Confidentiality, in a Forum of Last Resort? Is the Use of Confidential Arbitration a Good Idea for Business and Society?
American Review of International Arbitration, Vol. 16, p. 479, 2005
Posted: 14 Mar 2012
Date Written: June 10, 2005
In more recent times, the ‘word of mouth’ enforcement of commercial norms and custom has been abandoned. In its place has evolved an arbitration process that is partially, if not completely, confidential. In fact, in an ever increasing number, merchants and businessmen enter arbitration with the expectation that their dispute will be resolved in a private arbitral proceeding with their business secrets protected by the confidentiality that was created in their governing arbitration clause. Leaving us with one important question: Is the arbitration of today a better form of the arbitral process-with confidentiality as one of the new components, or is the use of confidentiality eroding the concepts that are fundamental to international commercial law? This paper attempts to answer this question by: (1) examining the unsettled definition of confidentiality in arbitration institutional rules and State court decisions, (2) considering the implications of confidentiality in arbitration on business and precedent, and (3) making suggestions for the future.
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