Confidentiality In Arbitration Research Articles

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

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

Will Virtual Hearings Remain in Post-pandemic International Arbitration?

The pandemic has catalysed to hasten the wider use of virtual hearings in international arbitration. However, the promotion of virtual hearings in international commercial dispute resolution was more complex than commonly thought due to the highlighted concerns of cybersecurity and breach of confidentiality in arbitration. The worries against the wide use of virtual hearings cannot stand because technological innovations can largely improve and solve this. However, virtual arbitration hearings may not be common post-COVID times. Technology shapes how people behave, interact, grow, and develop in their relationships with others and wider communities. Yet greater immersion in the digital world undoubtedly creates new challenges and can adversely affect human-to-human interactions. There is very little scientific study on the psychological impacts of virtual hearings on arbitrators,witnesses and counsels. It is too early to assess its effectiveness from the user's perspective until the much-needed scientific data is released. Virtual hearings are unlikely to replace in-person ones necessary for more complex and high-value disputes requiring greater interaction and personal connection. Strategically, international arbitration is a private initiative-orientated, flexible, and market-driven dispute resolution mechanism. The parties are best positioned to choose the hearing format after balancing off.

Reflections on the Law Governing Confidentiality in Arbitration

Reflections on the Law Governing Confidentiality in Arbitration

Dispute settlement of cross-border mergers and acquisitions by arbitration in Viet Nam

Cross-border mergers and acquisitions transactions have increased dramatically around the world over the past several decades and have become one of the most important types of commercial transactions. In the process of performing cross-border mergers and acquisitions transactions, disputes will occur with certain characteristics at different stages. As a result, when a dispute occurs, the parties must use various dispute settlement methods such as negotiation, conciliation, court, arbitration. Combining the aforementioned ways is a prioritized choice for having an adequate mergers and acquisitions dispute resolution mechanism by leveraging the benefits while also eliminating the limitations of given methods. This article will analyze cross-border mergers and acquisitions disputes and some issues in dispute resolution by arbitration, such as joinder and consolidation procedure, expert participation and confidentiality in arbitration. Thereby, the Arbitration - Mediation - Arbitration (Arb-Med-Arb) model is proposed to be applied in resolving cross-border mergers and acquisitions disputes in Vietnam.

Analyzing the key rules as well as the approach taken towards confidentiality and privacy in arbitration

This paper conducts a general exposition of rules on confidentiality and privacy in Arbitration as well as the impact of public Interest and Transparency on Confidentiality in Arbitration. Then the paper looks at confidentiality rules in Arbitration Associations and conducts an analysis of the implications of the use of online Arbitration on confidentiality.

Правовое регулирование особенностей рассмотрения споров третейскими судами в Республике Таджикистан (регулирование процедуры разбирательства споров)

The work is devoted to the analysis of legal regulation of the disputes consideration procedure by arbitration courts in the Republic of Tajikistan. We comment on the content of the Law of the Republic of Tajikistan “On Arbitration Courts” dated January 5, 2008 no. 344. We provide an itemized commentary on the provisions of the above-mentioned law, which directly regulates the dispute resolution process by the arbitration court. In addition to the main issues related to the statement of claim, other requirements for the statement of claim are described, which are regulated by the arbitration rules. We carry out a comprehensive analysis of the procedure for submitting feedback on the statement of claim. We illustrate issues related to the competence of the arbitration court. We note that this is an important innovation of commented law, since the previous legislation did not consider the competence of the arbitration court. We assign a separate place to the definition of the arbitration rules, the arbitration language, and the arbitration confidentiality. We assign a separate place to the definition of the arbitral proceedings rules, the arbitral proceedings language, and the arbitral proceedings confidentiality. The features of applying interim measures are described. We consider the procedure for presenting evidence, as well as the features of the parties' participation in the arbitration court. We analyze the procedure for the appointment and submission of expertise. In addition, the regulation of the meeting protocol of the arbitration court is described. Attention is also drawn to the prohibition of bonded terms of the settlement agreement for any of the parties.

Duty Of Confidentiality In Arbitration Process In Ethiopia

Purpose of the study: the study aims to pinpoint the status of arbitration confidentiality in Ethiopia.
 Methodology: Data were collected through document review and interviews of professionals who were selected purposively since they have a direct relation with the arbitration cases.
 Finding: The finding of this research shows that the legal basis, scopes, application, and limitations of duty of confidentiality are full of debate.
 Application: the Ethiopian parliament should enact new arbitration laws by taking a lesson from the New Zealand Arbitration Act and WIPO arbitration rules. Disputing parties should fill these gaps through their confidentiality contractual. The Court control and support to arbitration proceedings should be limited and confidential. Any person publication of arbitral awards should be without the identity of disputing parties.
 Novelty: even if arbitration has many benefits, its application is low in Ethiopia. Therefore, this study may use as reference material for students’, disputing parties, and also the input for police and lawmakers

From Courts to Arbitration: Arbitration's Confidentiality Advantage

This paper points out an intrinsic inefficiency in contemporary courts: courts adjudicate publicly, leading to deadweight loss in the form of reputational damages. I build a model to show that arbitration can circumvent this inefficiency by affording disputants a renegotiation opportunity following private adjudication. I then apply this model to account for the historical evolution of arbitral institutions in the 20th century under the leadership of the International Chamber of Commerce, and underscore critical elements in the building of strong arbitral institutions.

