The Occasionally Unwarranted Assumption of Confidentiality

Abstract

THE PRINCIPLE that arbitrations are private and confidential as between the parties would seem to be self-evident. Is this not one of the most important of the perceived advantages of arbitration and one of the main reasons why business people around the world have made arbitration the forum of choice for the resolution of international commercial disputes? As noted in the recently published Third Edition of the Handbook of Arbitration Practice, it is indeed common wisdom that ‘arbitration is a private tribunal for the settlement of disputes’. The authors add, significantly, that ‘no authority is cited for this proposition but it seems implicit in an agreement to refer a dispute to arbitration’.1 In fact, the principle – at least, in the absolute form in which it is generally understood by most parties – is more truism than truth. As many authors have noted, and as many practitioners have learned – frequently to their dismay – basic questions ranging from the nature and scope of the principle, in law, to its utility, in practice, to its formulation as a rule of arbitral procedure, are highly contentious. The issues of privacy and its corollary, confidentiality, are fundamental. They are also timely. They beg questions that lie at the heart of the arbitral process, answers to which may once have been taken for granted – but no more. These questions have, in fact been the subject of much heated debate recently, in various jurisdictions and institutions. The conclusions reached in those instances demonstrate what might be called a definite lack of consensus. Until very recently, the question of confidentiality in arbitration was seldom, if ever, debated. Specialized works devoted to arbitration, in both the domestic and international contexts, dealt with the issue, if at all, in only summary fashion. Indeed, the excerpts …