Confidentiality and transparency in arbitral applications - Nevil Phillips

Tue, 27 August, 2019

This article was first published in the Practical Law Arbitration Blog and can be found here.

The extent to which confidentiality debars disclosure or inspection of documents, or an award or associated document, in arbitration proceedings has long fuelled debate within the law reports.

This has been the case in three differing contexts:

  • Applications to the court by a non-party (A) for sight of documents from an arbitration between B and C: see, for example, Dolling-Baker v MerrettLondon and Leeds Estates Ltd v Paribas Ltd No (2), and Glidepath BV v Thompson.
     
  • Applications to the court or to an arbitral tribunal by party A as against party B for permission to use in arbitration or court proceedings (between A and C) documents from the arbitration between A and B: see, for example, Ali Shipping v Shipyard Trogir and Emmott v Michael Wilson & Partners Limited.
     
  • Publication and anonymisation of documents and determinations in arbitral applications before the courts (for example, challenges under sections 24, 68 and 69 of the Arbitration Act 1996 (AA 1996)): see, for example, City of Moscow v Bankers Trust Co and Symbion Power LLC v Venco Imtiaz Construction Company.

Two very recent decisions (The Chartered Institute of Arbitrators v B and others and Cape Intermediate Holdings Ltd v Dring, which focus, directly and indirectly, upon the first and third contexts above) illustrate that the requirement of confidentiality in arbitration may be diluted (or third party access to court documents may be permitted) where that is justified by considerations as to the “interests of justice”.

First, in The Chartered Institute of Arbitrators v B and others, the Chartered Institute of Arbitrators (CIArb) appointed an arbitrator in a dispute between A and B at the request of A. B made an application under section 24(1)(a) of the AA 1996 for the removal of the arbitrator on grounds of bias. That was granted. Independently, the CIArb had commenced disciplinary action against the same arbitrator further to a complaint from a third party (also alleging bias and improper conduct).

In order to facilitate its disciplinary proceedings, the CIArb made two applications to the court under the CPR: for copies of documents relating to the section 24 application by B (that is, statements of case, witness statements, written submissions and skeleton arguments), and for permission to rely on the same.

The court (per Moulder J) granted the applications.

As to access, Moulder J observed that non-parties have an express right to sight of statements of case and any judgment or order made in public in court proceedings (per CPR 5.4C(1)), whereas non-party access to other documents can only be permitted under the court’s discretion, and only where such documents are considered to be on the court record.

In the latter regard, the court determined that it must strike a balance between preserving confidentiality and the interests of open justice, whether there is a legitimate interest on the part of the party seeking the documents, the reasons for seeking to preserve confidentiality, and any harm that might be caused by non-party access. Given that the disciplinary process against the arbitrator would be barred unless the documents were made available to the CIArb, access to the documents was therefore necessary in the interests of justice. As to the approach under CPR 5.4C, the court relied upon Cape Intermediate Holdings Ltd v Dring; as to the wider question of overriding arbitral confidentiality, the court relied upon Ali Shipping, Glidepath, Emmott, and City of Moscow.

As regards reliance on the documents, the court granted declaratory relief under CPR 3.10 on the basis that this furthered the overriding objective in the CPR (applying Rolls-Royce Plc v Unite the Union and LD Commodities Rice Merchandising LLC and another v The owners/charterers of the vessel Styliani Z).

Second, in Cape Intermediate Holdings Ltd v Dring, the Supreme Court confirmed the approach of the Court of Appeal to access to documents under CPR 5.4C (which was the approach adopted by Moulder J in the CIArb case above) and further emphasised the breadth of the courts’ inherent discretion as to access.

In this regard, the court observed that, for the purposes of CPR 5.4C, “records of the court” connotes only documents and records that the court holds for its own purposes. It does not indicate every single document generated in connection with a case and filed, lodged or kept at court.

However, Lady Hale went on to emphasise that (beyond CPR 5.4C, and pursuant to the principle of open justice), unless inconsistent with statute or rules of court, all courts and tribunals exercising the judicial power of the state have an inherent jurisdiction to determine what open justice requires in terms of access to documents or other information. In principle, the public should be allowed access not only to written submissions and arguments, but also to documents placed before the court and referred to during the hearing. This should not be limited to those which the judge has been asked to read or has said he or she has read. However, an application for access requires the kind of balancing undertaken in the CIArb case.

Thus, the Supreme Court (in a case which was not concerned specifically with arbitration) expanded the scope for overriding the confidentiality of arbitral documents which derive from court proceedings (by indicating that it may be possible for a third party to obtain sight of and to rely upon documents which are beyond those which are “records of the court” for the purposes of the CPR).

Accordingly, these recent decisions continue the trend under English law to acknowledge that arbitral confidentiality is not an absolute bar to disclosure of or access to arbitral documentation. Moreover, they emphasise that third party access to documents generated in arbitral applications before the courts remains possible, despite confidentiality, where an appropriate and sufficient interest can be made out; and such access is not limited by the wording of the CPR.

        

Nevil Phillips

Nevil’s practice envelops all aspects of commercial advisory and advocacy work, encompassing the broadest spectrum of commercial, international trade, commodities, shipping, energy, insurance, finance, and jurisdictional disputes and associated areas and remedies. He appears regularly in commercial arbitration (both domestic and international, with experience before a wide variety of arbitral institutions, bodies and trade associations, including LMAA, GMAA, LCIA, ICC and associated bodies), the Commercial Court, and the appellate courts. A significant proportion of Nevil’s practice involves high-value (unreported) International Arbitration work, especially in the Energy and Shipbuilding fields. 

Nevil also has substantial experience as an arbitrator, and has also given expert evidence on English law to courts in other jurisdictions. 

 > To view Nevil's full profile, please click here.

nevil.philips@quadrantchambers.com