Even
at the advent of emerging technology and the growing need for transparency,
confidentiality still remains a factor attracting parties towards arbitration[1]. The subsequent call for
transparency arises due to the emerging need for accountability to the public.[2] However, confidentiality
and transparency are often pitted against each other and are considered to be
conflicting to another[3].
These
“competing values” are considered to
be two sides of the same coin, irreconcilable due to their very nature.[4] Though, it is essential to
sought balance between the two to represent the varying interests of parties
adequately.
Since
the arbitration agreement is a reflection of party autonomy, which is
considered to be the linchpin of arbitration, it accords some much-desired
flexibility to the arbitration proceedings.[5] Thereby conferring on
parties the ability to draft an arbitration agreement which balances the
conflicting practices of transparency and confidentiality
In
the instant paper equilibrium is sort between the two seemingly polar opposite
features of arbitration. Firstly a differentiation will be made between privacy
and confidentiality, and further an attempt will be made to examine the point
of overlap between the two. Secondly, the three elements of privacy will be set
out. Thirdly the institutional rules spelling out the obligation of
confidentiality and lastly the scope of arbitration will be determined.
Though
privacy and confidentiality are two separate concepts, they are inextricably
interlinked together due to the inherent requirement of non--a disclosure that
lies at their core[6].
However,
one primary distinction between the two concepts is that privacy is restricted
to the conduct of proceedings meaning the ‘process’ of arbitration remains
private. In contrast, confidentiality can be understood in the light of
exchange of information between the parties, for example, witness statements,
court transcripts, evidence produced etc.[7]
It
is essential to note that this overlay between confidentiality and privacy may
invoke a situation of misperception wherein a party would assume that the
subject matter of the dispute and the consequent information stemming out of it
by virtue of the interaction between parties, counsels and the tribunal will
automatically remain confidential due to the privacy of the arbitral process.[8]
Further,
some authors argue that confidentiality is part and parcel of privacy, that
innate privacy of arbitral process lends itself to the practice of
confidentiality. Thereby making privacy the genesis and confidentiality the
species. [9]
The
precedent set by certain decisions brings out much-needed clarity in this
situation of ambiguity wherein it was held that the mere existence of privacy
does not in itself guarantee confidentiality[10]
Due
to the dearth of authorities, it is difficult to arrive at a common
understanding of the link between confidentiality and privacy. Three-pronged
analyses can be made.[11] Firstly that confidentiality and privacy are two distinct values
with no scope of connexion.[12] Secondly, privacy includes within its ambit confidentiality, which
means that the intrinsic nature of privacy guarantees confidentiality of the
proceedings, therefore extending complete protection to the parties. Thirdly Confidentiality and Privacy go
hand in hand, which means that these concepts cannot be read in isolation but
have to be read together.[13]
THREE
FACETS OF CONFIDENTIALITY
Confidentiality
under International Commercial Arbitration can be view under three aspects the
first one being the person on whom the duty of confidentiality is placed. The
second would include within its realm the information which remains privileged,
and the third one consists of the publication of awards and the consequences
arising out of the same.
Firstly
it is essential to note that though most of the institutional rules confer an
explicit duty of confidentiality on to the parties to the arbitration, the same
is met with limitations, the institutional rules when applied narrowly bestow
the duty of confidentiality only upon the parties, their legal counsels and the
arbitral tribunal.[14]
Even
if the same is given a broader interpretation to endow the duty of
confidentiality upon the third parties to the arbitration, it can only be done
when the information itself is protected under the garb of privilege,[15]
The
same leads to the second facet of confidentiality [16] . Though the information
exchanged between the legal counsel and the client enjoys the necessary
protection the same cannot be said about the communication of the parties the
third parties, for example, third party funder, witnesses, translator etc., the
parties would need a non-disclosure agreement to protect such information even
if it is related to the subject matter of the arbitration.
