1. Introduction

In 2011, France adopted a comprehensive reform of the provisions governing domestic and international arbitration comprising Book IV of the French Code of Civil Procedure (CCP).2 The reform constituted the first major legislative overhaul of French arbitration law since 1981 and aimed to reflect the evolution of arbitral practice worldwide, incorporating important principles developed both by courts in France and those in other jurisdictions.

France remains one of the leading countries for arbitration worldwide, thanks in considerable part to its strongly pro-arbitration law. The most recent amendments reflect that stance. The 2011 Decree, as stated in its preamble, aimed (among other things) to (i) give greater flexibility to the rules that govern the arbitration agreement, exequatur and the notification of arbitral awards; (ii) confirm the arbitrators' authority to order provisional measures; and (iii) consolidate the supporting role of French judges in relation to arbitration proceedings (a role in which they are referred to as 'juge d'appui').3 The reform benefited from the input of experienced practitioners and drew on a draft prepared by the French Arbitration Committee (CFA) in 2006.4

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The new provisions, contained in Articles 1442 to 1527 of the CCP, maintain the distinction between domestic arbitration (dealt with in the first part of Book IV, Titre Ier) and international arbitration (dealt with in the second part, Titre II). The relationship between the two is explained principally in Article 1506 of the new text, identifying which provisions in Titre Ier should also apply to international arbitration in Titre II.

For the purposes of this essay, Article 1506 makes a key distinction. The Decree appears to introduce two different approaches to arbitral confidentiality. For domestic arbitration, the fourth subparagraph of Article 1464 of the CCP provides that, 'subject to legal requirements and unless otherwise agreed by the parties, arbitral proceedings shall be confidential'. This provision is not, however, listed in Article 1506 as also applicable to international cases. At the same time, the CCP contains no meaningful guidance on whether an obligation of confidentiality might nevertheless be implied into international disputes.

This contribution seeks to shed some light on the practical effect of that distinction. To that end, it will first consider the role of confidentiality in commercial arbitration (2), then analyse the treatment confidentiality has received under French arbitration law, including prior to 2011 (3), and trends and developments in international arbitration that may explain a shift away from the recognition of an implied obligation of confidentiality (4). It will conclude with some remarks on how these considerations may be used in the interpretation of Article 1506.

2. The approach to arbitral confidentiality has not been uniform

The question posed is a relatively recent source of debate. As two commentators correctly pointed out in 2001, the confidentiality of arbitration had rarely been questioned and was, rightly or not, assumed to be an essential feature of international commercial arbitration.5 However, although notions of privacy have long been considered an integral part of international arbitration,6 the question of whether there is an implied obligation of confidentiality (i.e. in circumstances where there has been no express agreement by the parties) is far from settled in modern arbitration law.

Amid the various approaches different legal systems and arbitral institutions have taken to the topic, two distinct trends have raised a question mark over confidentiality as a necessarily implied characteristic [Page423:] of international arbitration. On the one hand, certain national courts have affirmed that no such obligation exists. On the other hand, developments in the field of international investment arbitration have undermined the absolutist premise of confidentiality. In both cases, the legal force of these decisions and developments is limited to the jurisdiction or field of arbitration in which they occurred. However, to the extent that confidentiality was said to rest on an unshakable bedrock of universality, these developments have started to erode the foundations of that belief.

Before continuing, it is important to make a key distinction. When referring to arbitration, most commentators and practitioners use the term broadly to cover commercial, investment and other types of arbitration. While their common features (e.g. jurisdiction based on party consent; a final, legally-binding and enforceable award rendered by a third party) may justify grouping them together, each category retains distinctive features that may well warrant the application of different principles and rules.

Of particular interest here is the participation of sovereign states in investment arbitration. One can understand why commercial disputes between purely private entities might benefit from confidentiality. Evidence disclosed and exchanged between the parties may, for example, relate to trade secrets, know-how, corporate matters and other sensitive information. The introduction of a state as a party to arbitral proceedings changes this dynamic. States are subject to a different level of scrutiny, not least by their constituencies, which is absent in the (private) corporate world.

In this section, we shall deal with the treatment of confidentiality in international commercial arbitration from a comparative law perspective. In the following section, we take a closer look at the confidentiality provisions under French law. We shall leave the analysis of confidentiality in investment arbitration to the penultimate section.

