76 DEFENSE C O U N S E L J O U R N A L | JANUARY 2015

International Perspectives on Arbitration

Confidentiality
By Scott D. Marrs and Martin D. Beirne
Scott D. M arrs is a Partner o f Beirne, M aynard
& Parsons, L.L.P. in Houston, Texas and an
A rbitrator with various international tribunals such
as the British Columbia International Commercial
A rbitration Centre (BCICAC), the H ong Kong
International A rbitration Centre (HKIAC), the
International Cham ber o f Commerce (ICC), and the London Court o f International
Arbitration (LCIA). H e has over 2 0 years o f domestic and international experience in
disputes, trials, and arbitrations involving energy, intellectual property, commercial,
international, and product liability issues, and was previously in the Legal, N atural
Gas, and Land departm ents o f a m ajor energy company. M artin D. Beirne is
a founding Partner o f Beirne, Maynard, & Parsons in Houston, Texas. H e has
extensive trial and arbitration experience in com plex domestic and international
business litigation, energy, intellectual property, m arket representation/franchise, and
antitrust matters. Mr. Beirne also provides advice and representation to corporations,
corporate officials, and other individuals in investigations initiated by various
government authorities as well as internal investigations on b e h a lf o f corporations.
Corporate Legal Times has nam ed Mr. Beirne a "Top D raw er Litigator" on its list o f
"go to " lawyers in the US.

This article originally appeared in the
October 2 0 1 4 Alternative Dispute Resolu
tion Committee newsletter.
iif ONFIDENTIALITY is a
poorly understood concept
among most advocates and
parties alike. There is a distinction between
privacy of the proceedings, and confiden
tiality relating to filings, discovery, evi
dence, and the award. Most international
arbitration rules require the proceedings to
be private (i.e., only those who partic
ipate in the hearing, such as parties and
witnesses, may be present in the hearing
itself). Although the proceedings may be
private, this does not mean that filings,
discovery, evidence, and the award will be
kept confidential.
Not all arbitration rules provide for
confidentiality. Even where confidentiality
is required, some tribunals only impose
confidentiality on the tribunal/arbitrator,
and not the parties themselves. Therefore,
it is important to understand the distinc
tions made in the rules of the applicable
arbitration forum, as well as how to obtain
confidentiality in the absence of any rules
providing same. This article discusses the
N ew sletters
distinctions between rules of the four
largest international arbitration forums,
and how various countries treat confiden
tiality.
I. International Arbitration
Forums: ICDR, ICC, LCIA,
AND UNCITRAL
The Four Largest International Arbi
tration Forums are: (1) the International
Centre for Dispute Resolution (ICDR),
(2) the International Chamber of Com
merce (ICC), (3) the London Court of
International Arbitration (LCIA), and
(4) the United Nations Commission on
International Trade Law (UNICI-
TRAL). The chart in Appendix A
analyzes the differing rules on privacy
and confidentiality for these tribunals.
II. How Various Countries Treat
Confidentiality In Arbitration
There is a noticeable lack of uniformity
in how various countries address arbitra
tion confidentiality. Some countries im
pose an implied duty of confidentiality;
some apply a limited rule, while others
have no rule at all. This lack of uniformity
creates growing uncertainty in our global
economy. International arbitration forums
77
with support from international and
governmental bodies should propose and
support a uniform confidentiality rule to
create more certainty in cross border and
global transactions.
The chart in Appendix B analyzes the
differing rules on privacy and confidenti
ality in countries with the most active
arbitration forums.
III. Conclusion
If Confidentiality is desired, always
insert a Confidentiality Sentence. Al
though arbitration proceedings are gener
ally private, they are not necessarily confi
dential, unless the parties specifically
contract for confidentiality, or the applica
ble forums rules (or a state statute/rule or
country rule) dictate confidentiality. Out of
an abundance of caution, always include a
separate confidentiality sentence in your
arbitration provision if confidentiality is
desired. Consider inserting following
ICDR Model Confidentiality Clause:
Except as may be required by law,
neither a party nor its representatives
may disclose the existence, content, or
results of any arbitration hereunder
without the prior written consent of
(all/both) parties.
78 D E F E N S E C O U N S E L J O U R N A L | JANUARY 2015

Appendix A

ICDR ICC LCIA UNCITRAL

'c
DR

International International
LCIA**

London Court o f
sms
U nited N ations
Centre for D ispute Chamber o f International C om m ission on
R esolution C om m erce Arbitration International Trade
Law
w w w .icdr.org w w w .iccw b o .o rg w w w .lcia.org w w w .uncitral.org
CONFIDENTIALITY CONFIDENTIALITY CONFIDENTIALITY CONFIDENTIALITY
NOT IMPOSED ON MAY BE IMPOSED IMPOSED ON NOT IMPOSED ON
PARTIES ON PARTIES PARTIES PARTIES

