Introduction
Confidentiality has long been described as one of arbitration’s defining advantages over litigation — the feature that most sharply distinguishes private dispute resolution from the public courts. Commercial parties choose arbitration precisely because they do not want their disputes, financial positions, trade secrets, or contractual terms exposed to competitors, regulators, or the public through court proceedings. This expectation is so deeply embedded in commercial arbitration culture that many practitioners treat it as a near-absolute characteristic of the process.
The reality, however, is considerably more complicated, and is becoming more so. The confidentiality of arbitration is being challenged simultaneously from multiple directions: by investor-state arbitration reform movements that demand public accountability for disputes involving public regulatory measures; by domestic courts that are increasingly unwilling to enforce confidentiality where related proceedings require disclosure; by third-party funders whose involvement creates disclosure obligations; and by regulatory authorities who require financial institutions and listed companies to disclose material arbitration proceedings. The result is an environment in which confidentiality in arbitration must be understood not as an automatic feature but as a contextual and negotiated characteristic with specific legal content that varies by seat, institution, and subject matter.
Legal Framework
Under Indian law, the Arbitration and Conciliation Act 1996 does not impose a general confidentiality obligation on arbitral proceedings, parties, witnesses, or arbitrators. The Act is largely silent on the subject. This silence stands in contrast to the approach taken in several other major arbitration jurisdictions. Section 23B, introduced by the 2019 Amendment, provides that arbitral proceedings shall be confidential unless the parties agree otherwise and makes it the arbitral institution’s or tribunal’s obligation to take reasonable steps to maintain confidentiality. The 2024 Amendment further refined this provision but did not substantially alter its structure.
The effect of Section 23B is, however, limited. It applies to the proceedings themselves but does not explicitly cover the arbitral award, the pleadings, or documents disclosed during the arbitration. Whether publication of an award — for example, in an enforcement proceeding — constitutes a breach of the parties’ confidentiality agreement is a question that Indian courts have not definitively addressed.
Institutional rules provide more detailed confidentiality provisions. The MCIA Rules and the DIAC Rules both impose confidentiality obligations on parties, arbitrators, and institutions, subject to exceptions for disclosure required by law, disclosure in enforcement proceedings, and disclosure to professional advisers. SIAC Rule 39, widely regarded as one of the more detailed institutional confidentiality provisions, carves out exceptions with careful precision.
Judicial Developments
The English Court of Appeal’s decision in Emmott v. Michael Wilson & Partners (2008) remains the most comprehensive common law analysis of confidentiality in arbitration. The court held that an implied duty of confidentiality does attach to arbitral proceedings, but that this duty admits of exceptions — including disclosure to the extent necessary to protect a party’s legitimate interests in related court proceedings, and disclosure where justice requires it. Critically, the court rejected the proposition that arbitral confidentiality is an absolute rule.
The Australian High Court had earlier taken a different approach in Esso Australia Resources Ltd v. Plowman (1995), declining to imply a confidentiality term into arbitration agreements and holding that whether confidentiality applies depends on the express terms of the agreement. This decision shocked commercial arbitration practitioners at the time and prompted many institutional rules to include express confidentiality provisions.
In India, the Delhi High Court has addressed confidentiality primarily in the context of enforcement proceedings — specifically, the question of whether parties can require courts to maintain confidentiality over materials filed in support of enforcement applications. The court has generally been willing to receive materials in camera where legitimate commercial sensitivity is demonstrated, but has been reluctant to exclude the public entirely from proceedings involving significant public interest.
Contemporary Issues and Analysis
The investor-state transparency movement has had the most systemic impact on arbitration confidentiality norms. The UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration (the Mauritius Convention), which came into force in 2017, establish a default rule of transparency for investor-state arbitrations conducted under UNCITRAL Rules: notices of arbitration, pleadings, hearing transcripts, orders, decisions, and awards are to be made publicly available, subject to limited exceptions for protected information. The Mauritius Convention now has over 30 signatory states, and the transparency norms it embodies have influenced reform of other investment arbitration frameworks including ICSID’s own procedural rules.
The 2022 ICSID Arbitration Rules incorporated substantially expanded transparency provisions, including public access to hearings (subject to party agreement to the contrary), public filing of awards (unless both parties object), and maintenance of a public database of pending cases. These changes reflect ICSID’s acknowledgment that disputes involving state regulatory measures cannot credibly be resolved in complete secrecy when the public interest is at stake.
The spillover effect into commercial arbitration is real, if less formal. Increasingly, sophisticated institutional parties — particularly financial institutions subject to regulatory reporting obligations — find that confidentiality in their arbitration agreements conflicts with their regulatory disclosure requirements. Under SEBI’s listing obligations, a listed company with a pending material arbitration must disclose the existence and outcome of the proceedings. Under RBI’s prudential guidelines, banks must disclose contingent liabilities arising from arbitration. These regulatory disclosures effectively pierce the veil of arbitral confidentiality without negating it entirely — the existence and financial magnitude of the dispute becomes public even if the substantive proceedings remain private.
Comparative and International Perspective
Sweden, which is a major arbitration seat through the Stockholm Chamber of Commerce (SCC), has historically applied a liberal confidentiality default — SCC proceedings are confidential by default under the SCC Rules 2023. Singapore’s SIAC takes a similar approach, with robust default confidentiality subject to enumerated exceptions.
France, the civil law world’s most significant arbitration jurisdiction, does not imply a confidentiality duty into arbitration agreements, reflecting the general civil law principle that obligations must be express. French courts have nevertheless respected confidentiality provisions where parties have included them expressly.
The divergence between common law and civil law approaches to implied confidentiality, and between commercial and investment arbitration transparency norms, creates a complex navigation challenge for parties operating across jurisdictions.
Practical and Policy Implications
For commercial practitioners, the takeaway is that confidentiality in arbitration cannot be assumed — it must be expressly agreed, and its scope must be defined with precision. An arbitration agreement that says “the proceedings shall be confidential” without specifying whether this covers the award, pre-hearing submissions, disclosed documents, or enforcement proceedings provides only partial protection.
For listed companies and regulated entities, the interface between contractual confidentiality and regulatory disclosure obligations must be carefully managed. Disclosure obligations under listing regulations or prudential rules cannot be contracted away, and parties should structure their confidentiality agreements with appropriate carve-outs that acknowledge these obligations.
Suggestions and Reforms
The Arbitration and Conciliation Act should be amended to provide a comprehensive default confidentiality regime, specifying that proceedings, pleadings, exhibits, orders, and awards are confidential subject to enumerated exceptions, and that breach of confidentiality by any party is a civil wrong actionable in the supervisory court. The current Section 23B is insufficiently specific to serve this purpose.
Arbitral institutions operating in India should publish anonymised summaries of significant arbitral awards — with party consent obtained at the institutional rules level — contributing to the development of Indian arbitral jurisprudence without compromising party confidentiality. The current absence of a precedent base in Indian commercial arbitration is a significant impediment to the system’s maturation.
Conclusion
Confidentiality in arbitration is neither a fixed characteristic nor a mere contractual option — it is a spectrum, shaped by the seat’s law, the institutional rules chosen, the regulatory context of the parties, the nature of the dispute, and the applicable treaty regime. Commercial parties who treat confidentiality as a given rather than a carefully managed legal condition do so at significant risk. As transparency demands continue to expand — driven by investment arbitration reform, regulatory disclosure requirements, and judicial development — the legal architecture around arbitral confidentiality will require continuous recalibration, with practitioners, institutions, and legislatures each playing a role in defining where the line falls.
