In your country, are there any rules with respect to the confidentiality of arbitration proceedings?
International Arbitration (4th edition)
Under Argentine law, the parties to an arbitration agreement can freely agree on the confidentiality of the arbitration (Art. 1658 NCCC), and they frequently do so in practice.
Austrian arbitration law does not contain any particular provisions on confidentiality in arbitration. Parties are recommended to expressly agree on the extent of confidentiality in the arbitration agreement or at the outset of the proceedings.
In Austrian court proceedings related to an arbitration (in particular setting aside proceedings), courts may exclude the public under section 616 (2) of the Austrian Code of Civil Procedure upon request of a party that has a legitimate interest.
The Vienna Rules 2018 provide for a confidentiality duty of the arbitrators and that hearings shall not be open to the public. VIAC may publish anonymized summaries or extracts of awards unless a party objects within 30 days of service of the award.
The Rules of arbitration of the respective institution explicitly provide for confidentiality.
The FAA does not provide specific rules governing confidentiality, but some states have adopted specific provisions for the confidentiality of an arbitration. See, e.g., MO. REV. STAT. § 435.14.
However, courts will generally uphold confidentiality agreements between parties, and unlike court proceedings in the United States, which are public by default, arbitral proceedings are generally private by default. Further, many institutions provide default confidentiality rules. For example, the LCIA rules provide that:
[t]he parties undertake as a general principle to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a state court or other legal authority. Confidentiality is therefore a matter of agreement between the parties.
Although arbitration proceedings are private, there is no clear legal duty of confidentiality, except in the province of Quebec, or where the parties have adopted institutional or other rules that impose confidentiality obligations. Where there is a duty of confidentiality, if a party seeks court intervention, or if disclosure if otherwise required by law, confidentiality may be lost.
Article 43, Section IV of CEDRAC Arbitration Rules, provides that a general principle of confidentiality towards all awards and orders is undertaken by the parties, unless expressly stated otherwise in their agreement. Material submitted by another party in the framework of the proceedings shall also be confidential. The deliberations of the tribunal are also confidential.
Article 48 of the UAE Arbitration Law only refers to the confidentiality of the arbitral award as opposed to the arbitral proceedings. However, it can safely be deduced that if the arbitral award is considered confidential, such confidentiality would also extend to the proceedings leading up to the award.
Article 14 of the DIFC Law and Article 40 of the ADGM Regulations both expressly provide for the confidential nature of arbitration proceedings.
Whilst the 1996 Act does not address confidentiality, generally, there is an implied duty in English law to maintain the confidentiality of arbitration hearings, documents generated and disclosed during the arbitral proceedings and any award generated.
In broad terms, the exceptions to this duty are: (i) the parties may dispense with, or modify, the obligation of confidentiality by agreement or consent and (ii) where disclosure of documents is ordered or permitted by the court. Inter alia disclosure has been permitted where it is reasonably necessary for the establishment or protection of a party’s legal rights and where it is necessary in the interest of justice or (possibly) in the public interest.
While ss 22-23 of the IAA provide for court proceedings brought under the IAA to be heard otherwise than in open court upon the application of any party as well as for restrictions on the publication of information arising in such proceedings, both the AA and IAA ‘do not provide specifically for confidentiality in arbitration’. AAY and others v AAZ,  SGHC 142 at . Rather, the parties’ selection of arbitral rules is likely to have a more significant impact on the overall confidentiality of the arbitration. For example, a number of aspects of ICC arbitration are now trending toward greater transparency in practice (as discussed below at Question 4 in the Hot Topics section) while other arbitral institutions promote a greater degree of confidentiality. Under Rule 39 of the SIAC Rules (2016), for example, the default position (unless the parties agree otherwise) continues to be that ‘all matters relating to the proceedings and the Award’ are strictly confidential, including the ‘discussions and deliberations of the Tribunal’ as well as the very ‘existence of the proceedings’.
The Arbitration Act (the “Act”) does not expressly require confidentiality in arbitral proceedings. In practice however, arbitral proceedings in Korea are administered in strict confidentiality, and courts recognize confidentiality as a paramount importance in arbitration. In 2013, Seoul Administrative Court dismissed an appeal by a civic group of lawyers seeking to vacate the Ministry of Foreign Affairs rejection of the group’s request for disclosure of the Notice of Arbitration filed in LSF-KEB Holdings SCA and others v. Republic of Korea (ICSID Case No. ARB/12/37) (Seoul Administrative Court 2013GuHap50999, 27 September 2013). The court ruled “in principle, arbitral proceedings are confidential, and parties owe the duty to maintain confidentiality with regard to information relating to the arbitration unless the parties have agreed to disclose” and held than arbitration “cannot be deemed a public proceeding like court trials, and there is no evidence to suggest that disclosure of such information has become customary international practice” (Id.).
