Originally from Practical Guide to International Arbitration

INTRODUCTION

For in-house counsel, one of the key advantages of resolving disputes via international arbitration is the fact that the details of the dispute will not spill over into the hands of competitors or into the public domain more generally. Businesspeople often agree to international arbitration with the assumption that it is a private and confidential form of dispute resolution, in contrast to litigation with its public attributes.

While the assumption that arbitration is private and confidential may be justified in some circumstances, there are many circumstances in which it is not.  This chapter discusses the extent to which parties may expect arbitration to be private and confidential and how uncertainties in this respect can be addressed in arbitration agreements and/or in confidentiality undertakings.

As a threshold matter, people often refer to privacy and confidentiality as essential features of arbitration. The two concepts overlap but differ in some respects. 

A.  PRIVACY IN INTERNATIONAL ARBITRATION

Privacy in international arbitration, generally speaking, is concerned with limiting the right of persons other than the arbitrators, the parties, their representatives, and witnesses to attend hearings and obtain copies of all of the documents submitted in the proceedings (written submissions, exhibits, witness statements, expert reports, correspondence, hearing transcripts). Most arbitration rules and laws expressly or implicitly provide that arbitration hearings are private – unless expressly agreed otherwise. This means that, unless the parties otherwise agree, or the applicable rules or law provides, strangers to the proceeding will not be able to obtain copies of any parts of the record of the proceedings and will not be permitted to attend arbitration hearings, and neither party will have the right unilaterally to report the conduct of the proceedings to others.

International arbitration may be said to be a private form of dispute resolution in the sense that it is (usually) a reference to adjudication services provided by private sector actors, as opposed to the public sector judiciary. In addition, arbitration agreements (usually) are private law undertakings, analogous in that sense to any other commercial arrangement agreed between private parties.

As a private agreement, its contents are just that — private to the contractual parties.  Non-parties to the agreement have no inherent right to know about the agreement or its details or to benefit from the agreement or be bound by it.  In the absence of other factors, therefore, one may expect that only those who are parties to the arbitration agreement will have a right to be advised of it and of any arbitration conducted pursuant to its terms.