Wilson v Emmott (March 2008) concerned an appeal against an order for disclosure in court proceedings in NSW and BVI of documents generated in an English arbitration involving the same parties.
The Court of Appeal refused the appeal concluding that, while the conduct of arbitrations is private, that did not mean that arbitrations remain private for all purposes. Despite there being allegations of a commercially sensitive nature, disclosure was required in the interests of justice (which were not limited to the interests of justice in England) that foreign courts would not be potentially misled, particularly where the cases being pursued in the foreign courts raised the same or similar allegations.
Summarising the current authorities in the area, the Court identified four cases in which disclosure would be permissible: (i) where there is consent, implied or express; (ii) with leave or by order of the court; (iii) where it is reasonably necessary for the protection of the legitimate interests of an arbitrating party; and (iv) where the interests of justice and/or the public interest requires it.
In this context, there are three broad points of principle. Firstly, the existence of an arbitration dispute has never, in practice, been confidential. Secondly, save for the exceptions in Emmott, the parties' cases in an arbitration are subject to confidentiality unless a party applies to the court (at which point there is a risk that confidentiality will be compromised with publication of the judgment). Thirdly, save in rare cases where allegations of perjury arise, the evidence in an arbitration will almost always be protected by confidentiality.
The primary motivation in choosing to arbitrate should not be the desire to maintain confidentiality. In fact, particularly with shipping and commodity arbitrations, it is often the desire for a specific expertise or for informality of procedure which informs a party's decision to arbitrate.
While concerns may be raised for England's reputation as an arbitration seat if it is thought that, where an application is made to the court, there is a risk of private arbitrations losing their shield of confidentiality, the same may also be said if the body of available English legal precedent stands still as a result of the confidentiality rule being applied too rigidly.
The full article "Arbitration conduct can be disclosed - UK Court of Appeal" was published in Insurance Day, on Friday 18 April 2008
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
