THE AUTHOR:
Daniel Greineder, Senior Counsel and Head of International Arbitration at Albertson Solicitors
Confidentiality in arbitration is widely assumed but not always well-understood. What does it actually entail? Moreover, to what extent can a lawyer draw on knowledge of one case in advising a client in another, related matter? In the recent decision of the English High Court in A Corporation v (1) Firm B, and (2) Mr W, Foxton J considers an application by A Corporation for relief, including an injunction prohibiting the defendant law firm, Firm B, from acting against an affiliate of A Corporation, having acted for A Corporation in a similar arbitration. Foxton J dismisses the application and in doing so provides a thorough discussion of the many nuances of arbitral confidentiality in English law.
The notion that arbitral proceedings are confidential or even secretive, is widespread among practitioners, users and critics of arbitration. In-house counsel have been known to choose arbitration over litigation, because a dispute might involve trade secrets or other sensitive information. Yet, the nature and scope of arbitral confidentiality are nuanced. While parties may adopt specific confidentiality requirements, for example, through their choice of procedural rules, the starting point is the law of the seat or the arbitration agreement itself. In his (anonymized) judgment in A Corporation v (1) Firm B, and (2) Mr W [2025] EWHC 1092 (Comm), Foxton J surveys and summarizes arbitral confidentiality under English law in deciding an application for injunctive relief against the defendant law firm and its partner. The decision touches on many practical aspects of confidentiality and will be of interest to practitioners internationally.
Background
The claim arises out of two arbitrations in the shipping sector, referred to as the “Vessel 1 Reference” and the “Vessel 2 Reference.” In the London-seated Vessel 1 Reference, Firm B’s London office and partner Mr W acted for A Corporation against B Corporation. The dispute was settled, as recorded in the Settlement Agreement dated 22 September 2024. Subsequently, Firm B’s Asia office represented C Corporation in the Vessel 2 Reference, to which D Corporation was the respondent. That arbitration was current at the time of the application to the High Court. Importantly, D Corporation is under the same ultimate ownership as A Corporation. Albeit at several removes, Firm B acted both for and against the same party. It had acquired information in the Vessel 1 Reference of possible relevance to the Vessel 2 Reference. The judgment addresses the detail of that information only in an unpublished annex, but it relates to some similarities between the cases as well as to A and D Corporations’ approach to settlement and choice of arbitrator.
A Corporation brought a claim in the High Court and sought interim injunctive relief requiring Firm B and its branches to stop working on the Vessel 2 Reference, purge the Vessel 2 Reference file of any confidential information relating to the Vessel 1 Reference, and refrain from providing such confidential information to Corporation C. It additionally sought an affidavit from Mr W on the scope of confidential information already transferred to C Corporation and Firm B’s Asia office. The application was overwhelmingly based on English law of confidentiality in arbitration, and to a lesser degree, on contractual obligations in the Settlement Agreement, which also bound Firm B.
The Analysis of the Court
Foxton J decided the application using the test for interim relief, laid down in the House of Lords decision in American Cyanimide v Ethicon Ltd. [1975] A.C. 396, namely that in order to grant measures the court must first determine:
- Whether there is a serious question to be tried;
- Whether damages would be an adequate remedy; and
- Where the balance of convenience lies.
In deciding applications for interim relief, arbitral tribunals often apply the tests by analogy internationally.
The scope and indeed origin of arbitral confidentiality is not entirely straightforward. Foxton J acknowledges that doctrinally it is open whether it is a postulate of the lex arbitrii or an implied term of the parties’ agreement to arbitrate. He need not decide the question, however, and proceeds to pose two questions: (i) what material the obligation extends to, and (ii) what exceptions there are to it, where it does apply [13].
Drawing on caselaw and commentary, he identifies the following categories of documents and information subject to confidentiality [14]:
- The hearing and hearing transcript;
- Documents that a party has obtained in disclosure or document production;
- Documents generated or prepared for and then used in the arbitration, such as memorials, witness statements and expert reports; and
- The arbitral award.
Although not mentioned, it would be curious to exclude an arbitral tribunal’s procedural orders and terms of reference from the list. In any case, both the documents themselves and confidential information derived from them are subject to confidentiality.