POSTRZEGANIE ZWYCZAJÓW ODNOSZĄCYCH SIĘ DO OBOWIĄZKU ZACHOWANIA POUFNOŚCI W ARBITRAŻU. ANALIZA WYNIKÓW ANKIETY PRZEPROWADZONEJ PRZEZ SĄD ARBITRAŻOWY LEWIATAN WŚRÓD POLSKICH PRAKTYKÓW ARBITRAŻOWYCH

THE PERCEPTION OF THE PRACTICE OF CONFIDENTIALITY IN ARBITRATION. AN ANALYSIS OF THE RESULTS OF A SURVEY CARRIED OUT BY THE LEWIATAN COURT OF ARBITRATION AMONG POLISH ARBITRATION PRACTITIONERS Summary As with numerous other systems of law, such as Norwegian, Swedish or Australian law, the Polish legal system does not have a clear and uniform norm of law governing confidentiality and privacy in arbitration. Public opinion frequently refers to the role of custom as the source of the obligation to preserve confidentiality, although usually it does so without a detailed analysis of the subject and object of this obligation. This fact provided the inspiration for a survey carried out among Polish arbitration practitioners. The results of the survey present an interesting picture of what is subjectively perceived by arbitration practitioners as forming part of the confidentiality canons in arbitration proceedings. In principle, they reflect the worldwide trends, i.e. as far as the object of the confidentiality obligation is concerned – in camera sessions and the confidentiality of awards, and as regards its subject – the confidentiality obligation imposed on arbitrators and arbitration institutions. In addition, the customary practice of keeping confidential any information obtained in the course of proceedings is perceived as the right conduct as far as the object of the obligation is concerned. One of the very controversial issues is the matter of parties’ responsibilities, which leads to further questions as to individual arbitrators’ membership of the social (professional) group known as “arbitration practitioners”.

Table of Contents

Abstract Arbitration Get Back—Return Arbitration to Its ADR Roots by M. Scott Donahey CPR News September/October Meetings and Events Mediation Another Look at Mediation Confidentiality: Does It Serve Its Intended Purpose? by Eric van Ginkel International Arbitration Arbitration Emerging to Resolve International Financial Disputes by Suyash Paliwal, CFA The Master Mediator / Part 1 Bias, Fallacies & Decision Errors—Processing Information: Sights, Sounds and Framing by Robert A. Creo ADR Briefs Even in California: State's Right to Refuse Enforcement of Class‐Action Waivers on Public Policy or Unconscionability Grounds Is Preempted by FAA—Iskanian v. CLS by Lia Iannetti Material Relevant to US Litigation Not Automatically Shielded by Arbitration Confidentiality: Veleron Holding, B.V. v. Morgan Stanley & Co. by Lia Iannetti Briefs in Brief

The Principle of Confidentiality in Arbitration: A Necessary Crisis

The Principle of Confidentiality in Arbitration: A Necessary Crisis

Book Review of Kyriaki Noussia, Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position Under English, US, German and French Law

The confidential nature of the international commercial arbitration (arbitration being understood as an alternative dispute resolution) is considered as one of the main advantages of the arbitration compared to the state justice. Confidentiality is part of arbiter status and a comparative approach can only be of interest. In fact, the subject-matter of this book is an argument of the thesis that qualifies the “international commercial arbitration” as a conceptual field still divided, employing many theories and local practices. The doctrine and jurisprudence analysis of four national legal systems (English, US, German and French systems) offers a holistic, relevant, and update approach concerning the question of confidentiality in international commercial arbitration. The author chose these national systems because they are deemed as representative of the major legal families: common law and continental law (Roman law and German law). The book is recommended for all those connected with arbitration disputes, especially international ones, from businessmen and lawyers to arbitrators and mediators. This volume is a recent monograph dealing with confidentiality in arbitration, which supplements the theoretical analysis with proposals pertaining practical solutions.

