In Arbitration, Absolute Confidentiality Does Not Exist: The Exceptions...

Abstract
The paper discusses the implied duty of confidentiality in arbitrations through a comprehensive review of the Constitution of Kenya, Legislations and Court decisions. The paper argues that the duty is not absolute and is subject to several exceptions under certain circumstances, which it discusses in detail.?        

I. Introduction??

Confidentiality, other than flexibility is one of the perceived advantages of arbitration over court litigation. Parties often choose to arbitrate intoeep details of their dispute private. It is premised on the logic that private relationships mean private disputes. Recourse to the ordinary courts traditionally impedes privacy whereas arbitration allows the parties to sidestep the publicity of official court proceedings in matters that are very sensitive both in terms of public opinion as well as competitors. Confidentiality is generally understood as covering the very existence of the dispute and the commencement of arbitral proceedings, the course of the proceedings, and the?award.

This extends to the hearing, the documents and submissions generated (and disclosed) in the dispute. The Kenyan Arbitration Act 1995 is silent on the question of confidentiality. There is no statutory definition of confidentiality in the Act despite the parties having an implied duty to maintain the confidentiality of the proceedings. The principle of party autonomy as provided in sections 20 and 25 of the Arbitration Act gives the parties the right to agree on all procedural and evidential matters. The source of the obligation of confidentiality is the arbitration agreement— either by implication or through express confidentiality provisions.

However, the Nairobi Centre for International Arbitration Act 2013, enjoins directors, officers, employees, agents or any person who in the course of interaction with the Arbitration Centre established thereunder obtains access to any record, material, information or documents relating to the business of the centre which such person acquired in the performance of his duties or the exercise of his functions to divulge such information only under circumstances set out under the provisions of the Act. Section 15 goes further to provide for criminal sanctions in respect of anyone who contravenes the confidentiality clause. Likewise, Rule 34 of the Arbitration Rules of the Nairobi Centre for International Arbitration places a confidentiality obligation on the parties over the arbitral proceedings and the award such that the parties cannot divulge details of the proceedings or awards unless they agree to do so in writing, the parties are under a legal duty to do so, or to enforce or challenge the award.

The United Nations Commission on International Trade Law (UNICITRAL) Model Law from which the Kenyan Arbitration Act is premised does not say anything about confidentiality nor has no provision dealing with confidentiality. It gives importance to party autonomy and the drafters of the Model Law expressed that the parties are free to determine whether or not they want to impose the confidentiality obligation on themselves. The parties may accordingly incorporate such a clause in their agreement to arbitrate.

The UNCITRAL Arbitration Rules also do not have express provisions with regard to confidentiality except with respect to the award that can be made available to the general public only with the parties' consent. Therefore, the confidential nature of arbitration proceedings rests upon a rather weak legal foundation and that a party who for some reason wishes to publicise a dispute is unimpeded in doing so. Similarly, there is no statutory definition of confidentiality in the UK Arbitration Act 1996. The 1989 Report by the Departmental Advisory Committee on Arbitration Law (the DAC Report) states that this was a deliberate decision.

The drafters of the Act considered giving confidentiality a firm statutory basis in the Act, but the exercise proved too controversial and difficult. One issue was whether it was possible to give an accurate exposition of the principle of confidentiality in the abstract. Another concern was that the myriad of exceptions and qualifications to the principle of confidentiality made it difficult to formulate acceptable statutory guidelines. The DAC Report concluded by stating that, because the principles are unsettled, they are better left to the common law to evolve on a pragmatic case-by-case basis. It went on to indicate that if the whole matter were ever to become judicially resolved, it would remain possible to add a statutory provision by way of amendment to the Bill. As things stand, as a matter of English law, there is an implied duty of confidentiality in arbitration – making confidentiality a presumption.

From the above stated it is clear that the definition of the scope of the duty of confidentiality is a major problem. That is why so few definitions at the legislative and institutional levels have been attempted, and why the existing definitions are not completely successful.

Practitioners who do attempt to find a contractual definition quickly find out how difficult a mutually acceptable solution is to achieve, which is why, in practice, there are few model clauses available. In common law countries, attempts have been made to define the duty through the courts, mainly through the device of the implied term, but these?attempts have run into conceptual difficulties, although they have provided valuable insights into the nature and scope of the problem.