However, where a document or information is otherwise public or known to a party or third party, it does not become confidential merely because it is subsequently used in an arbitration. The fact of a dispute and its circumstances will not automatically be confidential. They may, for example, be known in industry circles. This does not, however, limit the confidentiality of details of a claim as filed in an arbitration. The key distinction, at [20], is this:
“The divide reflects the fact that … the implied obligation of arbitral confidentiality is not premised on the inherent confidentiality of the material to which it attaches, but arises from the private nature of the process – it is not the information itself which benefits from arbitral confidentiality in the particular context, but the fact and manner of its deployment in the arbitration.”
As to the circumstances where a party may be relieved of its obligation of arbitral confidentiality, Foxton J sees the basis in the caselaw for a “sliding scale of arbitral confidentiality” [22], where a balance is to be struck between the sensitivity of the nature of the information and the legitimacy of any interest in its disclosure.
In keeping with English caselaw, Foxton J recognizes an admittedly elusive but vital distinction between lawyer’s familiarity with confidential information, which remains confidential, and his experience drawn from working on cases, which includes industry practices, set-piece disputes, such as final account disputes in the construction sector, and the tactical choices of repeat players in a sector, for example, their choice of arbitrator or expert witness. Arbitration practitioners found their expertise and competitive advantage on such experience and must be free to draw on it.
The main exceptions to arbitral confidentiality have been held to include the following:
- Where there is consent;
- Where a court requires it;
- Where it is “reasonably necessary for the protection of the legitimate interests of an arbitrating party.”
- Where the interests of justice require disclosure; and
- Perhaps where public interest requires it.
Variously in commentary and caselaw, the third exception has been recognized as applying to parallel or related proceedings, for example, where a party wants to show that a witness has made inconsistent statements across several proceedings. Finally, confidential material may be disclosed by a party to its witnesses, experts witness and lawyers for the purpose of preparing a case.
Foxton J touches on “without prejudice” materials before assessing A Corporation’s allegations. The Defendants conceded some breaches in relation to the confidentiality obligation under the Settlement Agreement. As to the others, based on breach of arbitral confidentiality, Foxton J dismisses them. The analysis is set out in a confidential annex to the judgment, so it is not possible to retrace his detailed reasoning. Clearly, the Defendants did not share the case file with C Corporation or Firm B’s Asia office. Rather, they seem to have shared some information about the A Corporation’s tactics. There seems also appears to have been some cooperation between B Corporation and C Corporation, which may fall under the common interest exception, i.e., where parties share information in pursuit of a common goal in a dispute
In a further step, Foxton J considers and dismisses the application for an injunction, having reviewed caselaw involving solicitors acting in litigation. He highlights that the present case is very different from the more usual one, where a former client tries to prevent its former solicitor from acting for a third party, because of the confidential information that the solicitor obtained while acting for its former client. Given the slight findings of a breach of confidentiality, he does not grant an injunction. He further holds that the Defendants have taken adequate steps to purge the file of the Vessel 2 Reference of the confidential information and that sufficient “Chinese walls” restricting the flow of information between the case files are in place.
Discussion
The decision illustrates that arbitral confidentiality is not a matter of omerta but rather of weighty, yet nuanced, rules. The judgment is to be welcomed as a statement of principle, upholding arbitral confidentiality and realistically recognizing situations where it may be subject to exception. The discussion of law firms operating across multiple offices and of lawyers’ expertise in the tactics of frequent arbitration users, as well as those users’ choice of expert and arbitrator, is also valuable. Arbitration practitioners found their expertise on having an insider’s view and the point deserved judicial acknowledgement.
The claim and judgment are based on English law. It is not an application under the Arbitration Act. Nor did the court need to consider confidentiality and conflict obligations under rules of any bar association, or the procedural rules of any arbitral institution. In relying on the judgment, parties may need to consider those rules as well. In any case, whether relying solely on English law or adopting institutional rules, parties must carefully consider the nature of any confidentiality that rules they adopt.
ABOUT THE AUTHOR
Daniel Greineder is Senior Counsel and Head of International Arbitration at Albertson Solicitors. An English-qualified barrister with over 15 years of experience, he has acted in over 40 arbitrations, including cases valued at over USD 1 billion, under leading arbitral rules. He has practised at leading international firms and chambers in London, Geneva and Doha and is fully fluent in English and German. He trained as an English barrister and has particular experience of disputes arising in the energy and construction sector as well as of joint venture and corporate disputes. He was educated at Oxford University and City University, London.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
