Content of the Duty of Confidentiality

Abstract

Defining the content of the duty of confidentiality is no easy task. There is so much that can be included in the content of the duty of confidentiality. Some examples are: the mere existence of the arbitration, the nature of the dispute, the amount in dispute, the status of the case, the names of the parties, the names of counsel, the names of arbitrators, parties’ submissions, fact exhibits, documents produced in response to a request for production of documents, witness statements, expert reports, pleadings, transcripts of hearings, tribunal’s deliberations, the award itself, any details revealing the content of the award, etc.

4.1 Introduction

Defining the content of the duty of confidentiality is no easy task. There is so much that can be included in the content of the duty of confidentiality. Some examples are: the mere existence of the arbitration, the nature of the dispute, the amount in dispute, the status of the case, the names of the parties, the names of counsel, the names of arbitrators, parties’ submissions, fact exhibits, documents produced in response to a request for production of documents, witness statements, expert reports, pleadings, transcripts of hearings, tribunal’s deliberations, the award itself, any details revealing the content of the award, etc.¹

As we have seen in the previous section dealing with the persons subject to the duty of confidentiality, the scope of the duty of confidentiality for most participants of the arbitration proceedings is very broad. It is especially true for persons obtaining information on the arbitration as a result of their professional activity (such as arbitrators, parties’ representatives, members and employees of arbitration institutions).

It is mostly the scope of the parties’ duty of confidentiality that is controversial. For example, legal practitioners and scholars do not agree on whether a party is bound by a confidentiality duty in relation to the disclosure of the existence of an arbitration. Another controversial topic is whether a party should be restricted from using a document that it submitted as an exhibit in the arbitration outside of the arbitration proceedings. We will examine this and other questions in the present section.

First, we will examine the type of information and, in particular, the specific matters and issues which can be subject to the duty of confidentiality (Sect. 4.2). Second, we will analyse which categories of documents exchanged in the course of arbitral proceedings can be subject to the parties’ duty of confidentiality (Sect. 4.3). Third, we will examine the issue of confidentiality regarding arbitral awards and orders (Sect. 4.4). We will mainly focus on the regulation and practices regarding publication of arbitral awards. Finally, we will turn to the issue of the confidentiality in respect of hearings (Sect. 4.5).

4.2 Information Subject to the Duty of Confidentiality

4.2.1 Introduction

The problem regarding disclosure of information, as opposed to disclosure of documents, is that each case is unique. While the categories of potentially confidential documents which can be part of the arbitration record are relatively limited, the number of potentially confidential issues in an arbitration is endless. As we will see, virtually any issue relating to the arbitration proceeding, including the mere fact of the existence of the arbitration proceedings, can be subject to confidentiality. We will therefore examine only some of the issues which can potentially become confidential.

In the present section, we will focus on the kind of information which should not be disclosed as being potentially subject to the duty of confidentiality. We will first examine the issue of confidentiality surrounding the existence of the arbitral proceedings (Sect. 4.2.2). We will then review other potentially confidential matters (Sect. 4.2.3).

4.2.2 Confidentiality of the Existence of the Arbitral Proceedings

In most cases, not many persons know about the start of an arbitration proceeding. This inner circle is usually limited to the parties and their counsel, the relevant arbitration institution, and the arbitrators. May the mere existence of an arbitration proceeding be disclosed to persons not involved in the relevant arbitration proceeding, or even be publicly disclosed? This is a critical issue since the parties quite often would not like the existence of the arbitration to be known by any third party, let alone the general public.

There can be no simple answer to this question, as each case needs to be addressed in context. The answer will depend on the circumstances of each case, but also on the applicable rules and law and on the competent authority which is to rule on the issue. First, we will see that national arbitration laws generally do not regulate the confidentiality of the very existence of arbitration proceedings. Second, we will see that some arbitration rules expressly provide for a confidentiality duty regarding the very existence of arbitration proceedings. Third, we will analyse a few court decisions. These lead to the conclusion that the mere existence of an arbitration can be subject to a duty of confidentiality. Finally, we will see that many legal scholars consider it difficult to impose a strict duty of confidentiality of the existence of arbitration proceedings, given the significant risk of leaks. We think, however, that such a duty should exist as a general rule in order to protect the parties against disclosures that are not justified by any legitimate reasons.

4.2.2.1 National Arbitration Laws

There appear to be virtually no arbitration laws containing express regulations of the confidentiality surrounding the existence of arbitral proceedings. The national reports provided for the Wolters Kluwer Law Chart on Privacy and Confidentiality in Arbitration confirm this.²

There are, however, some arbitration laws which regulate this issue implicitly. For example, Art. 26 of Schedule 1 to the Scottish Arbitration Act provides that confidential information, in relation to an arbitration, means, in particular, any information relating to the dispute and the arbitral proceedings. Depending on how this provision is interpreted, information on the existence of arbitral proceedings can be protected from disclosure by Art. 26.

The fact that there are no statutory provisions on this issue does not mean, however, that the information on the existence of arbitration is not protected by confidentiality. As we will see below, state courts in France and England established, as a general principle, that the very existence of an arbitration is to be kept confidential. In other countries, where state courts have not had a chance to rule on this issue, the absence of relevant case law does not necessarily mean that a duty of confidentiality does not extend to the mere fact that an arbitration is taking place.

4.2.2.2 Arbitration Rules

As compared to national arbitration laws, arbitration rules tend to provide more specific regulation on the issue of confidentiality with regard to the very existence of arbitration proceedings. The provisions of several institutional arbitration rules include specific language on this issue. For example, Art. 22.2 of the ACICA Arbitration Rules provides the following:

The Parties, the Arbitration Tribunal and ACICA shall treat as confidential and shall not disclose to a third party without prior written consent from the parties all matters relating to the arbitration (including the existence of the arbitration), the award, materials created for the purpose of the arbitration and documents produced by another party in the proceedings and not in the public domain except […] (italics added).

SIAC Rules have a similar provision. Thus, Arts 39(1) and 39(3) SIAC Rules provide the following:

39.1 Unless otherwise agreed by the parties, a party and any arbitrator, including any Emergency Arbitrator, and any persons appointed by the Tribunal, including any administrative secretary and any expert, shall at all times treat all matters relating to the proceedings and the Award as confidential.

[…]

39.3 In Rule 39.1, “matters relating to the proceedings” includes the existence of the proceedings, and the pleadings, evidence and other materials in the arbitral proceedings and all other documents produced by another party in the proceedings or the Award arising from the proceedings, but excludes any matter that is otherwise in the public domain. (italics added)

The WIPO Rules go even further by dedicating a specific provision to this issue:

Confidentiality of the Existence of the Arbitration

Article 75

(a) Except to the extent necessary in connection with a court challenge to the arbitration or an action for enforcement of an award, no information concerning the existence of an arbitration may be unilaterally disclosed by a party to any third party unless it is required so by law or by a competent regulatory body, and then only:

(i) by disclosing no more than what is legally required; and

(ii) by furnishing to the Tribunal and to the other party, if the disclosure takes place during the arbitration or to the other party alone, if the disclosure takes place after the termination of the arbitration, details of the disclosure and an explanation of the reason for it.

Notwithstanding paragraph (a), a party may disclose to a third party the names of the parties to the arbitration and the relief requested for the purpose of satisfying any obligation of good faith or candor owed to that third party. (italics added)

In many cases, however, arbitration rules do not regulate confidentiality regarding the mere existence of the arbitration. Thus, the Swiss Rules do not contain such a provision. Based on a literal interpretation of Art. 44 of the Swiss Rules, some commentators consider that the duty of confidentiality does not, in principle, cover the existence of the arbitration. They argue that Art. 44 focuses on the protection of confidentiality of the materials and the outcome of the arbitration, but not of confidentiality of the existence of the proceedings.³

Art. 8 of the Milan Rules imposes a duty of confidentiality regarding the proceedings and the arbitral award. Although this provision does not regulate the specific issue of confidentiality of the existence of arbitral proceedings, a commentator of the Milan Rules opined that the existence of the proceedings should be covered by the scope of Art. 8.⁴

Another example of a provision allowing such an interpretation is Art. 3 of the SCC Rules. It provides that the SCC, the Arbitral Tribunal and any administrative secretary of the Arbitral Tribunal should maintain the confidentiality of the arbitration and the award. One can claim that the confidentiality of the arbitration should cover the existence of the proceedings, but the opposite claim can arguably be made as well.

4.2.2.3 State Court Decisions

English and French state courts have consistently held that the parties are bound by a duty of confidentiality regarding the existence of the arbitration, unless they have a legitimate reason to disclose this information. For example, in the case Department of Economic Policy and Development of the City of Moscow v. Banker Trust Co. the Court of Appeal pointed out in its judgment of 5 June 2003 that the fact of the commencement of an arbitration is subject to the duty of confidentiality unless there is a legitimate reason to disclose this fact.⁵

In 1999, a French state court, the Paris Commercial Court, reached a similar conclusion in the case Bleustein et autres v. Société True North et Société FCB International. ⁶ The French Court held that any information related to the existence (and to the content and the subject matter) of the arbitration proceedings is subject to the duty of confidentiality, unless a disclosure of this information is required by the law.