How, then, has confidentiality been treated in international commercial arbitration? Some commentators have considered it an essential feature of international commercial arbitration, even linking it to the essence of the dispute itself. Confidentiality is said to be justified by the need to maintain the secrecy inherent in business dealings.7 The late Serge Lazareff, writing in 2009 (just two years before the 2011 Decree), remarked: 'I am utterly convinced that confidentiality is an inherent part of international commercial arbitration, subject to the sole exception of absolute and overriding public interest.'8

However, a comparative law analysis of the question yields mixed, and at times conflicting, results. While some laws remain silent on the matter, others address it in some detail. In the first group, one can also find examples of national courts distilling principles into a comprehensive [Page424:] understanding of when confidentiality may be expected or presumed in arbitration, albeit not in a uniform manner. We shall take a closer look at a selection of these.

The UNCITRAL Model Law on International Commercial Arbitration, adopted by some seventy countries, is marked by a notable absence of any provisions on the question of confidentiality. It has been stated that, '[t]he UNCITRAL Model Law on International Commercial Arbitration does not address the issue of confidentiality at all because, as it has been rightly said, confidentiality should be better dealt with in arbitration rules than in the Model Law'.9

Australia, which is a Model Law jurisdiction, and England and Wales, which is not, provide a perfect case study of differing attitudes when the national arbitration law is silent on the topic of confidentiality. In sharp contrast to the courts in England, those in Australia have denied the existence of an implied obligation of confidentiality in arbitration, going so far as to consider that, in certain circumstances, the protection of the public interest may justify overriding an express confidentiality agreement.

In the well-known Esso v. Plowman decision,10 the High Court of Australia found that confidentiality is not 'an essential attribute of a private arbitration imposing an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration'. Likewise, it ruled that confidentiality is not part of the 'inherent nature of a contract and of the relationship thereby established'. Although the court did recognise that the parties could provide expressly for an obligation of confidentiality contractually, that same year another Australian court considered the following exception when one of the parties was a public entity:

Whilst private arbitration will often have the advantage of securing for parties a high level of confidentiality for their dealing, where one of those parties is a government, or an organ of government, neither the arbitral agreement, nor the general procedural powers of the arbitrator will extend so far as to stamp on the governmental litigant a regime of confidentiality or secrecy which effectively destroys or limits the general governmental duty to pursue the public interest.11

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England and Wales, on the other hand, has arrived - also through case law - at a position starkly different from the underlying approach of the Australian courts. For example, in Dolling-Baker v. Merrett & Another,12 the English Court of Appeal held that:

As between parties to an arbitration, although the proceedings are consensual and may thus be regarded as wholly voluntary, their very nature is such that there must … be some implied obligation on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration, or transcripts or notes of the evidence in the arbitration or the award, and indeed not to disclose in any other way what evidence had been given by any witness in the arbitration, save with the consent of the other party, or pursuant to an order or leave of the court.

The approach of the English courts appears to have been inspired by a specific notion of the inherent characteristics of arbitration. In the same decision, it was stated that confidentiality 'is a question of an implied obligation arising out of the nature of arbitration itself'. We will see that the attitude of the English courts was echoed in France, at least before the most recent reform.

In another well-known decision, the Swedish Supreme Court found in 2000 that a party to arbitration proceedings cannot be considered bound by an obligation of confidentiality unless this has been agreed expressly by the parties. As in Australia and England and Wales, Swedish law is silent on the matter.13 In the Bulbank case,14 the Supreme Court noted that Swedish statutory law provided no legal duty of confidentiality in arbitration, whether implied or inherent in an arbitration agreement. It then went on to consider the relevant Australian and English precedents discussed above (as well as the Aïta v. Ojjeh decision in France, considered below), in an effort to determine whether any applicable rules or principles emerged from comparative law. Unsurprisingly, it reached the conclusion that no clear position was established by those earlier rulings. The Supreme Court also observed that, '[t]he fact that such a far-reaching rule as a duty of confidentiality [Page426:] for a party has not found expression in any statutory rules, in any event not in the new Arbitration Act, lends strong support for the conclusion that no such obligation exists'.

In short, silence in the law was construed as the non-existence of any rule: in the absence of an express rule of confidentiality, there should be no implied rule either. This, of course, has potential resonance in France, given the apparent silence of the 2011 Decree on confidentiality in international disputes.

