Confidentiality is often highlighted as one of the key advantages of choosing arbitration over litigation in the courts. Arbitration is an inherently private process. But is it also always confidential?
Parties need to bear in mind that confidentiality in arbitration is neither absolute nor guaranteed in every context.
The recent English Commercial Court decision of A Corporation -v- B Firm & another[1] provides a useful summary of the position under English law. The case concerned an application for injunctive relief against an international law firm to prevent it from acting in an arbitration on the basis of alleged confidential information it had obtained from a separate (since concluded) arbitration. The Court concluded that injunctive relief was not justified in this case.
In its decision, the English Commercial Court provides a useful roundup of the existing case law on the limits of arbitral confidentiality under English law, whilst acknowledging that the duty of arbitral confidentiality remains protected. For parties who are keen on keeping their disputes confidential, there are a few key points to bear in mind:
Confidentiality is the default under English law
Where the seat of the arbitration is in England and Wales, there is an implied obligation of confidentiality. Generally speaking, the obligation of arbitral confidentiality extends to:
- the arbitral hearings, including transcripts or notes of hearings;
- documents disclosed by one party to other parties in the arbitration in the hands of those other parties;
- documents prepared for the purposes of and used in the arbitration, including pleadings, witness statements and expert reports, written submissions and inter partes correspondence; and
- the arbitral award.
Information derived from confidential documents will likely also be treated as confidential
This stems from the principle that arbitration is an inherently private process—it is not the information itself that benefits from arbitral confidentiality but rather how such information is deployed in the arbitration. Notably, the duty of confidentiality will apply even if the so-called “derived” information does not disclose or incorporate the confidential information itself. By way of example, if a party deploys a witness statement setting out the facts relating to its dealings with the other side, this document will be confidential even if it does not contain confidential information or information obtained from the other party.
Note, however, that not all material to which arbitral confidentiality attaches will necessarily justify the same level of protection; confidentiality operates on a sliding scale. As such, disclosure of a party’s own filings will be considered less intrusive than that of material produced by the opposing party.
There are exceptions to the rule
Not all information is treated as confidential. The fact that a dispute has arisen and the events leading up to commencement of an arbitration are not inherently confidential. For example, where a seller delivers defective goods, none of the existence of the contract, its performance or the buyer’s complaint are considered confidential simply because arbitral proceedings have commenced.
Similarly, the fact of commencement of an arbitration, the existence of an arbitration, the result of that arbitration or the existence of any challenge to the award can be disclosed where there is a legitimate reason to do so.
Further, English law recognises exceptions to arbitral confidentiality, where:
- there is consent (express or implied);
- there is a court order or leave of the court;
- it is reasonably necessary for the protection of the legitimate interest of an arbitrating party, e.g. where witness/expert evidence being deployed in one arbitration is contrary to evidence from the same individual in a prior arbitration; and
- the interests of justice (and public interest) require disclosure.
Parties should choose their seat and arbitral rules carefully
The position described above applies where the seat of the arbitration is in England and Wales and can be different in other jurisdictions. When agreeing where an arbitration is seated, parties should therefore bear in mind the applicable national law on confidentiality.
Likewise, confidentiality may arise by reason of an express provision in the contract or the incorporation of various institutional rules. For instance, the LCIA Arbitration Rules 2020 contain relatively detailed provisions as to the duty of confidentiality and exceptions to this (Article 30). In contrast, the ICC Rules 2021 merely entitle the tribunal to make orders concerning the confidentiality of proceedings (Article 22.3) and only impose a duty of confidentiality on arbitrators and ICC staff rather than the parties themselves.
The takeaway
Confidentiality in arbitration is not always guaranteed. When in doubt and where the parties wish to safeguard confidentiality in the arbitration, then it is always important to consider including a confidentiality clause in the arbitration agreement.
[1] [2025] EWHC 1092 (Comm)
