In another interesting article from Charles Russell Speechly, John Olatunji and Dalal Alhouti looked at Confidentiality in Arbitration - A Cloak with Holes.
The article discusses the importance of confidentiality in arbitration, highlighting how parties can secure confidentiality, relevant laws, and potential loopholes in maintaining arbitration confidentiality.
Key Takeaways:
Arbitration is favoured for its confidentiality compared to public court proceedings.
Confidentiality in arbitration is not automatic, varies, and can be ensured through arbitration agreement clauses or institutional rules.
Some national laws include provisions for keeping arbitration proceedings confidential.
Despite efforts to maintain confidentiality, there are circumstances where details may enter the public domain or be disclosed to third parties, such as when court intervention is sought.
The importance of balancing the need for confidentiality with the interests of justice is emphasised in case law examples.
In our own arbitration rules for travel disputes we have a clause dealing with confidentiality directly. This clause states
Confidentiality
Both the Claimant and the Respondent undertake not, at any time, to disclose to any person any details of the Arbitration, unless it is to uphold the Award.
ABTA Ltd and/or Hunt ADR may analyse Arbitration Awards in order to monitor the effectiveness of the Scheme and produce and/or publish findings.
Personal information will only be published for the purpose of upholding the Award or at the direction of a Court Order or any governmental or regulatory authority.
Confidentiality remains a major selling point of arbitration over litigation, but it should not be taken for granted that it is a given, parties need to carefully check rules and procedures if confidentiality is important to them.