Abstract
“Globalization” is categorically with us. It has affected the world’s economies, popular cultures, languages and legal systems. Indeed, in this last regard, globalization has contributed directly to the rapid and broad growth of international arbitration. As many businesses have become inherently international, they have sought more effective and efficient means of resolving disputes without having to utilise national litigation systems that are often expensive and slow, or perhaps rife with national bias and political considerations. Often, these businesses have chosen the dispute resolution mechanisms embodied in international arbitration.
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Notes
- 1.
Leahy and Bianchi (2000, p. 19).
- 2.
Leahy and Bianchi (2000, p. 36).
- 3.
Esso/BHP v Plowman (1995) 128 A.L.R. 391; Hassnesh v Mew [1993] 2 Lloyd’s Rep 243.
- 4.
United States v Panhandle Eastern Corp. 118 F.R.D. 346 (D. Del. 1988).
- 5.
Domke (1999, § 24:07): “[t]he arbitrator should not give out any information about the proceeding or even make known the result of the arbitration to persons other than the parties. Though this is not a legal requirement, it has been sanctioned by long-standing practices. Privacy of arbitration is one of the essential factors carefully observed in institutional arbitration where no one other than the parties is allowed to gain any knowledge of the records and files”.
- 6.
In Hassneh Insurance Co. of Israel v Mew [1993] 2 Lloyd’s Rep. 243, where material introduced into evidence in a reinsurance contract arbitration was sought by one of the parties to be held in confidence, an English court found that there was an implied right of confidentiality in every arbitration. This implied right was the foundation upon which the court eventually required the materials to be held confidential. The court, citing The Eastern Saga, [1984] 2 Lloyd’s Rep. 373 (Q.B.) stated, at 379: “… the concept of private arbitration derives simply from the fact that the parties have agreed to submit to arbitration particular disputes arising between them and only them. It is implicit in this that strangers shall be excluded from the hearings and conduct of the arbitration….”; Leahy and Bianchi (2000, pp. 35–37).
- 7.
In Esso/BHP v Plowman (1995) 128 A.L.R. 391 the High Court of Australia held that arbitrations are not per se confidential, whether on the basis of an implied term or as being inherent in the subject matter of the agreement; Leahy and Bianchi (2000, pp. 35–37); However, more recent case law – such as Transfeld Philippines Inc & Ors v Pacific Hydro Ltd & Ors [2006] VSC 175 – has demonstrated that confidentiality is observed, as the cases where documents will not be treated as confidential are rare; Derrington (2007, pp. 188–190).
- 8.
The Swedish Supreme Court in Bulgarian Foreign Trade Bank Ltd. v A.L. Trade Finance Inc. [Judgment of October 27, 2000, Swedish Supreme Court] ruled that that a party in arbitration proceedings governed by Swedish law is not bound by confidentiality, unless the parties have entered into a specific agreement to that effect; Leahy and Bianchi (2000, pp. 35–37).
- 9.
Leahy and Bianchi (2000, pp. 35–37).
- 10.
Paulsson and Raeding (1995, pp. 303–304).
- 11.
Hassnesh v Mew [1993] 2 Lloyd’s Rep 243, 247.
- 12.
Dessemontet (1996, p. 16).
- 13.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 14.
Dessemontet (1996, pp. 19–20).
- 15.
Parties frequently involved in arbitration may not be able to withhold the fact of such involvement because although third parties are excluded from most types of international arbitration, nevertheless it does not necessarily follow that parties will not to disclose what has transpired in the process of an arbitration nor that there exists a positive and unlimited duty on the part of participants in arbitral proceedings to maintain confidentiality; Paulsson and Raeding (1995, pp. 303–304).
- 16.
Brown (2001, pp. 1000–1004).
- 17.
Ali Shipping v Shipyard Trogir [1998] 1 Lloyd’s Rep 643.
- 18.
Ali Shipping v Trogir [1999] 1 W.L.R. 314.
- 19.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 20.
Editorial (1995, pp. 231–233).
- 21.
Paulsson and Raeding (1995, pp. 303–304).
- 22.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 23.
In England in Oxford Shipping Co v Nippon Yesen Kaisha [The “Eastern Saga”] [1984] 2 Lloyd’s Rep. 373 (QB), Dolling-Baker v Merrett [1990] 1 WLR 1205, and in Hassnesh v Mew [1993] 2 Lloyd’s Rep 243, it was demonstrated that the nature and the extent of the duty of confidentiality in arbitration is by no means fully chartered but subject to certain limitations and exceptions. The possible exceptions, as articulated in the cases of Ali Shipping v Shipyard Trogir [1998] 1 Lloyd’s Rep 643, Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia and Trade Finance Inc v Bulgarian Foreign Trade Bank Ltd Case No Y 1092-1098, SVEA Court of Appeal, relate to documents and evidence (parties may agree to disclosure of documents or evidence); Brown (2001, pp. 1008–1014); Editorial (1995, pp. 231–233).
- 24.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 25.
Lord Neil (1996, p. 316).
- 26.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 27.
Transfeld Philippines Inc & Ors v Pacific Hydro Ltd & Ors [2006] VSC 175.
