Confidentiality in
international commercial arbitration remains one argument made in support of
arbitration. However, on careful analysis, some jurisdictions do not recognize
an implied right to confidentiality in arbitration, notwithstanding people’s
varying perceptions. The idea of privacy has been distinguished from the idea
of confidentiality in arbitration. Therefore, while an arbitration hearing may
be held privately, it does not necessarily mean that every element of such
arbitration is impliedly confidential. As such, some elements of an arbitration
may be disclosed, notwithstanding when such arbitration has been held in
private. On the flip side, while confidentiality cannot always be implied from
every ‘private’ arbitration, the privacy of such arbitration shields some of
the elements of the arbitration from the eyes of the public. Therefore, it
reinforces the very idea of confidentiality in arbitration. In this article,
the authors make a case for less confidentiality and greater transparency in
international commercial arbitration involving state parties while taking a cue
from the decision of the English Court in The Federal Republic of Nigeria v.
Process and Industrial Developments (P & ID) Limited.