Confidentiality

Question 1

What is confidential

Answer 1

Anything rpooduced for the arbitration:
Documents
Witness evidence
Submisisons

Question 2

Distinguish it from privacy
Name provisison

Answer 2

Privacy refers to ppls ability to sit in on the arbitration

Article 26( 3) ICC
Save in accordance w authroisation from tribunal, no individal not party to the proceedings can sit in on arbitration

Question 3

Background on confidentialtiy

Answer 3

USed to be seen as an absolute right, now its qualified and not guaranteed

Question 4

Advantages of confidentiality

Answer 4

Avoids bad publicity
Maintains trade secrets
Lowers the temperature for settlement

Question 5

Disadvantages of confidentiality

Answer 5

Lack of transparency- difficult when a company has a disclosure clause
Hinders the advancement of knowledge on arbitration
Not useful when award has to be enforced

Question 6

Sources of confidentiality

Answer 6

1. Parties agreement
2. Procedural rules
3. Applicable law

Question 7

1. Parties agreement

Answer 7

PArties can agree to keep everything confidential or only some things
This doesn’t have to be included in the contract and be in the ToR

Question 8

2. Procedural rules

Answer 8

If partys bound by procedural rules, tribual my have discretion

Art 22(3) ICC
Gives tribunal the discretion on whether or not the proceedings or anything related should be confidential, with regard to trade secrets and maintaining the confidentiality of the arbitral process

Question 9

3. Applicable law

Answer 9

Normally the law of the seat becomes at issue
Most arbitration statutes are silent on this matter

Question 10

What is confidential

Answer 10

The actual dispute
Submiissions
Eidence
Documents
Witness testimony
Awards

Question 11

Who is bound to maintain confidentiality?

Answer 11

The parties, the arbitraros
Witnesses, experts
The secretait- if applicable

Question 12

How long does the duty of confidentiality extebt

Answer 12

May extend past termination of contract/arbitral proceedings

Question 13

What are the exceptions to confidentiality

Answer 13

When the public interest requires it
When its necesary so party has fair chance to argue case
When law requires it
When parties agree
When its necessary for the enforcement of the award

Question 14

Remedies for breach

Answer 14

Injunction to prevent further disclosure

Cost santion- useless if tribunal disolved

Breach of contrac damages- only applicable if provision was in contract or if it was bound under the insitutional rules

Question 15

The award

Answer 15

Award confidential but must be taken to national courts for enforcement
Will publish them without identifying features

Question 16

Transaprency

Answer 16

Greater trend towards transparency
UNCITRAL rules on transoarency which require publication of all things related to the arbitration
Tribunal maintains discretionary power incase disclosure would undermine the intergrity of the arbitral process

Question 17

Revisions to the rules on arbitration

Answer 17

Increasing arbitration where theres a legitimate public interest
Lead to the erosion of confidnetiality
Man initutions have amended their rules to impose express provisisons on confidentiality.