Confidentiality in International Commercial Arbitration

After neutrality and international enforcement, the next most valued feature of international commercial arbitration is confidentiality. For reasons easy to imagine, businessmen do not want their trade secrets, business plans, strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings. Yet the case law of arbitration shows that in practical terms confidentiality is not to be taken for granted – in fact, it has become one of the most undetermined matters in international arbitration. Although ‘the emperor of arbitration may have clothes,’ as one scholar has quipped, his raiments of secrecy can be ‘torn with surprising ease’.

This book deciphers the current degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, other arbitration-related enactments, and practices of arbitral tribunals and domestic courts globally. Drawing on this data and analysis, the author then sets forth criteria to assess the breach of confidentiality in international arbitration and the proper rules for protecting or sanctioning such breaches.

What do we understand by confidentiality in arbitration? What are its limitations? Who is bound to observe it? How can we quantify its breach? In addressing these questions, the book engages such issues as the following:

• reasons for disclosure – e.g., for the establishment of a defence, for the enforcement of rights, in the public interest or in the interests of justice
• disclosure by consent, express or implied;
• circumstances triggering statutory obligation of disclosure;
• recent trends towards greater transparency in investor-State arbitration;
• court measures in support of arbitral confidentiality such as award of damages for breach of confidentiality; and
• categories of persons bound by confidentiality, including third parties such as witnesses and experts.

Structured along the main stages of the arbitral process, the analysis covers the duty of confidentiality from the initiation of arbitral proceedings through their unfolding to the issuance of the award and after. The scope of confidentiality is reviewed in the practice of arbitral tribunals and domestic courts, and from the perspective of international arbitration institutions, with detailed attention to various arbitration rules and numerous significant cases.

In its elucidation of the amount of confidentiality that ‘veils’ each phase of the arbitral process, and its ground-breaking identification of ‘patterns of disclosure’, this book is sure to raise awareness about the various facets and problems posed by confidentiality in arbitration. Although its scholarly contribution to the law of international commercial arbitration cannot be gainsaid, corporate counsel worldwide will quickly prize its more practical value.