Moreover, confidentiality is not absolute and can be overridden in certain situations. Consequently, parties and arbitral practitioners should not automatically assume that privacy equates to absolute confidentiality of the arbitration itself, the proceedings and the award. Further, in today’s globalized world and market, the increasing demand for transparency in commercial activities is beginning to undermine this hitherto virtually untouchable principle of confidentiality. The fact that the parties involved in an arbitral proceeding could stipulate, modify, or, were called for, suppress confidentiality naturally it is also implied that confidentiality does not have to be an inherent characteristic of arbitration present in every single case.

It is against this backdrop that this article will discuss the presumption of confidentiality in arbitration and the instances where the duty of confidentiality can be overridden in arbitration. The article is divided into four parts. Part II will discuss in detail the presumption of confidentiality in arbitration. Part III will examine instances where the presumption can be overridden. Part IV concludes.

2. Presumption of Confidentiality

In order to better understand confidentiality, firstly, it is necessary to distinguish confidentiality from a like concept known as privacy. While both are two sides of the same coin, the difference is only in their scope and ambit. Privacy as opposed to confidentiality is a narrower concept and only refers to concealing information from third parties by disallowing them to participate in the arbitral proceedings. The objective of privacy is to repel any kind of third-party intervention in the arbitral proceedings.

On the other hand, Confidentiality refers to the obligation of not disclosing information concerning the arbitration to third parties. The duty of confidentiality extends not only in prohibiting third parties from attending the arbitration hearings but also in prohibiting them from the disclosure of hearing transcripts, written pleadings and submissions in the arbitration, the evidence adduced in the arbitration, materials produced during disclosure and as well as the arbitral awards.

Thus, it can be argued that confidentiality derives from privacy. The mere fact that third parties are automatically excluded from arbitrations implies that the parties to the dispute should not be allowed to disclose information obtained during the proceedings. Furthermore, the duty of confidentiality should not only be respected by the parties, but also by the arbitrators, the counsels, experts, interpreters, and any other person involved in the procedure. Indeed, if one reveals information outside the procedure, the principle of privacy would be meaningless, as it aims to keep the dispute out of the reach of third parties. In fact, both principles are linked to each other, to the extent that one has no sense without the other. It may therefore be assumed that confidentiality is an implicit obligation that derives from the very nature of arbitration, as a private and confidential method of dispute resolution.

There are numerous advantages conferred by confidentiality in arbitration. For example, confidentiality reduces the possibility of damaging continuing business relations between the parties and avoids setting adverse judicial precedents. Additionally, the process offers parties the freedom to make arguments that they would be reluctant to make in a public forum. The?information contained in the arbitration filings can be critical as they may contain sensitive commercial information such as profit margins, pricing policies, production costs, know-how or trade secrets, the disclosure of which could harm one or both parties involved in the arbitration. It could also expose the financial situation of a company or the existence of a defective product which could compromise the image of a company in front of the public and favour competitors.?

Duties of confidentiality in arbitration can arise contractually: by specific party agreement or by the incorporation of institutional arbitration rules that contain confidentiality obligations. Negotiation of detailed confidentiality provisions in a dispute clause at the time of contract negotiation is usually not easy. A party at contract negotiation, in the relationship-building stage of a commercial venture, is usually not disposed to predict or discuss what types of disputes are likely to arise, or what its confidentiality position would be. Negotiation of mutual confidentiality obligations once a dispute has arisen is also fanciful in the face of animosity between disputing parties. Consequently, arbitration agreements are often silent on the confidentiality obligations attached to them.

Whilst it is possible to insert specific confidentiality provisions into an arbitration agreement, it is not difficult to agree with a contention that successfully negotiating a functional contractual confidentiality clause is virtually impossible. If arbitral institutions and national legislatures are unable to provide adequately for the protean nature of exceptions to confidentiality, it is perhaps wishful to expect parties, in heat of the moment?negotiations to be able to do so, leave alone agree on sanctions (for breach of confidentiality) provisions. However, the specific needs for confidentiality can be addressed during the arbitral proceedings at an early directions meeting by parties and/or the tribunal of its own motion and an order (ideally a consent order) be issued laying out the parameters of confidentiality applicable to the particular arbitration.

That notwithstanding, a breach of the confidentiality obligation is a breach of the agreement that sounds in damages. Breaches may be restrained by an injunction or censured by declaration. Assessing damages for breach will often be difficult. However, it is not necessary to quantify the damage in order to seek an injunction. The difficulty of the assessment may allow a court to more easily conclude that damages are not a sufficient remedy. Given the uncertainty of potential damages to be awarded, parties would be imprudent to disclose arbitration materials in subsequent proceedings without first obtaining the leave of the court or the tribunal. Disclosure in such circumstances is unlikely to improve the party’s standing before the forum in the subsequent proceedings and may result in a significant damages award.

