Behind Closed Doors: Confidentiality And Arbitration

• Published date: 19 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: McCarthy Tétrault LLP
• Author: The International Arbitration Blog and Alison Bond

Confidentiality and privacy have long been regarded as the cornerstones of the arbitration process. Behind closed doors, parties can air their grievances, admit into evidence thousands of documents and have their witnesses cross-examined - all without scrutiny from the press and the public more generally. Critically, subject to their public disclosure obligations, parties can agree to keep an arbitral award confidential.

But these cornerstones of arbitration, which are of benefit to arbitral parties, have been the subject of debate in recent years - particularly by practitioners who are strong supporters of the open court principle that is a key feature of the English and Canadian legal systems. Unsurprisingly, the tension between the open court principle and the confidentiality of arbitral proceedings is an issue that both Canadian and English courts have grappled with, as discussed in our blog post (see here) concerning the decision of the England and Wales Court of Appeal in CDE v NOP [2021] EWCA Civ 1908.

International arbitral institutions, such as the International Chamber of Commerce (the "ICC"), have recognized this tension between confidentiality and the open court principle. In the ICC's "Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration" dated January 1, 2021 (the "ICC Note"), the ICC states:

"Increasing the information available to parties, the business community at large and academia is key to ensuring that arbitration remains a trusted tool to facilitate trade. Transparency provides greater confidence in the arbitration process, and helps protect arbitration against inaccurate or ill-informed criticism. The Court therefore endeavours to make the arbitration process more transparent without compromising the parties' expectations, if any, of confidentiality."¹

With that policy in mind, the ICC has taken steps to make international arbitrations more transparent by publishing the following information on its website with respect to arbitrations conducted under the ICC arbitral rules²:

(a) For arbitrations registered as of January 1, 2016, details regarding the appointed arbitrators, including their names, nationality, role within an arbitral tribunal and method of appointment. Whether the arbitration is open or closed is also published;

(b) For arbitrations registered as of January 1, 2020, the industry sector and law firms acting for the parties will be published in addition to the...