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The Rise of Transparency in International Arbitration - Chapter 7 - Confidentiality in ICC Arbitration

Author(s): 
Andrea Carlevaris
Page Count: 
14 pages
Published: 
July, 2013
Jurisdictions: 
International
Practice Areas: 
Confidentiality,
Confidentiality and Publication,
ICC
Author Detail: 

ANDREA CARLEVARIS is the Secretary General of the ICC International Court of Arbitration and the Director of the ICC Dispute Resolution Services since September 2012. Before joining the ICC, he was a Partner at Bonelli Erede Pappalardo in Rome, where his practice focused on international arbitration, and private and public international law. He has acted as counsel and as an arbitrator in numerous international arbitrations, both ad hoc and institutional, including proceedings under the Rules of the ICC and ICSID. He holds a doctorate in International Law from the University of Rome. Before joining the Secretariat , he was a member of the ICC International Court of Arbitration. He is a member of the Board of Directors of the IMI (International Mediation Institute), of the ICC Institute of World Business Law, of the ICC Commission for International Arbitration, of the Steering Committee of the Arbitration Commission of UIA (Union Internationale des Avocats), of the Board of AIA (the Italian Association for Arbitration) and of the Editorial Board of the Rivista dell ' Arbitrato. He is one of the founders of ArbIt, the Italian forum on international arbitration and ADR. He regularly lectures at several Italian universities. Recognized as one of the top 45 international arbitration lawyers under the age of 45 (45 under 45) by Global Arbitration Review, Andrea Carlevaris is the author of a monograph on interim measures in international arbitration (La tutela cautelare nell ' arbitrato internazionale, Padova, 2006) and of numerous articles and notes on arbitration and international law.

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Originally from: The Rise of Transparency in International Arbitration

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Confidentiality is certainly one of the most contentious subjects in international arbitration. For a long time, it was not even questioned that arbitration proceedings are confidential.2 Confidentiality was, and still is, frequently cited as one of the reasons for choosing to arbitrate rather than to litigate. It was traditionally considered as an inherent quality of arbitration and a consequence of the private nature of the process, or as an implicit term of the parties’ agreement to arbitrate, although views differed in identifying the source for such confidentiality obligation.

Until the mid-1990s, only the laws of a few countries contained provisions dealing with the topic. The UNCITRAL Model Law, adopted in 1985, was silent as to confidentiality. The situation changed in the mid-1990s, after several court decisions, in the United States, in the United Kingdom, and most notably in Australia and in Sweden, which questioned the dogma of confidentiality and emphasized the need to identify the source of authority for any confidentiality obligation.3 These decisions prompted several jurisdictions to incorporate specific provisions dealing with the topic in their arbitration laws, either by including a confidentiality obligation (drafted in broad terms,4 or limited to specific aspects, or to specific participants in the proceedings5) or by excluding confidentiality in the absence of a specific confidentiality agreement of the parties.6 Other jurisdictions left the subject to be developed by the case law, which, in several countries, identified a broad duty of confidentiality.7