Claude R. Thomson, Q.C., LL.D., is a Chartered Arbitrator, a mediator and a litigation consultant in Toronto. He is a co-chair of ADR Chambers International and may be reached at email@example.com and at firstname.lastname@example.org. Annie Finn, a litigation lawyer and partner in the Toronto office of Fasken Martineau DuMoulin LLP, assisted Mr. Thomson in the preparation of this article. The authors wish to acknowledge the contributions of Berkley Sells of Fasken Martineau DuMoulin LLP. Initial research for the article was conducted by Maria Sirivar, a student-at-law at Fasken Martineau, and by Andrew Newman and David Contant, former students-at-law at the firm.
Most parties to arbitration assume that the private nature of the process will ensure that the evidence, the proceedings and the award will be kept private and confidential and that sensitive or embarrassing records and activities will not be subjected to public view. Many parties select arbitration as a dispute resolution process precisely to secure privacy and confidentiality.
Parties to a commercial arbitration would be surprised to learn that the assumption of confidentiality may not always be valid. Over the past decade, authors have directed much attention to the debate over the principle of confidentiality in both domestic and international arbitration. While courts in some countries have recognized an implied duty of confidentiality, recent case law developments in other countries have not and they protect confidential information only when the circumstances require.
This article examines the current state of the law relating to confidentiality and the steps that may be taken to secure as much confidentiality as the law will permit.