CONFIDENTIALITY UNDER ARBITRATION PROCEEDING: A VALID

ARGUMENT? A PROPOSED SOLUTION!

By ARPIT GURU & ASMITA PATEL

ABSTRACT

“Confidentiality is a paradigmatic aspect of arbitration.”

Privacy in arbitration proceedings gives a sense of security to the parties while confidentiality
goes a step further to ensure that parties do not disclose information that relates to the content
of the proceedings. Statistical survey of the US/European users conducted in 2012 by the
LCIA showed that confidentiality was the single most important perceived benefit of
arbitration. The purpose of this paper is to critically examine the principle of confidentiality
and whether such a duty exists in international arbitration. If the obligation exists, what are its
effects and limitations, if any? The first chapter is an introduction to the paper whereas the
second chapter discusses the Indian position regarding confidentiality in arbitration
proceedings. The third chapter deals with the laws relating to confidentiality in various
countries while the fourth chapter deals with the current trends in confidentiality and the fifth
chapter discusses rules of confidentiality under various arbitration institutions. The authors
conclude by expressing that while drafting arbitration agreement parties must rely on express
provision of the relevant rules or to enter into a specific confidentiality agreement which will
happen only if the provisions in the Arbitration and Conciliation Act relating to
confidentiality are amended.

1. Confidentiality Under Arbitration Proceeding

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 I. INTRODUCTION

One of the advantages often cited in favour of arbitration as opposed to litigation in the court
is that it is conducted in private.1 But the ease with which parties are able to hold closed-door
arbitration proceedings may provide a false sense of security regarding the confidentiality of
arbitral proceedings. There is no hard and fast legal rule regarding the confidentiality of
arbitration proceedings and related materials (such as pleadings, briefs and transcripts of
proceedings), and the scope of confidentiality largely depends on where the proceedings are
held, which arbitral body‟s rules govern, and whether the parties have acted proactively to
preserve confidentiality.2

Arbitration has become a permanent fixture of the landscape of civil justice. Arbitration is
promoted as a “private” or “confidential” process, raising some moral and perhaps ethical
obligations on the part of the profession to be candid with consumers as to the meaning and
limitations of arbitration confidentiality. Such candor is important because courts have begun
to receive challenges to arbitration confidentiality, and more can be expected in the future as
both voluntary and mandatory arbitration continue to expand and become more
institutionalized. This project will through light on the privacy or confidentiality, which is
guaranteed in the Arbitration proceedings.

II. INDIAN POSITION REGARDING CONFIDENTIALITY IN ARBITRATION

PROCEEDINGS

“The parties and the Tribunal shall at all times treat all matters relating to the proceedings
(including the existence of the proceedings) and the award as confidential”

Rule 34.6 of the SIAC Rules3

One of the advantages often cited in favour of arbitration as opposed to litigation in the court
is that it is conducted in private.4 In India there is only one express provision regarding
confidentiality that is Section 75 of the Arbitration and Conciliation Act 1996. 5 Except that

1
PETER SHERIDAN, CONSTRUCTION AND ENGINEERING ARBITRATION, 50 (1t ed. 1999).
2
Samuel Estreicher & Steven C. Bennett, The Confidentiality Of Arbitration Proceeding (Feb 15 2011)
www.jonesday.com/.../EstreicherBennett_NYLJ_081308.pdf
3
SingaporeInternationalArbitrationCentrehttp://www.siac.org.sg/cms/index.php?option=com_content&view=arti
cle&id=210&Itemid=130 (March 29 2011)
4
Supra note 2.
5
Confidentiality: Notwithstanding anything contained in any other law for the time being in force, the
conciliator and the parties shall keep confidential all matter relating to the conciliation proceedings.
Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for

2. Confidentiality Under Arbitration Proceeding

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nowhere confidentiality is mentioned in the Act.6 The requirement of confidentiality of the
arbitral proceedings extends to the arbitral award as well, except where its disclosure is
necessary for purposes of its implementation and enforcement.7 Also all persons who are
otherwise competent to contract can inter into valid arbitration agreement.8 The duty of
confidentiality of an award is conditional by the award itself, particularly, when disclosure is
reasonably necessary to establish or protect a legal right as against a third party by founding a
cause of action or defense to a claim.9

