James Glaysher explores the use of arbitration material in open court
- Arbitral confidentiality is not absolute: courts may permit disclosure where necessary to protect a party’s legitimate interests or serve the interests of justice.
- Permission depends on relevance, necessity and sensitivity, with stronger justification required for material higher up the ‘sliding scale of arbitral confidentiality’.
Confidentiality remains one of the most attractive characteristics of arbitration, with agreements to arbitrate becoming an increasingly prominent choice for those with a particular interest in keeping their disputes private—notably parties to family disputes and contentious trusts and probate matters.
No absolutes
Given how synonymous it is with the arbitral process, it is perhaps surprising that confidentiality is not codified within the Arbitration Act itself. Mr Justice Foxton in A Corporation v Firm B and another [2025] EWHC 1092 (Comm) explained that it is ‘common ground that, as a matter of English law, the default rule is that the parties to an arbitration agreement will be taken to have impliedly agreed to an obligation of confidentiality’. Therefore, the obligation of confidentiality
