The practical benefits of using arbitration proceedings to decide legal disputes are, in principle, that:
- third parties and strangers will be excluded and have no access to the arbitration proceedings without the consent of parties; and
- the proceedings, materials disclosed or created during proceedings and the arbitral award cannot be disclosed by the tribunal, parties, their representatives, witnesses or any other individuals attending without the parties’ consent.
By contrast, litigation through the civil courts is neither private nor confidential. In civil courts proceedings and documents are generally open to the public which may be unattractive to those who wish to keep information away from public scrutiny, in respect of the facts of the dispute, itself, or commercially sensitive information.
But it is important to recognise that most jurisdictions do not always adequately protect confidentiality.
Every arbitration identifies the legal place where the arbitration occurs (its “seat”) and whose national arbitration law will apply.
Some of these national laws legislate that arbitration is to be confidential but a number do not. The legislation underpinning arbitration in Indonesia, Japan, and the People’s Republic of China do not regulate confidentiality in arbitration proceedings but leave this to be agreed between the parties and institutional rules. There is also no duty of confidentiality imposed in the United States by the Federal Arbitration Act and the Uniform Arbitration Act.
Other jurisdictions provide limited protection of confidentiality. Many have adopted the UNCITRAL Model Law on International Commercial Arbitration. However, the UNCITRAL Model Law does not contain specific provisions concerning the principle of confidentiality.
A few other countries do expressly recognise the confidentiality principle in its legislation.
- United Kingdom The English Arbitration Act 1996 and 2025 do not explicitly protect confidentiality. However, the English Courts have routinely acknowledged the confidential nature of arbitration proceedings. In Emmott v Michael Wilson & Partners Ltd [1] the English Court of Appeal upheld the obligation of confidentiality in arbitration to be implied. There was an obligation, implied by law and arising out of the nature of arbitration, on both parties not to disclose or use for any other purpose any documents prepared for, disclosed or produced in an arbitration. This obligation was not limited to commercially sensitive information, although its scope depended on the context in which it arose and on the nature of the information or documents at issue. Nonetheless, there were circumstances when disclosure is permissible including where the interests of justice required it.
- Singapore The Courts have also implied a duty of confidentiality has been pronounced by the courts and the level of confidentiality to be observed is to be determined on a case-to-case basis: see International Coal Pte Ltd v. Kristle Trading Ltd[2] based on the factual matrix. Unlike most other jurisdictions, the Singapore International Arbitration Act acknowledges and provides for the preservation of confidentiality when the arbitration disputes are before the courts. Section 22 of the Act provides that proceedings brought under it before the courts shall be heard otherwise than in open courts, on the application of any party to the proceedings. Further, when such disputes are before the courts, the courts are empowered to give necessary directions regarding what information relating to the proceedings may be published, provided the parties mandatorily consent to such publication.[3]
- Caribbean The region has not paid particular attention to the promotion of international arbitration so that the New York Convention and the UNCITRAL Model Law has seldom been applied.
- For example, if confidentiality needs to be preserved in the British Virgin Isles, a party should apply to the court to seal the relevant court document or file, as the situation requires under astern the Revised Caribbean Supreme Court Civil Procedure Rules. A “sealing order” prevents court staff from giving the public access to the proceedings.
- In Cayman s 81(1) of the Arbitration Act provides that “An arbitral tribunal shall conduct the arbitral proceedings in private and confidentially”. Section 81(2) then states that disclosure by the arbitral tribunal or a party of “confidential information relating to the arbitration” shall be actionable as a breach of an obligation of confidence unless the disclosure meets one of several criteria.
- In 2023, Trinidad and Tobago enacted the Arbitration Act 2023 to significantly modernise the domestic and international arbitration legal framework of the country. While the 2023 Act largely aligns with the UNCITRAL Model Law, s 58 imposes a general duty of confidentiality on the parties, the arbitral tribunal, and any experts or witnesses involved in the proceedings. However, there are exceptions to this duty, such as when disclosure is required by any enactment or rule of law necessary to protect a party’s legal rights, or in the public interest.
- India The Arbitration and Conciliation Act, 1996 did not initially incorporate confidentiality provisions. But s 42A prescribes the obligation of the arbitrator, arbitral institution, and the parties to the arbitration agreement “to maintain the confidentiality of all arbitral proceedings, except the award, where its disclosure is necessary for its implementation and enforcement”. Importantly, s 42 A lays down the duty to maintain confidentiality and fails to address the consequences of non-observance of this duty. Consequently, the effect of noncompliance on the validity of the award and the proceedings is unclear.
