Full Contents List

• Introduction
  1. Preface
  2. Foreword
  3. Introduction
• Regional Overviews
  1. Recent Developments in Investment Treaty Arbitration
  2. Challenges to Arbitrators
  3. State of Necessity in Investment Arbitration
  4. Arbitration of Intellectual Property Disputes
  5. Provisional Application of the Energy Charter Treaty
• Country Overviews
  1. Austria
  2. Czech Republic
  3. Denmark
  4. Finland
  5. France
  6. Greece
  7. Ireland
  8. Netherlands
  9. Poland
  10. Portugal
  11. Spain
  12. Ukraine
  13. United Kingdom
  14. Middle East Overview
  15. Lebanon

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This article focuses on confidentiality in international arbitration and whether it is directly addressed in confidentiality clauses or simply assumed by the parties of a given dispute as an implied, general standard of arbitration.
Among Danish lawyers at least, it is generally understood that confidentiality automatically attaches to arbitral proceedings and associated documents, as confidential preparations, proceedings and awards are part of the main reason that many businesses agree with a business partner to arbitrate future disputes rather than litigate in an ordinary court.
Our aim is to investigate and communicate the status and limits of confidentiality in international arbitration – its status as an implied term and as an agreed or statutory clause.

Danish law

In Denmark there is a general assumption that the preparations, proceedings and awards of arbitration cases are confidential. The legal committee established by the Danish Law Society to submit a proposal for a new arbitration act has mentioned that one of the advantages in arbitration is the discretion vested with the parties to the conflict; the confidential proceedings and preparations; and the fact that the award will only become known if enforcement becomes necessary by means of the ordinary courts or if an annulment of the arbitral award is sought by means of the court.² With regard to the actual proceedings, this assumption appears correct but it falters when it comes to the preparations and the award.
The Danish Act on Arbitration is silent on these matters. The only reference made in this context to statutory law is to the Act on Civil Procedure, where it follows from section 28a that: “All proceedings in court will be public, unless otherwise decided by law. Court proceedings in which a judgment is rendered must always be public”. This reference is often used as an argument for why arbitral proceedings are confidential, but there is no similar rule concerning confidentiality or publicity in the Act on Arbitration.
Furthermore, there is no Danish case law to illustrate the position in this field and very limited literature available to shed light on the matter. One of the more recent books written on Danish and Nordic arbitration mentions³ that one of the reasons for choosing arbitration is that the parties can agree on confidentiality. This implies that only when agreed can parties rely on confidentiality as the norm. In the same context the book states⁴ that proceedings are confidential, but there is no explanation or reference given as to where the requirement of agreed confidentiality or the implied confidentiality of the proceedings originate.
It is also assumed in Denmark – supported, among others, by reference to the IBA’s Rules of Ethics for International Arbitration, section 9 – that arbitration judges have an inherent non-disclosure obligation about all matters related to the arbitration case with which they are dealing.⁵ This is again unsupported by any other source than rules and standards in other countries.
Finally, reference is made to a Swedish Supreme Court case (described below) when stating⁶ that the other areas of the confidentiality question (confidentiality of the written preparations and of the award) are issues of uncertainty in Danish law. It is believed to be beyond doubt that the passing of information about the preparatory process or the award is allowed if a party has a loyal interest in doing so. Addressing the validity of an arbitration court or its award will also allow publicity with regard to the documents. After the Swedish ruling, a Danish court might very well reach the same conclusion as the Swedish Supreme Court: that there is no implied duty of confidentiality for the parties to an arbitration case, and confidentiality will only come about when specifically agreed to by such parties.
In Bulgarian Foreign Trade Bank Ltd (Bulbank) v AI Trade Finance Inc,⁷ the Swedish Supreme Court did not recognise an implied duty of confidentiality. Bulbank attempted to nullify an award for AI Trade because it had disclosed a favourable jurisdictional ruling in the arbitration to Mealey’s International Arbitration Report, where details of the ruling were published:⁸
AI Trade went further, also giving the arbitral chairman a copy of the article, who in turn, gave it to a former judicial colleague on the Swedish Supreme Court, who quoted the article in one of his judgments!⁹

The court was clear that a judgment in favour of Bulbank would only be possible if AI Trade had been bound to a duty of secrecy by Swedish law, the institutional arbitration rules that the arbitration was conducted under, or contract. Since no such obligations existed in any of the three sources of law, Bulbank was obliged to pay the award to AI Trade.¹⁰
The question is whether this assumption that confidentiality is not an implied obligation to the parties in an arbitration case has general support. Below, the case law of other countries will be examined and arbitration rules of international institutions will also be scrutinised for any clauses in this respect.

