The Arbitrator’s New Clothes

Posted Oct 31, 2017

If privacy matters in arbitration, how do we preserve it?

In 1994 Australia’s High Court[ii] differed from the UK Courts in finding that at common law there was no implied obligation of confidentiality in an arbitration agreement. When Australia’s arbitration legislation was amended six years later Australia went from having no common law position on confidentiality to having what may be the strictest legislated “confidentiality code”[iii] in world.

In doing so part of the justification was that Australia had become “out of step with the rest of the world”.

But had it? And even if it had, did it really matter? And what is the nature of confidentiality in arbitration anyway?

This paper examines three broad issues.

The first surrounds the meaning of confidentiality. Do we really mean privacy? Does it matter? And what does it apply to? The hearing? The submissions? The award? The existence of the arbitration (including the identity of the arbitrator)?

Once we have some understanding about what we mean by confidentiality, why do we need to protect it? What are the policy reasons for and against confidentiality?

Finally, if we can identify what should be confidential, how do we best maintain that confidentiality? And what, if any, consequences should flow if there is a breach of confidentiality?

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