International Commercial Arbitration Discussion 2022

Running head: INTERNATIONAL COMMERCIAL ARBITRATION
INTERNATIONAL COMMERCIAL ARBITRATION
Name of Student
Name of University
Author Note

INTERNATIONAL COMMERCIAL ARBITRATION1
Introduction
The term Alternative Dispute Resolution can be described as any process by way of
which disputes are settled by two or more parties outside the setting of a court1. The methods
of Alternate Dispute Resolution can be observed as including negotiation, arbitration,
conciliation, mediation and neutral evaluation2. Arbitration can be defined as the legal modus
operandi used for resolving disputes between two or more parties without any kind of
intervention of the courts. The process of Arbitration is often seen as referring to methods of
reserved justice ruled by the agreement of the parties who decide to be removing their
argument from the authority of State courts3. The process of arbitration includes the parties in
dispute to be referring their problems to one or more individuals known as arbitrators or the
arbitral tribunal who are seen as taking the decision relating to the resolution of the dispute4.
It can be considered as one of the most formal substitute to the process of litigation. The main
difference that can be observed between arbitration and other forms of ADR is that the
process of arbitration is much quicker in comparison to other forms of alternate dispute
resolution. One of the major advantages in arbitration includes the process to be faster than
the litigation processes taking place in the court5. The process of arbitration can be observed
as to be inexpensive and further seen as to be sinuous for business dealings. The process of
arbitral actions and an arbitral award are normally seen as to be non-public, and can be made
confidential.
1 Dragos, D.C. and Neamtu, B. eds., 2014. Alternative dispute resolution in European administrative law.
Springer Berlin Heidelberg.
2 Blake, S.H., Browne, J. and Sime, S., 2016. A practical approach to alternative dispute resolution.
Oxford University Press.
3 Born, G.B., 2015. International arbitration: cases and materials. Wolters Kluwer Law & Business.
4 Rubino-Sammartano, M., 2014. International arbitration law and practice. Juris Publishing, Inc..
5 Schwebel, S.M., Sobota, L. and Manton, R., 2020. International arbitration: three salient problems (Vol. 24).
Cambridge University Press.

INTERNATIONAL COMMERCIAL ARBITRATION2
Privacy andConfidentiality in Arbitration
The expressions ‘Privacy’ and ‘Confidentiality’ can be seen as to be used in
arbitration identically up until the last half of 20th century. The term ‘Privacy’ can be defined
in context to the process of arbitration in the way that any third party will have no right for
attending arbitral sessions and trials6. The term ‘Confidentiality’, on the other hand, discusses
about the withholding of particular evidence from the public7. One of the major motives for
the preference of the process of arbitration over the methods in lawsuit is for the reason of the
privacy and confidentiality that can be maintained in context to the proceedings and the
award. It can be observed as upholding the self-sufficiency of the parties and in furtherance
averting them from any kind of undesirable attention.8 For the past several years, partakers in
the process of arbitration were seen as presuming that arbitration process was confidential.9
Although neither statutes; decisions of the judiciaries, rules mentioned by way of the
procedurals or treatises; nor the contracts could be seen as being able to define the outlines
and restrictions of the importance of confidentiality in arbitration in a detailed or inclusive
manner, yet there had been an extensive implicit recognition of a comprehensive principle in
confidentiality10. This presumption in regard to the issue of confidentiality in arbitration
processes have been questioned in some of the highly publicized decisions during the 1990s
which was further seen as raising many debates among the masses. There have been many
legislatives that many countries can be observed as adopting on the provisions relating to
confidentiality in arbitration. The issue can further be seen as being subject to discussion in
many verdicts of the litigation courts as well as of the tribunals and other institutions in
6 Trakman, L.E., 2014. Confidentiality in international commercial arbitration. Arbitration International, 18(1),
pp.1-18.
7 Hogaş, D.L., 2014. What Does Confidentiality Inside The Arbitration Mean?. Revista Românească pentru
Educaţie Multidimensională, 6(1), pp.29-38.
8 Foyle, A., 2016. Redfern and Hunter on International Arbitration.
9 Poorooye, A. and Feehily, R., 2016. Confidentiality and transparency in international commercial arbitration:
finding the right balance. Harv. Negot. L. Rev., 22, p.275.
10 Moses, M.L., 2017. The principles and practice of international commercial arbitration. Cambridge
University Press.

INTERNATIONAL COMMERCIAL ARBITRATION3
arbitrations. One of the principal motives for considering arbitration to be the favoured
possibility for dispute resolution method in commercial cases has been confidentiality. This
presumption was raised by way of the agreement of arbitration that can be considered as
private contractual procedure. This notion was rejected by the courts in Australia and Sweden
in the 1990s when they refused to accept any inferred onus of confidentiality in the methods
in arbitration. As example it can be seen that in the case Bulgarian Foreign Trade Bank Ltd.
v. A.I.. Trade Finance Inc. (Swedish Supreme. Court), 27 Oct. 2000, Case no. T 1881-99 x
United States11 the Supreme Court in Sweden rejected the notion of any inferred onus of
confidentiality in the methods in arbitration privately under any provisions of the UN-ECE
rules or the domestic laws in Sweden12. In furtherance to this, the Australian High Court in
their judgment in Esso Australia Resources v Plowman (1995) 183 CLR 1013 were seen as
providing that the trials in reserved arbitration cannot cover the entire matters of revealed
material and other such documents in a confidential way as the concept of total
confidentiality is non-existing in Australia. The precedents to the rules for the defence
towards the confidentiality was observed to be extending to those cases only in which the
parties themselves had the intention for keeping certain facts reserved. This in turn was
observed as leading to an application of the principle of confidentiality to arbitration
processes in a non-uniform manner globally.14 For elucidating the matter, quite a few
jurisdictions had been observed to establish certain new laws and legislations for arbitration
and several institutions in arbitration was also seen as amending the rules by which they had
been guided.15 Although many of the countries and figures of arbitration were seen as
informing that implicit confidentiality would not be possible for presumption in the
11 Bulgarian Foreign Trade Bank Ltd. v. A.I.. Trade Finance Inc. (Swedish Supreme. Court), 27 Oct. 2000, Case
no. T 1881-99 x United States
12 van den Berg, A.J., 2014. Should the Setting Aside of the Arbitral Award be Abolished?. ICSID
Review, 29(2), pp.263-288.
13 Esso Australia Resources v Plowman (1995) 183 CLR 10
14 Anderson, R.G., 2017. Nigel Blackaby and Constantine Partasides QC, with Alan Redfern and Martin Hunter
(eds), Redfern and Hunter on International Arbitration.
15Rubino-Sammartano, M., 2014. International arbitration law and practice. Juris Publishing, Inc..