On 13 September 2021, DVC’s José-Antonio Maurellet SC, CW Ling and Catrina Lam came together and were joined by the HKIAC’s Xiaojun Wang to host a well-attended CPD accredited webinar, the first of a two –part series, on Confidentiality and Privilege in Arbitration and Mediation with a total audience made up of over 400 attendees. The webinar was co-hosted by DVC and the HKIAC.
The webinar covered a multitude of niche topics within the arbitration and mediation domain, many of which were anchored in the mainstay of confidentiality. Interwoven into this webinar were critical concepts relating to legal protection under legislation, common law and institutional rules, key exceptions to the confidentiality principle, and special measures to safeguard trade secrets and confidential information.
The key takeaways were as follows:
- Confidentiality and privacy are the core values of international arbitration
- Law of seat, statute and institutional rules may provide important exceptions
- Courts and tribunals play a part in enforcing confidentiality
- Enhanced protection for trade secrets are to be balanced against the need for the other party’s ability to present its case
On 24 September 2021, Part 2 was delivered by DVC’s CW Ling who once again moderated the session, in concert with Michel Kallipetis QC from Independent Mediators Ltd, UK, Dwight Golann, Professor of Law, from Suffolk University in Boston, and Jody Sin, Fellow of the International Academy of Mediators. The webinar, attended by over 200 participants, provided an informed guide in relation to Confidentiality and “Without Prejudice Privilege” (WPP) in mediation. The speakers provided a detailed overview and aggregated case law into their talk, with numerous rules, a comparative study and anecdotes cited in support. They wrapped up their webinar with vital takeaways which included the following:
- Confidentiality and WPP were the core values of mediation
- In general, confidentiality is not a bar to disclosure in litigation unless WPP applies
- WPP carries limited though significant exceptions e,g, “unambiguous impropriety”
- There is a growing demand for a free-standing “mediation privilege”
