Confidentiality in Arbitration* – Vol. 6 No. 1

Print Friendly, PDF & Email

AuthorHans Smit**

Published: May 1995

Arbitral Adjudication

Description: The High Court of Australia, on April 7, 1995, rendered a decision on the issues raised in the case on which I commented in an earlier issue of The American Review of International Arbitration. It ruled in Esso Australia Resources Ltd. et al. v. Plowman that the Minister for Energy and Minerals and other public authorities had the right to demand inspection of submissions to be made in an arbitration commenced by Esso against two Australian public utilities. In this arbitration, Esso had demanded that the respondents agree to treat as confidential all submissions made in the arbitration and not to disclose any of them to any third party. The Minister then brought an action against the public utilities and Esso, seeking a declaration “that any and all information disclosed . . . in the course of its arbitration . . . is not subject to any obligation of confidence.” The public utilities crossclaimed against Esso for the same relief. Esso lost in three instances, both in the two lower courts and in the High Court. However, the High Court sent the case back to the lower court to reformulate the declarations to be given so as to limit disclosure to the Minister to “documents or information relevant to the administration of the energy portfolio.”

Download Full PDF

*Arbitral & Judicial Decisions
**Fuld Professor of Law and Director, Parker School of Foreign and Comparative Law, Columbia University.