Obligation of Confidentiality - Chapter 6 - Arbitration Law of Czech Republic: Practice and Procedure
Alexander J. Bělohlávek, Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.
6.I. SECTION 6(1) OF THE ARBACT
Arbitrators are bound by the obligation of confidentiality due to the non-public nature of arbitration (Section 19(3) of the ArbAct2). In both respects, i.e. in terms of both the confidentiality obligation and the nonpublic nature, these are principles that are considered inherent to arbitration. As arbitration, unlike judicial proceedings, is essentially nonpublic in all phases,3 in the interests of participants the obligation of confidentiality must be interpreted very broadly, because the non-public nature of arbitration is regarded as one of its benefits (usually in commercial disputes). The non-public nature is often one of the key reasons for choosing this form of dispute resolution and for entering into an arbitration agreement. The obligation of confidentiality must therefore be considered much more broadly than the comparable obligations imposed on judges.4 While judicial proceedings are open to the public as a matter of principle, arbitration is of a non-public nature (which cannot be removed even by agreement of the parties5), and the arbitrators’ obligation of confidentiality is intended, inter alia, to uphold this principle. Arbitrators are therefore not entitled to disclose any information about a dispute or the state of proceedings. The obligation of confidentiality is not limited to issues directly related to the proceedings or the subject of the dispute but also encompasses all circumstances and information of which the arbitrators learn during the proceedings. In this regard, the obligation of confidentiality also applies, for example, to the participants’ contractual arrangements of which the arbitrators learn during the proceedings, even through such matters are not the subject of the dispute, to witnesses, and to other evidence taken or even only tendered in the proceedings, etc., despite the fact that such evidence need not have been admitted and/or heard for other reasons.