International arbitration law and rules in Angola

1.1.1 Angola’s first arbitration act was enacted in 2003 through Law no. 16/2003 of 25 July (Angolan Arbitration Act). The Act, also known as Voluntary Arbitration Law, is largely based on the former Portuguese Arbitration Act of 1986 and also encompasses several principles of the Model Law on International Commercial Arbitration of UNCITRAL (Model Law of 1985).

1.1.2 Angola was a Portuguese overseas territory for almost 400 years, until 1975 when it became an independent state. During this period, the legal framework in Angola, including for arbitration, was the one in force in Portugal.

1.1.3 After its independence, Angola relied on the legislation enacted during the Portuguese colonial era for several years. As such, until the enactment of the Angolan Arbitration Act, arbitration was governed by the provisions of the old Code of Civil Procedure, which subjected arbitration to the review of state courts. During such period, arbitration was not a widespread method for dispute resolution in the country.

1.1.4 With Angola’s exponential economic growth since 2000 and the attraction of foreign investment, the adoption of arbitration became a necessity. The Angolan Arbitration Act was then enacted as an assurance to investors that future claims would not be determined exclusively by Angolan state courts.

1.1.5 Angola has continuously made efforts to become a more arbitration-friendly jurisdiction and in 2016 finally became a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Under the principle of reciprocity set forth in Article I(3) of the New York Convention, Angola made a reservation pursuant to which the Convention will only apply to the recognition and enforcement of awards issued in the territory of another contracting state. 1 The Angolan National Assembly approved the accession of the country by means of resolution No. 38/2016, which was approved on 16 June 2016 and then published in the Official Gazette on 12 August 2016. The New York Convention was then ratified by the president through a letter of accession dated 5 December 2016, published in the Official Gazette on 19 December 2016. On 6 March 2017, this instrument was deposited with the Secretary-General of the United Nations. The New York Convention came into force in Angola on 4 June 2017, ninety (90) days after the deposit, and Angola become the 157th Contracting State.

2.1.1 The Angolan Arbitration Act governs all arbitrations in which the “seat” or “place” of the arbitration is Angola, applying to both institutional and ad hoc arbitrations.

2.1.2 Any claim involving disposable rights is arbitrable. As the Angolan Arbitration Act constitutes a general law on arbitration, it is not applicable to a certain type of dispute (e.g. labour disputes) where there is a special law determining the exclusive jurisdiction of courts or to mandatory arbitration.

2.1.3 The Angolan state and public law entities can enter into arbitration agreements when the dispute at issue refers only to private law, in an administrative contract, or when duly authorised by law. 

2.1.4 One of the main principles of the Angolan Arbitration Act is party autonomy. The resolution of disputes through arbitration depends on an agreement between the disputing parties to exclude their dispute from the jurisdiction of the state courts.

2.1.5 The Angolan Arbitration Act upholds the will of the parties in several areas, from the constitution of the arbitral tribunal to the procedural rules to be applied. It also recognises the principle of competence-competence, which is addressed in section 5.1 below.

2.1.6 Throughout the duration of the arbitration, there are also essential procedural principles which must be observed, such as the equality of the parties, due and fair process and the adversarial principle. 

3.1.1 Article 1(1) of the Angolan Arbitration Act defines the arbitration agreement as the means by which a dispute underlying disposable rights may be submitted to an arbitral tribunal. 

3.1.2 This broad definition is then divided into two different types of arbitration agreements, by reference to the objective of the arbitration agreement. Hence, it is possible to have arbitration contracts that submit a specific and existing dispute to arbitration, and arbitration clauses in contracts which specify that certain future and potential types of disputes may be resolved by arbitration.

3.1.3 This dual classification is relevant in defining the minimum content of the arbitration agreement: the arbitration agreement must precisely determine the object of the dispute submitted to arbitration and must be sufficiently certain regarding those elements of the contract in relation to which a dispute can be settled by the arbitral tribunal.

3.2.1 The arbitration agreement must be in writing. This formal requirement is fulfilled whenever the agreement to arbitrate is included in a written document signed by both parties, or in an exchange of letters, telexes, telegrams or other means of communication of which there is a written record. 

3.2.2 This requirement is also satisfied if a contract refers to a separate document that contains an arbitration clause, provided that the reference is such as to incorporate that clause as part of the contract.