Whether that conclusion is premature or not is discussed further below.15 However, before coming to the specifics of the debate, a threshold question needs to be addressed: Is it really fair to conclude that silence in the arbitration law must mean the absence of a particular rule?16 The commentary to the English Arbitration Act of 1996 highlights an equally compelling policy consideration. In the words of the Departmental Advisory Committee at the time of the Act's adoption, confidentiality 'is a developing topic and it is simply not possible to frame more than the most general principles … Thus the best we could have done would be to have stated some general rule about privacy and confidentiality and made it subject to "all just exceptions". That of course would have told the reader nothing at all.'17 Ten years later, in November 2006, a report on the 1996 English Arbitration Act considered that it was virtually impossible to legislate satisfactorily in the absence of consensus on what the terms of any statutory provision on confidentiality should be, and hence advised against a change in the law.18

This legislature's deliberate silence has nevertheless found a clear voice in the courts. In Ali Shipping Corporation v. Shipyard 'Trogir',19 the Court of Appeal built on various earlier decisions in setting down exceptions to the implied term of confidentiality in arbitration agreements, which it identified as consent, order or leave of the court, reasonable necessity, and public interest. Yet, some of these grounds remain indeterminate concepts and await further elaboration by the courts.

One of the reasons certain jurisdictions have been reluctant to legislate explicitly on arbitral confidentiality is the unlikelihood that such legislation would regulate all of the manifold situations that might arise in practice. Confidentiality may cover, variously, the mere existence of the dispute or arbitration, the documents and written submissions [Page427:] produced for the arbitration, hearings,20 and/or the final award. Public interest, necessity and privilege may call for differing approaches to confidentiality for each aspect of the arbitration or the dispute. Given this complexity, a strongly pro-arbitration court is needed to determine, on a case-by-case basis, the appropriate approach in each situation.

One jurisdiction that has sought to regulate confidentiality in arbitration by statute is New Zealand. Its 1996 Arbitration Act, as amended in 2007,21 makes a presumption of confidentiality. Section 14B(1) states that: 'Every arbitration agreement to which [Section 14 of the Act] applies is deemed to provide that the parties and the arbitral tribunal must not disclose confidential information.' Section 14 of the Act then goes on to provide for a series of exceptions to this general rule, including the objective of safeguarding the parties' rights of defence, or upon order of a court or arbitral tribunal.

Legal systems - even those as close, in other respects, as Australia, New Zealand and England - have therefore approached the subject very differently. No universal consensus has been reached on how best to regulate confidentiality. The most one can say is that where the parties have provided expressly for the confidentiality of the arbitration proceedings, their agreement must be upheld, subject to certain limited exceptions. Where there is no such agreement, however, certain jurisdictions will consider confidentiality as inherent to arbitration, while others will reject it altogether. The former used to include France, to whose arbitration law we now turn. In that group, legislative silence has not necessarily prevented courts from reading into arbitration an implied obligation of confidentiality.

3. France: an implied obligation of confidentiality

An implied obligation of confidentiality has long been a feature of arbitration in France. In the well-known and much-commented Aïta v. Ojjeh decision in 1986,22 a French appellate court found that the parties had breached their implied duties of confidentiality when one of them initiated court proceedings in Paris to set aside an award that had been rendered in London, doing so apparently for the sole purpose of publicising the award. The decision became the cornerstone of France's acceptance of an implied duty of confidentiality in both domestic [Page428:] and international arbitration. Moreover, it was made notwithstanding the absence of an express agreement on confidentiality between the parties and the lack of any statutory provision on confidentiality (the French arbitration law of 1981 was silent on the matter). The decision was quickly celebrated as clear confirmation of an implied duty of confidentiality inherent in international arbitrations seated in France.23

This decision was later followed by other rulings, such as Bleustein v. Société True North et Société FCB Int'l in 1999, where the Paris Commercial Court included the following recital: 'Whereas arbitration is a private proceeding of a confidential nature and arbitration having been accepted by the parties, they must avoid any publicity relating to the dispute between them and the possible results.'24

However, that approach was not always followed consistently. The strongly pro-confidentiality stance of the earlier courts was tempered by the 2004 decision of the Paris Court of Appeal in Nafimco. Here, the court found that the applicant had failed to demonstrate that there should be an obligation of confidentiality.25

There is no doubt that the Nafimco decision called into question the existence of an implied duty of confidentiality under French law, as noted by a number of commentators.26 Others, meanwhile, continued as cheerleaders for the continued existence of the obligation.27 One of these was Eric Loquin, who, interestingly, invoked the provision contained in Article 1135 of the French Civil Code: 'Agreements are binding not only as to what is therein expressed, but also as to all the consequences which equity, usage or statute give to the obligation according to its nature.'28 On that basis, one might argue that consistent and clear usage has created at least some expectation of confidentiality from private parties in international commercial arbitration.