ICDR rules provide ICC rules provide: LCIA rules make the UNCITRAL rules
that "all m atters "[t]he w ork of the hearings private, (like the JAMS
relating to the Court [tribunal] is of and impose a duty rules) merely make
arbitration or the a confidential nature on the p arties to
the hearings private
aw ard" and all which m ust be hold the "materials
confidential respected by in the proceedings and the award
information everyone who (i.e., created for the confidential, bu t do
disclosed by parties participates in th at arbitration) and the n ot impose
or w itnesses shall w ork in w hatever award confidential. confidentiality on
be kept confidential capacity." (Article 6). (Article 30 and 41). the parties. (Article
by the arbitrator This is consistent 34(5) and 38(3)).
and the These rules exclude with English law.
adm inistrator, but from hearings
this rule d o e s n o t persons not
apply to parties. involved in the
(Article 34). proceedings and
"upon the r eq u e st
However, another of any party, the
rule indicates th at arbitral tribunal may
the ICDR "may make orders
publish select concerning the
aw ards, decisions confidentiality of the
or rulings (if arbitration
redacted), unless proceedings o r of
the parties agree any other m atters in
otherwise. (Article connection with the
27.8). arbitration and may
take m easures for
protecting trade
secrets and
confidential
information.
(Article 22.3)
N ew sletters 79

ggg
Appendix B
A u stralia A ustralia does not consider arb itratio n confidential. The High Court o f Australia
held th a t confidentiality, unlike privacy, is n o t "an essential attrib u te" of
com m ercial arbitration. See Esso A u s tr a lia Res. L td. v. P lo w m a n , 128 A.L.R 391, 183
C.L.R. 10 (Austl. 1995).

Dubai Dubai (hom e to the Dubai International A rbitration Centre, o r "D1AC, an d the
Dubai International Finance Centre, o r "DIF1C") requires all inform ation relating to
arbitration proceedings be kept confidential, except w h ere req u ired to be
disclosed by o rd er of the DIFIC C ourt

England England (hom e of the LC1A, based in London) does n o t have legislation governing
confidentiality (the A rbitration Act 1996 does n o t address it), b u t does have case
precedent indicating th a t arbitration proceedings are confidential (unless agreed
otherw ise). In A li S h ip p in g Corp. v. S h ip y a rd T ro g ir, 11 2 All E.R., 1 Lloyds Rep. 643
(Eng. C t App. 1998), th e court held th a t an obligation of confidentiality is implied
in every arbitration agreem ent as "an essential corollary o f th e privacy of
arbitration proceedings." This obligation extends to th e aw ard, and to all
"pleadings, w ritten subm issions, and the proofs of w itnesses as well as tran scrip ts
and notes of the evidence given in th e arbitration." Id . a t 651.

France France (hom e of the ICC, based in Paris) Civil Code provides th a t the arb itrato r's

11
Hong Kong
deliberations are confidential, b u t does not extend this duty to th e parties
them selves. See A ita v. O jjeh, 1986 REVUE DE L'ARBITRAGE 583 (Cour d'appel de
Paris, Decision of Feb. 18,1986).

Hong Kong (hom e of the Hong Kong International A rbitration Centre, or

"HKIAC")provides th a t unless otherw ise agreed by th e parties, a p arty is not
entitled to publish, disclose or com m unicate any inform ation relating to the
arbitral proceedings or any aw ard, unless required to do so by law o r to pursue a
legal right.

New Zealand New Zealand extends a specific legislative duty of confidentiality on th e parties.
New Zealands A rbitration Act of 1996 provides th a t unless agreed otherw ise, "the
p arties shall n o t publish, disclose, o r com m unicate any inform ation relating to
arbitral proceedings under the agreem ent or to an aw ard m ade in those
proceedings." It is understood th a t the New Zealand A rbitration Act w as passed in
response to A ustralias Esso decision to clarify th a t unlike A ustralia, New Zealand
su pported a general duty of confidentiality.

Singapore Singapore (hom e of the Singapore International A rbitration Centre, o r "SIAC") only
requires confidentiality of court proceedings brought u n d er p articular arb itratio n
Acts, if requested by th e parties. Case law does how ever recognize a general duty
of confidentiality as to the hearing and aw ard.

Sw eden Sweden (hom e of the Stockholm Cham ber of Commerce, or "SCC") does n o t im pose

Hi confidentiality on th e parties. See Case No. T 1881-99 (Swedish Sup. Ct. 27 OcL
2000).
Hi
United States The United States does n o t im pose an im plied duty of confidentiality in arbitration.
See U n ite d S ta te s v. P a n h a n d le E. Corp., 118 F.R.D. 346 (D. Del. 1988), leaving it in
large m easure to the parties to specifically contract for i t Some states do have
specific rules o r statu tes dealing w ith confidentiality.

In addition, all dom estic arbitration tribunals have rules addressing privacy
a n d /o r confidentiality. The American A rbitration Association (AAA) com mercial
rules do not im pose confidentiality on the parties. (R-23). The Judicial A rbitration
& Mediation Service (JAMS) rules also do not im pose confidentiality on th e parties
(but does provide th a t th e aw ard shall rem ain confidential unless the parties agree
otherw ise). (R-26b, Article 16). However, th e Institute for Conflict P revention &
Resolution (CPR) rules do require both the trib u n a l/a rb itra to r and the parties to
m aintain confidentiality. (R -ll, R-18).
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