International Commercial Arbitration: Confidentiality in Arbitration

This report delves into the realm of International Commercial Arbitration, exploring the critical aspect of confidentiality. It begins by defining Alternative Dispute Resolution (ADR) and arbitration, highlighting the advantages of arbitration, particularly its speed and confidentiality. The report emphasizes the interplay between privacy and confidentiality in arbitration, discussing how confidentiality is a primary reason for choosing arbitration over litigation. It examines the evolving legal landscape surrounding confidentiality, including the varying approaches of different countries and the exceptions to the rules of confidentiality. The report provides insights into the position of confidentiality in arbitration, covering its acceptance and rejection in different jurisdictions, and the impact of different laws and rulings. The report also explores the exceptions to privacy and confidentiality, including consent, court orders, and the protection of legitimate interests, and concludes with an overview of the key takeaways and implications of confidentiality in international commercial arbitration.

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

1INTERNATIONAL COMMERCIAL ARBITRATION
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.

2INTERNATIONAL COMMERCIAL ARBITRATION
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.

3INTERNATIONAL COMMERCIAL ARBITRATION
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..

4INTERNATIONAL COMMERCIAL ARBITRATION
proceedings of the arbitration, many other nations can be observed as following the old-
fashioned method of imposing a duty on either the arbitrators, or the parties or to
both. Although in the English Arbitration Act 199616 there is no mention on confidentiality,
yet three rules have been imposed by the legislation. The first rule is that the proceeding in
arbitration should be private. The second rule provides for the inferred confidentiality in
every proceeding in arbitration. The Third rule can be seen as providing exception to the
inferred confidentiality rule. The exceptions to the rule of inferred confidentiality include the
orders by the courts, consent by the parties, interests of the public and any necessity that
would be considered as reasonable17. These rules were successfully established in the
judgment of the Court of Appeal in their judgment in Ali Shipping Corp v Shipyard Trogir
[1999] 1 W.L.R. 31418. The arbitration laws under the local legislation and Singapore
International Arbitration Centre (SIAC) can be seen as providing for confidentiality in the
proceedings off the court originating from arbitration on the demand of the parties in dispute
in an unambiguous manner.19 The overall responsibility of confidentiality is inferred by way
of the agreement arbitration. In AAY and others v. AAZ [2009] SGHC 142 20it had been
opined by the High Court of Singapore that not publishing the identity of the parties in
dispute could be considered as amounting to fortification of confidentiality in the proceedings
in arbitration. The Hong Kong Arbitration Ordinance (HKAO) can be seen as specifically
making it obligatory for having confidentiality in proceedings in arbitration since the year
2011. The Hong Kong Arbitration Ordinance can further be seen as making it mandatory for
not releasing any data relating to arbitral process21. In case of non-agreement of measures in
16 English Arbitration Act 1996
17 Drličková, K., 2016. Legal Basis of Parties ‘Duty to Maintain Confidentiality in International Commercial
Arbitration. COFOLa inTernaTiOnaL 2016, p.21.
18 Ali Shipping Corp v Shipyard Trogir [1999] 1 W.L.R. 314
19 Newman, L.W. and Hill, R.D., 2014. THE LEADING ARBITRATORS’GUIDE TO INTERNATIONAL
ARBITRATION.
20 AAY and others v. AAZ [2009] SGHC 142
21 Wright Nelson, J., 2014. International commercial arbitration in Asia: Hong Kong, Australia and India
compared. Asian International Arbitration Journal, 10(2), pp.105-136.

5INTERNATIONAL COMMERCIAL ARBITRATION
confidentiality, legislative limitations are seen as applying. Conversely, in the jurisdictions
like the United States and Australia any kind of inferred confidentiality has been rejected.
Nevertheless the Court of Appeals in the United States are seen to be affirming that any query
on the nature of the application of confidentiality in the process of arbitration would be
considered as a question on the exact nature of the practice, and it would further be flawed to
believe that all data presented in the course of the process of arbitration would be remaining
in confidentiality. 22 The UNCITRAL and Stockholm Chamber of Commerce (SCC) Rules
are observed to be having a restricted part, only providing for confidentiality of the awards
and private trials.23 The ICC Rules Appendix I article 6, and Appendix II article 1 can be seen
as imposing duties towards the arbitrators and the staff working for the International Court of
Arbitration24. However no such duty is imposed on the parties to the arbitration by this rule.
The ICDR rules of the AAA article 37.1 can be seen as imposing duties towards the
arbitrators and the Administrator.25
Exceptions to privacy and confidentiality
There is a lack in specific and uniform provision in regard to the importance of
confidentiality in the proceedings in arbitral tribunals26. Even the UNCITRAL Model Code
on International Commercial Arbitration can be seen as abstaining from placing down any
provision on the debated subject of confidentiality and is further seen to be leaving the matter
to the parties in dispute or on the rules of arbitration that have been selected by the parties.27
Different countries can be seen as having diverse tactics for ensuring confidentiality,
22 Oglindă, B., 2015. The principle of confidentiality in arbitration. Application and limitations of the
principle. Perspectives of Business Law Journal, 4(1), pp.57-64.
23 Marian, C., 2015. SCC (Stockholm Chamber of Commerce). Getting the Deal Through-Arbitration.
24 Baigel, B., 2014. The Emergency Arbitrator Procedure under the 2012 ICC Rules: A Juridical
Analysis. Journal of international arbitration, 31(1), pp.1-18.
25 Appel, M., 2014. New International Rules. Dispute Resolution Journal, 69(2), p.III.
26 Meng, M., 2016. The Weakening of Confidentiality in International Commercial Arbitration. Beijing
Arbitration Quarterly, (4), p.13.
27 Strong, S.I., 2014. Beyond International Commercial Arbitration-The Promise of International
Commercial Mediation. Wash. UJL & Pol'y, 45, p.10.

