‘Plan for confidentiality from outset’ in Southern Africa mining disputes

Arbitration is often promoted as an attractive way to resolve both domestic and cross‑border disputes, offering a degree of confidentiality that is particularly advantageous in cases involving sensitive, technical or commercial information.

However, recent disputes linked to cross‑border projects in the African mining sector remind us that confidentiality is not absolute. For companies, investors, and funders alike, this raises concerns from commercial, regulatory and reputational risk perspectives.

Arbitration typically arises when the parties expressly agree to submit a dispute to arbitration in their agreements or when they conclude a separate agreement to do so. Where parties have their disputes adjudicated under the auspices of an arbitral institution, confidentiality obligations are also often found in the applicable rules of the arbitral body.

As one example, Article 36 of the Arbitration Foundation of Southern Africa (AFSA) International Rules establishes a default confidentiality regime for arbitrations administered under the AFSA International Rules. It provides that, unless the parties agree otherwise or disclosure is required by law, the arbitral proceedings are confidential. The International Court of Arbitration: Arbitration Rules of 2021 (ICC Rules) empower tribunals to make orders concerning confidentiality and may take measures for protecting trade secrets and confidential information via Article 22(3).

Domestic laws, such as South Africa’s International Arbitration Act 2017, also give effect to the 2006 version of the UNCITRAL Model Law, which expressly addresses confidentiality. Section 11 provides that arbitration proceedings between private parties, including the award and documents, are confidential except to the extent that the disclosure of such documents may be required by reason of a legal duty or to protect or enforce a legal right.

The Act goes further, stating that where a public body is a party to the arbitration, the proceedings are open to the public, unless the arbitral tribunal orders otherwise. This creates a fundamental challenge in mining disputes involving public bodies since mining arbitrations typically involve the disclosure of confidential and commercially sensitive information, including geological data, pricing assumptions, forecasts, penalty regimes, funding, and investment in projects, commercial and contractual information, regulatory and compliance materials. Owners, contractors and investors view this sort of information as proprietary and confidential. If disclosed, such information may affect trading conditions, prices, offtake, investor appetite, funding rates, and even share prices.

Both South African and English law recognise that arbitration is private, but that veil of confidentiality yields where disclosure is ordered by a court or where it is deemed necessary for the protection of legitimate rights and interests or by law. In cross‑border mining disputes, once arbitral documents are referred to in court proceedings, the risk of disclosure escalates significantly. This is because when documents are referred to and relied upon in pleadings, or submitted to court, they may enter the public domain despite any existing confidentiality agreement between the parties.

To enforce an arbitral award, parties need to apply to court and disclose the award as the court has to consider what it is being asked to recognise and enforce. A court, by its very nature, is a public forum and the public can access documents filed at the court, unless it imposes a confidentiality regime that restricts access. There is also a risk of a subpoena of arbitration documents in subsequent or parallel court proceedings as the courts retain discretion to compel disclosure of documents where necessary.

A recent judgment delivered by the Gauteng High Court in Johannesburg provides a useful illustration of these risks. In that matter, the court was asked to determine the scope and enforceability of a confidentiality agreement concluded in connection with a proposed cross‑border mining investment, while related proceedings were ongoing in Tanzania. 

Declaratory relief was sought by a related group company in South Africa. Although it was not a party to the original confidentiality agreement, it was cited as a defendant in the main proceedings in Tanzania. The court confirmed that confidentiality obligations are strictly contractual and bind only those entities that are party to the agreement. It said the related group company was not bound by the confidentiality terms because it had not signed the original confidentiality agreement.

This judgment is important for two reasons. First, it confirms that confidentiality protections do not automatically extend across corporate groups, affiliates or investment structures unless expressly provided for in an agreement. Secondly, it shows that confidentiality disputes themselves may be litigated in open court, potentially exposing confidential arrangements.

South African courts recognise a range of protective confidentiality regimes short of outright non‑disclosure. One of the most widely used mechanisms is a restricted‑access ‘confidentiality ring’ regime. This allows for access to sensitive material to be limited to only identified independent experts and external legal representatives on a need-to-know basis, with the parties themselves excluded.

Secondly, there is a partial disclosure and redaction regime, which allows only those contractual provisions strictly necessary for the fair adjudication of the dispute to be produced. Another option involves personal confidentiality undertakings, where all recipients give binding undertakings not to disseminate or misuse the information. The last regime relates to dual pleadings and ‘in camera’ adjudication whereby confidential versions of pleadings or evidence are circulated within a closed confidential group, disputes over redactions are resolved in chambers, and a non‑confidential record is maintained for broader public and procedural use.

To manage confidentiality risks in mining disputes, parties should plan for confidentiality from the start rather than assuming arbitration will provide it automatically. Extra care is needed when exchanging sensitive technical or commercial information. Parties should also be aware that going to court, even to protect their rights, can result in confidential arrangements becoming public.

Arbitration can offer privacy, but, as these and other cases show, it does not guarantee confidentiality. In mining disputes, especially those spanning multiple jurisdictions, confidential information can quickly find its way into the public domain. The lesson is straightforward: confidentiality must be deliberately built into agreements and actively managed throughout a dispute life cycle.

Co-written by Prince Rampya of Pinsent Masons.