How will an arbitrator be handled if he/she fails to keep a case he/she resolves confidential?

Question: Hi Lawyer, my company has been involved in a dispute which will be resolved through arbitration. However, I am unsure whether arbitrators will keep the content of the dispute confidential. If an arbitrator violates this confidentiality, how will he/she be handled? Thank you.

Answer:

Thank you for sending your questions to FDVN Law Firm (FDVN). For your consultation requests, after studying the relevant legal regulations, FDVN has the following opinion:

1. Arbitrator’s obligation to maintain confidentiality

Pursuant to Article 21 of the Law on Commercial Arbitration 2010, there are provisions on the rights and obligations of arbitrators as follows:

“Article 21. Rights and obligations of arbitrators

1. To accept or refuse to settle disputes.

2. To be independent in dispute settlement.

3. To refuse to provide dispute-related information.

4. To enjoy remuneration.

5. To keep secret the circumstances of disputes they settle, unless they have to provide information to competent state agencies under law.

6. To ensure impartial, fast and prompt settlement of disputes.

7. To adhere to the rules of professional ethics”.

Thus, the arbitrator is obliged to keep the content of the dispute he/she settles confidential, except in cases where information must be provided to competent state agencies in accordance with the law. This is one of the fundamental rights and obligations of arbitrators.

2. How is an arbitrator who breaches an obligation of confidentiality handled?

Pursuant to Article 27 of Decree 82/2020/ND-CP, it is regulated as follows:

“Violations of regulations on the operation of arbitrators

2. Fines ranging from 20,000,000 VND  to 30,000,000 VND for one of the following violations:

a) Disclosure of confidential information regarding the resolved dispute, except in cases where information must be provided to the competent authority as required by law;

b) Engaging in commercial arbitration without meeting the standards and conditions for an arbitrator.”

Thus, if an arbitrator fails to keep the content of a dispute he/she settles confidential, he/she will be fined up to 30,000,000 VND. At the same time, the illegal profits derived from this act must be refunded. This penalty applies to individuals. If an organization violates this, it will be fined an amount equal to twice the fine for an individual, as prescribed in Clause 4, Article 4 of Decree 82/2020/ND-CP.

The above is FDVN’s advice regarding your request for advice on the basis of studying legal regulations. Hope FDVN’s advice will be useful for you.

Nguyen Thi Thao Nguyen – FDVNLawFirm