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Rightly or wrongly, lawyers in England expect their confidential advice to clients to be privileged and immune from disclosure. They expect arbitrations to be confidential (an advantage over litigation where matters become public record) and clients have similar expectations. As corporations expand globally, they face greater challenges, complexities and risks. Cross-border disputes and regulatory investigations almost inevitably involve more than one legal system and parties, lawyers and arbitrators, judges or regulators from diverse legal, commercial and cultural backgrounds. What does this mean for expectations of confidentiality in international disputes where very different, often ill-defined and sometimes contradictory notions of confidentiality or privilege interact?

The pressures of increased corporate governance, new whistleblowing requirements (for example, under the Proceeds of Crime Act 2002) and new antitrust and regulatory rules, make companies constantly under scrutiny by governance authorities, prosecutors, Financial Services Authority/Securities Exchange Commission investigators as well as civil litigants. For many large organisations, disputes and lawsuits are today simply a fact of life.

Has the recent approach of the judiciary in England and the European Union (EU) affected the provision of legal advice and assistance by eroding the confidentiality of arbitration and diminishing the role of legal privilege? Recent cases show that questions of privilege and confidentiality can be a legal minefield in contentious proceedings at national level and even more so in international proceedings.

Confidentiality in documents produced or divulged for the purpose of arbitration stem from an implied right of privacy in the arbitration process keeping matters private between the parties involved. The existence, extent and the basis of confidentiality in international commercial arbitration is a matter of scholarly debate and occasionally the focus of decisions of arbitration tribunals and state courts, and should not be automatically assumed. The issue has different dimensions in the context of international investment and trade disputes. Participation of states and state entities in international disputes can be a matter of public interest, shifting the emphasis from privacy and confidentiality to knowledge and accountability.

A recent Court of Appeal decision in England (Emmott v Michael Wilson & Partners Limited [2008]), provided an in-depth analysis of the law on the private and confidential nature of commercial arbitration in England. The court acknowledged that there is a well-settled obligation, implied by law in England, not to disclose any documents prepared for and used in arbitration for any other purpose but recognised a concurrent and sometimes overriding public interest that means in certain circumstances disclosure may be permissible (determined on a case-by-case basis). Parties to arbitration in England may generally be allowed, and may even be required, to disclose details of the arbitration where:

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