Moreover, common law steps fill in the gaps on confidentiality left by statute law. Section 3 (1) of the Judicature Act states the ‘hierarchy of norms’ that is applicable in Kenya. Common law applies in Kenya so long a “statute does not apply, and so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.” The doctrine of precedent is one of the tenets of common law. It states that decisions of higher courts on disputable issues bind the lower courts.?

This ensures predictability of the law, and “liberates courts from considering every disputable issue as if it were being raised for the first time.”

As stated above the Kenyan Arbitration Act is silent on the issue of confidentiality. Presumably, this issue is for the parties to determine. The presumption finds support in the case of Nedermar Technology BV Ltd v KACC & AG. The case involved a contract on security installations in Kenya which had been fully performed save for the issue of payment by the government to the Applicant. The government had after the completion of the installation entered into a second contract with the Applicant for payment of the contract sums which the second contract it breached. The Applicant filed for arbitration against the government at the Hague as provided for in the second contract. While the arbitration proceedings were ongoing, the defunct Kenya Anti-Corruption Commission sought evidence, materials and documents related to the second contract on the basis of investigations into corruption. The Applicant commenced judicial review proceedings against the Kenya Anti-Corruption Commission and the Attorney General. In a ruling on an application for interim orders against the investigations by the Kenya Anti-Corruption Commission – which orders were later granted in the final ruling on the petition - the court had this to say about the confidentiality of the proceedings at the Hague:

The other reason for the suitability of the matters falling within the ambit of the Arbitral Tribunal is the confidentiality of the Arbitral process. The Arbitral process whether international such as in this matter or domestic is absolutely confidential.

After some differences of judicial opinion in the English courts on various issues surrounding the implied duty of confidentiality, a definitive statement finally emerged from the English Court of Appeal in the case of John Forster Emmott v Michael Wilson & Partners Ltd (“Emmott”), which seems to have settled the?juridical basis of the implied duty. In Emmott, the Court laid down the following principles:

a) The obligation of confidentiality in arbitration is implied by law and arises out of the nature of the arbitration.

b) This obligation is a substantive rule of law masquerading as an implied term.

c) It imposes an obligation on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration, or disclosed or produced in the course of the arbitration, or transcripts or notes of the evidence in the arbitration or the award, and not to disclose in any other way what evidence has been given by any witness in the arbitration.

d) The content of the obligation may depend on the context in which it arises and on the nature of the information or documents in question; the limits of the obligation are still in the process of development on a case-by-case basis.

e) The principal cases in which disclosure will be permissible are where: (i) there is consent (express or implied) of the parties; (ii) there is an order or leave of the court; (iii) it is reasonably necessary for the protection of the legitimate interests of an arbitrating party; and (iv) the public interest or the interests of justice require disclosure.

Whatever may be the juridical basis of the implied duty, it is clear that the duty cannot be an absolute one. Several practical situations immediately come to mind that call for exceptions to the duty. The next part of the paper will discuss in detail the exceptions to the implicit duty of confidentiality.

3. Exceptions to the Duty of Confidentiality?

The obligation of confidentiality is subject to several exceptions under certain circumstances. For example, when disclosing the existence of arbitration is reasonably necessary to protect the legitimate interests of one of the parties visà-vis third parties, or to enforce or protect a right against a third party acting as a plaintiff or defendant. It has also been stated that there is no violation of the duty of confidentiality if certain information related to the arbitration is communicated but there is a legitimate reason to do so. However, Consent is the simplest—if the parties to the arbitration agree to the disclosure, it is permissible. Instances, where the implied duty of confidentiality can be overridden, are discussed in detail below:?

a) Consent of the parties

As discussed above, the consent of the parties to public disclosure of the existence of arbitration as well as arbitration-related information is the simplest exception to the implied obligation of confidentiality. The consent of the parties can be written into the substantive agreement between the parties, or given after a dispute has arisen in a post-dispute arbitration agreement. The implied consent of the parties can arise from the parties’ conduct after a dispute has arisen.

