Fundamental Principle of Arbitration
Firstly, one of the fundamental principles of arbitration is that arbitration proceedings are private. Parties are agreed to submit the disputes arising between themselves and only between themselves as agreed in their arbitration agreement.
The confidentiality in the arbitration procedures may be seen when the public are excluded and have no right to attend hearing, only the parties to the arbitration agreement and their representatives can attend any arbitration meeting or hearing. In other word, arbitration is the outcome of a private agreement between parties to settle their disputes from the courts, and submit it to the decision of a private tribunal. If the principle of privacy is breached, the arbitration will be effected.
The second principle is confidentiality. It is when that all takes place at arbitration is confidential. Either party or tribunal cannot disclose to third person without the consent of the other except for the purpose of the proper conduct of the arbitration.
However, there is a question regarding to these two principles which is whether privacy automatically results in confidentiality or does it automatically demand confidentiality. There are two main areas of confidentiality which are confidentiality prior to award and confidentiality after award. According to English law, there are two opinions regarding with this issue. First, if it was absence of an express term in an arbitration clause providing for confidentiality, the presumption of confidentiality will applies. Second, the general duty of confidentiality cannot be implied in a silent clause for arbitration in an agreement. However, this opinion has been criticized since it is a break with the general principle of confidentiality.
In Malaysia, there is no doubt that privacy and confidentiality are regarded as essential features for the parties to the arbitration. An arbitrator in breach of the confidentiality requirements would be exposed to misconduct proceedings.
Finally,
The confidentiality in the arbitration procedures may be seen when the public are excluded and have no right to attend hearing, only the parties to the arbitration agreement and their representatives can attend any arbitration meeting or hearing. In other word, arbitration is the outcome of a private agreement between parties to settle their disputes from the courts, and submit it to the decision of a private tribunal. If the principle of privacy is breached, the arbitration will be effected.
The second principle is confidentiality. It is when that all takes place at arbitration is confidential. Either party or tribunal cannot disclose to third person without the consent of the other except for the purpose of the proper conduct of the arbitration.
However, there is a question regarding to these two principles which is whether privacy automatically results in confidentiality or does it automatically demand confidentiality. There are two main areas of confidentiality which are confidentiality prior to award and confidentiality after award. According to English law, there are two opinions regarding with this issue. First, if it was absence of an express term in an arbitration clause providing for confidentiality, the presumption of confidentiality will applies. Second, the general duty of confidentiality cannot be implied in a silent clause for arbitration in an agreement. However, this opinion has been criticized since it is a break with the general principle of confidentiality.
In Malaysia, there is no doubt that privacy and confidentiality are regarded as essential features for the parties to the arbitration. An arbitrator in breach of the confidentiality requirements would be exposed to misconduct proceedings.
Finally,