3.2.3 An arbitration agreement which does not comply with the formalities required by law will be null and void. 

3.3.1 Not every dispute may be submitted to arbitration. As noted in section 2 above, disputes that do not concern disposable rights, or which must be submitted legally to the state courts or mandatory arbitral tribunals, are excluded from voluntary arbitration.

3.4.1 If the contract is declared null and void, this does not necessarily result in the invalidity of an arbitration clause contained within it. The invalidity of a part of, or of a certain clause in a contract does not render the whole of the contract invalid. The only exception is where the contract would not have existed without such invalid part or clause. Otherwise, under Article 4(2) of the Angolan Arbitration Act, a dispute regarding the validity of the contract may be submitted to arbitration under the arbitration agreement contained within that contract. 

3.5.1 A valid and effective arbitration agreement binds the parties to submit disputes falling within the scope of that agreement to arbitration and excludes those disputes from the jurisdiction of the state courts. Proceedings that are issued in the state courts regarding a dispute that the parties have agreed to submit to arbitration shall be, at the request of the respondent, declared void by the state courts on the grounds of lack of jurisdiction unless the court determines that the arbitration agreement is clearly null, invalid or unenforceable. 

4.1.1 Pursuant to Article 6(1) of the Angolan Arbitration Act, following the choice of the parties, the arbitral tribunal may be composed of a sole arbitrator or several arbitrators, provided, however, that the number of arbitrators is odd. Where the parties’ agreement is silent on this matter, the arbitral tribunal is composed of three arbitrators. 

4.1.2 An arbitral tribunal composed of an even number of arbitrators is deemed irregular and any award rendered by it can be subjected to an annulment procedure. 

4.1.3 The parties may appoint the arbitrator or arbitrators of their choice. This can be done within the arbitration agreement itself, or in a subsequent written document. The parties may define alternative methods of appointing the arbitrators, should they wish to do so. 

4.1.4 If the parties have not opted for an appointment procedure, according to Article 7(2) of the Angolan Arbitration Act, each party shall appoint one arbitrator, or an equal number of arbitrators if the tribunal has more than three arbitrators. The chair of the arbitral tribunal will be decided by the arbitrators themselves. 

4.1.5 Either party may request that the court appoints the relevant arbitrator(s) where:

1. the parties have not expressly stated the arbitrator(s) to be appointed or determined a method of appointment, and the parties subsequently fail to reach agreement on this issue;
2. one party does not appoint its arbitrator within 30 days of being requested to do so; or
3. the party-appointed arbitrators fail to appoint the chair within 30 days of the last party-appointed arbitrator being selected.

4.1.6 Where the arbitral tribunal is to be composed of a sole arbitrator and the parties fail to agree upon the appointment of that arbitrator, either party may request that the court makes the appointment.  

4.1.7 An arbitrator must be a natural person, have full legal capacity and must meet the
requirements of independence, impartiality, loyalty and good faith.

4.1.8 There is no legal requirement for the arbitrators to accept their appointment in writing. To this extent, pursuant to Article 9(2) of the Angolan Arbitration Act, an appointment is deemed to have been accepted whenever the appointee unequivocally shows the intention of acting as such or fails to send a written statement of non-acceptance to the party that appointed him or her within eight days following the appointment.

4.2.1 The appointment of an arbitrator may be challenged if there are justifiable doubts as to the impartiality or independence of the arbitrator or if the arbitrator does not possess the qualifications agreed upon by the parties. 2 Angolan Arbitration Act, Article 10(2).

4.2.2 A party may only challenge its appointed arbitrator for reasons that it only had knowledge of after the appointment. 3 Angolan Arbitration Act, Article 10(3).    

4.2.3 In the absence of a specific agreed procedure, a party that wishes to challenge an arbitrator should submit a motion to the arbitral tribunal setting out the grounds for the challenge. This motion should be filed within eight days of the date on which the challenging party became aware of the constitution of the arbitral tribunal or acquired knowledge of the grounds for the challenge. If the challenged arbitrator resists the challenge and remains in office, the full arbitral tribunal – including the challenged arbitrator – will decide on the challenge. If the challenge is not successful, the challenging party may refer the matter to the court within 15 days of receiving notice of the decision of the arbitral tribunal. The decision of the court on the challenge will be final. 4 Angolan Arbitration Act, Article 10(4) and (5).

