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An exploration of the Confidentiality Obligation in the light of Transparency


 

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.

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