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It was against the background of this somewhat confusing case law that the 2011 Decree was introduced, marking the first statutory expression of a rule of confidentiality in France, at least as far as domestic arbitration is concerned.

As alluded to earlier, the fourth subparagraph of Article 1464 CCP provides that, 'subject to legal requirements and unless otherwise agreed by the parties, arbitral proceedings shall be confidential'. The provision has been characterised as a principle, 'giving it wider scope' than if it were deemed a rule, yet still subject to the exceptions derived from elsewhere in the French legal system.29 In the event of breach, the affected party would be entitled to bring proceedings before the national courts.30 One might also anticipate other relief being available to the affected party, such as injunctive relief in the form of an order from the arbitral tribunal preventing any breach.

The obligation in domestic arbitration is, therefore, clear. The question is where this leaves international arbitration. Has any obligation of confidentiality here been categorically and unquestionably excluded?

To answer that question, let us begin with a little history. Neither the travaux préparatoires nor any prior commentary reject confidentiality in international arbitration. Indeed, the draft prepared by the CFA steered clear of the question, referring to confidentiality as 'ambiguous and controversial'.31 Likewise, the report accompanying the 2011 Decree simply noted that confidentiality is an important characteristic of arbitration under domestic law, but said nothing on the absence of any reference to the fourth subparagraph of Article 1464 in Article 1506.32

By contrast, certain commentators writing after the 2011 Decree have observed that the absence of any express recognition of a duty of confidentiality for international arbitration stems from the realisation that certain types of international arbitration, particularly investment [Page430:] arbitration, are subject to specific rules that exclude the confidentiality of the proceedings.33 Charles Jarrosson and Jacques Pellerin explained that position succinctly as follows:

L'absence de renvoi à l'article 1464 alinéa 4 ne signifie pas que la confidentialité ne s'applique pas, mais seulement que le renvoi pur et simple au texte n'était pas souhaitable en raison des particularités de certaines formes d'arbitrage international.34

This, of course, is a veiled allusion to investment arbitration, but it also reflects the difficulty of formulating a statutory provision that would adequately cover the manifold situations in which the question of confidentiality arises and the observation expressed by the UK's Departmental Advisory Committee in relation to the position taken in the 1996 English Arbitration Act. It is conceivable, therefore, that Article 1506 can be interpreted as no more than recognition on the part of the French legislator that it is impossible to prescribe effective rules on confidentiality, given the heterogeneous nature of international arbitration today, which is consequently not amenable to a single, all-encompassing principle.

In the next section, we take a broad look at these new forms of arbitrating. Their increased use, their notoriety and the new focus they place on transparency are having an inevitable impact on the understanding of confidentiality across arbitration as a whole. The extent to which that should affect commercial arbitration, in particular, is something we shall consider in our concluding remarks.

4. Investment arbitration: a shift away from confidentiality?

Investment arbitration is commercial arbitration's cousin in international public law. While they share many features, they are governed, in part, by different rules and guiding principles. This results in stark contrasts between the two in certain areas, one of which is confidentiality.

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Since the first international treaties providing for arbitration between private investors and sovereign states were concluded in the 1950s, their number has exploded to almost 3,000, including many so-called South-South treaties, investment chapters in regional free trade agreements, and specialised agreements such as the Energy Charter Treaty. This vast network of legal instruments has been increasingly put to use: in February 2015, the United Nations Conference on Trade and Development (UNCTAD) reported 356 concluded cases.35 Investor-state dispute resolution has also become increasingly present on the world stage as economic blocks negotiate regional free trade agreements providing, among many other things, for investment arbitration. A good example is the Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the United States and the European Union.

Investment arbitrations are coming under increasing public scrutiny, chiefly due to public interest in the actions of sovereign states, together with domestic disclosure obligations and pressure from constituencies, including non-governmental organisations (NGOs).

