Originally from: Stockholm International Arbitration Review

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THE NEED FOR ESTABLISHING A PERFECT BALANCE BETWEEN CONFIDENTIALITY AND TRANSPARENCY IN COMMERCIAL ARBITRATION

Dr. Mohamed Aboul-Enein

The discussions of the UNCITRAL Committee Members in the Working Group on Arbitration, in Vienna from 11 – 15 September 2006 and in New York from 5 – 9 February 2007, reflect a growing tendency not to include a provision on confidentiality in the new version of the UNCITRAL Rules of Arbitration.

This tendency alarmed and raised concerns amongst many groups of businessmen who are involved in international trade and who do not have ways to express their voices and interests to the Committee. They see that lawyers and practitioners in the legal profession may find it easier, for their work, to be free from the obligations of confidentiality in arbitration cases, while the interests of businessmen, who are the real parties to arbitration cases, require the protection of their business secrets as long as the confidentiality does not conflict with legal and public interests.

1. The Origins and Sources of Confidentiality in Arbitration:

Confidentiality is not secured in litigation, but may be generally secured in the arbitral process.

It is generally accepted that parties, when faced with disputes, deem the confidentiality of arbitration to be an important factor in favoring their choice of arbitration. Indeed, authorities on the subject of arbitration usually consider the confidentiality of the arbitral process to be one of the advantages of arbitration. Some authorities deem it to be a fundamental characteristic of international commercial arbitration. A former Secretary General of the ICC noticed that users of arbitration place the highest value upon confidentiality as a fundamental characteristic of international commercial arbitration.