Thread: tackling the confidentiality issue

Forum -> Vis Moot 2011 -> tackling the confidentiality issue

deepakelanthoor - 2010-10-09 19:58:11

tackling the confidentiality issue

hi, i have written a post listing some possible arguments for the confidentiality issue. hope it helps.

ofroitzheim - 2010-10-11 11:23:02

RE: tackling the confidentiality issue

in addition I want to point to our Trans-Lex Principle related to Confidentiality. Link

Please note that below the principle there are various references you can access in Trans-Lex.   

Guest: John Doe - 2010-10-11 19:08:28

RE: tackling the confidentiality issue

I am not sure, but maybe there is no real difference between the 2004 and 2010 Rules in this point. I am justi wondering if you can construe an implied execption to the 2004-confidentiality-rule. In that case the 2010 version contains only in explicit terms what was implied already in the 2004 version.

I did not find any reference for that yet. But I found reference for implied exceptions when the duty to confidentiality is also implied. Here we, maybe, have the 2004 version with an explicit duty to confidentiality whicht makes the starting postion different. However, by the way of construction of contract one may argue, that die 2004-rule was not meant to be without any exception regardless how substantial the colliding right or interest is.

What do you think?

deepakelanthoor - 2010-10-15 23:38:50

RE: tackling the confidentiality issue

Hi John Doe, 

It may be open for one to argue that there is an implied duty of confidentiality on the parties under the 2004 Rules. It is indeed a line of argument that the Respondent will have to invoke in response to the Claimant's argument that the 2004 Rules, not 2009 Rules apply. However, for the Claimant, it is easier to argue against this implied obligation and counter its existence than to argue against the express obligation under the 2010 Rules.

I have clarified this in response to a comment by Oliver at

be - 2010-10-16 14:06:17

RE: tackling the confidentiality issue

The TransLex Principle on confidentiality in Chapter XIII of the Principles (Principle XIII.5.1) might be helpful for the moot teams. It reflects a general understanding of the scope of confidentiality in int'l. arbitration and of its exceptions. This means that it applies even if their is no specific agreement of the parties on confidentiality, be it in an express party agreement or by the parties' reference to a set of arbitration rules which contain a provision on confidentiality. There are a number of English court decisions which have stated that there is an implied duty of confidentialty in every agreement to arbitrate. After all, that is one of the major reasons why parties chose to arbitrate as an alternative to litigation before the (public) state courts. You might want to look at the second edition of my book "Private Dispute Resolution in International Business, Handbook, pages 335 et seq.

The question is whether that duty of confidentiality also extends to the mere fact that there is an arbitration between the parteis. The TransLex Principle does not specifically say so, but tentativeyl, my response would be in the affirmative. There is also a question as to how such agreements can be enforced and what substantive law governs claims by the party which argues that the other side has violated the duty of confidentiality. After all, this is not a sales contract issue!

ofroitzheim - 2010-10-21 11:41:07

RE: tackling the confidentiality issue

Just found some articles which might be of interest:

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