Norway: Hush! Let’s Arbitrate – Discourse And Practice On The Question Of Confidentiality In International Commercial Arbitration

Last Updated: 8 April 2014
Article by Camilla Lous

There is a notable presumption that confidentiality is a self-evident feature of international commercial arbitration. Yet there seems to be a disconnect between this presumption and the current meaning of confidentiality. Confidentiality has been taken for granted, though it has become one of the most undetermined matters in international arbitration. This article provides a brief analysis of the current degree of confidentiality in international commercial arbitration, along with a few suggestions on how to tackle the challenge of protecting confidentiality.

I. INTRODUCTION

International arbitration has become the principal method of solving disputes between states as well as corporations in international trade.1 It is a leading dispute resolution method originating from the contractual relationships between the parties. This less formal method of conflict resolution is often regarded as business-friendly, especially where litigation might be a time consuming and expensive process.2 Moreover, arbitration is increasingly utilised because arbitral awards are easier to enforce internationally than national judgements.3

Confidentiality has traditionally been regarded as a prominent feature of arbitration. It is of the essence to many commercial parties in arbitration who might depend on controlling the flow of information to avoid damaging publicity. This has been the focus of much judicial literature, where Rothman for one, has argued that confidentiality «(...) may be more important to some parties than either speed or economy.»4

It was discovered in a survey conducted by Christian Bühring- Uhle in the mid-nineties, that:

«(...) the most important features that drove parties to arbitration were the neutrality of the forum and the guarantee of international enforcement of awards due to countries' widespread ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Other reasons, in order of importance, were the confidentiality of proceedings (rated as the least questioned aspect), followed by the absence of appeals and limited discovery. (...) Judging by recent developments, this ordering of importance remains roughly unchanged.»5

While the use of arbitration as a dispute solving mechanism increases, the question of how and when confidentiality can be expected becomes more significant. It can be argued that the confidential nature of arbitration has been a matter more assumed than explicitly recognised.6 In a recent survey of in-house counsel conducted by the School of International Arbitration at Queen Mary University in London, it was discovered that as much as 50% of the interviewed, considered confidentiality to be an unequivocal part of international arbitration.7 However, such a view might not reflect the current situation as arbitration now faces the challenge of demand for a more transparent process.

For reasons easy to imagine, businessmen do not want their business strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings. This article provides an overview of the degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, and practices of arbitral tribunals and domestic courts.

I.1. Definitions

In international arbitration, and throughout this paper, the term «confidentiality» refers to the extent to which information is protected from disclosure to parties not involved in the arbitral proceedings. This is not the same as the «privacy» of the hearings. «Privacy» conventionally means freedom from being observed or disturbed by other people and in arbitration it describes the fact that the arbitration is not open to the public.8 Both «confidentiality» and «privacy» limits the access of other actors than the parties to the arbitration.

That arbitration is a private process as far as the arbitral hearings are concerned, is a feature of most institutional arbitral systems.9 For instance does Article 26(3) of the International Chamber of Commerce (ICC)10 Rules11state that:

«(...) The Arbitral Tribunal shall be in full charge of the hearings, at which all the parties shall be entitled to be present. Save with the approval of the Arbitral Tribunal and the parties, persons not involved in the proceedings shall not be admitted.»

Similar provisions are included in most commonly used arbitral rules. Though hearings generally are held in private, this does not necessarily ensure confidentiality.

Unlike privacy, confidentiality is traditionally seen as conceivably applying to the arbitral process as a whole. Smeureanu argues that confidentiality can be «said to refer to a "state" of secrecy permeating the contents of the arbitral process as a whole.»12

The term «international» is used to mark the difference between domestic arbitration, and arbitration that in some way transcend national boundaries. This paper focuses on «commercial arbitrations», i.e. arbitrations that involve commercial parties, or in some cases state parties acting in a commercial capacity. What is considered «commercial» might differ from one country to another, but generally it can be said that the term encompass all disputes that are related to business and trade, and which are arbitrable under the laws of the country that is the seat of the arbitration.

Other forms of international arbitration are inter-state arbitration, and investment-arbitration, based on bilateral investment treaties. These will not be treated here. Another expression that will be used is that of «transparency». This term will be used to examine the accessibility of international commercial arbitration.

I.2. Outline of the thesis

Throughout this paper confidentiality will be examined in an attempt to synopsize its role in international commercial arbitration today. The focus will be on what challenges one might face when seeking to secure confidentiality in arbitration. Can one still argue that confidentiality is a valuable feature of arbitration? Does an expectation of confidentiality still exist, and how does this affect the practicality of arbitration? This will be attempted by way of presenting a selection of representative approaches to the issue of confidentiality. Confidentiality remains a contentious subject and the focus of this paper is the examination of confidentiality de lege lata.

The overview will focus on outlining how and when confidentiality reasonably can be expected through the examination of recent cases along with relevant literature. First, the possibility of confidentiality will be explored through a presentation of the options open to a commercial party seeking confidentiality (section II). Second, the practical challenges of a duty of confidentiality are outlined (section III). Finally, the consequences of a breach of confidentiality will be studied (section IV).

The assessment of confidentiality will rely primarily on cases illustrating the Swedish, English, Australian and US approach, as these jurisdiction represent significant directions in arbitration and also are frequently used as seats of arbitration.

I.3. Sources and method

The role of confidentiality, and how it shapes arbitral proceedings will be reviewed through the examination of relevant, and available sources. Pertinent sources include, but are not limited to: national law, case law, international conventions and treaties, arbitral rules, previously rendered arbitral awards, treatises and monographs, as well as legal articles.

When it comes to arbitral rules, they represent a «private» source of law that many judicial practitioners are unaccustomed to. Because of the unique issues involved in international commercial arbitration, these rules may be more likely to address all of a party's necessary concerns.13

Another important source of reference is national judgements relating to the recognition, enforcement or challenge of partial or final arbitral awards as well as requests for interim measures or other administrative requests brought before national courts. These are often available, though the arbitral award, from which the conflict arises, might not be.14 National judgements are significant because they are essential in the enforcement and recognition of arbitral awards. Due to the contractual nature of arbitration, an award will often need to be recognised by a national court to ensure its enforcement. The involvement of national courts in arbitral proceedings sometimes provide scholars with an opportunity to «peek» into the otherwise private process.

