The Fruit of the Arbitration Tree: Confidentiality in International Arbitration

International arbitration proceedings are often revelatory. Events or conduct may come to light or take on new significance in the context of information disclosed during the arbitration. These materials may form the basis for different causes of action against the same or different parties before either arbitral tribunals or courts. However, when the use of arbitration materials in a subsequent proceeding is permissible remains a vexed question. This article attempts to provide practical guidance on the use of arbitration materials in subsequent proceedings in the UK, Singapore and Australia. In the first part, we address the nature and content of the confidentiality obligation. In the second part, we outline the major applicable exceptions to the rule. In the third part, we consider certain procedural questions. Ultimately, the use of confidential materials in subsequent proceedings is subject to arbitral or curial supervision. By understanding the nature of the obligation, its exceptions and the procedural considerations involved, practitioners can better advise clients and improve the chances of successfully using (or defeating an application to use) arbitration
materials in subsequent proceedings.