Abstract:
The private nature
and presumptively confidential character of international commercial
arbitration proceedings are two of its most attractive features. At the same
time, the assumption that the confidentiality feature of arbitration provides a
broader level of protection from disclosure when compared to public court
proceedings can no longer be supported without qualification. In fact, a
growing number of courts around the world seem to agree that disclosure of
documents and materials produced during arbitration may be compelled regardless
of any express confidentiality agreement entered into between the parties. It
is argued in this article that by raising the burden of proof for disclosure of
information and materials produced during arbitration, a fair balance may be
struck between the essential private nature of arbitration proceedings and the
duty of confidentiality. It is suggested that the U.S. work-product doctrine
may function as a starting point for an international consensus on how to best
and more predictably protect confidentiality in arbitration. The balancing
approach of the work-product doctrine, including the standard of substantial
need and undue hardship, is a well established principle in U.S. law and may
aid in defining uniform limits for otherwise undefined or very broadly defined
exceptions to confidentiality in international commercial arbitration.
Download the entire article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2163285
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