Study On The Confidentiality Of International Commercial Arbitration

Nations and institutions of arbitration are generally consistent with the practice of not hearing publicly in international commercial arbitration. This is by nature to private. This nature, as a principle rule, has a great significance for the parties. It can protect the commercial secrets, maintain business reputation and avoid problems. However, not hearing publicly doesn't mean people involved in arbitration with the duty of confidentiality. Confidentiality is derived form the three:provisions of confidentiality in arbitration agreement; applicable arbitration rules agreed; domestic arbitration law. In arbitration practice, many nations and institutions of arbitration have different opinions about whether there is a general obligation of confidentiality. For example, In England, the general duty of confidentiality has been upheld by several court decisions. On the other hand, the High Court of Australia considered the English Court decisions but concluded that the privacy of the hearing does not give rise to confidentiality. Faced with different attitudes, the parties tend to choose the rules better for resolving there disputes. However, I suggest that the parties write a confidentiality clause into arbitration agreement. It is a convenient way to keep the materials in secret.Who is subject to the duty of confidentiality? On whom the obligation may rest? There are three main groups of participants in the arbitral process to whom the duty of confidentiality may apply:the parties; arbitrators; third parties, including legal representative and witness. With respect to arbitrators, it has generally been recognized that they have an ethical duty to maintain confidentiality. For example, American Arbitration Association made the code of ethics for arbitrators in commercial disputes. If there is such a duty to what extent arbitration is confidential? This may include:(1) the existence of the dispute or the arbitration proceeding; (2) the substance of the arbitration proceeding, for example, the documents produced during discovery; evidence introduced in the arbitral proceedings; fact witness testimony; expert testimony.(3) all or part of the award. There are circumstances under which an award may need to be made public. In order to meet the need of the public, the award is open omitted the names of applicant and claimant. In England, there are two ways to relief the breach of confidentiality obligation. The victim can apply injunction or claim damages. However, the two ways are not effective.There are some circumstances under which the general assumption of confidentiality must be overridden. (1) The parties' consent; (2) One party has "reasonable necessity". It is sufficiently necessary to disclose materials only if the right in question can not be protected unless the materials and reasons are disclosed to a stranger to the arbitration agreement. The disclosed materials must therefore be a necessary element in the establishment of the party's legal rights against the stranger. (3) Public interests need to be protected firstly; (4) obey the order of court; (5) one party set up the litigation proceeding, then the arbitration materials come into public.