Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 26

CONFIDENTIALITY DURING AND AFTER ARBITRATION

Edward P. Dolido

I. Introduction

In contrast to judicial proceedings, where there is a presumption of public access to records and proceedings, arbitration is presumptively confidential.  For many parties, this may be one of the most influential reasons for choosing arbitration. Yet there are no automatic guarantees that the arbitration proceeding will actually remain confidential and the degree of confidentiality the parties obtain in arbitration will, in large measure, be dependent upon their own advance planning and the procedural mechanisms they implement.

In addition, because arbitration awards frequently become the subject of litigation in a proceeding to confirm, vacate or modify the award, the parties may find that the confidentiality they secured in arbitration evaporates when the dispute reaches the public forum.

Surprisingly, there is no established mechanism for ensuring that the parties receive the benefit of any bargained-for confidentiality when litigating over an arbitration award, and little case law addressing this issue.  Indeed, much of the case law that does exist suggests that the courts will not automatically respect a confidentiality agreement entered into in their arbitration.  Nevertheless, there are compelling arguments to be made for protecting the parties’ confidentiality when an arbitrated matter ends up in court. This chapter briefly discusses general confidentiality principles in arbitration and related litigation, identifies some mechanisms that might help promote confidentiality in arbitration, and lays out an argument, in reliance on some of the precedents that do exist, for maintaining confidentiality when an arbitration award becomes the subject of litigation.