The role of confidentiality, and how it shapes arbitral proceedings will be reviewed through the examination of relevant, and available sources. Pertinent sources include, but are not limited to: national law, case law, international conventions and treaties, arbitral rules, previously rendered arbitral awards, treatises and monographs, as well as legal articles.
Because of the unique issues involved in international commercial arbitration, these rules may be more likely to address all of a party's necessary concerns. Another important source of reference is national judgements relating to the recognition, enforcement or challenge of partial or final arbitral awards as well as requests for interim measures or other administrative requests brought before national courts.
These are often available, though the arbitral award, from which the conflict arises, might not be. Due to the contractual nature of arbitration, an award will often need to be recognised by a national court to ensure its enforcement. A few comments need also be made about previously rendered arbitral awards as a source of law.
Arbitration is traditionally seen as a private form of justice. Most arbitral awards are not, at least not in their entirety, made available to the public. Additionally, an arbitral award, when published, is initially nothing more than a remark on that particular case. Whether it will guide future awards only time will show. With no apparent doctrine of precedent in arbitration it can be argued that the tribunal must decide each case without looking to previous decisions.
Still, many arbitrators have much experience in arbitration and draw from their own experiences as well as those of their colleagues. And there is already a widespread application of arbitral awards in arbitration, as seen in Owners, Master and Crew of the Tug "Hamtun" v Owners of the Ship "St.
John", 15 where the Admiralty Court looked to a selection of arbitration awards to decide the case. The use of arbitral awards as a source of law is not without reservations. A significant aspect is the limitations relating to the confidential nature of the process.
Many awards are not reasoned, and parties might not expect the same transparency as in a court of law. This makes the process vulnerable to inaccuracies or oversights that could be caught in a legislative system. There is also the question of how and when one can rely on awards previously rendered.
Arbitral awards must be seen in light of the fact that arbitral awards are intended to be final. This should encourage the judges to secure a balanced and thorough process. If this is indeed upheld, the weight of an arbitral award could and should be of some importance. Moreover, there are as of now, limited guidelines on the reasoning of awards. This must be taken into account when assessing the value of arbitral awards. There is little practicality in using a sparsely reasoned award as judicial leverage.
Another problem might be that the tribunal's sole concern is the dispute at hand. There might neither be any regard for consistency, nor the creation of sound legal principles. In this respect the problem of confidentiality also relates to which awards are made available to judges and scholars, as this can be random. A further objection is that arbitral awards can be rendered by as few as a sole judge.
This is a consequence of the contractual basis of arbitration that cannot be escaped; the parties can have as few or as many arbitrators as they find convenient. The solution of having one sole judge is however widely used in many legislative systems in the lower courts, though higher courts usually involve more judges. As the arbitral tribunal decision is final, it can be argued that the tribunal should consist of more than one judge.
This is the case in most institutionalised arbitral systems. The study of previously rendered awards is and must be an important source of information for anyone attempting to venture into the realm of arbitration. If a dispute is solved by arbitration, the case itself is seldom tried before a court, though other aspects regarding the arbitral process or the award more often is.
This corroborates the argument that arbitral awards should be taken into consideration, at least in fields of law where this method of dispute resolution is commonly used. In a final note it can be added that arbitration always takes place within the limits of at least one national law. It could therefore be argued that the arbitral tribunal should follow the lead of this jurisdiction in dealing with awards as a source of law. I will not explore this any further here, but note that the variety of laws possibly governing the arbitration is bound to complicate such an argument.
For the purposes of legal writing in the discipline of arbitration, and in this paper, arbitral awards will be used to illustrate past and current practice in the field. A duty of confidentiality can originate from several potential sources.
Easily accessible and predictable for the parties, is their choice to contract for confidentiality. A mutual agreement presents itself as the most manageable solution, as the parties are free to vary the extent of confidentiality according to their needs. Where no such contract exists between the parties, they might attempt to rely on national legislation to preserve confidentiality. As we will see, the parties must choose carefully to successfully utilize this option.
Courts of several countries have dealt with the controversial issue of how to tackle confidentiality in international commercial arbitration, as parties regularly seek to reveal and rely on information regarding an arbitration in subsequent judicial proceedings. The positions taken have varied greatly, but three different views stand out: confidentiality can still be imposed on the parties as an implied element of arbitration in the English legal system and confidentiality of the proceedings themselves is well established.
