CONFIDENTIALITY: AN UNSETTLED PRINCIPLE

IN ARBITRATION
Research paper submitted in partial fulfillment of the course Alternate Dispute
Resolution for completion of the course B.B.A.LLB (Hons.)

Submitted by: Gaurav Upadhyay

Roll No. – 1409

3rd year, B.B.A.LL.B.

Submitted to: - Mr.Hrishikesh Manu

Faculty of Alternate Dispute Resolution
 DECLARATION PAGE

I declare that the project work entitled “Confidentiality: An Unsettled

Principle” submitted by me to Chanakya National Law University in
partial fulfillment of the B.B.A.LLB. is my own work.

This project has not been submitted for any degree/certificate/course in

any institute/university.

Name of the Candidate Signature of the Candidate

Gaurav Upadhyay
 ACKNOWLEDGEMENT

The writing a project has one of the most significant academic challenges I have ever faced. Any
attempt at any level can't be satisfactorily completed without the support and guidance of learned
people. Gratitude is a noble response of one’s soul to kindness or help generously rendered by
another and its acknowledgement is the duty and joyance. I am overwhelmed in all humbleness
and gratefulness to acknowledge our depth to all those who have helped us to put these ideas,
well above the level of simplicity and into something concrete effectively and moreover on time.
My first obligation, irredeemable by the verbal expression, is to our subject teacher
Mr.Hrishikesh Manu who has given me his valuable help in myriad way from the start to the
very end. He was always there to show us the right track when I needed his help. He lent his
valuable suggestions, guidance and encouragement, in different matters regarding the topic. He
had been very kind and patient while suggesting me the outlines of this project and correcting my
doubts. I thank him for his overall supports with the help of which I was able to perform this
project work.
I would like to extend the thanks to my parents for their selfless encouragement and support
given to me at critical junctures during the making to this project.
Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.

Gaurav Upadhyay

6th Semester

INTRODUCTION
Confidentiality of arbitral proceedings is one of the most primary reasons for the parties to opt
arbitration for settlement of their commercial disputes. It refers to a duty of not parting with the
confidential information of arbitral proceedings. It was considered a settled principle that duty
of confidentiality was implied in every arbitration unless in 1990s Australian courts made
derogation from this principle. Subsequently, the debate over whether confidentiality is implied
was triggered. Consequently, various nations came up with different approaches over this. Some
recognize implied duty of confidentiality whereas some emphasize express duty of confidentiality.
Though various international arbitration institutions emphasize implied duty of confidentiality
their vagueness has created uncertainty. The domestic and international institutional rules with
regard to confidentiality are inconsistent. The principle of confidentiality is in conundrums- it is
considered one of the essential elements of arbitration in some national laws while some reject it
as an essential element. This non-uniformity with respect to this principle has rendered it far
from being settled. In contemporary international arbitration regime the question, whether
confidentiality exists in arbitral proceedings is still to be answered uniformly. Various domestic
laws throughout the world seem to have diverse and divergent stance with regard to this issue.
Thus, the question whether confidentiality lays at the core of every arbitration agreement
remains unsettled. This project is an attempt to study and analyze national and international
institutional rules pertaining to the principle of confidentiality in international commercial
arbitration. This project also emphasizes the importance of a confidentiality clause in an
arbitration agreement and studies its limitations as well. Further, this project posits that
uniformity in national legislations and arbitral rules are necessary to pave way for
comprehensive international framework on confidentiality in commercial arbitration

AIMS AND OBJECTIVES

 The researcher will discuss the Principle of Confidentiality

 The researcher will further discuss the important aspects relating Confidentiality.
 The researcher will try to find out different approaches taken by Countries on
Confidentiality.
 SCOPE AND LIMITATION
 The researcher has confined his research to library only, means the researcher has done
doctrinal method of research.
 The researcher has time limitation.
 The researcher has monetary limitation.

RESEARCH METHODOLOGY
SOURCES OF DATA
The researcher has relied on secondary sources.

