Question
There should be an implied duty of confidentiality in international commercial arbitration
(i.e., the default position should be that arbitral proceedings are confidential unless the parties
choose otherwise)
Answer
Introduction
Confidentiality in arbitration is broadly defined as the duty not to disclose any information
arising from the proceedings, the decision, the award, or even the existence of the arbitration.
Confidentiality should be distinguished from privacy, which is the notion that proceedings
should be conducted in camera, and outsiders to the dispute should not be present. Whilst
there is consensus in favour of implied privacy, an implied duty of confidentiality lacks
widespread agreement. This essay will advance the argument that whilst confidentiality
should remain in international commercial arbitration, it should be an option not a
presumption, and therefore there should not be an implied duty of confidentiality (‘implied
duty’). Global approaches to an implied duty will first be outlined, before contending that an
implied duty both discourages transparency, and creates ambiguity as to the precise scope of
confidentiality. Accordingly, the alternative to an implied duty should be the default
publication of anonymised awards which can be avoided through clear confidentiality
clauses, which would protect the interests of parties whilst encouraging development of law.
The global majority: averse to an implied duty
It is clear that there is no international consensus as to whether there should be an implied
duty in international commercial arbitration. The English courts have consistently
acknowledged an implied duty since Dolling-Baker. This was reaffirmed in Hassneh
Insurance where the implied duty was reasoned as a logical extension of privacy. Whilst
England is not alone in upholding an implied duty, and similar approaches are adopted in
New Zealand, France and, Scotland, it would be incorrect to suggest that this view amounts
to a global consensus, when in reality an implied duty is increasingly becoming a rarity.
Australia have adopted a position in stark contrast to England, not considering confidentiality
to be an extension of privacy, and determining that confidentiality is not ‘an essential
attribute’ of commercial arbitration. Similar attitudes are prevalent in the US, who have
refused to recognise an implied duty. This approach transcends common law jurisdictions;
Sweden and Norway both stipulate that parties must include a confidentiality clause if they
seek confidentiality. The line of thinking amongst jurisdictions refusing an implied duty is
clear: privacy and confidentiality are separate concepts; the presumption of the former does
not, and should not, give rise to the presumption of the latter.
A shift towards transparency
There should be an implied duty of confidentiality in international commercial arbitration
(i.e., the default position should be that arbitral proceedings are confidential unless the parties
choose otherwise)
Answer
Introduction
Confidentiality in arbitration is broadly defined as the duty not to disclose any information
arising from the proceedings, the decision, the award, or even the existence of the arbitration.
Confidentiality should be distinguished from privacy, which is the notion that proceedings
should be conducted in camera, and outsiders to the dispute should not be present. Whilst
there is consensus in favour of implied privacy, an implied duty of confidentiality lacks
widespread agreement. This essay will advance the argument that whilst confidentiality
should remain in international commercial arbitration, it should be an option not a
presumption, and therefore there should not be an implied duty of confidentiality (‘implied
duty’). Global approaches to an implied duty will first be outlined, before contending that an
implied duty both discourages transparency, and creates ambiguity as to the precise scope of
confidentiality. Accordingly, the alternative to an implied duty should be the default
publication of anonymised awards which can be avoided through clear confidentiality
clauses, which would protect the interests of parties whilst encouraging development of law.
The global majority: averse to an implied duty
It is clear that there is no international consensus as to whether there should be an implied
duty in international commercial arbitration. The English courts have consistently
acknowledged an implied duty since Dolling-Baker. This was reaffirmed in Hassneh
Insurance where the implied duty was reasoned as a logical extension of privacy. Whilst
England is not alone in upholding an implied duty, and similar approaches are adopted in
New Zealand, France and, Scotland, it would be incorrect to suggest that this view amounts
to a global consensus, when in reality an implied duty is increasingly becoming a rarity.
Australia have adopted a position in stark contrast to England, not considering confidentiality
to be an extension of privacy, and determining that confidentiality is not ‘an essential
attribute’ of commercial arbitration. Similar attitudes are prevalent in the US, who have
refused to recognise an implied duty. This approach transcends common law jurisdictions;
Sweden and Norway both stipulate that parties must include a confidentiality clause if they
seek confidentiality. The line of thinking amongst jurisdictions refusing an implied duty is
clear: privacy and confidentiality are separate concepts; the presumption of the former does
not, and should not, give rise to the presumption of the latter.
A shift towards transparency
