The Question:
“confidentiality is a crucial feature of international commercial arbitration. It makes sense, therefore for confidentiality to be the default position and for any exceptions to confidentiality to be narrowly constructed” discuss.
References:
– Gary Born, International Arbitration: Law and Practice (2nd edn, Kluwer 2015), §§10.01–10.04
– UNCITRAL Arbitration Rules, Art 28.3
– AAY v AAZ [2009] SGHC 142 [33]–[72] (High Ct, Sing) (available at https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/2009-sghc-142.pdf) especially [33]–[72] in which the judge addresses the nature of an implied obligation of confidentiality and also exceptions to the obligation of confidentiality. Following on from the presentation, the relevant paragraphs in the judgment will enable you to understand further how a court in common law jurisdiction such as Singapore or England might approach such legal questions.
– imothy Foden and Odysseas G. Repousis ‘Giving away home field advantage: the misguided attack on confidentiality in international commercial arbitration’ (2019) 35 Arbitration International 401–418 In this article the authors (writing from an English law perspective) respond to criticisms about a default position of confidentiality in commercial arbitration. As the title suggests, they argue that a default position of confidentiality is one of the key advantages for commercial parties should they need to resolve a dispute.
– Catherine A Rogers, ‘Transparency in International Commercial Arbitration’ (2005–2006) 54 University of Kansas Law Review 1301–38
-Simon Crookenden QC, ‘Who Should Decide Arbitration Confidentiality Issues?’ (2009) 25 Arbitration International 603¬–613
– Philip Clifford and Eleanor Scogings, ‘Which law determines the confidentiality of commercial arbitration?’ (2019) 35 Arbitration International 391–95
– Michael Hwang, Katie Chung, Si Cheng Lim and Wong Hui Min, ‘Defining the Indefinable: = Practical Problems of Confidentiality (Second Kaplan Lecture, 17 November 2008’ in Hong Kong International Arbitration Centre (ed), International Arbitration: Issues Perspectives and Practice: Liber Amicorum Neil Kaplan (Kluwer Law International 2018) 21–78
Comments related to the subject:
– should there be a default position of confidentiality in international commercial arbitration? Or, confidentiality should operate on an ‘opt-in’ basis: i.e. parties will have to choose to be bound by confidentiality obligations?
– The debate over confidentiality in international commercial arbitration is part of a wider debate around transparency. Is there a lack of transparency in international commercial arbitration? Do we need greater transparency in international commercial arbitration? How might greater transparency be introduced? Why might transparency be important? It is with questions such as these that Rogers is concerned in this article.