Secondary Sources
 Books
 Articles
 Websites
 Table of Contents
DECLARATION PAGE ..................................................................................................................... 2
ACKNOWLEDGEMENT..................................................................................................................... 3
INTRODUCTION......................................................................................................................... 3
AIMS AND OBJECTIVES .................................................................................................................. 4
SCOPE AND LIMITATION................................................................................................................ 5
SOURCES OF DATA ...................................................................................................................... 5
Secondary Sources ................................................................................................................. 5
1. INTRODUCTION TO CONFIDENTIALTY ........................................................................ 7
2. DIFFERNCE BETWEEN CONFIDENTIALITY AND PRIVACY ..................................... 8
Importance of confidentiality...................................................................................................... 8
3. DIFFERENT APPROACHES ON CONFIDENTIALITY .................................................. 10
English Law .............................................................................................................................. 10
Australian Approach ................................................................................................................. 11
Confidentiality in United States ................................................................................................ 12
Confidentiality in India ............................................................................................................. 13
4. APPROACH OF ARBITRATION INSTITUTIONS ON CONFIDENTIALITY ............... 14
International Chamber of commerce ........................................................................................ 14
World Intellectual Property Organization(Arbitration Rules) ................................................. 14
United Nations Commission International Trade Law ............................................................. 14
International Centre for Settlement of Investment Disputes (ICSID) ....................................... 15
Arbitration Rules of the London Court of International Arbitration (LCIA)............................ 15
5. LIMITATIONS OF CONFIDENTIALITY .......................................................................... 16
Disclosure in Public Interest ..................................................................................................... 17
6. CONCLUSION ..................................................................................................................... 19
Bibliography ................................................................................................................................ 21
 1. INTRODUCTION TO CONFIDENTIALTY
Arbitration is private justice born out of the parties’ will.1 It emanates from the agreement of
the disputing parties to arbitrate under said circumstances. For any arbitration to take place an
agreement is a prerequisite. Such agreement contains as to procedures and circumstances
under which to arbitrate, seat of arbitration, language of the arbitration, confidentiality etc.
Recently parties which decided to go to arbitration have increased. 2 Such an increase can be
attributed to it because of features like- flexibility, cost effectiveness, speedy disposal of cases
and confidentiality.3 Confidentiality remains one of the reasons for the parties to prefer
arbitration as it allows parties to escape from unnecessary publicity. Also, it creates obligations
on parties not to disclose information related to arbitral proceedings. But it is under shadow
that, whether confidentiality lies at the core of every arbitration or is it that it must be
expressed in the contractual agreement. The principle regarding confidentiality remains
unsettled given the lack of unanimity in different legal systems. In England, confidentiality is
implied in every arbitration agreement and it cannot be overlooked except for given
circumstances whereas in Australia there is no such implied confidentiality. 4 As the seat of
arbitration is decided as per the contractual agreement, the rules regarding confidentiality
differ. If it is institutional arbitration, rules of that institution as to which is the seat of the
arbitration will apply and if it is ad hoc the local rules will apply. Despite the given uncertainty
which prevails in respect of confidentiality, it is one of the primary reasons for arbitration
being preferred option for resolution of commercial disputes.5

1
United Nations Conference on Trade and Development, Dispute Settlement International Commercial Arbitration,
5.2 The Arbitration Agreement, http://unctad.org/en/Docs/edmmisc232add39_en.pdf last seen on 28 September
2017.
2
Philip Rothman, ‘Pssst, Please Keep it Confidential: Arbitration Makes it Possible’ (1994) Disp. Resol. J. 49(3),
69-72 at 69.
3
Ma tthew M. Hoffman, The Advantages and Disadvantages of Arbitration vs. Court Litigation
http://www.tuckerlaw.com/2015/02/13/advantages-disadvantages-arbitration-vs-court-litigation/ last seen on 28
September 2017.
4
Mayank Samuel, Confidentiality in International Commercial Arbitration: Bedrock or Window-Dressing?
http://arbitrationblog.kluwerarbitration.com/2017/02/21/confidentiality-international-commercial-arbitration-
bedrock-window-dressing/ last seen on 28 September 2017.
5
Ibid
 2. DIFFERNCE BETWEEN CONFIDENTIALITY
AND PRIVACY
Privacy in international commercial arbitration until recently has often been confused with
confidentiality.6 Parties to arbitration often assume that their dispute will remain confidential due
to the private nature of the dispute.7 However, Privacy means that there can be no third party
witness to arbitration proceedings whereas confidentiality refers non-disclosure of specific
information in public.8 As inherent characteristics of commercial arbitration privacy and
confidentiality should work together and in consonance to guarantee absolute confidentiality.
This theory treats both privacy and confidentiality as complementing and not competing values.9

The confusion between confidentiality and privacy is created because of lack of consensus of
domestic and international laws on treatment of confidentiality. This lack of consensus has made
commercial arbitration opaque.