An example of this is where an arbitrating party applies to the court for the removal of an arbitrator, in which case that arbitrating party implicitly gives consent to the challenged arbitrator to disclose matters concerning the arbitration to the court. A further question that arises in this context is whether an application to court arising out of arbitration, without an arbitrating party, asking for those proceedings to be held in camera amounts to consent to public disclosure of all facts and documents put before the court.

b) Disclosure required by court or law

Parties can bring arbitration proceedings into the public eye when seeking from Court interim measures, stay of proceedings, challenges to arbitrator’s appointment, appeals and reviews or when commencing enforcement proceedings. Papers filed become part of the court record. It is difficult to determine how any matters may remain confidential in view of the fact that the court process is a public process, with persons not parties to the arbitration allowed to access court records. There is no express rule applying confidentiality to arbitration proceedings before the courts. It is at the court’s discretion whether or not details of an underlying arbitration will be made publicly available.

Courts also have inherent and statutory jurisdiction to compel parties to litigation to produce documents and adduce evidence which overrides the implied obligation of confidentiality.

Moreover, statutory provisions may override any obligation of confidentiality that parties may have provided for in an arbitration agreement and compel disclosure of arbitration-related documents. If a party is under an affirmative legal obligation to disclose confidential materials—for instance, a statutory requirement to report crime, fraud or regulatory infractions—then this will trump confidentiality. Similarly, mandatory reporting requirements to national regulatory bodies or to a stock exchange may also permit disclosure. Once in the public domain, the materials may also be used in private litigation. However, this is often an oblique and uncertain way to seek to use the arbitration materials.

In addition, courts have previously held that if the parties to the earlier arbitration and the subsequent arbitration are the same, the use of materials from the earlier arbitration will not conflict with the obligation of confidentiality. In such cases, confidentiality is maintained because the parties are the same and the proceedings are private. However, this exception does not apply to subsequent proceedings involving a related or parent company of a party which are distinct legal entities.

C. To protect or enforce legal rights

?Article 35 (1) of the Kenyan Constitution allows any citizen access to information held by the State and any other person if such information will aid in the protection of the citizen’s right or fundamental freedom. A citizen can apply to the court to access the evidence, materials, notes and awards in an arbitration that would otherwise have been shielded by confidentiality.

The Constitution seems to give carte blanche to any citizen regardless of whether such citizen requires it for enforcement, exercise or protection of any right or fundamental freedom. This becomes more worrying if seen in the context of an arbitration in which the government or statutory corporations are a party.

Confidentiality clauses or agreements in arbitration can therefore be ousted on an application by a citizen who has only to show that the access to evidence, transcripts, proceedings and awards in a domestic or international arbitration whose juridical seat is Kenya will be used to further a right or freedom. Such rights may include the right to access justice by using such documents to file a suit in court. The same can be said of an applicant who seeks correction of what he deems or perceives as untrue or misleading information that affects him. But perhaps the most open-ended provision is that which permits any citizen to require the state to publish and publicise “any important information affecting the nation”.

However, Section 6 of the Access to Information Act, 2016 lists various limitations to this right under Article 35 as provided under Article 22. As Lady Justice Ngugi stated in Nairobi Law Monthly Company Limited v KENGEN & 2 others:?

As correctly submitted by the 1st Interested Party and the Amici Curiae, the reasons for non-disclosure [of the information under Article 35 (1)] must relate to a legitimate aim; disclosure must be such as would threaten or cause substantial harm to the legitimate aim, and the harm to the legitimate aim must be greater than and override the public interest in disclosure of the information sought. It is recognised that national security, defence, public or individual safety, commercial interests and the integrity of government decision-making processes are legitimate aims which may justify nondisclosure of information.?

Likewise, if arbitration materials are “reasonably necessary” to protect the interests or vindicate the rights of a party, they may be disclosed in subsequent proceedings. The exception is limited to the parties to the original arbitration. This exception is particularly applicable when a party seeks to use arbitration?materials in a subsequent proceeding. Arbitration and litigation, by their very nature, affect the legal rights of the parties.

While on its face, this exception seems quite broad and flexible, courts have interpreted the “reasonably necessary” standard narrowly. Materials must be “unavoidably necessary for the protection of the rights of the parties”, not “merely helpful”, in order to satisfy the test. Courts have been concerned that a lax application of the test would permit the exception to undermine the mutual intention of the parties that arbitration materials are confidential.

d) Public interest/interests of justice exception

In Kenya, it would appear that due to the colonial heritage of a common law legal system, the English position on implied confidentiality was retained. That was until 2010 when Kenya promulgated a new constitutional order which places the Constitution as the basis of rule of law and governance in Kenya. Whereas the Constitution enjoins courts and tribunals to promote alternative forms of dispute resolution including arbitration, it also lists transparency and accountability as applicable values and principles in the enactment, application or interpretation of any law in Kenya.

