The English High Court has recently considered the extent to which the public interest in public judgments outweighs the confidentiality attached to arbitral proceedings.
In Radisson Hotels ApS Danmark (“Radisson”) v Hayat Otel İşletmeciliği Turizm Yatirim Ve Ticaret Anonim Şirketi (“Hayat”), Radisson made an application under section 68 of the Arbitration Act 1996 (the “1996 Act”) to challenge the fairness and impartiality of the arbitration following an award in an ICC arbitration (the “s68 Application”). The allegations were broadly that, unbeknown to Radisson, a member of the Tribunal had exchanged communications with an expert appointed by Hayat and that this irregularity inferred that there was actual bias. Following the determination of the s68 Application, Radisson sought an order that the judgment of the High Court be anonymised and redacted (including in relation to the names of the parties and any witnesses) to preserve the confidentiality of the underlying arbitration ( EWHC 1223 (Comm)).
In applying established authority in Manchester City Football Club Ltd v Football Association Premier League Ltd and others  EWCA Civ 1110, Dame Clare Moulder held that the judgment should be published in full, without redaction. When considering whether to maintain the confidentiality of private arbitration, Dame Clare stated that it was necessary to balance the competing concern of public interest in the publication of the judgment. In this case, Dame Clarer was clear that “[t]here is a public interest in understanding how the courts apply the law to maintain fairness in the conduct of arbitrations.” [paragraph 20].
Radisson had brought its s68 Application alleging serious irregularities in the arbitral process, a topic which, in the Court’s view, should be within the public domain. Moreover, such public interest in applications relating to fairness in the conduct of arbitrations was irrespective of whether the decision was ultimately one of general importance or novelty. Other factors influencing the Court’s decision included that (i) the arbitration and the nature of the dispute was already referred to in general terms in Radisson’s public accounts; and (ii) the judgment did not disclose details of the arbitration. It was recognised that the parties had agreed that any ICC Award would not be published, but this was not sufficient for the Court to grant Radisson’s application.
The Court did anonymise the names of the Tribunal members (subject to any separate application being made in that regard).
Arguably, this decision is simply a logical and obvious one. However, it serves as a useful reminder that, notwithstanding the confidentiality enshrined in institutional arbitral rules, there remains a risk that details of an arbitration may become public, not least if one party seeks to challenge the arbitration under any of the grounds in the 1996 Act. Whilst all practical steps can be taken by the parties during an arbitration, any applications or proceedings before a Court bring with it the risk of publicity.
As to the s68 Application itself, the Court held that Radisson had not acted “promptly” (as required by section 73 of the 1996 Act) when it first became aware of potential bias and therefore lost the right to challenge the ICC Partial Award ( EWHC 892 (Comm)).
There is a public interest in understanding how the courts apply the law to maintain fairness in the conduct of arbitrations.