- 28.
Bremer Vulkan v South India Shipping Corpn Ltd 18 [1981] AC 909.
- 29.
Transfeld Philippines Inc & Ors v Pacific Hydro Ltd & Ors [2006] VSC 175.
- 30.
Derrington (2007, pp. 188–190).
- 31.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 32.
Trade Finance Inc v Bulgarian Foreign Trade Bank Ltd, Case T-6-11-98, Stockholm City Court.
- 33.
Brown (2001, pp. 1015–1017).
- 34.
JCC Award, 1998; Case Comment (1999) JCC Award Upheld Doesn’t Conflict With Turkish Law, Mealey’s Int. Arbitration Report, 14(3):7.
- 35.
- 36.
Parties may wish to join multiple parties due to joint and several or imputed liability and sub-contracting issues. Likewise, arbitrators, encouraged by Courts might seek to join parties for reasons of efficiency and reasons of res judicata; Leahy and Bianchi (2000, p. 40).
- 37.
Oxford Shipping Co v Nippon Yesen Kaisha [The “Eastern Saga”] [1984] 2 Lloyd’s Rep. 373 (QB).
- 38.
Oxford Shipping Co v Nippon Yesen Kaisha [The “Eastern Saga”] [1984] 2 Lloyd’s Rep. 373 (QB).
- 39.
The court in Oxford Shipping Co v Nippon Yesen Kaisha [The “Eastern Saga”] [1984] 2 Lloyd’s Rep. 373 (QB) at 384 stated: “[i]t seems to me that, as is graven upon the heart of any commercial lawyer, arbitrators in the position of these arbitrators enjoy no power to order concurrent hearings, or anything of that nature, without the consent of the parties. The concept of private arbitration derives simply from the fact that the parties have agreed to submit to arbitration particular disputes arising between them and only them. It is implicit in this that strangers shall be excluded from the hearing and conduct of the arbitration and that neither the tribunal nor any of the parties can insist that the dispute shall be heard or determined concurrently with or even in consonance with another dispute, however convenient that course may be to the party seeking it and however closely associated with each other the disputes in question may be. The other powers which an arbitrator enjoys relate to the reference in which he has been appointed. They cannot be extended merely because a similar dispute exists which is capable of being and is referred separately to arbitration under a different agreement.”; Leahy and Bianchi (2000, p. 40).
- 40.
Kratky-Dore (2006, p. 492).
- 41.
Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184.
- 42.
Sindler (2008).
- 43.
Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184.
- 44.
AkzoNobel Chemicals v Commission of European Communities, Joint Cases T-125/03 and T-253/03, European Court of First Instance of 17 Sept. 2007.
- 45.
Allowing the advice of internal counsel to be used against a company goes squarely against the very philosophy of privilege as corporate counsel are useful precisely because they help companies navigate legal risks. The same of course for non-EU qualified counsel. Advice from the best lawyer may not be protected if it is not also from the right lawyer. The very purpose of privilege should be to allow clients to confer openly about issues with the best person for the job both in-house and external counsel and should not be limited by the formality of Bar membership on which the court in AkzoNobel Chemicals v Commission of European Communities [Joint Cases T-125/03 and T-253/03, European Court of First Instance of 17 Sept. 2008] focused.
- 46.
AkzoNobel Chemicals v Commission of European Communities [Joint Cases T-125/03 and T-253/03, European Court of First Instance of 17 Sept. 2007], which held that only communications of independent EU qualified lawyers can be privileged, in other words that privilege of English in-house lawyers protected in England, but not at EU level and that privilege of non-EU qualified lawyers is not respected at EU level.
- 47.
Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184, whereby the court found that the notion of “interest of justice” had an international character which extended outside the English jurisdiction and as such could justify its serving in other jurisdictions by permitting disclosure in them.
- 48.
Sindler (2008).
- 49.
Hassneh Insurance Co. of Israel v Mew [1993] 2 Lloyd’s Rep. 243.
- 50.
United States v Panhandle Eastern Corp. et al (D.Del. 1988) 118 F.R.D. 346.
- 51.
Bulgarian Foreign Trade Bank Ltd. v A.L. Trade Finance Inc., Judgment of October 27, 2000, Swedish Supreme Court.
- 52.
Espoused in Hassneh Insurance Co. of Israel v Mew [1993] 2 Lloyd’s Rep. 243.
- 53.
Leahy and Bianchi (2000, pp. 38–39).
- 54.
United States v Panhandle Eastern Corp. et al (D.Del. 1988) 118 F.R.D. 346.
- 55.
Bulgarian Foreign Trade Bank Ltd. v A.L. Trade Finance Inc., Judgment of October 27, 2000, Swedish Supreme Court.
- 56.
Leahy and Bianchi (2000, p. 39).
- 57.
Leahy and Bianchi (2000, pp. 39–40).
- 58.
Leahy and Bianchi (2000, pp. 39–40).
- 59.
Carbonneau (2005, pp. 715–716).
- 60.