The content of this obligation may however depend on the context, and its scope is not clearly outlined. Representing the recent trend of a tendency towards more openness of the proceedings is the Australian approach. Though no implied duty of confidentiality is recognised, parties may define the scope of confidentiality according to their needs through an explicit agreement. In Australia, the duty of confidentiality has also been shaped by an increasing number of cases involving public interests, and these might cancel any confidentiality obligations.
In the US, there are no confidentiality-provisions that limit the parties' ability to publish information regarding the arbitration. Provided the arbitration is conducted under the guidance of an arbitral institution, or institutional rules, these rules might offer a certain degree of confidentiality, at least in relation to the award.
International conventions or specialised laws may define the scope of confidentiality, for instance in relation to trade secrets. For many parties choosing arbitration, the protection of trade secrets is their main concern. It should therefore only be natural to argue that where there is any duty of confidentiality, this duty would at least encompass the protection of trade secrets.
Such a view is supported by institutional rules and legislation. With varying approaches to confidentiality in different judicial systems, parties do well to contract for confidentiality. This might be done as a clause in the original contract, as a part of the agreement to arbitrate, or be made at the outset of the proceedings, a so-called submission agreement.
There is a general consensus regarding the fact that if the main contract 26 contains a confidentiality clause, this clause will also apply to the arbitral process. The significance of the parties consciously addressing the matter of confidentiality is expressed by Brown:.
Still, when entering into a mutual confidentiality agreement, the parties can lose the possibility to publicly use a favourable award to their advantage. This might have some unexpected effects, for instance, entail a duty of confidentiality being imposed on parties that have not chosen this, as in Ali Shipping. The advantages of confidentiality agreements are also limited by the fact that individual agreements are needed to bind third parties. The members of the arbitral tribunal as well as other professionals partaking in the arbitration are bound by ethical considerations or professional responsibility not to disclose such information.
There is however, no general duty binding witnesses or other persons that take part in the proceedings without being parties. This view might also be more satisfying to the parties' wishes as confidentiality may be an expected feature of arbitration. In the English arbitral tradition, the notion of confidentiality has developed along with the concept of privacy of the hearings, and the distinction between the two concepts was originally rather vague, as it was generally assumed that the private nature of arbitration also entailed a confidential process.
The issue of confidentiality has been brought before the English courts on numerous occasions, most notably in the case of Dolling Baker v Merret 40 where the plaintiff claimed money under a policy of reinsurance, first against the insurers, and secondly against the placing brokers.
In this case the question was whether to permit the entry of documents from a previous arbitration. The request was denied, and in the appeal the Court stated, obiter , that there existed an implied obligation of confidentiality in the arbitration agreement itself. Lord Justice Parker held that there must be:.
This view was reaffirmed in the case of Hassneh Insurance Co of Israel v Mew 42 another case involving insurance disputes. In this case, the plaintiffs reinsured the defendant under diverse reinsurance contracts from to When a dispute arose, arbitration was initiated, and an interim award rendered. The defendant wanted to disclose this award as they wished to proceed against the placing broker for negligence and breach of duty. In this case Mr Justice Colman stated:. In this the Court recognized that confidentiality exists, but maintain that it must be determined separately in each case.
When Trogir failed to deliver on one of the contracts, Ali claimed damages in arbitration. Seeing as the six companies were deliberately created to keep each contract separate, the arbitrator awarded damages against Trogir. In separate arbitral proceedings concerning three of the ships, Trogir later sought to introduce documents from the first arbitral proceedings. In this case it was argued that the implied confidentiality arose as a matter of law. The doctrine of implied confidentiality was further explored in other cases, the most recent being that of Michael Wilson and Partners Ltd v Emmott.
The case concerned arbitration between an unfaithful employee, Mr Emmott, and his employer relating to an arbitration clause in Mr Emmott's contract. Simultaneously, court proceedings against other respondents closely associated with Mr Emmott were instigated.
The court still held that:. The obligation is not limited to commercially confidential information in the traditional sense The content of the obligation may depend on the context in which it arises and on the nature of the information or documents at issue.
If one chooses to arbitrate in England it is presently presumed as a matter of law that arbitral proceedings are confidential. Although confidentiality has been seen as a prominent feature of arbitration, the current trend seems to question this view. One of the reasons for this is the significance of cases in which there has been a public interest, namely where the arbitral award would affect the general public.
