ALBERTO MALATESTA is Professor of Private International Law and Arbitration Law at the Law School of the University LIUC-Carlo Cattaneo of Castellanza (Italy). He also teaches International Business Law within the Ph. D. Program in International Economic Law at the University Bocconi of Milan. He is a member of the Milan Bar and his practice focuses on litigation and arbitration. He served as Italian delegate at the Hague Conference of Private International Law (2005-2007). He held several courses and conferences on private international law and arbitration law at various law school and institutions through Europe and South America.
For a long time the issue of confidentiality in the context of international commercial arbitration has not aroused much interest or particular problems. Indeed, confidentiality has always been considered, on the one hand, as a typical effect of arbitration proceedings and, on the other hand, as one of the main advantages of such an instrument as opposed to the cases brought before state courts. Scholars and case law that occasionally dealt with confidentiality justify its existence with various arguments, mainly qualifying it as an implicit effect of the arbitration agreement and therefore of the parties' intentions.2
In a nutshell, it basically imposes a duty upon the parties and arbitrators not to disclose to persons not involved in the proceedings any information or document that is revealed during the proceedings. In this respect, English and US scholars, traditionally attentive to the phenomenon of international arbitration, coined the term confidentiality, to distinguish it from another, albeit related, notion, that is privacy, used to indicate the fact that the arbitration is not public and therefore only the parties or persons authorized by them may attend the hearings.3