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

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

A Contextual Approach to the Obligation of Confidentiality in Arbitration in Singapore: An Analysis of the Decision of the Singapore High Court in AAY and Others v. AAZ

AAY and others v. AAZ (AAT)1 is the first (and to date the only) decision in Singapore which has comprehensively considered the common law jurisprudence on the implied obligation of confidentiality in arbitration. Significantly, the High Court examined both the juridical basis as well as the scope of the obligation of confidentiality in arbitration. Observing that the jurisprudence on this subject is not uniform, Chan Seng Onn J indicated that the approach taken in the landmark decision of the English Court of Appeal in John Forster Emmott v. Michael Wilson & Partners Ltd (Emmott)2 was to be taken as the basis for future developments in this branch of the law. It is of interest here that two of the established exceptions to confidentiality, viz., disclosure of matters: (i) where the public interest so requires; and (ii) with the consent of all the parties to the arbitration, were considered by the Court. The Court explained in AAY that the ‘public interest’ exception was multi-faceted in the sense that varied situations could conceivably fall under that head, but the outcome would be different in each case depending on the context and the various considerations in play. In this regard, the particular question with which the Court was faced was a novel one (which had hitherto not been considered by common law courts elsewhere), viz., whether the defendant breached the duty of confidentiality by disclosing materials relating to the arbitration to the authorities. Additionally, the Court also had the opportunity to consider whether section 39 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A) (CDTSCA) would confer immunity on the defendant in relation to any alleged breach of the obligation of confidentiality.

Dilemma of confidentiality in international commercial arbitration

Arbitration is universally used in the settlement of international commercial disputes largely due to its inherent confidentiality. However, the expedient element of the confidentiality is encountering challenges mostly owing to public interest or other reasons. This article not only discusses the grounds of confidentiality in arbitration, but also the effective way of its helping those people who wish to respect the confidentiality in international commercial arbitration.

Idioma, Sede e Lei Material Estrangeiros na Arbitragem com aAdministração Pública

ABSTRACT: This paper studies the admissibility of arbitration with the Public Administration. The text begins by approaching the arbitrability in Brazil in its subjective and objective aspects. It is argued that the arbitration is admissible when the Public Administration acts in its ius gestionis. The fall of three paradigms are required to reach that conclusion. Firstly, that the unavailability of the public interest is not necessarily opposed to the availability of the proprietary interest. Secondly, that there is no jurisdictional conflict between the rule establishing the exclusive legal jurisdiction and the arbi­tration clause. Thirdly, that there is no incompatibility between confidentiality in arbitration and the principle of publicity. The factual proof of admissibility is explained through a case analysis. Finally, the following discussions are proposed: the use of a foreign language in the procedure, in light of the principle of publicity, the existence of a place of arbitration abroad, in face of the principle of immunity of jurisdiction, and the use of a material law from another country, given the principle of legal cer­tainty and public order. The conclusion that is argued is the admissibility of arbitration with the Public Administration on those contexts.

Aspectos Polêmicos da Arbitragem no Mercado de Capitais

ABSTRACT: The paper analyses the main outlines of the arbitral procedure under the capital market context, through the confrontation between the credibility and reliability requirements of any securities exchange and the specificities of arbitration. The progressive development of mandatory arbitral institutions linked to the main securities market, the subjective and objective extension of a statutory arbitral clause, and the clash between the institutional full disclosure principle of the capital market and the private duty of confidentiality in arbitration, are the main issues to be studied from a comparative perspective of arbitral institutions in Brazil, Europe and the USA. This may allow drawing an intersection where the protective principle of the securities exchange activity and the benefits of arbitration could coexist for an efficient dispute resolution instrument.

Confidentiality in Arbitration

Confidentiality has long been part of the mythology of Alternative dispute resolution (ADR). It one of the apparent virtues of ADR is that its processes have been viewed as confidential. This aspect of the mythology has come under more scrutiny in recent years, particularly in the Arbitration Context . Arbitration has become a permanent fixture of the landscape of civil justice. Arbitration is promoted as a “private” or “confidential” process, raising some moral and perhaps ethical obligations on the part of the profession to be candid with consumers as to the meaning and limitations of arbitration confidentiality. Such candor is important because courts have begun to receive challenges to arbitration confidentiality, and more can be expected in the future as both voluntary and mandatory arbitration continue to expand and become more institutionalized.

Who Should Decide Arbitration Confidentiality Issues?

Confidentiality of documents produced or created in the course of an arbitration is recognised by many systems of law but the right to confidentiality is not absolute. Can issues as to arbitration confidentiality be resolved by arbitral tribunals themselves, or must recourse be had to the courts? It is suggested that these issues should be resolved by arbitral tribunals unless third party rights are involved, in which case court assistance will normally be required.

Briefing: Confidentiality in arbitration – a case for less

Confidentiality in arbitration is a topic which lends itself to academic analysis and discussion because there are conflicting opinions, and the law is still evolving, nationally as well as internationally. However, interest in the topic is not merely academic. Civil engineers have very practical interests in whether confidentiality in arbitration should be regarded as an achievable goal or, as proposed here, a barrier to be overcome.