This article seeks to provide a comprehensive review of the international law on confidentiality in arbitration both in terms of theory and in practice (by examining national legislation and the rules of the various institutions). The essential point is that the problem is not in defining confidentiality but in defining the exceptions to the duty of confidentiality where such a duty is recognized. The argument is made that, in practice, it is difficult to come up with a comprehensive formula for, or list of, all the exceptions to the obligation of confidentiality. However, there is an examination of the most comprehensive and recent attempt to codify the exceptions to the duty of confidentiality in the New Zealand Arbitration Act 1996 (2007 Amendment). Nonetheless, even as the New Zealand Arbitration Act 1996 recognizes, no code can be fully comprehensive, and there must be room for an independent third party (either the tribunal or the curial court) to rule on permitted exceptions to the obligation of confidentiality.
Journal of International Arbitration