ARBITRAL CONFIDENTIALITY AND THE COURTS
The England and Wales Law Commission’s recent review of the Arbitration Act 1996 – the primary piece of legislation regulating arbitration seated in England and Wales – highlighted an interesting tension in relation to confidentiality in arbitrations. The review acknowledged that, for many arbitration users, the confidentiality of arbitral proceedings is one of the key attractions of arbitration as a dispute resolution mechanism. However, at the same time, the report noted that the approach to confidentiality in arbitration is far from uniform and there has been an increasing “trend towards transparency”.
The recent Commercial Court decision in Mordchai Ganz v. Petronz FZE and another provides important guidance on how the courts will address confidentiality of arbitral proceedings in the context of the parties’ desire for confidentiality and the potentially competing need for transparency. In that case, the court was asked to determine whether a judgment which concerned an arbitration award should be published, or whether the judgment should be handed down privately to maintain the parties’ expectation that their arbitration would be confidential. The court ultimately held that the judgment should be published.
This article discusses the court’s approach in Mordchai and what practical steps parties can take to try and protect the confidentiality of arbitral proceedings.
The court approach: a delicate balance
The issue in Mordchai concerned specifically whether a High Court judgment dismissing a challenge to a London Court of International Arbitration (LCIA) arbitral award should be published or if it should be handed down in private. The case arose out of an LCIA arbitration, initiated in December 2017, by Mordchai Ganz against Petronz FZE and Abraham Goren regarding a share purchase agreement.
Jul-Sep 2024 issue
WilmerHale