GCIA 2015 Presentation

GCIA Group 2 presentation

Transcript

1. GCIA 2015 ARBITRATION LAW PRACTICE GROUP 2 PRESENTATION 25 March 2015
2. GROUP 2 MEMBERS • BENEDICT ANDREW LIM • CHRISTOPHER ANAND DANIEL • CHUN WAI SENG • GOH SWEE ANN ANNA • HARISH PILLAY • KAMALANATHAN KARTHIK GCIA 2015 Group 2 2
3. DISCUSSION TOPIC “Examine critically the principles and rules governing confidentiality in arbitration.” GCIA 2015 Group 2 3
4. DEFINITIONS • Oxford dictionary defines confidentiality as “The state of keeping or being kept secret or private” or “a situation in which you expect somebody to keep information secret” GCIA 2015 Group 2 4
5. CONFIDENTIALITY IN ARBITRATION • Confidentiality is one of the fundamental, if not the most compelling, reason for which parties choose to arbitrate. • While confidentiality in arbitrations is generally implied in law, parties may: – specifically agree to bind each other with an obligation to maintain confidentiality, and as to its scope, prohibiting the disclosure of information and the use of documents beyond the arbitral process. • Maintaining absolute confidentiality is challenging, and there are some broad exceptions. GCIA 2015 Group 2 5
6. MULTI-JURISDICTION VIEWS BURDEN OF CONFIDENTIALITY UNITED KINGDOM POSITION AUSTRALIAN POSITION SINGAPORE POSITION IMPLIED OBLIGATION • Implied obligation • Exception by consent or • Implied by Custom or Business efficacy. • As a Matter of Law • Implied Obligation • Similar to UK position • “reasonable necessity” applies only for on- going arbitration NO OBLIGATION • No implied duty of confidentiality • Public interest • Statutory power of elected officials • Treatment of arbitral documents similar to documents in litigation GCIA 2015 Group 2 6
7. UNITED KINGDOM’S CASE LAW • Dolling-Baker v Merrett – Pivotal in setting out the English position. – an implied obligation on all parties to an arbitration – not to use or disclose all arbitral documents, except with the consent of the other party or with leave of court. – "the fact that a document is used in an arbitration does not confer on it any confidentiality or privilege which can be availed of in subsequent proceedings. If it is a relevant document, its relevance remains.“ • Hassneh Insurance Co of Israel & Ors v Steuart J Mew – contractual term implied by custom and business efficacy. – Scope limited by a reasonable bystander who would not impose an obligation that is so wide as to hinder the validity of the arbitral award or its enforcement. GCIA 2015 Group 2 7
8. UNITED KINGDOM’S CASE LAW • Ali Shipping Corporation v Shipyard Trogir – regarded the obligation of confidentiality as a matter of law. – It held that disclosure is permissible if it is reasonably necessary for the protection of the legitimate interests “of the arbitrating party” GCIA 2015 Group 2 8
9. AUSTRALIA’S CASE LAW • Private nature of arbitration did not impose the obligation of confidentiality on parties in terms of disclosure and they do not recognise an implied duty of confidentiality. • Esso Australia and the others v Plowman. – A very public dispute in relation to natural gas contracts – Arguably a public interest exception, which appears to be recognized under English law, might have been a better approach to achieve the same result. • The Australian court's view of confidentiality is confined to treatment of arbitral documents and to accord them the same care as documents in litigation. GCIA 2015 Group 2 9
10. SINGAPORE CASE LAW • Singapore's position is more closely connected to the English position: – All arbitral proceedings and it's documents as confidential – the obligation of confidentiality is an implied term – Myanma Yaung Chi Oo Co Ltd v Win Win Nu – Disclosure could occur with the consent of the other party or by order or leave of the court where it was reasonably necessary or where it was in the interests of justice – The application to disclose using the "reasonable necessity" exception is for on­going arbitration proceeding GCIA 2015 Group 2 10
11. INTERNATIONAL RULES • Most institutional rules and codes of ethics for arbitrators recognise and outline a duty of confidentiality. – Rule 35 of the SIAC Rules – Rule 7.1 of the SIAC Code of Ethics for an Arbitrator – Rule 9 of the IBA Rules of Ethics, and – Article 22 (3) of the ICC Rules. GCIA 2015 Group 2 11