In the proceedings before the Paris Commercial Court, True North issued two official press releases through a news agency, announcing its dispute with Publicis and the fact that this dispute was subject to an arbitration proceeding.⁷ True North also publicly disclosed that, in the arbitration, it was claiming USD 60 million in damages from Publicis. During the proceedings, Publicis’s shareholders, Mr. Bleustein and others, demonstrated before the Paris Commercial Court that (i) the first press release entailed a drop in the value of Publicis’ shares of 6.5%; (ii) the second press release provoked a drop of 2.9%; and (iii) this decline continued over the following days.⁸ True North did not contest this.

The Paris Commercial Court held for the Publicis shareholders and concluded that True North disclosed information in breach of its confidentiality obligations. The Court issued an injunction banning True North from disclosing any information in relation to the existence, the content and the subject matter of its arbitration with Publicis, subject to disclosure required by mandatory legal provisions.⁹ It stated that since arbitration is a private proceeding of a confidential nature, and since arbitration has been accepted by the parties, they must avoid any publicity relating to the dispute and the outcome of the dispute. (The Paris Court of Appeal later overruled the decision of the Paris Commercial Court, but on procedural grounds, and without examining the substantive issues relating to confidentiality.¹⁰)

In an earlier decision of 18 February 1986, G. Aïta v. A. Ojjeh,¹¹ the Paris Court of Appeal found that Mr Aïta had disclosed confidential facts by filing an appeal to a manifestly incompetent authority.¹² It also held that the defendant suffered damages as a result of this public disclosure of confidential information and enjoined Mr. Aïta to pay damages and the costs of the court proceedings.¹³

4.2.2.4 Legal Scholars’ Views

Although there is some divergence of opinion, most legal scholars agree that it is difficult to impose a duty of confidentiality over the mere existence of an arbitration proceeding.¹⁴ The primary reason is the considerable risk of leaks.

Christoph Müller argues, for example, that it might be unrealistic to think that the fact of the existence of an arbitration will be kept secret. This is because it can be disclosed, for example, as a result of an exequatur or appeal of the arbitral award, or if one of the parties has to disclose the fact of the arbitration to comply with its statutory obligations.¹⁵ Weixia Gu agrees, arguing that ‘it seems unrealistic and undesirable to establish an absolute prohibition against unilateral publication of the mere existence of the arbitration’.¹⁶ Finally, Bernhard Berger and Franz Kellerhals maintain that the existence of the arbitration is in principle not to be kept confidential in the absence of an express agreement and relevant applicable provisions.¹⁷

Andreas Furrer also agrees, arguing that it does not make sense to impose a strict obligation of confidentiality on the parties regarding the mere existence of an arbitration ‘when this information spreads from other sources’.¹⁸ On the other hand, he rightly observes that the parties should not disclose the existence of an arbitration ‘solely for the purpose of damaging the other side or causing harm to its business’.¹⁹

4.2.3 Other Potentially Confidential Matters

Importantly, some arbitration rules²⁰ and national arbitration laws²¹ provide that all matters relating to an arbitration proceeding are to be treated as confidential. Art. 22.2 of the ACICA Arbitration Rules for example, provides that

‘[t]he Parties, the Arbitration Tribunal and ACICA shall treat as confidential and shall not disclose to a third party without a prior written consent from the parties all matters relating to the arbitration’.

But what could be included in ‘all matters relating to the arbitration’? One cannot possibly provide an exhaustive list of all the matters (and issues) which may be subject to confidentiality—because each case is unique. However, we can list some items of information common to almost any arbitration proceeding: the names of the parties, the names of the arbitrators, the nature of the dispute, the status of the case, the amount in dispute, the names of the witnesses and experts, the content of the witness testimony, the content of the exhibits, etc.

Even seemingly harmless and insignificant information, such as the name of the court reporter, the name of the interpreter, or the time and the venue of the hearing should be subject to confidentiality.²² For example, if the time and the venue of the hearing are disclosed, there is a risk that journalists will come to the site.²³ If journalists know the name of the court reporter or the name of the interpreter, they may try to obtain information from these individuals regarding what was said at the hearing.

Assuming that the confidentiality obligation covers the mere fact of the existence of the arbitration, all other matters related to this arbitration are also to be kept confidential, unless they are disclosed in such a way that it is impossible to identify the involved parties. If, however, we assume the opposite, i.e. that the mere existence of the arbitration is not confidential, then the confidentiality of other issues becomes more difficult to analyse. The same is true if we assume that the existence of an arbitration is to be kept confidential, but that, for some reason, it has been made public.

Under the second assumption, if the existence of an arbitration is not covered by the confidentiality obligation, or when it is already known to the public anyway, the question is whether the disclosure of additional information on the dispute, such as the nature of the dispute or the amount in dispute, would be considered as a violation of a confidentiality obligation. Such a possibility cannot be excluded if such a disclosure is detrimental to the interests of at least one of the parties. Possibly, other interests could also be at stake. For example, in the arbitration, a witness could disclose some facts from his personal background that he would not like to be disclosed outside of the arbitration proceedings.

For illustrative purposes, we can consider a hypothetical situation similar to the dispute of Bleustein et autres v. Société True North et Société FCB International. ²⁴ Let us assume that there is an arbitration between companies A and B. For some reason, the fact that there is an arbitration proceeding between the two companies has already become publicly known. A now reveals to the press that it is claiming USD 100 million from B in the arbitration for a breach of contract. A discloses this information with the purpose of damaging B’s reputation, as B is A’s competitor. The press release that follows this disclosure provokes a drop in value of the shares of B. In this case, disclosure by A would likely be considered as a breach of its confidentiality obligations even though the existence of the arbitration was already known to the public.

4.2.4 Intermediary Conclusions

Although it is important to identify matters and categories of information that might be subject to confidentiality, one cannot provide a definite response on whether each particular category of information will be treated as confidential. The answer will depend on the particular circumstances of the case, such as the reasons for and consequences of the disclosure, rather than on which exact piece of information was disclosed.

In a particular case, it would especially be crucial to understand whether there was a legitimate reason for disclosure or whether there was another reason justifying an exception to the duty of confidentiality. In our opinion, a breach of the duty of confidentiality should be admitted if the reason for disclosure does not fall under the scope covered by the exceptions to the duty of confidentiality, which we will discuss below (see Sect. 4.5). In particular, the breach of the duty of confidentiality should be admitted if the disclosure was made in bad faith with the purpose of damaging the other party’s interest.

4.3 Confidentiality Regarding Documents Exchanged in the Course of Arbitral Proceedings

4.3.1 Introduction

The documents’ use is an important issue with respect to the confidentiality duty. Arbitration proceedings generate a significant number of documents: pleadings, exhibits, witness statements, expert opinions, requests for production of documents and related documents, documents produced voluntarily and involuntarily, correspondence between all involved, etc. In this section, we will discuss only the documents which are confidential due to the fact that they became available because of arbitration proceedings. Therefore, we will not examine documents which are already confidential by their very nature, such as documents protected by state or commercial secret.

We will see that the main controversy relates to the use of documents by the parties to an arbitration. Other persons also have access to the documents exchanged in arbitration proceedings, of course, and the scope of their duty of confidentiality is very broad. For them, virtually all documents from the arbitration proceedings should be included. The issue is more nuanced regarding the content of the duty of confidentiality of the parties.

To examine the issue of documents subject to confidentiality, we will proceed as follows. First, we will start with an analysis of the regulation provided by national arbitration laws. We will see that the AIAA and the NZAA contain a very detailed regulation regarding the categories of documents subject to a duty of confidentiality. Second, we will compare the regulation provided by various arbitration rules. Third, we will review several decisions of the English High Court dealing with the issue. Finally, we will see that legal scholars disagree on which categories of documents should be subject to a duty of confidentiality.

4.3.2 National Arbitration Laws

As discussed above, not many national arbitration laws have provisions on confidentiality; even fewer specify which particular documents are to be protected by confidentiality obligations. The AIAA and the NZAA are exceptions in this regard because they contain elaborate provisions regulating confidentiality obligations. In both jurisdiction, the confidentiality provisions will apply unless the parties decide to ‘opt-out’.²⁵

Art. 15 of the AIAA and Art. 2 of the NZAA provide almost identical definitions of ‘confidential information’. In both laws, ‘confidential information’ means information relating to the arbitral proceedings or to an award made in those proceedings. It includes:

• (i) the statement of claim, statement of defence, and all other pleadings, submissions, statements, or other information supplied to the arbitral tribunal by a party to the proceedings;

• (ii) any evidence (whether documentary or other) supplied to the arbitral tribunal;

• (iii) any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal;

• (iv) any transcript of oral evidence or submissions given before the arbitral tribunal;

• (v) any ruling of the arbitral tribunal;

• (vi) any award of the arbitral tribunal.²⁶

In further sections, we will examine the confidentiality of arbitral awards and the privacy of hearings (points c), d), e) and f)). As for confidentiality of the documents exchanged in the course of arbitration, the scope of the documents covered by the AIAA and the NZAA is rather extensive: it covers all parties’ submissions, including all pleadings, witness statements, expert reports, and documentary evidence.

Both laws, however, do not expressly extend the duty of confidentiality to the documents that one party may produce in response to another party’s document production request, and which are not submitted as evidence during the arbitration proceedings. We think that this could simply be an oversight and that the duty of confidentiality should apply to these documents. One of the reasons is that the parties should not be discouraged from making full and candid disclosure for fear that the produced documents can be disclosed outside of the arbitration. In our opinion, both the documents submitted as exhibits and the documents produced in response to another party’s request should enjoy the same degree of confidentiality.

