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numerous arbitration rules does not provide for such a clear cut and
universal duty of the parties. Therefore, in the event the parties wish to
ensure confidentiality, not just privacy, of the arbitration proceedings
as a whole, they are advised to draft a contractual confidentiality oblig-
ation.
Conclusion
Both on a theoretical level, and in light of the rules applied in prac-
tice for institutional or ad hoc arbitration, a broad acceptance of confi-
dentiality, including the parties’ duty of confidentiality, is not inherent
in arbitration. Numerous arbitration rules regulate the privacy of hear-
ings, and at times the duty of confidentiality is foreseen, either under
express provisions, or through the possibility of an arbitral tribunal, to
issue such an order. Nevertheless, privacy does not automatically result
in confidentiality.
There is an inclination to move towards further transparency. The
clash of interests of the parties considering confidentiality, versus pub-
lic interest in disclosure, increasingly paves the way to limit the scope
of confidentiality. Therefore, it is advised to all parties, who wish to
have the arbitration proceedings confidential as a whole, to include a
contractual confidentiality obligation.
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