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Arbitration is often preferred for its privacy and efficiency in resolving disputes. However, the assumption that all arbitration proceedings are confidential can be misleading. In the UAE, the legal framework around the confidentiality of arbitration varies significantly depending on the jurisdiction and specific arbitration rules in use. This article delves into the intricacies of confidentiality in arbitration within the UAE, highlighting key cases, laws, and practical steps to ensure privacy in arbitration.
Confidentiality in Arbitration
Definition
Confidentiality in arbitration refers to the obligation to keep details of the arbitration proceedings, including documents and awards, private and not disclosed to external parties. This aspect is crucial for businesses that want to protect sensitive information and maintain their reputation.
Legal Framework in the UAE
UAE Federal Law
The UAE’s primary legal provisions on arbitration are found in the UAE Civil Procedure Law (Federal Law No. 11 of 1992), Articles 203-218. However, these articles do not explicitly address confidentiality. A landmark case, *Dubai Court of Cassation No. 157/2009*, established that arbitration is a private process and should be conducted in secret unless agreed otherwise by the parties.
DIFC Arbitration Law
The DIFC Arbitration Law 2008, modeled after the UNCITRAL Model Law, explicitly addresses confidentiality. Article 14 states, “Unless otherwise agreed by the parties, all information relating to the arbitral proceedings shall be kept confidential, except where disclosure is required by an order of the DIFC Court.”
Institutional Rules on Confidentiality
DIAC and DIFC-LCIA
Both the Dubai International Arbitration Centre (DIAC) and the DIFC-LCIA have rules mandating confidentiality. DIAC Rules Article 41 and DIFC-LCIA Rules Article 30 state that all awards and documents produced during the arbitration must be kept confidential unless disclosure is required by law or necessary to protect a legal right.
ADCCAC and ICC
The Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCCAC) and the International Chamber of Commerce (ICC) do not have explicit confidentiality provisions in their rules. However, the ICC rules state that hearings are private, implying a level of confidentiality.
Private Process
Dubai Court of Cassation No. 157/2009 confirmed that arbitration is a private process in the UAE and should be conducted in secret unless the parties agree otherwise, setting a precedent for confidentiality in arbitration proceedings.
DIFC Rule
Also, DIFC Court Rule 43.41 generally holds claims related to arbitration in private, reinforcing the commitment to confidentiality in arbitration within the DIFC jurisdiction. Additionally while confidentiality is upheld during arbitration, its limits are tested during the enforcement of arbitral awards. Courts in the UAE typically hold enforcement proceedings in public unless a compelling reason for privacy is presented.
Practical Tips for Ensuring Confidentiality
Draft Clear Confidentiality Clauses:
Include explicit confidentiality provisions in the arbitration agreement to avoid ambiguity and ensure that all parties understand their obligations. Consult a Dubai lawyer in drafting & reviewing the agreements.
Use Institutional Rules:
Opt for arbitration institutions with strong confidentiality rules, such as DIAC or DIFC-LCIA, to reinforce the confidentiality of the proceedings.
Preliminary Hearings:
Raise the issue of confidentiality at the preliminary hearing and have it recorded in the Terms of Reference, ensuring that all parties and the tribunal acknowledge the obligation.
Legal Remedies:
In cases of threatened or actual breaches of confidentiality, seek an injunction from the local courts to prevent further disclosure. Both UAE and DIFC courts recognize the confidential nature of arbitration and can provide legal remedies.
Continuous Reminders:
Regularly remind all parties involved, including witnesses and experts, of their confidentiality obligations throughout the arbitration process.
Conclusion
Confidentiality in arbitration is a critical aspect that businesses must not overlook. While the legal framework in the UAE supports confidentiality, it is essential to proactively ensure this through well-drafted arbitration clauses, choosing the right institutional rules, and being vigilant throughout the arbitration process. By taking these steps, parties can protect their sensitive information and uphold the integrity of the arbitration process. Reach out to top Dubai Lawyers or arbitration law firms in dubai to help you out.