International case law
England

Several well-known English cases recognise an implied duty of confidentiality in arbitral proceedings,¹¹ but this duty is perhaps best articulated in Ali Shipping Corp v Shipyard Trogir.¹² Here the English Court of Appeal held that an implied duty of confidentiality barred an arbitration party from using documents and other materials gathered in a previous arbitration in a subsequent one to establish an estoppel defence.¹³ The court explained:
in holding as a matter of principle that the obligation of confidentiality (whatever its precise limits) arises as an essential corollary of the privacy of arbitration proceedings, the court is propounding a term which arises ‘as the nature of the contract itself implicitly requires.’¹⁴

In its effort to find appropriate boundaries of this implied obligation of confidentiality, the court thought it better to formulate “exceptions of broad application to be applied in individual cases” rather than adapting the general rule of implied confidentiality “in light of the particular circumstance and presumed intentions of the parties at the time of their original agreement.”¹⁵ Using precedent as a guide, the court articulated five exceptions: (i) consent of the arbitrating parties; (ii) order of the court; (iii) leave of the court; (iv) disclosure reasonably necessary for the establishment or protection of an arbitrating party’s legal rights with regards to a third party; or (v) ‘the interests of justice.’¹⁶ The court specifically adopted the phrase ‘the interest of justice’ over ‘public interest’ so as not to appear to be accepting the Esso Australia Resources v Plowman¹⁷ case as the law of England. In Esso Australia, the public interests of the people of Victoria trumped any confidentiality claims made by a commercial gas supplier and two Victorian public utilities concerning information disclosed in arbitrations between the gas supplier and utilities.¹⁸ In addressing the Esso Australia decision, the Ali Shipping court stated:
In the [Esso Australia] case, only the dissenting judgment of Toohey J appears to me to treat the law of privacy and confidentiality in relation to arbitration proceedings on lines similar to English law. While it may well fall to the English court at a future time to consider some further exception to the general rule of confidentiality based on wider considerations of public interest, it is not necessary to do so in this case.¹⁹

In Associated Eclectic & Gas Insurance Services (AEGIS) v European Reinsurance Company of Zurich (Zurich),²⁰ the Privy Council found that even though a confidentiality provision in AEGIS and Zurich’s arbitration agreement forbade disclosure, AEGIS could nevertheless use the arbitral award against Zurich to establish an estoppel defence in a subsequent arbitration with Zurich. Their Lordships stated that such use was not the “mischief at which the [confidentiality] clause” was directed, and to prohibit any disclosure of the award would frustrate a fundamental purpose of the arbitration by preventing enforcement of the award.²¹
Their Lordships distinguished AEGIS v Zurich from Ali Shipping, in that the case before them involved construing the scope of an express confidentiality agreement, whereas in Ali Shipping none existed. Thus, any generalisations and the formulation of detailed implied terms were not appropriate to the present facts.²² Another distinction made was that in the case before the Privy Council, the same parties were involved in both arbitrations, whereas in Ali Shipping they were different.²³
Their Lordships then expressed reservations about the desirability or merit of adopting an implied duty of confidentiality as it risks failing to distinguish between different types of confidentiality that attach to different types of documents or to documents that have been obtained in different ways and elides privacy and confidentiality. Their Lordships then explained why materials generated in an arbitration should be distinguished from the award in assessing confidentiality. Their Lordships noted that restrictions on the use of material obtained in arbitral proceedings may have greater impact than those in litigation because commercial arbitrations, unlike litigation, do not place anything in the public domain. Their Lordships, however, found that the same logic could not be applied concerning the award. Unlike documents, the award may have to be referred to for accounting purposes or for the purpose of legal proceedings or for the purposes of enforcing the rights that the award confers.²⁴
In reaction to AEGIS v Zurich, one commentator suggested that the decision appears to suggest that confidentiality should be evaluated on its own terms as opposed to artificial privacy considerations that support an implied obligation of confidentiality.²⁵ Further, the “strong inference now being the House of Lords, when it next considers an appropriate case, may take a new approach in defining the existence of a duty of confidentially,” even possibly adopting an approach consistent with Australia, Sweden and the United States, where no implied obligation is recognised.²⁶

