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Commercial users often resort to arbitration on the expectation that information in arbitral proceedings will be kept confidential. However, whether confidentiality is protected in arbitral proceedings is usually addressed under the law or rules applicable to the arbitral proceedings.

With respect to procedural rules, there are divergent approaches to the treatment of confidentiality. Many rules include explicit provisions imposing general confidentiality obligations on parties, arbitral tribunals, and sometimes even institutions (e.g. the Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre, and London Court of International Arbitration). Some other rules do not explicitly address the issue of confidentiality, but contain rules on the privacy of hearings (e.g. the International Chamber of Commerce and the UN Commission on International Trade Law.

The 2018 HKIAC Administered Arbitration Rules is an example of how institutional rules may provide parties with comprehensive confidentiality protections. The HKIAC rules contain express confidentiality provisions that broadly prohibit the parties, arbitral tribunal and HKIAC from disclosing any information relating to the arbitration. Article 45.1 of the HKIAC rules provides:

“45.1 Unless otherwise agreed by the parties, no party or party representative may publish, disclose or communicate any information relating to:

(a) the arbitration under the arbitration agreement; or

(b) an award or emergency decision made in the arbitration.”

The language of article 45.1 is broadly drafted and modelled on section 18(1) of the Hong Kong Arbitration Ordinance. The scope of article 45 covers a wide range of information – from the existence of the arbitral proceedings to all documents and information produced or submitted in the arbitration, including correspondence, written statements, evidence, procedural orders and awards.

Subject to the applicable law, if a party breaches its confidentiality obligation, the other party may bring a claim for damages in the arbitration, or seek interim relief from the arbitral tribunal under article 23 of the HKIAC rules to restrain the breaching party from disclosing further confidential information. It may also seek interim relief from the competent court.

In an arbitration seated in Hong Kong and administered by a qualified institution, a party may seek injunctive relief from the Hong Kong Court of First Instance under section 45 of the ordinance, or preservation of conduct from the mainland Chinese courts under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region. Parties may also opt out of the confidentiality provisions in the HKIAC rules if they so desire.

The confidentiality obligations in article 45 of the HKIAC rules apply not only to a party or its representative, but also to the arbitral tribunal and its secretary, emergency arbitrator, expert witnesses and the HKIAC. Given that the comparable clause in the ordinance only subjects the parties to an arbitration to the confidentiality obligation, the scope of application of the confidentiality obligation under the HKIAC rules is broader than that under the ordinance.

However, the duty of confidentiality is not absolute. Consistent with internationally recognised practice, the HKIAC rules provide for several exceptions:

“45.3 Article 45.1 does not prevent the publication, disclosure or communication of information referred to in article 45.1 by a party or party representative:

(a)(i) to protect or pursue a legal right or interest of the party; or

(ii) to enforce or challenge the award or emergency decision referred to in article 45.1;

in legal proceedings before a court or other authority; or

(b) to any government body, regulatory body, court or tribunal where the party is obliged by law to make the publication, disclosure or communication; or

(c) to a professional or any other adviser of any of the parties, including any actual or potential witness or expert; or

(d) to any party or additional party and any confirmed or appointed arbitrator for the purposes of articles 27 [Joinder of Additional Parties], 28 [Consolidation of Arbitrations], 29 [Single Arbitration under Multiple Contracts] or 30 [Concurrent Proceedings]; or

(e) to a person for the purposes of having, or seeking, third party funding of arbitration.”

Articles 45.3(a) to (c) are modelled on section 18(2) of the ordinance with some modifications, whereas articles 45.3(d) and (e) of the HKIAC rules are new additions. These exceptions were intended to strike a balance between safeguarding the confidentiality and the need for disclosure in exceptional cases.

Article 45.3(a) may be invoked, for example, where a party wishes to disclose information regarding the arbitration and award in subsequent enforcement proceedings. Article 45.3(b) pertains to the situation where the duty of confidentiality may be overridden by a legal obligation for disclosure to any authority.

For example, under the Hong Kong Securities and Futures (Stock Market Listing) Rules, an issuer’s application for the listing of securities must contain particulars and information which “is necessary to enable an investor to make an informed assessment of the activities, assets and liabilities, and financial position of the applicant”. This may encompass an obligation to disclose the existence of arbitration proceedings or the contents of the arbitral award. Article 45.3(c) allows a party or its representative to disclose arbitration-related information to a professional or any other adviser of the parties, including any actual or potential witness or expert.

Article 45.3(d) is a new provision introduced in the HKIAC rules to permit disclosures to any party, additional party, and confirmed or appointed arbitrator of the necessary information for the purposes of multi-party and/or multi-contract proceedings. These proceedings include the joinder of additional parties, consolidation of arbitrations, single arbitration under multiple contracts, and concurrent proceedings.

Disclosure under article 45.3(d) is necessary to ensure the proper functioning of multi-party and/or multi-contract proceedings, and to allow the relevant parties and arbitrators to receive the necessary information to comment or decide on the relevant request, and to participate in those proceedings.

Article 45.3(e) is also a new provision and modelled on section 98T(1) of the ordinance. This provision allows a party or its representative to disclose arbitration-related information to a person for the purposes of having or seeking third-party funding of arbitration. Such disclosure is necessary for a party to obtain third-party funding, and for the funder to monitor the arbitration, and assess the risks and potential profitability of the funding provided.

In addition to defining the scope of the confidentiality obligation and its exceptions, articles 45.4 and 45.5 also addresses the issues of deliberations of the arbitral tribunal and the publication of arbitral awards. The relevant parts provide the following:

“45.4 The deliberations of the arbitral tribunal are confidential.

45.5 The HKIAC may publish any award, whether in its entirety or in the form of excerpts or a summary, only under the following conditions:

(a) all references to the parties’ names and other identifying information are deleted; and

(b) no party objects to such publication within the time limit fixed for that purpose by the HKIAC. In the case of an objection, the award shall not be published.”

It is worth noting that although the HKIAC rules expressly allow the HKIAC’s publication of arbitral awards under certain conditions, no HKIAC award has been published at the time of writing.

The provisions on confidentiality under the HKIAC rules will be of assistance to parties to disputes involving confidential or sensitive information. Parties will enjoy greater protection if the seat of arbitration is in Hong Kong, where confidentiality not only applies to arbitration proceedings but also to relevant court proceedings and judgments in certain aspects as provided under the ordinance. Even if the seat of arbitration is in a jurisdiction where the duty of confidentiality is not expressly recognised, parties can still opt for confidentiality by adopting the HKIAC rules.

Wang Xiaojun is a counsel at the HKIAC. Deputy secretary-generals Yang Ling and Joe Liu, and intern Gao Yueyang, also contributed to this article

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