The Thin Red Line: Australian Court Redlines Confidentiality Of Arbitration Proceedings

The Harman confidentiality undertaking (or obligation of confidentiality of documents obtained pursuant to discovery, document production or subpoena) is well established: in principle, information obtained pursuant to discovery or subpoena cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. From time to time there is some debate around the scope and limits of the obligation, and this is one of those times.

In a recent decision, the Supreme Court of Western Australia considered the application of the Harman obligation to documents sourced from arbitral proceedings, and determined that, in the circumstances of the case, it was appropriate to release the co-defendants' from their Harman obligation in the arbitral proceedings for the purposes of conducting their defence in the curial court proceedings, which involved a party who was not a party to the arbitration agreement.