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Shrouded Justice? The Tightrope of Arbitral Confidentiality in India
Introduction
The delicate balance between public justice and confidentiality in Indian arbitration demands a nuanced approach to protect the interests of all involved parties. Arbitration's attractiveness as a dispute resolution method lies in its inherent privacy, allowing parties to maintain confidentiality. However, challenges arise when implementing confidentiality in arbitration disputes before courts, as it may sometimes conflict with the broader principle of open justice. This article delves into the progression of confidentiality in Indian arbitration and the associated challenges when disputes reach the court.
Confidentiality in Indian Arbitration
Recent amendments to the Indian Arbitration and Conciliation Act, 1996, designed to incorporate confidentiality obligations, trace their roots to a committee led by Justice B N Srikrishna. Recognizing the significance of confidentiality in arbitration, this committee recommended that a new provision be inserted into the Arbitration Act addressing this issue.[1]
The 2019 Amendment explicitly mandates confidentiality for arbitrators, arbitral institutions, and the involved parties during arbitral proceedings. This addition aims to protect the interests of parties in commercially sensitive disputes and align with international standards.
Despite these advancements, implementing confidentiality in arbitration disputes before courts persists. The key question is whether court proceedings can be entirely separated from the originating arbitral process. While the Supreme Court of India has a clear stance, the lack of a well-defined statutory regime exacerbates the issue.
The principle of confidentiality in arbitration dictates that information, documents, evidence, and awards should not be made available in the public domain. Section 42A of the Arbitration Act[2] provides that “the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentially of all arbitral proceedings except award where its disclosure is necessary for implementation and enforcement of the award.” It attempts to establish confidentiality obligations but lacks a clear definition of what constitutes confidential information in arbitration proceedings. This clarity would guide parties, arbitrators, and arbitral institutions in effectively maintaining confidentiality.
Statutory Framework
The absence of a well-defined statutory regime in implementing confidentiality, before courts, intensifies the issue. A consistent statutory framework applicable to all arbitration participants including arbitrators, arbitral institutions, and parties, is needed. This would ensure uniform confidentiality obligations for everyone involved in the arbitration proceedings.
Principles of Public Justice
Judicial consensus dictates that “justice must not only be done, it must manifestly be seen to be done.”[3] Despite its uncertain origins, the principle of open justice is shared among varying common-law jurisdictions as it enforces judicial accountability and transparency.
Article India, the Constitution highlights that access to cases in litigation is a public interest. It is considered an important facet of the citizen’s right to know under the extension of Article 19(1)(a).
Court Proceedings and Confidentiality
The primary question in the conflict between open justice and confidentiality is whether court proceedings can be entirely separated from arbitral proceedings. In a recent case, the Supreme Court of India asserts a clear stance, indicating that if arbitration's confidentiality is breached, the principle of open justice prevails and the cloak of privacy provided for in the Act would not be applicable.[4] Parties opting for arbitration are considered aware of its private nature.
Parties' Consent:
Arbitration is a consensual dispute resolution mechanism, parties, through contracts, choose arbitration over litigation, agreeing to keep the subject matter and relevant evidence confidential.[5] However, executing a confidentiality agreement does not guarantee confidentiality, particularly when filing an award—a confidential document—with the court.[6]
Recommendations
To address challenges in implementing confidentiality in arbitration disputes before courts, the following recommendations can be considered:[7]
- Clarity on the scope of confidentiality: The Act should define confidential information in the context of arbitration proceedings to ensure understanding and effective adherence.
- Provision for a consistent statutory framework: A uniform legal framework applicable to all arbitration participants would ensure standardized confidentiality obligations.
- Provision for third-party funding: Regulate third-party funding in arbitration, considering its impact on confidentiality. Establish mechanisms to ensure parties, arbitral institutions, and arbitrators maintain confidentiality despite third-party funding.
- Awareness and training: To ensure effective implementation, promote awareness and training among legal professionals, arbitrators, and arbitral institutions regarding their confidentiality obligations.
Conclusion
In conclusion, while Section 42A marks progress in the evolution of confidentiality in Indian arbitration, challenges persist when disputes reach courts. By addressing these challenges and establishing a well-defined statutory regime, the Indian legal system can strike a balance between the principles of open justice and confidentiality in arbitration.
References
[1] Page 72, Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India, available at http://legalaffairs.gov.in/sites/default/files/ Report-HLC.pdf (accessed on 28 November 2019).
[2] Arbitration & Conciliation (Amendment) Act of 2019
[3] R v. Sussex Justices (1923) EWHC KB 1
[4] The Republic of India v. Deutsche Telekom AG [2023] SGCA(1) 4
[5] The Implications of Republic of India v Deutsche Telekom - The Tussle between Public Justice and Confidentiality - Lexology
[6] Common Misconceptions About Confidentiality in Arbitration Proceedings | Epstein Becker & Green - JDSupra
[7] Changing Landscape Of Confidentiality In International Arbitration - Arbitration & Dispute Resolution - India (mondaq.com)
- The article sheds light on Section 42A, which mandates confidentiality for arbitrators, arbitral institutions, and parties during arbitral proceedings.
- It explores whether court proceedings can be separated entirely from arbitral processes.
- The article highlights recommendations for a Cohesive Legal Framework on arbitral confidentiality.
