Tan Sri Dato’ Cecil W M Abraham Dato’ Sunil Abraham Aniz Ahmad Amirudin April 21 2022 Conducting arbitration in Malaysia: protection of confidentiality Cecil Abraham & Partners | Arbitration & ADR - Malaysia Tan Sri Dato’ Cecil W M Abraham, Dato’ Sunil Abraham, Aniz Ahmad Amirudin Arbitration & ADR Prohibition of disclosure of information relating to arbitral proceedings and awardsProceedings to be heard otherwise than in open courtThis article is part of a series on conducting arbitration in Malaysia.(1)Prohibition of disclosure of information relating to arbitral proceedings and awardsThe Arbitration (Amendment) Act 2018 (No. 2) (the 2018 Amendment Act)(2) introduced a new section 41A into the Arbitration Act 2005 (the 2005 Act) that prohibits any party from publishing, disclosing or communicating any information relating to the arbitral proceedings under the arbitration agreement or the award that was made in those arbitral proceedings, unless the parties have agreed otherwise. Exceptions to this rule arise where:the publication, disclosure or communication is made to protect or pursue the legal rights or interests of the party or to enforce or challenge the award in those arbitral proceedings;the publication, disclosure or communication is made to any governmental body, regulatory body, court or tribunal and the party is obliged by law to publish, disclose or communicate such information; andthe publication, disclosure or communication is made to a professional or any other adviser of any of the parties.The confidentiality provision was recently interpreted by the High Court in Dato' Seri Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd.(3) The defendant relied on section 41A and raised a preliminary objection to the use of two documents prepared for the purpose of an arbitration involving the defendant. The defendant maintained that it had given no consent for the publication, disclosure or communication of either of the documents that were annexed to the plaintiff's affidavit in reply. The plaintiff himself was not a party to the arbitration. However, the defendant contended that confidentiality extends even to a third party, such as the plaintiff, who was not a party to the arbitration based on common law.The High Court dismissed the defendant's preliminary objection on the premise that the prohibition contained in section 41A does not apply to non-parties to an arbitration. The statutory provision also supersedes any common law confidentiality principles attached to an arbitration. In any event, if the plaintiff were a party to the arbitration, the plaintiff could have availed himself of the exception contained in section 41A(2)(a)(i), which stipulates that publication, disclosure or communication of information is allowed to protect or pursue a legal right or interest of a party.Proceedings to be heard otherwise than in open courtThe 2018 Amendment Act also introduced a new section 41B into the 2005 Act, which provides for court proceedings to be held otherwise than in an open court (ie, proceedings in camera), unless a party applies to the court to conduct such proceedings in an open court or where the court is satisfied that those proceedings ought to be heard in an open court in the circumstances. An order directing proceedings to be heard in open court is final.For further information on this topic please contact Tan Sri Dato' Cecil Abraham, Dato' Sunil Abraham, Aniz Ahmad Amirudin or Syukran Syafiq at Cecil Abraham & Partners by telephone (+60 3 2726 3700) or email ([email protected], [email protected], [email protected] or [email protected]) . The Cecil Abraham & Partners website can be accessed at cecilabraham.com.Endnotes(1) For earlier articles in the series, see:"Conducting arbitration in Malaysia: doctrine of separability, jurisdiction and arbitrability";"Conducting arbitration in Malaysia: arbitral tribunals";"Conducting arbitration in Malaysia: law governing conduct";"Conducting arbitration in Malaysia: procedure";"Conducting arbitration in Malaysia: taking of evidence";"Conducting arbitration in Malaysia: interim measures of protection"; and"Conducting arbitration in Malaysia: interaction between national courts and arbitration tribunals, multi-party situations and effect of insolvency".(2) For details of the current arbitration legislation in Malaysia, see "Introduction to arbitration in Malaysia: history and current legislation".(3)  10 MLJ 693.