Study On Confidentiality Of International Commercial Arbitration

I. The rise of the questionThe Case of Wang Laoji and Jiaduobao was ruled by the Chinese International Economic and Trade Arbitration Commission, that brought the public’s attention to the Confidentiality of Arbitration. The Confidentiality of Arbitration was known as the main character and the advantage of arbitration, however, the information of arbitration was disclosed from time to time into the public domain. Whether the parties want their information to be disclosed? Is the confidentiality was a good thing for the development of business and education? In that perspective, the question was raised.Confidentiality of International Commercial Arbitration is an issue encountered from time to time but still unsettled with uncertainty and even the definition is unified. Based on the different condition of each nation, the preference of parties and institutions, there is no uniform definition of confidentiality. Confidentiality surely has its own advantages as drawbacks, some scholar thinks the advantage override the drawback while some other scholars thinks the drawback override the advantage and increased transparency should be applied. There are lots of articles discussing about the issue but little talks about the conditions in China.II. Basis of the research achievementsChinese scholar’s achievements were raised about the time before 2010, the features are: 1. Not specific enough. Most of the articles use the title of the study of confidentiality of arbitration or the drawbacks of confidentiality, but without further address of the issue. 2. The Chinese condition was not take into account, most of the articles are disusing about the foreign cases and ruling without apply the ruling and analysis into China.The American scholar’s achievements are somehow more specific, the features are: 1. They address specific issue. Like the third party founded claim of arbitration and the difference between the privacy and the confidentiality. 2. They have specific positions. Some scholar thinks the confidentiality of arbitration is a traditional advantage of arbitration, which should be stick into in the future, while the others thinks increased transparency should be applied into the arbitration, since the confidentiality of arbitration sets back the development of business and education.III. About the thesisThis thesis disused about the suggestions based on Chinese unique condition, the split disclosure should be applied, and it can fulfill the needs of business development as well as the education purpose. This thesis is divided into four chapters, discussing about the conceptual issue of confidentiality, legal basis of confidentiality and the material issues in practice. Finally this thesis arise suggestions about the development of confidentiality in China.The first chapter disusing about the conceptual issue of confidentiality, involves the difference between the concept of privacy and confidentiality. The concept of confidentiality is always an unsettled issue, this chapter also discussing about the classification of the concept.The second chapter disusing about the legal basis of confidentiality, includes the agreement of the parties, the express term and the implied term, and the institutional rules and national ruling.The third chapter disusing about the actors bound by the duty of confidentiality while disusing about the legal consequence of breaching the duty of confidentiality.The final chapter is of the essence of this thesis, disusing about the unique practice condition in China, cases and rules, and finally gives suggestions that the split disclosure system can help with the development.IV. Core conclusion1. The Institutions of arbitration should open a sector of model clauses of confidentiality on there websites. To guide the parties to choose and find out what does they really want. To guide the parties with the issue of confidentiality in the contract-drafting stage, the parties may entered into confidentiality agreement in an early stage.2. Classification of informationThe arbitration information should be classified into 3 categories: A. the existence of arbitration and the basic information of the parties. B. the facts of the case and C. the award or the outcome of the case. For the purpose of development of business, we should build up a website for all the business parties to register and log on to find their business partner’s information about disputes, the A and C information should be published on the website. For the purpose of education and policy making, the B information should be periodically published to fulfill the needs for the scholars and policy makers, since the information and background of the parties is not necessary for them, only the B information should be published.