Confidentiality is one of the most controversial issues in international commercial arbitration. On the one hand, it is widely recognized that confidentiality is an important advantage of arbitration which contributes to its attractiveness. On the other hand, there is no uniform régulation in national législations, arbitration rules, and other relevant sources as to the scope or even to the existence of a duty of confidentiality.
Despite ail the uncertainty, however, confidentiality has long been considered an inherent feature of international arbitration. In addition, since arbitral hearings are traditionally held privately and arbitral awards are published only sporadically (in contrast with court proceedings and court judgments), there have been no reasons in the past to believe that arbitral proceedings were not confidential.
And then in 1995, the High Court of Australia in Esso/BHP etc. v. Plowman rendered a décision that came as a shock for most of arbitration scholars and practitioners. In this case, the Australian Supreme Court held that unless the parties had specifically agreed on a confidentiality provision, there was no obligation of confidentiality regarding the information obtained in the course of the arbitration, and that such information could thus be disclosed to third parties.
Since the Australian Esso case, there has been much debate on the issue of confidentiality. However, the analysis I have done in my thesis has shown that not ail aspects of confidentiality are controversial. The main two controversial issues are i) the parties' implied duty of confidentiality and ii) the publication of arbitral awards. In my thesis, I have tried to demonstrate that a consensus is possible on both issues and proposed a solution so that a uniform approach to confidentiality could be adopted in most if not ail jurisdictions.
My proposai is to introduce a rule on confidentiality into national arbitration laws. First, if a rule on confidentiality is contained in national arbitration law, this will put an end to the debate on the existence of an implied duty of confidentiality. There would be a spécifié provision having a binding légal effect on ail persons involved in arbitration proceedings. Second, unlike provisions on confidentiality in arbitration rules, provisions on confidentiality in national arbitration laws would apply to ail arbitrations as every arbitration will necessarily be governed by some national law. Third, institutional arbitration rules have a binding effect only on the parties, on the arbitration institutions, and on arbitrators. National arbitration laws, as the lex arbitri, would also have a binding effect on counsel and on third parties, such as fact and expert witnesses, third party funders, interpreters, and court reporters.
In the meantime, as long as confidentiality has not become the universally recognized rule in international commercial arbitration, I recommend that parties seeking predictability on the issue of confidentiality enter into a tailor-made agreement or adopt institutional rules containing provisions on confidentiality of arbitration proceedings. As long as the law governing an arbitration does not contain mandatory provisions on confidentiality, the parties' agreement will always prevail.
11 octobre 2018
As to publication of arbitral awards, some légal scholars argue that confidentiality of arbitration is not compatible with the général tendency towards transparency and that confidentiality contradicts the principle of openness of court proceedings. In my opinion, confidentiality should not be an obstacle to publication of arbitral awards if the parties give their consent and even without the parties' consent, if the awards are published in such a form that the parties cannot be identified. This last approach has already been adopted by some arbitration institutions, such as Milan Chamber and Vienna International Arbitral Centre, which allow publication of sanitized arbitral awards even without the parties' express agreement.
I argue for a systematic publication of arbitral awards as this would help, in particular, to create consistent arbitral case law, improve the quality of arbitral awards, promote arbitration as a dispute resolution method and enable users to make a more informed décision when choosing an arbitration institution and appointing an arbitrator.
In my thesis, I am taking a pro-confidential approach, but I am not for an absolute confidentiality. The confidentiality obligation should be subject to certain exceptions. The purpose of maintaining confidentiality would be to protect primarily the parties from undesirable leaks that can be avoided and to protect arbitration as an institution. As to a systematic publication of arbitral awards without identifying the parties' identity, it is desirable and should be the goal.