ZAUPNOST V ARBITRAŽNEM POSTOPKU

Duties of Confidentiality of an Arbitrator from the German Perspective

Dr. Mark C. Hilgard

Arbitrators may be facing a situation where they either hear about financial transactions that, from their viewpoint, may be “not quite kosher” or where they learn about crimes or offenses which may also give the impression that the entire “litigious” arbitration proceedings were only conducted for the purpose of creating an amicable “mock transaction”, triggering a “mock fight” about the facts of the case. The parties aim at reaching an arbitral award as a basis “legitimating” certain transactions. An arbitration award or an arbitral settlement is sup-posed to constitute a basis for legitimacy for payment transactions or market collusions that would otherwise not to be justifiable.

In both scenarios arbitrators will be challenged by the question whether they are allowed to engage themselves in such transaction and whether such transaction is subject to a duty of secrecy and confidentiality. 

Hilgard provides, from the perspective of German law, an overview on the duty of confiden-tiality of arbitrators, its limitations and whether or not an arbitration court must forgo or may relinquish confidentiality.