Importance of confidentiality

Confidentiality confers a plethora of advantages and thus very important per se. The significant
reasons as to why confidentiality is important are:10

 Firstly, Parties to a dispute do not want certain information to be disclosed in public like
allegations with respect to misrepresentations, incompetence, unavailability of financial
resources etc. It reduces the possibility of damaging continuing business relations, and
avoids setting adverse judicial precedents.
 Secondly, the parties choosing to arbitrate arbitration do not want their trade secrets and
other business related information to be revealed. The private nature of arbitral

6
Mayank Samuel, Confidentiality in International Commercial Arbitration: Bedrock or Window-Dressing?
http://arbitrationblog.kluwerarbitration.com/2017/02/21/confidentiality-international-commercial-arbitration-
bedrock-window-dressing/ last seen on 28 September 2017.
7
ibid
8
Ibid
9
ibid
10
Udisha Ghosh, Confidentiality In Arbitration: An Unsolved Arena
https://www.lawctopus.com/academike/confidentiality-in-arbitration-an-unsolved-arena/ last seen on 28 September
2017.
 proceedings protects them from the intrusiveness of the media and the prying eyes of
their competitors.
 Thirdly, if the parties want to take a particular stand privately and if the proceedings are
done publicly then in that respect parties have to take different stand. The process offers
parties the freedom to make arguments that they would be reluctant to make in a public
forum.
As per the aforementioned importance of confidentiality anything in in its derogation would
harm the business of the parties. Also, given its due importance in arbitration it is one of the
hallmarks of commercial arbitration.11

11
Avinash Pooriye and Ronan Feehily, Confidentiality and Transparency in International Commercial Arbitration:
Finding the Right Balance http://www.hnlr.org/wp-content/uploads/HNR203_crop-1.pdf last seen on 29 September
2017.
 3. DIFFERENT APPROACHES ON
CONFIDENTIALITY
There are basically two approaches on this issue. Some countries (England, France, New
Zealand) recognize implied duty of confidentiality in arbitration subject to a few exceptions
whereas some countries (Australia, United States and Sweden) recognize only an express duty of
confidentiality and not otherwise.12

English Law

It is generally construed in the view that arbitrations in England and Wales are private and
confidential. English Law recognizes that it is an implied term of arbitration that the proceedings
are both private and confidential. But English Law subjects confidentiality to certain restrictions
discussed below:

In the case of Ali Shipping Corp v Shipyard Trogir13 the court set out the following exceptions
recognised under English law:

 Disclosure made with the express or implied consent of the party who originally
produced the material;
 Where there is an order of the Court, for example where an order is made for disclosure
of documents generated by an arbitration for the purposes of a later Court action;
 Where leave of the Court has been given. Potter LJ recognized here that difficulties
would arise with the question of what grounds would give rise to such leave being given;
 Disclosure when and to the extent reasonably necessary for the establishment or
protection of an arbitrating party’s legal rights vis-à-vis a third party; and
 Disclosure required in the public interest.

This principle of was furthered in the case of Glidepath BV and Others v John Thompson and
Others14 where a third party applied for copies of certain documents under the English

12
Michael Pryles, Nicholas Lazarou Confidentiality in international arbitration 04 Mar 2009
https://www.claytonutz.com/knowledge/2009/march/confidentiality-in-international-arbitration last seen on
13
[1999] 1 WLR 314
14
[2005] EWHC 818
Procedural Rules. The agreement in dispute between the parties contained an arbitration clause
and the proceedings were stayed by the Court in favour of arbitration under section 9 of the
Arbitration Act 1996. Before the proceedings were stayed, a Claim Form and Particulars of
Claim had been served and the Claimants had made applications for freezing injunctions. The
third party sought access to these documents on the Court file, on the basis that they were
necessary to assist in establishing a separate claim.