4.3.3 Arbitration Rules

Many international arbitration rules deal with the issue of confidentiality of documents, although the level of detail varies considerably. Among the guidelines, the IBA Rules on Evidence are worth mentioning. Art. 3.13 of the IBA Rules imposes a duty of confidentiality regarding

‘[a]ny documents submitted or produced by a Party or non-Party in the arbitration’

The scope of application of this provision is very broad; it covers

‘all documents produced or submitted in the arbitral proceedings regardless of why or how they were produced and/or submitted, by parties or by non-parties’.²⁷

Thus, the IBA Rules on Evidence extend confidentiality not only to the parties’ submissions, including various pleadings, witness statements and expert reports, but also to fact exhibits and documents produced in response to another party’s request for production of documents.

The LCIA Rules have a more restricted definition of the documents subject to confidentiality.²⁸ According to Art. 30 of the LCIA Rules, confidentiality covers

‘all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings’.

Similarly, Art. 22.2 of the ACICA Rules extends confidentiality to

‘materials created for the purpose of the arbitration and documents produced by another party in the proceedings’

Thus, the two provisions treat as confidential:

• (i) documents created for the purpose of the arbitration by all the parties to the arbitration (pleadings, witness statements and expert reports); and

• (ii) documents produced by another party in the arbitration, e.g., fact exhibits and documents produced in response to a request for production of documents. For a given party to the arbitration, the confidentiality obligation extends only to the documents produced by another party in the arbitration, not to documents the party produces itself. The rationale for this distinction is that a party should not be restricted from the use of its own documents outside of the arbitration only because the document was submitted in the arbitration.

Art. 44(1) of the Swiss Rules treats as confidential

‘all materials submitted by another party in the framework of the arbitral proceedings’.

Commentators on the Swiss Rules explain that ‘all materials’ covers, in particular, written submissions, exhibits, expert reports and correspondence. They specify that this provision applies not only to documents, but also to other materials such as software, audio or video tapes, CDs and DVDs.²⁹

According to a literal interpretation of Art. 44(1) of the Swiss Rules, a party must keep confidential only the materials submitted by another party, but not the materials this party submitted itself. Regarding the latter, Art. 44(1) does not make a distinction between the documents a party created for the arbitration (pleadings, witness statements, expert reports) and other documents submitted by a party (exhibits, documents produced as part of the document production process).

So which approach in existing arbitration rules provides the best solution to the problem of the confidentiality of documents? We hesitate between the approach adopted in the IBA Rules on Evidence and the approach adopted in the LCIA Rules and the ACICA Rules. The main difference relates to the confidentiality of the documents that the party submitted or produced itself in the arbitration. To illustrate this, we will use two specific scenarios.

First, let us assume that there is an arbitration between A and B. A submits, as an exhibit, its contract on the supply of goods with C. It appears obvious that B cannot use the exhibit submitted by A for any other purpose than the arbitration. But should A be restricted from using its contract with C for a purpose not related to the arbitration merely because A has submitted it as evidence in the arbitration? Such a disclosure does not affect the interests of B, as it concerns only A and C. Arguably, while there can be other reasons to maintain confidentiality of this document, the mere fact that A submits the contract in the arbitration should not justify restricting its use by A. A’s use of the document should not be restricted in this case. From this point of view, Art. 30 of the LCIA Rules and Art. 22.2 of the ACICA Rules make perfect sense: they impose a duty of confidentiality regarding the documents produced by another party, but not regarding the documents that the party submits itself.

In a second example, A submits an exchange of emails between B and C as an exhibit in an arbitration proceeding. A obtained this email exchange in response to its request for production of documents in the arbitration with B. The difference from the previous example is that this document involves B and a third party, but not A. B would very likely not want this document to be disclosed outside of the arbitration. Does the fact that this exchange of emails was submitted as evidence in the arbitration result in a specific privilege for this document? In this case, the answer should be ‘yes’ because (i) A had access to this document only because of the arbitration; (ii) the document is sensitive for B, but not for A; and (iii) there is a risk that A will disclose this document outside of the arbitration. This second example illustrates that there can be situations when it would be judicious to impose a duty of confidentiality on a party regarding a document that the party submits itself in an arbitration.

Actually, we think that all documents produced by the parties, which became available because of the arbitration, regardless of whether a given document is submitted by a party itself or by another party, should be subject to confidentiality. The parties need to be certain that the documents they disclose will not be used without their consent outside of the arbitration. This will encourage full and frank disclosure, which is necessary for ensuring an effective administration of justice in arbitration proceedings. For this reason, we prefer the solution proposed by the IBA Rules on Evidence, which protects all documents submitted or produced by a party as confidential.

As opposed to most institutional arbitration rules, the IBA Rules on Evidence also include documents submitted by a non-party to the arbitration in the duty of confidentiality.³⁰ We agree with this approach. In our opinion, it encourages candour on the part of the persons participating in arbitration proceedings and reinforces the principle of confidentiality of arbitration. If confidentiality of the documents submitted by a non-party is not protected, it would mean, for example, that the documents submitted by an expert in support of his arguments could be freely disclosed outside of the arbitration. We do not believe that such a disclosure would be desirable and thus favour the broad approach on confidentiality adopted in the IBA Rules on Evidence.

Thus, we prefer the language contained in Art. 3.13 of the IBA Rules on Evidence, which stipulates that

‘[a]ny documents submitted or produced by a Party or non-Party in the arbitration ... shall be kept confidential ... and shall be used only in connection with the arbitration’.

As will be set out below, we propose however to specify that this confidentiality duty applies only to the documents to which the person wishing to disclose them had access only because of the arbitration.³¹

4.3.4 English State Court Decisions

English case law is generally consistent regarding the broad principle of confidentiality over the documents originating from arbitration proceedings. For the English High Court, the duty of confidentiality extends to practically all documents exchanged in the course of arbitration proceedings, including the arbitral award, pleadings, written submissions, witness statements, documentary evidence, transcripts, and notes of the evidence given in the arbitration.

On several occasions, the English High Court has ruled on which documents should be subject to a duty of confidentiality. In Dolling-Baker v. Merrett, ³² the English Court of Appeal reaffirmed a long-standing principle of English law, according to which the parties to an arbitration are under an implied duty of confidentiality. As to the documents covered by the duty of confidentiality, the Court provided an extensive list, including virtually every document exchanged in the course of arbitration proceedings. The Court of Appeal held that confidentiality should extend to ‘any documents prepared for and used in the arbitration, or disclosed or produced in the arbitration or transcripts or notes of the evidence in the arbitration or award’.³³

In Hassneh Insurance v Mew,³⁴ the English High Court (Queen’s Bench) had to rule on whether a party could disclose the award and other documents from the arbitration in a subsequent court proceeding. In the case, the Court held that disclosure of the award was necessary to protect the interests of the party seeking the disclosure, but it refused to permit disclosure of other documents. Thus, the Court judged that the principle of confidentiality was less strict regarding the award than regarding other documents from the arbitration proceedings.

In Ali Shipping v Shipyard Trogir,³⁵ the English Court of Appeal essentially reversed this decision, rejecting the distinction between the arbitral award and other documents for the purposes of applying the duty of confidentiality. Here, the Court held that the principle of confidentiality should apply equally to the award and to other documents from the arbitration. When discussing exceptions to the rule of confidentiality and, in particular, an exception allowing disclosure when it is reasonably necessary to protect the legitimate interest of an arbitrating party, the Court held:

Although to date this exception has been held applicable only to disclosure of an Award, it is clear (and indeed the parties do not dispute) that the principle covers also pleadings, written submissions, and the proofs of witnesses as well as transcripts and notes of the evidence given in the arbitration.

4.3.5 Legal Scholars’ Views

Many legal scholars agree that documents prepared for or resulting from arbitration proceedings, such as pleadings or transcripts of hearings, should be covered by a duty of confidentiality.³⁶ Their opinions are more nuanced regarding documents submitted as fact exhibits or produced in response to another party’s document production request.

Sébastien Besson and Jean-François Poudret believe that documents not prepared for arbitration proceedings and submitted as evidence should not be treated as confidential only because they were submitted to the arbitral tribunal.³⁷ According to these authors, confidentiality should only cover:

• (i) parties’ pleadings (statement of claim, statement of defence, opening statements, etc.);

• (ii) documents resulting from the arbitral proceedings (such as transcripts of the hearing); and

• (iii) documents produced further to a production order of the arbitral tribunal.³⁸

Regarding point (c), it appears that the authors meant to exclude documents produced voluntarily by a party in response to a document production request of the adverse party, i.e. produced without being ordered to do so by the arbitral tribunal. At first view, this exclusion seems reasonable. It makes sense to provide more protection to the documents produced as a result of an arbitral tribunal’s order. These documents may be particularly sensitive: if the arbitral tribunal had to issue an order, it means that a party initially objected to the production of the documents. However, documents produced voluntarily can also contain sensitive information that a party would not wish to disclose, but must disclose in order to be responsive to the other party’s document production request—if there is no valid reason to make an objection.

