Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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Confidentiality has long been considered an important feature of international arbitration. Since the mid-1990s it has also come to be a topic of much discussion. An initial flurry of activity occurred at this time in which many articles were written and analyses undertaken. Common assumptions were questioned and it became apparent that the subject was more complex, obscure and less well settled than had previously been thought. Prior to that period of activity, confidentiality had been the subject of assumptions rather than established legal principles and rules. Moreover, the assumptions were vague and general in nature and did not adequately address the different facets of confidentiality. 

As discussed in previous editions of this chapter, the commotion over confidentiality was predicated on two factors. The first was the perceived existence and importance of confidentiality to arbitration, and in particular international arbitration. The second was a decision of the High Court of Australia which disturbed the status quo. In the words of Yves Fortier, it “crashed like a giant wave—a veritable Australian tsunami—on the shores of jurisdictions around the world.”   Since that time, confidentiality has remained a key concern for many parties to arbitration and has been addressed in case law and legislation in Australia and around the world. 

As to the first factor, it is trite to note that confidentiality is often given as one of the reasons for choosing arbitration as a means of dispute resolution in contrast to litigation. A 2018 survey conducted by the Queen Mary University of London recorded that 86% of respondents attached some degree of importance to confidentiality, with 40% considering it “very important.”   Confidentiality was ranked as the fifth-most valuable characteristic or arbitration (after enforceability, avoiding specific national courts, flexibility and the ability to select arbitrators).  The survey also recorded that most respondents considered that the default position should be that arbitral proceedings will be confidential unless the parties choose otherwise.