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Confidentiality in Arbitration
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Att. Leyla Orak Celikboya
Introduction
Confidentiality is considered to be among the unequivocal features
of commercial arbitration. This feature is regarded as a crucial advan-
tage of arbitration, mentioned among one of the main reasons for par-
ties to resort to arbitration.
The mere fact that arbitration does not take place in public, before
national courts, renders arbitration proceedings private. Public author-
ities are not included in the proceedings. Participation in hearings is
subject to numerous regulations. As a consequence, confidentiality is
regarded as an inherent quality of arbitration.
Notwithstanding the above, the privacy of arbitration does not,
necessarily, always entail confidentiality. The duty of confidentiality
and its scope differ when different arbitration rules or national laws
come into play. Moreover, transparency and public interest in the dis-
closure of information must be weighed against the parties’ interest in
confidentiality. This Newsletter article discusses confidentiality in
international arbitration, briefly examining the confidentiality provi-
sions of certain arbitration rules in practice.
Clash of Interests: Confidentiality or Transparency?
While an implied duty of confidentiality in arbitration is referred
to, and accepted in certain national laws and jurisprudence
1
, the scope
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NEWSLETTER 2015
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Article of April 2015
1
See English Court of Appeal decisions of
Hassneh Insurance Co of Israel v Mew
where the con-
fidentiality is not questioned,
Ali Shipping Corporation v “Shipyard Trogir”
where the court
expresses the need to determine the scope of such duty, and
John Froster Emmott v Michael
Wilson & Partners Limited,
where the parties’ duty of confidentiality is affirmed; citations of
which are provided in
Nick Blackby
and
Constatine Partasides
with
Alan Redfern
and
Martin Hunter
, Redfern and Hunter on International Arbitration, 5
th
Edition, Oxford
University Press (“Redfern and Hunter on International Arbitration”), para. 2.149 to para. 2.151.