Originally from: Handbook on International Commercial Arbitration - Hardcover Handbook on International Commercial Arbitration - Electronic
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Confidentiality as a Ground for Resisting Disclosure
Peter Ashford
One of the main attractions of arbitration is the ability of parties to resolve disputes outside of the glare of the publicity that might arise in litigation before national courts. This does not, however, address the concerns that discovery may create in terms of revealing commercially or technically sensitive material to the opponent in arbitration. Further, such concerns are unlikely to be assuaged by the inherent confidentiality of arbitration which prevents the use of discovery documents for any ulterior purpose. Once the “cat is out of the bag,” it is difficult to put it back in, not so much in terms of preventing use but in removing or preventing the use of the knowledge derived from the documents. Equally one party may have the documents of a stranger to whom he owes duties of confidentiality. Under English law, confidentiality is no answer to a request for discovery as Lord Wilberforce in the House of Lords said in Science Research Council v. Nasse: There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence . . . the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties . . . may be affected by disclosure, to the interest . . . in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality . . . It remains a matter of discretion and, as the Lord Diplock said in the House of Lords in D v. NSPCC: The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating . . .
Full Table of Contents from "Handbook on International Commercial Arbitration"
About the Author
Preface
Chapter 1 What Claims May Be Arbitrated
Chapter 2 Separability
Chapter 3 The Proper Law
Chapter 4 Conditions Precedent to a Reference
Chapter 5 Getting Started
Chapter 6 Parties and International Commercial Arbitration
Chapter 7 Arbitral Independence
Chapter 8 Duties and Obligations of the Arbitral Tribunal
Chapter 9 Preliminary Meeting
Chapter 10 Terms of Reference and Lists of Issues
Chapter 11 Secretaries
Chapter 12 Representation
Chapter 13 Written Pleadings
Chapter 14 Set-Off
Chapter 15 Interim Measures
Chapter 16 Procedural Agreements and Party Autonomy
Chapter 17 Giving Discovery
Chapter 18 Disputes on the Extent of Discovery Given
Chapter 19 Confidentiality as a Ground for Resisting Disclosure
Chapter 20 Confidentiality and Subsequent Use
Chapter 21 Enforcement of Discovery by Assistance from National Courts
Chapter 22 Data Protection and Discovery
Chapter 23 Foreign Languages and Translations
Chapter 24 Documents for Impeachment
Chapter 25 Continuing Duty of Discovery
Chapter 26 Electronic Documents
Chapter 27 Legal Professional Privilege: Who and What Is Covered?
Chapter 28 Non-Party Discovery
Chapter 29 Bundles
Chapter 30 Witness Statements
Chapter 31 Expenses of Witnesses
Chapter 32 Expert Evidence
Chapter 33 Evidentiary Hearings and Advocacy in International Commercial Arbitration
Chapter 34 Precedent
Chapter 35 Damages
Chapter 36 Costs in International Arbitration
Chapter 37 Costs Capping
Chapter 38 Security for Costs
Chapter 39 Costs Orders
Chapter 40 Discontinuance and Costs
Chapter 41 Costs of Applications
Chapter 42 Costs of the Reference
Chapter 43 Costs: Assessing the Amounts
Chapter 44 The Award
Appendices 1-40
Appendix 1 Laws of the Arbitration
Appendix 2 Sample Formal Parts of Award on Non-Compliance with Condition Precedent
Appendix 3 Sample Request for Arbitration
Appendix 4 Sample Answer to Request
Appendix 5 Sample Joint Letter to Potential Chairman from Counsel to Parties
Appendix 6 Sample Agenda for First Meeting
Appendix 7 Sample Terms of Reference
Appendix 8 Sample List of Issues
Appendix 9 Sample Letter for the Appointment of a Secretary
Appendix 10 Sample Order for Limiting Written Pleadings
Appendix 11 Sample Responsive and Amalgamated Defence with Claim
Appendix 12 Sample Letter of Application to Tribunal for Various Orders (Including Discovery)
Appendix 13 Sample Order for Full Discovery
Appendix 14 Sample Order for Reduced Discovery
Appendix 15 Sample Order for Limited Discovery — Only Documents Relied Upon
Appendix 16 Sample Order for Limiting Discovery
Appendix 17 Table Comparing Disclosure under Various Arbitration Models
Appendix 18 Sample Procedural Order for Discovery Disputes
Appendix 19 Sample Order Stating Chairman’s Role in Deciding Discovery Disputes
Appendix 20 Sample Order for Disclosure of Information that May Contain Personal Data
Appendix 21 Sample Order Governing Treatment of Foreign Languages and Translations
Appendix 22 Sample Order Governing Treatment of Electronic Documents
Appendix 23 Sample Order Governing Treatment of Bundles
Appendix 24 Sample Order Permitting Expert Evidence
Appendix 25 Sample Declaration by Expert
Appendix 26 Checklist of Key Components of an Award
Appendix 27 Sample Consent Award
Appendix 28 Sample Costs Capping Order
Appendix 29 Types of Costs Orders
Appendix 30 Sample Orders for Security for Costs
Appendix 31 Sample "Sealed Offer"
Appendix 32 UNCITRAL Model Law on International Commercial Arbitration
Appendix 33 ICC Rules of Arbitration
Appendix 34 LCIA Arbitration Rules
Appendix 35 AAA-ICDR Dispute Resolution Procedures Appendix 36 UNCITRAL Arbitration Rules Appendix 37 UNCITRAL Notes on Organizing Arbitral Proceedings
Appendix 38 IBA Rules on the Taking of Evidence in International Commercial Arbitration
Appendix39 IBA Guidelines on Conflicts of Interest in International Arbitration
Appendix40 Contact Information for Various International Arbitral Institutions
Table of Cases
Index
Peter Ashford is a Partner and member of the International Arbitration group at Fox Williams LLP, United Kingdom and a member of the Chartered Institute of Arbitrators. He has been involved in representing parties in arbitration for over 20 years. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes in the transport, logistics, distribution and agency and energy sectors. He is particularly experienced in complex, high value claims and the ascertaining of loss. He acts for many international clients around the globe. Mr. Ashford received his training in London and qualified in 1986, he joined Cripps Harries Hall LLP in 1987 and became a partner there in 1991. He joined Fox Williams LLP in 2012.
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