4.2.4 The replacement of an arbitrator can occur in cases where an arbitrator is prevented from performing their duties, such as in the event of death, resignation, removal or when their appointment is invalid. 

4.2.5 Unless the parties have agreed to an alternative replacement procedure, the new arbitrator shall be appointed in the same manner as the arbitrator who vacated. 5 Angolan Arbitration Act, Article 11.

4.3.1 The Angolan Arbitration Act foresees two situations in which arbitrators can be held accountable for their conduct in the proceedings. Arbitrators are liable for damage caused to the parties by their unjustified resignation after having accepted the appointment and by their unjustified delay in deciding a dispute that has been submitted to the arbitral tribunal. The direct accountability of the arbitrator to the parties provides an incentive to achieve a swift conclusion to the arbitration as well as encouraging all parties to decide the dispute within the legal or agreed timeframe.  

5.1.1 The principle of competence is adopted in the Angolan Arbitration Act. This means the arbitral tribunal has the power to decide on its own jurisdiction, either as a preliminary question or in an award on the merits. 7 Angolan Arbitration Act, Article 31(1).

5.1.2 The parties may argue that the arbitral tribunal lacks jurisdiction at any point up to the time that the statement of defence is filed (or, in the case of the respondent, within its defence) or at the first opportunity after having knowledge of any supervening circumstances that may alter the jurisdiction of the arbitral tribunal. 8 Angolan Arbitration Act, Article 31(2).

5.1.3 The parties may object to the arbitral tribunal’s decision as to its own jurisdiction by means of appeal, if admissible, or may commence an action to set aside the award. In the event of an action being brought to set aside or appeal a partial award concerning jurisdiction, the arbitral tribunal may continue the arbitral proceedings and render a final award on the merits. 9 Angolan Arbitration Act, Article 31(3).

5.2.1 Unless otherwise agreed by the parties, the Angolan Arbitration Act gives the arbitral tribunal the power to grant interim measures at the request of a party in respect of the subject matter of the dispute. Nonetheless, the Angolan Arbitration Act does not prescribe the type of interim measures the arbitral tribunal may grant. 10 Angolan Arbitration Act, Article 22(1).

5.2.2 The parties are also allowed to resort to judicial courts directly, even after the arbitral tribunal has been constituted, without the obligation to file a request to the arbitral tribunal first. 

6.1.1 Unless otherwise agreed by the parties, the arbitral proceedings commence when a party receives the request of another party to submit the dispute to arbitration. 

6.1.2 The Angolan Arbitration Act specifically governs the request for arbitration, by stating that a party wishing to initiate proceedings must notify the other party of its intention, through a written notice issued by any means allowing confirmation of receipt. The notice must refer to the arbitration agreement, identify the subject matter of the dispute (if not provided for in the arbitration agreement) and, when applicable, appoint an arbitrator or agree to the appointment of an arbitrator. 11 Angolan Arbitration Act, Article 13.

6.2.1 Pursuant to Article 18 of the Angolan Arbitration Act, the arbitral proceedings must comply with the following fundamental principles of due process: 

• parties must be treated as absolutely equal;
• the strict observance of an adversarial system, with the right of the parties to present their case before the final award is rendered; and 
• each party must be granted full opportunity to present its case, whether orally or in writing.

6.2.2 A breach of such principles may be deemed sufficient grounds for the setting aside of the award. 12 Angolan Arbitration Act, Article 34(1)(f).   

6.3.1 The parties are free to agree on the seat of arbitration and the language to be used in the arbitral proceedings, provided they do so in a written agreement. It is common for parties to include such matters in the arbitration agreement itself. If the parties fail to agree on those issues, they shall be determined by the arbitral tribunal. 13 Angolan Arbitration Act, Article 17(1).

6.3.2 Regardless of the legal seat, the parties may agree to hold the hearings in any place they choose. If the parties have not agreed otherwise, the place of the hearings, evidence taking or decision making may be determined by the arbitral tribunal. 14 Angolan Arbitration Act, Article 17(2).   

6.4.1 The Angolan Arbitration Act has no provisions concerning multi-party arbitration. 

6.5.1 The Angolan Arbitration Act is silent on the obligation of the arbitral tribunal to conduct oral hearings. Given the autonomy of the parties to tailor the arbitral procedure to their interests, the parties are free to agree to hold oral hearings.