I.4. Arbitral awards as sources of law in arbitration

A few comments need also be made about previously rendered arbitral awards as a source of law. Arbitration is traditionally seen as a private form of justice. Most arbitral awards are not, at least not in their entirety, made available to the public. Additionally, an arbitral award, when published, is initially nothing more than a remark on that particular case. Whether it will guide future awards only time will show. With no apparent doctrine of precedent in arbitration it can be argued that the tribunal must decide each case without looking to previous decisions. Still, many arbitrators have much experience in arbitration and draw from their own experiences as well as those of their colleagues. And there is already a widespread application of arbitral awards in arbitration, as seen in Owners, Master and Crew of the Tug "Hamtun" v Owners of the Ship "St. John",15 where the Admiralty Court looked to a selection of arbitration awards to decide the case.16 Brækhus argued that previously rendered arbitral awards provide an important source in the examination of the subject of arbitration.17

The use of arbitral awards as a source of law is not without reservations. A significant aspect is the limitations relating to the confidential nature of the process. Fleischer argues, in relation to the use of arbitral awards by national courts, that the idea of such «secret» principles governing arbitral proceedings de lege lata, seems unconvincing in a democratic society today.18 This argument can also relate to the use of arbitral awards in arbitration. Though Brækhus has noted that an award of significance usually becomes known within the arbitral community,19 so that it might still influence future arbitral awards. Many awards are not reasoned, and parties might not expect the same transparency as in a court of law. Moreover Fleischer notes that arbitration is a «one-stop process», because the award rendered by the tribunal is final. This makes the process vulnerable to inaccuracies or oversights that could be caught in a legislative system.20

There is also the question of how and when one can rely on awards previously rendered. Arbitral awards must be seen in light of the fact that arbitral awards are intended to be final. This should encourage the judges to secure a balanced and thorough process. If this is indeed upheld, the weight of an arbitral award could and should be of some importance. Moreover, there are as of now, limited guidelines on the reasoning of awards. This must be taken into account when assessing the value of arbitral awards. There is little practicality in using a sparsely reasoned award as judicial leverage. Another problem might be that the tribunal's sole concern is the dispute at hand. There might neither be any regard for consistency, nor the creation of sound legal principles. In this respect the problem of confidentiality also relates to which awards are made available to judges and scholars, as this can be random.

A further objection is that arbitral awards can be rendered by as few as a sole judge. This is a consequence of the contractual basis of arbitration that cannot be escaped; the parties can have as few or as many arbitrators as they find convenient. The solution of having one sole judge is however widely used in many legislative systems in the lower courts, though higher courts usually involve more judges. As the arbitral tribunal decision is final, it can be argued that the tribunal should consist of more than one judge. This is the case in most institutionalised arbitral systems.

The study of previously rendered awards is and must be an important source of information for anyone attempting to venture into the realm of arbitration.21 Both English courts, and international arbitral tribunals routinely refer to previously rendered awards. If a dispute is solved by arbitration, the case itself is seldom tried before a court, though other aspects regarding the arbitral process or the award more often is. This corroborates the argument that arbitral awards should be taken into consideration, at least in fields of law where this method of dispute resolution is commonly used.

In a final note it can be added that arbitration always takes place within the limits of at least one national law. It could therefore be argued that the arbitral tribunal should follow the lead of this jurisdiction in dealing with awards as a source of law. I will not explore this any further here, but note that the variety of laws possibly governing the arbitration is bound to complicate such an argument. For the purposes of legal writing in the discipline of arbitration, and in this paper, arbitral awards will be used to illustrate past and current practice in the field.

II. FROM WHERE CAN A DUTY OF CONFIDENTIALITY ARISE?

II.1. Introduction

A duty of confidentiality can originate from several potential sources. Easily accessible and predictable for the parties, is their choice to contract for confidentiality. A mutual agreement presents itself as the most manageable solution, as the parties are free to vary the extent of confidentiality according to their needs. Where no such contract exists between the parties, they might attempt to rely on national legislation to preserve confidentiality. As we will see, the parties must choose carefully to successfully utilize this option.

Courts of several countries have dealt with the controversial issue of how to tackle confidentiality in international commercial arbitration, as parties regularly seek to reveal and rely on information regarding an arbitration in subsequent judicial proceedings. The positions taken have varied greatly, but three different views stand out: confidentiality can still be imposed on the parties as an implied element of arbitration in the English legal system and confidentiality of the proceedings themselves is well established. The content of this obligation may however depend on the context, and its scope is not clearly outlined. Representing the recent trend of a tendency towards more openness of the proceedings is the Australian approach. Though no implied duty of confidentiality is recognised, parties may define the scope of confidentiality according to their needs through an explicit agreement. In Australia, the duty of confidentiality has also been shaped by an increasing number of cases involving public interests, and these might cancel any confidentiality obligations. In the US, there are no confidentiality-provisions that limit the parties' ability to publish information regarding the arbitration. Sweden seems to share this approach, though the Swedish Courts have outlined a «duty of loyalty» which might impose some restrictions on the parties.

Provided the arbitration is conducted under the guidance of an arbitral institution, or institutional rules, these rules might offer a certain degree of confidentiality, at least in relation to the award. International conventions or specialised laws may define the scope of confidentiality, for instance in relation to trade secrets. For many parties choosing arbitration, the protection of trade secrets is their main concern. It should therefore only be natural to argue that where there is any duty of confidentiality, this duty would at least encompass the protection of trade secrets. Such a view is supported by institutional rules and legislation.22 Specialised rules, like the WIPO Rules, designed for disputes involving intellectual property rights, represent adequate preservation of trade secrets and other proprietary information.23 The question of proprietary information in the form of trade secrets is also generally well preserved through diverse lex specialis, for instance intellectual property law.24 In addition parties frequently commit to confidentiality agreements at the outset of arbitration to the effect that any references to sensitive information could be redacted from the final award before its publication.25

II.2. The express agreement on confidentiality

With varying approaches to confidentiality in different judicial systems, parties do well to contract for confidentiality. This might be done as a clause in the original contract, as a part of the agreement to arbitrate, or be made at the outset of the proceedings, a so-called submission agreement. There is a general consensus regarding the fact that if the main contract26 contains a confidentiality clause, this clause will also apply to the arbitral process.27 A confidentiality agreement may however be overridden in some jurisdictions by the relevant court if it is found to be in the public interest, or is found unconscionable.28

The significance of the parties consciously addressing the matter of confidentiality is expressed by Brown:

«For parties concerned about protecting the confidentiality of their arbitral proceedings, the encouraging news is that parties-through their choices of an arbitral institution, forum, and contractual language - have considerable control over the answer to the confidentiality question.»29

