Assuming Silence in Arbitration

This Article provides a short summary of the distinctions between privacy and confidentiality in domestic arbitration pursuant to non-public parties’ private agreements, and seeks to spark discussion of transparency reforms that respond to effects of these distinctions in that context. It explains that such arbitration is generally private in that it is a closed process, but it is not confidential to the extent information revealed during the process may become public. This has caused confusion regarding the arbitration process that may lead parties to accept arbitration agreements without contracting for confidentiality, which may disproportionately harm individuals who assume that their personal information revealed in arbitration will remain secret. At the same time, companies may use confidentiality provisions, along with arbitration’s privacy, to shield information regarding their legal violations that may affect public interests