Confidentiality in arbitration: a myth or an achievable goal?

Abstract

This paper examines the extent to which the requirement for confidentiality or secrecy within the arbitral process can be maintained from the commencement of the arbitration to the finalisation of an appeal through the court process in England and Wales. The paper starts from the premise that confidentiality, being allegedly a key factor in arbitration, can, and should, be maintained throughout. It will focus on two leading cases, only one of which is given at the level of the Court of Appeal. The other case was issued by the Privy Council albeit the House of Lords in another name. The paper will touch upon whether parties are properly focusing their minds on preparation of an all-encompassing arbitration agreement, which contains an effective confidentiality clause. Further, it will examine whether the judiciary, while correctly emphasising the need for public interest to be satisfied at all times wherever faults are to be found in the arbitration process yet made by way of somewhat obscure indications to the parties as to how fundamental and continuous confidentiality can be achieved.