English High Court: Public Interest Outweighed Confidentiality of Arbitration

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Non-parties are entitled to obtain documents related to an arbitration if the case falls within the “interests of justice” exception.

In The Chartered Institute of Arbitrators v B, C and D,[1] the English High Court granted the Chartered Institute of Arbitrators (Institute) access to documents related to an arbitration for use in disciplinary proceedings. Applying CPR 5.4C(2), the court balanced the Institute’s legitimate interests in obtaining copies of the documents with the duty of confidentiality in arbitration proceedings. The court held that the general public interest “in maintaining the quality of and standards of arbitrators” outweighed the need to preserve confidentiality of the arbitration.

The case highlights the tension between the public interest in accessing documents related to an arbitration and the confidentiality of the proceedings. On the facts, the quality and standard of arbitrators was of public importance, and minimal harm, if any, would be caused by allowing the Institute access to the documents.

Background

A dispute arose between C and D. A fellow of the Institute, B, was appointed as arbitrator in the case. An issue then arose regarding the professional relationship between B and D. An arbitral hearing was held to determine whether the tribunal was properly constituted (Arbitration Hearing). B confirmed that it was properly constituted and that he had no conflict of interest. Subsequently, C applied to the court to remove B as arbitrator on the grounds that circumstances gave rise to justifiable doubts as to his impartiality (Section 24 Hearing). The court concluded that there was a real possibility of bias, and B subsequently resigned as arbitrator.

The Institute then brought disciplinary charges against B. These charges included, among other things, that B had failed to disclose interests likely to affect his independence and impartiality; that B had failed to make disclosure of involvement with a party to the arbitration; and that B had called a meeting inappropriately on his own motion. For these reasons, it was alleged that B was guilty of misconduct by acting in a manner injurious to the good name of the Institute and for acting below the standards expected of a competent practitioner.

The Application

In support of the disciplinary proceedings, the Institute applied under CPR 5.4C(2) to the court to obtain copies of documents from the Section 24 Hearing that related to the arbitration. These included, among other things: witness statements and skeletons used in the Section 24 Hearing; the Arbitration Hearing transcript (which the Institute relied on for many of the disciplinary charges); and correspondence relating to the Arbitration Hearing and the appointment of B (together, the Documents).

The Institute also sought declarations from the court that it, together with B, were entitled to refer to and rely on:

  • The Documents in the disciplinary proceedings
  • The circumstances of B’s nomination and appointment as arbitrator in matters concerning D

The Institute also sought a declaration that the use of the Documents was in the public interest.

C consented to the Institute and B being able to refer to and rely on the Documents and the circumstances of B’s nomination and appointment as arbitrator. D did not object.

Judgment

Access to the Documents

The court granted the Institute access to the transcript of the Arbitration Hearing, the related correspondence, and the witness statements, but refused to grant the Institute access to the skeletons.

The court applied Cape Intermediate Holdings Ltd v Dring[2] and held that a non-party could obtain witness statements and exhibits filed in an application to remove an arbitrator as being “records of the court” under CPR 5.4C(2), if permission was granted. Alternatively, documents deployed in a public court hearing could be provided under the court’s inherent jurisdiction.

In reaching its decision, the court considered:

  1. The Institute’s legitimate interest. The Institute had a legitimate purpose in seeking to obtain the Documents. The Institute’s charter provided that it supervises and monitors its members and also exercises disciplinary control. Given that the disciplinary charges were based on the Arbitration Hearing transcript and the correspondence, it would otherwise appear impossible to pursue the charges unless the Documents were made available.
  2. Confidentiality. There is an implied duty of confidentiality arising out of arbitration. Generally speaking, a stranger is not to be given access to arbitration-related documents. However, the court recognised that an exception to the principle of confidentiality includes “the interests of justice”. The court held that there is a general public interest in maintaining the quality and standards of arbitrators. This interest extends beyond the parties in the case and to members of the wider public who choose to refer their disputes to arbitration. The general public are entitled to expect that arbitrators of a body, including those that are members of the Institute, meet certain standards and that those standards will be enforced.
  3. Harm. The court considered the harm, if any, that would be caused to the legitimate interests of other parties. As the Section 24 Hearing was in open court and the court was taken to the Arbitration Hearing transcript, the materials were largely already in the public domain. The correspondence also did not refer to the underlying dispute. Accordingly, minimal harm, if any, would be caused.

The court, however, refused to allow the Institute access to the skeleton arguments. It was not in the interests of justice to grant access as the disciplinary proceedings were not based on the findings of the court in the Section 24 Hearing.

Declarations

The court made the declaration that the Institute and B were entitled to refer to and rely on the Documents (excluding the skeletons) in the context of the disciplinary proceedings. The public interest exception applied to override the confidentiality obligation. However, the application for a declaration with respect to the circumstances of B’s nomination and appointment insofar as it related to arbitration proceedings other than those between C and D was refused. The parties to the other arbitrations with D in which B was nominated had not been notified of the application.

Comment

The case highlights the tension between the duty of confidentiality in arbitration and the public interest in obtaining documents related to the arbitration. While there is an implied duty of confidentiality arising from the arbitration itself, such duty may not apply if the case falls within the “interests of justice” exception. The court held that there is a general public interest in maintaining the quality and standards of arbitrators, and accordingly, this finding outweighed the duty of confidentiality.

[1] (2019) EWHC 460.
[2] (2018) EWCA Civ 1795.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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