Confidentiality in Arbitration: A Principled Response to the Opportunity for Codification in England and Wales

Abstract

Confidentiality is often perceived as a pivotal aspect of arbitration, shielding sensitive information from unauthorized disclosure and preventing potential harm. This article examines the opportunity for codification of the confidentiality obligations in arbitration in England and Wales in light of the Law Commission’s recent review of the Arbitration Act 1996, emphasizing the importance of clear and predictable rules to enhance England and Wales’ status as a favoured arbitral seat. Codification will offer legal certainty and the concern that users from around the world must navigate a complex web of case law to determine the existence and scope of confidentiality duties, making it less accessible. By enshrining confidentiality in the Act, informed decisions can be made without ambiguity. This article is split into four sections, examining the concept and significance of confidentiality, the global development of confidentiality rules, the opportunity for codification, and the potential benefits of harmonizing international arbitration law. For codification to be effective, the drafters must define robust exceptions, such as consent, court orders, protection of legitimate interests, and public interest. Drawing inspiration from other jurisdictions, the Act should allow flexibility for courts to address unforeseen scenarios. By embracing confidentiality and providing clarity, England and Wales can strengthen its position as a leading jurisdiction for international commercial arbitration. Confidentiality, Arbitration, Procedure, Codification, Uniformity, Harmonization, UNCITRAL Model Law, Institutional Rules