6.5.2 Nonetheless, the common practice of international and domestic arbitration in Angola is to hold oral hearings in which witness evidence is given before the arbitral tribunal, allowing counsel to direct and cross-examine witnesses. 

6.6.1 Although parties are free to determine the rules of evidence, there is a clear trend for parties to use the same type of evidence used in judicial proceedings, such as documents, witnesses, experts, party evidence and so on. The parties also tend to soften the strict judicial procedural rules concerning evidence when producing evidence in arbitral proceedings. The use of written statements is increasingly common.

6.7.1 The parties are entitled to determine the applicable procedural rules for the arbitral proceedings. This is also the case for evidence generally and specifically the appointment of experts.

6.7.2 Under Article 21(1) of the Angolan Arbitration Act, all means of evidence are considered legally admissible before the arbitral tribunal, whether upon the request of the parties or by the arbitral tribunal’s initiative, including expert witnesses.

6.7.3 However, the Angolan Arbitration Act is silent on the appointment and presentation of expert evidence, leaving the matter to be decided by the parties’ agreement or by the determination of the arbitral tribunal.

6.8.1 The Angolan Arbitration Act is silent on the matter of the confidentiality of the arbitral proceedings. It is common for the parties to include a confidentiality provision in the arbitration agreement or to set it out as a procedural rule for the arbitration process.

6.9.1 If the provision of evidence is within the control of one of the parties, or of a third party who refuses to cooperate in providing it, the interested party may apply to the relevant state court for an order that the evidence be produced before the state court. In order to apply for the court’s assistance, the interested party must first seek the permission of the arbitral tribunal. The evidence produced before the state court must then be communicated to the arbitral tribunal.

7.1.1 The arbitral tribunal will commonly apply Angolan substantive law, or any other substantive law chosen by the parties in the arbitration agreement.

7.1.2 In the case of an international arbitration, the parties are free to designate the applicable substantive law or rules of law.  If the parties have not agreed on the applicable law, the arbitral tribunal shall apply the law resulting from the application of the conflict of laws rules it deems applicable. 15 Angolan Arbitration Act, Article 43.

7.1.3 The arbitral tribunal may only rule on equity, rather than within the bounds of the substantive law, if expressly authorised by the parties. 16 Angolan Arbitration Act, Article 43(4).

7.2.1 Unless otherwise agreed by the parties, an award must be rendered within six months of the date on which the final arbitrator accepted his or her appointment. The deadline may be extended by written agreement of the parties.

7.2.2 Failure to render the final award within the time limit without reason may render the arbitral tribunal accountable for any losses caused to the parties. 

7.2.3 The award must be made in writing, signed by all or a majority of the arbitrators, state the parties’ identities, the arbitration agreement, the matter in dispute, the seat of the arbitration and contain the date and place where the award was made. 

7.2.4 In addition, the award must be sufficiently reasoned, unless the parties have agreed otherwise or the award results from a settlement between the parties. 

7.2.5 The award should also contain a determination of the amount payable and allocation of the costs of the arbitral proceedings, unless otherwise agreed by the parties. 17 Angolan Arbitration Act, Article 27(5).

7.2.6 After the award is rendered, a copy of the award signed by all or a majority of the arbitral tribunal shall be delivered to each party by registered mail or any other method that allows proof of receipt. 

7.2.7 The original of the award is to be deposited with the secretariat of
the court of first instance of the place of the arbitration unless either (a) the parties have agreed, in the arbitration agreement or a subsequent document, to release the arbitral tribunal from this deposit requirement or (b) in the case of institutional arbitration, where the rules provide for a different form of deposit. 18 Angolan Arbitration Act, Article 30(4).

7.3.1 If, during the arbitral proceedings, the parties settle the dispute, the parties must provide the settlement agreement to the arbitral tribunal, which shall ratify the agreement and terminate the arbitral proceedings. To terminate the proceedings, the arbitral tribunal must record the settlement in the form of an award. 19 Angolan Arbitration Act, Article 28(2) and (3).

7.4.1 As mentioned in paragraph 7.2.5 above, the award should contain details of the costs of the arbitral proceedings and each party’s liability for payment, unless otherwise agreed by the parties. 20 Angolan Arbitration Act, Article 25(5).

