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Stockholm Arbitration Report (SAR)

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1. INTRODUCTION

We all know now that the answer to the broad question of whether international commercial arbitration is confidential is “it all depends”. What it depends upon will often be a complex mixture that can include the nature of the information in question, express provisions of the parties’ agreement to arbitrate, institutional rules, the law governing the parties’ agreement to arbitrate and the law of the place where enforcement of the obligation of confidentiality is sought.

How then should one best go about answering the more narrow and specific question with which practitioners are often presented “is there a remedy in respect of a particular threatened or actual disclosure of material used, or generated, in the course of an arbitration?”. Since, as will be seen below, each of the elements in the mix varies considerably from case to case, and the possible permutations are almost infinite, no generally applicable answer can sensibly be offered and it would be foolish to talk in terms of “a rule” regarding confidentiality. In reality there are a variety of possible sources from which obligations of confidentiality will arise, varying in their scope and the exceptions to them. The following is suggested as an ordered approach to answering this question. Its primary purpose, as the title suggests, is methodological. It is not intended as a comparative survey, although reference will be made to various institutional rules and decisions of national courts for the purposes of illustration.

By way of further preliminary observation, it is one thing successfully to identify a soundly based legal entitlement to preserve the confidentiality of particular material. It is another to enforce such a right or to punish an offender for its breach. This is an area where the theoretical primacy of the arbitral tribunal is often overborne by the practical attractions of invoking directly the sanctions of national courts. There are many possible reasons for this.