Traditionally, confidentiality is one of the perceived advantages of international arbitration as opposed to State court proceedings.[1] The underlying rationale behind confidentiality in international arbitration comes from the need to ensure a “dispassionate dispute resolution process” between the parties.[2] In fact, parties choose international arbitration in order to benefit from a unified, neutral, efficient, and globally enforceable method for resolving their commercial disputes.[3] Confidentiality thus helps mitigate the risk of exposing commercially sensitive information to competitors, clients, or the public while also favouring amicable settlement.[4] It also supports the resolution of disputes in good faith and through cooperative engagement.[5]
Confidentiality in international arbitration proceedings implicates a broad obligation not to disclose information about the proceedings to any third party. This information typically includes the parties’ names, their legal submissions, the evidence, the arbitral award and/or the tribunal’s orders. However, once an arbitral award is submitted to State courts either for recognition, enforcement or challenge, the award generally becomes public.[6]
In 2018, White & Case and the School of International Arbitration at the Queen Mary University of London (QMUL) conducted a survey entitled “The Evolution of International Arbitration”. In response to the question: “How important is confidentiality in international commercial arbitration”, 40% of the participants responded “Very important”:[7]
In another, more recent, study by White & Case and the School of International Arbitration at QMUL entitled “The path forward: Realities and opportunities in arbitration”, the question, “Should international arbitration proceedings be open to the public?” was submitted to participants.[8] The survey considered various forms and stages of the arbitral process. This survey received the widest ever pool of participants (2,402 responses received and 117 interviews conducted), almost double the number in comparison to the previous survey. Moreover, the pool of participants was highly diverse, including in-house counsel from both public and private sectors, arbitrators, private practitioners, representatives of arbitral institutions and interest groups, academics, tribunal secretaries, experts and third-party funders.[9] The answers provided are shown in the following chart:[10]
These results demonstrate a pronounced preference for confidentiality in international arbitration, especially when it comes to commercial proceedings. However, when States are involved, transparency is generally viewed more favourably. This is understandable: when States are involved, the public is more likely to be affected by the outcome of the arbitration.
In principle, under the doctrine of party autonomy, the parties can choose whether the proceedings should be confidential or not.[11] Most national arbitration laws are silent on the issue. So is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The institutional rules chosen by the parties also play a role in terms of confidentiality requirements, given that some of them include a confidentiality obligation. By contrast, investment arbitration differs in that the proceedings often involve matters of public policy, making them of legitimate interest to the broader public.[12]
Institutional Rules in Commercial Arbitration Proceedings
Some arbitration rules contain confidentiality obligations. This is the case, for instance, with the latest Arbitration Rules of the Singapore International Arbitration Centre (the 2025 SIAC Rules), effective as of 1 January 2025. Article 59.1 provides that, absent a contrary agreement of the parties, the proceedings are confidential:
Unless otherwise agreed by the parties, a party and any arbitrator, including any Emergency Arbitrator, and any person appointed by the Tribunal, including any administrative secretary and any expert, shall at all times treat all matters relating to the proceedings and the Award as confidential. The discussions and deliberations of the Tribunal shall be confidential.[13]
This was already the case under the 2016 version of the Rules.[14]
Similarly, the 2020 London Court of International Arbitration Rules (the 2020 LCIA Rules) and the 2021 Swiss Rules of International Arbitration (the 2021 Swiss Rules), among others, contain express confidentiality provisions. These typically prohibit parties and arbitrators from disclosing non-public materials to third parties.[15]
Other institutional rules do not provide general requirements of confidentiality. This is the case, for instance, under the 2021 International Chamber of Commerce Rules (the 2021 ICC Rules), which provide that the tribunal may make orders concerning the confidentiality of the proceedings only upon the request of a party.[16] Likewise, the 2021 United Nations Commission on International Trade Law Rules (the UNCITRAL Rules) do not contain general confidentiality obligations but instead include provisions dealing only with the confidentiality of arbitral hearings and awards.[17]
Law Governing Confidentiality in International Arbitration
When it comes to the matter of confidentiality in international arbitration, different conflict of laws rules can be considered. Confidentiality obligations may stem from the law governing the arbitration agreement, the law of the arbitral seat or lex arbitri, as well as the law applicable to the contract.[18] Parties, nevertheless, relatively infrequently designate a law applicable to their arbitration agreement. In practice, the law of the seat is often found to govern the issue of confidentiality in international arbitration proceedings.[19]
National Legislation on Confidentiality in International Arbitration
National laws on confidentiality in international arbitration are generally either silent on the matter or provide for implied confidentiality obligations.
