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54 U. Kan. L. Rev. 1211 (2005-2006)
Untangling the Privacy Paradox in Arbitration

handle is hein.journals/ukalr54 and id is 1221 raw text is: Untangling the Privacy Paradox in Arbitration Amy J. Schmitz* Paradox (n.) = a statement etc. that seems to contradict itself or to conflict with common sense but which contains a truth (as more haste, less speed')' I. INTRODUCTION Arbitration is private but not confidential. This is a paradox to the extent that it is seemingly contradictory, but states a truth. Arbitration is private in that it is a closed process, but it is not confidential because information revealed during the process may become public. This has caused misperceptions and confusion regarding the arbitration process. Contracting parties often assume that arbitration's privacy denies the public access to not only arbitration hearings, but also information revealed during the hearings. These parties may then accept arbitration agreements without contracting for confidentiality. This, in turn, may negatively impact corporate parties expecting arbitration to shield their business information, as well as individuals who assume that personal information revealed in arbitration will remain secret. It is true that arbitration proceedings generally are private and do not produce published opinions that courts infuse into public law. It is not correct, however, to assume that information revealed in arbitration is automatically confidential.2 In other words, United States law does not guarantee such secrecy of arbitration information, and institutional rules parties incorporate in their arbitration agreements generally do not provide broad confidentiality protections.3 Furthermore, third party participants who do not agree to any confidentiality agreement or rules remain free to talk about the arbitration proceedings. Associate Professor, University of Colorado School of Law. I thank Christopher R. Drahozal and Richard C. Reuben for their comments, as well as the Kansas Law Review and all the organizers and participants in the symposium. I also thank David Blower, Kati Bostwick, and Michael Delacour for their research assistance. 1. OXFORD AMERICAN DICTIONARY 484 (1980). 2. Cindy G. Buys, The Tensions Between Confidentiality and Transparency in International Arbitration, 14 AM. REV. INT'L ARB. 121, 129-31 (2003). 3. Id. at 125-30. See also infra notes 39-50 and accompanying text (discussing domestic and international rules). 1211