Behind Closed Doors: Confidentiality and Arbitration
Confidentiality and privacy have long been regarded as the cornerstones of the arbitration process. Behind closed doors, parties can air their grievances, admit into evidence thousands of documents and have their witnesses cross-examined – all without scrutiny from the press and the public more generally. Critically, subject to their public disclosure obligations, parties can agree to keep an arbitral award confidential.
But these cornerstones of arbitration, which are of benefit to arbitral parties, have been the subject of debate in recent years – particularly by practitioners who are strong supporters of the open court principle that is a key feature of the English and Canadian legal systems. Unsurprisingly, the tension between the open court principle and the confidentiality of arbitral proceedings is an issue that both Canadian and English courts have grappled with, as discussed in our blog post (see here) concerning the decision of the England and Wales Court of Appeal in CDE v NOP  EWCA Civ 1908.
International arbitral institutions, such as the International Chamber of Commerce (the “ICC”), have recognized this tension between confidentiality and the open court principle. In the ICC’s “Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration” dated January 1, 2021 (the “ICC Note”), the ICC states:
“Increasing the information available to parties, the business community at large and academia is key to ensuring that arbitration remains a trusted tool to facilitate trade. Transparency provides greater confidence in the arbitration process, and helps protect arbitration against inaccurate or ill-informed criticism. The Court therefore endeavours to make the arbitration process more transparent without compromising the parties’ expectations, if any, of confidentiality.”
With that policy in mind, the ICC has taken steps to make international arbitrations more transparent by publishing the following information on its website with respect to arbitrations conducted under the ICC arbitral rules:
(a) For arbitrations registered as of January 1, 2016, details regarding the appointed arbitrators, including their names, nationality, role within an arbitral tribunal and method of appointment. Whether the arbitration is open or closed is also published;
(b) For arbitrations registered as of January 1, 2020, the industry sector and law firms acting for the parties will be published in addition to the above information; and
(c) For arbitrations registered as of January 1, 2021, the names of the administrative secretaries will be published in addition to the above information.
The ICC Note also deals with the publication of awards, procedural awards and dissenting and/or concurring opinions. For final awards made as of January 1, 2019, those awards as well as any other awards and/or orders along with any dissenting or concussing opinions given in the case may be published by the ICC not less than two years from notification of the ICC’s Secretariat. Prior to publication:
“any party may object to publication or require that any award and related documents be in all or part anonymised (removal of names and any contextual data that may lead to identification of individuals, parties or disputes) or pseudonymised (replacement of any name by one or more artificial identifiers or pseudonyms), in which case they will not be published or will be anonymised or pseudonymised.”
ICC arbitral awards are freely available on Jus Mundi. The awards that are available on that database illustrate that parties have taken different approaches with respect to confidentiality of their arbitral awards. Of course, what is not clear is how many parties have objected to publication altogether.
It is notable that the approach of the ICC to confidentiality is in contrast to that of the London Court of International Arbitration (the “LCIA”). In an LCIA Guidance Note to parties dated August 18, 2017, the LCIA states that it “does not publish Awards, or parts of Awards, even in redacted form.” We have seen no indication that the LCIA intends to adopt a practice similar to the ICC.
In contrast to the LCIA, The International Centre for Settlement of Investment Disputes (“ICSID”) has announced that amendments to the ICSID Rules and Regulations will come in to effect on July 1, 2022, some of which are aimed at making its arbitral processes more transparent. Among the proposed changes to the Rules and Regulations are provisions relating to the possibility of open hearings and the ability to publish awards as soon as possible. We will provide more information on these and other rule changes in due course.
The tension between confidentiality and transparency in arbitration is unlikely to be resolved any time soon. For parties drafting arbitration clauses into their agreements, they ought to turn their minds to how the arbitral rules they select to govern the arbitration may impact the information about any arbitration in the future which is made public. With respect to those practitioners who favour the open court principle, the ICC’s practice is a welcome change.
https://www.lcia.org//adr-services/lcia-notes-for-parties.aspx, at section 19 (103).
arbitration international arbitration transparency confidentiality