Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 8 – CONFIDENTIALITY

1. The Chamber of Arbitration, the parties, the Arbitral Tribunal and the experts shall keep the proceedings and the arbitral awards confidential, except in case it has to be used to protect one’s rights.

2. For purposes of research, the Chamber of Arbitration may publish the arbitral award in anonymous format, unless, during the proceedings, any of the parties objects to publication.

1. Confidentiality in arbitration: an open issue.

1.1. One of the commonly held advantages of arbitration is its confidentiality.1 It is true that parties often agree to this method of dispute settlement as an alternative to national court proceeding to remove their controversy “out of the sight of jealous competitors and inquisitive media, not to mention over-curious authorities”.2 However, the issue of confidentiality in arbitration is far from being settled. The immediate question is: what is the legal basis for the duty to maintain confidentiality in arbitration? If this duty exists, which of the participants should be bound by it and which are its limits?

1.2. Despite the considerable number of legal writings on confidentiality in arbitration,3 this and other related issues remain open. Certainly, the privacy inherent in arbitration explains why third parties are not allowed to attend hearings or to have access to the arbitration file. What provided in this regard by many arbitration rules is to be regarded as confirmation of generally accepted principles rather than the codification of a duty of confidentiality in arbitration, the precise extent of which being questionable. As a matter of fact, a number of practical questions regarding the extent of confidentiality in arbitration remain unanswered.