This
becomes even more necessary when trade secrets, technology transfer and other
such confidential information becomes part of the proceedings. Further, it becomes
imperative when the parties are involved in multiple disputes of similar nature
and might adopt contradictory positions for commercial advantage and misuse
confidentiality for their own gain. Thirdly there exists a problem concerning
the publication of the award during enforcement proceedings and it essential to
set out limitations to it, to protect the parties’ interest in confidentiality[17]
SCOPE
OF CONFIDENTIALITY
There exists a constant dissonance regarding
the sphere of confidentiality whether confidentiality brings into its realms
the substantive issues or concerns itself only with the conduct of proceedings.
Further
it is also essential to note that there is a lack of clarity regarding the
point of inception of ‘proceedings’ for allocating confidentiality, whether
‘choice of forum’ falls within the ambit of the procedural element or whether
the same is limited to matters such as publication of awards, production of
evidence, witness testimony etc.
An
argument can be put forth that confidentiality is not violated when choosing
the forum as it is applicable to only to conduct of the proceedings.[18] According to Art. 1.1
LCIA Rules, the arbitration proceedings commence when the written request for
arbitration is delivered to the Registrar. In this light, Art. 30 covers
actions taken by the arbitral tribunal, agreements reached by the parties
throughout the proceedings and guides the parties in crafting the arbitral
proceedings.[19]
Therefore it can be said confidentiality can only be applied when the proceedings
have begun.
LCIA Rules are exemplary, as they cover not
only the duty of the parties to the proceedings but also the extent of such a
duty, protection is both accorded to the award all the information disclosed in
the proceedings without paying heed to their documentation.[20] The term “all material” should be construed
broadly to include both oral and documented information.[21]
LCIA
Rules also provide much-needed lucidity when dealing with ‘sensitive
information’ which is used as evidence , for instance, information obtained
through misuse of technology which does not warrant public disclosure due to
existing legal duty and is not in public realm falls under the cloak of
confidentiality.[22]
Further
LCIA has also clearly formulated its position with respect to the publication
of arbitral award; the award is to remain within the bounds of confidentiality
until the party’s state otherwise explicitly[23]. There are limitations
however to such confidentiality; such limitations require publication when a
subsequent legal duty arises on the parties during the time enforcement or
challenge of such award as a consequence of either establishing a legal right
or safeguarding the same.[24]
However,
there is inevitable criticism to the rules as LCISA under Article 30.2
impliedly restricts the tribunal to explain the reasoning behind their
decisions. This can be interpreted in two ways[25]. Firstly the term ‘deliberation’
can be construed only to mean the discussion between the tribunal members and
any conversation that took place between them to reach a consensus. Secondly, it can also be interpreted as
waiving the necessity to give comprehensive details of the reasoning behind the
award
If
an arbitration clause is specially worded to include the terms of confidentiality,
the proceedings tend to remain confidential. There are two-fold reasons for the
same, firstly as discussed above due to the nature of arbitration and secondly
because such an obligation is a palpable consequence of the said clause.
The
Arbitration Rules of the United Nations Commission on International Trade Law
("UNCITRAL Rules") , Art.25(4) provide only that hearings shall be
held in camera; arbitrators can exclude certain persons from the hearings to
maintain the privacy of the proceedings.[26] Thus, while privacy is
protected; confidentiality is not. These rules are particularly influential
since dozens of nations pattern their local rules on the UNCITRAL mode.[27] The UNCITRAL Rules of
1976 obliquely through Art 32(5) enforce confidentiality contingent on party
agreement the aforementioned article stipulates that an arbitral award could be
rendered public only with the consent of the parties.
However,
the rules were amended in 2010 so as to reflect the changes in arbitral
practice and to enhance the efficiency of arbitral proceedings. The UNCITRAL
Arbitration Rules of 2010[28] replaced Article 32(5) of
the UNCITRAL Arbitration Rules of 1976 with Article 34(5), which provides that
"[a]n award may be made public
with the consent of all parties or where and to the extent disclosure is
required of a party by legal duty, to protect or pursue a legal right or in
relation to legal proceedings before a court or other competent authority."[29] These amendments reflect
a move, albeit small, toward transparency , thereby inviting competing values
between them.
