A difficult balance: Open justice and the protection of confidentiality in arbitration related court proceedings

Abstract

Confidentiality in International Commercial Arbitration is important to parties dealing in commercially sensitive information. Arbitrating parties have legitimate expectations of confidentiality, which is addressed to varying degrees in national laws, the courts and institutional rules. This paper assesses the irregular approach to confidentiality internationally, with a particular focus on the comprehensive codification of the obligation in New Zealand under the Arbitration Act 1996. The paper focuses in particular on confidentiality expectations in arbitration related court proceedings, which is where a careful balance must be struck between the principle of open justice and the protection of confidentiality. In assessing the application regime under the New Zealand statute, the paper explores comparative approaches and possible options for reform, concluding that an appropriate change would be to more readily allow consenting parties to have access to private court proceedings.