Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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In connecting on Ms. Wallgren’s excellent presentation, I have been asked to focus on the issue of confidentiality and to make a very brief comparative outlook.

As far as Swedish law is concerned, it is fair to say that the Supreme Court in the Bulbank case has now confirmed the position in our country, i.e. that—with one exception—there is no duty of confidentiality in arbitration unless the parties have so agreed. The exception concerns trade secrets. To the extent that the Swedish Trade Secrets Act is applicable in an arbitration, it does create a duty of confidentiality. Generally speaking, it is probably relatively unusual that this Act comes into play in arbitrations.

Is Swedish law different from other legal systems in this respect? If it is different, does it matter? What should parties and arbitrators do about the lack of confidentiality, if anything?

I. COMPARATIVE SURVEY

France

Although there is no statutory provision on confidentiality, French courts have clearly stated that it is inherent in the nature of arbitral proceedings that confidentiality be maintained.