CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ this case the ECE Rules 15 ), nor the Swedish Arbitration Act, eo ipso establish a duty of confidentiality. This Court acknowledged the fact that confidentiality is an essential and inevitable feature of arbitration. However, as observed by various authors, it did not agree that a confidentiality obligation can only be imposed on the parties by an express contractual provision. Instead, the Court referred to a “duty of loyalty” or good faith between parties, stating that disclosure of information or documents relating to an arbitration can, under certain circumstances, be regarded as a breach of such “duty of loyalty”. 16 In these situations, it is important to conduct a thorough assessment of the types of information which can eventually harm the legitimate interest of the opposite party, when disclosed. Concerning the relief claimed by parties who have suffered the previously mentioned encroachment, it can certainly be proclaimed that the Appeal Court took a more moderate approach by suggesting compensation for damages rather than invalidation of the arbitration agreement. For the agreement to be declared void, it is necessary for a party to commit a substantial breach of contract. The saga continued as the case was referred to the highest instance- the Supreme Court of Sweden. The effort of rapprochement of the two different approaches represented by the judgements concluded by the Swedish courts of lower instances was undertaken by stating that although no legal duty of confidentiality is implied, inherent or present in an altered manner in an arbitration agreement, arbitration is undoubtedly based upon an agreement, securing a private way of conducting the proceedings leading to the resolution of the dispute. The U.S. took an analogous approach in the case United States v. Panhandle Eastern Corp , et al., 17 which involved a request by the U.S. Government for the production of documents used in an International Chamber of Commerce arbitration in Switzerland. Following the same line of reasoning as adopted by the Swedish and Australian courts, the federal district court said in dicta that, without an agreement between the parties, or procedural rules that explicitly guarantee confidentiality, arbitration proceedings will not necessarily be considered confidential. 18 For countries outside the common law tradition (although in the U.S. with limited application), it was suggested that “arbitration practitioners might need to justify the legal basis for confidentiality under their respective legal systems, whether by contract, status, copyright or otherwise”. 19 This assessment represents a rejection

15 Arbitration Rules of the United Nations Economic Commission for Europe. 16 Ibid supra note 2, pp. 246. 17 United States v. Panhandle Eastern Corp, et al. (1998) 118 F.R.D. 346 (D. Del).

18 See: C. R. Thomson, A. M. K. Finn, “Confidentiality in Arbitration: A valid Assumption? A proposed Solution!”, 62 Dispute Resolution Journal , no. 2 (2007), pp. 2, available at: ; last visit: 19 April 2012. See: Ibid supra note 13, pp. 2. 19 Ibid supra note 2, pp. 243-244.

246