The interesting aside arose in UMS Holding v Great Station Properties [2017]. There had been an unsuccessful s.68 challenge. The Court had to wrestle with the tension between Article 30 LCIA Rules and an award becoming public by reason of being extensively quoted from and referred to in a judgment in open court in accordance with the principles in NAB v Serco [2014].
Article 30 provides that the parties undertake “as a general principle to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a state court or other legal authority.”
The Claimant contended that, having been extensively referred to in open court and in the court’s judgment the award was public and it was no longer bound by Article 30. The Court accepted that the award had entered the public domain.
However, the Court held that whilst the public domain exception in Article 30 did not, on a strict grammatical reading of Article 30, apply to the award (rather only to materials created for and produced in the reference) a more purposive reading of the Article was that everything was to be held to be confidential unless it reached the public domain. As the award had entered into the public domain, the contractual obligation to keep the award confidential had, accordingly, fallen away.
Nevertheless, the Court was troubled that the Claimant could do what it wished with the award. Accordingly, it invoked its inherent jurisdiction to regulate its own order that the s.68 challenge be heard in public. The Court held that in making that order it was not considering the uses to which the award could be put. The Court held that, especially in circumstances where the Claimant was not saying what use it wished to make of the award, it was just and appropriate to make an order obliging the parties to respect the Article 30 confidentiality (with permission to apply).
The Court acknowledged that the award was a confidential document that had only reached the public domain by reason of the principle of open justice and the hearing of the challenge in public. That principle ought not to be abused.
The Court is to be congratulated on crafting a pragmatic solution.