Still, when entering into a mutual confidentiality agreement, the parties can lose the possibility to publicly use a favourable award to their advantage.30 And although party autonomy is a prominent feature of arbitration, the process itself is never completely autonomous, as national courts at the very least will have to play a role in the challenge, recognition and enforcement of the award. This might have some unexpected effects, for instance, entail a duty of confidentiality being imposed on parties that have not chosen this, as in Ali Shipping.31

Parties frequently choose to contract for some degree of confidentiality in arbitral proceedings, but Brown further argues that it can be «practically and diplomatically difficult to draft an effective confidentiality clause due to the numerous exceptions articulated in recent judicial holdings».32

The advantages of confidentiality agreements are also limited by the fact that individual agreements are needed to bind third parties. The members of the arbitral tribunal as well as other professionals partaking in the arbitration are bound by ethical considerations or professional responsibility not to disclose such information. There is however, no general duty binding witnesses or other persons that take part in the proceedings without being parties.33 Leaks might be inevitable as a typical international commercial arbitration involves dozens of people, many of whom have only supporting roles.34 One might consider multiple confidentiality agreements35 binding all involved in the arbitration, but this will not always be viable considering the number of people that might be involved.

II.3. National legislation – current trends

II.3.1. The English approach: An implied element of law

In England the traditional approach has been to assume that confidentiality is implied in every arbitration agreement for reasons of «business efficacy»,36 or as a «matter of law».37 There are indeed several advantages following this view; that the process might be more efficient and cost-effective as no additional time is used on the issue of confidentiality, as well as the process appearing more predictable. This view might also be more satisfying to the parties' wishes as confidentiality may be an expected feature of arbitration.

In the English arbitral tradition, the notion of confidentiality has developed along with the concept of privacy of the hearings, and the distinction between the two concepts was originally rather vague, as it was generally assumed that the private nature of arbitration also entailed a confidential process.38 Despite this the English Arbitration Act of 199639 does not contain any provisions dealing with confidentiality nor privacy.

The issue of confidentiality has been brought before the English courts on numerous occasions, most notably in the case of Dolling Baker v Merret40where the plaintiff claimed money under a policy of reinsurance, first against the insurers, and secondly against the placing brokers. In this case the question was whether to permit the entry of documents from a previous arbitration. The request was denied, and in the appeal the Court stated, obiter, that there existed an implied obligation of confidentiality in the arbitration agreement itself. Lord Justice Parker held that there must be:

«(...) some implied obligation on both parties not to disclose or use for any other purpose any documents prepared for and used in arbitration, (...) or transcripts or notes of evidence in the arbitration or the award (...) save with the consent of the other party, or pursuant to an order or leave of the court.»41

This view was reaffirmed in the case of Hassneh Insurance Co of Israel v Mew42another case involving insurance disputes. In this case, the plaintiffs reinsured the defendant under diverse reinsurance contracts from 1979 to 1984. When a dispute arose, arbitration was initiated, and an interim award rendered. The defendant wanted to disclose this award as they wished to proceed against the placing broker for negligence and breach of duty. In this respect it was emphasized by Mr Justice Colman that though an implied duty of confidentiality existed as a «matter of business efficacy», this is not an absolute duty but subject to conditions such as the need to found a proper defence. In this case Mr Justice Colman stated:

«If it be correct that there is at least an implied term in every agreement to arbitrate that the hearing shall be held in private, the requirement of privacy must in principle extend to documents which are created for the purpose of that hearing.»43

In this the Court recognized that confidentiality exists, but maintain that it must be determined separately in each case.

The view expressed in the Hassneh ruling was modified to some extent in the later case of Ali Shipping Co Ltd v Shipyard Trogir.44 Six companies all managed by Ali entered into six contracts with Shipyard Trogir, each contract for building a ship. When Trogir failed to deliver on one of the contracts, Ali claimed damages in arbitration. Trogir tried to «pierce the corporate veil» and to have all six contracts treated as one transaction, so as to set off the damages claimed on one contract against unpaid instalments on other contracts. Seeing as the six companies were deliberately created to keep each contract separate, the arbitrator awarded damages against Trogir. In separate arbitral proceedings concerning three of the ships, Trogir later sought to introduce documents from the first arbitral proceedings. In this case it was argued that the implied confidentiality arose as a matter of law.

Furthermore, the Court recognized several potential exceptions to the confidentiality rule: the consent of the parties, a court order, the «reasonable necessity» to protect or enforce a party's legal rights, and the «interests of justice», though the Court did not find any of these exceptions applicable in this case.45

The doctrine of implied confidentiality was further explored in other cases, the most recent being that of Michael Wilson and Partners Ltd v Emmott.46 Here the question was whether a party to arbitration could disclose documents produced in that arbitration, in foreign litigation. The case concerned arbitration between an unfaithful employee, Mr Emmott, and his employer relating to an arbitration clause in Mr Emmott's contract. Simultaneously, court proceedings against other respondents closely associated with Mr Emmott were instigated.47 It was found in this case that none of the exceptions to the duty of confidentiality, as outlined in Ali Shipping, applied and disclosure of the documents was denied. The court still held that:

«(...) case law over the last 20 years has established that there is an obligation, implied by law and arising out of the nature of arbitration, on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration ... The obligation is not limited to commercially confidential information in the traditional sense ... The content of the obligation may depend on the context in which it arises and on the nature of the information or documents at issue48

If one chooses to arbitrate in England it is presently presumed as a matter of law that arbitral proceedings are confidential.49

II.3.2. Australia

Although confidentiality has been seen as a prominent feature of arbitration, the current trend seems to question this view. One of the reasons for this is the significance of cases in which there has been a public interest, namely where the arbitral award would affect the general public. These cases have often involved large, and partly state-owned companies, such as the case of Esso/BHP v Plowman in the 1990s. This case involved a dispute between Esso and the Australian Minister for Energy and Minerals. Esso had started arbitral proceedings against two Australian public utility companies, and the dispute arose over whether the Minister, having a public duty to supervise public utilities, should be allowed to inspect documents produced in the arbitration. The Australian court found that «the public's legitimate interest in obtaining information about the affairs of public authorities»51 prevailed. The Chief Justice, speaking for the majority, held in relation to the scope of confidentiality that:

«I do not consider that, in Australia, (...), we are justified in concluding that confidentiality is an essential attribute of a private arbitration imposing an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration.»52

The view in this case seems to be that confidentiality of the proceedings is not an implied attribute of arbitration, but the Court held that it may be contracted for by the parties.

