Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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HANS BAGNER: Ladies and gentlemen, welcome back to session V, The Arbitrators. I am Hans Bagner, with the Swedish firm Vinge, stationed in London and Stockholm.

May I make a few introductory remarks about the topics on our agenda and also the personalities involved in this session.

This session will concentrate on two issues: firstly confidentiality of arbitration; secondly, whether the arbitrators could be compelled to testify as witnesses in a court of law about the arbitral proceedings in general and the deliberations in particular.

In the programme we have also promised you that we will deal with the question of arbitrators’ fees. You will find some comments on this subject in the rapporteur’s paper. However, to focus attention, the oral presentations that will soon follow will only deal with the two issues I previously mentioned. If time will allow, and the participants would like to raise any questions relating to arbitrators’ fees, you are of course welcome to do so.

Some comments about the two subjects. It has been part of most textbooks on arbitration that the very nature of arbitration dictates that there must be an implied obligation on both parties not to disclose or use for any other purpose information coming out of the arbitral process, save with the consent of the other party or pursuant to an order or leave of the court. This position seems to be prevailing in England and in France. In other jurisdictions it has been asserted that the mere fact that the arbitration is of a private nature does not necessarily impose a confidentiality obligation on the parties to an arbitration agreement. Any such obligation must be a matter of contractual undertakings.