12. INTERNATIONAL RULES • SIAC Rules governing confidentiality: – Rule 35.1 The parties and the Tribunal shall at all times treat all matters relating to the proceedings and the award as confidential – Rule 35.2 A party or any arbitrator shall not, without the prior written consent of all the parties, disclose to a third party any such matter except:  For making an application to the court to enforce or challenge an award;  To comply with an order or a subpoena issued by a court;  To pursue or enforce a legal right or claim;  In compliance with the laws of any State which are binding on the party making the disclosure;  In complying with the request/requirement of any regulatory body or other authority;  Pursuant to an order by the Tribunal on application by a party with proper notice. – Rule 35.3 explains the “matters relating to the proceedings” to mean the existence of the proceedings, the pleadings, evidence and other materials in the arbitration proceedings and all other documents produced by another party in the proceedings, but excludes any matter that is otherwise in the public domain. GCIA 2015 Group 2 12
13. INTERNATIONAL RULES Rules governing confidentiality from IBA and ICC – IBA Rules of Ethics (9) - [governing conduct of arbitrators]  The deliberations of the arbitral tribunal, and the contents of the award itself, remain confidential in perpetuity unless the parties release the arbitrators from this obligation.  An arbitrator should not participate in, or give any information for the purpose of assistance in, any proceedings to consider the award unless, exceptionally, he considers it his duty to disclose any material misconduct or fraud on the part of his fellow arbitrators. – Article 22 Section 3 of ICC Rules stipulates that “upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information”. Hence, confidentiality is left to the agreement of the parties to decide… GCIA 2015 Group 2 13
14. SCOPE OF CONFIDENTIALITY • Extends from the time when the parties agree to arbitrate up to enforcement of any award. • Challenges may also be raised with regard to disclosure or usage of such information so generated by one party in the arbitration proceedings if this information is to be used in similar but in other arbitral proceedings. • In the Rowe arbitration, European Reinsurance sought disclosure of the Boyd arbitral award to raise a plea of issue estoppel, that is, a defence to raise an issue that was previously litigated and decided, to be raised again in a different cause of action between the same parties. The Privy Council allowed the plea. • The persons who are generally bound by confidentiality are the arbitrator, the parties, their respective counsel, and possibly witnesses. GCIA 2015 Group 2 15
15. SCOPE OF CONFIDENTIALITY • The obligation of confidentiality covers documents created for the purposes of the arbitration, such as pleadings, witness statements, transcripts of evidence, written arguments, the award, and correspondence between the parties and the arbitrator in the course of the arbitration. • In Singapore, even challenges to awards and other proceedings ancillary to arbitrations will be heard in camera if one of the parties requests it. Judgments are then reported with the names of the parties anonymised or redacted. • Documents disclosed for the arbitration are also subject to a form of confidentiality, in the sense that such documents cannot generally be used outside of the arbitration without permission of the disclosing party or the arbitrators. This will not apply to documents that the party that wishes to use the documents outside of the arbitration had even before disclosed by the other party. GCIA 2015 Group 2 16
16. EXCEPTIONS TO CONFIDENTIALITY There are exceptions to the obligation of confidentiality, the main ones being: 1. Consent; 2. To protect a legitimate interest; 3. To challenge or enforce an award; 4. With leave of Court; or the arbitrators 5. Disclosure is required by law; 6. Public interest; and 7. Disclosure to regulators is required. GCIA 2015 Group 2 17
17. CONCLUSION • One of the potential advantages of arbitration is that it is private. • Key pillars of confidentiality in arbitration: – Third parties can be prevented from observing the proceedings. – Parties to the arbitration can contract to prevent each other from disclosing arbitration communications to third parties. – Arbitrators are ethically bound to preserve this confidentiality unless otherwise required by law. • In most jurisdictions, confidentiality is only an implied obligation and is subject to some broad exceptions. • Parties to arbitration should not assume that the existence of arbitration presupposes that the proceedings, pleadings, documents disclosed and evidence in the arbitration, and the award will be kept absolutely confidential. GCIA 2015 Group 2 18
18. THANK YOU QUESTIONS AND ANSWER GCIA 2015 Group 2 19