Confidentiality of the arbitration process: myth or reality?

June 2025  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

June 2025 Issue

A key attraction of international arbitration is the promise of confidentiality. Confidentiality in arbitration means that the existence of the arbitration, its subject matter, evidence, pleadings and documents exchanged, and the tribunal’s awards and decisions cannot be revealed to third parties or the public.

This expectation of privacy is critical for safeguarding trade secrets, corporate strategy and reputational interests. However, confidentiality obligations vary substantially across jurisdictions, which can influence the choice of seat and the negotiation of confidentiality terms in the arbitration agreement. This article examines the confidentiality landscape across key arbitration hubs, highlighting how confidentiality is treated, what exceptions apply, and practical steps to strengthen protections.

Confidentiality in key arbitration jurisdictions

The UNCITRAL Model Law on International Commercial Arbitration does not inherently contain a confidentiality provision, with different states providing for varying protections.

In the US, the Federal Arbitration Act is silent on confidentiality, and most states do not imply a duty of confidentiality in arbitration. Confidentiality obligations depend largely on party agreement or arbitral institutional rules. While arbitral tribunals may issue protective orders to safeguard information, enforcement depends on courts, which may be reluctant to seal filings absent compelling justification.

In the UK, confidentiality is an implied obligation under common law. Courts have consistently recognised confidentiality and privacy as fundamental features of an arbitration agreement, even where not expressly stated.

By contrast, the French Code of Civil Procedure is silent on confidentiality for international arbitrations, and French courts do not recognise an implied duty. Unless the parties expressly agree to protect the privacy of the proceedings in an arbitration agreement or by reference to arbitral institutional rules providing for confidentiality, French courts will not impose a confidentiality obligation.

Swiss law does not expressly codify a duty of confidentiality in the Federal Private International Law Act. However, confidentiality is recognised as an implied obligation under Swiss case law and is supported by arbitral institutional rules such as those of the Swiss Arbitration Centre. These protections, too, can be subject to exceptions such as in challenge or enforcement proceedings.

Hong Kong offers strong statutory protections for confidentiality. Under the Arbitration Ordinance (Cap. 609), confidentiality obligations apply to all parties and cover proceedings, documents and awards. Limited exceptions apply, such as disclosure for the purpose of enforcement, legal proceedings or to protect a legal right. Courts in Hong Kong generally uphold strict confidentiality standards, making it one of the more protective jurisdictions.

Confidentiality in arbitration is implied under Singaporean common law and reinforced by the International Arbitration Act. Court proceedings related to arbitrations are also subject to confidentiality restrictions under amendments introduced in 2020.

The confidentiality landscape in Dubai is nuanced. Within the Dubai International Financial Centre, confidentiality is recognised under common law principles and the DIFC Arbitration Law. Proceedings are presumed to be private unless disclosure is necessary for enforcement or legal rights protection. Onshore Dubai, under the UAE Federal Arbitration Law, provides that awards and hearings are confidential but does not expressly cover filings in the proceedings. Tribunals seated in Dubai often turn to international best practices to determine confidentiality obligations in the absence of explicit agreements.

Exceptions to confidentiality obligations

Many jurisdictions are either silent on the issue of confidentiality in arbitration or recognise it only as an implied obligation. In these instances, the best protection for the parties lies in expressly agreeing to confidentiality protections. Regardless of whether the confidentiality obligations are implied by law or expressly agreed between the parties, most jurisdictions recognise certain exceptions to this obligation.

The most common exception arises in connection with court proceedings. A party may invoke the supervisory jurisdiction of courts to seek interim relief prior to or during the arbitration proceedings, or for post-award actions such as recognition and enforcement of the arbitral award or setting aside of the award. In these instances, the existence of the arbitration, the award and other materials presented during the arbitration may become public.

A second exception to confidentiality is when disclosure is necessary for the public interest. The public interest involved may be for business efficacy, to avoid fraud, corruption or abuse of process, or to impeach a witness in a subsequent proceeding by using their testimony from the arbitration. Other sector-specific interests, such as when numerous disputes arise out of a common factual matrix, may also provide a substantial basis for disclosure of information.

Courts may lift confidentiality protections in the ‘interests of justice’, where legitimate interests of third parties are involved or where there exists a statutory obligation to disclose information. For instance, publicly traded companies are required under securities regulations to disclose relevant information to the market, their shareholders, auditors and insurers, which includes revealing the existence of an arbitration and its potential impact on the company’s liabilities. Similarly, freedom of information laws in different jurisdictions can impose a statutory obligation on state agencies or state-owned companies to disclose information about arbitrations.