France

France also recognises an implied duty of confidentiality. In Aïter v Ojjeh,²⁷ the Cour d’appel of Paris dismissed a party’s action to annul an arbitral award rendered in London and “imposed substantial civil damages on [that party] for having caused ‘a public debate of facts which should remain confidential,’ thus violating ‘the very nature of arbitral proceedings that they ensure the highest degree of discretion on the resolution of private disputes, as the two parties had agreed.’”²⁸ This opinion has been heavily criticised, even with what the Cour d’appel called a “clearly incompetent jurisdiction”.²⁹ The opinion is disliked because the court failed to give any reasoning to support why the nature of arbitration intrinsically requires the highest degree of confidentiality and provided no exceptions to the implied duty as England had.³⁰ Given this extreme position, it is possible that a French court will adopt a more nuanced stance on confidentiality in a subsequent hearing.³¹

Australia

In Esso Australia, the High Court of Australia provided an exhaustive analysis on the issue of implied duty of confidentiality with regards to commercial arbitrations and held that no such duty exists. The court made an important distinction in that “while it is one thing to say that an arbitration hearing is private in the sense that strangers are excluded, it is another thing to say that it is confidential.”³² The court was especially concerned that before Dolling-Baker, a 1991 English decision on which Ali Shipping relies, there was no English case law suggesting that an arbitration hearing was confidential as distinct from private. Therefore, “if such an obligation had formed part of the law, one would have expected it to have been recognised and enforced by judicial decision long before Dolling-Baker.”³³ The court further stated that if, arguendo, a duty of confidentiality existed, it would nevertheless be trumped by the public interest to the governmental information involved as the arbitration parties included public utilities.³⁴
The court then provided guidance as to how parties could obtain confidentiality:
An obligation not to disclose may arise from an express contractual provision. If the parties wished to secure the confidentiality of the materials prepared for or used in the arbitration and of the transcripts and notes of evidence given, they could insert a provision to that effect in their arbitration agreement. Importantly, such a provision would bind the parties and the arbitrator, but not others. Witnesses, for example, would be under no obligation of confidentiality.³⁵

United States

Although the US has not adopted an implied duty of confidentiality, it has not explicitly rejected it either. It can be inferred, however, from two court opinions concerning confidentiality in arbitration, United States v Panhandle Eastern Corp³⁶ and Industrotech Constructors, v Duke University,³⁷ that it is unlikely that a US court would observe such a duty.
In Panhandle Eastern, the US government sought documents related to an arbitral proceeding between Panhandle Eastern (PE) and Sonatrach for an upcoming trial. PE attempted to prevent the disclosure of documents with two arguments. First, it cited several confidentiality rules contained in appendix II of the International Chamber of Commerce Rules of Arbitration, the institution that conducted the arbitration. The court quickly dismissed this argument, as the rule cited by PE applied only to the members of the Court of Arbitration.³⁸
PE also attempted to invoke rule 26(c) of the Federal Rules of Civil Procedure, which prevents or limits a discovery request for good cause; that is, the movant must demonstrate a particular need for protection. In its attempt, PE argued that PE and Sonatrach had a “general understanding” that the pleadings and related documents in the arbitration would be kept confidential,” and if this general understanding was breached, it would severely prejudice future business negotiations as to price, quantities and term of deliveries under a new contract between PE affiliates and a Sonatrach subsidiary. The court held that such broad allegations of economic injury, without more specific evidence, are insufficient to show good cause under rule 26(c).³⁹
In Industrotech Constructors, the underlying dispute arose between Duke University and a building contractor. The appellant, Duke, was contesting a discovery order to provide transcripts of an arbitration between Duke and another building contractor. The court found that although Duke insisted that the arbitration stipulated that the proceedings would remain confidential, absent a written stipulation in the record (as the case was here), Duke’s argument must fail.⁴⁰
Duke also argued that even absent evidence of a stipulation of confidentiality, public policy requires arbitration confidentiality. Absent such policy, arbitration parties will become circumspect and overly litigious and thus chill the informal process of arbitration. The court, insisting on finding a confidentiality rule, stated that Duke cites no case law for this proposition and nothing in the North Carolina statutes governing arbitration require strict confidentiality. Thus, neither the law nor the contract to arbitrate barred disclosure.⁴¹

