Arbitration and confidentiality at common law (England and Wales)
Arbitration and confidentiality at common law (England and Wales)

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • Arbitration and confidentiality at common law (England and Wales)
  • When do confidentiality issues arise?
  • Implied duty of confidentiality
  • Disclosure by consent—an exception to confidentiality
  • Documents in the public domain—an exception to confidentiality
  • Confidentiality and the award
  • Confidentiality—evidence and documents
  • Confidentiality and proceedings in the English courts
  • Court's discretion in relation to confidentiality
  • Confidentiality agreements

This Practice Note considers confidentiality and arbitration under the law of England and Wales (England and English are used as a convenient shorthand).

For many parties, an important reason for agreeing to arbitrate is the understanding that this dispute resolution process is private and that disclosed documents and documents generated for the purposes of the arbitration are all subject to a blanket of confidentiality. For example, in the QMUL/White & Case 2010 survey, 'Choices in International Arbitration', 62% of respondents said that confidentiality was very important to them in international arbitration. Also, in the 2015 survey, 'Improvements and Innovations in International Arbitration', confidentiality and privacy were in the top five most valuable characteristics of international arbitration.

The Arbitration Act 1996 (AA 1996) is notably silent on confidentiality in arbitration, although the drafters of the AA 1996 did consider setting out the principles of confidentiality and ultimately found the task too difficult and controversial (see paragraphs [11]–[17] of the Departmental Advisory Committee on Arbitration Law—Report on the Arbitration Bill (the DAC Report)).

Nevertheless, as a matter of English law, an arbitration agreement carries with it an implied term to the effect that the proceedings (including the award, the pleadings, written submissions, notes and transcripts of evidence given in the arbitration) are confidential as between the parties and between the parties and the tribunal, whether