The Court considered and applied Ali Shipping Corp v Shipyard Trogir 15 and held that
arbitration proceedings and materials produced were treated as confidential to the parties and the
arbitrator, subject to certain exceptions. Even at the stages before the Court ordered a stay, the
private and confidential nature of proceedings ancillary to the arbitration process ought to be
protected. The permission of the Court to a third party, i.e. a stranger to the arbitration and to the
proceedings in which the stay had been ordered, to inspect the documents on the Court file
should not be granted unless all the parties to the arbitration consented or there was an overriding
reason in the interests of justice.

Australian Approach

In a celebrated judgment delivered by an Australian court in the leading case of Esso Australia
Resources Vs. Plowman16 the High Court held that a general duty of confidentiality is not to be
implied in an agreement to arbitrate, since confidentiality is not "an essential attribute" of a
private arbitration, whether on the grounds of long-standing arbitral custom and practice, or in
order to give efficacy to the private nature of arbitral proceedings

This decision created ripples in the arbitration regime of Australia as well as the rest of the
world.17 After this decision, many countries realised the need to clarify their stance with regard
to confidentiality in international commercial arbitration. This led to changes in arbitration
legislations of various countries while others relied on the development of case law to address
the issue.18 In this case, Esso, a vendor of natural gas, had initiated arbitration proceedings

15
[1999] 1 WLR 314
16
[1995] 183 CLR 10.
17
A similar decision was delivered by the Swedish Supreme Court in Bulgarian Foreign Trade Bank Ltd v AI Trade
Finance Inc [2001] XXVI YB Comm Arb 291).
18
International Law Association (n 1).
against two public utility companies of Australia. The dispute involved non-payment by the
companies of revised rates for the supply of natural gas owing to increase in tax. Mr. Plowman,
the Minister for Energy and Minerals demanded inspection of documents produced during
arbitration on the ground that as a minister, he had a public duty to supervise the public utility
companies. Esso argued that the documents were protected by confidentiality. The Australian
High Court, after consulting various experts on international arbitration, ruled that there was no
implied duty of confidentiality in arbitration under Australian law. While privacy was an
inherent feature of arbitration proceedings, confidentiality was not. Mason CJ, who delivered the
judgment, noted that there were many problems associated with the duty of confidentiality in
arbitration. Since the witnesses were not a party to the arbitration agreement, they were under no
duty to observe confidentiality. The details of the award or proceedings will be legitimately
disclosed while seeking enforcement or interim relief before the court. The parties may be under
a legal duty to disclose information related to arbitration to third parties.19 According to him,
there were many other circumstances due to which ‘complete confidentiality of the proceedings
in an arbitration cannot be achieved.’20 Thus, he ruled that there was no implied duty of
confidentiality in arbitration.

The decision in the Esso case generated some heated debate on the issue of confidentiality.
Many argued that it would harm Australia’s reputation as a seat for international commercial
arbitration. Growing concerns from Australian scholars and arbitration practitioners prompted
the legislature to amend the International Arbitration Act in 2010. The amendment provides for
opt-in provisions in the act that apply to parties if they agree to the obligation of
confidentiality.21

Confidentiality in United States

In united states too, the principle of confidentiality is not construed to be implied. In order to
make an arbitration confidential the parties to a dispute in their arbitration agreement need to
mention a clause observing confidentiality of the proceedings. In the landmark case of United

19
Esso Australia, [1995] 183 CLR 10
20
ibid.
21
International Arbitration Act 1974, s 22(3).
States v. Panhandle Eastern Corp22 the US Federal Government sought from Panhandle, a U.S.
company, to produce documents from an ICC arbitration between Panhandle's subsidiary and the
Algerian state oil company. Panhandle contended that arbitration is confidential in nature and the
disclosure would frustrate the parties' expectations. The US Federal District Court held that there
is no inherent duty of confidentiality unless the parties contract for it.

Confidentiality in India

The Arbitration and Conciliation Act, 1996 does not expressly mention confidentiality. However,
despite the absence of a statutory provision, a general obligation of confidentiality is followed in
India. The rules prescribed for international commercial arbitration by the Indian Council of
Arbitration require the parties and arbitration tribunal to maintain confidentiality of arbitration
proceedings and the award, unless the parties have agreed otherwise.23 Disclosure is allowed if it
is required under a legal duty or to protect or pursue a legal right or to challenge or enforce the
arbitral award in a bona fide legal proceeding before a court or any other judicial authority.24

The privilege of section 121 of Indian Evidence Act, 1872 has been extended to arbitrators. 25 A
court may call an arbitrator as a witness but this process ‘should be used sparingly and with
careful deliberation.’26 An arbitrator cannot be compelled to disclose his conduct or what
information he gained in the arbitration proceedings.27 Though this protection is a minor step
towards recognising confidentiality statutorily, it only protects the arbitrators to an extent. The
parties are still not covered by a statutory obligation.

