same parties; or the disputes in the arbitrations arise in connection with the same legal

relationship, and the Court determines that the arbitration agreements are compatible. When
arbitrations are consolidated, they are to be consolidated into the arbitration that first commenced,
unless otherwise agreed by all parties.

The ICC may allow academic researchers to access awards and ‘other documents of general
interest’ with the exception of materials used in the arbitration proceedings, subject to an
undertaking to submit for approval to the ICC text intended for publication.257 The ICC retains
copies of all awards, Terms of Reference and decisions of the Court.258

Article 11(1) requires that every arbitrator must be and remain impartial and independent of
the parties involved in the arbitration. Article 11(2) requires a prospective arbitrator to sign a
statement of impartiality and independence before appointment or confirmation. Any facts or
circumstances that call into question the arbitrator’s independence in the eyes of the parties - or
any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality - are
to be disclosed in writing to the Secretariat. Article 11(3) states that this is an ongoing obligation.

Obligations of confidentiality apply to the arbitrator, institution, parties and witnesses. The
arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or
of any other matters in connection with the arbitration where requested to do so under Art.22(3),
as well as take measures for protecting trade secrets and confidential information.

London Court of International Arbitration (LCIA)

As befits one of the world’s oldest arbitration institutions, the LCIA Rules provide one of the
most coherent regimes addressing privacy and confidentiality. The Rules were updated in 2014
and 2020,259 bringing them more broadly into line with the more recent innovations of, say, the
HKIAC or SIAC.

Article 22 grants additional powers of consolidation. Specifically, at Art.22(ix) the tribunal

can, with the approval of the LCIA Court and provided the parties agree, order the consolidation
of one or more other arbitrations into a single arbitration. Article 22(x) permits the tribunal, with
the approval of the LCIA Court, to order the consolidation of an arbitration with one or more
other arbitrations to which the LCIA Rules apply, and the arbitration agreement is either the same

257 Appendix II - Internal rules of the International Court of Arbitration, Art.1(5) and (6).
258 ibid at Article 1(7).
259 The LCIA’s 2020 Rules were due to come into force on 1st October 2020.

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or compatible. That is subject to no other arbitral tribunal having been formed by the LCIA Court
for such other arbitration(s): or if there have, when those tribunals are composed of the same
arbitrators. A tribunal has the power to allow third persons to be joined in the arbitration under
Art.22(viii) where the parties so consent.

The 2014 edition of the LCIA Rules subtly revised Art.30 by removing the preamble to
Art.30.1. Deleted was the caveat ‘Unless the parties expressly agree in writing to the contrary’.
The parties are now required to undertake at Art.30.1 to keep confidential all awards and materials
in the arbitration created for the purpose of the arbitration and all other documents produced not
otherwise in the public domain. Article 30.2 provides that the deliberations of the arbitrators is
to remain confidential to its members, save as required by any applicable law. Article 31.2 deals
with Limitation of Liability. It provides that once the award has been issued, neither the LCIA,
the arbitrators or experts involved are under any legal obligation to provide a statement
concerning any aspect of the arbitration; nor can they be compelled to become a witness in any
legal or other proceedings in connection with an arbitration.

The scope of arbitral confidentiality in the context of a challenge to an LCIA arbitral award
in the High Court was provided by Teare J in UMS Holdings v Great Station Properties SA.260
The respondent challenged an award under s.68, the hearing for which was heard in public. The
challenge failed and the resulting judgment was treated as public. The respondent contended that
the claimant remained under an obligation of confidentiality under Art.30 of the LCIA Rules; that
the s.68 challenge had not removed that confidentiality provision, not any resulting judgment.
The respondent subsequently applied for an order to the effect that the award could not be used
by that party for any purpose other than the proceedings, applying NAB v Serco Limited.261 Teare
J concluded that the appeal had resulted in the award entering the public domain and therefore
concluded that the obligation under Art.30 of the LCIA Rules (which gave rise to an undertaking
‘to keep confidential’ all awards) no longer continued to exist. However, the judge was troubled
by the suggested conclusion that the claimant was free to do with the award as desired, particularly
in the context that the court did not know the claimant’s intention with regard to the award. The
award was a confidential document that had only entered the public domain due to the s.68
challenge which the court had considered should be heard in public paying due regard to the
principle of open justice. Noting the court’s inherent jurisdiction to regulate the consequences of
a decision that a s.68 challenge be heard in public, Teare J determined: ‘[w]here the Award has
entered the public domain because of the court’s own order …Some uses of the Award (for

260 [2017] EWHC 2473 (Comm).

261 [2014] EWHC 1225 (QB) [26], [36].

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example, showing it to a business associate) would be inimical to the confidentiality which
normally attaches to awards’.262

Article 30.1 provides that there is an exception to the confidentiality provision i.e., when
required as a legal duty, to protect or pursue a legal right or to enforce or challenge an award in
legal proceedings. Only the parties are under an obligation of confidentiality under Art.30.1.
Under Art.30.3 the LCIA confirms that it will not publish any award or any part of an award
without the prior written consent of all parties and the tribunal. Under Art.5.4, prior appointment
by the LCIA Court, each arbitral candidate is required to furnish to the Registrar a written
declaration detailing any circumstances which are likely to give rise to any justifiable doubts as
their impartiality or independence. Article 5.5 makes that initial written declaration at Art.5.4 an
ongoing duty of disclosure i.e., in the event that any new circumstances arise.

When the LCIA’s 2014 Rules were first published they provided one of the most coherent
regimes addressing privacy and confidentiality and they remain relevant. The LCIA’s limitation
of liability article is a protective, if unusual provision.

London Maritime Arbitrator’s Association (LMAA)

The LMAA is an association of practicing arbitrators, comprising around 33 Full Members

and several hundred supporting members. London receives more maritime arbitration disputes
than any other arbitration centre worldwide: in 2019 the LMAA estimated 1,756 new arbitrations
had been started under LMAA Terms and 529 awards published. 263 Maritime arbitrations in
London are conducted under the Arbitration Act 1996, most of which under the LMAA Terms.
The LMAA Terms are periodically updated, most recently in 2017. In addition to the main Terms,
there are small claims and intermediate claims procedures.

Rule 16 outlines the powers of the tribunal which at 16(b) provides that where two or more
arbitrations appear to raise common issues of fact or law, the tribunals may direct that they shall
be conducted and, where an oral hearing is directed, heard concurrently. Rule 16 (ii) provides
that the documents disclosed by the parties in one arbitration shall be made available to the parties
to the other arbitration. Rule 16 (iii) that the evidence given in one arbitration shall be received

262[2017] EWHC 2473 (Comm) [23].

263http://www.lmaa.org.uk/event.aspx?pkNewsEventID=208da443-7800-4720-84b3-7f4f3f5fc9ce accessed 13 April
2020. For 2014 - 2019 the LMAA’s published figures are based on information provided by Full and Aspiring Full
Members and barristers known to accept appointments on LMAA Terms. They do not include data from other
Supporting Members or arbitrator. The LMAA considers that the published numbers therefore understate the
complete figures. See Table 1 for a comparison of number of references between institutions.

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