Part I Commentary on the ICDR International Rules, 37 Article 37—Confidentiality
Martin F Gusy, James M Hosking
Martin F. Gusy, James M. Hosking
This chapter addresses Article 37 of the ICDR Rules. The extent to which arbitral proceedings are, or should be, confidential is a topic of recurring debate within the international arbitration community. Article 37—with its focus on imposing a duty of confidentiality on the arbitrators and the institution—represents an innovation by the ICDR that has since been partially adopted by some other institutions. The 2014 revisions to the ICDR Rules added a new provision to this rule that makes clear that issues of confidentiality are otherwise left to the agreement of the parties and any procedural order entered by the tribunal. The revision serves as a reminder to counsel and the tribunal that confidentiality concerns may best be addressed by way of a carefully tailored order within the proceeding itself.