22
119 F.R.D. 346 (D.Del.1988)
23
Indian Council of Arbitration, Rules of International Commercial Arbitration
<http://www.icaindia.co.in/ICAInternationalRulesofArbitration.pdf> last accessed 28 September 2017.
24
ibid.
25
ibid.
26
Union of India v Oriental Engineering and Commercial Company Ltd, AIR 1977 SC 2445.
27
The Indian Evidence Act, 1872, s 121.
 4. APPROACH OF ARBITRATION
INSTITUTIONS ON CONFIDENTIALITY
Confidentiality is taken care of, by almost all the international institutions for arbitration. Every
institution has its own set of rules which protect confidentiality. Following are the approaches of
different arbitration institution with respect to confidentiality.

International Chamber of commerce

International Chamber of Commerce: ICC is one of the most renowned and popular dispute
resolving bodies through arbitration. The ICC drafters considered the issue of confidentiality, but
could not agree upon a general duty of confidentiality binding on all participants in ICC arbitral
process. ICC Rules permit the arbitral tribunal “to take measures for protecting trade secrets or
confidential information”28. Thus ICC Rules give power to the parties, court and the agreement
for resolving any dispute in respect of confidentiality.

World Intellectual Property Organization(Arbitration Rules)

World Intellectual Property Organization (Arbitration Rules) provides comprehensive set of rules
which govern confidentiality in arbitration efficiently. The rules define confidential information,
applying obligation of confidentiality as default separating between the: (1) the existence of
arbitration (2) any disclosure made within the process (3) the award itself.

United Nations Commission International Trade Law

The UNCITRAL Arbitration Rules 1976 provide for a duty of confidentiality concerning an
arbitral award, by determining that “the award may be made public only with the consent of both
parties.29 However the said rules mention that under some national legislation an award may be
made public.

28
International Chamber of Commerce, Rules of Arbitration, Art . 21.3 (effective 1 January 1988).
29
Rule 52(5)
International Centre for Settlement of Investment Disputes (ICSID)

The ICSID Rules are similar to the UNCITRAL Rules in terms that they consider privacy as an
essential element of arbitration but do not give impetus to confidentiality. Rule 15.1 provides for
secrecy and privacy of deliberation by the tribunal.30 Further, Rule 4.8 provides that the centre
shall not publish the award unless parties give consent.31

Arbitration Rules of the London Court of International Arbitration (LCIA)-

These are only rules which give a detailed explanation on confidentiality. Project 19 states that
all meetings and hearings shall be private unless the parties agree and the tribunal directs so.
Further, under Art. 30 there is a presumption of confidentiality for both the parties and arbitrators
with respect to any documents or evidence during the proceedings and the award. 32

30
International Centre for Settlement of Investment Disputes, Rules 15.1 and Rule 4.8; See Ajit Kaushal, The Issue
of Confidentiality in International Commercial Arbitration, pg.10.
31
Ibid.
32
LCIA Arbitration Rules Art. 30.1 (1998) ;See Cindy G. Buys ,The Tensions between Confidentiality and
Transparency in International Commercial Arbitration, 14 American Review of International Arbitration , 126-127
(2003).
 5. LIMITATIONS OF CONFIDENTIALITY
The debate pertaining to an overall duty of confidentiality stirred up during 1990 when the
Australian and Swedish courts denied accepting an overall duty of confidentiality. This led to the
emergence of various domestic and international rules on confidentiality. 33 However, there has
been no common approach amongst legislators and arbitral institutions. In some instances
legislators and arbitral administrative bodies moved to make the default position that there was
no confidentiality in arbitration (leaving it entirely a matter of the parties’ agreement), whilst
others included such a duty, but covering differing scopes. Further, serious questions arose as to
the extent to which confidentiality obligations, particularly those imposed through the rules of an
arbitral institution as opposed to state legislation can be enforced.