In arbitral proceedings conducted under the KCAB International Arbitration Rules (the “Rules”): (i) arbitral proceedings and records thereof should be closed to the public; (ii) facts relating to the arbitration should not be disclosed without the parties’ consent or unless required by law; and (iii) the Secretariat may publish an award only after redacting the names, places, dates and any other identifying information of the parties or the dispute (Article 57 of the Rules).
German law does not provide any rules with respect to the confidentiality of the arbitration proceedings. If the parties want to keep their proceedings confidential, they need to agree explicitly on the confidentiality of the arbitration proceedings.
The new 2018 DIS Rules contain a provision dealing with the confidentiality of the arbitration (Article 44). Unless the parties agreed otherwise the persons involved in the arbitration proceedings shall not disclose any information concerning the arbitration. Exceptions are provided for the event that disclosures are necessary because of the applicable law or any other legal duties. The DIS can only publish the arbitral award with the prior written consent of all of the parties.
The Arbitration and Conciliation (Amendment) Act, 2019 enacted a new provision Section 42A which mandates confidentiality of Information by the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award.
This is based on a High-Level Committee chaired by Justice (Retd.) B. N. Srikrishna recommended that a new provision may be inserted providing for confidentiality of arbitral proceedings unless disclosure is required by legal duty, to protect or enforce a legal right, or to enforce or challenge an award before a court or judicial authority. This provision is effective from August 9, 2019 the day received the assent of the President and published in the Gazette of India. Earlier there was no provision regarding the confidentiality of the arbitration proceeding in India.
Yes. Unlike the Indonesian code on civil case procedure, the Arbitration Law specifically requires that arbitration proceedings be closed to the public. However, the Arbitration Law does not specify the extent of confidentiality because for enforcement purposes, an arbitral award will need to be registered with the relevant court and enforced with the assistance of the court. The award typically loses confidentiality at this point since Indonesian courts have no mechanism allowing enforcement of an arbitral award to be implemented discreetly. If the award debtor is not willing to comply with the arbitral award voluntarily, any attempt to enforce the award will require involvement of the state auction house and the police, which will also diminish confidentiality.
If proceedings are held under BANI Rules, the parties, arbitrators and BANI are required to keep all matters related to the proceedings confidential, including the appointment of the arbitrators, documents, records of hearings, witness testimony, and the award itself. This provision can, however, be waived by agreement between the parties or if required by law (Article 14 (2) of the BANI Rules).
It is also worth highlighting that there is no privacy in award setting-aside proceedings because any proceeding to set aside an award will be treated as a general civil proceeding by the court, which is open to the public. Consequently, privacy and confidentiality in Indonesian arbitration proceedings is often illusory.
The Liechtenstein law on arbitration does not contain any provision which would stipulate a confidentiality obligation for arbitral proceedings. Only § 633 para. 2 Liechtenstein CCP provides that the public can be excluded upon application of a party from proceedings following the challenge of an arbitral award, but only if a legitimate interest is at stake. Hence, it is advisable to include provisions on the preservation of confidentiality in the arbitration agreement.
To make up for this deficiency, the Liechtenstein Rules contain numerous provisions on confidentiality obligations. First, Article 6 of the Liechtenstein Rules provides that only a person may be appointed to serve as an arbitrator who is subject to certain professional confidentiality obligations (such as lawyers, professional trustees that are regulated under Liechtenstein law, patent lawyers or auditors). If nominated, the nominee has to confirm that he/she satisfies this eligibility condition.
The substantive scope of the confidentiality obligation extends to (a) all awards and orders, (b) all materials submitted, and (c) all facts made available by other participants in the arbitral proceedings. The personal scope of the confidentiality obligation extends to the parties, their respective representatives, the experts, the arbitrators, any commissioner, the secretariat and their auxiliary personnel.
In case of specific needs for confidentiality the arbitral tribunal may make documents accessible to an expert "without granting the other parties access to these documents" (Article 29.3 of the Liechtenstein Rules).
The parties, their representatives, the arbitrators and any commissioner shall take appropriate organizational measures to safeguard the confidentiality of the arbitral proceedings, including e.g. encryption of email correspondence.
The obligation to preserve confidentiality does not terminate upon the conclusion of the arbitral proceedings, and is fortified by a contractual penalty of CHF 50,000.00 for each violation (Article 29.7 of the Liechtenstein Rules).
Generally, Section 41A(1) provides that unless otherwise agreed by parties, no party may publish, disclose or communicate any information relation to the arbitral proceedings under the arbitration agreement or an award made in those arbitral proceedings.
