Confidentiality under Art. 44 Swiss Rules - Ten Years of Swiss Rules of International Arbitration - ASA Special Series No. 44

Author(s):

Pascal Hollander

Page Count:

12 pages

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Published:

October, 2014

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1. INTRODUCTION

For most of the 20th century, arbitration was thought to be

confidential. Paradoxically, while many authors (and all arbitration

institutions) stressed that confidentiality was one of the most

fundamental characteristics of arbitration, very few national laws or

arbitration rules had specific provisions thereon.

As arbitration was generally described as being “private justice”,

this was thought to mean “justice rendered by private judges” but also

“justice rendered in private”, i.e. behind closed doors, not open to the

public. It is therefore not surprising that all those who were involved

in arbitral proceedings expected commercial arbitration1 to be

confidential by nature.

The legal fragility of this general assumption was highlighted by

two famous decisions, the first in 1995 by the High Court of Australia

in the “Esso v. Plowman” case2 and the second in 2000 by the Supreme

Court of Sweden in the “Bulbank” case.3 In both decisions, the existence

of an overarching duty of confidentiality in arbitration was rejected. In

the aftermath, many arbitral institutions, and also national lawmakers,

realized the need to address the question in one or another way.

The Swiss Chambers did so by introducing Art. 43 in the initial

2004 Swiss Rules, which became Art. 44 of the 2012 Swiss Rules.4 The

text remains, however, almost identical to the 2004 version.5