For instance, the UNCITRAL Model Law – which serves as a model for many national arbitration statutes – is entirely silent on this matter.[20]
The 1996 English Arbitration Act (1996 EAA) does not include any provisions on confidentiality of the arbitration proceedings. English courts, however, have recognised an implied obligation of confidentiality arising from the existence of an arbitration agreement. This obligation is derived from the inherently private nature of arbitral proceedings. The rationale behind this approach is that confidentiality is a necessary corollary of arbitration’s private character. However, this presumption may be rebutted where disclosure is deemed necessary to safeguard a party’s rights. In practice, English courts tend to protect the confidentiality of arbitral materials, while permitting the disclosure of arbitral awards when such disclosure is required to ensure the fair protection of a party’s legal position.[21] The same stance is adopted by the 2025 EAA, which does not introduce any statutory confidentiality provision.[22]
There is also no provision on the confidentiality of arbitration proceedings under the Swiss Law on Private International Law (PILA). However, as a matter of practice, confidentiality applies to international arbitration proceedings in Switzerland. There is broad consensus among Swiss commentators that arbitrators are bound by confidentiality obligations and that the public disclosure of an arbitral award requires the consent of the parties. In annulment proceedings, decisions are typically published in redacted or delayed form to preserve confidentiality.[23]
In France, the legal regime of confidentiality varies depending on whether the arbitration is domestic or international. In fact, Article 1464 of the French Code of Civil Procedure provides for confidentiality of the arbitral proceedings unless the parties have agreed otherwise. Article 1506 of the same Code, which sets out which of the provisions applicable to domestic arbitration also extend to international arbitration, does not include Article 1464. Moreover, Law No. 2019-222 of 23 March 2019 on the 2018-2022 Programming and Justice Reform Act introduced the confidentiality of the arbitration proceedings in case of “electronic” arbitrations.[24] This created an uncertain landscape for legal practitioners in France. In March 2025, the Working Group on the Reform of French Arbitration Law issued its Report and Reform Proposals, which proposes to put an end to this uncertainty by extending to international arbitration the confidentiality rule already applicable to domestic arbitration, while providing for necessary exceptions, particularly to cover investment arbitration.[25] It is also proposed that this rule be elevated to the level of guiding principles of the new arbitration code to be created.[26]
The Particularity of Investor-State Arbitration
By contrast, investor-State arbitrations frequently concern matters of public interest. The subject matter of these disputes often implicates public policy considerations, and their outcomes may directly affect the welfare of a State’s citizens.[27] Given this context, many commentators contend that confidentiality in investor-State arbitration cannot be treated in the same manner as in international commercial arbitration, which generally involves private parties.[28]
The International Centre for Settlement of Investment Disputes (ICSID) Convention and Arbitration Rules do not contain obligations of confidentiality (or transparency).[29] The parties can consent to the publication of an award or the final decision in post-award proceedings from the ICSID. They can consent to publication with or without redaction of the decision. If neither party objects to the publication of the document within 60 days after its issuance, consent to publish is deemed to have been given, and it is made available on the ICSID website.[30] While one might expect States to favour transparency, in our experience, it is often the State that insists on confidentiality.
A review of cases listed on the ICSID website reveals that a significant number involve the provision of essential public services such as water and sanitation,[31] gas distribution,[32] and electricity generation,[33] among others. Such investments are generally intended to improve the quality of life for local populations, reinforcing the view that public participation or awareness is warranted when disputes arise. As a result, imperatives to promote transparency, accountability, and good governance have increasingly been cited as justifications for limiting confidentiality in such proceedings.
Conclusion
There is consensus today that confidentiality in international arbitration is the prevailing norm in most proceedings. It is widely regarded as one of arbitration’s key advantages over litigation. Although many national laws and institutional rules remain silent on the issue, arbitral proceedings are generally treated as confidential by virtue of the parties’ choice of arbitration as their dispute resolution mechanism. This presumption, however, does not extend to investor-State disputes, where the involvement of sovereign interests and matters of public concern calls for greater transparency.
[1] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.01.
[2] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.01.
[3] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.10.
[4] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.01.
[5] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.01.
[6] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.03[E].