7.5.1 Following the expiry of the period in which a party may challenge the award, the award will have the same effect as a decision of the state courts of the lowest rank in the judicial hierarchy, and would therefore be directly enforceable. 21 Angolan Arbitration Act, Article 33(1).

7.6.1 Within 10 days of the date of notice of the award, either party may request that the arbitral tribunal correct any calculation, copying, typographical errors, or any errors of a similar nature, or to clarify any obscurity or ambiguity in the award. 22 Angolan Arbitration Act, Article 30(2).

7.6.2 There is no express permission in the Angolan Arbitration Act for the arbitral tribunal to correct or clarify the award on its own initiative.

8.1.1 The Angolan Arbitration Act follows the scheme of the Model Law of 1985 in this regard: the courts have no jurisdiction over matters relating to arbitration unless expressly provided for and in limited situations before and during the arbitral proceedings and after the award has been made.

8.1.2 As a consequence, if an arbitration agreement is valid and effective, the parties are not entitled to submit a dispute under that agreement to the state courts. Where this occurs, the state court will order the end of the court proceedings on the basis of lack of jurisdiction.

8.2.1 Preliminary rulings on jurisdiction are not dealt with by the Angolan Civil Procedure Code. A respondent must therefore argue the lack of competence of the state court as part of its defence. A ruling will be delivered by the state court at the curative act stage or alternatively at the final judgment.

8.3.1 A court may, at any time, issue interim orders for the purposes of:

• maintaining or restoring the status quo;
• preventing or restraining a party from taking actions that are likely to cause harm or prejudice to the arbitral proceedings;
• providing means for preserving assets out of which a subsequent award may be satisfied; and
• preserving evidence that may be relevant and important to the resolution of the dispute. 

8.3.2 The conditions for granting interim measures are:

1. the applicant has, with reasonable probability, the entitlement or right which the requested interim measure is intended to protect; and
2. the detriment resulting to the applicant if relief is not granted could not be easily remedied. 

8.4.1 One of the few situations where the state courts may be involved in arbitral proceedings, without interfering with the arbitral tribunal’s jurisdiction, is when obtaining evidence from uncooperative parties or third parties to the arbitration.

8.4.2 This is not an intervention of the judicial courts in the arbitral procedure, but rather the provision of assistance by the judicial courts, which are empowered with jus imperii and have the power to order unwilling parties to cooperate with the arbitral tribunal in providing evidence. Arbitral tribunals have no similar power, as their jurisdiction is limited to the terms of the arbitration agreement and its signatories. 23 Angolan Arbitration Act, Article 22(2) and (3).

9.1.1 As mentioned above, the Angolan Arbitration Act gives the same effect to an award as a state court decision at first instance. As described in detail below, the Angolan courts will not entertain an appeal to an arbitral award unless explicitly agreed to by the parties. In this regard, the jurisdiction of the courts is therefore limited to applications to set aside, recognise and enforce awards.

9.2.1 The Angolan Arbitration Act provides different approaches to the matter depending on whether it is a domestic or international arbitration.

9.2.2 Pursuant to Article 36(1) of the Angolan Arbitration Act, an appeal on the merits is admissible for domestic arbitration provided the parties have not waived their right thereto. Arbitral awards can be subject to the same appeals that would apply if it had been rendered by a state court, which can be understood to mean both the type of appeal and the grounds for appeal. As such, and different to other jurisdictions, an appeal relating to the arbitral tribunal’s failing to or inappropriately applying the applicable law will be admissible.

9.2.3 Under this provision, the parties will have a time limit of 15 days to appeal the award, which shall be reviewed by the Supreme Court in accordance with the rules of procedure applicable to appeals against judicial court decisions. 24 Angolan Arbitration Act, Article 36(2).

9.2.4 However, where the parties have in the arbitration agreement authorised the arbitral tribunal to adjudicate the case on the basis of equity, the award may not be appealed in any circumstances. 25 Angolan Arbitration Act, Article 36(3).

9.2.5 In an international arbitration, the parties are only entitled to appeal an award if they have expressly agreed to the possibility of appeal and have regulated its terms and conditions. 26 Angolan Arbitration Act, Article 44.