Arbitration rules of international institutions
China International Economic and Trade Arbitration Commission (CIETAC)

Article 33(2) of the CIETAC Rules is quite expansive: “[T]he parties, their representatives, witnesses, [and] interpreters [...] shall not disclose to any outsiders any substantive or procedural matters of the case.”⁴² Although this provision may initially seem attractive because of its simplicity and scope, we find it troublesome. First, no arbitration hearing is an island. If in complying with a subpoena, a party disclosed a “substantive or procedural matter of the case,” that party would be in violation of article 33. A party would also violate article 33 if it revealed such information in asserting a legal right or defending itself in a dispute independent of the arbitration.
Second, the confidentiality rule is mandatory and therefore does not allow parties to contract a tailor-made rule as other institutional rules allow. Although there is some flexibility by allowing parties to request an open hearing, this results, however, in an all-or-nothing approach: either arbitrations are completely secret or open.
Obviously, its weakness is also its strength, with the expansive language that parties “shall not disclose to any outsiders any substantive or procedural matters of the case,” it seems that little or nothing could be told to “outsiders.” If parties place a high value on secrecy, drafting a confidentiality provision mirroring article 33(2) maybe a proper choice as this rule is one of the strongest confidentially provisions among institutional arbitration rules.
However, it is unclear what remedies are available if a party discloses confidential information. Would an offender have to be taken to the arbitration board or a court of law? What would be the damage? Most institutional arbitration rules are also silent on how to remedy a breach of confidentiality.

Swiss Rules of International Arbitration

The Swiss Rules are based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration.⁴³ The Swiss Rules, however, contain a confidentiality provision, article 43, whereas the UNCITRAL Model Law provides none. Article 43 is restrained and nuanced in comparison to CIETAC Rules, article 33(2). Article 43(1) is a default provision in which the “parties undertake as a general principle to keep confidential all awards and orders as well as all materials submitted by another party in the framework of the arbitral proceedings not otherwise in the public domain.” It further provides three exceptions: (i) where a disclosure may be required of a party by a legal duty; (ii) to protect or pursue a legal right; or (iii) to enforce or challenge an award in legal proceedings before a judicial authority. As such, article 43(1) parallels English case law in that both recognise a ‘general principle’ of confidentiality, which is subject to similar exceptions.⁴⁴
Although parties can contract around article 43(1), article 43(3), concerning the award, is mandatory. It tackles the issue of award confidentiality, however, with “impeccable accuracy and style”.⁴⁵ It allows an award to be published, partially or in its entirety, under three conditions: (i) a request for publication is addressed to the Chambers; (ii) all references to the parties’ names are deleted; and (iii) no party objects to such publication within the time limit fixed for that purpose by the Chambers.