Andreas Furrer considers that the documents submitted by another party are subject to confidentiality, but not the documents that a party itself submits.³⁹ According to this author, for example, if a party itself submits an expert report in the arbitration proceedings, it should not be restricted from using it outside of the arbitration.⁴⁰ We agree that a party should not be restricted from the use of its own document only because this document was produced in an arbitration. This restriction should, however, be imposed if confidential information regarding the other parties can become available as a result of this disclosure.

Christoph Müller argues in favour of the approach adopted in the IBA Rules on Evidence: imposing a duty of confidentiality regarding all documents submitted or produced by a party or a non-party in the arbitration.⁴¹ On the one hand, Christoph Müller admits that the mere fact that a document was submitted in arbitration should not result in a particular privilege for this document.⁴² On the other hand, he considers that the parties should not be discouraged from submitting documents as evidence because there is a risk that the other party will use these documents outside of the arbitral proceedings.⁴³ For this reason, he thinks that all documents submitted as exhibits in an arbitration, to which the party had access only because of its participation in the arbitration, should be treated as confidential unless disclosure outside of the arbitration proceedings is allowed by the parties’ consent or by a tribunal’s order.⁴⁴

As discussed in Sect. 4.3.6, we agree with the broad approach to the confidentiality of documents adopted by the IBA Rules on Evidence. The reason for adopting a broad approach to confidentiality is to avoid discouraging the parties from submitting documents as evidence for fear that the other party will use these documents for purposes not connected to the arbitration. This rule should, however, be nuanced to extend only to the documents to which a person wishing to disclose the documents gained access only because of the arbitration.⁴⁵

4.3.6 Intermediary Conclusions

The AIAA and the NZAA are among the few national arbitration laws that contain detailed provisions listing the specific categories of documents subject to confidentiality. However, they do not include the documents produced by a party in response to another party’s document request, if these documents are not submitted as evidence during the arbitration proceedings. We think that these documents, like the documents submitted as evidence, should be treated as confidential. Imposing a confidentiality duty over the documents produced in response to the other party’s document request would encourage the parties to participate in the document production process with openness and candour.

The English Court of Appeal had to rule on the issue of confidentiality in Ali Shipping v Shipyard Trogir case. It held that the principle of confidentiality should apply equally to the award and to virtually all documents originating from arbitration, such as ‘pleadings, written submission, and the proofs of witnesses as well as transcripts and notes of the evidence given in the arbitration’.

As for the regulation provided in arbitration rules and the opinions expressed by legal scholars, there is generally a consensus that the duty of confidentiality should cover all documents created for the purpose of an arbitration and resulting from the arbitration proceedings. This includes such documents as parties’ pleadings, witness statements, expert reports, and transcripts of hearings. Opinions differ, however, regarding documents submitted as evidence and documents produced in response to another party’s request.

Regarding documents submitted as evidence, some arbitration rules distinguish between the documents that a party submits itself and the documents submitted by another party. These arbitration rules provide that a party has a duty of confidentiality regarding the documents submitted by another party, but not regarding the documents that the party produced itself. Several legal authors support this approach. We agree that this approach could apply in situations when a document produced by a party does not concern the other party or parties to an arbitration proceeding. In this case, the mere fact that a party submits the document in arbitration should not be a reason to restrict its use by this party.

This solution is, however, not perfect. In some situations, a party should be restricted from using outside of arbitration the documents that it submitted itself. In our opinion, if a party gained access to the document it submitted only because of the arbitration, and if this document can be sensitive for the other party or parties, the duty of confidentiality should apply as well.

As for documents produced in response to another party’s request, some arbitration rules and legal scholars distinguish between the documents that a party produces voluntarily and the documents that it produces in order to comply with a tribunal’s order. According to some authors, only the documents produced further to a production order of an arbitral tribunal should be treated as confidential. In our view, however, both categories of produced documents should be treated as confidential.

Other commentators distinguish between the documents that a party produces itself and the documents produced by another party in the course of the document production stage. Here, we also think that both categories of documents should be covered by confidentiality.

In conclusion, we prefer the solution proposed by the IBA Rules on Evidence: protecting the confidentiality of all documents submitted or produced by a party. We also agree with the provision in the IBA Rules on Evidence that generally extends the duty of confidentiality to the documents submitted by a non-party in the arbitration.⁴⁶ We think that this extensive interpretation of the confidentiality of documents is the best way to deal with the issue. It encourages the candour of the persons participating in arbitration proceedings and reinforces the principle of confidentiality of arbitration. In our view, all documents exchanged in the course of arbitration proceedings should be in principle subject to a duty of confidentiality. This confidentiality duty should, however, be limited to the documents to which a person wishing to disclose the document had access only because of the arbitration.⁴⁷

4.4 Confidentiality Regarding Arbitral Awards and Orders

4.4.1 Introduction

Turning from the more general issue of the confidentiality of documents, we now examine whether arbitral awards and orders are protected by confidentiality, or whether they can be disclosed. First, however, we must explain what we mean when using the term ‘arbitral award(s)’. In this section, we will use this term to mean both arbitral award(s) and order(s) issued by arbitral tribunals. This generally means all decisions of an arbitral tribunal, including the final award, interim and partial awards, order for interim relief, procedural orders and orders for suspension or termination of the proceedings.

We also need to explain what confidentiality means in relation to arbitral awards and orders. Confidentiality is the opposite of publicity. This implies that any form of publicity regarding the arbitral awards could be relevant for the present section. However, we will mainly focus on the problem of publication of arbitral awards. By publication, we mean the act of making information available to people in a printed or electronic form.⁴⁸ As to other cases of disclosure, such as the use of arbitral award in parallel state court or arbitration proceedings or filing of the arbitral award to recognise, enforce or challenge an arbitral award, we will examine them in the section dealing with exceptions to the duty of confidentiality (Sect. 4.5).

Legal practitioners and scholars have extensively discussed the specific issue of the publication of arbitral awards and orders. Nevertheless, they do not agree on a solution. This is not surprising, because one needs to balance two important interests: securing a predictable legal environment on the one hand, and protecting the parties’ individual interests to maintain privacy of their dispute on the other. From the perspective of a predictable legal environment, publication of arbitral awards in specialized journals and reviews will be beneficial (and is indeed essential for creating ‘arbitral jurisprudence’, see below Sect. 4.4.5). From the perspective of parties’ individual interests, however, publication of an arbitral award will be detrimental if the parties do not want the details of their dispute to become publicly available.

One may ask why state court decisions may (obviously) be published, without violating any duty of confidentiality, whereas arbitral awards may not be published. There is, however, a major conceptual difference. State court proceedings are organised by the state, which must guarantee a fair and accessible administration of justice.⁴⁹ Public hearings and the publication of court decisions are important elements of the public system of justice financed by taxpayers. In other words, publication of court decisions ensures a transparent and predictable legal environment and preserves essential public confidence in the administration of justice. By contrast, arbitration is a private proceeding which is generally funded by the parties. It is the parties’ choice to have their dispute resolved by arbitration, and confidentiality is often an important element in this choice.⁵⁰

The issue of publication of arbitral award raises the question on the existence of ‘arbitral jurisprudence’. Indeed, ‘arbitral jurisprudence’ cannot exist without publication of awards. Most legal scholars agree that arbitral awards do not have the binding authority of precedent.⁵¹ For most scholars, the exact role and influence of past arbitral decisions is nuanced. However, none doubts that past arbitral decisions cannot be ignored and should at least be taken into account to some extent.⁵² If past arbitral decisions are to play a bigger role, more consistent publication of arbitral awards is needed.

In this section, we will first examine provisions on the confidentiality of arbitral awards contained in arbitration rules. As we will see, many arbitration rules expressly impose a duty of confidentiality regarding arbitral awards and allow publication of awards only with the parties’ consent. Second, we will see that fewer national arbitration laws regulate the confidentiality of arbitral awards. Third, we will briefly review how state courts have typically dealt with the issue of confidentiality of arbitral awards. Finally, we will explain why confidentiality of arbitral awards is actually not an obstacle to the systematic publication of arbitral awards.

4.4.2 International Arbitration Rules

Most arbitration rules contain provisions imposing a duty of confidentiality regarding arbitral awards.⁵³ However, some arbitration rules do not contain such provisions, e.g., the ICC, AAA or ICAC Rules. And in sharp contrast, the Oslo Rules provide that arbitral awards are not subject to confidentiality unless otherwise agreed by the arbitral award, but in the absence of an express agreement on confidentiality, the award is not regarded as confidential.⁵⁴ In general, however, confidentiality is the rule, although it is subject to some exceptions (see Sect. 4.5 below).

Many rules, such as LCIA, DIS, WIPO, ACICA and UNCITRAL, require consent of the parties for publication of the arbitral awards. Thus, Art. 30.3 of the LCIA Rules provides that

‘[t]he LCIA does not publish any award or any part of an award without the prior written consent of all parties and the Arbitral Tribunal’.

Thus, the LCIA cannot publish the award without the consent of all parties and the assent of the arbitral tribunal. In practice, however, the LCIA does not publish awards on its own initiative.⁵⁵

The DIS Rules allow publication only with the prior written consent of all the parties.⁵⁶ The DIS Rules also expressly allow the institution to use the information from arbitral awards to compile statistical data, provided that the disclosed information will not allow identification of the persons involved.⁵⁷

Here is what Art. 44(3) of the Swiss Rules provides regarding publication of arbitral awards:

An award or order may be published, whether in its entirety or in the form of excerpts or a summary, only under the following conditions:

• a) A request for publication is addressed to the Secretariat;

• b) All references to the parties’ names are deleted; and

• c) No party objects to such publication within the time-limit fixed for that purpose by the Secretariat.

