Arbitration has received a lot of publicity over the last several years. Almost all discussions, even those that are contained in court decisions, begin by assuming that arbitration is confidential. But is that the case? What are the boundaries of any confidentiality protections? Any serious examination reveals significant limits to arbitration confidentiality even when the arbitration is a business-to-business arrangement. When consumers, employees, or investor-state disputes are involved, there are even fewer confidentiality protections.
Arbitration is a private method of dispute resolution (as opposed to a public court proceeding) that depends upon a written contract between the parties. It is a creature of contract, depending upon the authority granted by the agreement. Relying upon the Federal Arbitration Act, 9 U.S.C. §1 et seq., which was specifically enacted to overcome hostility to arbitration, the U.S. Supreme Court has consistently upheld the validity of arbitration agreements to resolve future disputes if they meet the standards for enforceable contracts generally. See Gilmer v. Interstate/Johnson Lane, 500 U.S. 20 (1991); Circuit City Stores v. Adams, 532 U.S. 105 (2001). Arbitration agreements are uniformly held to be voluntary in the sense that they are presumed to have been knowingly entered into. See, e.g., Ragone v. Atl. Video at the Manhattan Ctr., 595 F.3d. 115 (2d Cir. 2010); Isaacs v. OCE Business Servs., 968 F. Supp. 2d 564 (S.D.N.Y. 2013).