For example, the AAA Rules require only that the members of the arbitration panel and the arbitration administrator keep the proceeding in confidence – See AAA International Arbitration Rules, Art. 34. The AAA Rules make absolutely no mention of any duty of confidentiality applicable to parties or witnesses. Likewise, the UNCITRAL Rules do not even mention privacy or confidentiality of arbitrations. The Rules of Arbitration of the ICC assign slightly greater importance to confidentiality, but, where explicit, govern only the internal workings of an arbitration – Rules of Arbitration of the International Chamber of Commerce, Appendix II, Article I. – and are ambiguous as to their potential application to the parties to an arbitration – Rules of Arbitration of the International Chamber of Commerce, Statutes of the International Court of Arbitration of the ICC, Appendix I, Article 6: “The work of the Court is of a confidential nature and must be respected by everyone who participates in that work in whatever capacity. The Court lays down the rules regarding the persons who can attend the meetings of the Court and its Committees and who are entitled to have access to the materials submitted to the Court and its Secretariat”. The WIPO Rules provide for complete confidentiality except where both parties expressly agree to the disclosure of information, or where the law, or a court or other competent authority, so orders – and then only to the extent necessary – World Intellectual Property Organization Arbitration and Mediation Center, Complete Listing of the Arbitration Rules, Articles 73–76; Leahy and Bianchi (2000, pp. 40–41).
- 61.
In United States v Panhandle Eastern Corp. (D. Del. 1988), 118 F.R.D. 346, at 349–350 the court applied US law concerning protective orders after determining that ICC rules concerning confidentiality did not apply to the parties, only to the internal ICC mechanism.
- 62.
Bulgarian Foreign Trade Bank Ltd. v A.L. Trade Finance Inc., Judgment of October 27, 2000, Swedish Supreme Court.
- 63.
Hassneh Insurance Co. of Israel v Mew [1993] 2 Lloyd’s Rep. 243.
- 64.
Carbonneau (2005, pp. 715–716).
- 65.
Such as Mealey’s International Arbitration Report.
- 66.
Leahy and Bianchi (2000, pp. 41–42).
- 67.
Ong (2005, pp. 177–180).
- 68.
Dessemontet (1996, pp. 27–31).
- 69.
In Australia it was held in Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia that confidentiality, unlike privacy, is not “an essential attribute” of commercial arbitration. In the United States, in the leading case of United States v Panhandle Eastern Corp. et al (D.Del. 1988) 118 F.R.D. 346 the court held that there is no inherent duty of confidentiality unless the parties contract for it, and that the ICC Rules place no obligation of confidentiality on arbitrating parties and granted the government’s request to compel production of the documents. English law holds that arbitral parties are subject to an implied duty of confidentiality. In the leading case of Ali Shipping v Shipyard Trogir [1998] 1 Lloyd’s Rep 643 the court held that such an obligation is implied in every arbitration agreement as “an essential corollary of the privacy of arbitration proceedings”. However, English law also recognises certain exceptions. French law appears to provide even more stringent protection for the confidentiality of arbitral proceedings and awards. In Aita v Ojjeh, Cour d’ Appel de Paris, February 18, 1986 the French court of Appeal dismissed an action to annul an arbitral award rendered in London, penalizing the party bringing the annulment action for thereby breaching the principle that arbitral proceedings are confidential. The decision does not even appear to allow for the narrow exceptions recognised by English law; Editorial (1995, pp. 231–233).
- 70.
For example, Article 25(4) of the Arbitration Rules of UNCITRAL provides that hearings shall be held “in camera” but it does not say what the parties may or may not reveal outside the hearing. The rules of the ICC, though excluding from hearings “persons not involved in the proceedings” and permitting the arbitral tribunal to “take measures for protecting trade secrets or confidential information”, are silent on the confidentiality of awards and of materials produced and information divulged in the proceeding.
- 71.
Brown (2001, pp. 1015–1017).
- 72.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 73.
Transfeld Philippines Inc & Ors v Pacific Hydro Ltd & Ors [2006] VSC 175.
- 74.
Editorial (1995, pp. 231–233).
- 75.
Dessemontet (1996, pp. 21–23).
- 76.
Presumably, a party would have to go to court, where the vagaries of national law would come into play. But, if this were the case, would a court in the USA hold that the parties’ incorporation of the rules of the LCIA Arbitration International represents a binding agreement to keep proceedings confidential? Perhaps, but the dearth of authority on this issue makes reliance on such an outcome hazardous.
- 77.
Thompson and Finn (2007, pp. 75–78).
- 78.
Thompson and Finn (2007, pp. 75–78).
- 79.
Trackman (2002, pp. 12–13).
- 80.
Trackman (2002, pp. 17–18).
- 81.
Sarles (2002).
- 82.
Brown (2001, pp. 1015–1017).
- 83.
Esso/BHP v Plowman (1995) 128 A.L.R. 391, High Court of Australia.
- 84.
Transfeld Philippines Inc & Ors v Pacific Hydro Ltd & Ors [2006] VSC 175.
- 85.
Editorial (1995, pp. 231–233).
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Noussia, K. (2010). Critical Analysis, Overall Assessment and Discussion. In: Confidentiality in International Commercial Arbitration. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-10224-0_5
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