The ruling in Esso/BHP shocked arbitrators at this time.53 The rationale expressed by the majority in this case was that confidentiality is unachievable inter alia, because there are various situations in which an arbitral award might need to be brought before a court. It would therefore seem futile to impose a duty of confidentiality that cannot be enforced. The High Court nevertheless recognized that there could exist a duty of confidentiality, subject only to the legitimate interest of the public. Accordingly, this case addressed the disclosure of information to a Minister who had a statutory information right, which overruled any confidentiality obligations. The decision reversed prior practice where a duty of confidentiality generally could be found as an implied duty.

II.3.3. The US

In the US, arbitration is a much-used method of ADR. But when it comes to confidentiality in arbitration neither the Federal Arbitration Act54 nor the Uniform Arbitration Act55 contains such privacy provisions as seen in other arbitration rules. The parties are not obliged by US law to secure the privacy of arbitral proceedings, unless required by agreement between the parties or other applicable rules of arbitration. This can be illustrated by the case of Metalclad Corp. v United Mexican States,56 where the tribunal determined that neither NAFTA57 nor the ICSID-rules58 (ICSID was chosen as an additional facility in this case), provided any express restriction on the parties' ability to make public statements about information regarding the arbitration.59 NAFTA contains no confidentiality provision in any of its chapters that deal with dispute settlement.60

II.3.4. The Swedish position

The question of confidentiality was brought before the Swedish courts in the Bulbank61case. In this case the Bulgarian Foreign Trade Bank (Bulbank) entered into a Credit Facility Agreement, which contained an arbitration clause, with an Austrian bank. This bank then entered into another agreement with a financing company, Al Trade Finance Inc. (AIT). AIT guaranteed occasional payments owed by Bulbank under the Credit Facility Agreement. When Bulgaria faced financial difficulties, the Austrian bank assigned all its rights and the obligations secured and paid by AIT, to AIT and notified Bulbank of this. Arbitration was initiated under the terms of the Credit Facility Agreement, but Bulbank contested the proceedings on the grounds of separability of the arbitration clause,62 arguing it had not been signed over to AIT with the initial agreement. AIT was then awarded a favourable partial award that was later published without Bulbank's consent. Bulbank argued that this constituted a breach of confidentiality, and that it entitled Bulbank to avoid the entire arbitration agreement. This was taken into consideration by the Stockholm City Court, which ruled in favour of Bulbank,63 stating that confidentiality is a fundamental rule in arbitral proceedings. The Stockholm City Court then declared the arbitration agreement invalid and the arbitral award void.64

Only a year later this decision was overturned by the Svea Court of Appeal,65 which rejected the principle that there exists an implied duty of confidentiality. Svea Court of Appeal established that a judgment in favour of Bulbank, would only be possible if the company had been bound by an obligation in the agreement to adhere to confidentiality. It subsequently found that no such obligation existed. The court argued instead for a «duty of loyalty» between the parties to an arbitration.66 This ruling was appealed by Bulbank to the Swedish Supreme Court.67 In its ruling the Court searched for an international consensus on the question of confidentiality, but found none.68 The Supreme Court confirmed the decision of the Svea Court of Appeal, stating that a duty of confidentiality is not an implied element of arbitration under Swedish law. If the parties want confidentiality, they must contract for this expressly.

These decisions have been widely discussed by practitioners and scholars. Nakamura even held that «(T)he SVEA Court of Appeal's decision has not contributed positively to the development to (...) the concept of confidentiality in arbitration.»69

The Supreme Court's approach in this case differed substantially from the English line of cases, and Ali Shipping70 in particular, in finding that a party to arbitration proceedings cannot be bound by a duty of confidentiality, unless the parties have concluded an agreement concerning this. Consequently, Redfern and Hunter argue that there is no implied duty following the Swedish view on confidentiality, neither in relation to the proceedings nor the award.71 Noussia also noted:

(...)it is accepted that, the myth, about the duty of confidentiality in arbitration, fatally wounded in 1995 by the Australian High Court, has now been laid to rest, at least in Sweden.72

This is however, somewhat contrasted by Smeureanu's view that Sweden does not quite reject the idea of such a duty.73

II.3.5. Summary

Defining the scope of any duty to protect confidentiality in the arbitral process is a complex task as national legislation varies greatly. In English law confidentiality of the proceedings themselves is well established. The content of this obligation may however depend on the context, and its scope is not clearly outlined. Representing the current trend of a tendency towards more openness of the proceedings is the Australian approach. Parties may contract for confidentiality, though no implied duty of confidentiality is recognised, and thus define the scope of confidentiality according to their needs. In Australia, the duty of confidentiality has also been shaped by an increasing number of cases involving public interests, and these might cancel any confidentiality obligations.

In the US, there are no confidentiality-provisions that limit the parties' ability to publish information regarding the arbitration. Sweden seems to share this approach, though the «duty of loyalty» might impose some restrictions on the parties. For parties seeking confidentiality of the proceedings national legislation might provide some, but unreliable protection. The safest bet, when considering national legislation, is still the English approach.

II.4. Managing confidentiality under the rules of international arbitral institutions

There is no uniform approach to regulating confidentiality in international arbitration rules, but parties may select a set of institutionalised rules with an explicit confidentiality provision, as many institutions offer optional provisions of this type. Varying approaches depend on the dispute and type of arbitration.74 Despite these differences, international arbitral rules that cover confidentiality provide for essentially the same aspects and recommend equal limitations.75 Most rules address the issue of confidentiality of the award, and provide that arbitral awards are confidential unless otherwise agreed by the parties.76

The WIPO Arbitration Rules currently provide the most comprehensive confidentiality provisions in articles 73-76.77 Other institutions that put forward extensive confidentiality provisions are the LCIA78 and the Swiss Rules of International Arbitration.79

On the other hand, major arbitral institutions like the ICC80 and UNCITRAL81 contains no provisions that make explicit references to confidentiality. It might raise some concerns as arbitration is becoming increasingly known and more popular. Also, the model arbitration clauses offered by the major arbitration institutions do not contain any mention of confidentiality. Parties implementing such a model clause into their contracts will therefore, maybe inadvertently, ignore the question of confidentiality. The question of confidentiality, when negotiating the main contract, can be a difficult matter even for more experienced parties, as they might not want to «talk about the funeral while negotiating the terms of the marriage.»82

