FACETS OF CONFIDENTIALITY IN INTERNATIONAL COMMERCIAL ARBITRATION: A COMPARATIVE ANALYSIS
Dileep Krishnan N, Legal Officer at Federal Bank Ltd.
& Dharmya M.S, Lawyer at CK Aravindaksha Menon Associate.
In recent times, we have witnessed an exponential increase in the relevance and scope of international commercial arbitration as a mode of dispute resolution. Parties to most commercial disputes tend to favour arbitration for adjudication of disputes due to its cost and time efficiency. Furthermore, the principle of confidentiality plays a pivotal role in the increased acceptance of arbitration. Arbitration is mostly private in nature which excludes third parties from being privy to the process. Hence, parties to the arbitration generally presume a certain level of confidentiality to the proceedings and the documents produced therewith.
However, do these presumptions of confidentiality have legal backing? This article will analyze the approach of the courts and legislature of different national jurisdictions and the changing trends in them. Whether the principle is implied in all arbitral proceedings or does they need express provisions in the arbitral agreements with regard to that or are they statutorily protected are some points which this article intends to ponder upon. The article will also briefly look into the rules of international institutions like UNICITRAL, International Chamber of Commerce, and International Bar Association, etc. with regard to the obligation of confidentiality in international commercial arbitration.