One of the main attractions of arbitration is the ability of parties to resolve disputes outside of the glare of the publicity that might arise in litigation before national courts. This does not, however, address the concerns that document production may create in terms of revealing commercially or technically sensitive material to the opponent in arbitration. Further, such concerns are unlikely to be assuaged by any inherent confidentiality of arbitration which prevents the use of documents for any ulterior purpose. Once the “cat is out of the bag,” it is difficult to put it back in, not so much in terms of preventing use but in removing or preventing the use of the knowledge derived from the documents.
Equally one party may have the documents of a stranger to whom he owes duties of confidentiality. Under English law, confidentiality is, of itself, no answer to a request for disclosure (as the process is now called in England) as Lord Wilberforce in the House of Lords said in Science Research Council v. Nasse:
There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence . . . the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties . . . may be affected by disclosure, to the interest . . . in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality . . .
It remains a matter of discretion and, as the Lord Diplock said in the House of Lords in D v. NSPCC: