In the case of arbitration, there are several aspects to the imposition of confidentiality obligations for the parties. Many say it only adds to the various benefits of arbitration on litigation. In addition to the rapid and effective elimination of litigation, it also protects the privacy and interests of the parties. This is especially true for companies that have the ability to protect “commercially sensitive information.” It is also pointed out that such an obligation prevents “media scrutiny.” 12 Overall, these arguments tend to adopt a central theme, namely that confidentiality clauses in arbitration agreements disproportionately favour employers and make arbitration generally less favourable to workers than the traditional judicial system. The real question is, “Is that true?” To better understand confidentiality, it is first and foremost necessary to distinguish confidentiality from a similar concept known as privacy. While both are two sides of the same coin, the difference is only in their scope and your scope. Privacy, as opposed to confidentiality, is a narrower term and refers only to the concealment of information from third parties by prohibiting them from participating in arbitration.1 The purpose of privacy is to delay any type of third-party intervention in arbitration. Party autonomy is one of the fundamental principles of conciliation. For this reason, most people say that there should not be an explicit legal provision that imposes confidentiality as an obligation. Instead, the parties should be free to decide whether or not to preserve the confidentiality of the arbitration process. When it comes to maintaining the confidentiality of arbitration, there are several issues that should be considered.
Some of them include – (1) who should be informed of arbitration; 2. If it is only the parties, their lawyers, the tribunal formed by the parties; (3) If the public does not even have the slightest indication of an ongoing arbitration procedure; (4) To what extent should witnesses testifying in court be informed of what happened before the Court of Justice? (5) If confidentiality is to be absolute or limited in the interests of justice, with certain exceptions, such as disclosure of information, etc. 5. These would be some of the issues that Parliament must take into consideration before settling confidentiality in the arbitration process. If India wants to achieve the dream of confidentiality in its national arbitration legislation, it is of the utmost importance that Section 42A of the Act be reviewed. There is more than one exception that must be removed from the duty of confidentiality and it should not be forgotten that arbitration is, after all, a contractual creation. The autonomy of the party must have the value it truly deserves in such a dispute resolution mechanism. Therefore, in order to prevent this provision from seeing red flags, it must first be made deviant.
Most jurisdictions around the world have focused on the protection and confidentiality of arbitration decisions. In addition, there are two other aspects of confidentiality in arbitration – (i) the confidentiality of arbitration; and (ii) the confidentiality of documents or evidence before the Court of Arbitration.3 The first involves the preservation of the confidentiality of any person involved in the dispute and present during the proceedings; Or knowing about these rights, because they act before the Tribunal as a witness or as an employee/administrator/legal adviser to the parties to the dispute.