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Confidentiality in Arbitration: A Four-Jurisdiction Comparison
Arbitration is a popular method of dispute resolution for many parties who seek to avoid the costs, delays and publicity of litigation. One of the main advantages of arbitration is the confidentiality that is usually afforded to the arbitral proceedings and the resulting award. However, the extent and scope of confidentiality obligations vary across different jurisdictions and arbitral institutions. In this article, we will compare and contrast the evolution of arbitral confidentiality in four major arbitration hubs: London, Singapore, India and Hong Kong. We will also examine some of the key precedents that have shaped the law and practice on this issue in each jurisdiction.
London
London is one of the most established and preferred seats of arbitration in the world. The legal framework for arbitration in England and Wales is the Arbitration Act 1996 (the "Act"), which does not contain any express provision on confidentiality. However, the English courts have recognized an implied duty of confidentiality arising from the nature of arbitration as a private process. This duty applies to both parties and arbitrators and covers all documents and information relating to the arbitration, including the award. The duty is not absolute, however, and there are several recognized exceptions, such as where disclosure is required by law, consent by the parties, necessary to protect or enforce a legal right, or in the interests of justice or public policy. Additionally, parties can agree on specific confidentiality terms in their arbitration agreement or adopt institutional rules that provide for confidentiality, such as the London Court of International Arbitration (LCIA) Rules 2020,[1] which impose a general obligation of confidentiality on parties, arbitrators, experts, witnesses and the LCIA itself, subject to similar exceptions as those recognized by the courts.
One of the leading cases on arbitral confidentiality in England is Hassneh Insurance Co v Mew [1993] 2 Lloyd's Rep 243, where the court held that there was an implied obligation on the parties not to disclose or use any documents or information obtained in the course of arbitration for any purpose other than the arbitration itself. The court also held that this obligation extended to any court proceedings arising out of or related to the arbitration unless disclosure was necessary for a fair disposal of those proceedings. Another important case is Ali Shipping Corp v Shipyard Trogir [1999] 1 WLR 314,[2] where the court confirmed that there was an implied obligation on both parties and arbitrators not to disclose or use any documents or information relating to the arbitration or the award without consent or leave of court. The court also recognized that this obligation was subject to certain exceptions, such as where disclosure was required by law or court order, necessary to protect or enforce a legal right, or in the public interest.
Singapore
Singapore is another leading arbitration centre in Asia and globally. The legal framework for arbitration in Singapore is the International Arbitration Act 1994 (the "IAA"), which applies to international arbitrations seated in Singapore. The IAA was amended in 2021[3] to include an express statutory duty of confidentiality for parties, arbitrators, and other participants in arbitral proceedings.[4] This duty covers all information relating to the proceedings or the award, unless it falls within one of the specified exceptions, such as where disclosure is required by law or court order, consent by the parties, necessary to protect or enforce a legal right, or in the public interest. The IAA also empowers the court to make orders to protect confidential information in any court proceedings arising from or in connection with an arbitration. Furthermore, parties can agree on additional confidentiality terms in their arbitration agreement or adopt institutional rules that provide for confidentiality, such as the Singapore International Arbitration Centre (SIAC) Rules 2021, which impose a similar obligation of confidentiality on parties, arbitrators, experts, witnesses and the SIAC itself.
A recent case that illustrates the approach of Singapore courts on arbitral confidentiality is India v Vedanta Resources [2021] SGCA 50,[5] where India sought privacy orders concerning its appeal against an enforcement order of an investment arbitration award. The court declined to grant such orders, as it found that there was no longer any confidentiality to be protected, given that various information about the arbitration and the award had been disclosed or published by third parties, media outlets, and India's counsel. The court affirmed the confidentiality of arbitration and related court proceedings under Singapore law (as provided under the IAA), but explained that such protection only applied
insofar as the proceedings remained confidential.
India
India is an emerging arbitration destination with a large and growing market for commercial disputes. The legal framework for arbitration in India is the Arbitration and Conciliation Act 1996 (the "Indian Act"), which was amended in 2021 to introduce a new provision on confidentiality. Section 42A of the Indian Act provides that all arbitral proceedings (except for conciliation proceedings) shall be confidential, except for disclosure required by law or court order. However, this provision does not specify who owes this duty of confidentiality and to whom it is owed. Moreover, it does not address whether this duty extends to any court proceedings arising from or related to an arbitration.