[7] White & Case and the School of International Arbitration at the Queen Mary University of London, 2018 International Arbitration Survey –The Evolution of International Arbitration, 2018, https://www.qmul.ac.uk/arbitration/media/arbitration/docs/2018-International-Arbitration-Survey—The-Evolution-of-International-Arbitration.PDF (last accessed 30 July 2025), p. 28.
[8] White & Case and the School of International Arbitration at the Queen Mary University of London, 2025 International Arbitration Survey – The path forward: Realities and opportunities in arbitration, 2025, https://www.qmul.ac.uk/arbitration/media/arbitration/docs/White-Case-QMUL-2025-International-Arbitration-Survey-report.pdf (last accessed 30 July 2025), p. 25.
[9] White & Case and the School of International Arbitration at the Queen Mary University of London, 2025 International Arbitration Survey – The path forward: Realities and opportunities in arbitration, 2025, https://www.qmul.ac.uk/arbitration/media/arbitration/docs/White-Case-QMUL-2025-International-Arbitration-Survey-report.pdf (last accessed 30 July 2025), p. 1.
[10] White & Case and the School of International Arbitration at the Queen Mary University of London, 2025 International Arbitration Survey – The path forward: Realities and opportunities in arbitration, 2025, https://www.qmul.ac.uk/arbitration/media/arbitration/docs/White-Case-QMUL-2025-International-Arbitration-Survey-report.pdf (last accessed 30 July 2025), p. 25.
[11] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.03.
[12] M. I. Egonu, Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?, 24(5) J. of Intl Arb. 2007, p. 479.
[13] 2025 SIAC Rules, Article 59.1.
[14] 2016 SIAC Rules, Article. 39(1).
[15] 2020 LCIA Rules, Article 30(1); 2021 Swiss Rules, Article 44(1).
[16] 2021 ICC Rules, Article 22(3): “[U]pon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information.”
[17] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.04[B].
[18] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.08.
[19] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.08: “There is substantial force to the argument that the parties’ obligations of confidentiality with respect to international arbitral proceedings are generally defined by the law governing their arbitration agreement (which is also typically that of the arbitral seat).”
[20] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.03[A].
[21] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.03[D][1][a].
[22] LCIA, The English Arbitration Act 2025, https://www.lcia.org/the-english-arbitration-act-2025.aspx (last accessed 30 July 2025).
[23] G. Born, International Commercial Arbitration (3rd edn., updated November 2023), §20.03[D][1][c].
[24] Groupe de travail sur la réforme du droit français de l’arbitrage, sous la co-présidence de F. Ancel et T . Clay, Rapport et Propositions de Réforme, March 2025, https://www.justice.gouv.fr/sites/default/files/2025-03/rapport_2025_arbitrage.pdf (last accessed 30 July 2025), p. 33.
[25] Groupe de travail sur la réforme du droit français de l’arbitrage, sous la co-présidence de F. Ancel et T . Clay, Rapport et Propositions de Réforme, March 2025, https://www.justice.gouv.fr/sites/default/files/2025-03/rapport_2025_arbitrage.pdf (last accessed 30 July 2025), p. 34.
[26] Groupe de travail sur la réforme du droit français de l’arbitrage, sous la co-présidence de F. Ancel et T . Clay, Rapport et Propositions de Réforme, March 2025, https://www.justice.gouv.fr/sites/default/files/2025-03/rapport_2025_arbitrage.pdf (last accessed 30 July 2025), p. 34.
[27] M. I. Egonu, Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?, 24(5) J. of Intl Arb. 2007, p. 479.
[28] M. I. Egonu, Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?, 24(5) J. of Intl Arb. 2007, p. 487.
[29] G. Camilla and U. Shaurya, Confidentiality, https://jusmundi.com/en/document/publication/en-confidentiality 27 May 2025, (last accessed 30 July 2025).
[30] ICSID, Confidentiality and Transparency – ICSID Convention Arbitration (2022 Rules), https://icsid.worldbank.org/procedures/arbitration/convention/confidentiality-transparency/2022 (last accessed 30 July 2025).
[31] See, e.g., Biwater Gauff (Tanzania) v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008.
[32] See, e.g., LG&E Energy Corp. & others v. Argentine Republic, ICSID Case No. ARB/02/1, Award, 25 July 2007.
[33] See, e.g., PSEG Global Inc. & Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey, ICSID Case No. ARB/02/5, Award, 19 January 2007.