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26 J. Int'l Arb. 609 (2009)
Defining the Indefinable: Practical Problems of Confidentiality in Arbitration

handle is hein.kluwer/jia0026 and id is 619 raw text is: Journal of International Arbitration 26(5): 609-645, 2009. © 2009 Kluwer Law hitemational. Printed in The Netherlands. Defining the Indefinable: Practical Problems of Confidentiality in Arbitration Michael HWANG S.C.* and Katie CHUNG** This article seeks to provide a comprehensive review of the international law on confidentiality in arbitration both in terms of theory and in practice (by examining national legislation and the rules of the various institutions). The essential point is that the problem is not in defining confidentiality but in defining the exceptions to the duty of confidentiality where such a duty is recognized. The argument is made that, in practice, it is diflicult to come up with a comprehensive formula for, or list of, all the exceptions to the obligation of confidentiality. How- ever, there is an examination of the most comprehensive and recent attempt to codify the exceptions to the duty of confidentiality in the New Zealand Arbitration Act 1996 (2007 Amendment). Nonetheless, even as the New Zealand Arbitration Ac 1996 recognizes, no code can be fully comprehensive, and there must be room for an independent third party (either the tribunal or the curial court) to rule on permitted exceptions to the obligation of confidentiality. I. INTRODUCTION It is a particular pleasure to deliver the second Kaplan lecture in Hong Kong in honor of Neil Kaplan, whom I have known for some fifteen years. No one needs reminding that Neil is internationally recognized as one of the super-arbitrators of the world. We also know that, quite apart from his personal career, he has also devoted much of his time over the years to building up the cause of international arbitration, both in Hong Kong and the world, by his judgments in the Hong Kong High Court, his chairmanship of the Hong Kong International Arbitration Centre (HKIAC), and then later on the world stage as chair of the Chartered Institute of Arbitrators. More than any other person, he put Hong Kong on the world map of arbitration and led the way for Hong Kong to be recognized, not only for having a fine arbitration institution, but also for having many fine practitioners in international arbitration.This perception has established Hong Kong as Asia's leading center for international arbitration (although Singapore may have something to say about that in the near future). But Neil has also unselfishly nurtured neophytes into the world of international arbitration, and I am one of those neophytes whom he mentored and assisted over the years. He opened many doors for me and helped me with advice and encouragement to enable me to mutate from a litigator to an arbitrator, and his example is one that I intend to follow in terms of putting back what I have got out of this world of international arbitration. * Michael Hwang S.C., Barrister, Chartered Arbitrator, Singapore. Katie Chung, Associate, Chambers of Michael Hwang S.C. This is an expanded version of the Kaplan Lecture delivered by the first author in Hong Kong on November 17, 2008. Copyright 2007 by Kluwer Law International. All lights reserved No claims asserted to original government works

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