Thus, first, Art. 44(3) of the Swiss Rules provides a procedural framework for addressing a request for publication. Such a request needs to be addressed to the Secretariat. Second, this article expressly provides that references to the parties’ names be deleted. Third, the parties need not give their consent to the publication, but they can object to it within a time-limit fixed by the Secretariat. The time limit will be fixed depending on the particular circumstances of each case, and it can be extended by the Secretariat if justified by the circumstances.⁵⁸ If the party (or the parties) do not make such an objection, the award can be published.⁵⁹

More and more institutional rules allow the relevant arbitration institution to publish arbitral awards in anonymous format even without an express consent of the parties. The Milan, SIAC, VIAC and ICDR Rules similarly allow the Secretariat of the relevant institution to publish the awards, provided that the parties’ identity remains confidential. Thus, Art. 8.2 of the Milan Rules stipulates that the arbitral award should be published in anonymous format. The main purpose of the publication, is to provide materials for research. Art. 32.12 of the SIAC Rules requires that the names of the parties—and other information allowing identification of the parties—be redacted. Art. 41 of the VIAC Rules allows the Board and the Secretary General to publish ‘anonymized summaries or extracts of awards’ in legal journals or in VIAC’s own publications. Art. 30(3) of the ICDR Rules permits publishing of

‘selected awards, orders, decisions, and rulings that have been edited to conceal the names of the parties and other identifying details’.

The Milan Rules impose an additional requirement on the publication of an award: similarly to the Swiss Rules, no objection to such publication should be made by the parties during the proceedings.⁶⁰ Art. 41 of the VIAC Rules has a similar rule, but the objection would have to be made not during the proceedings, but within 30 days of service of the award. Art. 30(3) of the ICDR Rules allows publication unless otherwise agreed by the parties.

4.4.3 National Arbitration Laws

As compared to arbitration rules, fewer national arbitration laws regulate confidentiality regarding arbitral awards. Also, as opposed to arbitration rules, national arbitration laws typically do not regulate the issue of publication of arbitral awards. The very few national laws regulating the confidentiality of arbitral awards can be classified into two categories. On the one hand, we have those which provide for confidentiality of arbitral awards unless the parties agree otherwise. These are, for example, the AIAA, the NZAA and the Scottish Arbitration Act. On the other hand, some national laws provide that arbitral awards are non-confidential unless the parties agree otherwise. These include the Norwegian Arbitration Act and the International Commercial Arbitration Law of Costa Rica.

The NZAA provides that the parties and the arbitration tribunal must not disclose confidential information, which includes inter alia the award of the arbitral tribunal.⁶¹ In some cases, however, there are exceptions to this confidentiality rule for arbitral awards.⁶² These confidentiality provisions apply to every arbitration with its seat in New Zealand, unless the parties agree otherwise in writing.⁶³ Notwithstanding the explicit text, however, some authors question whether the parties can ‘opt out’ of all confidentiality provisions.⁶⁴ The AIAA has very similar provisions imposing a duty of confidentiality regarding arbitral awards.⁶⁵

Similarly, the Scottish Arbitration Act 2010 prohibits disclosure of confidential information, which includes inter alia any information relating to the award.⁶⁶ There are, however, some exceptions to this general principle, e.g. express or implied authorisation by the parties.

As stated above, the Norwegian Arbitration Act and the International Commercial Arbitration Law of Costa Rica provide that arbitral awards are not confidential unless the parties agree otherwise. The Norwegian Arbitration Act provides that the decisions reached by the arbitral tribunal are not subject to confidentiality. ⁶⁷ The International Commercial Arbitration Law of Costa Rica goes even further as it provides that all final awards are public.⁶⁸ Under both acts, however, the parties are allowed to opt out of these provisions and agree on a duty of confidentiality for their proceedings and the award.⁶⁹

4.4.4 State Court Decisions

As we have seen above,⁷⁰ confidentiality of arbitration is not the rule in every jurisdiction. For example, Swedish law does not recognise confidentiality of arbitration proceedings in the absence of a parties’ express agreement on confidentiality.⁷¹ This regulation obviously extends to arbitral awards, which are not regarded as confidential further to the discussed above Swedish court decision in Bulgarian Foreign Trade Bank Ltd. v. A.I. Trade Finance Inc.⁷²

English law, on the other hand, recognises a broad principle of confidentiality over the documents originating from arbitration proceedings, including arbitral awards.⁷³ As discussed above, the English High Court judged in Hassneh Insurance v Mew that the principle of confidentiality was less strict regarding the award than regarding other documents from arbitration proceedings,⁷⁴ but the English Court of Appeal rejected this difference in treatment in Ali Shipping v Shipyard Trogir.⁷⁵

The confidentiality duty regarding arbitral awards is, however, subject to exceptions under English law. The English High Court and the Privy Council⁷⁶ have dealt with disclosure of arbitral awards on several occasions. They consistently decided that confidentiality of arbitration should not be an obstacle to the use of arbitral awards in another proceeding if such disclosure is justified by a legitimate reason. We will discuss these decisions in the section dealing with the exceptions to the duty of confidentiality (see below Sect. 4.5).

4.4.5 Tensions Between Confidentiality and Publication of Arbitral Awards

4.4.5.1 Current Publication Practices

One might argue that publication of an arbitral award is not compatible with the confidentiality of the corresponding arbitration proceedings. If we assume that the arbitral award and the information contained therein are confidential, there is indeed some tension, because publication of the arbitral award is a form of disclosure. As we have seen above, many arbitration rules and national arbitration laws recognise the confidential nature of arbitral awards. Despite this, many arbitration rules allow publication of arbitral awards provided certain requirements are met. And some institutions have the practice of publishing a selection of their awards in a redacted form.

Selected ICC awards are published, for example, in the ICC Court Bulletin, the Collection of ICC Arbitral Awards, the Yearbook Commercial Arbitration, the Journal du Droit International (Clunet), Les Cahiers de l’Arbitrage. The SCC awards were published between 1999 and 2009 in the Law Journal of the Stockholm Chamber of Commerce.⁷⁷

The Yearbook Commercial Arbitration is an important source of institutional and ad hoc arbitral awards. Each month, the ITA (Institute for Transnational Arbitration) Arbitration Report publishes various arbitration materials online, including reports on the arbitral awards.⁷⁸

The Kluwer arbitration website contains an important collection of arbitral awards selected by authors and editors of Kluwer Law International publications, the Editorial Staff at ICCA, and the ITA Board of Reports.⁷⁹ This collection includes all arbitral awards included in print publications published and licensed by Kluwer Law International.⁸⁰ CLOUT, a legal database of worldwide court decisions and arbitral awards related to UNCITRAL texts, is another comprehensive online tool for searching arbitral awards. CLOUT allows searching of arbitral awards dealing only with the UN Convention on Contracts for the International Sale of Goods and other UNCITRAL texts.

Publication of awards helps develop a consistent jurisprudence for commercial usages and customs, which is particularly important in maritime law. This is why a number of institutions specialized in maritime arbitrations, such as the Tokyo Maritime Arbitration Commission of the Japan Shipping Exchange or the Society of Maritime Arbitrators, publish their arbitral awards in some form.⁸¹

A number of institutions also publish statistical data on caseloads, such as the ICC Court of International Arbitration, the SCC Arbitration Institute, the Hong Kong International Arbitration Centre, the German Institution for Arbitration and the Milan Chamber of Arbitration. Publication of such statistical data should not raise issues with confidentiality. Indeed, such published data usually include information on the number of cases, the number of issued awards, the nationality of the parties, and the nationality of the arbitrators, but no individual information on particular cases is disclosed. While this information can give an idea of the type and the amount of work done at a particular institution, and can be helpful when selecting institutional rules, it does not allow one to evaluate the quality of arbitral awards or assess the average duration of arbitral proceedings.

Finally, summaries of awards are made public through various online resources and even by way of social networks. Most major awards are currently reported by the Global Arbitration Review.⁸² Reports like these usually contain only the most essential information, such as a briefing on the nature of the dispute, the parties involved, the conclusions reached in the award, including the awarded or non-awarded amounts, the composition of the arbitral tribunal and the names of the parties’ representatives. Confidentiality is, however, rarely an issue with these summary reports, because they are usually published with the parties’ consent.

Thus, while arbitral awards are frequently published in some form, the publication is not systematic. This is not necessarily a problem from the point of view of confidentiality, but it makes it difficult for practitioners and researchers to analyse the characteristics of arbitral awards or trends in arbitration. First, only a small portion of institutional and ad hoc awards are published, which means that most arbitral awards remain unknown.⁸³ The awards are often deliberately selected for publication by responsible officials of the arbitration institutes. Second, arbitral awards are generally not published in full. It is often the reporter who selects extracts, choosing the passages relating to the issues in the award that the reporter considers the most relevant for publication.

