Confidentiality in Arbitration & The Public Interest Exception

The question whether arbitral proceedings are, or ought to be confidential, has been the source of much academic debate and was recently reviewed by the ICC Commission on Arbitration.[2] In much of Europe the prevailing view is that arbitral proceedings are confidential. However, even if they are confidential, that confidentiality cannot be absolute. As noted by Paulsson and Rawding, this would result in a paradox.[3] If the parties to an arbitration ever sat down and thought about the issue of confidentiality, they would inevitably conclude that neither of them would want a rule that arbitrations were confidential without exception. The parties may need to show the award to insurers or to a parent company. The parties may also want to enforce the award if it is not honoured and the only way to do this is in the courts, which will often be a public forum. In a number of countries which adopt the position that arbitrations are confidential there will be a list of exceptions to the confidentiality obligation. Some countries consider that where the arbitration raises issues which have a public interest, then this should be an exception to the confidentiality obligation. This 'public interest exception' has been considered recently in three international arbitrations. On each occasion the argument that there ought to be a public interest exception was rejected. This article does not seek to re-visit the question of whether there is or ought to be a duty of confidentiality in arbitration.[4] Its focus is on one question; namely, should there be an exception to the duty of confidentiality where the arbitration raises issues of public interest?