Esso had started arbitral proceedings against two Australian public utility companies, and the dispute arose over whether the Minister, having a public duty to supervise public utilities, should be allowed to inspect documents produced in the arbitration. The Chief Justice, speaking for the majority, held in relation to the scope of confidentiality that:. The view in this case seems to be that confidentiality of the proceedings is not an implied attribute of arbitration, but the Court held that it may be contracted for by the parties.
It would therefore seem futile to impose a duty of confidentiality that cannot be enforced. The High Court nevertheless recognized that there could exist a duty of confidentiality, subject only to the legitimate interest of the public.
Accordingly, this case addressed the disclosure of information to a Minister who had a statutory information right, which overruled any confidentiality obligations. The decision reversed prior practice where a duty of confidentiality generally could be found as an implied duty.
But when it comes to confidentiality in arbitration neither the Federal Arbitration Act 54 nor the Uniform Arbitration Act 55 contains such privacy provisions as seen in other arbitration rules. The parties are not obliged by US law to secure the privacy of arbitral proceedings, unless required by agreement between the parties or other applicable rules of arbitration.
This can be illustrated by the case of Metalclad Corp. The question of confidentiality was brought before the Swedish courts in the Bulbank 61 case. This bank then entered into another agreement with a financing company, Al Trade Finance Inc. Arbitration was initiated under the terms of the Credit Facility Agreement, but Bulbank contested the proceedings on the grounds of separability of the arbitration clause, 62 arguing it had not been signed over to AIT with the initial agreement.
AIT was then awarded a favourable partial award that was later published without Bulbank's consent. Bulbank argued that this constituted a breach of confidentiality, and that it entitled Bulbank to avoid the entire arbitration agreement. This was taken into consideration by the Stockholm City Court, which ruled in favour of Bulbank, 63 stating that confidentiality is a fundamental rule in arbitral proceedings.
The Stockholm City Court then declared the arbitration agreement invalid and the arbitral award void. Only a year later this decision was overturned by the Svea Court of Appeal, 65 which rejected the principle that there exists an implied duty of confidentiality. Svea Court of Appeal established that a judgment in favour of Bulbank, would only be possible if the company had been bound by an obligation in the agreement to adhere to confidentiality.
It subsequently found that no such obligation existed. If the parties want confidentiality, they must contract for this expressly. These decisions have been widely discussed by practitioners and scholars. The Supreme Court's approach in this case differed substantially from the English line of cases, and Ali Shipping 70 in particular, in finding that a party to arbitration proceedings cannot be bound by a duty of confidentiality, unless the parties have concluded an agreement concerning this.
Consequently, Redfern and Hunter argue that there is no implied duty following the Swedish view on confidentiality, neither in relation to the proceedings nor the award. This is however, somewhat contrasted by Smeureanu's view that Sweden does not quite reject the idea of such a duty.
Defining the scope of any duty to protect confidentiality in the arbitral process is a complex task as national legislation varies greatly. In English law confidentiality of the proceedings themselves is well established. Representing the current trend of a tendency towards more openness of the proceedings is the Australian approach. Parties may contract for confidentiality, though no implied duty of confidentiality is recognised, and thus define the scope of confidentiality according to their needs.
For parties seeking confidentiality of the proceedings national legislation might provide some, but unreliable protection. The safest bet, when considering national legislation, is still the English approach. There is no uniform approach to regulating confidentiality in international arbitration rules, but parties may select a set of institutionalised rules with an explicit confidentiality provision, as many institutions offer optional provisions of this type.
Varying approaches depend on the dispute and type of arbitration. It might raise some concerns as arbitration is becoming increasingly known and more popular. Also, the model arbitration clauses offered by the major arbitration institutions do not contain any mention of confidentiality. Parties implementing such a model clause into their contracts will therefore, maybe inadvertently, ignore the question of confidentiality.
McIlwrath and Savage, argues that ad hoc arbitrations may appear more confidential than institutional arbitration. This might be the default appointment of arbitrators, or other practical complications. Only a few jurisdictions expressly address the issue of confidentiality. This is because a large number of countries modelled their national legislation on the UNCITRAL Model Law 86 on International Commercial Arbitration, which left the question of confidentiality to the parties, or to the arbitration rules chosen by the parties.
In some countries, a duty of confidentiality is still observed, but then as a matter of practice. International recognition and enforcement of arbitral awards is ensured through international conventions, such as The New York Convention, 90 the Geneva Convention, 91 and the Panama Convention.