JURISPRUDENCE
FOR CONFIDENTIALITY OF ARBITRAL AWARDS
(A)
AITA v. OJJEH
In
Aita v. Ojjeh (1986), one of the parties approached the French Court of
Appeal situated in Paris with the request to annul an award granted by the
Arbitral Tribunal in France.[30] It was noted that, “the action caused a
public debate of facts which should remain confidential….the very nature of
arbitral proceedings requires that they ensure the highest degree of discretion
in the resolution of private disputes, as the two parties has agreed”.[31] The Court directed the
trailing party to provide to the Judgement holder a fine in form of penalty for
the infringement of confidentiality.[32] This judgement draws
support to the obligation of confidentiality which is also reflected in the
following American and English cases, discussing exceptions to enforcement of
legal rights.[33]
(B) UNITED
STATES v. PANHANDLE EASTERN CORPORATION
In
United States v. Panhandle Eastern Corp. (1988), it was concluded by the
Federal Court of United States, that in the absence of an explicit agreement
between the parties or institutional and procedural rules on point, it is not
necessary that arbitration proceedings have to be confidential.[34] The Government of United
States required the production of certain documentations regarding an old
arbitral proceeding instituted in Geneva, held under the rules of International
Chamber of Commerce (ICC).[35] The ruling of the court
was such that the arbitration agreement and the rules of arbitration failed to
provide for the protection of confidentiality of the proceedings, thus enabling
the United States Government to access the documents.[36] The Court did not
acknowledge any common or general principle in the international arbitration
for confidentiality and so the duty of confidentiality can only be enforced
impliedly by fact.[37] The effect of such a
judgement was to bring down the necessity of vague and ambiguous confidentiality
clauses.[38]
(C)DOLLY-
BAKER v. MERRETT
The
Court of Appeal of England held that there exists an “implied obligation of
confidentiality arising out of the nature of arbitration itself”.[39]
Even though the English Court of
Appeal did not “Intend….to give a
precise definition of the extent of the obligation…” but it was found that in the particular case presented before it,
that the implied duty applied to “documents
prepared for and used in the arbitration, or disclosed or produced in the
course of the arbitration, or transcripts or notes of the evidence in the
arbitration or the award”.[40]
Certain exceptions to the duty of confidentiality, as illustrated by Lord
Justice Parker,
“The
court must ... have regard to the existence of the implied obligation .... if
it is satisfied that despite the implied obligation, disclosure and inspection
is necessary for the fair disposal of the action, that consideration must
prevail. But in reaching a conclusion, the court should consider amongst other
things whether there are other and possibly less costly ways of obtaining the
information which is sought which do not involve any breach of the implied
undertaking.”[41]
(C) HASSNEH INSURANCE CO. OF ISRAEL v. STEUART J. MEW
The Commercial Court of England largely relied on Dolling-Baker to conclude that there is an implied duty of
confidentiality to which the arbitration proceedings should be subjected to.[42]
In the words of Justice Colman:
“If
it be correct that there is 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. The most obvious example is a note or transcript of the evidence. The
disclosure to a third party of such documents would be almost equivalent to
opening the door of the arbitration room to that third party. Similarly,
witness statements, being so closely related to the hearing, must be within the
obligation of confidentiality. So also, must outline submissions tendered to
the arbitrator. If outline submissions, then so must pleadings be included.”[43]
Thus, the Court in Hassneh and Dolling-Baker agreed that “if
privacy is an inherent attribute of the arbitral process, then confidentiality
must be as well, because privacy is meaningless without its confidentiality
