Originally from Handbook on International Commercial Arbitration - Second Edition

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Arbitration is inherently confidential in most jurisdictions notably Hong Kong, England, France, and Switzerland. As the court said in Russell v. Russell:1

As a rule, persons enter into these contracts with the express view of keeping their quarrels from the public eyes, and of avoiding that discussion in public, which must be a painful one, and which might be an injury even to a successful party to the litigation, and most surely would be to the unsuccessful.

In other jurisdictions, there remain exceptions to the general theme of confidentiality for example in Australia, U.S., and Sweden. The Australian decision of Esso Australia Resources v. Plowman2 is perhaps the most significant as it rejects an implied confidentiality but accepts the possibility of an express confidentiality. It accepts that arbitration is private in the sense that the public is not admitted to the proceedings, and that documents produced under compulsion are subject to a duty to be used solely for the purposes of the arbitration,3 but all other aspects of confidentiality were rejected.4 This was a significant decision from Australia’s highest court. It is, however, not alone in common law jurisdictions. In United States v. Panhandle Eastern Gen, a U.S. Federal District Court held that confidentiality does not necessarily attach to documents obtained in arbitration; on the facts the defendant was not entitled to withhold documents generated in a Swiss ICC arbitration.