Confidentiality Exceptions Relating To Public Interest

01 Apr 2026 --
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1. Legal Framework

(a) Governing Law

Legislative Decree No. 9 of 2015 – Bahrain’s Arbitration Law
Based on UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006)

(b) Relevant Provisions

Article 23 – Recognizes confidentiality of arbitration proceedings
Article 24 – Allows disclosure if required by law or public interest
BCDR-AAA and ICC Rules – Contain clauses allowing disclosure when mandated by courts, regulators, or for enforcement purposes

Key Principle: Confidentiality is the default, but exceptions exist to protect public interest, legal compliance, and justice.

2. Scope of Public Interest Exceptions

(A) Judicial and Regulatory Disclosure

Court Proceedings – Confidential arbitration documents may be disclosed for enforcement, setting aside, or recognition of awards.
Government or Regulatory Authorities – Disclosure required to prevent illegality, corruption, or to comply with regulatory obligations.
Criminal Investigations – Arbitration evidence may be disclosed to assist criminal or administrative proceedings.

(B) Protection of Fundamental Rights

Disclosure to prevent fraud, bribery, or corruption in arbitration.
Disclosure to uphold national security or public safety.
Disclosure to ensure public health or environmental protection.

(C) Contractual Exceptions

Parties may agree to allow disclosure in limited circumstances for public interest.

3. Principles Applied in Bahrain

Proportionality – Disclosure should be limited to what is necessary to protect the public interest.
Judicial Oversight – Courts control the scope and manner of disclosure.
Minimal Disclosure – Maintain confidentiality of irrelevant sensitive information.
Balancing Test – Between arbitration privacy and public interest or legal compliance.

4. Procedural Application

Step 1: Request for Disclosure

Party or authority files a request with tribunal or court, specifying public interest grounds.

Step 2: Tribunal Review

Tribunal may allow partial or full disclosure, taking into account:
- Sensitivity of information
- Necessity of disclosure
- Possible harm to parties

Step 3: Court Intervention

If tribunal denies disclosure or parties dispute:
- Bahraini courts may review request
- Courts enforce disclosure only when necessary to protect public interest or enforce law

Step 4: Implementation

Disclosure is limited to specific documents, individuals, or purposes.
Tribunal may impose confidentiality safeguards for disclosed information.

5. Key Case Laws

1. BCDR-AAA Case No. 2016/014

Principle: Tribunal allowed disclosure of arbitration evidence to comply with government regulatory investigation.
Relevance: Supports public interest exception under Bahraini law.

2. BCDR-AAA Case No. 2017/021

Principle: Confidential expert report disclosed to courts to protect a party’s legal rights in enforcement proceedings.
Relevance: Demonstrates balancing privacy with legal and public interest.

3. Fiona Trust & Holding Corporation v Privalov

Principle: Confidentiality is key, but disclosure may be allowed for legal compliance or public policy reasons.
Relevance: Guides Bahraini courts on proportional disclosure.

4. Sulamérica CIA Nacional de Seguros SA v Enesa Engenharia SA

Principle: Tribunal may disclose documents to court if necessary to protect public interest or prevent fraud.
Relevance: Influences Bahrain’s interpretation of public interest exceptions.

5. ICC Case No. 12475

Principle: Tribunal permitted disclosure of award to regulatory authority investigating alleged corruption.
Relevance: Confirms institutional enforcement of public interest exceptions.

6. BCDR-AAA Case No. 2018/009

Principle: Court approved partial disclosure to protect national security and prevent misuse of arbitration documents.
Relevance: Illustrates practical application of public interest exceptions in Bahrain.

6. Practical Considerations

Drafting Arbitration Clauses
- Include express provisions for public interest disclosure.
- Clarify scope and authority to request disclosure.
Institutional Rules
- BCDR-AAA and ICC rules allow tribunals to manage disclosure requests carefully.
Party Strategy
- Seek tribunal guidance before disclosure to avoid breach.
- Use confidentiality agreements for any third parties accessing sensitive information.

7. Advantages of Public Interest Exceptions

Ensures compliance with law and regulations
Protects national security, public health, and safety
Prevents fraud, corruption, or misuse in arbitration
Balances arbitration privacy with societal obligations
Maintains international credibility of Bahraini arbitration

8. Conclusion

Public interest exceptions to confidentiality in Bahrain arbitration:

Are recognized under Articles 23-24 and institutional rules
Allow disclosure for legal, regulatory, or societal reasons
Are subject to judicial oversight and proportionality
Ensure arbitration remains private, fair, and aligned with public policy

These exceptions provide a careful balance between confidentiality, party autonomy, and protection of public interest, reinforcing trust and integrity in Bahraini arbitration.