LCIA Arbitration Rules

LCIA Arbitration Rules as many other arbitration rules contain a provision providing for the privacy of arbitration. What is striking to the eye is that the LCIA Arbitration Rules cater extensively for confidentiality which is not so frequent among arbitration rules. The main purpose of such an extensive regulation of the duty of confidentiality is to ensure that when the parties choose to arbitrate under the LCIA Arbitration Rules, the sensitive informa-tion and documents produced for its purposes will be protected even though the parties decide to move the seat of the arbitral tribunal out of the United Kingdom or other country that respects the implied duty of confidentiality.

16 HWANG, Michael, THIO, Nicholas. A proposed Model Procedural Order on Confidentiality in International Arbitration: A Comprehensive and Self-Governing Code. Journal of International Arbitration [online]. 2012, Vol. 29, p. 137 [accessed on 2017-10-20].

17 2017 Rules of Arbitration of the International Chamber of Commerce [online].

International Chamber of Commerce [accessed on 2017-10-20].

18 UNCITRAL Arbitration Rules (with new Article 1, paragraph 4, as adopted in 2013 [online]. UNICITRAL [accessed on 2017-10-20].

19 2014 London Court of International Arbitration Rules [online]. London Court of International Arbitration [accessed on 2017-10-20].

Before all else, the application of the principle of privacy. The LCIA Arbitration Rules²⁰ ensure that non-participants will not be allowed to attend the hearing phase of the arbitration. Although, the LCIA Arbitration Rules provide the parties with a right to agree on making the hearing accessible for public. In contrast to the 1998 LCIA Arbitration Rules²¹, the parties do not need the approval or consent of the arbitral tribunal in order to allow such attendance.²²

Besides the application of the principle of privacy the LCIA Arbitration Rules recognize the duty of confidentiality. This obligation is collabo-rating in Article 30 which is subdivided into three sections addressing the duties of the parties, the arbitral tribunal and the LCIA itself in respect of confidentiality.

In relation to the duty of confidentiality of the parties, the LCIA Arbitration Rules state an express obligation. Article 30.1 is considered as one of the best formulated provisions on confidentiality among various arbitration rules.

First of all, the Article 30.1 sets out the scope and extent of the obligation of confidentiality as a general principle. This provision draws up the mate-rial scope relatively wide since the obligation refers to all involved materi-als and documents which, according to Scherer, Richman and Gerbay, include submissions of the parties, requests, responses or claims as well as expert reports, witness statements and other documents and evidence produced for the purpose of arbitration proceedings.²³ However, the duty of confi-dentiality applies only on materials created for the purpose of the arbitration and documents produced during the proceedings. In other words, the ben-efit of confidentiality is not granted to other materials that may be relevant to the dispute, but which have been used in the arbitration proceedings pur-pose yet.²⁴

20 See Article 19.4 of the LCIA Arbitration Rules.

21 1998 London Court of International Arbitration Rules [online]. London Court of International Arbitration [accessed on 2017-10-20].

22 SCHERER, Maxi, RICHMAN, Lisa M., GERBAY, Remy. Arbitrating under the 2014 LCIA Rules. A User’s Guide. Alphen aan den Rijn: Kluwer Law International, 2015, p. 226.

23 Ibid., p. 366.

24 Ibid., p. 365–367.

Nevertheless, the express duty of confidentiality is not recognized as abso-lute under the LCIA Arbitration Rules. The principle of confidentiality is subject to many exceptions – legal duty of a party, protection or pursue of a legal right, enforcement or challenge of an award in court proceedings.

The extent is not only limited by the exceptions stated in LCIA Arbitration Rules, but it is subjected to the limits laid down by applicable law.²⁵

Moreover, the LCIA Arbitration Rules respect the party autonomy even in the question of confidentiality. The parties have the authority to agree to opt-out of the application of the principle of confidentiality. Again, they have a right to state the scope of confidentiality of their own. However, the exceptions that are stated in the LCIA Arbitration Rules cannot be over-ruled by the parties, not even in this case.²⁶ If the parties agree to exclude the application of such provision, the LCIA Arbitration Rules retain to the parties to decide on the scope of such duty. This kind of situation is not typical for arbitration between private entities or trading partners, but it can occur in a dispute resolution between states or state corporations.

Exactly these subjects may not wish to keep the arbitration proceedings confidential for various reasons, mostly because they are bound by the duty of transparency.

The wide protection of confidential information addressed by the LCIA Arbitration Rules is a consequence of the national law approach. LCIA is situated in London, the United Kingdom that, as mentioned above, is a strong supporter of confidentiality as an implied duty of the private nature of arbitration. The arbitration rules are providing the parties with the legal certainty that no matter where the arbitral tribunal under the LCIA Arbitration Rules will be situated, they will not only have their hearings pri-vate, but even the information strongly protected from possible leakage.

In other words, the rules concede that with the principle of privacy comes the duty of confidentiality.

25 SCHERER, Maxi, RICHMAN, Lisa M., GERBAY, Remy. Arbitrating under the 2014 LCIA Rules. A User’s Guide. Alphen aan den Rijn: Kluwer Law International, 2015, p. 366.

26 Ibid., p. 365–367.