These observations might explain the existing doubts among scholars about whether the sample of published awards is representative.⁸⁴ Joshua Karton provides an illustrative example of why these doubts may be justified:

International arbitral awards that rely on lex mercatoria or amiable composition are rare in practice. Their use was never internationally significant and is diminishing. Nevertheless, from the published awards, such decisions seem to be common. This is a result of a deliberate policy in favour of publishing such awards. A former Secretary-General of the ICC Court of International Arbitration observed of the ICC’s own collection of published awards: ‘Only those awards in which arbitrators have felt least constrained to apply national law have been published.’⁸⁵

Given that the publication of arbitral awards is unsystematic, should it become systematic? If yes, what form should it take? We will examine these questions in the next sections.

4.4.5.2 Systematic Publication of Arbitral Awards?

An increasing number of authors make the case for a systematic publication of arbitral awards.⁸⁶ It is interesting to analyse the arguments they advance, as well as possible counter-arguments. As a preliminary remark, it would be important to identify the various interests involved. As suggested by Joshua Karton,⁸⁷ two main groups of interests can be identified. On the one hand, we have the interests of the parties to a given dispute (‘party interests’ or interests of the international arbitration community), and, on the other hand, we have the interests of the system as a whole (‘systemic interests’). As we will see, depending on the particular aspect to be improved, enhanced or developed, the interests of these groups may or may not coincide.

4.4.5.2.1 Consistent Arbitral Case Law

The main argument for systematic publication of arbitral awards is that it would create consistent and coherent arbitral case law—a step towards ‘arbitral jurisprudence’. This case law would indicate general practices and attitudes without, however, creating a binding system of precedents.⁸⁸ The process would serve both the party and systemic interests. Indeed, it would benefit everyone by enhancing the principle of fairness, as similar situations would be treated similarly. Systematic publication would also help to develop a legally predictable environment for actual and potential users. Predictability of result is a common problem for litigation, and even bigger problem for international arbitration (as opposed to domestic litigation) because there is a big variety of possible applicable laws and no unified system of appellate courts.⁸⁹

One could argue that creation of consistent arbitral jurisprudence is impossible because most arbitration cases are fact and contract driven, and because virtually every case has its own relevant law(s). As observed, however, by Julian D. M. Lew:

Whilst every arbitration must be determined in the light of its particular facts and the relevant law, there remains nonetheless much that can be learnt from earlier awards, despite their differing facts.⁹⁰

Guidance from past arbitral decisions could help clarify specific procedural issues, such as determination of the applicable law or whether a given tribunal has jurisdiction to resolve a dispute. Such issues require uniform solutions. This guidance might also help parties and arbitrators understand specific complex problems of substantive law, as they could consult past decisions on cases with similar facts and circumstances. In the international trade area, the lex mercatoria could also be developed into a coherent body of rules through the publishing of arbitral awards.⁹¹

4.4.5.2.2 Enhancing Transparency of the Arbitration

Another reason to publish arbitral awards is to create a transparent system in which the public is informed of reasoned decisions. This would also contribute to enhancing the legitimacy of international arbitration, i.e. its acceptance by the public as a dispute resolution method. As emphasized by Cindy Buys, ‘[w]hen the process has consistency and predictability, its legitimacy is enhanced because parties know what to expect.’⁹² Enhancing transparency of arbitration would thus serve the systemic interests.

4.4.5.2.3 Improving the Quality of Arbitral Awards

Another argument for systematic publication is that it might improve the quality of arbitral awards. The certainty of eventual publication would tend to give the arbitrators in a given dispute more control, which could encourage them to be particularly thorough, especially if the awards are published with their names attached. In addition, all arbitrators could benefit from the previously published arbitral awards and arguably would be better prepared to draft their awards. Improvement of the quality of arbitral awards would serve both the party and the systemic interests.

4.4.5.2.4 Promotion of Arbitration as a Dispute Resolution Method

Systematic publication of arbitral awards would also promote the use of arbitration in general. Since most awards are not publicly known, it is difficult for prospective end users of arbitration to judge its advantages. If they could see the final products of arbitration—arbitral awards—this could demonstrate to them that arbitration is a fair and efficient method of dispute resolution.⁹³

4.4.5.2.5 Making Arbitrations More Accessible for Users

By distributing knowledge of arbitration issues more widely, systematic publication of arbitral awards could also serve party and systemic interests by reducing the cost of arbitration, thus making it more accessible to individuals and companies with more limited revenue (but who are nevertheless involved in cross-border transactions and seeking justice). Arbitrations are usually perceived as an expensive dispute resolution method accessible only to large companies. Although this is not true, arbitration proceedings come at a relatively high cost.

Only some law firms have an expertise in arbitration, and they charge relatively high fees to maintain the resources, expertise and networking tools they require. In other words, arbitration lawyers are still an elite group of insiders who benefit early from in their careers mostly from the experience of more senior colleagues. Publication of awards could help spread knowledge of arbitration to a more extended circle of legal professionals.

In countries where the English language is not extensively used, and where most lawyers may lack a good knowledge of English, the language barrier may also discourage some parties from choosing arbitration. Systematic publication of arbitral awards could mitigate this problem as it would enable translation of awards from English and study of awards in other languages.

4.4.5.2.6 Ad hoc v. Institutional Arbitrations and Choice of the Arbitration Institution

Systematic publication of arbitral awards would also help identify which form of arbitration would be better suited for a particular type of dispute. For instance, prospective parties would have more information to make a choice in favour of ad hoc or institutional arbitration. Also, in the case of institutional arbitration, publication of arbitral awards would allow the parties to compare the performance of different arbitration institutions, enabling them to select the institution best suited to their expectations regarding the conduct of proceedings.⁹⁴

4.4.5.2.7 Appointing Arbitrators

If published awards also routinely indicated the names of the arbitrators having rendered the decision, this information would help prospective parties make a more informed decision when appointing an arbitrator. Currently, the parties usually have to rely on advice given by their counsel, who might know the relevant arbitrator by his reputation or through the personal experience.

4.4.5.2.8 Execution of Arbitral Awards

One might also argue that systematic publication may facilitate enforcement (execution) of arbitral awards.⁹⁵ First, if the public is confident that the arbitration process is fair, and that enforcement of the awards is efficient, it may contribute to voluntary executions of the award. Second, if the relevant award is published, this may put additional pressure on the losing party, who might want to avoid reputational risks related to non-execution of the award. However, in our view, the publication of the award should not reveal the parties’ names or allow to identify them otherwise.

4.4.5.2.9 Privacy of the Parties

As to the arguments against systematic publication of arbitral awards, these mostly revolve around the privacy of the parties to a given dispute.⁹⁶ Many parties wish to keep the dispute and all related information and documents secret from the public. The losing party, in particular, might not want details of its defeat to be known to the public, especially if this party has been reproached for having behaved in bad faith or dishonestly. Therefore, systematic publication of arbitral awards would arguably take away one of arbitration’s main advantages—confidentiality—thereby creating a risk that users attracted by confidentiality would abandon arbitration for other methods of dispute resolution.⁹⁷

One can also argue that arbitration is a private system of dispute resolution, and so there is no place for systematic publication of awards. The rationale would be that since the arbitrators’ jurisdiction is based on the parties’ agreement, the arbitral award is a contract that the parties have agreed, in advance, to perform. Publication of such a private commercial contract would therefore be inappropriate.⁹⁸ This position can, however, be easily challenged. An arbitral award is more than just a contract: it is a final decision of a neutral body, which has the same effect as a court decision.

4.4.5.2.10 Additional Costs

Another argument against systematic publication of awards is cost. As noted, arbitration proceedings are already expensive, and publication could increase the cost of disputes, depending on how the publication process is organised. All awards will need to be prepared for publication, which will involve more time spent by officials of the institutions and/or arbitrators to prepare the ‘sanitized’ texts. If the parties are also involved in preparation of the published text, there might also be additional direct costs for them as well. For example, if the parties need to agree on the text of the award to be published, and there is a dispute, resolving such a dispute will likely cause significant costs related mainly to parties’ counsel fees.⁹⁹

4.4.5.2.11 Intermediary Conclusions

Although systematic publication of arbitral awards would have many advantages for the system as a whole, it might conflict with the interests of the parties to a given dispute. While systemic interests are certainly more important in state court proceedings, the situation is different in arbitration because it is a private consent-based system. As maintained by Joshua Karton:

Since international arbitration is a private consent-based system, party interests in keeping awards confidential are likely to trump systemic interests in publishing them-even if those systemic interests align with the long-term interests of commercial parties generally.¹⁰⁰

The real question is whether this conflict can be resolved so that the party interests are not compromised. In particular, systematic publication of awards should not compromise the parties’ interests in the confidentiality of arbitral proceedings. We think that this is achievable.

