How Can Arbitrators Best Protect Their Deliberations from Disclosure: New Challenges and Opportunities in England

Abstract

A 2017 decision in the English High Court, together with a 2017 decision of the UK Information Commissioner, have left open the possibility that arbitrators may be compelled to disclose their deliberations, communications and working papers to the parties in certain circumstances. Whilst such circumstances are likely to be rare, it remains uncertain precisely when arbitrators are entitled to withhold such documents, and when disclosure will be required. It will require further litigation or new statutory developments to establish the precise boundaries of confidentiality and what circumstances, if any, will justify an order for disclosure. This article argues that the best path to clarity would be through recognition of a category of legal professional privilege that attaches to documents prepared by arbitrators for the sole or dominant purpose of their conduct of the arbitration. It explains that while such a category of privilege ought to be capable of being established via the common law, it may be appropriate for necessary changes to be reflected in any forthcoming amendment to arbitral law in England.