Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 154

AFRICA SPECIAL ISSUE
to arbitrate instead of litigating in court is (partly) due to their expectation of the
hearings being private and proceedings remaining confidential. 13
25. The Civil Procedure Rules of 1998, in Part 62, provide for a streamlined
and flexible framework for English courts to resolve disputes and hear claims
arising out of arbitration agreements or awards, and to support the principles
of party autonomy, confidentiality, and finality of arbitral awards. Notably,
rule 62.10 provides that a court may order that proceedings which relate to
arbitration proceedings (e.g., to intervene in the appointment of arbitrators
or to review, set aside or enforce an award) can be heard in public or in
private. In analyzing this rule, English courts have noted that its intention was
partly to promote the choice of England as a seat for international arbitration
by reducing the risk of court interference and unnecessary publicity in that
regard. 14
26. Through rule 62.10, " arbitration claims " (that is, any application relating to
arbitration) can therefore remain private in English court proceedings. 15
27. However, even under English law, despite its acknowledgement of an
implied term of confidentiality and appropriate procedural rules to safeguard
confidentiality in ensuing litigation, not all types of arbitration are confidential by
default. Under English common law, there are several exceptions to confidentiality.
The extent and application of these exceptions have, however, historically been
difficult to define. 16
in certain circumstances, 17
Although courts have listed some exceptions to confidentiality
the Supreme Court has cautioned that these remain in
the process of development. 18
28. Therefore, although English common law continues to recognize the
implied confidentiality of arbitrations, the legislature has steered clear from the
13. See John Foster Emmott v Michael Wilson & Partners Limited (MWP) [2009] EWCA Civ 184,
at para. 62, available at https://www.trans-lex.org/301850/_/john-forster-emmott-v-michael-wilsonpartners%C2%A0limited-%5b2008%5d-ewca-civ-184/;
Hassneh Insurance Co. of Israel and Others
v Steuart J. Mew [1993] 2 Lloyd's Rep. 243, at pp. 246-7, available at https://www.i-law.com/ilaw/
doc/view.htm?id=149957; Department Of Economic Policy & Development Of City Of Moscow &
Anor v Bankers Trust Company & Another [2004] EWCA Civ 314, at paras. 2 and 30, available at
https://www.bailii.org/ew/cases/EWCA/Civ/2004/314.html.
14. See Department Of Economic Policy & Development Of City Of Moscow & Anor v Bankers
Trust Company & Another [2004] EWCA Civ 314, at para. 30, available at https://www.bailii.org/ew/
cases/EWCA/Civ/2004/314.html.
15. It has however been noted that applications under section 45 (preliminary point of law) and
69 (appeal on point of law) tend to be held in public (see Law Commission of England & Wales
" Review of the Arbitration Act 1996 " Consultation Paper 257 (2022), para. 2.9, available at https://
s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/ArbitrationConsultation-Paper.pdf).
16.
See, e.g., Tournier v National Provincial and Union Bank of England [1924] 1 KB 461,
pp. 479; 481, where the court said that there was no authority on the question of exceptions to
confidentiality. So too did Lord Justice Scrutton say that the exceptions were difficult to state.
17. See, e.g. the Emmott case (fn. 11 above) at para. 107 where the court listed the exceptions
as follows: " the first is where there is consent, express or implied; second, where there is an order, or
leave of the court (but that does not mean that the court has a general discretion to lift the obligation
of confidentiality); third, where it is reasonably necessary for the protection of the legitimate interests
of an arbitrating party; fourth, where the interests of justice require disclosure, and also (perhaps)
where the public interest requires disclosure. "
18. A point noted by Lord Hodge in Halliburton Co v Chubb Bermuda Insurance Ltd [2020]
UKSC 48 at para. 85, available at https://www.supremecourt.uk/cases/docs/uksc-2018-0100judgment.pdf.
428
The
Paris Journal of International Arbitration 2023‑2

https://www.trans-lex.org/301850/_/john-forster-emmott-v-michael-wilson-partners%C2%A0limited-%5b2008%5d-ewca-civ-184/ https://www.trans-lex.org/301850/_/john-forster-emmott-v-michael-wilson-partners%C2%A0limited-%5b2008%5d-ewca-civ-184/ https://www.i-law.com/ilaw/doc/view.htm?id=149957 https://www.i-law.com/ilaw/doc/view.htm?id=149957 https://www.bailii.org/ew/cases/EWCA/Civ/2004/314.html https://www.bailii.org/ew/cases/EWCA/Civ/2004/314.html https://www.bailii.org/ew/cases/EWCA/Civ/2004/314.html https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf https://www.supremecourt.uk/cases/docs/uksc-2018%E2%80%910100-judgment.pdf https://www.supremecourt.uk/cases/docs/uksc-2018%E2%80%910100-judgment.pdf

Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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