Originally from A Practical Guide to International Arbitration - Second Edition 

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INTRODUCTION 

For in-house counsel, one of the key advantages of resolving disputes via international arbitration rather than court litigation is the fact that the details of the dispute are less likely to spill over into the hands of competitors or into the public domain more generally. Businesspeople often agree to international arbitration with the assumption that it is a private and confidential form of dispute resolution, in contrast to litigation with its public attributes.  

While the assumption that arbitration is private and confidential may be justified in some circumstances, there are many circumstances in which it is not. Indeed, the bounds of confidentiality have been shrinking in light of the drive towards increasing transparency in arbitral proceedings, a trend which has seen several leading arbitral institutions amend its rules in favor of granting the public greater access to information in recent years. This movement is in part a reaction to the rising number of public interest issues (for instance, ESG disputes) being arbitrated in international commercial and investment arbitrations.1 This in turn has led to increased interest and expectation from the public in the decision-making and outcome of these cases. It is unsurprising that arbitral institutions have responded to the demand for transparency as doing so can increase (or at least, maintain) its popularity as a service provider, in addition to upholding the legitimacy and confidence in arbitration as a means of dispute resolution. Relatedly, as more of the arbitral process enters the public domain, arbitral institutions and parties must also be more mindful of its GDPR obligations whenever there is an EU individual involved. 

This chapter discusses the extent to which parties may expect arbitration to be private and confidential and how uncertainties in this respect can be addressed in arbitration agreements and/or in confidentiality undertakings. 

As a threshold matter, people often refer to privacy and confidentiality as essential features of arbitration. The two concepts overlap but differ in some respects.