However, there are exceptions provided in Section 41A(2) of the Arbitration Act which reads as follows:-
In legal proceedings before a court or other judicial authority in or outside Malaysia
In legal proceedings before a court or other judicial authority in or outside Malaysia
FCCP Article 1464 provides that subject to legal obligations and unless the parties otherwise agree, the arbitral proceedings are subject to confidentiality. However, this obligation only applies to domestic arbitration.
In order for the arbitral proceedings to be subject to confidentiality in an international arbitration, parties who select France as the seat of the arbitration need to expressly include a confidentiality undertaking in their arbitration agreement. Parties can also submit their arbitration to institutions that provide in their Rules for the confidentiality of the arbitral proceedings.
In any event, the deliberations of the arbitral tribunal are secret (FCCP Articles 1479 and 1506).
The principle of confidentiality of the arbitral proceedings is inferred from the rule prohibiting the publication of the arbitral award and is confirmed by the Explanatory Note of EAL, which explains that the confidentiality of the arbitration is of significant importance to the parties in order to preserve inter-commercial relations. There is no explicit reference in the EAL providing for the confidentiality of the proceedings, however, the EAL provides that an arbitral award may not be published, in whole or in part, unless agreed by the parties. In any event, when an award is subject to nullity or enforcement proceedings, its content will likely fall in the public domain, unless otherwise ordered by the court.
Arbitral institutions in Mexico have their own rules that are very clear and stipulate matters of costs and duration. However, it is also stipulated that all awards, orders, and materials submitted by a party in the course of an arbitral proceeding are to be kept confidential, unless agreed otherwise by the parties.
The ACA makes no express provision on confidentiality in respect of arbitral proceedings. However, arbitral proceedings in Nigeria are confidential. Article 25(4) of the ACA Arbitration Rules provides that arbitral hearings shall be held “in camera” unless parties otherwise agree.
Arbitral proceedings and awards are not subject to confidentiality, unless the parties agree otherwise.
Arbitration proceedings, including records, evidence, and the arbitral award, are considered confidential and cannot be published, except: (a) with consent of the parties; or (b) for the limited purpose of disclosing to the court relevant documents where resort to the court is allowed. (Sec. 23, ADR Act).
Arbitration proceedings are usually confidential and attended only by the parties and their representatives. Furthermore, submissions made during these proceedings are not made available to the general public. However, if the parties wish to ensure the confidentiality of the proceedings and the award, they will need to agree in advance.
Furthermore, arbitral awards are not published in KSA. Documents filed in legal proceedings for recognition and enforcement of arbitral awards are not available for public inspection.
The rules governing arbitration impose a confidentiality duty upon the arbitrator, and this is one of the main obligations adopted by the arbitrator in accepting the role of arbitrator.
The parties or the court (where serious grounds exist) may relieve the arbitrator of the confidentiality duty.
There are not legal provisions on confidentiality in either domestic or international commercial arbitration laws. The matter is governed by parties’ agreement or by the applicable arbitration rules. Nevertheless, in practice arbitral tribunals usually treat arbitration proceedings as confidential. However, once a recourse or application for enforcement are filed before a national court –which proceedings are public–, it is not possible to keep the case confidential.
Both the Private International Law Act and the Swiss Code of Civil Procedure are silent on the question of confidentiality. However, it is generally acknowledged that under the arbitrators’ agreement with the parties (receptum arbitri), the members of the arbitral tribunal are under a duty of confidentiality with regard to the arbitration proceeding, deriving from the general duty of care under an agency agreement as stipulated in art. 398 para 2 of the Swiss Code of Obligations.
The parties to an arbitration agreement may agree upon confidentiality obligations in the arbitration agreement or choose arbitration rules that contain specific provisions on confidentiality. In the absence of clear provisions, it is unclear whether the arbitration agreement contains an implied duty of confidentiality of the parties or whether such duty could be derived from the duty of good faith pursuant to art. 2 para 1 of the Swiss Civil Code; legal commentators are divided on the issue, and the view favouring such implied duty has not been corroborated by case law thus far.
As regards the Swiss Rules on International Arbitration, art. 44 provides for a duty of confidentiality that applies unless the parties expressly agree otherwise in writing. The arbitrators, the tribunal-appointed experts, the secretary of the arbitral tribunal, the members of the board of directors of the Swiss Chambers’ Arbitration Institution, the members of the Arbitration Court and the Secretariat and the staff of the individual chambers are all bound by this duty of confidentiality. Furthermore, according to art. 44 para 2 of the Swiss Rules, the deliberations of the arbitral tribunal are confidential.
There are no rules with respect to the confidentiality of arbitration proceedings. The parties who wish to choose Turkey as the seat of arbitration are advised to sign a confidentiality agreement or add a clause to that effect in their agreements.