Confidentiality is one of the key characteristic and advantage of arbitration, which makes it so attractive to parties, as method of dispute resolution.
Under English law, there is an implied duty on the parties, as well as on the arbitrators to maintain the confidentiality of the arbitral proceedings, the documents generated and disclosed during the arbitral process and the arbitral award.
There are numbers of exceptions to the duty of confidentiality, including permitting disclosure of confidential documents, on the following instances:
(a) By an agreement of the parties;
(b) By an order of a competent Court;
(c) When it is reasonable necessary to protect the legitimate interests of a party; and
(d) When disclosure of confidential documents, is necessary for the promotion of the interests of justice.
The use of arbitration materials in litigation may be permitted by a Court:
(a) When such disclosure is necessary for the fair disposal of a case (see Colling Baker -v- Merrett);
(b) When a disclosure of the confidential documents is justifiable, because it is reasonably necessary for the protection of claimant’s legitimate interest (see Westwood Shipping case).
While confidentiality will be preserved where it is appropriate to do so, there will be circumstances, where the rule is overridden by other factors, which include the promotion of the interests of justice.