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Confidentiality in International Commercial Arbitration - A Comparative Analysis of the Position under English, US, German and French Law
von: Kyriaki Noussia
Springer-Verlag, 2010
ISBN: 9783642102240 , 200 Seiten
Format: PDF
Kopierschutz: DRM
Preis: 96,29 EUR
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Confidentiality in International Commercial Arbitration - A Comparative Analysis of the Position under English, US, German and French Law
Preface
6
Contents
8
Abbreviations
12
Chapter 1: Introduction
13
General
13
Aims, Outline and Scope
15
General
15
Aims
16
Background Justification
17
Research Purpose
18
General Outline
18
Detailed Outline
19
Arbitration, as Opposed to Other Means of Alternative Dispute Resolution, and Confidentiality Within It
20
Chapter 2: The History, Importance and Modern Use of Arbitration
23
The History of Arbitration
23
England
23
USA
25
France
26
Germany
26
The Importance and Modern Use of Arbitration
27
The Eminence of Arbitration Over Other Means of Alternative Dispute Resolution
27
In General
27
In Relation to Confidentiality
28
Tentative Observations
29
Chapter 3: Problems and Questions Encountered in Relation to Confidentiality in Arbitration
30
The Main Problems and Questions on Confidentiality in Arbitration
30
General
30
The Advantages and Disadvantages of Arbitration as Opposed to State Court Litigation and the Interplay with Confidentiality
31
Factors and Standards Affecting the Level of Protection of the Duty of Confidentiality in Arbitration
35
The Distinction Between Privacy and Confidentiality in Arbitration as Opposed to State Court Proceedings
35
Privacy
36
Confidentiality
37
The Judicial Attitude
38
The Scope and Limits for the Observance of the Duty to Confidentiality in Arbitration
40
With Regards to the Arbitration Proceedings Themselves
41
With Regards to Documents Relating to Discovery or Evidence
41
With Regards to the Award
41
Legal Professional Privilege
43
The Limitations Imposed by the European Convention on Human Rights
44
Confidentiality and Its Correlation with the European: Global Context of Arbitration
46
The Way Forward?
46
Chapter 4: The Present Status of Confidentiality in International Commercial Arbitration in the Various Jurisdictions
48
Setting the Scene
48
General Observations on Confidentiality in International Commercial Arbitration
48
The Distinction Between Privacy and Confidentiality
48
Privacy
50
Confidentiality
51
Arbitration and Human Rights
52
Impartial and Independent Tribunal
54
Fair Trial
56
Decision Within a Reasonable Time
57
Public Hearing and Confidentiality
57
Other Cases of Necessary Compliance with Article 6 of the ECHR
59
Tentative Observations
60
Legal Privilege, Arbitration and the Issue of Confidentiality
61
The Legal Nature of Confidentiality in Arbitration
64
The Legal Framework of Arbitration and the Position in Relation to Confidentiality in the Various Jurisdictions
68
England
68
USA
70
France
73
Germany
75
The Case Law on Confidentiality in the Various Jurisdictions
78
General
78
Confidentiality in Arbitration Proceedings in Relation to the Proceedings Themselves
79
England
79
USA
84
France
87
Germany
87
Tentative Observations
88
Confidentiality in Arbitration Proceedings in Relation to Discovery (Disclosure) of Documents and Other Evidence During the Ar
88
England
88
USA
105
France
112
Germany
112
The Public Interest Exception
114
Tentative Observations
117
Confidentiality in Arbitration Proceedings in Relation to the Award
118
England
118
USA
129
France
131
Germany
132
The Treatment of Confidentiality by ICC Rules
132
Conclusions
133
Chapter 5: Critical Analysis, Overall Assessment and Discussion
138
Overall Analysis of Arbitration and Confidentiality Within It
138
Critical Assessment and Analysis of the Purpose of Arbitration and Its Interplay with Confidentiality
138
Critical Analysis on the Basis of the Examined Case Law in the Chosen Jurisdictions
140
The Current Position
140
Critical Assessment, Analysis and Justification of the Interplay of Arbitration and Confidentiality
144
Critical Assessment, Analysis and Justification of the Desired Level of Confidentiality to Be Preserved
147
Possible Solutions as to the Way Forward
148
Tentative Conclusion
154
Chapter 6: Transnational Law and Arbitration
156
The Need for Transnational Law
156
In Relation to International Commercial Law
156
In Relation to Arbitration
158
Transnational Law and Arbitration
159
Public and Mandatory Rules Functioning as Transnational Law Applied to Arbitration
159
Arbitral Case Law, International Legal Instruments and National Laws Functioning as Transnational Law Applied to Arbitration
161
Transnational Arbitral Law and Its Interplay with Confidentiality
162
The Notion of a Uniform Arbitral Law
164
Chapter 7: Towards a Uniform Arbitration Law?
165
The Uniformity Debate
165
The Process of Internationalisation of Arbitration: A Newly Emerging Lex Mercatoria
165
The Debate Over the Emerging New Lex Mercatoria
168
A Uniform Law?
168
A Uniform Rule on Confidentiality in Arbitration
169
Chapter 8: Conclusions
171
A General Critique
171
An Overview
171
Tentative Conclusions
175
Ways to Safeguard Confidentiality
176
Policy Means and Considerations
177
Contractual Creation?
177
Incorporation Through Institutional Arbitration Rules
178
Legislative Regulations
178
Considerations with Regards to the Publication and Enforcement of Awards
179
Arguments Against Confidentiality
180
Other Relevant Factors: Legal Cultures and Traditions
181
Future Prospects and Suggested Routes
187
A Final Thought
189
Bibliography
193
Table of Cases
201
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