In India parties have the right to choose either ad hoc type of arbitration or institutional
arbitration. If parties choose institutional type then they have to follow the rules provided by
the institution but if parties go for ad hoc arbitration then they have autonomy to insert a
clause of confidentiality in the arbitration agreement.10 Arbitrations conducted in India are
mostly ad hoc and one of the disadvantages of Ad Hoc arbitration is as in institutional
arbitration, the secretarial and administrative staffs are subject to the discipline of the
institution, it is easy to maintain confidentiality of the proceedings. In ad hoc arbitration, it is
difficult to expect professionalism from the secretarial staff.11

Before moving further the definition Privacy of proceedings refers to ability of the uninvited
third party such as former spouses, business partners and media to access and observe the
proceedings and perhaps disclose those observations, without the consent of disputing parties
and possibly the arbitrator. The confidentiality proceedings, however, refers to procedure the
ability of disputing party the arbitrator, the witness, and other who attended the arbitration to
disclose publicly oral statement made in arbitration, document tendered in arbitration, the
observation of conduct of parties, witnesses, and arbitrators during the course of arbitration.12

The scope and effect of an arbitration agreement primarily depends on the terms of agreement
and is the question of intention of the parties.13 Here comes the concept of party autonomy

purposes of implementation and enforcement. Also Proviso of Section 70 of the Act speaks that party gives
information to conciliation subject to confidentiality the conciliation shall not disclose it to other party.
6
Norton-Rose Group ,Arbitration in Asia Pacific January2010 India, (March 30 2011)
www.nortonrose.com/.../Arbitration%20manuals/.../file26265.pdf?lang...
7
The Arbitration and Conciliation Act 1996, § 75 read with explanation to § 34(2)(b)(ii).
8
§11 Indian Contract Act 1872.
9
Infra note 57.
10
§ 7 of the Arbitration & Conciliation Act 1996.
11
Krishna Sarma, Development and Practice of Arbitration in India –Has it Evolved as an Effective Legal
Institution (March 28 2011)
www.iis-db.stanford.edu/.../No_103_Sarma_India_Arbitration_India_509.pd
12
Richard C. Reuben, Confidentiality in Arbitration: Beyond the Myth, 54 U. Kan. L. Rev. 1260 2005-2006.
13
Renusagar Power Company Ltd. v. General Electric Company, AIR 1985 SC 1156.

3. Confidentiality Under Arbitration Proceeding

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where in parties mutually agree for privacy and secrecy during and after the arbitration
proceeding.14 One of the major issues or problem occurs when a consultant/expert witness
concludes that its legal duty requires disclosure of such material, before making any such
disclosure, it will give the parties to the arbitration notice of its intention to disclose material
covered by this agreement. If the parties will not consent to the disclosure, the consultant/
expert witness and the parties will agree that the question of whether there is any applicable
and overriding law and duty in relation to the material under consideration will be presented
for decision to the arbitrator appointed under this agreement. The parties and the
consultant/expert witness agree to be bound by the ruling of the arbitrator whose decision will
be final and binding. However, many consultants and expert witnesses will refuse to enter into
this kind of contractual commitment. An appropriate confidentiality agreement must address
the legal duty of disclosure.15 The challenge is to draft a clause that will discourage a party
who is subject to a confidentiality agreement from unilaterally and arbitrarily determining that
its understanding of its legal duty of disclosure justifies the publication of confidential
information.16

III. LAWS RELATING TO CONFIDENTIALITY IN ARBITRATION

“People who want secrecy should opt for arbitration. When they call on the courts, they must
accept the openness that goes with subsidized dispute resolution by public officials.”17

 UNITED KINGDOM

In England the Arbitration Act 1996 does not include express provisions the issue of
confidentiality and privacy in arbitration.18

The issues whether the court should, as a matter of policy, hold that documents produced in
the course of a private arbitration between A and B cannot be disclosed in subsequent public
litigation between B and C, in the absence of the consent of the parties to the arbitration, was
decided in 1988 in Shearson Lehman Hutton Inc. v. Maclaine Watson & Co. Ltd.19, It was

14
Hulsbury‟s Laws of India, Vol. 2, 193 [20.32].
15
Varsha Rajora, Confidentiality in Arbitration, (March 29 2011)
http://ssrn.com/abstract=1572221
16
Robert J. „Confidentiality in Arbitration: Beyond the Myth‟ (March 29 2011)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925281
17
Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
18
See The Department Advisory Committee on Arbitration Law Reports on the Arbitration Bill (Feb 1996) para
10-17.
19
[1989] 1 All E.R. 1056.