6INTERNATIONAL COMMERCIAL ARBITRATION
although certain countries like to deliberate that confidentiality is an inferred perception
contained by arbitration; conversely there are many countries who can be seen as differing
from this outlook. For example in the Bulgarian Foreign Trade Bank Ltd. v. A.I.. Trade
Finance Inc. (Swedish Supreme. Court), 27 Oct. 2000, Case no. T 1881-99 x United States28,
it was held by the Supreme Court of Sweden that UNECE rules are not
observed to be forbidding revelation of the outcome of the proceedings in
arbitration and Swedish regulations are not seen as making proceedings
of arbitration surreptitious except that there has been an precise mention
in the agreement that there is a requirement for the existence of a
confidentiality division. United States can also be seen as rejecting any
implied confidentiality in arbitration. In their judgment in United States v. Panhandle
Eastern Corp., 118 F.R.D. 346 (1988)29 it was held by the judges that no implicit
confidentiality will exist unless all the parties are in agreement towards it.
In furtherance to this, the court also stated that no obligation is held by
way of the Rules placed down by ICC for maintaining confidentiality. The
countries which accept the concept of implied confidentiality can also be
seen as imposing certain limitations to the rules.30 One of the major
exceptions to the confidentiality in the process of arbitration is the
express or implied consent given by the parties. This means that if the
consent of the parties in dispute is obtained then the matters can be
disclosed to the public. The second exception includes the orders by the
court. If in any circumstance the court deems fit that for the benefit of the
parties or for the benefit of the public or even for fairly disposing the case
28 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
29 United States v. Panhandle Eastern Corp., 118 F.R.D. 346 (1988)
30 Anderson, R.G., 2017. Nigel Blackaby and Constantine Partasides QC, with Alan Redfern and Martin Hunter
(eds), Redfern and Hunter on International Arbitration.

7INTERNATIONAL COMMERCIAL ARBITRATION
the matter needs to be disclosed to the public, then it can give such
orders as necessary. Another exception is when it is reasonably and
absolutely necessary for the details related to the case to be disclosed for
the protection of the legitimate interests of the party. This might as well
be seen as including preserving a different claim, or for bringing an
indemnity claim. Another exception is for preserving the ‘interest of the
justice’. This was discussed in the recent judgment in Teekay Tankers Ltd
v STX 31[2017] EWHC 253. However the exception of interest of the justice
was first referred in the judgment in London & Leeds Estates Ltd v Paribas
Ltd (No.2) [1995] 2 E.G. 13432. These two English Law cases provide that
appellants should always cautiously contemplate on the information
disclosed by them not to both the Court minutes and the proceedings in
arbitration. This is because there is often a risk of the revelation of the
information for the reason of preserving the ‘interest of the justice’.
My position
As confidentiality is a highly debated subject there has been a lack of uniform
jurisdiction and opinion on this subject matter. Many countries can be seen as recognizing the
rights of the parties in dispute to have absolute confidentiality while contradictorily many
countries do not recognize confidentiality in arbitral proceedings. Even the UNCITRAL
Model Code on International Commercial Arbitration can be seen as refraining from placing
down any provision on the debated subject of confidentiality and is further seen to be leaving
the matter to the parties in dispute or on the rules of arbitration that have been selected by the
parties. Following the UNCITRAL Model Code in this matter, my opinion is that the matter
31 Teekay Tankers Ltd v STX [2017] EWHC 253
32 London & Leeds Estates Ltd v Paribas Ltd (No.2) [1995] 2 E.G. 134

