A Certain Uncertainty: The Duty of Confidentiality in International Commercial Arbitration
Abstract: Arbitration is an immemorial dispute settlement method with references to be found in both Roman and ancient Greek law, such as Digesta, Codex Iustinianus and Novellae. Sweden also has a long tradition of commercial arbitration and it has been used as a dispute settlement method at least since the Hanseatic League was established. It is also believed that arbitration was used to settle commercial disputes in Visby during the 14th century. The present paper will examine the duty of confidentiality and its consequences, after a delivered award in an international commercial arbitration and documents are disclosed or published. The main focus of the study is how different questions on confidentiality would be answered if the procedures take place in Sweden. It is, however, essential to make comparisons to international arbitration institutes’ regulations and case law since arbitration is an internationally established dispute settlement method. The confidentiality agreement has become central in the international arbitration discussion after the decision by the Supreme Court of Sweden in Bulbank. This thesis describes and discusses the necessity of a confidentiality agreement in order to avoid disclosure of documents. It is essential for the parties to know what kind of duty the agreement imposes upon them or, if they have not agreed on confidentiality, what an absence of an agreement might lead to. A disclosure or publication of documents might lead to a cause to claim damages for the aggrieved party, i.e. the complainant, but the question remains against whom an aggrieved party can bring actions for damages. There have been extensive discussions on the duty of confidentiality over the last years but still some questions remain to be answered; especially on what a breach of the duty of confidentiality might result in.
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