Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 170

AFRICA SPECIAL ISSUE
(i) A court hearing any such proceedings should, on the application of any
party to the proceedings, give directions as to whether any and, if so, what
information relating to the proceedings may be published or whether the
hearings should proceed in open court;
(ii) A court hearing such proceedings should not permit the publication of
information relating to the proceedings unless (i) all parties to the proceedings
agree thereto; or (ii) the court is satisfied that the information, if published, would
not reveal any matter, including the identity of any party to the proceedings,
that any party to the proceedings reasonably wishes to remain confidential;
(iii) Where a court gives judgment in such proceedings and considers that such
judgment is of legal interest, the court is to direct that reports of the judgment
may be published in law reports and professional publications but, if any party
to the proceedings reasonably wishes to conceal any matter, then the court is to:
(A) give directions as to the action that is to be taken to conceal that matter
in the reports/publications; and
(B) if the court considers that the matter raised by the party would likely
be revealed through the report/publication, direct that no report may be
published until the end of any period that it considers appropriate, but not
exceeding 10 years.
(b) Unless the proceedings are to be heard in public, the court files in these
proceedings are to be sealed and kept separately by the Registrar of the court
and must only be accessible to the judge allocated to the matter and the parties
to the underlying arbitration;
(c) As provided for in legislation in Portugal, all arbitral decisions involving
public bodies (i.e., decisions in favour of or against state-owned or other
public entities) can be sent to the Ministry of Justice for publication online as
a condition for enforcement of that award save in exceptional circumstances
decided by the court. Any details identifying the non-public parties involved
can be redacted. Such a decision (i.e., a court deciding that an arbitral decision
involving a public body should not be published) must be subject to automatic
review in camera by a panel of three judges in the same court, and separately
remain subject to appeal to higher courts;
Education of practitioners and clients
73. In parallel, arbitration institutions such as AFSA and parties involved in
arbitrations should be encouraged to (i) educate the legal fraternity on the benefits
of arbitration as opposed to litigation, as well as the complexities associated
with the privacy and confidentiality of such proceedings; and (ii) more regularly
publicize duly anonymised and/or pseudonymised arbitral awards and information
regarding ongoing and concluded arbitrations.
74. To this end, AFSA should be encouraged to hold workshops and seminars
on the benefits and international best practice of arbitrations. South African lawyers
and their clients who participate in these workshops and seminars can be informed
of the complexities that accompany the confidentiality of arbitral proceedings and
the best practice to prevent disputes in that regard. Fundamentally, this should
entail training on appropriate confidentiality clauses in arbitration agreements.
444
The Paris Journal of International Arbitration 2023‑2
Revue - Les Cahiers de l'Arbitrage N°2 - 2023

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°2 - 2023
