Behind closed doors: the limits of confidentiality in arbitration

Confidentiality is widely recognised as one of the key advantages of arbitration over litigation. But what (precisely) is confidential and what are the limits of arbitral confidentiality? The recent judgment in A Corporation v Firm B [2025] EWHC 1092 (Comm) provides a helpful opportunity to recap the position. 

The Commercial Court’s judgment, delivered by Mr Justice Foxton, addresses the scope, limits, and practical application of arbitral confidentiality under English law. Reaffirming key principles, it also clarifies the boundaries between what is protected by arbitral confidentiality and what is not, particularly in the context of related disputes and legal teams acting across overlapping matters. 

The Facts

A Corporation (the claimant in the High Court proceedings) applied to the English Court to stop Firm B acting for C Corporation in an arbitration against D Corporation (a company in A Corporation’s corporate group). 

The application arose from two related arbitrations, referred to as the Vessel 1 Reference and the Vessel 2 Reference. The Vessel 1 Reference was between A Corporation and B Corporation, in which Firm B acted for B Corporation. Later, Firm B was instructed by C Corporation in the Vessel 2 Reference against D Corporation. 

A Corporation alleged that confidential information obtained by Firm B during the Vessel 1 Reference was misused in the Vessel 2 Reference and sought interim injunctive relief to prevent Firm B from continuing to act. This required the English Court to consider whether there had been a breach of arbitral confidentiality. 

What Is Confidential in Arbitration?

Although there is no statutory framework, English law has developed to recognise an implied obligation of confidentiality in arbitration. According to Mr Justice Foxton, arbitral confidentiality extends to the following categories of information:

1. Hearings, including recordings, transcripts, or notes.
2. Documents disclosed by a party to the arbitration.
3. Documents prepared for and used in the arbitration including pleadings, witness statements, expert reports, written submissions, and inter-party correspondence.
4. The Award.
5. Derived information, meaning information drawn from or based on any of the above sources also inherits confidentiality.

As Mr Justice Foxton emphasised, the “obligation of arbitral confidentiality is not premised on the inherent confidentiality of the material … but arises from the private nature of the process.”

What Is Not Confidential?

Mr Justice Foxton also discussed what did not fall within the scope of arbitral confidentiality:

• If a party brings its own documents into arbitration—documents that pre-existed independently—that party remains free to use those documents elsewhere.
• The fact that a party complains about defective goods or fraudulent misrepresentation does not make that complaint confidential, even if the complaint is subsequently the subject of an arbitration. The Judge gave the example of when a buyer buys goods which it concludes are defective, the fact does not become confidential simply because the buyer commences an arbitration against the seller, but the particulars of claim filed in the arbitration asserting that complaint will be confidential.
• The mere fact that an arbitration has commenced is not, in itself, protected by confidentiality.

Mr Justice Foxton also drew a distinction between confidential information and the experience lawyers acquire from acting in arbitrations. Knowledge about the types of documents generally available in relation to particular types of issues, how major players and “repeat litigators” structure businesses or record assembly, which document requests have and have not yielded results, industry practices, or litigation strategy, which are learned in the course of past arbitrations, is not subject to confidentiality. The Judge recognised that the line may not always be clear, experienced practitioners generally understand where it lies.

Exceptions to Arbitral Confidentiality

The Court set out a non-exhaustive list of accepted exceptions to the obligation of arbitral confidentiality including: (i) consent (express or implied), or by court order or leave, (ii) where disclosure is required in the interests of justice, (iii) potentially where the public interest requires. 

The Court also said that an exception is that where disclosure is reasonably necessary to protect the legitimate interests of an arbitrating party (including founding an issue estoppel from an award against the arbitrating party in other proceedings, to challenge inconsistent witness evidence in another forum, or to make a claim against or defend a claim brought by a third party). 

Additionally, disclosure to experts, witnesses, and insurers for the purposes of prosecuting or defending the arbitration is widely accepted. Last, the Court accepted it is “strongly arguable” that it must be permissible to use material falling in the scope of arbitral confidentiality for the purpose of seeking to elicit similar fact evidence from a third party who is believed to have similar complaints against the opposing party, which can be powerful evidence in rebutting allegations of ignorance, accident, or coincidence.

Without Prejudice Communications

A further issue addressed was whether “without prejudice” (WP) settlement discussions are confidential only as between the original parties, or whether they may be shared more broadly without breaching confidence. Foxton J noted that while there are instances where WP information may be shared, such as with liability insurers, the issue is complex, and broader observations were not necessary in this case as the Defendants did not dispute this breach. However, the Court found that the impact of this disclosure was minimal and therefore refused to grant the injunction. 

Breaches of arbitral confidentiality

As to the other alleged breaches, the Court found that the Defendants had the stronger argument that no breach of arbitral confidentiality had occurred. 

This was due to two key factors: first, the factual allegations as to Vessel 1’s condition on delivery, and the information provided to B Corporation before the sale, were not protected by arbitral confidentiality.  Second, it was strongly arguable that the sharing of information for the purpose of establishing similar events and complaints relating to both vessels fell within one of the recognised exceptions to confidentiality (being for the purpose of seeking to elicit similar fact evidence from a third party, as explained above). 

Conclusion

This case affirms that while arbitration enjoys a robust presumption of confidentiality under English law, the boundaries are not absolute. The exceptions to arbitral confidentiality seek to preserve arbitral confidentiality whilst recognising the need in some circumstances to allow for deployment and dissemination of arbitral information.