9.3.1 Apart from appealing against the award, the parties may bring a legal action for the annulment or setting aside of the award, on one or more of the following bases (as set out in Article 34 of the Angolan Arbitration Act):

1. the subject matter of the dispute is not capable of settlement by arbitration under Angolan law;
2. lack of jurisdiction of the arbitral tribunal;
3. the award was rendered after the arbitration agreement had lapsed;
4. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
5. the award did not contain the reasoning of the arbitral tribunal;
6. a mandatory principle of the procedure set out under Article 18 of the Angolan Arbitration Act has been breached;
7. the award deals with a dispute not contemplated by or not falling within the terms of submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
8. where the arbitral tribunal decided the dispute on the basis of equity and the award is in conflict with the public policy of Angolan law. 

9.3.2 The action seeking annulment must be filed before the Supreme Court within 20 days of the notice of the award to the parties or, if a request has been made to the arbitral tribunal to clarify any obscurity or ambiguity of the award, from the date on which the arbitral tribunal has decided on that request. 

9.3.3 The right to apply for the annulment of the award is a mandatory provision of the Angolan Arbitration Act that cannot be excluded by agreement between the parties and will prevail over any clause of the arbitration agreement that states otherwise. 27 Angolan Arbitration Act, Article 34(6).

10.1.1 Awards made in domestic arbitrations are enforced on the same terms as judgments of state courts. Therefore, the enforcement takes place within the state courts of first instance, without the need for any recognition or confirmation procedure. 

10.1.2 In addition to the grounds generally admissible in Angolan civil procedure for the refusal of enforcement of state court decisions, 28 Angolan Code of Civil Procedure, Article 814(1). the enforcement of an arbitral award may be refused under any of the grounds for setting aside of the award in Article 34(1) of the Angolan Arbitration Act. 

10.2.1 No decision issued by a foreign court may produce effects in Angola without being previously subject to a process of review and confirmation – including arbitral awards – in accordance with the Angolan Code of Civil Procedure (Articles 1094 and 1097). 

10.2.2 These awards must undergo an internal procedure before the Civil and Administrative Chamber of the Supreme Court in order to be recognised and confirmed. The grounds for refusal of recognition and confirmation are wide but a review of the merits is still not admissible even in such cases. 

10.2.3 More precisely, review and confirmation will not be granted to a foreign award if it does not meet all of the following statutory requirements: 29 Angolan Code of Civil Procedure, Article 1096, and Articles 771(a), 771(c) and 771(g) ex vi Articles 1100 and 1097.  

1. Authenticity of the document containing the award;
2. The award is valid and binding under the law governing the arbitration proceedings;
3. The award arises out of a valid arbitration agreement;
4. The same dispute is not pending in Angolan courts, nor a final decision on the same dispute has been rendered by Angolan courts;
5. The parties had the opportunity to present their case in the arbitration and were equally treated by the arbitrators;
6. The recognition and enforcement of the award is not contrary to Angola’s international public policy;
7. The award was not rendered by a corrupt arbitrator, who has been convicted by a court of law;
8. The losing party did not produce documentary evidence of which it had no prior knowledge, or did not use for any other reason during the arbitration, when such documentary evidence is capable of changing the decision of the arbitrators and favours the losing party; 
9. The award is not in contradiction with another res judicata award or decision previously rendered by an arbitral tribunal or court in a case between the same parties. 

10.2.4 While Angola has recently become a contracting party of the New York Convention, and even if the country of origin is a signatory, the award must undergo the internal procedure for review and confirmation. However, recognition can only be refused on the grounds set forth in the New York Convention.

11.1.1 The Angolan Arbitration Act does not address multi-party disputes and the consolidation of separate arbitral proceedings.

11.1.2 If, given the nature of their relationship, the parties consider multi-party arbitration to be of interest for future arbitrations, they must ensure that appropriate provisions are made in their arbitration agreement for the appointment of the tribunal, the arbitral tribunal’s jurisdiction and relevant procedural matters, or otherwise adopt institutional arbitration rules, such as the ICC Rules, which accommodate multi-party disputes and the joinder of additional parties.

11.2.1 As mentioned, the Angolan Arbitration Act is silent on the matter of the confidentiality of the arbitral proceedings. Parties commonly include a confidentiality provision in the arbitration agreement or set it out as a rule of procedure.