Lloyd's Maritime and Commercial Law Quarterly
THE UNAUTHORIZED PUBLICATION OF ARBITRATION AWARDS
Martin Hunter recently raised, in this Quarterly, some highly topical questions about the possible legal effects of the publication of arbitral awards without the consent of all the parties to the relevant arbitration.1 It goes without saying that the answer to such questions will depend on the law applicable to the dispute relating to the unauthorized publication. The purpose of this Comment is to describe the English law position in the hope that contributors from other countries will subsequently write about the situation under their municipal laws.
The English position relating to the unauthorized publication of arbitral awards is relatively simple as a result of the equitable tort of breach of confidence. This tort is committed where a person, having received information thanks to another, in circumstances where any reasonable person in the recipient’s position would have realized that access to the information was being given to him in confidence, uses it in a way which is unauthorized by the person who enabled him to obtain it.2 It is not clear whether a breach of confidence has to cause a loss to be actionable, but the better view is that this is not necessary.3
The above seems to ensure that, in most cases where the arbitrator or any other participant in the arbitration discloses information about the arbitration to a third party without the parties’ agreement, he commits the tort of breach of confidence. He can be restrained by injunction from doing so or could be sued for damages or
1. “Publication of Arbitration Awards”, [1987] 3 LMCLQ 139.
2. Schering Chemicals Ltd v. Falkman Ltd. [1982] Q.B. 1, 27.
3. Ibid. See also Boardman v. Phipps [1967] 2 A.C. 46, which involved essentially the same tort.
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