The leading forum for investment arbitration is the International Centre for Settlement of Investment Disputes (ICSID), whose current rules were approved by a written vote of its Administrative Council in 2006 and came into effect on 10 April 2006.36 These rules were adopted after a two-year period of public consultation, as part of which a discussion paper entitled 'Possible Improvements of the Framework for ICSID Arbitration' was released on 22 October 200437 and a working paper entitled 'Suggested Changes to the ICSID Rules and Regulations' on 12 May 2005.38 There was a call from some ICSID users for greater transparency in the proceedings. ICSID addressed these demands in various ways, including through rules governing the publication of awards, the use of amicus curiae submissions and third party attendance at certain hearings.

These developments on the ICSID front found an echo in the UNCITRAL Working Group II, Arbitration and Conciliation, where certain states, led notably by Canada, the US and certain European countries, pushed for the adoption of rules on the transparency of investment arbitrations conducted under the UNCITRAL Arbitration Rules. These [Page432:] efforts resulted in the adoption of the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, which replicate and expand the measures already taken at ICSID. The Convention has eleven signatories, with Mauritius being the only one to have ratified it so far.39 The convention is still very new (it was signed on 17 March 2015) and has not yet been put into practice. However, it represents a step towards greater openness and publicly available information on investment arbitration, and away from notions of implied confidentiality.

5. Where we stand today

Where does this leave the proper understanding of confidentiality under French arbitration law? The 2011 Decree represents a very modern synthesis of leading French and global arbitration practice, placing it at the cutting-edge of arbitration law. The CCP's silence on the existence (or otherwise) of an implied obligation of confidentiality in international arbitration agreements appears to be a cautious and sensible decision, taking into account the heterogeneous nature of international dispute settlement.

Beyond that, it would be rash to read this as a definitive and explicit rejection of confidentiality in international commercial arbitration, given that the 2011 Decree could legitimately be said to have been based on developments outside the realm of private dispute resolution. By contrast, the rationale behind - and attraction of - confidentiality in private corporate disputes remains unchanged. It is as strong or as weak as it has ever been (depending on one's perspective). To the extent that French law has considered, with only a handful of exceptions, that confidentiality is an intrinsic feature of international commercial arbitration, then there is no policy reason to suggest that the approach should be any different after the 2011 Decree. Indeed, the earlier case law developed at a time when there was no statutory reference to confidentiality at all.

Commentators have advised that parties should consider entering into confidentiality agreements, either in their underlying contracts or at the outset of the proceedings.40 Whilst that may provide certainty, it does not address the more fundamental question of the parties' duties of confidentiality, if any, when their agreements are silent.

For the time being, this is a question left to the French courts. As yet, they have not been required to decide on the matter. Given their earlier, inconsistent decisions, predicting how they are likely to address the issue now is very difficult. However, in light of the circumstances discussed in this essay there is no overriding reason why they should [Page433:] feel compelled to rule that the 2011 Decree forces them to abandon any notion of confidentiality in international commercial arbitration. Indeed, the silence of the 2011 Decree on confidentiality in international commercial arbitration might do no more than reflect the difficulty of articulating a sufficiently flexible rule in international cases that (a) is mindful of developing trends in investment treaty arbitration and (b) supple enough to deal with the various exceptions and policy constraints that, inevitably, accompany obligations of confidentiality.

Having been led to believe that arbitrations in France would be confidential, users might be surprised to discover that this is no longer the case. They will be relieved to hear that reports of its demise could, possibly, be premature. At the very least, the French courts have yet to sign its warrant of execution, and may even resurrect a principle that many believed had disappeared.



1
Partner with Allen & Overy in Paris and co-head of the firm's global arbitration practice; Vice-President of the ICC International Court of Arbitration; Michael.Young@AllenOvery.com.


2
'Décret n° 2011-48 du 13 janvier 2011 portant réforme de l'arbitrage' [hereinafter the '2011 Decree']


3
Idem, Notice.


4
'Texte proposé par le Comité français de l'arbitrage pour une réforme du livre IV NCPC', Revue de l'arbitrage 2006, 490 at 499. This was the latest initiative of its kind; earlier, in 1990, the CFA had launched a consultation process among its members and organised a colloquium, entitled 'Perspectives d'évolution du droit français de l'arbitrage', to explore potential avenues for reform of the French arbitration law ten years after its enactment, Revue de l'arbitrage 1992, 195.


5
S. Jarvin & G. Reid, 'La confidentialité dans l'arbitrage: épilogue de l'affaire Bullbank [sic]', Annot. of 27 Oct. 2000 decision of the Swedish Supreme Court, Revue de l'arbitrage 2001, 821 at 827. Cf. P. Neil, 'Confidentiality in Arbitration' (1996) 12:3 Arbitration International 287; Y. Fortier, 'The Occasionally Unwarranted Assumption of Confidentiality' (1999) 15:2 Arbitration International 131.


