Arbitral Confidentiality

In A Corporation v Firm B & Anor [2025] EWHC 1092 (Comm), the English High Court clarified that arbitral confidentiality extends to:

1. The hearing(s) in the arbitration.
2. Documents disclosed by a party to other parties in the arbitration.
3. Documents “generated” or “prepared for” and then used in the arbitration, including pleadings, factual witness statements, expert reports, written submissions, and inter partes correspondence regarding the arbitration.
4. The arbitral award.
5. To the extent that documents (1) – (4) above are themselves the source of confidential information, the information derived from those documents.

By contrast, the Court confirmed that a party's own documents which came into existence independently of the arbitral process are not subject to arbitral confidentiality “merely because that party discloses them or relies upon them” in the arbitration. Also, the fact that a commercial dispute leads to arbitral proceedings does not of itself make the existence of that dispute confidential. 

The Court referred to the following exceptions to arbitral confidentiality: 

1. Where there is consent or a court order.
2. Where it is reasonably necessary to protect the legitimate interests of an arbitrating party (e.g. for the purpose of defending claims by a third party).
3. Where dissemination (rather than “publication”) is required to advance a party's case in the arbitration in which the obligation of confidentiality has arisen (e.g. disclosing material to lawyers or factual and expert witnesses). 
4. Where material which is subject to arbitral confidentiality is used to elicit similar fact evidence from a third party who is likely to have similar complaints against the opposing party.

Confidentiality is often cited as one of the principal advantages of arbitration. This judgment provides welcome clarification, for parties and arbitral practitioners, as to the categories of information and documentation that arbitral confidentiality extends to.

In Bourlakova & Ors v Estate of Oleg Bourlakov & Ors [2025] EWHC 3085 (Ch), the English High Court ordered disclosure of certain information and documentation relating to a Russian-seated arbitration, despite the fact that the material sought was subject to arbitral confidentiality under the International Commercial Arbitration Court (ICAC) Rules. 

The Court found (inter alia) that:

1. The obligation of confidentiality under the ICAC Rules did not provide a “sufficiently countervailing factor” to preclude disclosure in the circumstances of the case.
2. A breach of the confidentiality imposed by the ICAC Rules would not be a criminal offence, and the risk of penalty was limited given the respondent would be complying with a court order.
3. The need to protect assets outweighed the confidentiality provided for by the ICAC Rules.

This judgment is an exceptional example of the English Court ordering disclosure of confidential arbitration materials, notwithstanding the confidentiality imposed by the ICAC Rules, in order to protect assets.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.