Addressing confidentiality, disclosure and choice of law in Arbitration: Reflections of the Law Commission proposals

Abstract

First paragraph: The Law Commission's (the Commission) consultations on the review of the English Arbitration Act 1996 (the Act) aim to increase “the attractiveness of England and Wales as a ‘destination’ for dispute resolution and the pre-eminence of English law as a choice of law” and “the competitiveness of the UK as a global centre for dispute resolution”. In both consultation papers, the Commission discussed implied terms, necessity and business efficacy in the areas of confidentiality, duty of disclosure and applicable law. The Commission proposed to maintain the status quo on the implied duty of confidentiality but suggested statutory amendments on both the duty of disclosure and the governing law of arbitration agreement. Prior to the consultations, these issues were addressed by English common law rules; hence it is essential to examine these rules, the key cases and how they are reflected in the English arbitration jurisprudence, in order to determine whether the Commission’s proposals would provide an added value to arbitration seated in England and Wales.