court reporters, or other persons present at a mediation or arbitration shall agree in writing to maintain the strict confidentiality of the proceedings.
2013
Joint Venture
Dispute Resolution
(...) All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation (...)
2007
Arbitration
(...) Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of all parties.
2008
2. Violation of Confidentiality of Proceedings
Sales & Purchase Contract
Appeal to Arbitration Tribunal
(...) either Party has the right to seek immediate injunctive relief in the event proprietary information is about to be disclosed without authorization or otherwise misused - (International Contracting: Law and Practice - Larry A. DiMatteo - 2.05 A - S. 26).
Dispute Resolution Clause
Either party may seek injunctive relief in any court of competent jurisdiction for improper use or disclosure of proprietary data - (International Contracting: Law and Practice - Larry A. DiMatteo - 3.18 - S. 87).
Joint Venture
Dispute Resolution
(...) All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation (...)
2005
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