8INTERNATIONAL COMMERCIAL ARBITRATION
of the confidentiality in the information of the proceedings should solely be upon the
discretion of the parties.
Conclusion
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 court. 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 courts. 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. However there have been many debates globally over the acceptance of the
importance of confidentiality in the arbitral proceedings. It can be observed that various
nations have various rules and regulations about the issue of the acceptance of confidentiality
in the arbitral proceedings. 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 arbitrations. In this context this paper can be seen
as discussing about the importance of confidentiality in arbitration. In the paper a detailed
discussion has been done on the definition of arbitration, its contrast to other forms of dispute
settlement and the Advantages it has in the resolution of disputes. In the second part of the
essay the importance of confidentiality in arbitration has been discussed. In this context the
International Rules relating to privacy and confidentiality in the arbitration process, the
obligations of the parties and the obligations of the Arbitrators have also been discussed. To

9INTERNATIONAL COMMERCIAL ARBITRATION
discuss these, some case laws have also been used as example. The paper further provides
with the exceptions to privacy and confidentiality.

10INTERNATIONAL COMMERCIAL ARBITRATION
Bibliography
Books and Journals
Anderson, R.G., 2017. Nigel Blackaby and Constantine Partasides QC, with Alan Redfern
and Martin Hunter (eds), Redfern and Hunter on International Arbitration.
Appel, M., 2014. New International Rules. Dispute Resolution Journal, 69(2), p.III.
Baigel, B., 2014. The Emergency Arbitrator Procedure under the 2012 ICC Rules: A Juridical
Analysis. Journal of international arbitration, 31(1), pp.1-18.
Blake, S.H., Browne, J. and Sime, S., 2016. A practical approach to alternative dispute
resolution. Oxford University Press.
Born, G.B., 2015. International arbitration: cases and materials. Wolters Kluwer Law &
Business.
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
Dragos, D.C. and Neamtu, B. eds., 2014. Alternative dispute resolution in European
administrative law. Springer Berlin Heidelberg.
Drličková, K., 2016. Legal Basis of Parties ‘Duty to Maintain Confidentiality in International
Commercial Arbitration. COFOLa inTernaTiOnaL 2016, p.21.
Foyle, A., 2016. Redfern and Hunter on International Arbitration.
Hogaş, D.L., 2014. What Does Confidentiality Inside The Arbitration Mean?. Revista
Românească pentru Educaţie Multidimensională, 6(1), pp.29-38.

11INTERNATIONAL COMMERCIAL ARBITRATION
Marian, C., 2015. SCC (Stockholm Chamber of Commerce). Getting the Deal Through-
Arbitration.
Meng, M., 2016. The Weakening of Confidentiality in International Commercial
Arbitration. Beijing Arbitration Quarterly, (4), p.13.
Moses, M.L., 2017. The principles and practice of international commercial arbitration.
Cambridge University Press.
Newman, L.W. and Hill, R.D., 2014. THE LEADING ARBITRATORS’GUIDE TO
INTERNATIONAL ARBITRATION.
Oglindă, B., 2015. The principle of confidentiality in arbitration. Application and limitations
of the principle. Perspectives of Business Law Journal, 4(1), pp.57-64.
Poorooye, A. and Feehily, R., 2016. Confidentiality and transparency in international
commercial arbitration: finding the right balance. Harv. Negot. L. Rev., 22, p.275.
Rubino-Sammartano, M., 2014. International arbitration law and practice. Juris Publishing,
Inc..
Rubino-Sammartano, M., 2014. International arbitration law and practice. Juris Publishing,
Inc..
Schwebel, S.M., Sobota, L. and Manton, R., 2020. International arbitration: three salient
problems (Vol. 24). Cambridge University Press.
Strong, S.I., 2014. Beyond International Commercial Arbitration-The Promise of
International Commercial Mediation. Wash. UJL & Pol'y, 45, p.10.
Trakman, L.E., 2014. Confidentiality in international commercial arbitration. Arbitration
International, 18(1), pp.1-18.

12INTERNATIONAL COMMERCIAL ARBITRATION
van den Berg, A.J., 2014. Should the Setting Aside of the Arbitral Award be
Abolished?. ICSID Review, 29(2), pp.263-288.
Wright Nelson, J., 2014. International commercial arbitration in Asia: Hong Kong, Australia
and India compared. Asian International Arbitration Journal, 10(2), pp.105-136.
Legislations
English Arbitration Act 1996
ICC Rules of Arbitration
ICDR rules of the AAA
Case Laws
AAY and others v. AAZ [2009] SGHC 142
Ali Shipping Corp v Shipyard Trogir [1999] 1 W.L.R. 314
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
Esso Australia Resources v Plowman (1995) 183 CLR 10
London & Leeds Estates Ltd v Paribas Ltd (No.2) [1995] 2 E.G. 134
United States v. Panhandle Eastern Corp., 118 F.R.D. 346 (1988)