CONFIDENTIALITY IN ARBITRAL PROCEEDINGS
Although arbitration is preferred over litigation mostly because of its private nature, there seems to be no consensus on whether it should be confidential[1] or whether there is an enforcement procedure in case of breach of confidentiality. “It is true that arbitration proceedings generally are private and the awards are not published like court judgments. It is not correct, however, to assume that information revealed in arbitration is automatically confidential.”[2]
It is also safe to say that many issues relating to confidentiality differs from arbitration center to center. Common Law and Civil Law jurisdictions have a tendency to disagree upon the topic of whether confidentiality applies to arbitration implicitly. Few jurisdictions statutorily provide for confidentiality in arbitration.[3] Arbitration in Turkey is rather more focused on the parties’ preferences. The Istanbul Arbitration Center (ISTAC) in particular pays close attention to this issue.
On the topic of different approaches to the confidentiality of the arbitration, pursuant to most arbitration rules, privacy provisions regulate who may be present at an arbitration hearing and, absent specific confidentiality agreements executed with all attendees, those privacy provisions do not expressly provide any duty of confidentiality[4]. As a result, it appears that the obligation of confidentiality of the arbitral process is based more on an international consensus, rather than being an express obligation.
It should also be noted that arbitration should not be considered entirely non-discreet, since one of the main reasons for resorting to arbitration as an alternative dispute resolution is this discretion. This is because, “duties of confidentiality in arbitration can arise contractually: by specific party agreement or by the incorporation into an arbitration agreement of institutional arbitration rules that contain confidentiality obligations.”[5] Also, some arbitration centers have cleared the issue of confidentiality.
In this regard, two very popular institutional rules utilized by businesses are those prepared by the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA). These institutional rules specify two distinct approaches to privacy and participants’ duties of confidentiality that are clarified in arbitration rules.[6]
It is also important to mention the UNCITRAL Model Law, which intends to provide a framework to assist countries in formulating codes on the arbitral process. But given that the Model Law contains framework rules, it does not provide specific provisions regarding confidentiality of arbitrations. Yet, as it is accepted by many, the fact that UNCITRAL does not provide specific confidentiality rules actually can be interpreted as an act to provide a uniform model law that prefers to leave the issue at hand to the autonomy of the parties.
In conclusion, the privacy or confidentiality of the arbitral process might differ from center to center and must be approached from the legal vantage point of an experienced attorney who is specialized in arbitration. In disputes involving Turkey, hiring competent Turkish lawyers with international arbitration expertise is also critical for the success of the underlying case. For more information and legal assistance on this issue, please get in touch with our Turkish, Italian, and English speaking lawyers, who are deeply experienced in international arbitration, business and investment matters.
[1] Amy J. Schmitz , “Untangling the Privacy Paradox in Arbitration” ,54 U. Kan. L. Rev. 1211 (2005-2006), p.1.
[2] Ibid.
[3] Micheal Fesler, “The Extent of Confidentiality in International Commercial Arbitration”, 78 Arbitration, Issue 1 (2012), Chartered Institute of Arbitrators, pp:48-58, p.49.
[4] UNCITRAL Arbitration Rules Art. 28 (3) “in camera hearings”, available at http://www.uncitral.org/pdf/english /texts/arbitration/arb-rules-revised/pre-arb-rules-revised.pdf [Accessed October 21, 2020]; and ICC Rules of Arbitration, available at http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/rules_arb_english.pdf [Accessed October 21, 2020].
[5] Micheal Fesler, “The Extent of Confidentiality in International Commercial Arbitration”, (2012) 78 Arbitration, 78 Issue 1 (2012), Chartered Institute of Arbitrators, pp:48-58, p.50.
[6] LCIA Rules of Arbitration, available at http://www.lcia.org/Dispute_Resolution_Services/LCIA_Arbitration.aspx [Accessed October 21, 2020].