When can the veil of confidentiality in arbitral proceedings be pierced?

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The claimant in Westwood Shipping Lines Inc and another company v Universal Schiffartsgesellschaft MBH and another [2012] EWCH 3837 (Comm) had been a party to arbitral proceedings in which certain documents had been disclosed to it. Subsequent to the arbitration, the claimant commenced proceedings in the High Court against the defendant (who was not a party to the arbitral proceedings) alleging unlawful means conspiracy. The allegations relied to a considerable extent on the detail of the documents in question. The claimant applied to the court to allow disclosure of the documents. In reaching its decision, the High Court considered the rule of confidentiality in arbitral proceedings and the exceptions.

One of the perceived advantages of arbitration, as opposed to litigation, is confidentiality (along with privacy). Where the seat of the arbitration is in England, confidentiality is an implied term of the arbitration agreement. (Where the seat of arbitration is overseas, it may be that the obligation of confidentiality is enshrined in statute.) The effect under English law is that the parties to the arbitration and the tribunal are duty bound to maintain the confidentiality of the hearing, documents generated and disclosed during the proceedings (even if they do not contain inherently confidential material), and the award. There are however, exceptions to this rule…

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