Author: Cindy G. Buys*
Published: January 2004
Categories of Disputes
Confidentiality and Publication
Description: Confidentiality is often cited as one of the main benefits of arbitration as opposed to litigation. Yet, scholars and practitioners often fail to examine exactly why confidentiality is important. We also do not carefully weigh the benefits and costs of making arbitration confidential, whether we are talking about public or private international arbitration.
While confidentiality is an important aspect of international commercial arbitration, this article challenges the idea that all aspects of international arbitration must always be confidential for arbitration to be valuable. It argues that a more nuanced approach to confidentiality in arbitration may preserve the values of arbitration while at the same time enhancing the competing values to be gained by greater transparency. In particular, the article advocates the adoption of a presumption that arbitral awards should be made publicly available, unless both parties object. As will be shown herein, this presumption is justified because the benefits of greater transparency in arbitration brought about by the publication of awards often outweigh concerns for confidentiality.
The article begins by examining why confidentiality is thought to be valuable in international arbitration. Then it discusses who is bound by a duty of confidentiality and the scope of that duty. The article briefly surveys some of the important international and national arbitral rules and case law both in the public and private context to give an overview of how different arbitral institutions and national courts view the issue of confidentiality. It concludes by comparing the relative costs and benefits of more or less confidentiality in private international commercial arbitration as compared to public or semi-public international arbitration in the areas of trade and investment.
*Assistant Professor of Law, Southern Illinois School of Law. The author was formerly an attorney in the Office of Chief Counsel for the Import Administration, Department of Commerce where she represented the United States in antidumping and countervailing duty actions before the World Trade Organization (WTO). Prior to her government work, the author was in private practice in Washington, D.C., where she regularly engaged in private international commercial arbitration. This article draws on her experiences in both these contexts. A shorter version of these remarks was prepared for and presented at the American Association of Law Schools annual conference in Washington, D.C. on January 4, 2003.