McIlwrath and Savage, argues that ad hoc arbitrations may appear more confidential than institutional arbitration.83 While an ad hoc arbitration has the advantage of being managed directly by the arbitrators, and thus might appear more confidential, such a presumption fails when intervention is needed by national courts to regulate what the supporting staff of an arbitral institution could have handled. This might be the default appointment of arbitrators, or other practical complications.84 Smeureanu even argues that court proceedings represent a threat to the confidentiality of ad hoc proceedings.85

II.5. Other jurisdictions

Only a few jurisdictions expressly address the issue of confidentiality. This is because a large number of countries modelled their national legislation on the UNCITRAL Model Law86 on International Commercial Arbitration, which left the question of confidentiality to the parties, or to the arbitration rules chosen by the parties.87 A few countries do currently explicitly address confidentiality. Among these are Norway,88 Spain, Romania, New Zealand and Peru. In some countries, a duty of confidentiality is still observed, but then as a matter of practice.89

II.6. The role of international conventions

International recognition and enforcement of arbitral awards is ensured through international conventions, such as The New York Convention,90 the Geneva Convention,91 and the Panama Convention.92 These conventions do not in themselves ensure confidentiality in arbitration; their function is rather to facilitate the international recognition and enforcement of awards.

III. PROTECTING CONFIDENTIALITY – PRACTICAL SOLUTIONS AND CHALLENGES

III.1. Introduction

Protecting the details of arbitral proceedings can be inefficient, costly, and prove to be a difficult task.93 If the parties have opted for the desired extent of confidentiality through a confidentiality agreement, it goes a long way. But as seen, the parties might rely on the tribunal itself or national courts to keep the process confidential. We will se that under most institutionalised rules and in many jurisdictions, parties may also request provisional measures to protect confidentiality. Furthermore, we will take a closer look at the increased demand for greater transparency in cases where there is a public interest, and how this may promote democratic principles. More transparency offers the affected public, such as shareholders of a commercial party to the arbitration, an opportunity to observe and evaluate the outcome of the proceedings. In these cases it seems the tribunal will have limited powers in ordering confidentiality. Finally, I will address the question of whether the contents of arbitral awards should indeed be made public.

III.2. Protecting confidentiality by party agreement

We have seen that a sound option is for the parties to have entered into mutual confidentiality agreements at some stage in the process. While such an agreement successfully binds the parties from disclosing information about the proceedings, it has no legal effect on any number of third parties that might be involved in the arbitration. Furthermore, if such an agreement is violated the readily available remedy is recourse to national courts. This could jeopardise the confidentiality of proceedings, as most legislations customarily keep a record that proceedings have taken place. Parties may however, decide that violation of the confidentiality-agreement shall be dealt with in arbitration. But if the agreement is breached the parties may face some practical challenges, as a successful arbitration is contingent upon the cooperation of the parties.

III.3. Safeguarding confidentiality through interim or provisional measures

The arbitral tribunal is often empowered to protect confidential information when it deems necessary. This mandate can derive directly from the agreement with the parties, or from the institutional rules applied to the arbitration.94 Nevertheless, the relevant national law will govern the procedure to be followed, the powers of the tribunal and the merits of the dispute, so that an arbitral tribunal cannot necessarily enforce a confidentiality obligation solely through the exercise of its procedural discretion. In certain situations the tribunal's powers may be insufficient, and thus favour recourse to a national court.95

National courts may however be reluctant to grant provisional measures where no such powers are attributed the arbitral tribunal, as the court would then be «lending» its authority to the tribunal. It can be argued that national courts should enforce confidentiality by granting provisional measures only to the extent that the parties explicitly contract for it. This view would be in line with the contractual autonomy that is the base for the parties' ability to choose arbitration over judicial litigation.

III.4. Recourse to national courts

The involvement of national courts, in the event of a dispute in relation to arbitral proceedings, imposes certain limits on confidentiality. When an arbitration is brought into a court of law the existence of proceedings is no longer confidential. Another challenge lies in the admissibility of information relating to the arbitral proceedings themselves. This issue was addressed by the Court of Appeal in Dolling-Baker v Merrett96 where it was held that if a court is asked to order the production of documents subject to confidentiality-obligation, it should «have regard to the existence of the (...) obligation», provided that, «if disclosure and inspection is necessary for the fair disposal of the action, that consideration must prevail».97

A judge may usually order confidentiality of the proceedings to some degree, but whether this is done is up to the judge. Problems might also occur for instance if confidentiality is more important to one of the parties. In this situation the other party might be tempted to use this to his or her advantage by attempting to challenge or enforce an award in national courts thus forcing an aspect of publicity on the other party. A study was conducted in 2005, researching the record of compliance with awards, and if variations were made by the parties.98 It was found that of 118 awards, 22 were renegotiated to establish final settlement claims after the arbitral tribunal finally rendered the award. It seems awards are commonly used as a bargaining tool.

III.5. Challenges to confidentiality relating to State involvement – the importance of public interest

Recently there has been a growing pressure towards increased transparency in arbitration where there is an element of public interest.99 In arbitration between states, or wholly or partially state-owned companies, confidentiality is usually approached differently than in private international arbitration.

In the case where a state is involved in arbitration, public interest will necessarily be a point of discussion. Investor-state disputes often arise in vital economic sectors – such as gas, electricity or water, and therefore frequently affect the welfare of local communities. It can be argued that confidentiality in these arbitrations is more difficult to justify. As seen, the challenges following public interest has been an issue in a few Australian cases, among these the case of the Commonwealth of Australia v Cockatoo Dockyard Pty Ltd.100 This case involved arbitration concerning the mismanagement of the Australian island of Cockatoo by a naval dockyard. The dockyard petitioned before the arbitrator to keep confidential information about toxic waste on the island. The sole arbitrator agreed, but the decision was contested by Australia, asking the Supreme Court to compel disclosure.

