Esso Australia Resources Ltd v Plowman

For the reasons which the Chief Justice gives, I agree that, when one party produces documents or discloses information to an opposing party in an arbitration that is to be heard in private, the documents or information are not clothed with confidentiality merely because of the privacy of the hearing. Nor does the use of a document in such proceedings make the document confidential. I agree also that absolute confidentiality of documents produced and information disclosed in an arbitration is not a characteristic of arbitrations in this country. Accordingly, a party who enters into an arbitration agreement is not taken merely on that account to have contracted to keep absolutely confidential all documents produced and information disclosed to that party by another party in the arbitration.

If a party to an arbitration agreement be under any obligation of confidentiality, the obligation must be contractual in origin. A term imposing an obligation of confidentiality could be expressed in an arbitration agreement but such a term would be unusual. Nor is such an obligation imposed by the Commercial Arbitration Act 1984 Vic. A term is implied only where, inter alia, it is necessary [36] to give to the contract "such business efficacy as the parties must have intended" [37] . The intended business efficacy must be inferred "from the very nature of the transaction" [38] . The parties may not have consciously adverted to the subject matter of the term which is said to be implied, but implication is determined according to their presumed intention [39] . Obligations which, if proposed to the parties when they entered into their contract, would not have been accepted by both are not thereafter implied in the contract [40] .