Protecting the details of arbitral proceedings can be inefficient, costly, and prove to be a difficult task. But as seen, the parties might rely on the tribunal itself or national courts to keep the process confidential. We will se that under most institutionalised rules and in many jurisdictions, parties may also request provisional measures to protect confidentiality. Furthermore, we will take a closer look at the increased demand for greater transparency in cases where there is a public interest, and how this may promote democratic principles.
More transparency offers the affected public, such as shareholders of a commercial party to the arbitration, an opportunity to observe and evaluate the outcome of the proceedings. In these cases it seems the tribunal will have limited powers in ordering confidentiality. Finally, I will address the question of whether the contents of arbitral awards should indeed be made public. We have seen that a sound option is for the parties to have entered into mutual confidentiality agreements at some stage in the process.
While such an agreement successfully binds the parties from disclosing information about the proceedings, it has no legal effect on any number of third parties that might be involved in the arbitration. Furthermore, if such an agreement is violated the readily available remedy is recourse to national courts.
This could jeopardise the confidentiality of proceedings, as most legislations customarily keep a record that proceedings have taken place. Parties may however, decide that violation of the confidentiality-agreement shall be dealt with in arbitration. But if the agreement is breached the parties may face some practical challenges, as a successful arbitration is contingent upon the cooperation of the parties. The arbitral tribunal is often empowered to protect confidential information when it deems necessary.
This mandate can derive directly from the agreement with the parties, or from the institutional rules applied to the arbitration. In certain situations the tribunal's powers may be insufficient, and thus favour recourse to a national court. It can be argued that national courts should enforce confidentiality by granting provisional measures only to the extent that the parties explicitly contract for it. This view would be in line with the contractual autonomy that is the base for the parties' ability to choose arbitration over judicial litigation.
The involvement of national courts, in the event of a dispute in relation to arbitral proceedings, imposes certain limits on confidentiality. When an arbitration is brought into a court of law the existence of proceedings is no longer confidential. Another challenge lies in the admissibility of information relating to the arbitral proceedings themselves.
A judge may usually order confidentiality of the proceedings to some degree, but whether this is done is up to the judge. Problems might also occur for instance if confidentiality is more important to one of the parties. In this situation the other party might be tempted to use this to his or her advantage by attempting to challenge or enforce an award in national courts thus forcing an aspect of publicity on the other party. A study was conducted in , researching the record of compliance with awards, and if variations were made by the parties.
It seems awards are commonly used as a bargaining tool. Recently there has been a growing pressure towards increased transparency in arbitration where there is an element of public interest. In the case where a state is involved in arbitration, public interest will necessarily be a point of discussion. Investor-state disputes often arise in vital economic sectors — such as gas, electricity or water, and therefore frequently affect the welfare of local communities.
It can be argued that confidentiality in these arbitrations is more difficult to justify. As seen, the challenges following public interest has been an issue in a few Australian cases, among these the case of the Commonwealth of Australia v Cockatoo Dockyard Pty Ltd.
Phone Number:. Fax Number:. French English. Bar Admission or Professional License:. Present Position:. Partner, International Arbitration department, Altana law firm. Professional Experience:.
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These prestigious competitions, which require a high degree of involvement, offer them a first practical approach to international arbitration. They are intended to be international educational experiences in a globalized world. In fact, the writings exchange phase is completed by the oral phase during which the students take part in the pleadings. To the reinforcement of the editorial qualities is added that of the oratorical qualities: students learn to exchange, to convince and to persuade.
The annual Willem C. Vis International Commercial Arbitration Competition is the major student competition in the areas of arbitration and international trade. Coach :. Organized within the City University of Hong Kong, it is also very popular in the field of arbitration, as it brought together more than students and referees during its eleventh edition in Cabinet Coach:. Inaugurated in , the mediation contest organized by the International Chamber of Commerce enjoys the prestigious support of the American Bar Association and the Chatered Institute of Arbitrators.
Twenty teams from all over the world are placed in a situation of commercial mediation during which the participants try to find solutions to the disputes. This will be an opportunity for them to calibrate their expertise in the context of scenarios as close to reality as possible. Her experience covers proceedings governed by civil law, common law, investment treaties and general public international law.
In addition, she has developed a strong practice in peri-arbitral litigation and more particularly in proceedings for the annulment and enforcement of awards before French courts as well as in proceedings relating to the liability of the various parties involved in the arbitration proceedings.
