Exceptions To Confidentiality In Arbitration

Wilson v Emmott (March 2008) concerned an

appeal against an order for disclosure in court proceedings in

NSW and BVI of documents generated in an English arbitration

involving the same parties.

The Court of Appeal refused the appeal concluding that,

while the conduct of arbitrations is private, that did not mean

that arbitrations remain private for all purposes. Despite

there being allegations of a commercially sensitive nature,

disclosure was required in the interests of justice (which were

not limited to the interests of justice in England) that

foreign courts would not be potentially misled, particularly

where the cases being pursued in the foreign courts raised the

same or similar allegations.

Summarising the current authorities in the area, the Court

identified four cases in which disclosure would be permissible:

(i) where there is consent, implied or express; (ii) with leave

or by order of the court; (iii) where it is reasonably

necessary for the protection of the legitimate interests of an

arbitrating party; and (iv) where the interests of justice

and/or the public interest requires it.

In this context, there are three broad points of principle.

Firstly, the existence of an arbitration

dispute has never, in practice, been confidential. Secondly,

save for the exceptions in Emmott, the

parties' cases in an arbitration are

subject to confidentiality unless a party applies to the court

(at which point there is a risk that confidentiality will be

compromised with publication of the judgment). Thirdly, save in

rare cases where allegations of perjury arise, the

evidence in an arbitration will almost always

be protected by confidentiality.

The primary motivation in choosing to arbitrate should not

be the desire to maintain confidentiality. In fact,

particularly with shipping and commodity arbitrations, it is

often the desire for a specific expertise or for informality of

procedure which informs a party's decision to

arbitrate.

While concerns may be raised for England's reputation as

an arbitration seat if it is thought...