Confidentiality in international commercial arbitration. Aug 17, 2017 a critical assessment of arbitration as an alternative dispute resolution mechanism alternative dispute resolution mechanisms like mediation and arbitration date back in the 18 th and 19 th centuries during the advent of local and international trade. The confidentiality of international arbitration proceedings and awards is one area with a crying need for corrective hands today. But following a 1995 decision of the high court in australia. Two opposing views have been taken among judges and scholars regarding the legislative. Transparency in international commercial arbitration. Confidentiality in international commercial arbitration springerlink. The value of confidentiality in international arbitration law commercial essay. Confidentiality in international commercial arbitration springer verlag berlin heidelberg, 2010 chapter 2. The value of confidentiality in international arbitration law. Confidentiality in arbitration has for many years been taken for granted by the parties involved.
Even though there has been an assumption that there is a duty of confidentiality, it normally does not rest on a statutory basis. She is also a barrister and solicitor in greece athens bar association and a member of various associations and committees in the field of transport law, maritime law, international commercial law, international procedural and arbitration law. The conflicting needs of confidentiality and transparency in arbitration have compelled badly the courts and law makers to come with the innovations to harmonize the conflict. Transparency in international commercial arbitration catherine a. Presumption of confidentiality in international commercial. A comparative analysis of the position under english, us. The finding of this research shows that the legal basis, scopes, application, and. Confidentiality in arbitration hausarbeiten publizieren.
The present status of confidentiality in international. Recently, however, these proposals have taken on a. In the 1990s, one of the leading treatises on international arbitration noted that one of the fundamental principles and one of the major advantages of international arbitration is that it is confidential. At its broadest, arbitration or alternative dispute resolution encompasses any method of resolving a dispute other than by a binding dispositive decision imposed by a judge or arbitrator, generally involves the 1 noussia k. See also ilo report on confidentiality in international commercial arbitration, october 2010, 510. K 2400 n68 2010 choice of forum and laws in international commercial arbitration peter nygh. It also offers a separate tool that can be used to search or browse for court decisions concerning the. A comparative analysis of the position under english, us, german and french law noussia, kyriaki on. Mar 16, 2018 interestingly, there is no attempt to say that arbitrability of such matters would not be limited in international commercial arbitration cases, where confidentiality is not presumed as a matter of russian law. Kluwer arbitration kluwer arbitration provides selective coverage of arbitral awards and court decisions on matters of law pertaining to international commercial arbitration, including arbitrability, validity, annulment, and enforcement. Confidentiality in international commercial arbitration kyriaki noussia confidentiality in international commercial a. Wolaver, the historical background of commercial arbitration, 83 u.
Confidentiality in arbitration is determined by the applicable national law, the arbitration rules selected by the parties, and contractual provisions. A comparative analysis of confidentiality in german and english arbitration law. Jones day professorship in commercial law lecture smu, singapore 12 march 2015 the subjectmatter of my lecture has in recent years become of increasing importance. Confidentiality in international arbitration knowledge. Expectations of confidentiality in international arbitration. Kyriakinoussia 2010, arbitration and international commercial law consultant, in confidentiality in international commercial arbitration, highlights that the german zpo has adopted the approach of endorsing the notion of privacy as a corollary of party autonomy in order to ensure business efficacy and leniency for the governing contracts.
The iba guidelines for drafting international arbitration clauses3. In an age when transparency is a maxim, important issues w. Application and limitations of the principle lecturer bazil oglinda1 abstract over the years, arbitration has grown to be the preferred means of dispute resolution by commercial entities. The rules of the australian centre for international commercial arbitration acica, for example, include a confidentiality provision under article 18 in the following terms.
Other arguments in favour of more transparency in commercial arbitration are well known. Confidentiality in arbitration a comparative analysis of confidentiality in german and english arbitration law chris berger essay law civil private trade anti trust law business law publish your bachelors or masters thesis, dissertation, term paper or essay. The present status of confidentiality in international commercial arbitration in the various jurisdictions. A comparative analysis of the position under english, us, german and french law, springer, heidelberg, 2010. Nov 09, 2017 confidentiality in international arbitration beyond the gulf region.
Noussia k 2009 confidentiality in arbitration revisited. Kyriakinoussia 2010,arbitration and international commercial law consultant, in confidentiality in international commercial arbitration, highlights that the german zpo has adopted the approach of endorsing the notion of privacy as a corollary of party autonomy in order to ensure business efficacy and leniency for the governing contracts. This article begins by detailing the origins of arbitration and the development of the reasoned award. Mar 10, 2010 arbitration is an essential component in business. See k noussia, confidentiality in international commercial arbitration, the history of arbitration springer 2010 11. In an age when transparency is a maxim, important issues which the laws governing arbitration currently fail to address are the extent to which disclosure of information can be constrained by private agreement along with the extent to which the duty to preserve confidentiality can be stretched. Introduction commentators and scholars have long been making the case for expanding transparency in the international commercial arbitration system. Within the last decade confidentiality became an important topic in international commercial arbitration.
