The Confidentiality In International Commercial Arbitration

Confidentiality is often cited as one of the main benefits of arbitration as opposed to litigation. Parties to the arbitration assume that their sensitive business information can be fully protected under the duty of confidentiality, which is merely an illusion. Since virtually all institutional arbitration rules have no articles dealing with the confidential duty while many countries deny the presumption of confidentiality in arbitration proceedings. This conflict leads to the confusion of what confidentiality really is in international commercial arbitration.This article analyses the major institutional arbitration rules and influential cases through comparative approach and reaches a conclusion that the nature of arbitration proceeding is private rather than confidential. The confidential duty subject to parties is not presumptive but rather a contractual duty, meaning that the parties do not have a general duty of confidentiality, absent some agreement between the parties. And scholars, practitioners and arbitrators should engage in a careful weighing of the benefits and costs of confidentiality versus greater transparency under the facts of the particular situation and should not be too quick to presume the existence of a general duty of confidentiality or to enforce such a duty.