TREATIES: FROM AMICUS CURIAE TO INFRINGEMENT PROCEEDINGS
4 Conclusion
The arbitration institutions concur in the matter of addressing the principle of privacy in their rules. In most cases, the arbitral hearings are accessible only to the arbitral tribunal, the parties and their representatives. The par-ties are free to disclose information received during the hearings or in other stages of process unless there is an explicit positive obligation on the part of the participants.
The parties on the need to protect their sensitive inner information have three options. First of all, they can choose to explicitly address the matter of confidentiality in their arbitration agreement or alternatively they can con-clude a confidential agreement. Second of all, the parties may rely on appli-cable law maintaining the approach that the private nature of arbitration hearings implies the duty of confidentiality so all information disclosed for the settlement purpose are generally protected. In this case, the parties must really examine decisions of national courts where the seat of their arbitra-tion is situated.
Last but not least, they have a right to choose the appropriate set of arbi-tration rules. Generally, the arbiarbi-tration rules differ in many circumstances.
That is the undeniable result of a development of the arbitral institution and experiences from their case law as well as an impact from the dif-ferent approaches among national laws and state courts. The arbitration institutions while drafting their rules must tackle unsettled matters, such as the duty of confidentiality, so that the adjustment would be adapted to distinctive circumstances in different cases. Consequently, the outcome is various. The diversity of the extent and scope of confidentiality among
institutional arbitration rules provides users of international arbitration with quite wide scale of selection so they are able to choose the appropriate set of rules which is suitable for their distinctive case.
While choosing the appropriate arbitration rules for the parties is neces-sary to answer a question whether they need to keep information used and documents produced during arbitration proceedings confidential and if so, to what extent. After solving this matter, they should compare various arbi-tration rules in accordance with their need for protection and choose the one that would fit the best for their case. There are some advantages of the wide protection of confidential information which is provided by e.g. the LCIA Arbitration Rules – the parties do not have to deal with this matter on their own, they know in advance on which documents the duty applies and what the basic exceptions are. Yet, the parties which know beforehand that they are bound by a transparency policy are more likely to choose the set of rules, which does not address the duty of confidentiality explicitly, but include the space for the parties to dispose with this matter of their choice.
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