Further, every citizen now has the constitutionally-enshrined right of access to information, although it can be limited. With such provisions, the previously implied attributes of privacy and confidentiality as discussed above would appear to have had their range clipped. In Senator Johnstone Muthama v Tanathi Water Services Board & 2 others, the High Court held that arbitrations should be open to the public just like litigations,?especially where the dispute involves a public entity. In learned judge Odunga’s view, such a public hearing furthers the value of transparency as is required under Article 10 of the Constitution.

The core of the exception relates to matters of public importance involving the exercise of public power or statutory authorities, it has been extended to situations where disclosure is necessary for the subsequent court or tribunal to have a proper understanding of the matter.

The public interest exception is potentially very broad. One commentator has expressed concern that the exception may overwhelm the general confidentiality obligation. However, the public interest exception is likely to be difficult to establish in practice, other than in cases involving government, statutory corporations or matters of truly significant public interest. An appealing aspect of the public interest exception is that it cannot be excluded by the parties’ agreement. Despite the autonomy of the parties to define their bargain and the arbitration tribunal’s power to define its jurisdiction, courts retain the power to intervene.

Lastly, if a party has given inconsistent evidence in two separate arbitrations, it is clear that the interests of justice (sometimes called public interest) would require disclosure of arbitration documents in spite of any obligation of confidentiality. Where a witness is proved to have expressed himself in a materially different sense when acting for different sides, that would be a factor which should be brought out in the interests of individual litigants involved and in the public interest due to the interests of the fair disposal of the proceedings.

This issue arose in the case of London & Leeds Estates Ltd. v. Paribas Ltd. The question that arose in this matter is whether the parties in an arbitration owe any duty of confidentiality to an expert witness in an arbitration where the witness was found to have given evidence that was inconsistent with the evidence that he had given in previous arbitrations. London & Leeds arose out of a rent review arbitration between the plaintiff landlord and the defendant tenant. The landlord retained an expert valuer (the “Expert”) who gave evidence on the office rental market in London’s West End relevant to the review date of April 1991. The Expert was also involved in two previous arbitrations, the “Euston Tower” arbitration and “Delta Point” arbitration, in which the Expert had given contrary expert evidence on behalf of the tenants. Counsel for the defendant tenant in this arbitration had also been counsel for the tenant in the Euston Tower arbitration and had cross-examined the Expert on the evidence he had given in the Euston Tower arbitration. The defendant’s expert in this arbitration was the arbitrator in the Delta Point arbitration, but he had completed and published his award, and the only ancillary matters left outstanding were costs and interest. Subsequently, the defendant tenant issued subpoenas addressed to the Expert relating to his Euston Tower and Delta Point proofs (witness statements), and to the defendant’s expert relating to the Expert’s Delta Point proof. The plaintiff landlord and Expert applied by separate summons to set aside the subpoenas addressed to the Expert and the defendant’s expert.

Mance, J. held that the plaintiff landlord had no locus standi in the matter as it was not a party to any confidential relationship involving the information sought by the subpoenas. However, Mance, J. went on to hold that the Expert had locus standi to object to the subpoenas as he was owed a duty of confidentiality by the parties to the Euston Tower and Delta Point arbitrations in respect of his evidence. The issue before Mance, J. was whether it was necessary for the fair disposal of the action or for the saving of costs for the duty of confidentiality to be overridden. Mance, J. held that, where a witness was proved to have expressed himself in a materially different sense when acting for different sides, that would be a factor which should be brought out in the?interests of individual litigants involved and in the public interest. Mance, J., therefore, concluded that the duty of confidentiality attached to the proof in the Euston Tower arbitration was overridden in the interest of the fair disposal of the proceedings.

It is useful to note that there is an issue of whether the interest of justice is an exception in itself, or whether it is part of a wider public interest. The English courts appear to be divided in their opinion on this.

e) With leave of court

Although various cases have recognized the disclosure of arbitration-related documents with leave of court as an exception to the obligation of confidentiality, the question remains as to whether or not a court or tribunal order for disclosure overrides the obligation of confidentiality. If a party is put in a “potentially extremely hazardous” position and cannot decide whether to disclose documents in doing so he may therefore be in breach of his duty of confidentiality to the opposite party to the arbitration or be accused of failing to disclose a relevant document in his possession which would be necessary for fairly disposing of the litigation, he should first write to his opposite party in the arbitration inviting consent to disclose; if this is not forthcoming, he can decline to let the third party inspect the same without first obtaining an order of a court.

