Arbitration - what can be made public

Question

I have read that arbitration proceedings and decisions are private. I have not seen any reference regarding what information can be made public before, during and after the process: Filing and Initiation, Preliminary Hearing, Information Exchange and Preparation, Hearings, and the Award

Could the one party post a blog or take out a newspaper advertisement to document their arbitration claim?

Answer 1

They are private in that they are not run by the government and not subject to the First Amendment right of access that permits basically anyone to walk into a courtroom for basically any proceeding and review virtually all records of the proceeding.

They are not by law private in the way you're talking about them -- some sort of legal prohibition on disclosure of the proceedings. Such a law would probably violate your First Amendment rights.

But you are permitted to contract away your First Amendment rights, and practically speaking, arbitration may force you to do that, especially if your dispute is solved through an arbitration-imposed mediation. Most of the major arbitration associations include confidentiality clauses prohibiting the mediator and the parties from disclosing what happens in that process. For example:

https://www.adr.org/sites/default/files/commercial_rules.pdf https://www.adr.org/sites/default/files/Construction%20Rules.pdf

If the dispute skips or leaves mediation and ends up in an actual arbitration, those rules don't typically apply, but the party would still be subject to the arbitrator's orders for conducting the hearing, which often include a broad gag order preventing the parties from discussing or disclosing what happened in the proceedings.

So the answer to your question, as always, is that it depends. Is there a confidentiality requirement in the rules of the arbitration association, in the arbitration agreement, or issued by the arbitrator?

If the answer is yes, you'd probably need to get permission from the arbitrator, the other party, or the courts to disclose what happened.

If the answer is no, you should probably look harder for the confidentiality agreement that you probably missed. If the answer is still no, you should probably ask a lawyer to double-check. If he says no, you're probably good to go.

Answer 2

Could the one party post a blog or take out a newspaper advertisement to document their arbitration claim?

In the United States, it is likely to be lawful.

That said, it depends on (1) applicable Federal arbitration law, (2) applicable state arbitration law, (3) the arbitral forum rules, (4) the specific arbitration agreement, (5) the specific arbitration, (6) what was published, (7) which party did the publishing, and (8) whether the information is libelous:

• No Federal law, state law, or rule of any of the predominant arbitral forums (AAA, JAMS, and FINRA) makes publication unlawful in general.
• In practice, most agreements incorporate the unmodified rules of the arbitral forum by reference. In theory, the express language of the agreement could preclude it.
• It is possible that the parties agreed to maintain confidentiality. It is also possible that the parties agreed, or that the arbitrator ordered, that limited aspects (e.g. sensitive documents produced in) be kept confidential.
• It is possible that a privacy law prevents one or both parties from making certain disclosures. If a bank and a consumer enter arbitration, bank-specific regulations may make it unlawful for the bank (but not the consumer) to publish a document containing the consumer's 16-digit account number. As another example, disclosure of a document containing a social security number may be prohibited under state law.
• It is likely unlawful to publish false statements.
• It may be unlawful to publish an audio or video recording of some or all of the proceeding under a state wiretapping law.

Answer 3

The law that enables arbitration may impose confidentiality on the participants

Most arbitration laws are based on the UNCITRAL Model Law. This model law, nor the UNCITRAL Rules for Arbitration require that the arbitration be confidential although they do allow the procedures to be agreed upon by the parties. If they agreed to make the proceedings confidential then disclosing them would be a breach of contract.

However, some jurisdictions go further and make confidentiality an integral part of the law. For example, the australia (new-south-wales Commercial Arbitration Act 2010 quoted - all states, territories and the Commonwealth have similar provisions).

27E Disclosure of confidential information

(1) The provisions of this section apply in arbitral proceedings unless otherwise agreed by the parties.

(2) The parties must not disclose confidential information in relation to the arbitral proceedings unless:

(a) the disclosure is allowed under section 27F, or

(b) the disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure, or

(c) the disclosure is allowed under an order made under section 27I.

(3) An arbitral tribunal must not disclose confidential information in relation to the arbitral proceedings unless:

(a) the disclosure is allowed under section 27F, or

(b) the disclosure is allowed under an order made under section 27G and no order is in force under section 27H prohibiting that disclosure, or

(c) the disclosure is allowed under an order made under section 27I.

Note—

There is no equivalent to this section in the Model Law.

Astute readers will note that s27E(1) simply makes confidentiality opt-out in Australia rather than opt-in as it is under the Model law.