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of such duty is uncertain. The general trend in international arbitration
leans towards questioning, and even disregarding, confidentiality as a
whole. Especially in circumstances where governmental institutions
are involved, information disclosed during arbitration proceedings,
which ought to be public information disclosed by that authority2, are
not protected under the veil of the inherent confidential nature of arbi-
tration. This inclination is not without reason. When confidentiality of
arbitration proceedings is concerned, there is a clash of interests: the
interest of the parties in terms of confidentiality, versus the interests of
the public in disclosure.
The parties may have a material interest not to disclose the exis-
tence of a dispute, any information provided therein a dispute, or the
results thereof. Confidentiality serves the parties’ trade secrets, as well
as maintaining an image without suffering damages. It may be easily
argued that a party’s autonomy is reserved in arbitration. As the dispute
concerns the parties, the parties’ interests must be taken into consider-
ation, exclusively. Therefore, the parties’ interests in arbitration pro-
ceedings being entirely confidential must be a determining factor.
To the contrary, although a dispute mainly concerns the parties,
access to case law is a key component for the progress of arbitration
and the education of practitioners of arbitration. Inconsistencies and
lack of predictability may be prevented through transparency3. Arbitral
awards establish jurisprudence, serving both the parties and practition-
ers. In practice, awards are published, without disclosing the parties
that are involved. In fact, numerous rules of arbitration regulate the
procedure of disclosure of arbitral awards. However, in addition to the
development of case law and arbitration, at certain times, greater pub-
lic interest may be the case. Especially when a state is involved in dis-
putes that are resolved through arbitration, transparency becomes very
important. In the above example, public interest in the disclosure of
information prevails over the concerns of confidentiality.
ARBITRATION LAW 195
2 Redfern and Hunter on International Arbitration, para. 2.152 to para. 2.157.
3 See Stefano Azzali, Confidentiality vs. Transparency In Commercial Arbitration: A False
Contradiction To Overcome,
transparency-in-commercial-arbitration-a-false/ (accessed on 27 April 2015).