CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ substance of the information, the party shall set out the reasons for which it considers the information confidential in the notice. The tribunal is given powers to determine whether the information is to be classified as confidential and of such a nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality. If the tribunal so determines, it shall decide under which conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking. 34 An especially noteworthy aspect is the provision according to which in exceptional circumstances, the tribunal may, at the request of a party or on its own motion, designate a confidentiality advisor who will determine whether the information is to be so classified as confidential, and, if so, decide under which conditions and to whom it may in part or in whole be disclosed. The tribunal, in lieu of itself determining whether the information is of such nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality, will delegate this task to an advisor who will safeguard the confidentiality and the proper process of information disclosure. Any such confidentiality advisor shall be required to sign an appropriate confidentiality undertaking. The regulation of confidentiality via the WIPO Arbitration Rules is strict and regulates the notion of confidentiality as one of the prerogatives assigned to arbitration. Therefore, the preservation of confidentiality plays an important role in all proceedings, which makes the application of the principle of transparency, as set on national levels, rather difficult. The American Arbitration Association approaches confidentiality through Article 34, by stating that confidential information disclosed during the proceedings by the parties or by witnesses shall not be divulged by an arbitrator or by the administrator. Except as provided in Article 27, unless otherwise agreed by the parties or required by applicable law, the members of the tribunal and the administrator shall keep confidential all matters relating to the arbitration or the award. According to the CIETAC Rules 35 , hearings shall be held in camera. However, where both parties request an open hearing, the arbitral tribunal shall make a decision whether to allow so. For cases heard in camera, the parties and their representatives, the arbitrators, the witnesses, the interpreters, the experts consulted by the arbitral tribunal, the appraisers appointed by the arbitral tribunal and other relevant persons shall not disclose to any outsider any substantive or procedural matters relating to the case. 36 The New 2012 ICC Rules assess arbitration confidentiality in Article 22. This provision sets the conduct of the arbitration in such a way that the arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost 34 The WIPO Arbitration Rules, Article 52 (d). 35 China International Economic and Trade Arbitration Commission CIETAC Arbitration Rules. 36 Article 36 (2) Confidentiality, CIETAC Arbitration Rules.

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