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common ground that arbitration are private and confidential, but that did not settle the issue.
Webster J. noted n a short judgment that there is was clear authority that not every
confidential communication is protected from discovery20 and “all discovery represents an
invasion of privacy”. His order was for disclosure, to include such arbitration document as the
pleadings, documents that had been produced by way of evidence, the transcript of the
proceedings and the award. In Science Research Council v. Nasse21, the House of Lords had
held that relevance alone does not provide an automatic test for widening discovery and the
ultimate test is whether discovery is necessary for disposing fairly of the proceedings. The
fact that document was documents were confidential was a factor to be taken into account for
disposing fairly of the proceedings. The fact that document was documents were confidential
was a factor to be taken into account.

Even in the matters ordering of concurrent hearing by arbitrators the court held that arbitrators
enjoy no power to order concurrent hearing, or anything of that nature, without the consent of
the parties. The concept of private arbitration derives simply from the fact that the parties
have agreed to submit to arbitration particular dispute arising between them. It is implicit in
this that strangers are shall be excluded from the hearing and conduct of the arbitration and
that neither the tribunal and nor any of the parties can insist that the dispute shall be heard or
be determined concurrently with or even in consonance with another dispute, however
convenient that course may be to the party seeking it and however closely associated the
disputes in question may be.22

IMPLIED TERMS

The courts in England have develop a set of terms said to be implicit in arbitration agreement,
the considerable details and conditionality of which is problematic and which may well be not
be accepted as correct in other jurisdictions.23 It is an implied term in arbitration agreement
that the proceedings are to be in private, in the limited sense that stranger will be excluded
from attending at the hearing.24

Where the parties‟ intention is relevant to the test for implied terms, it is the parties presumed
intention, objectively judged. What the parties actually intended as a matter of fact is
20
Wheeler v. Le Marchand (1881) 17 Ch.D. 675 and the House of Lords in D v. National Society for the
Prevention of Cruelty to Children [1978] A.C.171; [1977] 1 All E.R. 589.
21
[1980] A.C. 1028, HL.
22
Oxford Shipping Co. Ltd v. Nippon Yusen Kaisha The Eastern Saga [1984] 3 All E.R. 835,CA, at 842.
23
Esso Australia Resource Ltd. v. Plowman (1995) 183 C.L.R. 10.
24
Bibby Bulk Carriers Ltd v. Cansulex Ltd. [1989] 1Q.B. 155.

5. Confidentiality Under Arbitration Proceeding

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irrelevant and inadmissible. In BP Refinery (Westenport) Pty Ltd v. Shine of Hastings,25 Lord
Simon made the following statements “…for a term to be implied, the following conditions
(which may overlap) must be satisfied:

1. It must be reasonable and equitable

2. It must be necessary to give business efficacy to the contract, so no terms will be
implied if the contract is effective without it;
3. It must be so obvious that „it goes without saying;
4. It must be capable of clear expressions;
5. It must not contradict any express term of the contract.26

There are broad exceptions to the rule of confidentiality like (i) Consent i.e. where disclosure
is made with the express or implied consent of the party who originally produced the material.
(ii) Order of the court. (iii) Leave of the court.27 Leave will be given in respect of disclosure
when, and to the extent to which, it is reasonably necessary for the protection of the legitimate
interest of the arbitrating party.28

EXPRESS TERMS

Where confidentiality is a priority of the parties, it is of particular importance to address this

in the arbitration agreement and to exclude expressly any right of disclosure to third party. It
is also sensible, to minimize the prospects of disclosure, to exclude right of appeals on the
question of law.