The International Chamber Of Commerce (ICC) Rules of Arbitration

The ICC Rules of Arbitration have no specific provision compelling the parties to maintain confidence of their arbitration.⁴⁶ “Therefore confidentially will depend on the terms of the arbitration agreement itself, the rules of law governing the arbitration, the law of the place of arbitration and the measures taken by the tribunal under article 20(7)”.⁴⁷ Whether or not confidentiality exists under applicable law or in an arbitration agreement, the broad, sweeping language of article 20(7) allows the tribunal to “take measures for protecting trade secrets and confidential information.”⁴⁸ “The logical inference here is that issues concerning confidentially, in the context of arbitral proceedings, should be made by the parties with the relevant vested interest.”⁴⁹ For example, if a party needs to introduce a trade secret as evidence in an arbitration with a competitor, the tribunal may forbid the use of the trade secret information outside the context of the arbitration.⁵⁰
Such reasoning, however, is conjectural, especially in the light of the flexible, yet ambiguously drafted rule. To be overly cautious, the ICC rules guarantee confidentially of the arbitral proceedings “only inasmuch as they secure the privacy of the arbitration” through article 21(3).⁵¹ Article 21(3) excludes outside parties from the arbitration, which in some jurisdictions provides an implied duty of confidentiality for information related to the arbitration.⁵² In reality, however, the rule is drafted so the tribunal can handle complex and varied confidentiality concerns of the parties. But it would be foolhardy to expect the tribunal to always side with confidentiality.
Concerning the award, article 28(2) does not allow outsiders of the arbitration access to an award from the ICC, but it does not, however, prevent the parties themselves from sharing an award with others.
A key advantage of choosing the ICC Rules of Arbitration is the ability to draft a controlling confidential agreement, even if such a provision is missing in the underlying arbitration agreement. Although not specifically stated in the Rules, parties “may find it opportune to include a clause on confidentiality in the Terms of Reference to protect their rights and the documents submitted by them during the course of the proceedings.”⁵³

World Intellectual Property Organization (WIPO)

The WIPO rules are unique in their comprehensive and compartmentalised treatment of confidentiality.⁵⁴ The rules separately address confidentiality concerning information that is confidential in itself, such as trade secrets (article 52), the existence of arbitration (article 73), disclosures made during the arbitration (article 74), and the award (article 75). The rules “also specify on whom the obligation to maintain confidentiality is imposed – namely, the parties (articles 73-75), [and] witnesses (article 74(b)).”⁵⁵ Remedies for breach, though, are absent from the WIPO rules.
“Article 52 deals with the protection in arbitration of information that is confidential before it is disclosed.”⁵⁶ Article 52(a) defines confidential information as information in the possession of a party, not accessible to the public, of commercial, financial, or industrial significance, and treated as confidential by the party possessing it.⁵⁷ Article 52(b) requires a party to apply to the tribunal in order to have the information classified as confidential and to provide a copy of the application to the other party. In the application, the applying party should only provide reasons why the information should be confidential and not the information itself. Article 52(c) requires the tribunal to first determine if the information is confidential, and if so, if its disclosure, in the “absence of special measures of protection in the proceedings”, would be likely to cause serious harm to the party invoking its confidentiality. If the tribunal makes such a determination, it will decide under which conditions, the extent, and to whom the information be disclosed.
Article 73 prevents parties from unilaterally disclosing the existence of an arbitration to any third party except for three exceptions. The first and second exceptions are if disclosure is necessary in connection with a court challenge to the arbitration or an action for enforcement of an award. Even in such situations, the party must disclose no more than what is legally required and inform the tribunal and other party that it has done so or only the other party if the arbitration has terminated before the disclosure. The third exception allows parties to disclose to a third party “only the names of the parties to the arbitration and the relief requested in order to satisfy any obligation of good faith or candour owed to that third party.”
Although article 73 is quite protective, it may be unreasonable to allow a party involved in an arbitration to inform third parties of the existence of the arbitration only when it is obliged to do so.⁵⁸ A party may need to demonstrate to third parties its preparedness to take appropriate action to protect its interests so to prevent further arbitration, litigation or other conflicts.⁵⁹ It seems more appropriate to mirror article 52; that is, article 73 should bar disclosure of the existence of arbitration when it would likely cause seriously harm to an involved party.
Article 74 is titled ‘Confidentiality of Disclosure Made During the Arbitration’. It supplements article 52 (which applies to information that is confidential before the proceeding) in treating any document or other evidence given by a party or a witness during the arbitration as confidential and barred from use or disclosure to a third party. Unlike article 33(2) of the CIETAC Rules, article 74(a) restricts the scope of confidential information to information not in the public domain and would not have otherwise been accessible to a party, but for that party’s participation in the arbitration. Article 74(a) also allows use or disclosure to a third party of such information with the consent of the parties or order of a court having jurisdiction.
Article 74(b) specifies that a witness called by a party is not a third party for purposes of article 74(a). But, if a witness is giving evidence or other information obtained in the arbitration by the calling party, such party shall be “responsible for the maintenance by the witness of the same degree of confidentially as that required of the party.”
Article 75 allows the award to be disclosed to a third party by the parties under three independent situations: (i) the parties consent; (ii) the award is in the public domain as a result of an action before a national court or other competent authority; or (iii) the award must be disclosed in order to comply with a legal requirement or to establish a legal right against a third party.