- Hong Kong Its arbitration regime explicitly recognizes confidentiality as an obligation upon the parties unless the parties to the arbitration agreement have a differential agreement under § 18 of the Hong Kong Arbitration Ordinance (2011).
- Section 14 of the Dubai International Arbitration Centre Arbitration Law 2008 states that unless the parties have agreed otherwise, ‘all information relating to the arbitral proceedings shall be kept confidential, except where disclosure is required by an order of the DIFC Court’.
- The Asian Arbitration Centre Arbitral proceedings or awards may be disclosed in court including applications for interim measures under s 11; challenges of an appointments of arbitrators under s 15; applications to set aside under s 37; and references on questions of law under s 42.
Institutional Rules of arbitral institutions
Various arbitral institutions adopt different approaches to the principle of confidentiality. Although most institutions recognize a duty of confidentiality in their rules, the degree and ambit of such recognition are different. Institutions such as the London Court of International Arbitration and the Singapore International Arbitration Centre and the Swiss Arbitration Centre all stipulate detailed provisions regarding confidentiality and oblige the arbitrators and parties alike.
- Article 30 of London Court of International Arbitration Rules impose an obligation upon the parties, the arbitral tribunal, any tribunal secretary, and experts to maintain the confidentiality of “all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain”.
- Rule 39 of the Singapore International Arbitration Act Rules 2016 imposes a duty of confidentiality by persons associated in the arbitration proceedings, subject to the consent of the parties otherwise.
- The Mumbai Centre for International Arbitration 2016 mirrors the Singapore ules on this aspect of confidentiality. Art 16 allows certain exceptions to the general principle of confidentiality and permits disclosures pursuant to legal orders, for enforcing a legal claim or right, or for purposes such as challenge and enforcement of arbitral awards, etc.
- Article 44 of the Swiss Rules of International Arbitration 2021 enshrines an analogous provision.[4]
On the other hand, some arbitral institutions only place the duty of confidentiality on arbitrators but not on the parties. For instance, the International Court of Arbitration Rules only compel the arbitrators and the staff of the International Court of Arbitration to uphold the confidentiality of the proceedings and not the parties to the dispute.[5] Similarly, the rules of the International Centre for Dispute Resolution impose the duty of confidentiality only on arbitrators and administrators.[6]
How best to achieve confidentiality
It is important to appreciate that many jurisdictions do not regulate confidentiality when the disputes are before their courts.
It is therefore helpful to consider the following.
- The arbitration agreement Parties can ensure their arbitration is confidential by making sure their arbitration agreement contains an appropriately drafted specific confidentiality clause.
- A tightly defined statutory framework: It is worth seeking arbitration in jurisdictions where legislation incorporates explicit provisions concerning the implementation of confidentiality in arbitration disputes when they are before the courts, in the arbitration statute itself. The provisions should require that the parties and others involved in the proceedings before the court undertake to maintain the confidentiality of the information exchanged during the resolution of the dispute. Such proceedings should necessarily be conducted in camera, if so, requested by either party unless the interests of justice warrant an open hearing. Further, the provision must detail the contours of its application in definitive terms and lay down exceptions thereof.
- Defining the contours and exceptions to confidentiality: Ideally, legislation should include within its ambit of its application, not only arbitrators and the parties but also any third party, secretaries, and administrative staff to the arbitral institution and the respective court, witnesses, experts, rapporteurs, etc. Permitted exceptions should also be detailed in the statute covering eg where the disclosure is necessary for the protection of interests of either party.
- Consequences of breach: It should be noted that many jurisdictions do not address the repercussions of breaches which should depend on the seriousness of the breach and could range from awarding damages to invalidating the proceedings.
Furthermore, there are limits on the confidentiality principle.
- Where a party utilises a Court’s supervisory powers in relation to arbitration or seeks the Court’s assistance to enforce an award, the principle of open justice may mean that the existence of the arbitration, the parties’ names and possibly the award itself will enter the public domain.
- Where material disclosed or generated during the arbitration is subsequently required for other purposes eg for the purposes of disciplinary proceedings against an arbitrator.
If confidentiality in arbitration is unlawfully breached, actions based on either contract or the tort of breach of confidential information giving rise to injunctive relief to protect from potential or further breaches are available. Each of these remedies have its own particular domestic requirements which must be met by claimants intending to enforce them.
[1] [2008] Bus. L.R. 1361
[2] [2008] SGHC 182 (Sing.)
[3] Singapore International Arbitration Act (1994), §§ 22, 23.
[4] Swiss Rules of International Arbitration (2021) Art 44.1.
[5] ICC Arbitration Rules (2021), Art 8 of App 1, Art 1 of App II.
[6] ICDR International Arbitration Rules, 2021, Art. 40.1.
Written by Richard Clayton KC.