Normative basis for the confidentiality rule in Polish commercial arbitration

Introductory comments 

Almost ten years ago, Jerzy Rajski (J. Rajski, Zagadnienia poufności w arbitrażu handlowym, “Przegląd Prawa Handlowego” 2001/6, p 1.) pointed out that the confidentiality rule in arbitration proceedings has, all in all, never been the object of broader analysis in Polish legal doctrine, even in the context of discussing its advantages. Since then, the situation has changed insofar as the confidentiality principle is now mentioned, if only in passing, in all the elaborations concerning arbitration (please see e.g. Ł. Błaszczak, M. Ludwik, Sądownictwo polubowne, Warsaw 2007, p 142; T. Ereciński, K. Weitz, Sąd Arbitrażowy, Warsaw 2008, p 49; R. Morek, Mediacja i arbitraż(art. 183¹–183¹⁵, 1154–1217 k.p.c.). Komentarz, Warsaw 2006, p 212), or even referred to as a fundamental hallmark of arbitration, as juxtaposed with litigation before the general courts (please see, inter al, the interview granted by P. Nowaczyk to K. Tomaszewski, Jak do rozstrzygania sporów wykorzystać arbitraż, “Gazeta Prawna” of 8.09.2009 no 175, www.gazetaprawna.pl; A.W. Wiśniewski, Arbitraż czy sąd państwowy,“Gazeta Prawna” of 9.09.2008 no 176, www.gazetaprawna.pl.). An Oxford University study indicated that, for 63% of the respondents (representing multinational corporations), the confidentiality principle constituted the main rationale for choosing an alternative dispute resolution method (Civil Justice Systems in Europe, Implications for Choice of Forum and Choice of Contract Law. A Business Survey. Final Results, Oxford 2008, p 46.). Yet the juridical basis for the confidentiality principle in arbitration continues to fuel controversy in Polish as well as foreign arbitration circles. One of the consequences has been that the Commission on Arbitration of the International Chamber of Commerce in Paris drew up a comparative study of the pertinent legislation in various countries and of the rules of different arbitration institutions, illustrating the considerable differences in the approaches adopted by specific legal groups (the report was drawn up and published by Antonias Dimolitsa, see A. Dimolitsa, Institutional Rules and National Regimes Relating to the Obligation of Confidentiality on Parties In Arbitration in Confidentiality on Arbitration, “Special Supplement ICC International Court of Arbitration Bulletin” 2009, p 5.). Serge Lazareff, referring to the famous sentence by Rudolf von Ihering, stated that “confidentiality is the twin sister of arbitration”, in the sense that the confidentiality rule is an essential element of commercial arbitration and, as such, may be deviated from only where some absolute, critically important public interest comes into play (please see Lazareff, Confidentiality and Arbitration: Theoretical and Philosophical Reflections in Confidentiality on Arbitration, “Special Supplement ICC International Court of Arbitration Bulletin” 2009, p 81.). The debates on the confidentiality principle in arbitration have delved into applicability of the confidentiality principle as such and into the individual components defining its nature and ambit.

Considering the essence of the confidentiality principle, there is the arbitration agreement (agreement re resolution by way of ADR) and the manner of its performance, i.e. the proceedings pursued on the basis of such agreement. In this regard, confidentiality protection may extend to: a) the very fact of the arbitration agreement’s execution, b) the fact that proceedings before an ADR tribunal have been commenced and that they have reached successive stages, c) information about the parties and their operations disclosed / exchanged in the course of the proceedings, d) the actual tribunal sessions (with the proceedings being conducted behind closed doors and any access by third parties requiring permission by the parties to the case), e) deliberations by the arbitrators (especially their final discussions preceding the announcement of their ruling), and f) the ruling.

Proceeding to the ambit of the confidentiality rule, there arises the question of exactly what duties are incumbent on the individual entities involved in arbitration proceedings in different capacities. The following groups may be distinguished: a) the parties to the proceedings themselves, b) other persons invited by the parties, such as a secondary participant joining in the proceedings on the side of one of the parties (see e.g. pars 20–21 of the Rules of the Lewiatan Arbitration Court, www.sadarbitrazowy.org.pl.), c) witnesses, d) expert witnesses called by the tribunal itself or by the parties, e) translators, f) arbitrators, and g) members of the arbitration institution’s staff and governing bodies.

The parties may lay down their own rules governing confidentiality in their arbitration proceedings – in the arbitration clause / arbitration agreement itself, in an additional agreement, or as a procedural norm in the context of ADR proceedings (in exercise of their freedom to define their own rules and means of proceeding, as laid down in art 1184 § 1 of the Polish Civil Process Code). The arbitration clause may incorporate direct reference to the rules of the tribunal chosen by the parties, which are bound to address the question of confidentiality at one level or another. Practice has also witnessed instances where, if the parties are unable to reach agreement as regards maintaining confidentiality, the arbitration panel may issue a procedural decision in this regard on authority of art 1184 § 2 of the Polish Civil Process Code, laying down detailed limitations concerning disclosure of information associated with the proceedings or acquired in their course. The above gives rise to the question of whether the Polish legal system includes any standard which would constitute grounds for a confidentiality obligation also in those instances where neither the parties nor the arbitration tribunal have made any provisions in this respect and, if yes, then to what extent ? This article will endeavour a reply to this question. (…)