CONFIDENTIALITY IN ARBITRATION VS. PUBLIC INTEREST IN IP ENFORCEMENT: A LEGAL TENSION IN INDIAN PRACTICE

Arbitration is increasingly being used in cases of intellectual property because it is flexible, more efficient, and most importantly, confidential. The rights to intellectual property have never been exclusively about private rights; they are a legal monopoly created to further general social objectives like innovation, consumer welfare, and market competition. This dual nature brings about a natural tension when an IP dispute is decided by confidential and private arbitral procedures. This struggle has been made more apparent in India with the rising arbitrability of disputes based on intellectual property and the legal establishment of confidentiality by the Arbitration and Conciliation Act, 1996. In this paper, I will analyse the way in which Indian law balances between the conflicting values of arbitral confidentiality and public interest in IP enforcement. Indian courts have been very reluctant and contextual in their relationship with confidentiality and have not taken it as an absolute when an IP dispute reaches the rights of the population, regulation, or affects the market. The paper concludes that a model of calibrated transparency, as opposed to strict secrecy or full disclosure, is the most appropriate model of Indian practice and policy .