François Dessemontet - Professor at the Universities of Lausanne and Fribourg (Switzerland). Licence en droit (1970), Doctorate in Law (1974), admitted to the Bar (1975), Member of the Committee, Swiss Arbitration Association.
According to the view prevailing in Europe, arbitral proceedings are subject to strict confidentiality.1 The much publicized case of Esso v. Plowman runs counter to this view, which has also been questioned in the United States.2 Which is the better approach?
This article attempts to place the debate on arbitration and confidentiality within the broader framework of the law of trade secrets. The law of trade secrets has just received its first restatement in a multilateral treaty with the promulgation of Article 39 of the Agreement on Trade-Related Aspects of Intellectual (“TRIPS”).3 There is now a world-wide law of trade secrets, and the arbitration community should take it into account.
This article is divided in three parts. First, some practical examples are mentioned (here below Section I). Then, the methodology to define the requirement of confidentiality vs. the public interest is set out (Section II). Finally, the scope of the information to be protected by the confidentiality, as well as the limits to that protection, are outlined (Section III).