Comparative Guides

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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 ... The Arbitration Act is deliberately silent on the question of confidentiality (see Departmental Advisory Committee on Arbitration (DAC) Report on Arbitration Bill 1996). However, under English law, parties to the arbitration and the tribunal are under implied duties to maintain confidentiality (see Ali Shipping Corporation v Shipyard Trogir [1997] EWCA Civ 3054). How this implied duty arises is controversial, but was analysed in Ali Shipping as being an implied term of the arbitration agreement. This legal analysis (but not the principle of confidentiality) has been questioned in later case law, but has not been overturned (Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184).

The extent of the implied duty of confidentiality covers the arbitral hearing itself (which could also be described as privacy), and documents generated and disclosed during the arbitral proceedings (Ali Shipping and Emmott). The award and reasoning are also prima facie covered by confidentiality. This duty may be subject to certain exceptions discussed in question 45. It is unclear whether the implied duty of confidentiality extends to the fact of the arbitration (eg, that an arbitration is taking place between particular parties) or whether witnesses are bound by duties of confidentiality.

Because of the lack of clarity surrounding the extent of these implied duties, where possible, confidentiality is best addressed in the arbitration agreement or by adopting arbitral institutional rules which provide for confidentiality. The parties and the tribunal may wish to address confidentiality in the first procedural order. Parties may also wish to discuss confidentiality with their witnesses and service providers.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
Are there any exceptions to confidentiality?

Answer ... As discussed in question 44, the parameters of the implied duty of confidentiality are still developing.

The current case law identifies a number of potential exceptions to confidentiality of the documents generated and disclosed during the proceedings, although these may be context specific (Emmott):

  • The parties may consent, expressly or impliedly, to disclosure;
  • Disclosure is ordered or permitted by the court;
  • Disclosure is reasonably necessary to establish or protect the legal interests of an arbitrating party (Hassneh Insurance Co v Mew [1993] 1 Lloyd’s Rep 243 and Westwood Shipping Lines Inc v Universal Schiffahrtsgesellschaft MBH [2012] EWHC 3837 (Comm)); or
  • Disclosure is in the interests of justice (see Ali Shipping, Westwood Shipping, Emmott). The scope of this exception remains debatable.

In terms of an arbitral award, there are certain obvious exceptions to confidentiality. A party may need to disclose the award to a court to enforce it. Similarly, if a party seeks to challenge an award before a court with supervisory jurisdiction, the award will need to be subject to limited disclosure.

The English court seeks to protect the confidentiality of the award and documents produced before it. Arbitration claim forms may be inspected by a non-party only if the court grants permission (see Practice Direction, and permission will be given only if that non-party can satisfy the court that disclosure is reasonably necessary to protect or establish a legal right (see Glidepath Holding BV v Thompson [2005] EWCA Civ 1071). Arbitration hearings are generally held in private (CPR 62.10). In UMS Holding Ltd v Great Station Properties SA [2017] EWHC 2473 (Comm), the English court also considered that it had an inherent jurisdiction to regulate access to an award that was in the public domain following an order to disclose.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
International Arbitration