corollary."[44]
In conclusion the Court in Hassneh drew an exception to the rule of confidentiality,
to include that an arbitral award was allowed be disclosed if it is essential
to sufficiently prove that the cause of action in a future case proceeding. [45]In
Justice Colman’s words: “Since
the duty of confidence must be based on an implied term of the agreement to
arbitrate, that term must have regard to the purposes for which awards may be
expected to be used in the ordinary course of commerce and in the ordinary
application of English arbitration law”[46]
(E)ESSO AUSTRALIA RESOURCES v. PLOWMAN
In Esso
Australia Resources v. Plowman
(1995), the Australian High Court’s opinion was that is “Crashed like a giant wave-a veritable
Australian tsunami-on the shores of jurisdictions around the world.”[47]
The reason why such an uproar was caused was the Court announced that
confidentiality in International Commercial Arbitration is different from the
concept of privacy and was not an “essential
attribute” of the proceedings.[48]
Therefore, neither of the parties to the arbitration agreement could expect
that any part of their arbitral proceedings could be protected under the
obligation to maintain confidentiality.[49]
The dispute was between Esso and Australian
Minister holding the portfolio of Energy and Minerals.[50]
While Esso had began the arbitration against the public utility companies, the
minster argued that there was no public duty upon him to supervise any
government public utility services, including the rates relating to oil
supplies but he merely had a right to conduct inspection of documentations
submitted during the proceedings. The primary contention put forth by Esso was
that all the documents presented before the arbitral tribunal were intended to
be confidential and the Minister contended that the same was not an obligation.[51]
The High Court relied on expert opinions of various scholars in the field of
International Arbitration, it arrived at the conclusion that there was no
confidentiality and the Minister’s exercise of access was justified.[52]
While analysing the consequences of the Esso judgement, Patrick Neill in 1996, commented that:
“If
some Machiavelli were to ask me to advise on the best method of driving
international commercial arbitration away from England, I think that I would
say that.... The second-best method-but the two boats are only separated by a
canvas-would be for the House of Lords to overthrow Dolling-Baker and to
embrace the majority judgment of the High Court of Australia in Esso/BHP. This
would be to announce that English law no longer regarded the privacy and
confidentiality of arbitration proceedings (using that term in the broadest
sense) as a fundamental characteristic of the agreement to arbitrate. Lawyers
and businessmen in France, Germany, Switzerland and in the countries of the
Commonwealth and elsewhere would take note and there would be a flight of
arbitrations from this country to more hospitable climes."[53]
(F) ALI SHIPPING v. SHIPYARD ‘TROGIR’
In December 1997, the English Court of Appeal in
the case of Ali
Shipping followed up and clarified
the deviation from previously accepted rule of common law, in the case of Esso.[54]
In this particular case, the rule of Dolling-Baker case was reaffirmed and the principle of implicit
duty of confidentiality was recognised as an essential rule of International
commercial Arbitration.
The Plaintiff, approached the tribunal regarding
the violation of a provision of contract between Ali Shipping and Shipyard
Trogir.[55]
The Arbitral Tribunal declared an award in favour of the plaintiff.
Subsequently, the Respondent entered into an arbitration proceeding with the
Ali’s sister companies. In this arbitration, the Respondent request for
documents from previous arbitration to be produced along with the other
required documents.[56]
The Respondent contended that the production of such documents was essential to
prove the merits of the case. An injunction prohibiting the same was obtained
by Ali Shipping on the ground that such documents could not be produced due to
the duty to maintain confidentiality of the same.
