Arbitration - UMS Holding v Great Station (High Court)

Case Alert - [2017] EWHC 2473 (Comm)

Court rules on confidentiality of an arbitral award

The defendants' section 68 challenge to an arbitration award was (pursuant to the court's order) heard in public. The award was referred to during the hearing and in the judgment. The challenge failed and the claimants argued that the award was a public document and so they are free to make such use of it as they wish. The defendants countered that the claimants were bound by Article 30 of the LCIA Rules, which requires the parties "to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save to the extent that disclosure may be required ..by legal duty....or to enforce or challenge an award in legal proceedings...."

Teare J had no doubt that the award had entered the public domain. On a strict reading of Article 30, (because of the position of the commas in the sentence), the exemption for documents "not otherwise in the public domain" did not apply to the award, but the judge could not see why that should have been intended, and so he concluded that since the award is in the public domain, the express contractual obligation imposed by Article 30 to keep it confidential no longer existed.

However, he went on to say that "I am however troubled by the suggested conclusion that the Claimants should therefore be able to do with the Award as they wish; especially in circumstances where the court does not know what the Claimants intend to do with the Award. The Award was a confidential document and has only entered the public domain because the court considered, having regard to the principle of open justice, that the section 68 challenge should be heard in public".

Accordingly, the judge held that the claimants could not use the award as they wished. Instead, if the claimants have a particular use in mind (other than those expressly permitted in Article 30) they should...