Which Law Governs Confidentiality in International Commercial Arbitration?

Many practitioners consider confidentiality to be one of the principal advantages of choosing arbitration as a means of dispute resolution. Accordingly, major disputes between the parties are less likely to attract public attention, thereby safeguarding their commercial interests. However, a closer examination of confidentiality in commercial arbitration raises several legal questions. If confidentiality is to be effectively protected, it is first necessary to determine the scope of the relevant obligation, the consequences of its breach and, ultimately, the law governing such matters. This gives rise to the following question: which law should govern questions of confidentiality in commercial arbitration?

This article proposes a categorisation of confidentiality issues in order to address the foregoing question. The author argues that confidentiality issues should first be distinguished between procedural and substantive matters. The author further proposes that, as a general rule, procedural issues should be governed by the lex arbitri, whereas substantive issues should be governed by the law applicable to the contract or respective agreement. To substantiate this proposition, the article will first examine the conceptual foundations of confidentiality in arbitration and, second, discuss the categorisation of confidentiality issues. Finally, the potentially applicable laws will be analysed and the appropriate governing law will be determined with respect to procedural and substantive confidentiality issues.