The key facts which led to various complications of
the case were as follows, firstly all the sister companies and Ali Shipping was
owned by one single individual who owned the parent company. Secondly, the
companies were all represented by the same lawyers. Thirdly, all the contracts
under consideration were negotiated by the same set of people. And lastly,
Shipyard Trogir requested for disclosing documents to the tribunal and not to
the strangers.[57]
The Court in this case observed that:
“It
seems to me that, in holding as a matter of principle that the obligation of
confidentiality (whatever its precise limits) arises as an essential corollary
of the privacy of arbitration proceedings, the Court is propounding a term
which arises 'as the nature of the contract itself implicitly requires' . . . a
clear distinction is to be drawn between the search for an implied term
necessary to give business efficacy to a particular contract and the search,
based on wider considerations, for a term which the law will necessarily imply
as a necessary incident of a definable category of contractual relationship. In
my view an arbitration clause is a good example of the latter type of implied term.”[58]
It
was further observed by the Court that:
“Are
there good reasons why that principle should not apply or, put another way,
should a further exception be created to the confidentiality rule, simply
because the parties to whom disclosure is contemplated are in the same
beneficial ownership and management as the complaining party? I do not think
so. I say that for two particular reasons. First, whatever the position in this
case, it is possible to envisage a situation where, despite the feature of common
beneficial ownership between them, one entity may wish to keep private from
another the details of materials generated in an earlier arbitration. Second,
where the problem arises in relation to disclosure in later proceedings, to
propound such an exception is to leave out of account that (as appears to be
the position in this case) the real interest of the objecting party is to
withhold disclosure of such materials from the subsequent decision maker. In
this context, the latter is the 'third party stranger' in respect of disclosure
to whom the objecting party seeks protection.”[59]
(G)
TRADE FINANCE INC. v. BULGARIAN FOREIGN TRADE BANK LTD. (BULBANK)
The
A.I. Trade Finance Inc. was sanctioned by a Court of Appeal at Sweden, which
reversed a Court Decision of Stockholm City for the publication of an Arbitral
Award.[60] The principle of implicit
obligation of confidentiality was disregarded and a new doctrine called as the
“duty of loyalty” doctrine was formulated.[61] The Court also drew a
line of difference between various stages of an arbitration proceedings such as
the evidence or the disclosing of relevant facts and circumstances. [62] As noted by the Court:
“It is likely in many
cases that the making public of information in arbitral proceedings could be
viewed as a breach of the duty of good faith imposed on the parties in relation
to each other. In this assessment, great importance should be attached to what
kind of information is made public. Thus it is, for example, likely that
information touching on the operations of the parties or its explanation of the
action in the arbitration dispute may normally be regarded as more worthy of
protection than information that an arbitration between the parties is in
progress or information that concerns purely procedural issues of a general
nature. Furthermore, it should be taken into account, inter alia, whether there
was an acceptable reason for the publicising, to what extent the other party
has been caused.[63]
CONCLUSION
Confidentiality
exists at the core of arbitration proceedings. The principle confidentiality
can be accorded to the arbitration agreement in three fold manner. Firstly by virtue of the principle of
party autonomy , the parties can draft a confidentiality agreement at arm’s
length or adopt a standard confidentiality clause.
Secondly the
party can incorporate the institutional rules that contain obligations of
confidentiality as their lex arbitri or
lex curae and tailor to suit their
specific needs keeping in mind that there is no derogation from mandatory
principle of lex arbitri for instance principle of equal treatment.
Thirdly a
reliance can be placed on the inherent nature of confidentiality emanating from
the innate privacy of arbitral proceedings.
Though
the manner conferring the duty of confidentiality can be spelled out in the
arbitral agreement the scope of such duty remains to be a contentious in terms
of ‘ration personae’ i.e. to whom can
such duty be bestowed upon and the information which can be protected under
such a duty.
Though
there exists a obligation of confidentiality on the legal counsels due to the
application of work –product doctrine which subsequently makes their
interaction between the parties privileged.
However
the scope of the duty on legal counsel in light of his communications with
third parties connected to the arbitration for instance part appointed expert
falls beyond the ambit of such a duty. Institutional Rules and Model Law do not
bequeath upon third parties any obligation of confidentiality, however the same
has to be tested against the need to maintain absolute integrity of the
arbitral tribunal and the proceedings.
At
the advent of emerging technologies practices such as ‘hacking’ and ‘leaking’
of information have become common place , leaking of confidential yet truthful
information or an disputed fact is being termed as ‘leaktivism’ and misusing
technology to acquire unpublished confidential information is termed as
‘activism’ .
The
institutional rules and the IBA Guidelines provide wide discretionary power to
the arbitral tribunal , the tribunal has to strike a balance between equality
of treatment which is a mandatory principle and the duty of confidentiality.
The
principle of ‘equality of arms’ includes within its ambit the contours of
procedural fairness. Procedural Fairness brings within realm the right of the
party to fully present its case. In order of the party to fully present its
case its essential that the tribunal include all the material and relevant information
irrespective of the source of such information. The test of reliability and
relevance has to be pitted against the concerns of confidentiality.
