Confidentiality in arbitration

Although arbitration proceedings are private (so only the parties can attend), it cannot be assumed that by referring their dispute to arbitration the parties automatically become subject to duties of confidentiality (in the sense of an obligation not to disclose information or documents acquired in the course of the arbitration). Determining whether, absent particular provision, duties of confidentiality arise, will require review of the law governing the arbitration clause and the law of the seat.

Therefore, if confidentiality is of importance to the parties then it may well be preferable to make provision for confidentiality in the arbitration clause (although of course it may be difficult to know, when drafting the arbitration clause, whether at the time of the dispute confidentiality is going to be a significant issue for the parties or not). In that respect, the institutional rules chosen, if any, may do so (see e.g. Article 30 LCIA Rules); but if they do not (or no rules have been chosen) consider adding express wording to the arbitration clause. The wording suggested below goes some way towards dealing with this issue, allowing, as it does, the arbitrator(s) to permit disclosure of information where it is appropriate to do so.

"No information relating to an arbitration arising out of this Agreement beyond the names of the parties and the relief requested, may be disclosed to a third party by any party to the arbitration without the consent of the Arbitral Tribunal."

A word of warning: seek advice from a member of Linklaters International Arbitration Group if confidentiality is likely to be a major issue for the parties.