Finlayson Christopher: Arbitration Amendment Bill — In Committee 
Finlayson Christopher: Arbitration Amendment Bill — In Committee 
[Volume:639;Page:9781] 
CHRISTOPHER FINLAYSON (National) 
: 
 I just want to say something about Part 1 and the issue of confidential information. This issue really is at the very heart of the Arbitration Amendment Bill and it deserves more than a cursory overview when we debate the title. 
There are various types of dispute resolution. There are resolutions of matters that may be heard in court—the District Court or the High Court—and the general principle with those types of proceedings is that they must be conducted in public. The old maxim says that not only should justice be done but justice should be seen to be done. That is why with very few exceptions court proceedings are held in open court and members of the public are entitled to be present. 
A lot of people do not like that sentiment. They prefer that their disputes particularly if they are business disputes be heard in private. Over the years there has been a move towards arbitration because one of the truly attractive features of arbitration is that the arbitral proceedings are held in private and are confidential. 
 There has been doubt for some years over the confidentiality provisions of the 1996 Act and some very real problems have emerged that have necessitated applications to the court for orders that certain material be released for example from a valuation arbitration. That is why the Law Commission over a number of years produced a couple of reports dealing with this vexed issue and why this bill endeavours to deal with it—and I think succeeds. 
The bill removes many of the limitations to confidentiality but it still retains the principle of confidentiality. Indeed if one looks at new section 14A one sees the fundamental principle that arbitral proceedings must be private but that there are certain limits on the prohibition of disclosure of confidential information and these are set out in the bill. New section 14C provides for example that a party or an arbitral tribunal may disclose confidential information to a professional or other adviser of any of the parties or if a subpoena is required to be complied with. 
Perhaps it is important also to emphasise that clause 4 contains a very comprehensive definition of exactly what confidential information is. Confidential information will include for example not only information that relates to the arbitral proceeding but also documents such as the pleadings the statement of claim the statement of defence and so on and any evidence that may have been adduced at the arbitration. 
So new section 14C is extremely important. New section 14D empowers the tribunal to allow disclosure of confidential information in certain circumstances. New section 14E provides that the High Court on application to it may allow or prohibit disclosure of confidential information in circumstances where the arbitral proceedings have been terminated or where the party lodges an appeal concerning confidentiality. So the court will determine the matter and then may or may not permit the confidential information to be handed over. 
It is important to note new section 14F because it comes back to the original point that I made concerning the fact that court proceedings under the Act must be conducted in public except in certain circumstances. I do not think there will be many circumstances at all where the courts will proceed to deal with matters privately or as they say in camera. 
The kinds of circumstances where the court can make an order that a matter be heard in private are set out in subsection (2) and can be seen for example in paragraph (b) which states that a matter can be heard in private “only if the Court is satisfied that the public interest in having the proceedings conducted in public is outweighed by the interests of any party to the proceedings in having the whole or any part of the proceedings conducted in private.” An example could well be when two corporate entities are in a complex commercial arbitration—over a patent for example. If highly sensitive information is disclosed concerning say the plaintiff’s patent there could well be very sound reasons why that kind of information would not be aired in open court. 
So there we have it. These are very good provisions that will provide some real assistance to parties to an arbitration. I might say that they are well overdue but as they always say better late than never.