It
is also essential to highlight that the rules of evidence in litigation are
stricter as compared to those of arbitration , this lead situation of impasse
where the valid reflexion of finding relevant is pitted against the party’s
need for confidentiality.
There
exists an obvious benefit of publishing arbitral awards for instance not only such publication would
guarantee public accountability but would also in turn augment the quality of
the awards.
The
arbitration community including the luminaries , parties and arbitrators would
have an insight of the on the position taken by the tribunal and the reasoning
adopted by them in regard to contentious issues , thereby helping in reaching a
consensus on such issues.
It would also ensure that not only the arbitrators
but also the experts and parties to the proceedings remain unswerving and
consistent in the position adopted by them on a specific subject matter.
This
would bring much needed precision , transparency and certainty on legal issues
which remain undecided due to inherent lacuna in law. Further it would stop the
parties from adopting a contradictory position due to financial and other such
commercial concerns.
Despite
the obvious benefits of publication there as some blatant disadvantages , the
parties to arbitral tribunal choose the process due to concerns of
confidentiality and innate privacy proceedings.
Publication
of awards would reveal information to the public that parties are reluctant to
disclose due to commercial reasons. Further this would also cause harm to the
reputation of parties and in turn affect their business ventures.
Further
more relevant case laws and institutional rules remain divided on this issue,
some institutional rules state that award should remain confidential until the
party explicitly consent to them while the others mandate publication of award
until parties out rightly object to the same , whereas some rules have not
chosen to address this lacuna in law and have shifted the burden to the
drafters of the contract to decide upon the issue based on principle of party
autonomy.
Therefore it is essential
to strike a balance between considerations of transparency which push for
publication against concerns for confidentiality which favour the
non-publication. Furthermore the eventual publication during the stage of
enforcement create a situation of distress to the parties , therefore it is
essential to carve out categorical situations which would warrant publication
of such awards , this will give parties much needed clarity
[1]
2GARY B. BORN, INTERNATIONAL
COMMERCIAL ARBITRATION 2780 (2014); NIGEL BLACKABY ET AL., 6REDFERN AND HUNTER ON INTERNATIONAL
ARBITRATION 124 (2015).
[2]
Gabriele Ruscalla, Transparency in InternationalA rbitration:
Any (Concrete) Need to Codify the
Standard?, 3(1) GRONINGEN J. NT'L L. 1, 8
(2015).
[3] Hong-Lin Yu & Belen Olmos
Giupponi, The Pandora's Box Effects Under
the UNCITRAL Transparency Rules, J. BUS. L. 347 (2016)
[4] RUSCALLA , supra Note 2.
[5] Hong-Lin Yu & Belen Olmos
Giupponi, The Pandora's Box Effects Under
the UNCITRAL Transparency Rules, J. BUS. L. 347 (2016)
[6] KYRIAKI NOUSSIA, CONFIDENTIALITY IN
INTERNATIONAL COMMERCIAL ARBITRATION: A COMPARATIVE ANALYSIS OF THE POSITION
UNDER ENGLISH, US, GERMAN AND FRENCH LAW, 27 (1st ed. 2010).
[7] Christoph Henkel, The Work-Product Doctrine as a Means toward
a Judicially Enforceable Duty of Confidentiality in International Commercial
Arbitration, 37 N.C. J. OF INT'L L. 1059, 1060 (2012).
[8] Matthew Carmody, Overturning the Presumption of
Confidentiality: Should the UNCITRAL Rules on Transparency be applied to
International Commercial Arbitration?, 19 INT'L TRADE & Bus. L. REV.
96, 157 (2016).
[9]
NOUSSIA , supra Note 6.
[10] Urban
Box Office Network v. Interfase Managers, No. 01 Civ. 8854, 2004 WL 2375819 (S.D.N.Y. Oct. 21,
2004) ; Esso Australia Resources Ltd. v.
Plowman (1995) 128 ALR 391 (Austl.).
