One of the aspects of international arbitration that is much discussed in published commentaries is the confidentiality of arbitral proceedings—what it consists of, the extent to which it is or should be imposed, by whom, and who should be affected. In this article, we explore the extent to which parties may be advertently or inadvertently bound by confidentiality restrictions limiting their present or subsequent disclosure of information, including awards, from arbitration proceedings in which they are involved.
Over the past several decades, more and more major international disputes have been resolved through arbitration. It is likely that, earlier, such disputes would have been heard in courts, resolved through negotiation or even not pursued all. Businesses and investors have been drawn to international arbitration as a way of avoiding local courts and their unfamiliar procedures and influences, and replacing them with tribunals whose members they have had a hand in selecting. But they are also reported to have been drawn to arbitration for reasons of the privacy and confidentiality of the proceedings, which the parties may prefer over the wide-open process in U.S. and other courts, where case filings may be available electronically and hearings are presumptively can be open to the public. Although court proceedings in some other countries do not partake of this kind of openness, judgments in civil cases are generally available to the public and, most importantly, the parties are not legally restricted as to what they may communicate to others concerning the proceedings (in most circumstances).