The source of the problem is the general lack of power to consolidate two arbitrations, which is generally viewed as a deficiency in the arbitral process that is an inevitable consequence of the principle of the consensual basis of arbitral jurisdiction.

However, the English Court of Appeal in Emmott expressed the view that the court does not have a general power to order or give permission for the disclosure of arbitration-related documents when arbitration is underway. Thomas, L.J. considered that leave of the court is a matter which arises in circumstances where the court is deciding the issue as between a party to the arbitration and a stranger (as where the court is ordering disclosure in litigation of arbitration documents in the possession of one party) or in circumstances where the arbitration has come to an end. Thomas, L.J. further considered that:

[i]t is difficult to see readily how it is consistent with the principles in the 1996 Act that there is to be an implied term which requires resort to the court during the currency of the arbitration for the court to determine these issues as between the parties to the arbitration … I cannot accept that the implied term of confidentiality should be formulated to confer by this means jurisdiction on the court; it would be contrary to the ethos and policy of the Act

f) Where there is an obligation of disclosure

Companies owe an obligation of disclosure to various stakeholders who would, according to conventional theory, be strangers to the arbitration, but who certainly have a legitimate interest in the progress and outcome of the arbitration. Such stakeholders include; shareholders; bondholders; beneficiaries of trust corporations; any stock exchange or professional body to which an arbitrating party belongs; joint venture partners or anyone covered by the uberrimae fidei principle; a potential new shareholder acquirer conducting due diligence; and insurers under an indemnity policy covering the subject matter of the arbitration. Likewise, insurance and reinsurance companies may owe obligations of disclosure to each other. Parties who are in contracts with back-to-back obligations may also be subject to an obligation of disclosure.

g) Everyday situations

The media is always reporting on cases of arbitrations. The authorities do not discuss everyday situations which would most certainly be exceptions to the obligation of confidentiality, but one can conceive of a myriad of such everyday situations. Some examples of these situations include: discussing an arbitration with members of the family (after swearing them to secrecy); discussing an arbitration with lawyers in the same firm to check for conflicts; discussing an arbitration with potential arbitrators; disclosing details of arbitration to an immigration office in a visa application.

Arbitral confidentiality is, as the Lord Mayor observed is “overrated”. Why? Because the market tends to know which parties are involved in which arbitrations and what the arbitration is about. He recalled in one of the market conferences on the UK Arbitration Bill in July 1995, a very well-known member of the insurance community pointed out how easy it was to acquire any award in the insurance market. This shocked the purists but reflected reality. And then even when confidentiality and privacy are maintained during the arbitration, it does not stay so for long, as information leaks and private markets in the trade of arbitral decisions develop.

h) Where disclosure is made to professional or other advisers and persons assisting in the conduct of the arbitration

Where the disclosure of arbitration documents is made to professional or other advisers and persons assisting in the conduct of the arbitration, this should be treated as a legitimate exception to the obligation of confidentiality. Any disclosure to lawyers who are not involved in the arbitration should not be a problem because lawyers are subject to legal professional privilege in any case. Any disclosure made to persons assisting in the conduct of the arbitration should also be an exception to the obligation of confidentiality.

Such persons include potential witnesses, both factual and expert; private investigators; executives or in-house counsel of affiliate companies; secretaries and personal assistants to persons working on the arbitration even if not employees of the arbitrating party (e.g., from related or affiliated companies); and independent providers of business services (transcribers, interpreters, photocopiers, hotel business centers, couriers).

Conclusion

As discussed in the paper, Confidentiality is one of the perceived advantages of arbitration over court litigation. Parties often choose to arbitrate in order to keep details of their dispute private. There is no statutory definition of confidentiality in the Arbitration Act despite the parties having an implied duty to maintain the confidentiality of the arbitral proceedings as the parties have the right to agree on all procedural and evidential matters. The source of the obligation of confidentiality is the arbitration agreement; either by implication or through express confidentiality provisions. However, as the article has shown this implied duty is subject to several exceptions under certain circumstances.?

As appears in the latest ADR Journal, Vol. 10 (2022) Issue 3, published by CIArb Kenya. Download the full journal here: https://ciarbkenya.org/journals/