摘要
国际商事仲裁的保密性一度同私密性相等同，导致保密性一直被认为是商事仲裁不言自明的特性。然而近年来，由于学界认识到保密性与私密性之间的分别与界限，保密性在国际商事仲裁领域受到了冲击与弱化。英国、法国的仲裁法从承认默示保密规则到强调保密需要明示；澳大利亚、瑞典、美国的仲裁法在初始即不承认默示保密规则的存在，认为保密性的来源是仲裁双方的合同约定；而香港地区、新西兰以及中国大陆的立法实践也表明，尽管保密原则仍然存在，例外却在不断增加。以上种种都表现出国际商事仲裁领域保密性的弱化趋势。本文即通过对相关案例与法条的梳理，展示保密性弱化的表现与趋势。
confidentiality in international commercial arbitration was in a long time identified as an identical word to privacy, resulted in it being deemed as an implied characteristic of commercial arbitration.However, as the distinctions between privacy of arbitration and confiden- tiality of arbitration has been more and more recognized by scholars in arbitration field, confidentiality has been weakening since then. In Eng- land and France, the tradition of treating confidentiality in commercial arbitration as an implied characteristic has been replaced by the new way as treating confidentiality as an agreement need to be agreed by both par- ties; in Australia, Sweden and the United States, arbitration has never enjoyed an implied confidentiality since the beginning, which requires an outstanding agreement to support the need of confidentiality; in New Zealand, Hong Kong and China's Mainland, more exceptions to confiden- tiality has been added into their arbitration legislation in recent years. All these indicate the fact that confidentiality in commercial arbitration has been wakening. This paper will discuss the trend of the weakening of confidentiality by combing the cases and legislations in different jurisdic- tions.
出处
《北京仲裁》
2016年第4期217-232,共16页
Beijing Arbitration Quarterly
关键词
国际商事仲裁
私密性
保密性
保密性的弱化
international commercial arbitration
privacy
confi-dentiality
weakening of confidentiality