In this respect Justice Kirby held that the arbitrator had exceeded the scope of his powers by protecting confidentiality where one of the parties was a government, or a government organ:

«Whilst private arbitration will often have the advantage of securing for the parties a high level of confidentiality for their dealing, where one of those parties is a government, or an organ of government, neither the arbitral agreement nor the general procedural powers of the arbitrator will extend so far as to stamp on the governmental litigant a regime of confidentiality or secrecy which effectively destroys or limits the general governmental duty to pursue the public interest.»101

In another Australian case involving Esso/BHP, the Chief Justice speaking for the majority held that the public interest must guide whether to allow confidentiality:

«The courts have consistently viewed governmental secrets differently from personal and commercial secrets. (...) This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure.»102

In the later case of The Loewen Group, Inc. v U.S. the NAFTA tribunal suggested that a general duty of confidentiality in an arbitration involving a state party would be undesirable because it would deprive the public of knowledge and information concerning government and public affairs.103 So far, Australia and New Zealand are the only countries to formally recognize any exception from a duty of confidentiality founded on public interest.104

III.6. Confidentiality or disclosure of awards

In the 1990s a conflict emerged between the «inherent confidentiality» of the arbitral process and the desire for establishing a body of precedent by publishing arbitral awards.105 In 2009 Redfern and Hunter held that the «prevailing trend appears to favour publication.»106

The question of whether the contents of arbitral awards should be made public remains controversial. It was even noted by a former secretary general of the Court of International Arbitration of the ICC, Stephen Bond that:

«(...) it became quickly apparent to me that should the ICC adopt a publication policy or any other policy, which would mitigate or diminish the strict insistence on confidentiality by the ICC, this would constitute a significant deterrent to the use of ICC arbitration.»107

It has, as seen, been widely recognised that there are circumstances under which an arbitral award may need to be made public, for example in the event of enforcement by a national court.108 The award can also be made public in the event that a publicly quoted corporation must disclose, in its published accounts, information regarding its liability in a case.109 Some authors argue that the dissemination of awards is inconsistent with the private nature of the arbitration if the parties do not consent.110 Others argue that such publication does not pose any problems so long as the identifying elements are removed.111

Many institutional rules of arbitration state that the award can be made public only with the consent of the parties.112 Though the ICDR Rules provide that selected awards may be made publicly available, unless otherwise agreed by the parties. However, the names of the parties and other identifying features are removed prior to publishing. This does anonymize the award somehow, but the account of the factual dispute along with description of major issues may still point to specific parties. Others, like the NAFTA Rules, pose no restriction on the parties to protect confidentiality.

IV. BREACH OF CONFIDENTIALITY AND ITS CONSEQUENCES

IV.1. Introduction

It is apparent from the previous analysis that an obligation to maintain confidentiality cannot be taken for granted in international commercial arbitration. Still, confidentiality features as a significant attribute of arbitration. Though national legislation might offer some remedies there are still challenges regarding breach of confidentiality.

IV.2. Identifying a breach of confidentiality

Given the practical as well as conceptual challenges of outlining a duty of confidentiality in arbitration it can be difficult to identify a possible breach of such a duty. There are questions of what constitutes a breach as well as what are the proper sanctions. Though the argument can be made that a breach of confidentiality in arbitration proceedings constitutes a contractual breach,113 not many courts or arbitral tribunals have addressed this issue.114 The issue of breach of confidentiality has been disregarded by national legislation along with institutionalised rules. Lazareff evaluated the situation as the «courts' timidity when assessing damages and the widespread and persistent refusal by parties to anticipate what should happen in the event of breach».115

Assessing a possible breach of confidentiality can also prove difficult. The aggrieved party must first show that confidential information was disclosed, then, that no consent was given and finally that such a disclosure resulted in harm.116 This poses some new practical problems, as noted by Gaillard and Savage:

«(...) it will never be easy to establish which party is responsible for the document's release, and it may be difficult for the disclosing party to prove that it suffered loss as a result of any breach by its adversary.»117

There is very little case law addressing the issue of how a breach of the duty of confidentiality can be enforced.118 Except for Swedish courts,119 no other courts appear to have taken steps to explore penalizing unwanted disclosures of confidential information in arbitral proceedings.120 National laws lack guidance when it comes to formally regulating a breach of confidentiality where confidentiality or privacy of the proceedings are provided for in arbitral acts or other sources of law. Although a variety of institutionalised arbitration rules exist today, these too are silent on the issue.

IV.3. Remedies

When a breach of confidentiality occurs during arbitration, it is only natural that it is dealt with by the arbitral tribunal, and the doctrine of competence-competence allows the arbitrators to rule on their own jurisdiction.121 The arbitrators will most likely deal with the matter as they see fit, and it becomes part of the arbitral process. If there is need for interim measures, it is commonly accepted that arbitrators and judicial courts have concurrent jurisdiction to order these. But as this concurrent jurisdiction does not include public policy,122 what measures can be ordered by the arbitrators depend on the seat of arbitration.

If a confidentiality-breach occurs after the tribunal has rendered its award, it cannot remedy the breach as the tribunal's task is concluded i.e. it no longer has a mandate from the parties. Then it most likely becomes a question for the national courts. National courts could also have jurisdiction if the confidentiality agreement does not contain an arbitration clause.

V. FINAL REMARKS

Given the various national legislations, inconsistent case law and the array of available institutional rules, how may one protect confidentiality in arbitration?

Though it is neither beneficial nor possible to formulate a generic procedure to protect confidentiality, much can be accomplished by adapting confidentiality provisions to the parties' circumstances. This can be done either at the outset of the proceedings, or by including a confidentiality clause in the original contract.

Parties should consider why and to what extent they want confidentiality, to be able to better tailor the arbitral process to fit their needs. Additionally, a well-drafted confidentiality agreement might mitigate the damage even if national courts ultimately justify disclosure of information. Parties concerned about a breach of confidentiality by third parties should ask for individual confidentiality agreements.

Parties should also consider confidentiality when drafting other parts of their arbitration agreement. If confidentiality is a concern it should be kept in mind when considering the choice of law. As seen in the previous analysis, different legislative systems offer varying protection of confidentiality. Moreover, the parties should use the opportunity to carefully outline the issues covered by the arbitration agreement, and thus limit exposure of unwanted information. However, one should keep in mind that issues not covered in the arbitration agreement might be subjected to a more public litigation.

Under most institutionalised rules and in many jurisdictions, parties may also request provisional measures to protect confidentiality. Courts may however be reluctant to grant such measures. If protective measures issued by an arbitrator are not followed, the issue may be brought before national courts, which makes this a less desirable option.

Another approach is to choose applicable laws, or a seat of arbitration, which address confidentiality. Though choices today are limited, parties may obtain a certain degree of confidentiality by opting for English law.

Last but not least, one should not forget that much is indeed achieved by the arbitration clause alone, which, if drafted carefully, can ensure confidentiality in many aspects of the proceedings.

Footnotes

1. Redfern et al., Redfern and Hunter on International Arbitration, 5th edition student version, Oxford University Press, Oxford New York 2009, p.1.

