Mordchai Ganz v Petronz Fze & Anor

When deciding whether to publish a judgment arising from arbitration, the court must balance the public interest in open justice and scrutiny of arbitration against the desirability of preserving confidentiality. Confidentiality is not an absolute bar to publication, even where the judgment refers to confidential material. The court need not require proof of specific positive detriment beyond the loss of an expectation of confidentiality, but must assess the nature and significance of the information disclosed. Where no valid arbitration agreement existed, a party cannot rely on an expectation arising from having agreed to arbitrate. A later expectation of privacy following joinder remains a factor, but does not prevent publication. The public interest includes transparency in the administration of justice and the operation and practice of arbitration.

The judgment concerned an application by Abraham Goren opposing publication of a judgment arising from an arbitration claim brought by Mordchai Ganz. Goren relied on the confidentiality obligations in the LCIA Rules, the sensitive nature of the underlying dispute, and the potential effect on his reputation. Ganz supported publication, relying on the public interest in open justice, the absence of a valid arbitration agreement, and the judgment’s relevance to related proceedings.

The court had previously found that the arbitration agreement was not valid and binding and that the tribunal lacked substantive jurisdiction. It dismissed a separate challenge based on section 33 of the Arbitration Act. The central issue was whether the competing interests in arbitration confidentiality and public scrutiny favoured publication.

1. Publication ordered. The factors favouring publication outweighed the considerations relied on against it.
2. Following City of Moscow v Bankers Trust [2004] EWCA Civ 314, the court must balance the factors militating in favour of publicity against the desirability of preserving the confidentiality of the original arbitration and its subject matter. A party seeking protection need not necessarily prove specific positive detriment beyond the undermining of an expectation that the subject matter would remain confidential.
3. The starting point or actual privacy of the hearing does not determine whether the resulting judgment should be published. The public interest in fair arbitration, public scrutiny, confidence in the courts and transparent justice supports publication where appropriate.
4. Because the court had found that there was no arbitration agreement, Goren could not rely on an expectation arising from entering into an arbitration agreement. Although joinder to the arbitration could create an expectation of privacy, the LCIA confidentiality provisions, including Article 30, did not prevent publication of the court’s judgment. The court’s supervisory jurisdiction was a separate process.
5. CDE v NOP [2021] EWCA Civ 1908 concerned confidentiality of an award. Different considerations applied to publication of a judgment, which referred only to essential elements of the underlying dispute.
6. Confidential information in the judgment had to be weighed against the public interest; its disclosure was not an automatic bar. The public interest extended beyond the parties’ interests to the operation and practice of arbitration, including issues concerning rehearing, summary procedure and expert evidence in case management.
7. The arbitration claim was dismissed for want of a valid and binding arbitration agreement, while the section 33 challenge was dismissed. Goren was awarded 90 per cent of his arbitration-claim costs, excluding the publication issue. Goren was ordered to pay Ganz’s costs of the publication application, and Ganz was ordered to pay 55 per cent of Goren’s costs on account.