Therefore, there is still some uncertainty and scope for interpretation regarding the scope and extent of confidentiality obligations under Indian law. Parties can also agree on specific confidentiality terms in their arbitration agreement or adopt institutional rules that provide for confidentiality, such as the Indian Council of Arbitration (ICA) Rules 2021,[6]
which imposes a general obligation of confidentiality on parties, arbitrators, and the ICA itself.
One of the cases that shed some light on arbitral confidentiality in India is Anil Ambani v CBI [2014] SCC OnLine Del 4959, where the court held that there was an implied obligation on the parties not to disclose any information or documents relating to the arbitration without consent or leave of court. The court also held that this obligation was subject to certain exceptions, such as where disclosure was required by law or court order, necessary to protect or enforce a legal right, or in public interest. Another case that dealt with this issue is Emkay Global Financial Services v Girdhar Sondhi [2018] SCC OnLine SC 1901, where the Supreme Court of India held that Section 42A of the Indian Act did not apply retrospectively to arbitrations commenced before its enactment. The court also held that Section 42A did not override the contractual terms agreed by the parties on confidentiality and that parties could waive their right to confidentiality by express or implied conduct.
Hong Kong
Hong Kong is another prominent arbitration hub in Asia with a strong reputation for judicial support and independence. The legal framework for arbitration in Hong Kong is
the Arbitration Ordinance 2011 (the "Ordinance"),
which applies to both domestic and international arbitrations seated in Hong Kong.
The Ordinance contains an express statutory duty of confidentiality for parties and arbitrators in Section 18, which covers all information relating to arbitral proceedings or awards made in those proceedings. This duty is subject to similar exceptions as those found in other jurisdictions, such as where disclosure is required by law or court order, consented by the parties, necessary to protect or enforce a legal right, or authorized by leave of court. The Ordinance also empowers the court to make orders to protect confidential information in any court proceedings arising from or related to an arbitration under Section 45. Additionally,
parties can agree on further confidentiality terms in their arbitration agreement or adopt institutional rules that provide for confidentiality, such as the Hong Kong International Arbitration Centre (HKIAC) Rules 2021, which impose a comprehensive obligation of confidentiality on parties, arbitrators, experts, witnesses and the HKIAC itself.
A landmark case on arbitral confidentiality in Hong Kong is A v R [2009] HKCFI 342, where the court held an implied obligation on the parties not to disclose any information or documents relating to the arbitration without consent or leave of court. The court also held that this obligation was subject to certain exceptions, such as where disclosure was required by law or court order, necessary to protect or enforce a legal right, or in public interest. The court also recognised that there was an implied obligation on the arbitrator not to disclose any information or documents relating to the arbitration without consent unless disclosure was required by law or court order. The court further recognised that there was an implied obligation on third parties who received confidential information or documents from the arbitration not to disclose them further without consent unless disclosure was required by law or court order.
Conclusion
By comparing and contrasting the evolution of arbitral confidentiality in four major arbitration hubs, we have highlighted some of the similarities and differences that parties should consider when choosing their seat of arbitration and drafting their arbitration agreement. We have also examined some of the key precedents that have shaped the law and practice on this issue in each jurisdiction. Parties should also consider the applicable institutional rules and the potential impact of disclosure on their business interests and reputation. By doing so, parties can maximise the benefits of confidentiality and minimise the risks of unwanted exposure in arbitration.
References
[1] LCIA Arbitration Rules 2020
[2] Ali Shipping Corporation v Shipyard Trogir - Case Law - VLEX 804295693
[3] International Arbitration Act 1994 - Singapore Statutes Online (agc.gov.sg)
[4] International Arbitration (Amendment) Act, 2021, Sections 12, 22, and 23.
[5] [2021] SGCA 50 (litigation.sg)
[6] ICA Rules of Domestic Commercial Arbitration_2022.cdr (ICA India.co.in)
- The different sources and levels of confidentiality obligations in arbitration are contractual, statutory, institutional and implied.
- The common exceptions and limitations to confidentiality obligations are consent, public interest, enforcement and disclosure in related proceedings.
- The recent developments and trends in arbitral confidentiality in each jurisdiction, such as legislative reforms, judicial decisions and institutional rules.
