• Confidentiality Clause In Arbitration Agreement

    Posted on Dezember 6, 2020 by in Allgemein

    In this case, since the ALJ`s decision was a victory for GC, he would have pleaded with the NLRB to have the confidentiality provision declared illegal. However, a new GC sided with the employer and argued that Boeing`s confidentiality provision was legal. They also submitted that the FAA`s objective was to enforce the arbitration agreements in accordance with its terms and that, under Epic Systems Corp. v. Lewis, 138 pp. Ct. 1612 (2018), the concept of protected concerted action should not be generalized to invalidate arbitration agreements. It should be noted that Clause 42A begins with a non-fruit clause and, therefore, this provision of the Act will prevail for the time being over all other existing statutes. The effects of such a provision will be numerous, especially since many companies opt for arbitration on disputes. Publicly traded companies are required to make multiple statements under various laws, such as SEBI laws.

    Therefore, this provision could lead to a state of potential legal conflict. There is also another contradiction, since one of the functions of the Arbitration Board proposed by India is to obtain the detention of arbitration awards. The legislature should have considered how such a function would be done in light of Section 42-A. It is therefore imperative that before this bill is passed by the Sabha locomotive, there will be a substantial debate on this subject in order to put an end to these contradictions. Most jurisdictions around the world have focused on the protection and confidentiality of arbitration decisions. In addition, there are two other aspects of confidentiality in arbitration – (i) the confidentiality of arbitration; and (ii) the confidentiality of documents or evidence before the Court of Arbitration.3 The first involves the preservation of the confidentiality of any person involved in the dispute and present during the proceedings; Or knowing about these rights, because they act before the Tribunal as a witness or as an employee/administrator/legal adviser to the parties to the dispute. All of these individuals are required not to disclose the information they may hold. It should be noted, however, that not all jurisdictions impose an obligation on witnesses testifying before the Court of Arbitration not to disclose. If India wants to achieve the dream of confidentiality in its national arbitration legislation, it is of the utmost importance that Section 42A of the Act be reviewed. There is more than one exception that must be removed from the duty of confidentiality and it should not be forgotten that arbitration is, after all, a contractual creation.

    The autonomy of the party must have the value it truly deserves in such a dispute resolution mechanism. Therefore, in order to prevent this provision from seeing red flags, it must first be made deviant. On the contrary, some jurisdictions have rejected this approach and have requested disclosure of information or material produced before an arbitration tribunal. These include Australian, Swedish, French and American dishes. It should be noted that, while they rejected the implied duty of confidentiality approach, they are not in favour of absolute disclosure. Rather, these legal systems have listed several exceptions to the principle of confidentiality. For example, Australian laws allow disclosure in agreement with both parties or expert consultants, or where it is necessary to protect a party`s right, etc.10 Overall, these arguments always tend to be a central issue – that is, confidentiality clauses in arbitration agreements disproportionately favour employers and make arbitration, as a whole, less favourable to workers than the traditional judicial system.