Asianosaisen salassapitovelvollisuus välimiesmenettelyssä
Avainsanat:
asianosainen, luottamuksellisuus, salassapito, sopimuksen tulkinta, välimiesmenettely, välityssopimus, yrityssalaisuusAbstrakti
Confidentiality is almost always mentioned as one of the benefits of arbitration, especially in connection with corporate disputes. However, it is not clear what the basis of this argument is.
It is true that the parties can agree on confidentiality in the arbitration agreement. Despite this, they seldom use this option, since they expect that the arbitration is kept confidential anyway. It is also true that, in practice, the parties often keep the proceedings confidential, as well as the information gathered during the proceedings. Yet the question remains: are they actually obliged to do so? In other words, do they have a duty of confidentiality?
The purpose of this article is to examine whether the parties have a duty of confidentiality in arbitration and what could constitute the basis for this duty. The Finnish Arbitration Act is silent on the confidentiality issue, and it is seldom covered in the actual arbitration agreement. However, one must take into consideration that the duty can also derive from the parties’ other contracts or even, in some cases, from laws that regulate the use of trade secrets. This means that the general principles of contract law and contract interpretation play a vital role in assessing the parties’ possible duty of confidentiality. Finally, this article also discusses the rationale for confidentiality, weighing its pros and cons.
The conclusion is that in general, the parties do not owe a duty of confidentiality to each other in arbitration, but there are also several exceptions to this principal rule. This should be taken into consideration when drafting arbitration agreements. For the sake of clarity, the legislator could also take a stand on the confidentiality issue.
