Confidentiality in arbitration: a sliding scale across jurisdictions

In brief, arbitration is an alternative dispute resolution, the parties present their case to a neutral third party who in turn makes a binding decision, this is an alternative to a court of law.

Confidentiality is often cited as one of the key advantages of arbitration over litigation. But how far does this protection extend, and how does it vary across jurisdictions? A recent English case of A Corporation v Firm B [2025] EWHC 1092 (Comm) sheds light on these questions.

Why confidentiality matters 

Confidentiality is often a key consideration for parties entering into commercial contracts. This can be attractive for a range of reasons such as sectors where intellectual property (IP), trade secrets, sensitive commercial strategies, marketing strategies or pricing and costing information are at stake. Not only are these sectors that prefer confidentiality, but confidentiality can also help avoid any unflattering media coverage becoming widely known.

The cornerstone of English arbitration is that the duty of confidentiality is an implied term to the arbitration agreement unless the parties agree otherwise. The foundation of English arbitration was set out by Sir Patrick Neil QC in 1995 when he said, "it would be difficult to conceive of any greater threat to the success of English arbitration than the removal of the general principles of confidentiality and privacy.” However, there is room for interpretation under common law due to the lack of detail and ambiguity.

The legal basis in the UK

Although confidentiality is a key element of the arbitration process, parties should be aware that there are exceptions to the implied duty, including: 

• Where the parties have consented
• Disclosure required by law or court order
• Disclosure necessary to protect a party’s legal rights
• Public interest considerations

Comparative jurisdictions and institutional rules

It’s important to recognise that not all jurisdictions rely on the implied obligation that arbitration will remain confidential. As seen in both Ali Shipping Corp v Shipyard Trogir [1999] 1 WLR 314 and A Corporation (referred to above), the English courts treat confidentiality as a default feature of arbitration. This includes an implied duty not to disclose documents generated for or used in the arbitration, such as pleadings, witness statements and awards.
 
Other jurisdictions have adopted the UNCITRAL Model Law on International Commercial Arbitration, which does not contain specific reference concerning confidentiality. Although The English Arbitration Act 1996 and the 2025 reforms don't explicitly set out confidentiality, it's recognised by courts as an implied obligation.

Accordingly, arbitration users should be aware that different jurisdictions vary in their approach to confidentiality:

• Some, like Hong Kong and Malaysia, impose confidentiality obligations by statute or judicial interpretation. 
• Others, such as Ontario, Sweden, and the United States, do not recognise an implied duty of confidentiality and require parties to opt in through contract or institutional rules.
• Certain jurisdictions have differing approaches to domestic and international arbitration. In France for example, French law distinguishes between domestic and international arbitration. In domestic arbitration, the French Civil Procedure Code imposes a statutory duty of confidentiality on the parties, arbitrators, and institutions. However, in international arbitration, there is no such statutory obligation. Confidentiality must be expressly agreed by the parties or provided for in the applicable institutional rules. This distinction is important for parties choosing France as a seat of arbitration, as the default confidentiality protections differ depending on the nature of the arbitration.

To provide certainty about confidentiality, many arbitral institutions include express confidentiality provisions in their rules which require the parties to expressly contract out of. For example, the LCIA, ICC, SCC and SIAC rules all impose confidentiality obligations on parties and arbitrators. These rules can supplement or override the default legal position.

Case spotlight

In recent months the case of A Corporation v Firm B has provided helpful insight as to the extent that confidentiality obligations arise in arbitrations in English law and the limits of this implied duty. The judgment provided by Mr Justice Foxton offers helpful guidelines on what documents are covered by confidentiality and also what information may not fall in this domain (facts that predate the arbitration or documents already in a party's possession) and be automatically protected by the implied duty. 
 
In brief, the case involved allegations that confidential information from a concluded arbitration (the “Vessel 1 Reference”) had been misused in a subsequent arbitration (the “Vessel 2 Reference”). The claimant sought injunctive relief to prevent the defendant law firm from continuing to act in the second arbitration.
 
The judgment explored the exceptions to confidentiality with the premise focusing on when disclosure is necessary to protect a party's legitimate interests. In this case it was found that the alleged breaches were either covered by exceptions or hadn't caused material prejudice. This case can now be used as a basis to understand the "sliding scale of arbitral confidentiality", and the test that the English court will use in determining applications of a similar nature. This concept of the “sliding scale” illustrates that not all information within arbitration is treated with the same level of confidentiality. Some information is inherently more sensitive, and the degree of judicial protection may vary depending on the nature and context of the material. The English courts continue to balance the protection of confidential information with the practical realities of legal practice. However, it also notes the importance of clearly defining confidentiality obligations in arbitration agreements. 

Conclusion

Confidentiality in arbitration is an attractive option for several reasons, however, the difference in jurisdictions is something to be aware of. The case of A Corporation v Firm B offers important clarification on the scope of confidentiality in arbitration. The court reaffirmed that confidentiality covers documents and information generated for the arbitration but doesn't extend to pre-existing facts or materials already in a party’s possession. It also highlighted key exceptions, such as where disclosure is necessary to protect legitimate interests.
 
Although the English courts place reliance on the implied duty, and the recent case set out some useful guidelines, it would be wise to expressly state the need for confidentiality in arbitration agreements. This will allow for additional protection not only in the English courts, but also across jurisdictions that do not rely on confidentiality as the foundation to arbitration.

For more information about:

• What is arbitration and how it can benefit you, please see here.
  How the UK courts can assist parties in international arbitration, please see here.