Some arbitration rules have specific regulations demonstrating that confidentiality of arbitration proceedings and publication of arbitral awards are compatible. For example, the Milan Rules provide in Art. 8.1 that the arbitral proceedings and the arbitral award are to be kept confidential. Further, Art. 8.2 specifies that the Chamber of Arbitration may publish the arbitral award in anonymous format. The SIAC Rules oblige the parties and the Tribunal to keep the arbitral award confidential,¹⁰¹ but allow SIAC to publish any award with the names of the parties and other identifying information redacted.¹⁰²

As observed by Rinaldo Sali, there is no contradiction between confidentiality of arbitral proceedings and systematic publication of arbitral awards. He argues that confidentiality should be maintained over the course of arbitral proceedings, but that the systemic interest in publicity through publication of the award in anonymous format should prevail once the proceedings are over.¹⁰³

We agree that confidentiality of arbitral proceedings should not be an obstacle to systematic publication of arbitral awards. Confidentiality can be protected if all potentially sensitive information, as well as any information that would allow the parties involved in the dispute to be identified, is removed from the published arbitral award. Restricted in this way, publication should not compromise the parties’ interests in maintaining the privacy of their dispute. Below, we will further discuss how arbitral awards can be published in a way that avoids identification of the parties.

4.4.5.3 Form of Publication

As long as the parties’ anonymity is protected, there should be no tensions between confidentiality and publication of the arbitral awards. Such protection depends on the form of publication, however, and it might prove difficult to find a form of publication which guarantees complete anonymity of the parties while keeping the award comprehensible to an external reader. Fortunately, the issue has been much discussed in the literature, where one can find relatively detailed recommendations.

For example, the Milan Chamber of Arbitration has issued Guidelines for the Anonymous Publication of Arbitral Awards (‘Milan Guidelines’). These were published in a recent treatise arguing for the rise of transparency in international arbitration.¹⁰⁴ The Milan Guidelines apply to the institutional arbitrations regulated by the Milan Rules.¹⁰⁵ They contain a set of general standards for publication; specific rules as to which information needs to be indicated/omitted; and the procedure for publication. Similar recommendations can also be found in a recent article of Joshua Karton.¹⁰⁶

The first question is whether arbitral awards should be published in full or in part. The reality is that only extracts or summaries of arbitral awards are usually made available. Published awards are redacted so that the reader does not have to read ‘unnecessary’ information, but can follow the reasoning of the arbitral tribunal regarding a specific issue.¹⁰⁷ The problem with this practice is that the redaction involves much external interference affecting the content of the published text of the award. The text is greatly influenced by the subjective views of those making the report. Publication of the full text would remove this problem.

Another reality is that awards are often very lengthy (several hundreds of pages) and contain long discussions on fact findings which might not always be relevant for further discussions on legal issues of general applicability. From this point of view, partial publication of arbitral awards could be a good solution. The problem of subjectivity could be addressed by having the arbitrators who drafted the arbitral award also prepare the text to be published.

It might also be argued that the parties should be able to influence the form of the published text of the award. In this view, it would be good to grant the parties the right to review the text of the award resolving their dispute before its publication. They could also be granted various other rights with regard to the text of the award to be published: right of consultation, right to make corrections to the text, right to veto publication, etc. If the parties are vested with important powers regarding the text of the arbitral award to be published, there is a risk, however, that the parties could disagree. In case of disagreement, publication could turn into another full dispute in its own right.

4.4.5.3.1 Identification of the Parties

To protect the privacy of the parties in an arbitration, enough information should be redacted from the published text of the award so that the parties (and the dispute) are not recognisable. The names of the parties can easily be removed and replaced by X., Y. or any other letters, combination of letters, and/or signs. They can also be identified only as ‘claimant’ and ‘defendant’. This might, however, be insufficient. If we imagine, for example, that a dispute is politically driven, and that it is over an important question for the economy of a given country, it might be difficult to publish the award in such a way that the parties cannot be identified.

As to what makes the parties recognisable or identifiable, a related question is how much some third parties already know. Third parties from the relevant industry/area may be more able to identify the parties to a given dispute than third parties in general. People working in the relevant industry are usually aware of its ongoing disputes and might easily identify the involved parties when reading the arbitral award even if the names of the parties are removed. When publishing the award, it might thus be difficult to make the parties unrecognisable to everyone. Therefore, while such an effort should be made, it will not always be successful—depending on the nature of the dispute and the parties involved.

Another solution would be to postpone publication of the award for some period of time.¹⁰⁸ Postponed publication can even be considered necessary if an immediate publication could harm the parties’ interests. The need for and delay of a postponement could be decided based on the particular circumstances of the case.

The Milan Guidelines provide that names and personal details of the parties should be omitted, but that their nationality is revealed. Any information that still renders a party recognisable must be indicated in general terms.¹⁰⁹

Importantly, this ‘sanitization’ of the award must not prevent the reader from following the reasoning of the tribunal and from understanding the basis on which the tribunal reached a particular decision. Joshua Karton suggests that the arbitrators be instructed before they start drafting the award to do it in such a way so as to preserve the parties’ confidentiality, while comprehensively setting out the legal issues of general applicability. More specifically, he recommends dividing the award into three parts: (i) recitation of the evidence and the facts found by the tribunal; (ii) applicable legal and procedural issues; and (iii) application of the law to the facts, and such matters as allocation of costs.¹¹⁰

4.4.5.3.2 Names of the Arbitrators

Another important issue is whether the awards should be published with the names of the arbitrators. Many authors think that the names should be made public.¹¹¹ For example, Alberto Malatesta maintains that protecting privacy of arbitrators is not sufficient reason to remove the names of the arbitrators when publishing the award. He argues that there should be no obstacles to revealing the arbitrators’ names, and makes the case for keeping them in the published arbitration awards.¹¹²

Julian D.M. Lew rightly argues that, when appointing an arbitrator, parties need to know whether an arbitrator has the necessary experience and expertise for dealing with a particular case. The most appropriate and objective source of information evidencing the experience and expertise of a given arbitrator would be his arbitral awards.¹¹³ Along these lines, Joshua Karton maintains that it is in the arbitrators’ interests to reveal their names ‘for promotional reasons or to demonstrate that they have nothing to hide’.¹¹⁴ He thinks that arbitrators will likely take advantage of the publication of their awards with their names—if this does not infringe on party autonomy.¹¹⁵

In general, the trend in opinion is clearly towards favouring the release of the arbitrators’ names. Thus, the ICC Court announced on 5 January 2016 that it will publish the names of the arbitrators sitting in ICC cases on its website, as well as their nationality and information on whether they were appointed by the Court or by the parties.¹¹⁶ The ICC Court will also identify the chairman of the tribunal. The announcement specifies that ‘[i]n order not to compromise expectations of confidentiality that may be important to the parties, the case reference number and the names of the parties and of counsel will not be published’.¹¹⁷ The Parties can nevertheless opt out of this limited disclosure.¹¹⁸

This is a very important decision aimed at enhancing transparency for users and other stakeholders.¹¹⁹ According to Alex Mourre, publication of the composition of ICC tribunals will help to promote ‘regional, generation and gender diversity of arbitrators’.¹²⁰ Publication will also be a useful tool for users of the ICC Court, as they will be able to see an arbitrator’s experience in terms of the quantity of his ICC cases and to make a judgment on whether a particular arbitrator appears to be particularly busy.

4.4.5.3.3 Dissemination of Published Awards

As mentioned above, arbitral awards are published by a number of online and hard copy resources. While hard-copy reviews and texts of awards are helpful to academics and practitioners, online publication better enables them to do research and would probably be more welcome. For this, all awards would need to be properly catalogued and indexed.

4.4.6 Intermediary Conclusions

There is no systematic publication of arbitral awards, and current publication practices are quite diverse. This issue, like the more general issues of confidentiality and disclosure of arbitral awards, is mostly regulated by arbitration rules.¹²¹ As indicated above, most arbitration rules and national arbitration laws impose a duty of confidentiality regarding arbitral awards, but they generally allow publication of arbitral awards with the parties’ consent and/or if the text is ‘sanitized’.¹²² In addition, more and more arbitration rules allow the relevant institution to publish awards in a sanitized form even if there is no express consent from the parties. Finally, some arbitration rules and national arbitration laws unusually provide that arbitral awards are not confidential in the absence of the parties’ agreement on the contrary.¹²³ While the last approach seems too radical, we support the idea of systematic publication of arbitral awards in a sanitized form even if there is no express consent to publication from the parties.

Whether state courts treat arbitral awards as confidential will primarily depend on the general approach to confidentiality of arbitration in the relevant jurisdiction. If confidentiality of arbitration is recognised, this will generally extend to arbitral awards; the contrary is also true. Thus, in the absence of an express agreement on confidentiality, Swedish law considers that arbitral awards are not covered by confidentiality. In England, arbitral awards, like any other documents originating from arbitration proceedings, are in principle protected by confidentiality. This confidentiality, however, as we will see below, does not prevent the parties from making a legitimate use of arbitral awards outside of the arbitration proceedings.

We think that confidentiality of arbitral awards is not an obstacle to publication of arbitral awards if the awards are published in such a form that the parties cannot be identified. In our view, systematic publication of arbitral awards would have many advantages. It would: create consistent arbitral case law and promote ‘arbitral jurisprudence’; enhance transparency of arbitration; improve the quality of arbitral awards; promote the use of arbitration as a dispute resolution method; make arbitrations more accessible for users; enable users to make a more informed decision regarding the choice of arbitration institution and when appointing an arbitrator; and facilitate voluntary execution and enforcement of arbitral awards. For these reasons, systematic publication of arbitral awards should be the goal.

In our opinion, it would also be beneficial if the awards were published with the names of the arbitrators. The arbitrators would promote their experience and expertise, and the parties would be able to make a more informed choice of arbitrator. And if the awards are published systematically with names, they will be properly catalogued and indexed so that researchers can easily search through them using online tools.