 UNITED STATES OF AMERICA

In U.S. the law that governs arbitration is the Federal Arbitration Act (“FAA”) and rules of
American Arbitration Association (“AAA”). In U.S. neither the FAA nor the Uniform
Arbitration Act 1995 contains a provision requiring the parties or the arbitrators to keep secret
arbitrations proceedings in which they are involved. As a consequence, unless the parties‟

25
(1978) 52 A.L.J.R. 20.
26
Ibid
27
The common view in English law is that the parties‟ arbitration agreement gives rise to an implied duty of
confidentiality; Ali Shipping Corporation v. Shipyard Trogir [1999] 1 WLR 314. Limitations on the general
duty of confidentiality with respect to the award are set forth in Associated Electric and Gas Insurance Ltd v.
The European Reinsurance Company of Zurich [2003] UK PC 11.
28
PETER SHERIDAN, CONSTRUCTION AND ENGINEERING ARBITRATION, 50 (1t ed. 1999).

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agreement or applicable arbitration rules provide otherwise, the parties are not required by US
law to treat as confidential the arbitration proceedings and what transpires in them.29

The situation regarding confidentiality was in depth dealt in the case of Gotham Holdings v.
Health Grades30 where after a dispute arose between Health Grades and Hewitt regarding the
DSA (Development and Service Agreement) they submitted to binding arbitration before
AAA. The parties entered into a Stipulated Protective Order and Confidentiality Agreement.
The Stipulated Protective Order required the parties to destroy any confidential documents
obtained during the Arbitration within 45 days after entry of final judgment. After the
judgement however Hewitt's counsel maintained its copies of the confidential arbitration
documents in violation of the Stipulated Protective Order. After some time the plaintiffs
caused a subpoena to issue from the District Court to Hewitt seeking, inter alia, documents
from the Arbitration. The Federal Court reversed the judgement of the District Court and held
that the confidential arbitration documents from Health Grades and Hewitt's Arbitration are
“protected matter” under Fed. R. Civ. P. 45(c)(3)(A)(iii).31

The court gave its reasoning as, Arbitration is a private and confidential proceeding. The FAA
allows litigants to opt out of the public system of law and move disputes into a private setting.
The private nature of arbitration is underscored by the greatly restricted review of arbitration
awards.32 Arbitration is a private and confidential proceeding. The FAA allows litigants to opt
out of the public system of law and move disputes into a private setting. The private nature of
arbitration is underscored by the greatly restricted review of arbitration awards. 33 The law's
safeguard of arbitral confidentiality is evidenced in analogous contexts involving private
dispute resolution: confidential settlement agreements and mediation. Here, too, the courts
protect the confidentiality of those proceedings.34

 GERMANY

29
Industrotech Construction Inc. v. Duke University (1884) 67 N.C. App. 741.
30
2009 WL 2251060 (C.A.7).
31
Federal Rules of Civil Procedure.
32
Ibid.
33
Twist v. Arbusto, 2007 WL 30556, at (S.D.Ind., Jan. 3, 2007) (unpublished) (noting that FAA provides
exclusive authority over arbitration contracts and that “Federal Rules of Civil Procedure do not provide district
courts an alternate grant of authority over arbitration proceedings”).
34
Fireman's Fund Ins. Co., 2005 WL 1522783, (finding that presumption against access to confidential settlement
agreements “is equally applicable to the arbitration proceeding”).

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In Germany the Frankfurt Court in its decision of 22.10.2004, 35 stated clearly that there is a
presumption towards the observance of confidentiality, but, that, where parties wanted to have
specific effects, such as in the case to have award annulled, because the alleged bias of the
arbitrators impliedly pertained also an attack to the confidentiality, then they should have
formulated a specific to this effect confidentiality clause.

The issue of disclosure, or nor, of information of arbitral proceedings, to subsequent ones, or,
of consolidation of arbitral proceedings, depends on the agreed contractual confidentiality
obligation. The right of an arbitral tribunal, to require production of documents, must be seen
against the background, which allows only a limited production of documents. Depending on
the agreement of the parties, the latter may be free, to use the information disclosed in arbitral
proceedings for other purposes.36

