Arbitration proceedings are conducted behind closed doors, but disputes do not always remain confined to the arbitral forum. Parties may find themselves involved in parallel litigation or investigations where evidence emerging from an arbitration could be highly relevant. While many choose arbitration for its privacy, confidentiality is not absolute. Courts are increasingly being asked to determine when arbitration materials may be used in separate proceedings, whether in the Family Court, the King’s Bench Division or elsewhere.
Legal basis for confidentiality
There is no single, codified source of the duty of confidentiality in English arbitration law. The Arbitration Act 1996 is notably silent on the point – a deliberate omission on the part of the act’s drafters, with the confidentiality principles considered too difficult to delineate. In the 2023 review of the 1996 act, the Law Commission agreed, noting that a statutory rule on confidentiality would not be sufficiently comprehensive, nuanced or future-proof.
The leading position adopted by the English courts is that confidentiality arises as an implied term of the arbitration agreement itself. This was confirmed by the Court of Appeal in Ali Shipping Corporation v Shipyard Togir [1998] 1 Lloyd’s Rep 643 and in Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184. These cases establish the general principle that arbitration is private and confidential, meaning that neither party may disclose or use for any other purpose documents prepared for, disclosed in, or produced in connection with the arbitration.
Because confidentiality is a matter of implied contract rather than statute, parties are free to modify or exclude it by express agreement. The rules of any chosen arbitral institution may also address the position, and parties should consider this carefully rather than assuming a default applies.
Both Ali Shipping and Emmott identified exceptions to the duty. Disclosure of arbitration materials may be permissible where:
- The parties consent – express agreement removes the obstacle entirely.
- The court orders or permits it – a court may grant permission where the circumstances justify it.
- It is reasonably necessary to protect the legitimate interests of an arbitration party – for example, where a party needs to rely on the material to defend or advance a claim in separate proceedings.
- The interests of justice require it – such as where publication of an award is necessary to support winding-up proceedings in another jurisdiction.
- The public interest demands it – including where transparency in the administration of justice is at stake, or where the proceedings raise points of law or practice of general importance.
Court’s balancing exercise
When a party seeks permission to use arbitration materials in separate litigation, the court faces a difficult balancing act. On one side sits the commitment to confidentiality that the parties made when they chose arbitration – a commitment that underpins the integrity of the arbitral process and the reasonable expectations of both sides. On the other sits a party’s legitimate interest in pursuing or defending proceedings, and the broader principle of access to justice.
In Spencer v Spencer [2025] EWFC 431, the Earl and Countess Spencer chose to resolve the financial aspects of their divorce through arbitration – a choice that is becoming more popular, with the number of family arbitrations reportedly having doubled between 2023 and 2025.
Matters were complicated by separate King’s Bench proceedings in which the husband’s partner, Professor Jarman, brought a claim against the wife for alleged misuse of personal information. Jarman made a Part 36 offer to settle. The arbitrator’s award proceeded on the basis that the wife would accept that offer without any admission of unlawful conduct, by making a statement in open court (SIOC) to that effect in the King’s Bench Division proceedings. To facilitate this, the award included provision for specific paragraphs to be disclosed to both parties’ media lawyers, enabling them to apply for permission to use those paragraphs in the King’s Bench Division proceedings if needed.
When the wife’s media lawyers raised concerns that the SIOC might be read as an acceptance of liability, the arbitrator declined to revisit his award but confirmed that disclosure of the relevant paragraphs would assist in resolving any disagreement over the SIOC’s wording before the King’s Bench Division judge.
On the joint application to convert the award into an enforceable court order, the wife sought to go considerably further, asking for disclosure of the arbitrator’s email, the full award, and permission to use arbitration materials in any media dealings to protect her reputation.
Article 16 of the Family Law Arbitration Scheme Rules contains express provisions regarding confidentiality. However, Mr Justice Peel noted that the general principle of confidentiality is not absolute and is subject to exceptions.
Applying Emmott v Michael Wilson & Partners Ltd and balancing the parties’ rights under articles 6, 8, and 10 of the Human Rights Act 1998, he permitted only limited further disclosure, strictly confined to what was reasonably necessary to resolve the dispute over the SIOC’s wording. Wider disclosure, he found, would disproportionately undermine the confidentiality of the arbitration and could not be justified.
The decision illustrates the court’s approach clearly: where a legitimate purpose justifies disclosure of arbitration materials, permission may be granted, but it will be carefully tailored to that purpose and will extend no further.
James Glaysher is a partner and head of international arbitration at Kingsley Napley. Leyla King is an associate
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