A proposed uniform rule

In contrast to WIPO’s approach of trying to draft a rule for each aspect of confidentiality, the following rule proposed by Jeffery Sarles would leave the scope of confidentiality decision to the parties at the onset of arbitration:
In all arbitrations, the arbitrators shall require at the threshold that the parties agree on the scope of confidentiality, failing which the arbitrators shall enter a protective order on the scope of confidentiality. The parties shall by rule be deemed to have agreed to the terms of that order. Any claim asserting a violation of the parties’ confidentiality agreement or protective order accruing during the course of the proceeding shall be resolved by the arbitrators. Any violation of the parties’ confidentiality agreement or protective order accruing after the proceeding is terminated shall be resolved by arbitration according to the terms set forth in the parties’ arbitration agreement. Arbitrators may impose appropriate damages and penalties on parties found to have breached the confidentiality agreement or protective order.⁶⁰
This rule has several possible advantages over the previously discussed rules. Although it is debatable whether it is an advantage or not, parties can set the scope of confidentiality at the beginning of arbitration, rather than at the time of contracting.⁶¹ Thus, parties are likely to be more informed of the context of which information may be shared. However, at this stage it might be difficult for the parties to agree on anything and if the parties cannot agree, then a fallback provision is presented by giving the authority to an arbitrator to set the scope. Most importantly, remedies are addressed. “[T]he provision for penalties in the event of a breach of the confidentiality agreement would serve to deter breaches where damages from a breach may be nonexistent or minimal.”⁶²
Although this rule was proposed to be a universal arbitration default rule,⁶³ until such a thing exists, parties can easily include a similar term in their arbitration agreement.

* * *

Based on the above – the case law as well as the rules dealing with the confidentiality issue – it must be concluded that the preferable situation is to agree in writing on confidentiality in some form when the arbitration agreement is made.
It can be a general and all-embracing confidentiality clause that comes into force if the parties are unable to agree more specifically on the scope of confidentiality concerning the arbitration preparations and award. Or, if such an agreement proves to be impossible to reach, a plain confidentiality clause obliging the parties to keep matters concerning the preparations, the proceedings and the award confidential before, during and after the arbitration case is more satisfactory than leaving the decision to arbitral panel or court of law. One exception to such a confidentiality agreement will necessarily have to be enforcement by ordinary courts, which should be mentioned.
In all circumstances, no advisor can predict which party will have the greater interest in confidentiality if a conflict arises; thus, it appears wise to include a confidentiality clause in all arbitration agreements that clients sign.

