Law Commons^™

Untangling The Privacy Paradox In Arbitration, Amy J. Schmitz

Faculty Publications

Arbitration is private but not secret. This truism regarding arbitration seems contradictory and nonsensical. However, common understandings of privacy in arbitration often lull individuals into assuming personal information revealed in arbitration may not become public. They assume privacy and confidentiality are synonymous. The reality is that arbitration is private but not necessarily confidential, or secret. This is the privacy paradox: it defies common conceptions of arbitration's secrecy, but is nonetheless true. This paradox is problematic because it leads to shortsighted contracting and simplistic assumptions about arbitral justice. Moreover, it may foster injustice when repeat players unduly benefit from unpublished awards …