Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
International Arbitration
Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

Answer ... Although confidentiality is often considered an advantage of arbitration proceedings compared to litigation before state courts, neither the Private International Law Act nor the Swiss Code of Civil Procedure includes any provisions governing confidentiality in arbitral proceedings.

It is generally acknowledged that under the arbitrators’ agreement with the parties (receptum arbitri), the members of the arbitral tribunal are under a duty of confidentiality with regard to the arbitration proceeding, deriving from the general duty of care under an agency agreement pursuant to Article 398, paragraph 2 of the Swiss Code of Obligations.

The parties to an arbitration agreement may agree upon confidentiality obligations in the arbitration agreement or choose arbitration rules that contain specific provisions on confidentiality. In the absence of clear provisions, it is unclear whether the arbitration agreement contains an implied duty of confidentiality of the parties or whether such duty could be derived from the duty of good faith pursuant to Article 2, paragraph 1 of the Swiss Civil Code; legal commentators are divided on the issue. However, the view favouring such implied duty has not been corroborated by case law thus far.

Concerning the conduct of the proceedings, the Swiss Federal Tribunal has ruled that the parties to an arbitration proceeding do not have the right to a public hearing under international treaties or under the Swiss Constitution. However, this relates solely to the privacy of the conduct of the proceedings (ie, hearings).

As regards the Swiss Rules on International Arbitration, Article 44 provides for a duty of confidentiality that applies unless the parties expressly agree otherwise in writing. The arbitrators, the tribunal-appointed experts, the secretary of the arbitral tribunal, the members of the board of directors of the Swiss Chambers’ Arbitration Institution, the members of the Arbitration Court and the Secretariat and the staff of the individual chambers are all bound by this duty of confidentiality. Furthermore, the deliberations of the arbitral tribunal are confidential, according to Article 44, paragraph 2 of the Swiss Rules.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Are there any exceptions to confidentiality?

Answer ... As discussed in question 44, the Swiss law on both international and domestic arbitration is silent on the question of confidentiality.

The Swiss Rules contain an explicit confidentiality provision and enumerate several exceptions thereto. To the extent that disclosure may be required of a party to fulfil a legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a judicial authority, that party is not obliged to keep the information confidential (Article 44, paragraph 1 of the Swiss Rules). Examples of such disclosure obligations include statutory provisions obliging a party to disclose information (eg, to auditors or tax authorities), disclosure obligations of listed companies and disclosure ordered by a court, public prosecutor or administrative authorities.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
International Arbitration