Till now, my discussions in this section have been by way of introduction to the moot and to arbitration in general. There will be more of those posts in the coming days. However, this post intends to discuss a possible line of argument that can be taken by the participants in one of the issues. What this post will NOT do is, it will not give anyone a source for direct copying of an argument into their memo. This is not meant to be a shortcut, but a starting point for research intended to help teams without much background in the subjects and without the benefit of multiple expert coaches that several teams have.
As discussed earlier, the Respondent has raised an argument that the Claimant has breached the requirement of confidentiality in arbitration.
Rule 8(1) of the 2010 Milan Rules states: "The Chamber of the Arbitration, the Parties, the Arbitral Tribunal and the expert witnesses shall keep the proceedings and the arbitral award confidential, except in case it has to be used to protect one's rights."
The participants can obviously argue whether or not the interview, in which facts underlying the dispute and the existence of the dispute were discussed would breach the obligation to keep confidential the proceedings and the arbitral award. They can also argue on whether the disclosure was necessary to protect the rights of the Claimant, especially right to reputation (as the supply of undersized squid would have affected the reputation of the Claimant with its customers and the same could be repaired by passing the blame on to the Respondent).
However, another more interesting argument is worth exploring.
Article 8(1) of the 2004 version of the Rules states: "The Chamber of Arbitration, the Arbitral Tribunal and the expert witnesses shall keep all information relating to the proceedings confidential".
The key difference between the 2004 version and the 2010 version appears to be that the 2010 version imposes obligation of confidentiality on the parties, whereas the obligation of confidentiality was imposed only on the Chamber of Arbitration, Arbitral Tribunal and the expert witnesses under the 2004 Rules.
The sale confirmation issued by the Respondent to the Claimant in May 2008 states "All disputes arising out of or related to this contract shall be settled by arbitration under the Rules of the Chamber of Arbitration of Milan (the Rules), by three arbitrators." Under these circumstances, which rules apply? - the 2004 Rules which cast no confidentiality obligation on the Claimant or the 2010 Rules which contain the said obligations?
There have been several cases (for the participants to find through your own research) deciding similar questions. Interestingly the authorities often contradict each other in this regard making it possible for both the sides to make arguments in this regard.
Before leaving the participants to look for these authorities, one last point. There has been a general understanding that if a contract refers to a statute or a set of rules which change subsequently, the later version applies if the rules in question are of mere procedure. However on the other hand, if the rules incorporated by reference into the contract deal with substantive rights and obligations, the older version applies. So, the question here could essentially boil down to whether requirement of confidentiality is a mere procedural matter or if it relates to substantive rights and obligations.
Good luck
Really nice issue.
ReplyDeleteI like the issue, as well. However, I think that one of the postings in http://trans-lex.org/forum.php?cat_id=4&t_id=25/tackling-the-confidentiality-issue is right with the thesis that even if the 2004 Rules are applicable there is an implied exception compareable to the exceptions in the 2010 rules. Therefore, the issue seems to have the same result anyway. I will come back on this later in http://trans-lex.org/forum.php?cat_id=4&t_id=25/tackling-the-confidentiality-issue.
ReplyDeleteRegards
Oliver
Thanks, Oliver. I agree that it may be argued that there is an implied obligation on the parties to maintain confidentiality even under the 2004 Rules. However, for the Claimant, it is easier to argue against the existence of an implied obligation (under 2004 Rules) than to argue against an explicit provision (under the 2010 Rules). Moreover, Claimant can also argue that by expressly stating the categories of persons and entities to whom confidentiality obligation applied, the 2004 Rules made such obligations inapplicable to the entities not so expressly named.
ReplyDeleteAt the end of the day, it is for each team to weigh these strategic options and choose the path that they think will best suit their interests on a particular side.
In paragraph 4 of Procedural Order No. 1 the arbitral tribunal appears to be questioning whether it has jurisdiction to understand in the counterclaim brought forward by Fishing. Do you think that Trawler Supply should address this matter in its memorandum proactively rejecting the tribunal’s jurisdiction over the counterclaim?
ReplyDeleteIf we take article 12 of the CAM rules into account, Trawler Supply can be said to have waived its right to object to the tribunal’s jurisdiction in respect to the counterclaim as it did not raise the issue in due course. Therefore, I would say that the only reasonable course of action available to Trawler Supply would be to uphold the tribunal’s jurisdiction, rendering any discussion of the matter redundant.
Thanks a lot for those reflexions. I totally excluded the 2004 rules since the case refers to the articles of the new rules and since it's written that the 2010 Milan Rules apply for arbitration started after the 1st january 2010, and it's the case in the Moot, the arbitration started on 21th may 2010.
ReplyDeleteOn the other hand, the rules at the moment of the signature of the contract (and the arbitration agreement) were 2004 rules, so maybe we can argue about the autonomy of the parties, about their will?
I must admit that i focused on the moment when this obligation of confidentiality (under 2010 rules) starts.
Hi Betty, thanks for your comment.
ReplyDeleteYou are right about party autonomy.
The path you were taking - the one that deals with the starting point of the confidentiality obligation under 2010 Rules - is also a viable option. I think a combination of the two will make a really strong case.
Dear Deepak,
ReplyDeleteYou have removed my comment. Please reconsider what I have written. If every law professor or coach would put online their take on the problem, the contest would amount to nothing more than picking your favorite strategy online.
There is a reason why the organizers send a separate instruction for arbitrators, with the analysis of the problem, and withhold it from the teams.
@ Anonymous,
ReplyDeleteI have not removed your comment. You commented on a different post (http://lexarbitri.blogspot.com/2010/10/vindobona-junction-understanding-18th_05.html). I have responded to it there.
Please see my reasons there. I am neither a professor nor a coach. I am an undergraduate student. So, my views on these points are far from conclusive and are very much capable of being wrong. The participants still have a lot of work to do.
And please be assured that I am not an arbitrator and hence do not have access to the official guide to arbitrators.
ReplyDeleteMy bad, posted in the wrong batch on comments. Will reply in the other one.
ReplyDeleteThank you for your comment. It's very nice to talk about the case, i mean without say too much, just exchange some way of thinking. I think that this is not "picking up one's favorite strategy online", because each person had already ideas, which are pretty much the sames.
ReplyDeleteAre you doing the moot this year in Vienna or inHong Kong? I'll be in the second one . :)
And, "the proceedings and the arbitral award" (2010) v. "all information relating to the proceedings" (2004)
ReplyDeleteDear Mr. Deepak,
ReplyDeleteYou suggested that it may be possible for the claimant to argue against the applicability of the 2010 Milan Rules on the basis of confidentiality being governed by substantive law and not procedural law. However, if we say that confidentiality is a substantive aspect, shouldn't it be governed by the law governing the arbitration agreement (Danubian law) and not the Milan Rules (which form the curial law of arbitration)?
Hi! Do you know any web page in which I can find the similar cases that you mentioned previously? Ive been searching, and no answers have been found. Thanks,
ReplyDeleteI'm not sure about the application of 2004 Milan Rules. Consider Art. 43(2) 2004 MR.
ReplyDeleteZR
Hi,
ReplyDeleteI am currently writing my thesis on international arbitration. I have been looking for a while for the "several cases" you refer to in your second last paragraph.
Would be very grateful if you could provide anymore detail as to how to find them (as in are they cases heard by the milan chamber of arbitration, or were they heard by a chamber with a similar question as to the application of present and former rules).
Many thanks.