English court34 identified the following methods of limitation of the principle of confidentiality:
parties agreement, court decision (when necessary for the protection of the rights of one party)
when there is a reasonable necessity (for defining the concept of reasonable necessity the court
referred to the nature and scope of the procedures in which the information is to be used; the
problem with regard to which the information is necessary; the competence of the tribunal that
will make use of such information; the costs and utility of obtaining such information/evidence
from other sources).

Moreover, the principle will be limited in case the interest of justice requires. In this respect, it is
considered to be in the interest of justice the situation in which the court is to issue a decision
based on the sincere statement of a witness.

While the arbitral process is confidential, yet there are situations in which these processes have
to be disclosed by the parties. In certain instances the parties may have to disclose both the
proceedings as well as the awards under their reporting obligation. For instance in UK, the
Disclosure Rules require companies listed on full list to disclose any information, which if
available would likely affect the stock of the company. Similarly in the US, SEC Rules and

33
Fenwick Elliot, Is Arbitration Confidential, https://www.fenwickelliott.com/research-insight/annual-
review/2013/arbitration-confidential last seen on 30 September 2017.
34
Bazil Oglinda, The Principle Of Confidentiality In ArbitrationApplication and Limitation of the Principle,
http://www.businesslawconference.ro/revista/articole/an4nr1/Art.%2010%20Bazil%20Oglinda%20EN.pdf last seen
on 30 September 2017.
Financial Statements Regulation35 may require disclosure of material arbitration proceedings
which company is defending and possibly those in which company is complainant

Disclosure in Public Interest

In certain situations it is important that public interest be recognised and the ‘cloak of
confidentiality’ be removed for the larger good of the people. For instance, when the situation
involves the financial condition of a public company, then such report should be disclosed.
Similarly, there is a duty to disclose any award against the party in case it owes a fiduciary duty
to another party. Disclosure should also be made to the shareholders, creditors, partners or any
other party having legitimate interest in the affairs of the parties. These public interest affairs
should be considered before making any uniform law on confidentiality, so that the interests of
all the parties are taken care of. Thus, partial transparency and partial confidentiality should be
maintained where interest of public at large is concerned.

Suggestions made in the respect to confidentiality to resolve such disputes:

While considering the issue of confidentiality, following suggestions are being made in order to
reduce the growing complexity as well as to solve the ever increasing dispute on confidentiality.
Some of suggestions are given below:

 It should be made a mandatory clause in all private international arbitrations that the
names of the parties or the relief requested should not be unilaterally disclosed to a third
party. A regulatory body should be formulated whose permission would be required for
disclosing information about any arbitration proceeding.
 Awards should be treated as confidential and should not be communicated to a third
party, unless all the parties and arbitrator agree to, or if they fall under ‘public domain’
and affect the interest of public in large. They should only be disclosed in situations
where it is important to comply with the legal requirements imposed on an arbitrating
party or protect a person’s legal right to a third party.

35
Security and Exchange Commission of US is responsible for enforcing federal securities laws and regulating
securities industry. http://en.wikipedia.org/wiki/U.S._Securities_and_Exchange_Commission last seen on 4
October, 2017.
 Though awards cannot be made public, yet the legal reasoning under which the specific
judgment is given should be published on particular portals only. This maybe act like a
precedent for the arbitrators in future Though the name of the parties in dispute should
not be disclosed.
 Confidentiality should not be left as an unresolved area in international arbitration; rather
proper codification should be done. It is important so that the parties resolving disputes
through arbitration can clearly understand the terms and conditions under which it works
instead of leaving it to the discretion of the arbitrator or the courts.
 Any document or evidence so provided during the arbitration proceedings should be
considered confidential and not disclosed to the third party, without the consent of the
parties or order of the court. Also, witnesses should not be termed as third parties since
they are given access to the evidence obtained in arbitration in order to prepare his
testimony.
 6. CONCLUSION
However confidentiality is one of the major reasons as to why arbitration is preferred still there
exists conundrum of accepting it a settled principle. In summary, confidentiality is an important
feature and a perceived advantage of arbitration that is not always guaranteed during the
process.36 Yet, its existence and necessity is to be determined between the private nature of the
hearing and the confidentiality of the arbitration proceedings as a unit.37 However, parties to
arbitration should not take for granted that the existence of an arbitration, the evidence and the
award would be kept confidential. This is mainly due to different approaches within jurisdictions
and varied treatment by institutional arbitration rules.38

