The obligation of confidentiality and the scope of its exceptions is one of the intractable problems in international arbitration because there is no uniformity of practice among national laws and also the rules of arbitral institutions. The problem with the latter is also that, although many institutional rules provide for the confidentiality of the proceedings, virtually all have framed the exceptions to confidentiality in absolute terms, with no referee to decide when a particular exception applies or when a new exception ought to be created. The centrepiece of this article is a Model Procedural Order on confidentiality which is designed as a framework to address, among other things, that defect. Based on a survey of the rules of the various arbitral institutions, it also sets out in a practical manner the various situations in which an exception to confidentiality may need to be invoked, thus making it suitable for implementation as a customizable solution to confidentiality (since the Model Procedural Order is in the form of a template which may be tailored to meet the particular requirements of the case) in either ad hoc arbitrations or where the provisions on confidentiality contained within the rules of the arbitral institution are replaced wholesale. The Model Procedural Order raises important legal issues associated with its implementation for consideration - these include questions going to the jurisdiction of the arbitral tribunal to make procedural directions directing the preservation of confidentiality upon terms, whether parties continue to be bound by the arbitral tribunal's directions on confidentiality even after the termination of the arbitration and the limit of the powers of the arbitral tribunal to sanction breaches of confidentiality. These and other concerns are addressed below.
Journal of International Arbitration