Legislating for Confidentiality: Defining the Ambit of Confidentiality in International Commercial Arbitration

Abstract

The thesis of this paper is that legislation in this area is possible. While the ambit of the duty of confidentiality cannot be exhaustively defined, there is a group of accepted exceptions, which are capable of definition. While some exceptions are still in the process of development and remain contentious, this is not a barrier to legislation. The New Zealand legislation provides a practical way to overcome this problem, allowing the arbitral tribunal discretion to grant disclosure. In establishing this, Part II will describe the legislation that has been enacted in each of these countries, and the background to such legislation. Part III will canvas the definitional problems associated with the duty of confidentiality, and cover why legislation in this area has been difficult. Part IV will detail the English law. As the richest jurisprudence on the topic of confidentiality in arbitration, any exploration of the ambit of confidentiality necessitates an excursion into English law. Part V will compare how each piece of legislation defines the obligation of confidentiality, with a particular focus on the areas of difference between the legislation. Part VI will provide an analysis of the differences approaches, and finally, a conclusion will be proffered.