[11]
HENKEL, supra Note 7.
[12] Michael Fesler, The Extent of Confidentiality in
International Commercial Arbitration, 78(1) ARB. 48, 49 (2012).
[13]
NOUSSIA , supra Note 6.
[14] Quentin Loh Sze On Sc, Edwin Lee
Peng Khoon, Confidentiality in
Arbitration: How far does it extend?, 2007, Singapore Acadamy of Law, p.
64.
[15] Pryles, Michael, The Leading Arbitrators Guide to
International Arbitration, Confidentiality (Chapter 19), ed. by Lawrence W.
Newman and Richard D. Hill, 2004, Juris Publishing Inc., p. 416
[16] Id.
[17] Confidentiality
in Arbitration, a presentation by Adam Robb, at 39 Essex Street, Wednesday 5th
May 2004, at http://www.39essex.co.uk/resources/publications.php
(2009-12-17)
[18] Arbitration Rules of the London
Court of International Arbitration of 1998.
[19] Id.
[20] Id.
[21] Id.
[22] Adrian Winstanley, Conferences: LCIA Rules Conference at King's College
London, 1(6) INT'L ARB. L. REV. n.89 (1998).
[23]
Article 30 ,Arbitration Rules
of the London Court of International Arbitration of 1998
[24]
WINSTANLEY , supra Note 22.
[26] Avinash Pooroye& Ronan Feehily
, Confidentiality and Transparency in International Commercial Arbitration:
Finding the Right Balance, Harvard Negotiation Law Review.
[27] KYRIAKI NOUSSIA, CONFIDENTIALITY
IN INTERNATIONAL COMMERCIAL ARBITRATION: A COMPARATIVE ANALYSIS OF THE POSITION
UNDER ENGLISH, US, GERMAN AND FRENCH LAw, 27 (1st ed. 2010).
[28] G.A. Res. 65/22, art. 34(5)
(August 15, 2010).
[29]
Comm'n o Int'l Trade Law, Rep. on the Work of Its Twenty-Ninth Session,
§ 31, U.N. Doe. A/51/17 (1996).
[30] Judgment of 18 Feb. 1986, 1986
Revue DE L'ARBITRAGE 583, Iscussed in
Jan Paulsson & Nigel Rawding, The Trouble iwith
('o'hidentialitY, I I ARB. IN'L
303, 312 (1995); Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
(2001).
[31] Judgment of 18 Feb. 1986, 1986
Revue DE L'ARBITRAGE 583, Iscussed in
Jan Paulsson & Nigel Rawding, The Trouble iwith
('o'hidentialitY, I I ARB. IN'L
303, 312 (1995); Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
(2001).
[32] Judgment of 18 Feb. 1986, 1986
Revue DE L'ARBITRAGE 583, Iscussed in
Jan Paulsson & Nigel Rawding, The Trouble iwith
('o'hidentialitY, I I ARB. IN'L
303, 312 (1995); Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
(2001).
[33] Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
(2001).
[34] See Charles S. Baldwin, IV,
Protecting Confidential and Proprietary
Commercial Information in International Arbitration,
31 TEX. INT'L L.J. 451, 456
n.21 (1996)
[35] 118F.R.D.at351.
[36] Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
(2001).
[37] 118F.R.D.at35; Alexis C. Brown,
Presumption Meets Reality: An Exploration of the Confidentiality Obligation in
International Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
1.
[38] See Charles S. Baldwin, IV,
Protecting Confidential and Proprietary
Commercial Information in International Arbitration,
31 TEX. INT'L L.J. 451, 456
n.21 (1996); Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
[39] 1 W.L.R. (Eng. C.A. 1990); Alexis
C. Brown, Presumption Meets Reality: An Exploration of the Confidentiality
Obligation in International Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969
.
[40] Id.
[41] 1 W.L.R. (Eng. C.A. 1990) at
1213-14; Alexis C. Brown, Presumption Meets Reality: An Exploration of the
Confidentiality Obligation in International Commercial Arbitration, 16 Am. U.
Int'l L. Rev. 969.