Notes

1 We would like to thank our research assistant Sam Bergstrom, a third-year law student at the University of Texas, for his invaluable assistance.
2 Law Society’s Legal Committee in Reform of the Arbitration Act, p35, 2003.
3 By Jacob Juul and Peter Faurholdt Thommesen, p15 in Voldgift, GadJura, 2003.
4 Ibid, p16.
5 Ibid, p208, with references to Norwegian and Swedish theory on this matter.
6 Ibid, p209-10.
7 Case No. T 1881-99, 27 October 2000 (Swedish Sup Ct).
8 J W Sarles, ‘Solving the Arbitral Confidentiality Conundrum in International Arbitration,’ 18 ADR & the Law, American Arbitration Association 2 (2002).
9 Steven Kouris, ‘Confidentiality: Is International Arbitration Losing One of its Major Benefits?’, 22 J INT’L ARB L 127, at 135.
10 C Romander & L Pettersson, Confidentiality in Swedish Arbitration Proceedings.
11 Dolling-Baker v Merrett, 2 All ER 890 (Eng CA 1991); Hassneh Insuracne Co of Isreal v Mew, 2 Lloyds Rep 243 (QB 1993).
12 1 Lloyd’s Rep 643, 2 All ER 136 (Eng CA 1998).
13 Ibid at 899; Kouris, supra note 9, 129 (2005).
14 Ali Shipping Corp, 2 All ER at 147.
15 Ibid.
16 Ibid at 147-48, 149.
17 Esso Australia Resouces Ltd v Plowman, 183 CLR 10, 128 ALR 391 (1995).
18 Ibid at 402-403.
19 Ali Shipping Corp, 2 All ER at 149.
20 [2003] UK PC 11 (29 January 2003).
21 Ibid at 11.
22 Ibid at 20.
23 Ibid. (Although this may be technically true, I find it a misleading statement. Shipyard Trogir was in a subsequent arbitration with a subsidiary of a parent company that also owned Ali Shipping. Ali Shipping brought an injunction to prevent disclosure and, as detailed supra, won.)
24 Ibid.
25 Kouris, supra note 9, at 131-32.
26 Ibid at 132.
27 Cour d’appel, Paris, 18 February 1986, 1986 REV ARB 583.
28 Ibid.
29 W Laurence Craig et al, International Chamber of Commerce Arbitration 316 (3d ed 2000).
30 Kouris, supra note 9, at 136.
31 Ibid.
32 Esso Australia, 128 ALR at 398.
33 Ibid.
34 Ibid at 402-403.
35 Ibid at 400.
36 118 FRD 346 (D Del 1988).
37 314 SE 2d 272 (NC App 1984).
38 Panhandle Eastern Corp, 118 FRD at 347-350.
39 Ibid at 350.
40 Industrotech Constructors, Inc, 314 SE 2d at 274.
41 Ibid.
42 CIETAC Arbitration Rules (effective 1 May 2005), www.cietac.org.cn/english/rules/rules.htm (last visited 11 September 2007).
43 Swiss Rules (effective 2004), www.swissarbitration.ch/rules.php (last visited 11 September 2007). (Note that the UNICITRAL Model Law is not a convention but rather a model for other countries and institutions to follow in order to promote harmonisation).
44 Kouris, supra note 9, at 137.
45 Matti S Kurkela & Hannes Snellman, Due Process in International Commercial Arbitration, p190 (2005).
46 Kouris, supra note 9, at 137.
47 Michael W Bühler and Thomas H Webster, Handbook of ICC Arbitration, section 20-71 (2005).
48 ICC, Rules of Arbitration (effective 1 January 1998), www.iccwbo.org/court/english/arbitration/rules.asp (last visited 11 September 2007).
49 Kouris, supra note 3, at 137.
50 Yves Derains and Eric A Schwartz, A Guide to the New ICC Rules of Arbitration 264 (1998).
51 Bühler and Webster, supra section 20-71.
52 Ibid at section 21-47.
53 Bühler and Webster, supra section 18-61.
54 Hans Smit et al, WIPO Arbitration Rules: Commentary and Analysis 235 (2000).
55 Ibid.
56 Ibid at 178.
57 WIPO, Arbitration Rules (effective 1 October 2002), www.wipo.int/amc/en/arbitration/rules/ (last visited 11 September 2007).
58 Smit, supra note 50, at 244.
59 Ibid.
60 Sarles, supra note 33, at 8.
61 Kouris, supra note 9, at 138 (“The consistent message conveyed through the judicial decisions and by leading commentators is that the parties themselves should expressly provide for confidentiality (preferably in the arbitral agreement and not when the disputes arises), as a from of self-regulation”).
62 Ibid at 8-9.
63 Ibid at 8.

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