Finally, there is a growing trend toward transparency in investment treaty arbitration or other arbitrations against states. Given that these disputes may involve issues of public interest, institutions such as the International Centre for Settlement of Investment Disputes publish arbitral awards.

Practical steps to strengthen confidentiality in arbitration

Confidentiality is an important, but not guaranteed, feature of arbitration. Leaks of confidential information in arbitration are unfortunately not uncommon. There have been several instances where confidentiality obligations have been breached, such as when the outcome of a dispute before the Court of Arbitration for Sport was disclosed to the media before the award was issued, or when pleadings of the parties were leaked to the press ahead of a challenge to the precedent in an ad hoc arbitration.

To better protect sensitive information, especially in cross-border disputes, proactive steps can be taken at various stages of the arbitration process to safeguard sensitive information. Below are practical strategies that in-house counsel can implement to enhance confidentiality protections.

Include express confidentiality clauses in the arbitration agreement. First, the parties must expressly agree on a confidentiality provision in the arbitration clause itself. A well-drafted clause should protect the existence of arbitration, pleadings, evidence, witness testimony, documents exchanged by the parties and the final award. Tailoring this clause to the specific needs of the transaction – for example by identifying who must maintain confidentiality and how long obligations will last – is critical. Where the arbitration rules or seat of arbitration do not impose default obligations, this express agreement will be even more essential. Some institutions provide such model confidentiality clauses, including the International Chamber of Commerce (ICC).

Adopt confidentiality protocols early in the proceedings. Parties can have confidentiality measures formalised through procedural orders at the outset. In fact, many tribunals will address confidentiality in Procedural Order No. 1, setting clear expectations about how sensitive materials will be handled. It is also common to require witnesses, experts, consultants and third parties involved in the arbitration to sign specific confidentiality undertakings. This approach ensures a consistent standard of protection across all participants in the process. Many arbitral institutions, such as the ICC, provide guidance for such procedural orders, including model documents related to the conduct of the arbitration.

Take strategic steps to protect confidentiality in court. To mitigate against risk of disclosure of information in court proceedings, parties can consider various protective measures. First, a party may request that filings be submitted under seal, preventing public access to sensitive arbitration-related documents. However, courts – including in the US – require a strong, fact-specific justification, such as the protection of trade secrets or highly confidential business information, to overcome the presumption of public access. In the US, even if a party can file under seal, certain information, such as party names, may still appear on dockets. Another option, though less commonly granted, is to request that hearings be conducted on camera (closed to the public). However, courts typically reserve on-camera proceedings for cases involving exceptionally sensitive information, such as critical trade secrets or matters of national security, and they are rarely used in ordinary commercial disputes.

Leverage technological safeguards. An often-overlooked risk to confidentiality is potential leaks of sensitive materials through cyber security breaches. As arbitrations are increasingly conducted through digital platforms, ensuring robust information security has become essential. To safeguard against unauthorised disclosures, in-house counsel should ensure that all document exchanges occur through secure, encrypted systems approved by the tribunal or mutually agreed upon by the parties. Access to sensitive materials should be restricted to authorised individuals only, with proper tracking and auditing of document access and use.

Implementing technological safeguards – including encryption, access controls and secure data rooms – can significantly reduce the risk of inadvertent disclosure, data leaks or cyber attacks, and help to quickly identify the source of any breach.

Conclusion

Although confidentiality is an important feature of international arbitration, differences in legal frameworks across jurisdictions mean that the degree of protection of information can vary significantly. Measures, including clear confidentiality clauses, procedural safeguards in the arbitration, strategic protection in court and leveraging technological tools, are critical in ensuring that sensitive materials remain secure. By taking these steps, parties can enhance their privacy protections and better safeguard their interests throughout the arbitration process.

 

Tom Villalon is an associate, Aarushi Nargas is a special legal consultant and Hafsa Ahmad is an international associate at Three Crowns. Mr Villalon can be contacted on +1 (771) 215 8311 or by email: tom.villalon@threecrownsllp.com. Ms Nargas can be contacted on +1 (202) 913 0577 or by email: aarushi.nargas@threecrownsllp.com. Ms Ahmad can be contacted on +1 (202) 913 5273 or by email: hafsa.ahmad@threecrownsllp.com.

© Financier Worldwide

BY

Tom Villalon, Aarushi Nargas and Hafsa Ahmad

Three Crowns

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