THE PRINCIPLE OF CONFIDENTIALITY IN ARBITRATION. APPLICATION AND LIMITATIONS OF THE PRINCIPLE

Headnote

Abstract

Over the years, arbitration has grown to be the preferred means of dispute resolution by commercial entities. One of the benefits that build the attraction for this system of dispute resolution was the principle of confidentiality. One issue that needs to be analyzed is about the reasons why confidentiality is so important in business. Confidentiality is a principle largely embraced in arbitration, but, as we will see, the principle is not an absolute one. There are a set of questions that needs to be answer to, like: Who is bound by the duty of confidentiality? Does this refer only to the parties or does it expands to other actors involved in the arbitral proceedings? What happens with the obligation of confidentiality when issues are brought before a court, taking in account the principle of open justice? We will see that in some countries are procedural laws allowing the courts to order an arbitration claim to be heard in public or in private. Another important aspect that has arisen in the last period is regarding the public policy and the protection of public interest as a limitation to confidentiality of arbitration. This is a sensitive matter especially when one of the parties is a state or a state entity. This study aims to explore the principle of confidentiality in arbitration by focusing on its domain and on its limits, both from the comparative approach and from the Romanian approach. Knowing all this aspects, we will realize the importance of having professional counseling when drafting an arbitration clause and how this can be the missing puzzle piece of your business.

Keywords: international arbitration; principle of confidentiality; aplications; limits.

JEL Classification: K33, K41

I. Introduction

Representing a fundamental principle of arbitration, confidentiality guarantees the effic ie nt protection of the interests of the parties.

Taking into consideration the characteristics of the parties, the market, as well as the implicated actors, there was the need to find a series of principles through which to better represent the interests of the parties. Confidentiality is one of this principles.

As we will see, lack or superficiality of regulation in this matter can lead to debates concernin g the modus operandi of this principle. There are opinions that plead...