Most questions regarding the enforceability of arbitration obligations begin with the Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”), which governs the enforcement of arbitration agreements. 9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967). The FAA was signed into law in 1925 and governs the enforcement of arbitration agreements, but does not require that the parties or the arbitrator hold the matter in confidence.
Nevada Revised Statutes, Chapter 38 is Nevada’s version of the Uniform Arbitration Act of 2000. While it allows an arbitrator to issue a protective order against the disclosure of confidential and trade secret information (NRS 38.233(5)), it is silent on the issue of whether the parties to an arbitration or their arbitrator must keep the fact of the arbitration or its result a secret.
The American Bar Association/College of Commercial Arbitrators Annotations to the Code of Ethics for Arbitrators in Commercial Disputes, Canon V, requires that an “arbitrator should keep confidential all matters relating to the arbitration proceedings and decision.” The American Arbitration Association (“AAA”) Code of Ethics for Arbitrators in Commercial Disputes, Canon VI contains the same requirement, as does the JAMS Arbitrators Ethics Guidelines, Guideline IV. Each is silent, however, regarding whether parties are bound to confidentiality.
Because an obligation to arbitrate a dispute is created by contract, the arbitration agreement must require confidentiality for the obligation to be enforced against participants. Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct. 2772, 2776, 177 L.Ed.2d 403 (2010) (holding that arbitrations are a creature of habit and the parties to the contract can agree on procedures to govern the arbitration). If the contract requires that the parties and arbitrator keep the fact of the arbitration and its results confidential, then that obligation is enforceable.
The FAA governs the enforcement of arbitration agreements, and mandates that the parties’ agreement be enforced as written. 9 U.S.C. §§ 1-2 (agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”). The U.S. Supreme Court has agreed that one of the primary purposes of the FAA is to ensure enforcement of private arbitration agreements according to their own terms. Stolt-Nielsen S.A. v. AnimalFeeds Int’l. Corp., 559 U.S. 662, 682 (2010).
Make sure your arbitration agreement treats the subject of confidentiality if it is important to you. For more guidance on how to write a better arbitration agreement, see this post.