The UK and Australia, two common law systems both seem to have different approaches with regards to confidentiality and misconduct of arbitrators in international arbitration.
Arbitration compared to litigation has proven to be a preferred means in resolving commercial disputes because of its privacy and confidentiality. This is a principle which is widely recognized, however, different jurisdictions like that of Australia and England have different approaches to confidentiality. This is demonstrated in the English case of Emmott v Michael Wilson and the Australian case of Esso Australia v Plowman.
Facts
Mr Emmott, a former director and partner of Michael Wilson and Partners (MWP), incorporated in the British Virgin Islands (BVI) left the …show more content…
Both contracts contained a clause, whereby the price payable for the gas sold was to be adjusted by taking into account changes relating to royalties and taxes attributable to the production or supply of gas and they both demanded sellers to provide buyers with certain details of the adjustments made. In November of 1991, the vendor (who was assigned rights and obligations of another vendor of natural gas in 1988), sought an increase in the price of gas supplied in July1990. The increase was due to the imposition of a new tax, however, the utilities refused to pay since the details concerning the adjustment were not provided as stipulated in the contracts. The vendors therefore commenced arbitration proceedings pursuant to an arbitration clause in the sales …show more content…
In Emmott v MVP, the English court upheld the principle that confidentiality is an obligation implied by the law, on both parties to withdraw from disclosing any documents prepared for and used in the arbitration proceedings. This obligation is, however limited depending on the context in which it arose and the nature of the information or documents issued. In this case the interest of justice justified the breach of confidentiality and so the Court allowed Emmott to disclose the documents to a third party which was being sued in a foreign court. The court held that the interest of justice was not confided to that of England alone and that the international nature of the dispute demanded that the Court take a broader view. It was necessary to disclose the documents in order to prevent the courts of BVI and NSW from being misled and undermining
Arbitration compared to litigation has proven to be a preferred means in resolving commercial disputes because of its privacy and confidentiality. This is a principle which is widely recognized, however, different jurisdictions like that of Australia and England have different approaches to confidentiality. This is demonstrated in the English case of Emmott v Michael Wilson and the Australian case of Esso Australia v Plowman.
Facts
Mr Emmott, a former director and partner of Michael Wilson and Partners (MWP), incorporated in the British Virgin Islands (BVI) left the …show more content…
Both contracts contained a clause, whereby the price payable for the gas sold was to be adjusted by taking into account changes relating to royalties and taxes attributable to the production or supply of gas and they both demanded sellers to provide buyers with certain details of the adjustments made. In November of 1991, the vendor (who was assigned rights and obligations of another vendor of natural gas in 1988), sought an increase in the price of gas supplied in July1990. The increase was due to the imposition of a new tax, however, the utilities refused to pay since the details concerning the adjustment were not provided as stipulated in the contracts. The vendors therefore commenced arbitration proceedings pursuant to an arbitration clause in the sales …show more content…
In Emmott v MVP, the English court upheld the principle that confidentiality is an obligation implied by the law, on both parties to withdraw from disclosing any documents prepared for and used in the arbitration proceedings. This obligation is, however limited depending on the context in which it arose and the nature of the information or documents issued. In this case the interest of justice justified the breach of confidentiality and so the Court allowed Emmott to disclose the documents to a third party which was being sued in a foreign court. The court held that the interest of justice was not confided to that of England alone and that the international nature of the dispute demanded that the Court take a broader view. It was necessary to disclose the documents in order to prevent the courts of BVI and NSW from being misled and undermining