Confidentiality in International Commercial Arbitration

Confidentiality in arbitration has for many years been taken for granted by the parties involved. The question has, until recently, almost never been debated. Even though there has been an assumption that there is a duty of confidentiality, it normally does not rest on a statutory basis. Two opposing views have been taken among judges and scholars regarding the legislative silence. One point of view is that to the extent that confidentiality is an attribute of arbitration, it must be found in either the applicable arbitration rules or in the arbitration agreement itself. The other position is that confidentiality is an implied term in all arbitration agreement that depends on the nature of arbitration itself. England and Australia can justly be said to be each other's counter poles regarding this issue. English courts act on the presumption that there is an implied duty of confidentiality in an agreement to arbitrate. Disclosure is allowed only to protect a party's right vis-à-vis a third party. The party wishing to make a disclosure has to establish that it is necessary to do so&semic in practice, that party would have to show that the right which it was seeking to enforce against third parties could not be enforced or protected without the reasoned award. The High Court of Australia has expressly rejected the English view in the controversial Esso case, where it was argued that confidentiality is not an essential attribute of arbitration. This judgement was confirmed in a subsequent decision. The view in the United States seems to be in line with the Australian position. Civil Law countries, like France, Switzerland and Germany have followed the English view, that confidentiality is an implied term in all arbitration agreements. However, the Supreme Court of Sweden has, in a recent decision, held that a duty of confidentiality could not be implied into an arbitration agreement and concluded that a party in an arbitration proceeding under Swedish law is not bound by an undertaking of confidentiality, unless this has been specifically agreed. The purpose of this thesis was to see whether there exists an international principle of confidentiality in arbitration. The answer is that there is a definite lack of consensus in the international arbitration community. What is certain is, that confidentiality should not be taken for granted. My conclusion is that parties who submit their disputes to arbitration must draft their arbitration clauses with more care if they wish to retain confidentiality regarding the proceedings and the information obtained therein