The Work-Product Doctrine as a Means toward a Judicially Enforceable Duty of Confidentiality in International Commercial Arbitration

Abstract

The private nature and presumptively confidential character of international commercial arbitration proceedings are two of its most attractive features. At the same time, the assumption that the confidentiality feature of arbitration provides a broader level of protection from disclosure when compared to public court proceedings can no longer be supported without qualification. In fact, a growing number of courts around the world seem to agree that disclosure of documents and materials produced during arbitration may be compelled regardless of any express confidentiality agreement entered into between the parties. It is argued in this article that by raising the burden of proof for disclosure of information and materials produced during arbitration, a fair balance may be struck between the essential private nature of arbitration proceedings and the duty of confidentiality. It is suggested that the U.S. work-product doctrine may function as a starting point for an international consensus on how to best and more predictably protect confidentiality in arbitration. The balancing approach of the work-product doctrine, including the standard of substantial need and undue hardship, is a well established principle in U.S. law and may aid in defining uniform limits for otherwise undefined or very broadly defined exceptions to confidentiality in international commercial arbitration.

Keywords: Arbitration, International Commercial Arbitration, Confidentiality, Privacy, Work-Product Doctrine, Alternative Dispute Resolution, International Business Transactions, Commercial Law, International Commercial Law, Comparative Commercial Law