The Arias (UK) Confidentiality Clause
The Confidentiality of Arbitration was considered in a members’ survey and at the ARIAS (UK) 2017 AGM, after which the question was remitted to the Management Committee for further consideration. The Committee concluded:
- There is no support for relaxing the confidentiality of the arbitral process itself. Hearings and what precedes them should remain private.
- Given the range of opinion expressed concerning confidentiality of Awards it would not be appropriate to change the Rules in this respect.
- If any change is to be made, it should be made by the parties themselves, contract by contract.
- There is a distinct lack of clarity surrounding the use which the parties may make of Awards, even for what are essentially routine business purposes. This has been recognised, to an extent, by ARIAS US in its Rules. In the UK it would seem helpful to provide parties with a draft “model” clause to be incorporated/adopted by the parties as they think fit which clarifies that aspect for both parties’ benefit rather than awaiting further developments in the common law.
- In addition, it is appropriate to recognise that some Awards do address issues of market significance. Most ‘neutrals’ would agree that there is a case for publishing such Awards. The challenge is to ensure the right safeguards are put in place.
- The Committee believes that where there is disagreement between the parties on publication that needs to be dealt with promptly, the Tribunal itself should decide the issue, not the Courts, and it should do so against a clear test. Anonymization should also be required and the use of summaries is to be encouraged.
In response to these conclusions, an ARIAS (UK) Confidentiality Clause was produced. It is drafted as a clause to accompany an ARIAS Arbitration Clause but has been presented in such a way that:
- Parties can incorporate the whole clause in their contracts or omit, by deleting sub paras 3 to 5, the element discussed in the final bullet point above.
- Parties can, by adapting the opening phrase of sub para 1, adopt the whole or part of the clause after a dispute has arisen as a self-standing confidentiality regime. In that connection
- Panel members may, as a matter of case management, wish to raise the question of confidentiality with those appointing them.
- Supporting members may wish to circulate this to members of their firms engaged in arbitral disputes, for their/their clients’ consideration.
A copy of the ARIAS (UK) Confidentiality Clause can be viewed and downloaded here.