[42] 2 Lloyd's Rep. 243 (Q.B. 1993);
Alexis C. Brown, Presumption Meets Reality: An Exploration of the
Confidentiality Obligation in International Commercial Arbitration, 16 Am. U.
Int'l L. Rev. 969.
[43] Id.
[44] Id.
[45] Id.
[46] 2 Lloyd's Rep. 243 (Q.B. 1993);
Alexis C. Brown, Presumption Meets Reality: An Exploration of the
Confidentiality Obligation in International Commercial Arbitration, 16 Am. U.
Int'l L. Rev. 969.
[47] 128 A.L.R. 391 (1995); 11 ARB.
INT'L 3, 231 (1995); Alexis C. Brown, Presumption Meets Reality: An Exploration
of the Confidentiality Obligation in International Commercial Arbitration, 16
Am. U. Int'l L. Rev. 969.
[48]
Id.
[49] 11 ARB. I\T'L 3, 231; Alexis C.
Brown, Presumption Meets Reality: An Exploration of the Confidentiality
Obligation in International Commercial Arbitration, 16 Am. U. Int'l L. Rev.
969.
[50] Id.
[51]
Id.
[52] 128 A.L.R. at 404; Alexis C.
Brown, Presumption Meets Reality: An Exploration of the Confidentiality
Obligation in International Commercial Arbitration, 16 Am. U. Int'l L. Rev.
969.
[53] Patrick Neill QC, Confidentiality
in .Alrbatrnon, 12 ARB. I\T'L 287, 316-17
(1996); Alexis C. Brown, Presumption Meets Reality: An
Exploration of the Confidentiality Obligation in International Commercial
Arbitration, 16 Am. U. Int'l L. Rev. 969.
[54] 1 Lloyd's Rep. 643 (Eng. C.A.
1998); Alexis C. Brown, Presumption Meets Reality: An Exploration of the
Confidentiality Obligation in International Commercial Arbitration, 16 Am. U.
Int'l L. Rev. 969.
[55] Id.
[56] 1 Lloyd's Rep. 643 (Eng. C.A.
1998) at 646; Alexis C. Brown, Presumption Meets Reality: An Exploration of the
Confidentiality Obligation in International Commercial Arbitration, 16 Am. U.
Int'l L. Rev. 969.
[57] Id.
[58] Id.
[59] Id. at 652-53; Alexis C. Brown, Presumption
Meets Reality: An Exploration of the Confidentiality Obligation in
International Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969.
[60] The Stockholm City Court's
decision was considered "extreme." See C.
Partasides, Bad News from Stockholm: Bulbank and
confidentiality ad absurdam,
13 MEALEY'S INT'L ARB. REP. 21 (1998); Alexis C.
Brown, Presumption Meets Reality: An Exploration of the Confidentiality
Obligation in International Commercial Arbitration, 16 Am. U. Int'l L. Rev.
969.
[61] Tatsuya Nakamura,
Confidentialii" in .4rbitration; SI EA Court ol .Ippeal
Decision-Is It Good Newsf'om Stockholm?. 14 MlEALEY'S
INT'L ARB. RLP. 24
(June 1999); see also REDFERN & HUNTER. LA%% %\D
PRACTICE (Of
INTERNATIONAL COMMERCIAL ARBITRATION 23. 45 (2d ed.
1991) (supporting the
notion of arbitration as a private process); DOMKE
COMM ARBITR \TiO\ 4.01, 4.06 (noting the privacy of proceedings as an advantage
of arbitration); SUTTON ET
AL., RUSSELL ON ARBITRATION 162 (2 1 st ed. 1997)
(citing confidentiality as a determinative
factor in choosing to arbitrate);
BERNSTEIN ET AL., HANDBOOK OF
ARBITRATION PRACTICE 5 (3d ed. 1998) (listing the
potential advantages of arbitration); Alexis C. Brown, Presumption Meets
Reality: An Exploration of the Confidentiality Obligation in International
Commercial Arbitration, 16 Am. U. Int'l L. Rev. 969.
[62] id
[63]
Id.