Court proceedings are subject to the principle of open justice. This principle allows the public to not only observe hearings and trials in court, but also to access court filings and obtain information such as the identities of parties. In contrast, confidentiality stands as a key advantage of arbitration over litigation. For some parties, confidentiality is crucial to avoid affecting their market standing, their business relationships, or public confidence in their business (see CSR v CSS [2022] 5 SLR 675).
On the face of it, the confidentiality of an arbitration appears to be a certainty. However, parties to an arbitration can commence arbitration-related court proceedings to, for instance, enforce or set aside the arbitral award. If so, some aspects of the arbitration (e.g. factual statements, circumstances or documentary evidence) will inevitably be disclosed in light of the principle of open justice. In these instances, would the “private and confidential” aspect of arbitration be rendered futile?
In this article, we consider the position of Malaysia and other Commonwealth jurisdictions with regard to maintaining confidentiality in arbitration-related court proceedings, and how parties to an arbitration may protect their identities.
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