International Law Association International Commercial Arbitration Committee's Report and Recommendations on 'Confidentiality in International Commercial Arbitration'

Abstract

At the International Law Association's Seventy-fourth Biennial Conference in The Hague in 2010, the ILA International Commercial Arbitration Committee reported on ‘Confidentiality in International Commercial Arbitration’ and the Conference adopted a number of recommendations on these topics. The report and recommendations as well as a suggested model confidentiality clause are printed in this issue.1 The Committee's Hague report was the culmination of two years' work. Members of the Committee had met on a number of occasions to discuss the issues. Some Committee members produced national reports. The Committee's report relates to the question of confidentiality of arbitration proceedings from the initiation of proceedings to the final award and its aftermath. It endeavours to develop aframework for analysis and to provide practical recommendations for addressing any such confidentiality questions. The report gives a comparative analysis of national law and of arbitration rules as to confidentiality of arbitration proceedings. In this respect, it analyses the basis for confidentiality obligations and its exceptions. It also discusses the parties bound by confidentiality obligations and the lifespan of such obligations as well as the issue of enforcement of confidentiality obligations. On the basis of its analysis, the report finds that expectations of users that arbitration is confidential is not always warranted and, thus, recommends that users, counsel and arbitrators provide for mechanisms to deal with confidentiality obligations and their exceptions. In relation to this core recommendation, a model arbitration confidentiality clause is also proposed to assist participants in the arbitration process if there is a need for such a clause. The ILA was established in 1873, with its objectives being ‘the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law’. The ILA has some 25 committees, ranging from a Committee on Compensation for the Victims of War to a Committee on Space Law, together with several study groups. The Arbitration Committee is one of the ILA's oldest committees. Its current chairman is Professor Filip De Ly; its immediate past chairman was Professor Pierre Mayer, and before him Professor Emmanuel Gaillard. The Rapporteurs of the Committee during the project were Mark Friedman and Luca Radicati di Brozolo. The Committee currently has 63 members and alternates, who are appointed by their national committees. Previous work of the Committee includes reports and recommendations on ‘Public Policy as a Bar to Enforcement of Foreign Arbitral Awards’,2 ‘Res Judicata and Lis Pendens in International Commercial Arbitration’3 and ‘Ascertaining the Contents of the Applicable Law in International Commercial Arbitration’.4