Most jurisdictions worldwide uphold the concept of open justice, with court proceedings generally being conducted in public by default. Conversely, arbitral proceedings and associated documents are generally subject to the principle of confidentiality, with parties to the arbitration prohibited from disclosing details of the arbitration to third parties. A tension arises when arbitration matters make their way to court, for instance in applications to set aside, recognise or enforce an arbitral award. Does open justice or confidentiality prevail?
Different jurisdictions offer different responses. In Singapore, confidentiality extends to arbitration-related court proceedings as a general rule although there are exceptions. In Malaysia, the protection of confidentiality in arbitration-related court proceedings originally extended only to parties’ names. However, recent jurisprudence indicates that courts have an inherent jurisdiction to safeguard “any information” by way of sealing orders.
In contrast, China considers open justice the starting point. Court decisions (including judgments and civil rulings, the latter being a form of court decision on procedural and jurisdictional issues) must be publicly available regardless of whether they contain information on or relating to an arbitration. Surprisingly, there is little discussion or debate in China regarding whether the principle of confidentiality of arbitration should extend to arbitration-related court proceedings.
In this article, we look at the differing positions in Singapore, Malaysia, and China, and the issues that may arise when the positions conflict.
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