International perspectives on arbitration confidentiality.

• Author: Marrs, Scott D.

This article originally appeared in the October 2014 Alternative Dispute Resolution Committee newsletter.

"CONFIDENTIALITY" is a poorly understood concept among most advocates and parties alike. There is a distinction between privacy of the proceedings, and confidentiality relating to filings, discovery, evidence, and the award. Most international arbitration rules require the proceedings to be "private" (i.e., only those who participate in the hearing, such as parties and witnesses, may be present in the hearing itself). Although the proceedings may be "private," this does not mean that filings, discovery, evidence, and the award will be kept "confidential."

Not all arbitration rules provide for confidentiality. Even where confidentiality is required, some tribunals only impose confidentiality on the tribunal/arbitrator, and not the parties themselves. Therefore, it is important to understand the distinctions made in the rules of the applicable arbitration forum, as well as how to obtain confidentiality in the absence of any rules providing same. This article discusses the distinctions between rules of the four largest international arbitration forums, and how various countries treat confidentiality.

1. International Arbitration Forums: ICDR, ICC, LCIA, AND UNCITRAL

   The Four Largest International Arbitration Forums are: (1) the International Centre for Dispute Resolution ("ICDR"), (2) the International Chamber of Commerce ("ICC"), (3) the London Court of International Arbitration ("LCIA"), and (4) the United Nations Commission on International Trade Law ("UNICITRAL"). The chart in Appendix A analyzes the differing rules on privacy and confidentiality for these tribunals.

2. How Various Countries Treat Confidentiality In Arbitration

   There is a noticeable lack of uniformity in how various countries address arbitration confidentiality. Some countries impose an implied duty of confidentiality; some apply a limited rule, while others have no rule at all. This lack of uniformity creates growing uncertainty in our global economy. International arbitration forums with support from international and governmental bodies should propose and support a uniform confidentiality rule to create more certainty in cross border and global transactions.

   The chart in Appendix B analyzes the differing rules on privacy and confidentiality in countries with the most active arbitration forums.

3. Conclusion

   If Confidentiality is desired, always insert a Confidentiality...