Parties' duties of confidentiality based on institutional rules in international commercial arbitration

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http://urn.fi/URN:NBN:fi:hulib-201508063086
Title: Parties' duties of confidentiality based on institutional rules in international commercial arbitration
Author: Cederström, Maisa
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingfors universitet
Date: 2014
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201508063086
http://hdl.handle.net/10138/44927
Thesis level: master's thesis
Discipline: Procedural and insolvency law
Prosessi- ja insolvenssioikeus
Process- och insolvensrätt
Abstract: This thesis is based on nine sets of arbitration rules which include the rules of American Arbitration Association/The International Centre for Dispute Resolution (“AAA”) effective as of 1 June 2009, the rules of German Institution of Arbitration (“DIS”) in force from 1 July 1998, the rules of The Arbitration Institute of the Finland Chamber of Commerce (“FCC”) that came into force on 1 June 2013, the rules of Hong Kong International Arbitration Centre (“HKIAC”) effective as of 1 November 2013, the rules of International Chamber of Commerce (“ICC”) in force since 1 January 2012, the rules of The London Court of International Arbitration (“LCIA”) effective 1 January 1998, the rules of Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) applicable as of 1 January 2010, the rules of The Singapore International Arbitration Centre (“SIAC”) that took effect on 1 April 2013 and the rules of Swiss Chambers' Arbitration Institution that came into force on 1 June 2012 (“the Swiss rules”) of which six include a duty of confidentiality upon parties. The DIS, FCC, HKIAC, LCIA, SIAC and Swiss rules contain a duty of confidentiality upon parties. The basic idea of the thesis is to assess confidentiality from the point of view of institutional rules so national law is only employed as a back-up set of rules and as an interpretative aid. One research question is “How confidentiality based on institutional rules can be protected efficiently?”. The main idea is to evaluate the duties of confidentiality as obligations and to assess what they include. It is assessed what the duties of confidentiality include in terms of contents, temporal aspects and exceptions. Contents of the duties vary and the greatest difference relates to confidentiality of existence of the arbitration. Not protecting confidentiality of existence of the arbitration creates the first gap in confidentiality. Exceptions in the FCC and SIAC rules are of a developing nature, which makes them vague. In general, exceptions cannot be listed exhaustively in the rules. The exceptions create gaps in the duty of confidentiality because confidentiality cannot be absolute. However, because of the gaps a party may disclose based on inappropriate reasons. On the other hand, the exceptions take the need for publicity into account and thus the rules of FCC and SIAC are the most developed from that point of view. Another research question is “Why is confidentiality necessary?” to which the thesis answers by way of commenting interest in confidentiality and publicity from parties’ standpoint. The thesis also includes an assessment why duties of confidentiality have been enacted and why in a certain way. That evaluation is conducted from institute’s point of view. Further, it is presented how parties can affect efficient protection of confidentiality by way of assessing their own and opponent’s interests concerning confidentiality and publicity already when concluding the arbitration agreement. Although confidentiality is necessary, it may be breached or it can be tried to be breached. The thesis studies interim measures, remedies and sanctions from the point of view of protection of confidentiality.


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