Protecting Confidentiality Within Arbitral Proceedings

Abstract

Disputes being resolved in international commercial arbitration often involve confidential information such as trade secrets, know-how, price calculations, sources of supply or intellectual property rights. Situations where a party would need to present material containing confidential information that requires increased protection may arise in various situations during an arbitration. The desire to protect confidentiality is on the other hand in conflict with general principles of due process, including the equal treatment of the parties and the right to be heard. The chapter presents established measures with the function of protecting confidential information within arbitral proceedings, and which have been employed by practitioners in practice and reported in preceding legal literature. Further, the chapter provides an analysis of how these measures conform to the general due process requirements of international arbitration, especially under the Swedish Arbitration Act. In addition to presenting measures which the parties may agree to and the arbitral tribunal may assist in implementing, e.g., by issuing confidentiality orders, the chapter argues that arbitrators have the authority to restrict access to sensitive material presented in the arbitration upon the application of one the parties. While no precedent confirming such authority under Swedish law yet exists, it is the view of the authors that a tribunal may restrict access within the limits set by Article 24 of the Swedish Arbitration Act when a legitimate need to protect confidential information exists and the procedural rights of the other party are upheld as far as possible.