A comparative analysis of the position under english, us, german and french law springer at 1114. Ileana smeureanu the international law institute is pleased to announce the new publication of confidentiality in international commercial arbitration the publication is authored by our ili colleague and associate, dr. Before turning to the interesting and recent english commercial court decision of teekay tankers ltd v stx 2017 ewhc 253, we revisit the general position and legal basis for confidentiality obligations in arbitration. Her key research areas are international commercial law, arbitration, and private international law. International law association international commercial. Reform of the arbitration act 1996 and confidentiality. Broadly speaking, confidentiality is also recognized in arbitral proceedings in most of the prevailing international arbitration jurisdictions, although there are some differences in the contours of the confidentiality provided. Confidentiality is frequently promoted as a key advantage of international arbitration. Confidentiality in international commercial arbitration a. The confidential nature of the international commercial arbitration arbitration being.
See ajit kaushal, the issue of confidentiality in international commercial arbitration, pg. The question has, until recently, almost never been debated. A comparative analysis of the position under english, us, german and french law kyriaki noussia auth. A comparative analysis of the position under english, us, german and french law. This study takes the professional practice of international commercial arbitration, a mechanism to resolve business disputes outside the courts and traditionally considered as private, to explore. Posted on april 19th, 2018 by ben hornan and marie davoise reform of the arbitration act 1996 and confidentiality. In december 2017, the law commission launched its thirteenth programme of law reform. Jul 18, 2017 the legal basis of confidentiality in arbitration. International arbitration has been a subject of interest for the ila since as early as 1895. Home legal developments and cases reform of the arbitration act 1996 and confidentiality. Confidentiality has been taken for granted, though it has become one of the most undetermined matters in international arbitration. The last chapter is devoted to providing examples of how the duty of confidentiality may be treated in the future in light of some recent efforts and to propose a uniform default. The purpose of this thesis was to see whether there exists an international principle of confidentiality in arbitration. The international commercial arbitration committee.
The current international commercial arbitration committee is composed of 53 members from over 30 countries, including professors, judges, arbitrators, private practitioners and staff of international. Confidentialitya fundamental principle in international. University of hongkong faculty of law, research paper no. Designating a particular set of arbitration rules containing appropriate confidentiality provisions is one means of doing this. At the international law associations seventyfourth biennial conference in the hague in 2010, the ila international commercial arbitration committee reported on confidentiality in international commercial arbitration and the conference adopted a number of recommendations on these topics. This article provides a brief analysis of the current degree of confidentiality in international commercial arbitration, along with a few suggestions on how to tackle the challenge of protecting confidentiality. The american arbitration association, international arbitration rules, art. What is certain is, that confidentiality should not be taken for granted. Confidentiality in international commercial arbitration epdf.
Confidentiality in international commercial arbitration law international essay. It preserves the information exchanged in the arbitration proceedings and prevents the parties from disclosing information relating to the arbitration. What is certain is, that confidentiality should not be. Many arbitration institutions regulate confidentiality, but mainly as a duty of the arbitrators and the staff of each center. One of the principal reasons companies that are engaged in international commerce agree to resolve their disputes by international commercial arbitration proceedings, rather than domestic or foreign court proceedings, is the perception of confidentiality and privacy that such proceedings afford. Pdf confidentiality in international commercial arbitration ila. Expectations of confidentiality in international arbitration by robert sentner and matthew mclaughlin one of the principal reasons companies that are engaged in international commerce agree to resolve their disputes by international commercial arbitration proceedings, rather than domestic or foreign. Confidentiality in arbitration publish your masters. The issue of confidentiality in international commercial. Confidentiality in international commercial arbitration 245 the american arbitration association aaa international arbitration rules 1997 provide that the hearings shall be private article 20.
Read confidentiality in international commercial arbitration a comparative analysis of the position under english, us, german and french law by kyriaki noussia available from rakuten kobo. Noussia, confidentiality in international commercial arbitration. A comparative analysis of the position under english, us, german and french law kyriaki noussia on. It goes on to note lord binghams evaluation of how a reasoned award can serve interested parties most effectively, evaluating the four and half reasons lord bingham advanced in support of a fully reasoned award. Confidentiality is often cited as one of the main benefits of arbitration as opposed to litigation. Many parties select arbitration as a dispute resolution process precisely to secure privacy and confidentiality.
International commercial arbitration ica is an alternative dispute resolution used by. Arbitration and transparency relations between a private. The value of confidentiality in international arbitration law commercial essay introduction. Confidentiality has been regarded as a selfevident attribute, one of the reasons why parties choose to arbitrate. Noussia, confidentiality in commercial arbitration 1112 th ed. Confidentiality in arbitration publish your masters thesis. The answer is that there is a definite lack of consensus in the international arbitration community. The value of confidentiality in international arbitration. Confident in international arbitrations confidentiality. Ica international commercial arbitration il international law ir international relations model law uncitral model law on international commercial arbitration 1985, with amendments as adopted in 2006 ny convention convention on the recognition and enforcement of foreign arbitral awards 1958. The challenges that arise in respect of confidentiality in international commercial arbitration between public and private parties have only recently begun to be articulated, despite the fact that this sort of. Possibility of an autonomous international commercial arbitration degree.
Domestic commercial arbitration can be traced back to the merchants of the latter middle ages. A comparative analysis of the position under english, us, german and french law october 1, 2010. The extent of confidentiality afforded to the parties varies from jurisdiction to jurisdiction. There was a time when confidentiality in arbitration was assumed both to exist as a fundamental feature of. This study takes the professional practice of international commercial arbitration, a mechanism to resolve business disputes outside the courts and traditionally considered as private, to.
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