Preview Page SAR 2000 - 1
1. INTRODUCTION
We all know now that the answer to the broad question of whether
international commercial arbitration is confidential is “it all depends”.
What it depends upon will often be a complex mixture that can include the
nature of the information in question, express provisions of the parties’
agreement to arbitrate, institutional rules, the law governing the parties’
agreement to arbitrate and the law of the place where enforcement of the
obligation of confidentiality is sought.
How then should one best go about answering the more narrow
and specific question with which practitioners are often presented “is there
a remedy in respect of a particular threatened or actual disclosure of
material used, or generated, in the course of an arbitration?”. Since, as will
be seen below, each of the elements in the mix varies considerably from
case to case, and the possible permutations are almost infinite, no
generally applicable answer can sensibly be offered and it would be
foolish to talk in terms of “a rule” regarding confidentiality. In reality
there are a variety of possible sources from which obligations of
confidentiality will arise, varying in their scope and the exceptions to
them. The following is suggested as an ordered approach to answering this
question. Its primary purpose, as the title suggests, is methodological. It is
not intended as a comparative survey, although reference will be made to
various institutional rules and decisions of national courts for the purposes
of illustration.
By way of further preliminary observation, it is one thing
successfully to identify a soundly based legal entitlement to preserve the
confidentiality of particular material. It is another to enforce such a right
or to punish an offender for its breach. This is an area where the
theoretical primacy of the arbitral tribunal is often overborne by the
practical attractions of invoking directly the sanctions of national courts.
There are many possible reasons for this. The following are those most
often encountered in practice
