Fundamental Principle of Arbitration Essay

In other word, arbitration is the outcome of a private agreement between parties to settle their disputes from the courts, and submit it to the decision of a private tribunal. If the principle of privacy is breached, the arbitration will be effected. The second principle is confidentiality. It is when that all takes place at arbitration is confidential. Either party or tribunal cannot disclose to third person without the consent of the other except for the purpose of the proper conduct of the arbitration. However, there is a question regarding to these two principles which is whether privacy automatically results in confidentiality or does it automatically demand confidentiality. There are two main areas of confidentiality which are confidentiality prior to award and confidentiality after award. According to English law, there are two opinions regarding with this issue. First, if it was absence of an express term in an arbitration clause providing for confidentiality, the presumption of confidentiality will applies. Second, the general duty of confidentiality cannot be implied in a silent clause for arbitration in an agreement. However, this opinion has been criticized since it is a break with the general principle of confidentiality. In Malaysia, there is no doubt that privacy and confidentiality are regarded as essential features for the parties to the arbitration. An arbitrator in breach of the confidentiality requirements would be exposed to misconduct proceedings. Finally, the duty of confidentiality is not absolute and was subject to limited qualifications or exceptions such as consent, compulsion of law, disclosure by leave of the court or disclosure necessary for the purpose necessary of protecting the interest of an arbitrating party.