The Arbitration Confidentiality Agreement is essential in Hong Kong-seated arbitrations where parties need to protect sensitive information exchanged during proceedings. While the Hong Kong Arbitration Ordinance provides for implied confidentiality in arbitrations, parties often require more detailed and specific confidentiality arrangements. This document is typically used at the commencement of arbitration proceedings or when sensitive information needs to be exchanged between parties. It addresses various aspects of confidentiality, including the scope of protected information, handling procedures, permitted disclosures, and consequences of breach. The agreement is particularly important in complex commercial disputes where trade secrets, financial data, or other sensitive business information may be disclosed during the arbitration process.
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1. Parties: Identification of all parties to the agreement, including their full legal names and registered addresses
2. Background: Context of the agreement, including reference to the underlying arbitration proceedings
3. Definitions: Definitions of key terms including 'Confidential Information', 'Arbitration', 'Permitted Purpose', and 'Representatives'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information under the agreement
5. Confidentiality Obligations: Core obligations regarding the protection and non-disclosure of confidential information
6. Permitted Disclosures: Circumstances under which confidential information may be disclosed, including to legal advisors, experts, and courts
7. Security Measures: Required measures for protecting and storing confidential information
8. Duration of Obligations: Period for which confidentiality obligations remain in force
9. Return or Destruction of Information: Requirements for handling confidential information after the arbitration concludes
10. Breach and Remedies: Consequences of breaching the agreement and available remedies
11. Governing Law and Jurisdiction: Specification of Hong Kong law as governing law and jurisdiction for disputes
1. Third Party Rights: Section addressing rights of third parties under the agreement, relevant when third parties may be involved in the arbitration
2. Data Protection Compliance: Additional provisions for compliance with data protection laws, necessary when personal data is involved
3. Intellectual Property Rights: Provisions addressing IP rights in confidential information, relevant when IP is part of the arbitration
4. Insurance Requirements: Obligations to maintain insurance coverage for potential breaches, useful for high-value or sensitive cases
5. Publicity and Communications: Specific provisions regarding public statements about the arbitration, relevant for high-profile cases
1. Schedule 1 - Categories of Confidential Information: Detailed list of specific types of confidential information covered by the agreement
2. Schedule 2 - Authorized Representatives: List of individuals authorized to access confidential information
3. Schedule 3 - Security Protocols: Detailed security measures and procedures for handling confidential information
4. Appendix A - Form of Confidentiality Undertaking: Template undertaking to be signed by individuals who will have access to confidential information
5. Appendix B - Notification Requirements: Procedures and timeframes for notifications regarding disclosure or breach of confidential information
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