One of the promises made by international dispute resolution is that when the forum of the dispute is an arbitration the proceedings are, and can remian, confidential (see generally the discussion of the confidential nature of arbitrations in our e-book, International Practice: Topics and Trends). What happens, however, if an arbitral award needs to be enforced, or if a motion to vacate is made? Are there ways to protect the confidentiality of the arbitration proceeding?
In the Federal Rules of Civil Procedure, we are not aware of specific confidentiality rules governing arbitral awards. Nor are we aware of such special rules among the local rules of the federal courts. Nor are we aware of any special rules in the New York state court system. Filing arbitral decisions under seal is a cumbersome process, especially since an order of confidentiality needs to be in place at the commencement of the judicial proceeding — that is, prior to the time of the filing of the arbitral decision itself. The best bet in this regard, in our experience, is to have proper corporate-lawyer drafting of the arbitration clause reviewed by a litigator to make sure that dispute resolution provision of the writing typically exchanged between parties includes a specific agreement either that the arbitral award need not be filed in order to move to enforce or vacate it. Alternatively, consider providing that, if either party wishes to file the award in court, the parties — at the time contracting — irrevocably stipulate to the confidential nature of the arbitral award and proceedings and further stipulate that the award and any papers of the proceedings can be filed under seal. The only other possibility is for the party wanting to keep an arbitral award under seal to make a prompt motion to seal. These motions have not fared particularly well.
In a recent case in which the author is lead counsel, at the time of the filing in court of a prior arbitral award, the insurance carrier, who wanted the earlier award to remain under seal, made a motion to seal. Even then the Court rejected the argument that the entirety of the arbitral proceedings were confidential. Mead Johnson & Co. v. Lexington Ins. Co., Dkt. No. 3:11-cv-43-RLY-WGH (S.D. Indiana Sept. 2011). In fact, the Court stated:
once a confidential settlement agreement or arbitration decision becomes the subject of litigation, it must be opened to the public just like any other information.
Citing Herrnreiter v. Chicago Housing Authority, 281 F.3d 634, 637 (7th Cir. 2002). At the same time, the amount of a prior award was maintained under seal, the Court finding that appropriate.
Not so in connection with the recent arbitral decision in claims and counterclaims that Getty Petroleum Marketing Inc. and Bionel Clearfield LLC arbitrated under American Arbitration Ass’n rules. The Panel awarded Bionel more than $230 million in past and future damages, and the reasoning as well as the amount of the award were made public when the parties sought to enforce/vacate the award.