6
S. Lazareff, 'Confidentiality and Arbitration: Theoretical and Philosophical Reflections' in Confidentiality in Arbitration: Commentaries on Rules, Statutes, Case Law and Practice, 2009 Special Supplement, ICC International Court of Arbitration Bulletin (2009) 81 at 81.


7
S. Lazareff, supra note 6 at 82.


8
S. Lazareff, supra note 6 at 81.


9
A. Dimolitsa, 'Institutional Rules and National Regimes Relating to the Obligation of Confidentiality on Parties in Arbitration' in Confidentiality in Arbitration: Commentaries on Rules, Statutes, Case Law and Practice, 2009 Special Supplement, ICC International Court of Arbitration Bulletin (2009) 5 at 13. See also, P. Sanders 'UNCITRAL's Model Law on International Commercial Arbitration: Present Situation and Future' (2005) 21 Arbitration International 443.


10
ESSO Australia Resources Limited and Others v. The Honourable Sidney James Plowman (Minister for Energy and Minerals) and Others, High Court of Australia, 7 Apr. 1995, (1995) 11 Arbitration International 235.


11
Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd., [1995] 36 NSWLR 662.


12
Dolling-Baker v. Merrett & another (CA 1990), [1990] 1 W.L.R. 1205, [1991] All E.R. 890.


13
It is worth recalling that the applicants were seeking the annulment of an arbitral award on the grounds that the claimants' decision to publish the first partial award on jurisdiction in Mealey's International Arbitration Report rendered the arbitration agreement null and void and thus should be enough to annul the later, final award. One wonders whether the Swedish court would have been quite so categorical in its rejection of an implied obligation of confidentiality if the consequences of the breach had not been alleged to be quite so radical. Cf. C. Jarrosson & J. Pellerin, 'Le droit français de l'arbitrage après le décret du 13 janvier 2011 portant réforme du droit français de l'arbitrage' Revue de l'arbitrage 2011, 5 at 27, who consider, that even under the latest French reform, with its express provision for confidentiality at least for domestic arbitration, the consequences of breach would be an action for civil liability.


14
Bulgarian Foreign Trade Bank Ltd v. Al Trade Finance Inc., First Instance Court, 10 Sept. 1998, Revue de l'arbitrage 1999, 670 (Annot. L. Burger); Court of Appeals, 30 Mar. 1999, (1999) XXIV Yearbook Commercial Arbitration 321; Supreme Court, 27 Oct. 2000, (2001) XXVI Yearbook Commercial Arbitration 291, reported also in Stockholm Arbitration Report, 2002/4, 144 and Revue de l'arbitrage 2001, 821.


15
C. Jarrosson & J. Pellerin, supra note 13 at 59.


16
Lord Saville 'The Arbitration Act 1996' [1997] Lloyd's Maritime and Commercial Law Quarterly 502.


17
Ibid. at 507.


18
B. Harris 'Report on the Arbitration Act 1996' (2007) 23 Arbitration International (2007) 437. See also M. Marks Cohen 'A Missed Opportunity to Revise the Arbitration Act 1996' (2007) 23 Arbitration International 461.


19
[1998] 2 All E.R. 136.


20
At least one study has found that, in general, hearings are considered to be private and confidential, absent an agreement of the parties to a different rule. See A. Dimolitsa, supra note 9 at 13. For example, while the Norwegian Arbitration Law rejects the notion of a duty of confidentiality in arbitral proceedings, it also provides that: 'Third parties may only be present during arbitral proceedings when and to the extent that follows from the agreement between the parties', c. 1, s. 5 of the Norwegian Arbitration Law, effective 1 Jan. 2005)). See also Oxford Shipping Co Ltd v. Nippon Ysen Kaisha (the 'Eastern Saga') [1984] Lloyd's Report 373, where the Commercial Court found that 'it is implicit that strangers shall be excluded from the hearing and conducts of the arbitration'.


