Confidentiality is generally considered to be one of the most important and distinctive features of arbitration. The 2018 Queen Mary University of London international arbitration survey found that confidentiality remains the fifth most valuable characteristic of international arbitration (36% of all respondents) whilst amongst in-house counsel it ranks among the top three most frequently quoted factors for choosing international arbitration over other forms of dispute settlement (46%). Moreover, the 2018 survey showed that a decisive majority of 74% of all respondents believe that confidentiality should be an opt-out feature while only 26% thought that confidentiality should not be presumed by default. Further, the 2021 edition of the survey found that the biggest disadvantage of virtual hearings is viewed to be “confidentiality and cybersecurity concerns” (30% of all respondents). The scope of confidentiality in international arbitration can, however, vary from one jurisdiction to another and between the various stages of the arbitral process.
Confidentiality takes multiple forms and typically refers to the following aspects of the arbitral process: (a) the proceedings themselves, including the parties’ written submissions and hearings; (b) the tribunal’s deliberations; (c) the resulting award(s); and (d) the preservation of confidentiality during the annulment and/or enforcement stages before domestic courts.