IV. CURRENT TRENDS REGARDING CONFIDENTIALITY

The current trend in International Commercial Arbitration is to distinguish between the

unquestioned privacy of the hearing and the confidentiality of the arbitral proceeding as a
whole. This trend seems to have considerably influenced by arbitrations in which there was a
genuine public interest in the sense that decision of arbitral tribunal would in some way affect
the general public. For example, Esso Australia Resources Ltd v. The Honorable Sidney
James Plowman37 the Australian court concluded that whilst the privacy of the hearing should
be respected, confidentiality was not an essential attribute of a private arbitration.
Specifically, the court found that a requirement to conduct proceeding in camera did not
translate into an obligation prohibiting disclosure of document and information provided in,
and for the purpose of, the arbitration. The court then concluded that although a certain degree
of confidentiality might arise in certain situations, it was not absolute. In the particular case
before the court, “the public‟s legitimate interest in obtaining the affairs of public authorities”
prevailed.38

New Zealand‟s Arbitration Act 1996 provides for disclosure of information relating to arbitral
proceeding and award prohibited.39 The Swedish Supreme Court in Bulgarian Foreign Trade

35
OLG Frankfurt, Beschl, V. 22.10.2004-Case 2 Sch. 01/04 (2).
36
KYRIAKI NOUSSIA, CONFIDENTIALITY IN INTERNATIONAL COMMERCIAL ARBITRATION: A
COMPARATIVE ANALYSIS OF THE POSITION UNDER ENGLISH, US, GERMAN and FRENCH LAW,
125 (1t ed. 2010).
37
(1995) 183 C.L.R. 10. The case is also set out in (1995) Arbitration International, Vol.11, No.3, p.235.
38
Ibid.
39
Section 14B Disclosure of information relating to arbitral proceeding and award prohibited:

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Bank Ltd. v. A.L. Trade Finance Inc.40 the court held that it is advisable for those who wish
for confidentiality rather than transparency to be very specific on confidentiality, when
drafting arbitration clauses. Those who wish confidentiality, specifically, have to accept the
burden of having to agree on that, especially since transparency and the risk of public display,
generally, seems to work as a drivers for settlement, and, perhaps mediation subject to
complete secrecy, before even starting arbitration proceedings. 41 More specifically, parties
drafting arbitration clauses, who are concerned to ensure a confidential arbitration process,
should consider:

1) Whether, the law of the location of the arbitration is a strong defender of

confidentiality in arbitration, and,
2) If an arbitral institution has been chosen, what confidentiality provisions are contained
in those rules.

If there remains concern, about the level of confidentiality afforded by the chosen process, it
will be pursuant to include specific wording, in the arbitration clause, to ensure
confidentiality.

Whether the rule of implicit construed correctly?

There are certain guidelines which the Indian courts can use while dealing with insinuated in
the arbitration agreement. It is implicit in an arbitration agreement that:

1. Strangers to the agreement should be excluded from hearing and conduct of arbitration
proceedings under the agreement.42
2. The parties must not disclose or use for any other purpose any document prepared for
and used in the arbitration or disclosed or produced in the course of arbitration or transcripts

(1) Subject to subsection (2), an arbitration agreement, unless otherwise agreed by the parties, is deemed to
provide that the parties shall not publish, disclose, or communicate any information relating to
arbitration proceedings under the agreement or to an award made in these proceedings.
(2) Nothing in subsection (1) prevents the publication, disclosure, or communication of information
referred to in that subsection
(a) If the publication, disclosure or communication is contemplated by this Act; or
(b) To a professional or other adviser of any of the party.
Section 14 D gives power of Act gives power to Arbitral Tribunal to disclose confidential information in certain
circumstances
40
Bulgarian Foreign Trade Bank Ltd. v. A.L. Trade Finance Inc, Judgement of October 27, 2000 Swedish
Supreme Court.

42
Oxford Shipping Co. Ltd. v. Nippon Yusen Kaisha, The Eastern Saga [1984] 3 ALL ER 835.

9. Confidentiality Under Arbitration Proceeding

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or notes of the evidence in the arbitration or like award and they must not disclose in any
other way what evidence has been given by any witness in the arbitration.43

There are three qualifications to the obligation under head (2) above, namely:

1. Such documents may be disclosed with the consent of the other party.44

2. Such document may be disclosed pursuant to an order or permission of the court.

3. The award may be disclosed to a stranger to the arbitration if it is sufficiently
necessary to do so in order to enforce or protect the legal right of the party to
arbitration agreement.45

These qualifications do not extend to the material underlying the award such as statements
of any case and witness statements.46

