confidentiality in arbitration: how far does it extend

The confidentiality of international arbitration proceedings and awards is one area with a crying need for corrective hands today. for the protection of health, provided the breach is proportionate to the aim sought and is in accordance with the law. 0000001975 00000 n

Who should a duty of confidentiality extend to? But as a consequence of case law, three quite far-reaching rules apply. 3. 0000002642 00000 n Like England, however, case law (following English common law) recognises a general obligation of confidentiality, implied into the arbitration agreement.In several jurisdictions, arbitrators are liable if they disclose arbitration information without consent, including the Dubai International Finance Centre (“DIFIC”), which has rules that require that all information relating to arbitral proceedings be kept confidential, except where disclosure is required by order of the DIFIC Court.With regard to the arbitration rules, the position is equally diverse. The former is perhaps in a similar category to the private and closed nature of arbitration hearings, and therefore readily considered confidential, save that in some instances there may be a third party, like a witness of fact, who knows the content of the document and regards it as theirs. To give a flavour of the problem, consider the question of documentation generated as part of the arbitral process by the parties and the arbitrators, including the award, as against pre-existing documentation made available as evidence. Businesses like Coca-Cola and KFC have managed to keep their trade secrets for 100 years and go to great lengths to protect their trade secrets, treating them with special attention.For example, it has been a belief for decades that only two executives of Coca-Cola know the original secret Coca-Cola formula at any one point and that the original recipe is kept in a vault in Atlanta, Georgia.KFC operates similarly in such a covert manner and only a handful of employees know its secret recipe of “According to reports on KFC, two companies are used to manufacture the secret recipe and each company is only given half of the recipe to prevent either company from knowing the full recipe.A California court upheld the importance of confidentiality with trade secrets was the case of Because trade secrets can last indefinitely, you should never place a time limitation on how long the secret is to be kept.Never make the mistake of including a time limitation in your non-disclosure agreement for a trade secret because this would simply mean that the receiving party of your disclosure no longer has to keep your trade secret confidential after the time duration for secrecy has passed.If you only intend to disclose trade secrets, then it would be reasonable for you to include a clause that requires perpetual confidentiality.However, as is normally the case, if you intend to make a combination of both trade secret disclosures and ordinary confidential information, then you have two alternatives.If your non-disclosure is going to be in a jurisdiction where perpetual agreement are accepted by the courts, then you can choose not to have any time limitation in your agreement at all.However, if your non-disclosure agreement will be covered by a jurisdiction where perpetual agreement are generally not looked upon favorably, then it would be better if you have two Here is an example clause from To avoid any confusion about what’s confidential information and what’s a trade secret, you should provide a definition of what would be confidential information and what would qualify as a trade secret.Here’s another example, again from To support your classifications, you should also ensure that all your disclosures are marked ‘One other factor to be aware of is the danger of including other types of clauses that courts may consider restrictive in your non-disclosure agreement.If you choose to include something like a non-competition clause, be very careful against including a perpetual time duration for your agreement.Courts generally frown a lot harder on non-competition clauses that would limit a person’s ability to find a future job, as evidenced in Instead, you may consider creating two separate agreements.

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