This seminar is cancelled.
Confidentiality has always been considered one of the main features of international arbitration. Surprisingly, there is no rule in the UNCITRAL model law on confidentiality. As a result, many jurisdictions that adopted the model law do not have any provision for confidentiality. Jurisdictions that did not adopt the UNCITRAL model law, such as England and Wales, also do not provide a specific rule on confidentiality in their legislation. Therefore, confidentiality is left to the parties to determine. Counsels should advise their clients regarding the confidentiality of the process and explain the status quo thoroughly. Only then arbitrating parties can make an informed decision in their arbitration agreement. Dr. Eken’s article draws attention to this important issue.
As a structure, the article starts by defining confidentiality in international arbitration. Then, it continues with the general perception. Parties who consent to arbitrate, generally assume that their arbitration proceedings and all documents produced in the arbitration are confidential. However, the reality is that confidentiality is not something automatically granted to parties when they agree to arbitrate. Party autonomy is governing all the processes in international arbitration and confidentiality is not an exception. International arbitration is as confidential as parties agreed to be confidential. If parties did not decide on the confidentiality of their proceedings, they might face unpleasant consequences where confidentiality is not a norm.
After setting the above background, this article analyzes several issues. First, the article brings together the case law from various jurisdictions regarding confidentiality. In most of these decisions, the law does not provide confidentiality as a default rule. After analyzing how confidential arbitration is, who has the duty to keep this process confidential is elaborated. The duty of confidentiality can lie with different parties depending on the applicable rules. To this end, the status quo of the arbitration rules of major arbitration institutions and UNCITRAL rules are discussed.
Second, this article analyzes whether the confidentiality of international arbitration undermines the legitimacy of the process. What ethical and legal consequences arise from this confidential feature of the arbitration? International arbitration is allowed because international agreements and national laws allow this procedure. However, this procedure cannot be used to hide from the public the illegal activities, corruption, or other misconduct of the arbitrating parties. There is a conflict between confidentiality and public interest and arbitration cannot stay confidential where the public has a right to know. This tension between the public interest and confidentiality of international arbitration is thoroughly discussed in the article.
Thirdly, the article presents the case law in several jurisdictions in detail and elaborates on the exceptions under them regarding when confidentiality can be breached legally. Confidentiality is not absolute and there are certain scenarios a party can legally breach confidentiality.
Overall, the article provides significant contributions to the literature regarding the relationship between the legitimacy of international arbitration and confidentiality. It provides parties with important suggestions on how parties in arbitration can secure themselves against potential breaches of confidentiality.
About the Speaker:
Dr. Can Eken is an assistant professor in commercial law at Durham University. He teaches international commercial dispute resolution course at Durham Law School. He is a triple-qualified lawyer admitted as a solicitor in England and Wales and an attorney in California, USA and Turkey. He is a Fellow of the Chartered Institute of Arbitrators, and he is on the panel of arbitrators at the Thailand Arbitration Centre (THAC) and Shanghai International Arbitration Centre (SHIAC). Prior to Durham, Dr. Eken practiced law and worked as a research assistant. Dr. Eken studied an LLM degree at the London School of Economics and Political Science, and another LLM degree at Dokuz Eylul University in Turkiye where he also obtained his bachelor’s degree in law with high honour degree. He completed his PhD degree at the Faculty of Law at the Chinese University of Hong Kong. Dr. Eken spent an academic year at Stanford University in 2019–2020 and two months at the Max Planck Institute in Luxembourg in 2021 as a visiting scholar. He has many publications on international commercial arbitration, investment law, third-party funding and online dispute resolution. He regularly gives lectures and consultancy on international commercial arbitration and investment law.