V. RULES OF CONFEDENTIALITY UNDER INTITUTIONS

 CONFIDENTIALITY UNDER INTERNATIONAL COMMERCIAL
ARBITRATION (ICA)

Privacy is a long established hallmark of international commercial arbitration. One of the

main attraction of arbitration is undoubtedly the ability to resolve commercial dispute
discreetly, without exposure to the public scrutiny often associated with national court
proceedings.47 In most arbitration, the discretion of parties is enough to prevent sensitive
information from being disclosed to public. However, privacy, even if deeply established in
custom, does not equate to confidentiality, which implicates a legal obligation to avoid public
disclosure of sensitive information. Thus, it is not imprudent to expect that international
arbitration will take place in completely closed environment in which all sensitive information
and document remain private and confidential.48

The disclosure may depend on other important factors, such as the existence and scope of a
confidentiality agreement and/or confidentiality order, and the mandatory provisions of any
governing law on confidentiality. Further, the participation of non-disputing parties in the

43
Dolling Barker v. Merrett [1991] 2 ALL ER 890 at 899.
44
Ibid
45
Hassneh Insurance Co. of Israel v. Mue [1993] 2Lloyd‟s Rep 243.
46
Halsbury‟s Laws of England, 4th ed. Vol. 2(3), 2003.
47
P SANDERS, THE WORK OF UNICITRAL ON ARBITRATION AND CONCILIATION, 45 (2d ed. 2004).
48
DAVID D CARON, LEE M CAPLAN & MATHI PELLON, THE UNICITRAL ARBITRATION RULES; A
COMMENTARY, 33-35 (1t ed. 2006).

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arbitral process, namely as amicus curiae, may be determined by the public character of
arbitration. But there is no uniform answer in national laws as to the extent to which the
participants in arbitration are under the duty to observe the confidentiality of information
relating to the case.49

 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAWS

(UNCITRAL)

The UNCITRAL Rules address only a handful of issues relating to the exclusivity of
arbitration process. Article 25(4) requires that the hearing “be held in camera.” Article 31(2)
provides that the deliberation of the arbitral tribunal must be conducted “in private”.
According to Article 32(5), the award may be published “only with consent of both parties.”

The best protection against disclosure of sensitive information relating to the arbitration
process is a precise and comprehensive agreement by the parties on all confidential matters. A
confidential agreement may assume many forms with equal effectiveness. It may be fashioned
as part of the arbitration agreement,50 as a modification of Rules, in accordance with Article
1(1), or as a separate agreement reached by the parties during the early phase of arbitration.
Regardless of any agreement‟s form, the arbitral tribunal may wish to issue a procedural
order, pursuant to Article 15 (1), which endorses any agreed upon terms of confidentiality or,
if agreement has not been reached with respect to one or more terms, establishes such terms to
the extent necessary. Once embodied in a procedural order, the term confidentiality are
binding on the parties and enforceable by the tribunal, if necessary, in accordance with the
relevant provisions of the UNCITRAL Rules.51

 AMERICAN ARBITRATION ASSOCIATION COMMERCIAL

ARBITRATION RULES (AAA)

AAA Commercial Arbitration Rules require arbitrators to “maintain the privacy of hearing
unless the law provides to the contrary.”52

49
Report of the United Nations Commission on International Trade Law on the work of its twenty-sixth session,
Official Records of the General Assembly, Forty-eighth Session, Supplement No.17 (A/48/17) (reproduced
in UNCITRAL Yearbook, vol. XXIV: 1993, part one), paras. 291-296.
50
L Trankman, Confidentiality in International Commercial Arbitration, 18(1) Arb Intl 1, 9 (2002).
51
For example, in accordance with Article 38 and 41 of the Rules, the arbitral tribunal may apportion the cost of
additional proceedings caused by breach of confidentiality to the breaching party. See
52
AM. ARB. ASS‟N COM. ARB. R. & MEDIATION PROC. R. 23 (amended 2005) (March 23 2011)
http://www.adr.org/sp.asp?id=22440#R.23

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 The arbitration rules of the International Institute for Conflict Prevention and Resolution
(CPR) provide that “arbitrators and CPR shall treat the proceedings…as confidential… unless
otherwise required by law or to protect the legal rights of a party.”53

