Lloyd's Maritime and Commercial Law Quarterly
CONFIDENCE IN ARBITRATION
Stephen Males*
The Court of Appeal decision in Ali Shipping Corp. v. Shipyard Trogir has confirmed that arbitration is confidential as a result of a term implied into arbitration agreements as a matter of law, not fact. The term is subject to exceptions, the full scope of which remains to be decided. This article comments on the present state of English law concerning the confidentiality of arbitration, including its relationship to the implied undertaking which applies to documents disclosed on discovery in court proceedings and to the general law of confidence, and identifies some of the questions remaining for future decision.
Commercial lawyers are an unromantic lot. It is said that if you cut them open, you will find graven on their hearts, not “Calais”, but rather a statement of the limited powers of arbitrators to order concurrent hearings.1 For many years that limitation, implicit in the concept that arbitration is private and that strangers are not entitled to be present at the hearing, was the closest that English law came to acknowledging expressly the confidentiality of arbitration proceedings. More recently the topic of confidentiality has been considered in a series of English cases.2 But then there occurred an event almost as traumatic in its way to the world of arbitration as the loss of Calais must have been to Mary Tudor, when, in Esso Australia,3 the High Court of Australia rejected the existence of any general duty of confidence in arbitration proceedings.
In Ali Shipping Corp. v. Shipyard Trogir,4 the Court of Appeal has now reaffirmed the confidentiality of arbitration proceedings and confirmed that the Esso Australia case does not represent English law. It has also provided valuable clarification of the nature of the duty and the scope of the exceptions to it. Even so, important questions remain.
The facts of Ali Shipping
In Ali Shipping, the defendant shipyard entered into contracts, each containing a London arbitration clause, with six companies, in the same ownership and under the same management, for the building of six ships, hulls 200 to 202 and 204 to 206. Each of the
* Q.C., 20 Essex Street, Temple, London.
1. Oxford Shipping Co. Ltd v. Nippon Yusen Kaisha (The Eastern Saga)
[1984] 2 Lloyd’s Rep. 373, 379, per Leggatt, J.
2. Bibby Bulk Carriers Ltd v. Cansulex Ltd [1989] Q.B. 155; Shearson Lehman Hutton Inc. v. Maclaine Watson & Co. Ltd [1988] 1 W.L.R. 946; Dolling-Baker v. Merrett [1990] 1 W.L.R. 1205; Hassneh Insurance Co. v. Mew
[1993] 2 Lloyd’s Rep. 243; Hyundai Engineering & Construction Co. Ltd v. Active Building & Civil Construction (Pte) Ltd (in liq.) (9 March 1994) Unreported; Insurance Co. v. Lloyd’s Syndicate
[1995] 1 Lloyd’s Rep. 272; London & Leeds Estates Ltd v. Paribas Ltd (No. 2) [1995] 2 E.G. 134.
3. Esso Australia Resources Ltd v. Plowman (Minister for Energy & Minerals) (1995) 183 C.L.R. 10.
4. [1998] 2 All E.R. 136 (C.A.).
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