Author: Hans Smit*
Published: December 1998
Description: Confidentiality has long been touted as one of the advantages of arbitration. However, until recently, institutional rules generally did not provide for confidentiality. The ICC Rules were the exception. They provided, and in Article 6 of Appendix I and Article 1 of Appendix II, continue to provide, for confidentiality, but only for the proceedings before the Court itself, not for the proceedings before the arbitral tribunals. This situation changed as the result of amendments to the ICC Rules and those of the London Court of International Arbitration that entered into effect on January 1, 1998. The LCIA Rules provide in Article 30 for the confidentiality of arbitral proceedings. The ICC Rules provide for more differentiated treatment: Article 21 (3) provides that “persons not involved in the proceedings” shall not be admitted to the hearings except with the approval of the tribunal and the parties; and Article 20 (7) authorizes the Tribunal to take the appropriate measures to protect trade secrets and confidential information.
Although there is a widely-held view that arbitration is confidential, in the absence of a specific provision in the arbitration agreement or the institutional rules, the legal basis for a requirement of confidentiality is unclear. Indeed, until relatively recently, the subject of confidentiality in arbitration did not engage the sustained interest of either the courts or the scholars. A change came with a case decided in Australia by the High Court of Justice, Esso v. Plowman. In this case, one of the parties refused to participate in a projected arbitration unless it was assured that the proceedings before the arbitral tribunal would be confidential.
*Stanley H. Fuld Professor of Law and Director, Center for International Arbitration and Litigation Law, Columbia University.