The Analytical Study of Practical Solutions for the Protection of Confidential Information in Arbitration

One of the most important benefits of arbitration as a dispute resolution method is the preservation of confidential information of the disputing parties. Apart from the theoretical issues regarding the principle of confidentiality, its obligors and guaranteeing the implementation of the said principle, practical solutions for maintaining confidential information in arbitration should be considered because of the different demands and desires of parties, different arbitration institutions and arbitrators, variable trust of parties in the arbitrator, the different legal positions and the specific circumstances of each case, require that the various ways of enforcing the principle of confidentiality be identified for the parties and the arbitrators, and that practical solutions be offered to them in a flexible manner. In this article, an attempt has been made to study the existing solutions in this regard by analyzing the rules and procedures in arbitrations. There are several main strategies to protect confidential information in arbitration: "Strategies to restrict access to confidential information", "Strategies to prevent the disclosure of confidential information in the arbitration process" and "Strategies to prevent the disclosure of confidential information in arbitral award". Certainly, the conclusion of this article is not to prefer any of these strategies in the field of confidentiality in arbitration over another, and even the use of a combination of such methods can further meet the needs of the parties to the arbitration in terms of maintaining confidentiality. Finally, the present article concludes that limiting the access of arbitrator to the confidential information should not impede issuing fair award, and in this regard, it is suggested that important confidential information can be available to arbitrators or only the presiding arbitrator. Not mentioning evidence based on confidential information in the arbitral award is logical only to the extent that it does not make troubles in the stage of challenge, recognition and enforcement of the arbitral award. Restricting access to confidential information should not violate the right of the parties to the fair trial, and third-party intervention to prevent disclosure of information is possible only in exceptional cases, because the arbitrator himself/herself is generally considered an impartial and expert third party. The fundamental solution is that legislators and regulators of arbitration rules should seriously and in detail include practical solutions for the protection of confidential information in the mentioned regulations. At present, and before these changes are implemented, what is proposed is that these solutions can be preferably mentioned in the initial arbitration agreement or the terms of reference.