It is often argued that confidentiality hampers transparency and thus is opposed to public interest.
But it must be pondered upon that the rule of confidentiality is not a blanket rule. It is not
absolute but qualified. And thus allowing it to the interest of the parties should be given a way
which as a result should promote arbitration. “[P]arties should be aware that the choice of
institution and place of arbitration can have a real impact on the degree to which their
confidential information disclosed at arbitration, and the decision of the arbitral tribunal itself,
will be protected from prying eyes in subsequent proceedings.”39 There are no provisions for
confidentiality contained in the English Arbitration Act 1996 due to the fact that drafters would
have experienced difficulties in formulating a definition for confidentiality with a number of
exceptions incorporated.40

36
Bird & Bird, Sharon Gerbi, ‘Confidentiality Arbitration UK Law’ (2006) available at:
<http://www.twobirds.com/en/news/projects/2006/confidentiality-arbitration-uk-law> last seen on 01 October 2017.
37
SJ Berwin, ‘Confidentiality in International Arbitration’ (2009) available at:
<http://www.inhouselawyer.co.uk/index.php/litigation-a-dispute-resolution/6090-confidentiality-in-international-
arbitration> last seenon 4 October 2017.
38
Claude R. Thomson and Annie M. K. Finn, ‘Confidentiality in Arbitration: A Valid Assumption? A Proposed
Solution!’available at http://www.fasken.com/files/Publication/568c56f5-32fd-486d-86a1-
6ad2693bff04/Presentation/PublicationAttachment/ebde4cc6-13ea-429f-9a9a-
6e50018e8bca/Confidentiality_in_Arbitration.PDF .
39
R Carrow ‘Choice of Institutional Rules’ in Anita Alibekova and Robert Carrow (eds), International Arbitration
and Mediation: From the Professional’s Perspective (1st edn, Yorkhill Law Publishing, Salzburg, Austria, 2007) at
216.
40
Olivier Oakley-White, ‘Confidentiality Revisited: Is International Arbitration Losing One of Its Major Benefits?’
(2003) Int. A.L.R. 6(1), 29-36 at 31.
The best way in an attempt to preserve confidentiality is by carefully drafting a detailed
provision and incorporating it in an arbitration agreement.41 Only when interpreting cases with
two or more possible constructions a business common sense should be applied.42 However, not
all arbitration contracts include express confidentiality terms in which case a duty of
confidentiality have been recognised by courts in England.43

As far as the institutional rules are concerned they are designed to protect confidentiality but the
division among the national courts and arbitral institutions on the existence and scope of a duty
of confidentiality fosters uncertainty and thus a bane for business. Also upholding an implied
duty of confidentiality may help bring arbitrations and business to the host country.

Since majority of nations do not have a prescribed law, it leaves a grey area. Hence, it is
important that the arbitral institutions as well as the national laws should be better constructed so
that the ambiguity in confidentiality is resolved.

41
Claude R. Thomson and Annie M. K. Finn, ‘Confidentiality in Arbitration: A Valid Assumption? A Proposed
Solution!’ (2007) Disp. Resol. J. 62(2), 74-81at 81.
42
Ince & Co, Sheridan Steiger, ‘Contract Interpretation’ (2013) available at:
<http://www.lawcareers.net/Information/BurningQuestion/Ince-Co-LLP-Contract-interpretation> last seen on 05
October2017.
43
Hakeem Seriki, ‘Confidentiality in Arbitration Proceedings: Recent Trends and Developments’ (2006) J.B.L. 300-
311 at 302.
 BIBLIOGRAPHY

Books, Journals and Articles

 Gary Born, INTERNATIONAL ARBITRATION: LAW AND PRACTICE, 2012.
 Ilias Bantekas, AN INTRODUCTION TO INTERNATIONAL ARBITRATION, 2015.
 P.C. Markanda, Naresh Markanda , Rajesh Markanda, LAW RELATING TO
ARBITRATION AND CONCILIATION, 2016.

Websites
 http://arbitrationblog.kluwerarbitration.com
 www.fenwickelliott.com
 www.jonesday.com
 https://www.lexology.com