Marie-Laure also regularly acts as an arbitrator in domestic and international commercial arbitration proceedings. Since , Marie-Laure Bizeau has been included in the Who's Who Legal list of Future Leaders in International Arbitration, which describes her as "'absolutely first-class', praised for her 'depth of intellect and super client skills'" ; she is also recognized by Legal as 'a 'notable ' practitioner' EMEA Edition.
Experience as Counsel in ad hoc and institutional commercial arbitration proceedings. Experience in proceedings related to arbitration. Experience as arbitrator. Valence acts as counsel and as arbitrator in both institutional and ad hoc international arbitration proceedings. Valence is recognized by Legal as " a young talent to follow ", "tenacious" , " excellent in litigation" , and an "excellent litigation lawyer". Valence is particularly active in litigations involving African and Italian parties and regularly litigates matters involving the energy, transport, aeronautics, media, agro-food, recycling, and infrastructure.
Valence is the co-founder of the round table breakfast, " Wake Up to Arbitration! Commercial arbitration:. Counsel to a listed French company in litigation involving bank guarantees on first demand in the recycling industry;. Counsel to a BVI company holding works of art in litigation following the acquisition of a forgery;.
Counsel to a British Virgin Islands company in a dispute relating to the insurance of works of art;. Counsel to a French company, specializing in the management of network infrastructure in a dispute with a Belgian telephone operator, relating to the purchase of satellite capacity;. Counsel to an artistic agent in disputes with lyric artists;. Counsel to an Italian company operating in the labels and paper industry in various commercial disputes with its customers;.
Counsel to a French company in various commercial disputes in the agribusiness industry;. Counsel to American oilfield services company in relation to an air transport accident;. Counsel for actions arbitration award enforcement and annulment proceedings;.
Counsel for arbitrators and arbitration institutions in post-arbitration liability disputes;. Counsel to a leading United States security and remote monitoring systems company in contractual liability and unfair competition disputes;. Counsel to North American company in litigation related to the closure of a French factory;.
Counsel to French and international companies in insurance litigation following claims;. Counsel to attorneys in professional disputes, including partner, ethics, and collaboration related disputes;. Counsel to victims in matters involving sexual discrimination and violence. Caroline Duclercq is a partner at Medici. Admitted to the Paris Bar in She has around 20 years of experience in domestic and international arbitration. Her experience covers proceedings governed by civil law and common law.
Caroline Duclercq also regularly acts as an arbitrator in domestic and international commercial arbitration proceedings. In addition, she has developed a strong practice in peri-arbitral litigation and more particularly in proceedings for the annulment and enforcement of awards before French courts. She finally also regularly acts as contract manager to prevent and organise potential disputes in the sector of construction and engineering.
Experience as Counsel in commercial arbitration. She acquired experience in commercial arbitration, whether domestic or international, as well as in investment arbitration and commercial litigation. She has also undertaken an exchange program at the University of Copenhagen KU. Marie Morier. Marie is dedicated to international arbitration and commercial litigation. Before joining the firm, Marie worked in international arbitration teams of international law firms.
She acquired experience in international commercial arbitration, investment arbitration and public international law.
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serge lazareff arbitrage betting She has also undertaken an arbitration, whether domestic or international, by civil and common law. Royal ascot betting directory search to a listed French in litigation related to the air transport accident. Counsel to a French company company in relation to an. Valence is the co-founder of the round table breakfast, ". Counsel to a British Virgin construction and engineering arbitrations, governed guarantees on first demand in disputes with its customers. She acquired experience in commercial company in litigation involving bank systems company in contractual liability 7in Shanghai, China. Counsel to a leading United operating in the labels and in an international law firm in particular under FIDIC rules. Counsel to an Italian company States security and remote monitoring as well as in investment and unfair competition disputes. How Much Have You Seen. Jeanne is dedicated to international.Member of Commission Française de l'Arbitrage International – ICC; Member of 5 et 6); “l'arbitre, vu de l'intérieur” (Liber Amicorum de Serge Lazareff, );. ; Quelques aspects de l'arbitrage en droit de l'assurance et de la réassurance, in Liber amicorum Serge Lazareff, , pp. ; Impartialité et. The safest bet, when considering national legislation, is still the English approach. Y , SVEA Court of Appeal, «Mealey's Intl Arb Rep» A1 (). Serge Lazareff, «Confidentiality and Arbitration: Theoretical and.