4.5 Confidentiality in Respect of Hearings

4.5.1 Introduction

Confidentiality in respect of hearings is another element of the duty of confidentiality. It implies privacy of arbitration hearings, but also more generally confidentiality of all documents and information surrounding hearings. When using the term ‘hearings’, we mean both evidentiary and procedural hearings, unless we specifically refer to evidentiary hearings.

Confidentiality regarding hearings means, first of all, that hearings are held in private. In principle, only the parties and the arbitrators can participate in a hearing, along with the parties’ counsel, the secretary of the arbitral tribunal, and supporting staff (translators, court reporters providing live transcription, etc.). Third parties, the press, and the public are in principle not allowed to attend a hearing.¹²⁴ While fact and expert witnesses are being examined, they obviously have to attend the hearing, in person or sometimes via video conference. Once their own examination is over, they can also be allowed in the hearing room while other witnesses and experts are being examined (so that their testimony is not influenced by prior statements of other witnesses).

Confidentiality regarding hearings is, however, not limited only to privacy of hearings per se. Hearings generate many documents, such as transcripts of oral evidence or opening and closing submissions. Moreover, some information on the content of hearings is not documented but can be disclosed orally. The question is whether confidentiality of these documents and information should be maintained.

In this section, we will first examine how confidentiality of hearings is regulated in arbitration law and practice. We will see that while privacy of hearings is generally admitted, the confidentiality of information and documents surrounding hearings can be subject to controversy. Second, we will analyse whether there is a correlation between privacy of hearings and confidentiality of arbitration. We will see that such a correlation exists: privacy of hearings serves the goal of maintaining confidentiality of arbitration.

4.5.2 Arbitration Law and Practice on Confidentiality of Hearings

4.5.2.1 Privacy of Hearings

Privacy of arbitration hearings is not disputed. Most prominent writers agree that arbitration hearings are to be held in private.¹²⁵ State courts in several jurisdictions have also held that hearings are to be held in private. For example, the Swiss Supreme Court established that, unlike in state court proceedings, where the right to a public hearing is provided for by the ECHR and by the Federal Constitution,¹²⁶ the right to a public hearing is not guaranteed before arbitral tribunals.¹²⁷ The English High Court was even more explicit, stating in Hassneh Insurance v. Mew that privacy of hearings has been universal for hundreds of years and is thus undisputed:

If the parties to an English law contract refer their disputes to arbitration they are entitled to assume at the least that the hearing will be conducted in private. That assumption arises from a practice which has been universal in London for hundreds of years and [is], I believe, undisputed. It is a practice which represents an important advantage of arbitration over the Courts as a means of dispute resolution. The informality attaching to a hearing held in private and the candour to which it may give rise is an essential ingredient of arbitration.¹²⁸

In its Esso/BHP v. Plowman decision (see the discussion of this case in Sect. 3.2.3.4), while rejecting the existence of an implied duty of confidentiality, the High Court of Australia held that the hearings were private in the sense that they were not open to the public.¹²⁹ It found that this privacy had its origins ‘in the subject-matter of the agreement to submit disputes to arbitration’, rather than attributing private character of the hearing to an implied term.¹³⁰

Many institutional arbitration rules have a specific provision regarding the privacy of hearings.¹³¹ Most arbitration rules state that hearings would be held ‘in private’,¹³² while some use the term ‘in camera’¹³³ (which has the same meaning). The ICC Rules have more explicit language, stating that ‘persons not involved in the proceedings shall not be admitted’ to the hearings.¹³⁴

However, hearings can be attended by third parties or even by the public in some cases. Most arbitration rules allow an exception to the privacy of hearings rule if there is consent from the parties.¹³⁵ Some arbitration rules provide that this consent should be given in writing.¹³⁶ The ICC and the CEPANI Rules require approval from both parties and the arbitral tribunal for the hearing not to be held privately,¹³⁷ while the LCIA Rules require, alternatively, either agreement of the parties or directions of the arbitral tribunal.¹³⁸

4.5.2.2 Confidentiality of Documents and Information Surrounding Hearings

While privacy of hearings is a settled issue, confidentiality of the documents and information surrounding hearings can be subject to controversy. Some national arbitration laws expressly regulate this issue. Thus, the NZAA defines confidentiality so as to cover

‘any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal’ and ‘any transcript of oral evidence or submissions given before the arbitral tribunal’.¹³⁹

We think that not only privacy of hearings should be maintained, but also confidentiality of information and documents surrounding the hearings. In our opinion, this is necessary to maintain the confidentiality of the arbitration. Hearing documents and information should in principle be protected by confidentiality, as they are closely related to hearings and cannot be disclosed without opening the door to what was discussed at the hearing.

4.5.3 Correlation Between Privacy of Hearings and Confidentiality of Arbitration

Today, many authors emphasise that a distinction needs to be made between privacy of arbitration hearings and confidentiality of arbitration. We agree that privacy of hearings does not automatically imply that arbitration proceedings are confidential. On the other hand, it appears wrong to deny any correlation between confidentiality of arbitration and privacy of hearings.

This correlation has a long history in arbitration law. Arbitration proceedings have long been considered confidential, with no one seriously questioning the sources of this confidentiality, but the confidential nature of arbitration was sometimes attributed to the fact that arbitration hearings were held privately. Thus, in the previously cited Hassneh Insurance v. Mew, the English High Court held that the confidentiality duty over certain documents related to the arbitration proceedings was a natural extension of privacy of the hearing:

If it be correct that there is at least 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 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.¹⁴⁰

The High Court of Australia took an opposite view in Esso/BHP v. Plowman, however, denying the overall confidentiality of the arbitration proceedings although admitting the private character of the hearing.¹⁴¹ This ruling provoked much valuable questioning of the legal basis of confidentiality, and promoted recognition that privacy of hearings does not imply confidentiality of the whole arbitration process.

If not confidentiality, the question is what would be the reason for holding hearings in private? One might argue that it is easier to organise a hearing if the number of participants is known in advance. Other than this argument of minor importance, we cannot find any other reasons to hold hearings privately. Confidentiality appears to be the main reason for private hearings. Indeed, arbitration hearings have been held privately for hundreds of years because the parties seek for discretion and do not want the details of their dispute to be known to outsiders. Thus, privacy of hearings is not just a rule of practical convenience: its main rationale is keeping confidentiality of the dispute.

4.6 Intermediary Conclusions

The content of the duty of confidentiality is very broad. It includes virtually any information and documents relating to arbitration proceedings, arbitral awards, and hearings, including the existence of the arbitration itself. There are obviously exceptions to this general duty of confidentiality, that we will examine in Sect. 4.5.

First, any information regarding arbitration proceedings, including the mere existence of an arbitration, can be subject to confidentiality. Whether a particular type of information is regarded as confidential will depend on various circumstances of the case, such as the reasons and consequences of the disclosure, rather than on which piece of information was disclosed. Indeed, if there was a legitimate reason for making disclosure, no breach of confidentiality can be admitted. On the contrary, a breach of the duty of confidentiality should be admitted if there was no legitimate reason for revealing the confidential information or document, and especially if the disclosure was made in bad faith with the purpose of damaging the other party’s interest.

Second, any documents exchanged in the course of arbitration proceedings should be subject to confidentiality. We agree with the extensive approach to confidentiality adopted by Art. 3.13 of the IBA Rules on Evidence, which stipulates that

‘[a]ny documents submitted or produced by a Party or non-Party in the arbitration ... shall be kept confidential ... and shall be used only in connection with the arbitration’.

We think that this solution encourages candour on the part of the persons participating in arbitration proceedings and reinforces the principle of confidentiality of arbitration. This confidentiality duty should, however, be limited to the documents to which a person wishing to disclose them had access only because of the arbitration.

Third, with regard to confidentiality of arbitral awards, most arbitration rules and national arbitration laws regulating this issue impose a duty of confidentiality. Confidentiality is, however, not an obstacle to a disclosure justified by a legitimate use of arbitral awards outside of the arbitration proceedings. Confidentiality of arbitral awards is also no obstacle to publication of arbitral awards if the parties give their consent, or even without the parties’ consent, if the awards are published in such a form that the parties cannot be identified.

Today current publication practices are quite diverse, but there is no systematic publication of arbitral awards. Systematic publication of arbitral awards can, however, result in many advantages, such as creating consistent arbitral case law, enhancing transparency of the arbitration, improving the quality of arbitral awards, promoting the arbitration as a dispute resolution method, making arbitrations more accessible for the users, enabling users to make a more informed decision when choosing an arbitration institution and appointing an arbitrator and facilitating voluntary execution and enforcement of arbitral awards. For these reasons, we think that a systematic publication of arbitral awards should be aimed in the future.

Finally, although privacy of hearings does not automatically imply that arbitration proceedings are confidential, there is a correlation between the two. The main rationale for holding hearings privately is to prevent third parties from learning the details of an arbitration dispute. Privacy of hearings thus primarily serves the goal of maintaining confidentiality of arbitration. Since privacy of hearings is generally admitted and is not subject to any controversy, it could be recognised, in our view, as an autonomous lex mercatoria principle. In addition to privacy of hearings, all information and documents surrounding hearings, such as transcripts of hearings, opening and closing submissions, should also be subject to confidentiality.