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“Let us never negotiate out of fear, but let us never fear to negotiate”

Privacy in the arbitration proceedings provides a belief of the reliability to the parties but confidentiality goes above and beyond the guarantee that the parties don’t reveal the information that identifies with the content of proceedings. The statistic proved that confidentiality was the most crucial benefit of the arbitration. Arbitration is an adjudicatory process that involved the third party who is neutral and helps the parties to settle their dispute. The decision of the arbitrator is binding and final to the parties. It is similar to the public trial as it is of the same adjudicatory. The major difference between both the process is arbitration is less formal and it is considered to be a “private” process. The proceeding in this process is not conducted in public which makes it a private process. The privacy in terms of arbitration proceedings refers to hold back of the third parties to have an approach or to observe the events. But on the other hand, the confidentiality of the proceedings in arbitration refers to the refrainment of the disputing parties, arbitrators, witnesses, or any other party who have attended the proceedings during the course of the arbitration. Also, the clause of confidentiality under arbitration can be classified under two heads. The first is the disclosure of the information to the third party among the general public and second is the disclosure of the information to the institutions in the circumstances of the legal proceedings. The law has sanctioned the parties to manage the disclosure of information to the third party amongst the general public by entering into a contractual agreement within themselves, arbitrator, witness, or any other person who was present during the arbitration proceedings. Nowadays courts have started receiving the challenges with regard to confidentiality in the arbitration proceedings and with the increase in voluntary and mandatory arbitration it is likely to rise in the future. “In the Arbitration and Conciliation Act 1996, the provision which deals with the confidentiality clause that is Section 75[1]”. Also, “Section 70 of the Arbitration and Conciliation Act 1996, states that party gives information to the conciliation subject to confidentiality the conciliation shall not disclose it to another party”. The confidentiality in the arbitration process also holds forth to the arbitral award too, it is only disclosed when it is necessary for the legal proceedings. There are two types of arbitration in India ad hoc or institutional arbitration. It is at the option of the parties to choose any one ad hoc type of arbitration provides autonomy to the parties to insert the confidentiality clause to their proceedings whereas the institutional type of arbitrations follows its own set of rules and regulations and discipline where the maintainability of confidentiality is at ease. There are various contractual issues which occur with regards to the confidentiality for the proceedings. There is a lot more to be amended in the Arbitration and Conciliation Act 1996 in which the confidentiality clause has been considered in an exhaustive form. It is always suggested that the parties should explicitly set foot in a confidentiality agreement or agree to the confidential clause in order to have it in an important consideration.


[1]  Section 75- Confidentiality—Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.



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