Confidentiality Revisited: Blessing or Curse in International Commercial Arbitration? - ARIA - Vol. 15, Nos. 3-4, 2004
Originally from American Review of International Arbitration - (ARIA)
B. The Legal Definition of Confidentiality
1. Privacy v. Confidentiality
The duty of confidentiality has always been considered as originating naturally from the private nature of the arbitration proceeding. This notion is controversial to the extent that it fails to distinguish “confidentiality” from “privacy.” Unfortunately, however, only passing reference has been made in the contemporary texts on arbitration laws and institutional rules as to the legal definition of confidentiality and the distinction between the seemingly synonymous concept of privacy.
As one author has noted, “Privacy is concerned with the right of persons other than the arbitrators, parties and their necessary representatives and witnesses, to attend the arbitration hearing and to know about the arbitration. Confidentiality by contrast, is concerned with … information relating to the content of the proceedings, evidence and documents, addresses, transcripts of the hearings or the award.” Whilst the purpose of a private hearing is to maintain the confidentiality of a dispute that has been submitted to arbitration – to that extent, confidentiality and privacy are two sides of the same coins. It remains true that parties often come to arbitration with the expectation and belief, not just that their dispute will be determined in private, but also that matters raised within the arbitration proceeding will be treated as confidential.
Simply speaking, privacy refers to excluding strangers from taking part in the arbitration hearing, while confidentiality refers to the non-disclosure relationship among the arbitration participants. On one hand, privacy lies at the core of the arbitration proceedings. Third parties may only be admitted to the hearing of an arbitration dispute with the express consent of the parties to the proceedings and the arbitrator. On the other, even to the extent that an arbitration is private and the public are not admitted, it does not necessarily follow that documents produced for and as a result of that hearing are confidential, nor are those present at the hearing necessarily bound by terms of confidentiality.