Confidentiality, and the Conciliator's Position

In one line

Sections 75, 80 and 81 protect the conciliation from being used against a party afterwards, by imposing confidentiality, disqualifying the conciliator from acting in later proceedings, and barring the admissibility of what was said during the conciliation; section 76 ends the proceedings.

Section 75: confidentiality

NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE CONCILIATOR AND THE PARTIES SHALL KEEP CONFIDENTIAL ALL MATTERS RELATING TO THE CONCILIATION PROCEEDINGS. CONFIDENTIALITY SHALL EXTEND ALSO TO THE SETTLEMENT AGREEMENT, EXCEPT WHERE ITS DISCLOSURE IS NECESSARY FOR PURPOSES OF IMPLEMENTATION AND ENFORCEMENT.

Four features.

A NON OBSTANTE clause, so the duty overrides any other law that might compel disclosure.

It binds BOTH THE CONCILIATOR AND THE PARTIES, not the conciliator alone.

It covers ALL MATTERS RELATING TO THE PROCEEDINGS, which is wider than what was said in them.

And it extends to the SETTLEMENT AGREEMENT, with one exception, disclosure necessary for IMPLEMENTATION AND ENFORCEMENT. Without that exception the agreement could never be produced in execution, and section 74 would be worthless.

Compare section 42A, inserted in 2019 for arbitration: the arbitrator, the arbitral institution and the parties shall maintain confidentiality of all arbitral proceedings EXCEPT THE AWARD, where its disclosure is necessary for the purpose of implementation and enforcement. Part III has had a confidentiality provision since 1996; Part I only since 2019, and the two are drafted in the same shape.

Section 80: the conciliator in later proceedings

UNLESS OTHERWISE AGREED BY THE PARTIES:

(a) THE CONCILIATOR SHALL NOT ACT AS AN ARBITRATOR OR AS A REPRESENTATIVE OR COUNSEL OF A PARTY IN ANY ARBITRAL OR JUDICIAL PROCEEDING IN RESPECT OF A DISPUTE THAT IS THE SUBJECT OF THE CONCILIATION PROCEEDINGS;

(b) THE CONCILIATOR SHALL NOT BE PRESENTED BY THE PARTIES AS A WITNESS IN ANY ARBITRAL OR JUDICIAL PROCEEDINGS.

The reason is section 69 read with section 70. A conciliator meets each party alone and hears things the other never hears, some of it under an express condition of confidence. A person carrying that knowledge cannot afterwards decide the dispute, argue it for one side, or be called to describe what he learnt.

Note two limits. Clause (a) is confined to the SAME dispute; clause (b) is not so confined, and bars the conciliator as a witness in ANY arbitral or judicial proceedings. And the whole section opens with "unless otherwise agreed by the parties", so it is derogable, and the parties may by agreement appoint their conciliator as arbitrator.

Read section 80 with section 30(1), which lets an arbitral tribunal, with the parties' agreement, use conciliation during an arbitration: the tribunal that conciliates continues as the tribunal, which is only possible because section 30(1) says the practice is not incompatible with the arbitration agreement.