Confidentiality has long been a cornerstone of arbitration’s appeal—particularly in England and Wales, where commercial parties often turn to arbitration to keep sensitive disputes out of the public eye. But as the courts move toward greater transparency, the contrast between arbitration and litigation is becoming more pronounced.

With a new pilot scheme set to transform public access to documents in the Commercial Court, this article explores what these changes mean for confidentiality—and why arbitration may increasingly be seen as the safer option for privacy-conscious parties.

Arbitration confidentiality: a common law construct

Unlike some jurisdictions that codify confidentiality in arbitration, English law relies on an implied duty arising from the arbitration agreement. The leading case, Ali Shipping Corp v Shipyard Trogir [1999] 1 WLR 314, established that arbitration proceedings are generally private and confidential, subject to exceptions.

This principle has been reaffirmed in subsequent cases, including Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184, where the Court of Appeal emphasised that confidentiality is not absolute and may yield to competing public interests.

Recent developments: a patchwork of exceptions

The past decade has seen English courts grapple with the boundaries of confidentiality. In Chartered Institute of Arbitrators v B [2019] EWHC 460 (Comm), the court allowed disclosure of arbitral documents (such as transcripts or witness statements) which were necessary for disciplinary proceedings against an arbitrator. Broadly, the exceptions to confidentiality are justified based on the interests of justice or the public interest. For instance, the courts have lifted confidentiality where there was the potential for the foreign or other courts to be misled (Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184).

Earlier in the year, the English High Court further clarified the scope of the implied duty of confidentiality in arbitration under English law (A Corporation v Firm B & Anor [2025] EWHC 1092 (Comm)). The case arose from concerns that confidential information shared during one arbitration might be used in another, related proceeding. The Court reaffirmed that parties to an arbitration agreement are taken to have agreed to a duty of confidentiality but emphasised that this duty is flexible and context-dependent—described as a “sliding scale” rather than a blanket rule.

The Court outlined the types of material covered by the duty, including hearing transcripts, documents disclosed or generated for the arbitration (such as pleadings, witness statements, and expert reports), and the arbitral award. Importantly, it distinguished between documents created independently of the arbitration and those produced within it—only the latter attract confidentiality. The Court also clarified that while the facts giving rise to a dispute are not confidential, the way those facts are presented and deployed in arbitration is protected.

Exceptions to the duty were also addressed. These include disclosure with consent or court order, where necessary to protect a party’s legitimate interests, or to advance a case within the same arbitration. The Court also recognised limited exceptions for eliciting evidence or challenging credibility. Finally, the Court drew a line between protected information and professional experience. Lawyers may use general knowledge gained from arbitrations—such as typical document types or strategic approaches—but not specific confidential information.

The decision provides valuable guidance for practitioners navigating the boundaries of confidentiality in English-seated arbitrations, reinforcing the importance of careful handling of arbitral materials and communications.

The Commercial Court’s transparency push

At the 2025 Commercial Court Users’ Meeting, Cockerill J unveiled a major shift: a new pilot scheme aimed at closing the “open justice gap.” The initiative, led by the Transparency & Open Justice Board, focuses on four pillars: Open Courts, Open Reporting, Open Decisions, and Open Documents.

The pilot—expected to begin in October 2025 (subject to ministerial approval)—will significantly expand public access to court documents. Key features include:

• Mandatory re-filing of key documents: Parties will be required to re-file skeleton arguments, witness statements, expert reports, and other “Dring Documents”[1] under a new “Public Documents” category on CE-File.
• Default public access: These documents will be automatically accessible to non-parties unless a specific exemption or redaction is granted. Currently, access must be requested.
• Sanctions for non-compliance: Failure to comply may result in court orders or even contempt proceedings.
• Scope: The pilot will apply to hearings and trials in the Commercial Court and London Circuit Commercial Court, but not initially to other Business and Property Courts. It will not apply to ex parte proceedings or where there already exist confidentiality or anonymisation orders.

This reform responds to the reality that commercial litigation has become increasingly document driven. As Cockerill J noted, members of the public can no longer follow proceedings without access to written submissions and evidence—most of which are currently unavailable by default and have to be actively requested.

Why this matters: the privacy gap widens

The pilot scheme marks a significant shift in English litigation. Historically, commercial parties could rely on the relative obscurity of accessing court documents to maintain a degree of privacy. That assumption no longer holds.

For parties involved in high-stakes disputes—particularly those involving reputational risk or sensitive commercial information—this shift could be a game-changer. While hearings have always been public and those involved in litigation have always expected to lose transparency at some stage, at least over some information in the case, the automatic online access to a wide range of documents from the moment they are filed is a key change. There is no need for a court reporter to know the case, attend the hearing and chase lawyers for skeletons and Dring documents. With this shift, we may see broader media coverage of court disputes and even the emergence of online repositories targeting companies.

Even with carve-outs and redaction mechanisms, the default presumption of access introduces uncertainty and risk.

Arbitration: the last bastion of confidentiality?

In contrast, arbitration remains a private process by default. Hearings are not open to the public, and documents submitted in the arbitration are not publicly accessible unless disclosure is ordered by a court or tribunal in limited circumstances.

The new Commercial Court pilot scheme is a welcome step toward open justice—but it also sharpens the contrast between litigation and arbitration. For parties who value discretion, the message is clear and becoming clearer: arbitration offers an increased level of confidentiality to litigation.

As the Commercial Court embraces transparency, arbitration may increasingly be viewed as the preferred forum for parties seeking control over the flow of information. As these reforms take hold, legal advisers should revisit dispute resolution clauses with clients and consider whether arbitration may better serve their strategic and reputational interests.

[1] Following Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 (1) skeletons (including written opening and closing submissions) (2) other written submissions provided to a Judge and relied upon at a hearing (3) witness statements and affidavits (not exhibits), (4) most expert reports (plus exhibits), (5) any other documents critical to the understanding of a hearing ordered by a Judge at the hearing to be Public Domain Documents and (6) any other documents agreed by the parties to be Public Domain Documents.