Are arbitrations always confidential?

November 21, 2017

Arbitrations are often favoured by companies as an alternative to the Courts in order to resolve disputes. The main reason for this preference is that arbitrations subject to English law are confidential in nature. This protects the commercial parties from any negative publicity and safeguards confidential information such as operational processes as well as the reason for the dispute itself (which could be commercially harmful). This is why many commercial contracts have arbitration clauses - this ensures that any dispute is resolved by arbitration in the first instance.

However, the established English law principle that arbitrations are confidential was recently exposed by the High Court in the case of Symbion Power LLC v Venco Imitiaz Construction Co [2017] EWCA 348 (TCC).

The normal established principle is that no details of the arbitration are permitted to be disclosed to third parties, which includes documents produced for or disclosed during the arbitration. This ring-fencing measure secures the confidentiality of such oftentimes sensitive information. These principles are also reflected in the rules governing the main arbitration institutions, such as The International Chamber of Commerce (ICC) and The London Court of International Arbitration (LCIA).

In Symbion, one party challenged the ICC award (judgment) against them. The ICC tribunal that determined the award was based in London and therefore subject to English law (and England was the nominated jurisdiction selected in the relevant contract). Symbion, having lost, challenged the award in the English High Court alleging serious irregularity. The High Court was the appropriate forum of appeal due to the English law jurisdiction clause in the contract.

Due to the custom of High Court decisions being published, Symbion requested that any such published judgment be anonymised, that is, not contain the names of the parties in order to preserve the confidentiality afforded by the ICC arbitration. In response, the Court laid out the factors it would consider which included the concern that there is a public interest in publishing judgments concerning arbitrations to ensure that standards remain high in the conduct of arbitrations, especially in light of their confidential status. The Court went on that this factor has to be weighed up against the parties' understandable interest in confidentiality.

However, the Court chose to reject Symbion's submission that the judgment be anonymised as the ICC award had already been made public in the US and commented upon publically by the parties stateside. Therefore the Court concluded that this behaviour contradicted Symbion's concern regarding confidentiality.

This case is a stark reminder that the confidentiality of arbitrations is not set in stone. Concerns regarding confidentiality should be raised at the outset of any arbitration appeal to the English Courts and necessary orders attained to ensure such confidence. In addition, conduct of the parties, especially regarding public pronouncements, should be carefully monitored if arbitration is underway or anticipated.

 

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