Chicago Journal of International Law


It is often said that confidentiality is one of the benefits of international commercial arbitration and one of the principal reasons why business people have made arbitration the forum of choice for the resolution of international commercial disputes. Others have gone further and suggested that parties "place the highest value upon confidentiality as a fundamental characteristic of international commercial arbitration." No authority is generally cited for such a proposition but it is seen as implicit or a corollary to an agreement to resolve a dispute by way of arbitration. Claimants in the North American Free Trade Agreement ("NAFTA") Chapter 11 arbitrations have generally relied on this notion that the private nature of arbitrations gives rise to a duty of confidentiality, with some success, to support their contention that materials generated and produced in Chapter 11 proceedings cannot be made publicly available. This has led to criticisms from nongovernmental organizations ("NGOs") and others that the NAFTA Chapter 11 dispute settlement mechanism is secretive and not open to public scrutiny. This paper argues that the existence of a general principle of confidentiality applicable to commercial arbitrations is far from a settled issue, and more importantly, if it does exist, it should have no application in the context of NAFTA Chapter 11 arbitral proceedings.