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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Confidentiality in International Commercial Arbitration

ISBN13: 9789041132260
Published: July 2011
Publisher: Kluwer Law International
Country of Publication: Netherlands
Format: Hardcover
Price: £116.00

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After neutrality and international enforcement, the next most valued feature of international commercial arbitration is confidentiality.

For reasons easy to imagine, businessmen do not want their trade secrets, business plans, strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings.

Yet the case law of arbitration shows that in practical terms confidentiality is not to be taken for granted – in fact, it has become one of the most undetermined matters in international arbitration. Although ‘the emperor of arbitration may have clothes,’ as one scholar has quipped, his raiments of secrecy can be ‘torn with surprising ease’.

This book deciphers the current degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, other arbitration-related enactments, and practices of arbitral tribunals and domestic courts globally. Drawing on this data and analysis, the author then sets forth criteria to assess the breach of confidentiality in international arbitration and the proper rules for protecting or sanctioning such breaches.

What do we understand by confidentiality in arbitration? What are its limitations? Who is bound to observe it? How can we quantify its breach? In addressing these questions, the book engages such issues as the following:-

  • reasons for disclosure – e.g., for the establishment of a defence, for the enforcement of rights, in the public interest or in the interests of justice;
  • disclosure by consent, express or implied;
  • circumstances triggering statutory obligation of disclosure;
  • recent trends towards greater transparency in investor-State arbitration;
  • court measures in support of arbitral confidentiality such as award of damages for breach of confidentiality; and
  • categories of persons bound by confidentiality, including third parties such as witnesses and experts.
Structured along the main stages of the arbitral process, the analysis covers the duty of confidentiality from the initiation of arbitral proceedings through their unfolding to the issuance of the award and after. The scope of confidentiality is reviewed in the practice of arbitral tribunals and domestic courts, and from the perspective of international arbitration institutions, with detailed attention to various arbitration rules and numerous significant cases.

In its elucidation of the amount of confidentiality that ‘veils’ each phase of the arbitral process, and its ground-breaking identification of ‘patterns of disclosure’, this book is sure to raise awareness about the various facets and problems posed by confidentiality in arbitration. Although its scholarly contribution to the law of international commercial arbitration cannot be gainsaid, corporate counsel worldwide will quickly prize its more practical value.

Arbitration and Dispute Resolution
Chapter 1 Distinguishing Confidentiality from Privacy: A Possible Definition
Chapter 2 The Legal Basis of Confidentiality
Chapter 3 The Scope of the Duty to Maintain Confidentiality
Chapter 4 Actors Bound by the Duty to Maintain Confidentiality
Chapter 4 Actors Bound by the Duty to Maintain Confidentiality
Chapter 5 Breach of Confidentiality and Its Consequences
Table of Cases
Selected Arbitration Instruments

Series: International Arbitration Law Library

Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence 2nd ed ISBN 9789041162281
To be published December 2016
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award 2nd ed ISBN 9789041159731
To be published October 2016
Kluwer Law International
Party-Appointed Arbitrators in International Commercial Arbitration ISBN 9789041166715
Published April 2016
Kluwer Law International
International Arbitration and Cross-Border Insolvency: Comparative Perspectives ISBN 9789041154194
Published September 2014
Kluwer Law International
Parallel Proceedings in International Arbitration: A Comparative European Perspective ISBN 9789041152640
Published May 2014
Kluwer Law International
Challenge and Disqualification of Arbitrators in International Arbitration ISBN 9789041137999
Published January 2012
Kluwer Law International
China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration ISBN 9789041136749
Published November 2011
Kluwer Law International
Bias Challenges in International Arbitration: The Need for a Real Danger Test ISBN 9789041131911
Published November 2009
Kluwer Law International
Arbitrability: International & Comparative perspectives ISBN 9789041127303
Published March 2009
Kluwer Law International
Force Majeure and Hardship Under General Contract Principles ISBN 9789041127921
Published January 2009
Kluwer Law International
Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions ISBN 9789041124425
Published December 2005
Kluwer Law International
Provisional Measures in International Commercial Arbitration ISBN 9789041123534
Published August 2005
Kluwer Law International
Online Dispute Resolution: Challenges for Contemporary Justice ISBN 9789041123183
Published December 2004
Kluwer Law International
Towards a Science of International Arbitration: Collected Empirical Research ISBN 9789041123220
Published December 2004
Kluwer Law International
Corruption in International Trade and Commercial Arbitration ISBN 9789041122360
Published March 2004
Kluwer Law International
The Healthy Award: Challenges in International Commercial Arbitration ISBN 9789041120113
Published March 2003
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award ISBN 9789041117175
Published January 2002
Kluwer Law International
Insolvency Proceedings and Commercial Arbitration ISBN 9789041111159
Published June 2000
Kluwer Law International
Arbitration and Mediation in International Business ISBN 9789041102423
Published June 1998
Kluwer Law International
Out of print
Iran-United States Claims Tribunal in Action ISBN 9781853339028
Published March 1993
Brill Academic Publishers
Out of print