Confidentiality as a Ground for Resisting Disclosure - Chapter 19 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

4 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Arbitral Adjudication,

Confidentiality,

Parties,

Discovery

Author Detail:

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Description:

Originally from Handbook on International Commercial Arbitration

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One of the main attractions of arbitration is the ability of parties to resolve disputes outside of the glare of the publicity that might arise in litigation before national courts. This does not, however, address the concerns that discovery may create in terms of revealing commercially or technically sensitive material to the opponent in arbitration. Further, such concerns are unlikely to be assuaged by the inherent confidentiality of arbitration which prevents the use of discovery documents for any ulterior purpose. Once the “cat is out of the bag,” it is difficult to put it back in, not so much in terms of preventing use but in removing or preventing the use of the knowledge derived from the documents.

Equally one party may have the documents of a stranger to whom he owes duties of confidentiality. Under English law, confidentiality is no answer to a request for discovery as Lord Wilberforce in the House of Lords said in Science Research Council v. Nasse:

There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence . . . the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties . . . may be affected by disclosure, to the interest . . . in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality . . .

It remains a matter of discretion and, as the Lord Diplock said in the House of Lords in D v. NSPCC:

The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating . . .