Disclosure Restrictions in International Arbitration: Whose Confidentiality Is It Anyway?
In their International Litigation column, Lawrence W. Newman and David Zaslowsky discuss the various way that parties to international arbitrations may be restricted by law and institutional rules, as well as their own agreements, in the use they may of make of awards and other information emanating from their proceedings. They suggest that careful consideration be given before accepting general rules that may limit later use or access to such material.
January 26, 2022 at 12:15 PM
11 minute read
One of the aspects of international arbitration that is much discussed in published commentaries is the confidentiality of arbitral proceedings—what it consists of, the extent to which it is or should be imposed, by whom, and who should be affected. In this article, we explore the extent to which parties may be advertently or inadvertently bound by confidentiality restrictions limiting their present or subsequent disclosure of information, including awards, from arbitration proceedings in which they are involved.
Over the past several decades, more and more major international disputes have been resolved through arbitration. It is likely that, earlier, such disputes would have been heard in courts, resolved through negotiation or even not pursued all. Businesses and investors have been drawn to international arbitration as a way of avoiding local courts and their unfamiliar procedures and influences, and replacing them with tribunals whose members they have had a hand in selecting. But they are also reported to have been drawn to arbitration for reasons of the privacy and confidentiality of the proceedings, which the parties may prefer over the wide-open process in U.S. and other courts, where case filings may be available electronically and hearings are presumptively can be open to the public. Although court proceedings in some other countries do not partake of this kind of openness, judgments in civil cases are generally available to the public and, most importantly, the parties are not legally restricted as to what they may communicate to others concerning the proceedings (in most circumstances).
The meaning of confidentiality in international arbitration varies. Institutional rules generally provide that hearings are private, excluding nonparticipating persons and that the deliberations of arbitrators are kept secret. Also, the rules of administering institutions invariably include provisions that restrict their administrative staff and the arbitrators from disclosing information concerning proceedings and their outcome.
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