2. For example in poorly constructed, or corrupt judicial systems.

3. For instance, through the New York Convention.

4. Philip Rothman, «PSST, Please Keep It Confidential: Arbitration Makes It Possible», Disp. Resol. J. Sept. (1994) p.69.

5. Bühring-Uhle, Christian, Arbitration and Mediation in International Business, Kluwer Law International, (1996) p.136.

6. Jean François Poudret & Sébastien Besson, Comparative Law of International Arbitration, Sweet & Maxwell, 2nd ed., 2006, p.316, para.368.

7. The survey was based on 136 questionnaire responses with further qualitative data drawn from 67 in-depth interviews. Questionnaire respondents and interviewees were general counsel and other corporate counsel from corporations across a range of industries and geographical regions, and a significant number of corporations based in emerging markets. Available at http://www.arbitrationonline.org/research/2010/index.html.

8. Kyriaki Noussia, Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position under English, US, German and French Law, Springer-Verlag Berlin Heidelberg, 2010, p.38.

9. There are nevertheless some systems that do not include specific provisions for the privacy of the hearings, among these are: the international arbitration rules of the Chamber of National and International Arbitration of Milan, the German Institution of Arbitration («DIS») and the Singapore International Arbitration Centre («SIAC»).

10. Paris (Established 1919).

11. ICC Rules of Arbitration, 1 January 2012 edition.

12. Ileana M. Smeureanu, Confidentiality in International Commercial Arbitration, Kluwer Law International, 2011, p.4.

13. Strong, Stacie I., Research and Practice in International Commercial Arbitration – Sources and Strategies, Oxford University Press, 2009, pp.23-24.

14. This might suggest that the parties to the arbitration have agreed to confidentiality. See for example Smeureanu's comments regarding the True North case: p.30, footnote 12.

15. Owners, Master and Crew of the Tug "Hamtun" v Owners of the Ship "St. John", March 11, 1999, Admiralty Court.

16. Shackleton, Stewart R., «Global warming: milder still in England», 1999 Part 2. Int ALR 2(4):117–136., pp. 125–126.

17. Sjur Brækhus, «Voldgiftspraksis som rettskilde» (Arbitral practice as source of law (my translation)), ...den urett som ikke rammer deg selv: festskrift til Anders Bratholm p. 447 - (FEST-1990-ab-447) p.460.

18. Carl August Fleischer, Rettskilder og Juridisk Metode (Sources of Law and Legal Methodology, (my translation)), Ad Notam Gyldendal, Norway 1998, p.82.

19. Brækhus, supra note 17, p.455.

20. Fleischer, supra note 18, p.82.

21. This is maintained by several commentators, among others Viggo Hagstrøm in his book Obligasjonsrett – i samarbeid med Magnus Aarbakke (Contract Law – in cooperation with Magnus Aarbakke (my translation)), Universitetsforlaget 2003, 3rd. printing 2004, p.55, see also Gaillard and Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, (ed) Kluwer Law International (September 1999), p.189.

22. For instance in Swedish Law by the «Protection of trade secrets law», my translation, («Lag om skydd för företagshemligheter»), Lag 1990:409, available online at https://lagen.nu/index/1990.html.

23. See Article 52.

24. In many cases through national legislation such as the Code Propriété Intelectuelle in France, in Germany through the Gesetz gegen den unlauteren Wettbewerb (UWG). The UK also provides broad and effective protection for trade secrets. Additionally, protection of intellectual property is covered by many international conventions, most of which are implemented by the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO).

25. This opens the difficult question of what should be considered to be such sensitive information. And in consequence how the redaction of such information would affect the possible benefit from publication an abbreviated award.

26. In relation to which arbitral proceedings are initiated.

27. Gary B. Born, «International Commercial Arbitration», Vol. I, Kluwer Law International 2009, p.2257.

28. A. J. Schmitz, «Untangling the privacy paradox in arbitration», University of Kansas Law Review, 2006 Vol. 54:1211–1253, p. 1220.

29. Alexis C. Brown, «Presumption Meets Reality: An Exploration of the Confidentiality Obligation in International Commercial Arbitration». American University International Law Review 16, no. 4 (2001): 969-1025, p.1025.

30. A party can secure this right, for instance the right to publish an award in the event of arbitration concerning breach of contract, by including this in the agreement.

31. Ali Shipping Co Ltd v Shipyard Trogir (1998) 2 All ER 136 (CA).

32. Brown, supra note 29, p.989.

33. As arbitration is a contractually based private process it is in the interest of the parties to provide for confidentiality-agreements with potential expert witnesses, or other third parties partaking in the arbitration. If an institution administers the arbitration, the institution might provide this.

34. Such people might include witnesses, on site personnel, caterers, and others.

35. Or a standard agreement could be made.

36. As stated by Justice Colman in the Hassneh ruling ((1993) 2 Lloyd's Rep. 243).

37. Smeureanu, supra note 12, p.9.

38. ibid., p.15.

39. Chapter 23, (17th June 1996).

40. Dolling Baker v Merret, (1990), 1 WLR 1205.

41. ibid., p.1213.

42. supra note 36.

43. supra note 36, p.247.

44. supra note 31.

45. Brown, supra note 29, p.984.

46.EWCA CW 184.

47. Notably in New Soth Wales and the British Virgin Islands.

48. supra note 46, sections 105-107. Nb. my italic.

49. The English approach has however been rejected in major arbitral jurisdictions such as Australia, Sweden and the United States, this will be explored further in section III.

Smeureanu, supra note 12, p.17.

50. Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.

51. ibid., para. 43.

52. supra note 50, para. 37.

53. Brown, supra note 29, p.1015.

54. 9 USC § 101 et seq of 1925.

55. Of 2000 by National Conference of Commissioners on Uniform State Law, drafted July 28 – August 4.

56. ICSID case No. ARB(AF)/97/1, Award (Aug. 30, 2000).

57. North American Free Trade Agreement, signed 17 December 1992.

58. ICSID Rules of Procedure for Arbitration Proceedings, 10 April 2006 edition.

59. supra note 56, para.13.

60. Cindy G. Buys, «The Tensions Between Confidentiality and Transparency in International Arbitration», The American Review of International Arbitration, Vol.14 No.121, 2003, p.12.

61. AI Trade Finance Inc. V Bulgarian Foreign Trade Bank Ltd. (Bulbank), NJA 2000:79 s.538.

62. The doctrine of separability is well established in international arbitration, i.e. that the arbitration clause is considered autonomous and as such survives the termination of the contract.

