Confidentiality within Arbitration - Chapter 1 - ASA Special Series No. 43 Confidential and Restricted Access Information in International Arbitration
Luca G. Radicati di Brozolo is the Founding Partner of the arbitration
and litigation boutique ArbLit–Radicati di Brozolo Sabatini
Benedettelli and a door tenant at Fountain Court Chambers in London.
He holds the chair of Private International Law at the Catholic
University of Milan, where he also teaches Law of International
Arbitration and Transnational Commercial Law. After having
practiced in a variety of areas for many years as a partner in two of the
major Italian firms, Mr. Radicati di Brozolo now concentrates primarily
on international arbitration as counsel, presiding, party-appointed and
sole arbitrator and expert, in proceedings under the main arbitration
rules and involving a broad array of issues. He has significant
experience in investor-State arbitration, having acted as counsel in
several high-profile cases (including the ICSID cases Saipem v
Bangladesh and Ambiente Ufficio v. Argentina and Giovanni Alpi v.
Argentina) and in several UNICTRAL cases against the Czech
Republic under the Energy Charter Treaty and several BITs). He also
appears in court litigation in arbitration-related cases and cases raising
issues of international and competition law. He is the author of five
books and over 150 scholarly articles on different topics on arbitration,
public and private international law, European Union law and
antitrust law, and is a co-editor of the leading Italian commentary of
the law of arbitration. He is a former member of the ICC International
Court of Arbitration and former Vice-Chair of the IBA Arbitration
Committee, a member and former rapporteur of the Committee on
International Commercial Arbitration of the International Law
Association, a member of the American Law Institute, Consultative
Group on the Restatement (Third), International Commercial
Arbitration and co-chair of the Joint Working Group of the
Competition and Arbitration Committees of the ICC Arbitration
Commission on Antitrust Follow-on Actions.
Flavio Ponzano is an Associate at Arblit–Radicati di Brozolo Sabatini
Benedettelli. His practice as counsel focuses on both investment and
commercial arbitration and he regularly acts as administrative
secretary to arbitral tribunals sitting in proceedings conducted under
different sets of rules. Mr. Ponzano graduated magna cum laude from
the Law School of the Catholic University of Milan in 2012 and is
admitted to the Italian Bar. In 2014 he was awarded the Runner-up
Prize for the Laureate of the International Academy for Arbitration
Law in Paris. He is also a PhD candidate in International Law and a
research and teaching assistant at the course of Private International
Law, Law of International Arbitration and Transnational Commercial
Law at the Catholic University of Milan. Since 2013 Mr. Ponzano is one
of the coaches of the Catholic University of Milan’s team in the Willem
C. Vis International Commercial Arbitration Moot.
1. CONFIDENTIALITY OF AND WITHIN ARBITRATION
Confidentiality has essentially two facets in relation to arbitration.
These can be referred to respectively as confidentiality “of” arbitration
and confidentiality “within” arbitration. The former—which could also
be termed “outbound confidentiality”—has to do with the nondisclosure
to third parties not involved in the arbitration of
information relating to the arbitration, including the existence of the
arbitral process itself and facts, evidence, arguments, documents and
other information pertaining to the process.1 In this scenario the issue
is not the sharing of information amongst the participants to the
arbitration, and particularly the parties, but preventing the information
from becoming available to parties beyond the confines of the
arbitration, including competitors and the media.
The second facet of confidentiality could be termed “inbound
confidentiality”. It relates to the introduction into—and to the
treatment within—the arbitral process of information that is external to
the arbitration and that is or is assumed to be pertinent to the outcome
of the process, but that according to a party cannot or must not be
disclosed to the other participants in the arbitration. The grounds for
the allegation of confidentiality normally relate to the nature of the
information and are often unrelated to the arbitral process itself.
The present contribution intends to address this second facet of
confidentiality. It will do so exclusively from the standpoint of the
arbitrators. Some of the issues of confidentiality analyzed here also
may be relevant for other participants in the arbitration, foremost
amongst which counsel, whose professional and other obligations may
come into play according to the circumstances.
2. NATURE AND GROUNDS OF PLEAS OF CONFIDENTIALITY
Issues relating to the type of confidentiality considered here arise
most often in the evidence-gathering phase of arbitral proceedings.
Confidentiality is routinely raised as an objection to requests for
document disclosure; it can also be raised for example in relation to
requests to examine fact or expert witnesses or even to inspect sites or
things. While usually invoked by the party resisting the introduction of
the information into the arbitration, confidentiality can also be invoked
by the party seeking to rely on the allegedly confidential information,
as well as by a third party, such as a witness or expert.
Karl Pörnbacher and Sebastian Baur