The oldest and arguable most significant ethics rules for arbitration also provides that “all
significant aspects of an arbitration proceedings must be treated by the arbitrators as
confidential unless this requirement is waived by both parties or disclosure is required or
permitted by law.”54

 LONDON COURT OF INTERNATIONAL ARBITRATION (LCIA) RULES

1998

LCIA rules have a broad confidentiality provision55 and also recognizes the parties undertake
as a general principle to keep confidential all awards in their arbitration, together with all
materials in the proceedings created for the purpose of the arbitration, and all other documents
produced by another party in the proceedings not otherwise in the public domain––save and to
the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal
right or to enforce or challenge an award in bona fide legal proceedings before a state court or
other judicial authority.56 Rules, save where the act or omission is shown by that party to
constitute conscious and deliberate wrongdoing committed by the body or person alleged to
be liable to that party.57

53
INT‟L INST. CONFLICT PREVENTION AND RESOLUTION, RULES FOR NON-ADMINISTERED ARB.
R. 17 (amended 2005), (March 21 2011)
http://www.cpradr.org/pdfs/arb-rules2005.pdf.
54
CODE PROF. RESP. ARB. LAB.-MGMT. DISP. NAT‟L ACAD. ARB., AM. ARB. ASS‟N, FED
MEDIATION & CONCILITATION SERV., STD 2(c) (amended 2003). (March 21 2011)
http://www.naarb.org/code.html.
55
Article 30.1-Unless the parties expressly agree in writing to the contrary, the parties undertake as a general
principle to keep confidential all awards in their arbitration, together with all materials in the proceedings
created for the purpose of the arbitration and all other documents produced by another party in the proceedings
not otherwise in the public domain - save and to the extent that disclosure may be required of a party by legal
duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before
a state court or other judicial authority. See QUENTIN LOH SZE & EDWIN LEE PENG KHOON,
CONFIDENTIALITY IN ARBITRATION: HOW FAR DOES IT EXTEND? 47-49 (1t ed. 2007).
Article 30.2 -The deliberations of the Arbitral Tribunal are likewise confidential to its members, save and to
the extent that disclosure of an arbitrator's refusal to participate in the arbitration is required of the other
members of the Arbitral Tribunal under Articles 10, 12 and 26.
Article 30.3-The LCIA Court does not publish any award or any part of an award without the prior written
consent of all parties and the Arbitral Tribunal.
56
LCIA, Arbitration Rules, art. 30.1 (effective 1 January 1998),
http://www.lcia- arbitration.com/lcia/rulecost/english.htm (March 30 2011). The LCIA also does not publish its
awards unless the parties and the tribunal consent. See id. art. 30.3. That policy contrasts with that of the ICC,
which does publish its decisions, albeit with identifying information deleted.
57
LCIA Arbitration Rules - (adopted to take effect from 1 January 1998)

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VII. CONCLUSION

One of the advantages of arbitration is that it is a private proceeding, in which the parties may
air their differences and grievances and discuss their financial circumstances, their proprietary
“Know-how” and so forth, without exposure to the gaze of the public and the reporting of the
media. The fact that arbitral hearings are held in private still remains a constant feature of
arbitration. However to ensure confidentiality of the entire proceedings, it is increasingly
necessary to rely on an express provision of the relevant rules (for instance of the UNCITRAL
or AAA) or to enter into a specific confidentiality agreement (and it seems that this may be
over-ridden in some jurisdictions if the relevant court considers it to be in the public interest
that it should be).58

It is suggested that the there has to be amendment in the Arbitration and Conciliation Act of
1996 in which the concept of confidentiality is should be dealt in detail. And also it is upon
the courts to regulate and tag the evidence or the confidential material should be for public
eyes or not. Till the time there is no amendment in the Act, Indian courts should follow the
doctrine of implied confidentiality that is followed in U.K. Also if there is violation of public
trust then the arbitrator or the witness should be legally allowed to give certain information to
authorities.

http://www.jus.uio.no/lm/lcia.arbitration.rules.1998/toc.html
58
ALAN REDFERN & MARTIN HUNTER, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION, 33-36 (4h ed. 2006).

13. Confidentiality Under Arbitration Proceeding

Electronic copy available at: https://ssrn.com/abstract=2303687