63. supra note 61.

64. Constantine Partasides, «Bad News from Stockholm: Bulbank and confidentiality ad absurdam», 13 Mealey's International Arbitration Report 21, 1998, p.23.

65. AI Trade Finance Inc. V Bulgarian Foreign Trade Bank Ltd. (Bulbank); Case no. Y 1092-98, SVEA Court of Appeal, «Mealey's Intl Arb Rep» A1 (1999).

66. ibid., p.546.

67. Bulgarian Foreign Trade Bank Ltd. v A.L. Trade Finance Inc., Judgment of October 27, 2000, Swedish Supreme Court.

68. Noussia, supra note 8, p.84.

69. Brown, supra note 29, p. 987. Citing Tatsuya Nakamura, «Confidentiality in Arbitration, SVEA Court of Appeal Decision – Is it Good News from Stockholm?», Mealey's International Arbitration Report 24, June 1999.

70. supra note 31.

71. Redfern and Hunter, supra note 1, p.140.

72. Noussia, supra note 8, p.84.

73. Smeureanu, supra note 12, p.28.

74. ibid., p.73.

75. Antonias Dimolitsa, «Institutional Rules and National regimes Relating to the Obligation of Confidentiality on Parties in Arbitration», Confidentiality in Arbitration, ICC ICArb Bull Special Supplement, 5,7 (2009), p. 13.

76. Smeureanu, supra note 12, p.83.

77. Article 73 contains provisions regarding «Confidentiality of the Excistence of the Arbitration», article 74 consider «Confidentiality of Disclosures made During the Arbitration», and article 75 concerns «Confidentiality of the Award», lastly there is article 76 which deals with «Maintenance of Confidentiality by the Center and Arbitrator».

78. Article 30.

79. Article 43.

80. The ICC Rules article 22(3) state that: «Upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information.» However, no duty of confidentiality is imposed on the parties.

81. According to article 28(3) hearings shall «be held in camera unless the parties agree otherwise», though no other references to confidentiality is made.

82. Brown, supra note 29, p.990.

83. McIlwrath and Savage, International Arbitration and Mediation: A Practical Guide, Kluwer Law International (2010), p.63.

84. This difficulty could admittedly be fixed by the parties providing for such a situation in their arbitral agreement, or following a joint decision by the parties when the situation arise.

85. Smeureanu, supra note 12, p.73.

86. Model Law on International Commercial Arbitration, adopted 21 June 1985.

87. Smeureanu, supra note 12, p.21. Citing: Report of the Secretary-General on the Possible Features of a Model Law in International Arbitration, UN Doc. A.CN.9/207, para.17 XII UNCITRAL 75, 90 (1981).

88. It is stated in §5 of the Norwegian Arbitration Act («Lov om voldgift») of 14 May 2004 nr.25 that « Unless the parties have agreed otherwise, the arbitration proceedings and the decisions reached by the arbitral tribunal are not subject to a duty of confidentiality.»

89. Assen Alexiev, Bulgaria (2010) from Paulsson, Jan (ed.), International Handbook on Commercial Arbitration, Kluwer Law International 2010,Vol. 61, p.28.

90. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed 10 June 1958.

91. Geneva Convention for the Execution of Foreign Arbitral Awards, signed 26 September 1927.

92. Inter-American Convention on International Commercial Arbitration, signed 30 January 1975.

93. For instance by having all participants sign individual confidentiality-agreements.

94. For example Article 20 (7) of the ICC Rules of Arbitration states that the «Arbitral Tribunal may take measures for protecting trade secrets and confidential information.»

95. Five situations stand out, as stated in Redfern and Hunter (p.445-446): 1) The tribunal has no powers, 2) Inability to act prior to the formation of the tribunal, 3) An order can only affect the parties to the arbitration, 4) Enforcement difficulties, 5) No ex parte application.

96. supra note 40.

97. ibid.

98. Naimark and Keer, «Post-Award Experience in International Commercial Arbitration.» Towards a Science of International Arbitration: Collected Empirical Research, ed. Christopher R. Drahozal and Richard W. Naimark. The Hague: Kluwer Law International, 2005 (2004).

99. This trend is even more noticeable in investment arbitration, which will not be discussed in this paper. See for instance: Investor-state arbitration, Christopher F. Dugan et al., Oxford University Press, 2011.

100. Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662.

101. ibid., Kirby P., p.682.

102. supra note 50,at section 39.

103. ICSID case No. ARB(AF)/98/3, Decision Sept. 28, 1999. Cited in: Buys, supra note 60, p.13.

104. Smeureanu, supra note 12, p.111.

105 Redfern and Hunter, supra note 1, p. 583.

106. ibid.

107. Expert report of Stephen Bond, Esq. in Esso v Plowman, 11-3 Arb. Int'l 273, 1995.

108. See the case of Michael Wilson and Partners Ltd v Emmott(2003) EWHC 1377; EWCA Civ. 314.

109. Redfern and Hunter, supra note 1, p. 583. Citing Paulsson and Lawling, The Trouble with Confidentiality (1995) 11 Arb. Intl. 303.

110. Smeureanu, supra note 12, p.82 and Robert H. Smith, «A Case Against the Publication of International Arbitration Awards, the Identity of Arbitrators, and Dissents», a paper presented at the 20th Joint AAA/ICC/ICSID Colloquium on International Arbitration (Washington DC, Nov. 14, 2003).

111. Poudret & Besson, supra note 6, p.316 para.372.

112. For example those of ICSID and UNCITRAL (art. 34(5)).

113. This approach points in the direction of the usual remedies for breach of contract such as protective orders deterring further disclosures, or monetary damages.

114. Brown, supra note 29, p.1016.

115. Serge Lazareff, «Confidentiality and Arbitration: Theoretical and Philosophical Relections», ICC ICArb Bull., Special Supplement, 81, 88 (2009), Confidentiality in Arbitration. Cited in Smeureanu, supra note 12, p.162.

116. ibid.

117. Emmanuel Gaillard and John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, (ed) (1999), p.189.

118. Brown, supra note 29, p.1014.

119. In the Bulbank-case.

120. Smeureanu, supra note 12, p.166.

121. The doctrine is a well-established feature of international commercial arbitration, see for instance Redfern and Hunter (section 5.99), supra note 1.

122. The question of what is regarded as «public policy» differs from one jurisdiction to another. What falls inside of the scope of a State's «public policy» usually includes areas such as criminal matters, bankruptcy and insolvency.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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