21
Arbitration Amendment Act, 18 Oct. 2007 (2007 No. 94).


22
Paris Court of Appeal, judgment of 18 Feb. 1986, Revue de l'arbitrage 1986, 583.


23
E. Gaillard, 'Le principe de confidentialité de l'arbitrage commercial international', Recueil Dalloz, 1987, 153.


24
Order of 22 Feb. 1999, Revue de l'arbitrage 2003, 189.


25
Société National Company for Fishing and Marketing 'Nafimco' v. Société Foster Wheeler Trading Company AG, judgment of 22 Jan. 2004, Revue de l'arbitrage 2004, 647.


26
S. Lazareff, supra note 6 at 86; see also E. Loquin, 'Les obligations de confidentialité dans l'arbitrage', Revue de l'arbitrage 2006, 323 at 328, who summarised the majority position as reflected in scholarly writings as follows: 'Pour MM. Paulsson and Rawding, "le principe de confidentialité ne saurait être considéré comme établi de lege lata en arbitrage international", opinion partagée par M. J.-L. Delvolvé, pour qui "l'existence du principe ne va pas de soi", ou de MM. J.-F. Poudret et S. Besson, qui concèdent "que le principe de confidentialité n'existe pas en tant que concept unique et qu'il varie en fonction des situations"'.


27
See e.g. E. Loquin, supra note 26 at 334.


28
Translation of the French Civil Code available at www.legifrance.gouv.fr, last visited on 17 July 2015.


29
C. Jarrosson & J. Pellerin, supra note 13, at 27.


30
Ibid. at 27.


31
See 'Texte proposé par le Comité français de l'arbitrage pour une réforme du livre IV NCPC', Revue de l'arbitrage 2006, 490 at 496.


32
'Rapport au Premier ministre relatif au décret no. 2011-48 du 13 janvier 2011 portant réforme de l'arbitrage'.


33
See e.g. G. Born, 'International Commercial Arbitration', vol. II, at 2798, 2799; E. Gaillard & P. de Lapasse, 'Commentaire analytique du décret du 13 janvier 2011 portant réforme du droit français de l'arbitrage', Cahiers de l'arbitrage, 1 Apr. 2011, no. 2, 263; H.-J. Nougein & R. Dupeyré, Règles et pratiques de droit français de l'arbitrage (Lextenso, 2012) at 212-215; C. Seraglini & J. Ortscheidt, Droit de l'arbitrage interne et international (Montchrestien, 2013) at 717-719; L. Bernheim-van de Casteele, Les principes fondamentaux de l'arbitrage (Bruylant, 2012) at 392-417; B. Castellane, 'The New French Law on International Arbitration' (2011) 28:4 Journal of International Arbitration 371; C. de los Santos & M. Soto Moya, 'Confidentiality under the new French arbitration law : a step forward?' [2011:11] Spanish Arbitration Review 79; Y. Derains, 'Les nouveaux principes de procédure: confidentialité, célérité, loyauté' in T. Clay, Le nouveau droit français de l'arbitrage (Lextenso, 2011) 91; J. Kirby, '2011 French Arbitration Law, Introductory Note' (2011) 50:2 International Legal Materials 258; L. Gouiffès & L. Kozreff, 'Commentary on the new French International Arbitration Law: Towards Quicker and More Efficient Arbitration Proceedings' (2012) 18 Columbia Journal of European Law 45, available at http://www.cjel.net/wp-content/uploads/2012/09/french_45-56.pdf, last visited on 17 July 2015.


34
C. Jarrosson & J. Pellerin, supra note 13, at 60.


35
Information available at http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=929&Sitemap_x0020_Taxonomy= UNCTAD%20Home;#6;#Investment%20and%20Enterprise;#607;#International%20Investment%20Agreements%20%28IIA%29, last visited on 17 July 2915.


36
For an overview of the rules, see A. Antonietti, 'The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules' (2006) 21:2 ICSID Review 427.


37
Available at https://icsid.worldbank.org/apps/ICSIDWEB/resources/Documents/ Possible%20Improvements%20of%20the%20Framework%20of%20ICSID%20Arbitration.pdf, last visited 17 July 2015.


38
Available at https://icsid.worldbank.org/apps/ICSIDWEB/resources/Documents/ Suggested%20Changes%20to%20the%20ICSID%20Rules%20and%20Regulations.pdf, last visited 17 July 2015.


39
The other signatories are Canada, Finland, France, Germany, Italy, Sweden, Switzerland, Syria, the UK and the USA.


40
C. Jarrosson & J. Pellerin, supra note 13; G. Born, supra note 33; E. Gaillard & P. de Lapasse, supra note 33.