ABSTRACT
Confidentiality is presented as a defining feature of international commercial arbitration, although its legal basis and enforceability vary across jurisdictions and institutions. This article argues that confidentiality is not an inherent attribute of arbitration, but a constructed consent-based procedural norm. Drawing on social contract theory, the article conceptualizes arbitration as a form of private legal ordering in which parties delegate procedural authority to secure mutually advantageous outcomes. From this perspective, confidentiality derives its legitimacy from consent and institutional design, but remains a conditional obligation. The article advances a thematic comparative analysis identifying two models of confidentiality: presumptive regimes, where confidentiality operates as a default, and opt-in regimes, where it arises through express agreement. Both models recognize common limits grounded in consent, legal obligation, and public interest. The article concludes by advancing a contractarian account of an optimum level of confidentiality that is presumptive but qualified, autonomy-based yet normatively constrained.
Nicolette Butler and Jasem Tarawneh, Keeping it quiet? A social contract theory of confidentiality in arbitration, Journal of International Dispute Settlement, volume 17, issue 3, September 2026. Published: 17 July 2026.
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