The Judgment also provides guidance on the extent to which parties may expect law firms to maintain confidence over information relating to arbitrations in which they are engaged in confidence and for future engagements involving connected parties or issues.

The facts in brief

The Defendants acted for B Corporation in a concluded maritime arbitration between B Corporation and the Claimant (Arbitration 1). Firm B’s Asia Office and another London partner, Mr Z, were also instructed by C Corporation in an ongoing maritime arbitration between C Corporation and D Corporation (Arbitration 2).

The Claimant and D Corporation are in the same ultimate ownership, and there was ongoing cooperation and a common interest between Firm B’s clients, B Corporation and C Corporation.

A dispute arose in connection with the disclosure by the Defendants to Firm B’s Asia office of information and materials relating to Arbitration 1 in Arbitration 2.

The Claimant alleged that the Defendants had breached the obligation of arbitral confidentiality in relation to arbitrations in England, including by disclosing to C Corporation the identity of B Corporation’s counsel, experts and arbitrator in Arbitration 1. The Claimant also relied on the Defendants’ discussion of the issues and allegations in Arbitration 1 with Firm B’s Asia office, as well as certain disclosure requests made by C Corporation in Arbitration 2, which were said to be influenced by confidential information derived from Arbitration 1.

The Claimant also cited the transmission of information arising out of confidential “without prejudice” settlement discussions in Arbitration 1 by Firm B’s London office to its Asia office.

The Claimant accordingly applied to the English High Court for injunctions requiring that, among other things, Firm B cease acting for C Corporation in Arbitration 2 and the Arbitration 2 case file be cleansed of confidential information.

A summary of the Court’s findings

Breach of the Defendants’ Confidentiality Obligations

The two confidentiality obligations that arose for consideration by the Court were:

(a) The general duty of confidentiality in relation to arbitrations under English law [6]; and

(b) The duty of confidentiality arising under English law in relation to the contents of “without prejudice” settlement discussions [7].

The legal principles governing the obligation of confidentiality in relation to arbitrations under English law

Foxton J confirmed that, the default rule is that the parties to an arbitration agreement will be taken to have impliedly agreed to an obligation of confidentiality [10]. He therefore approached the Claimant’s application by asking two questions: (i) what material does the obligation of arbitral confidentiality extend to; and (ii) to the extent that the obligation of arbitral confidentiality is engaged what are the relevant exceptions [13]?

In relation to question (i), Foxton J noted that the obligation of arbitral confidentiality extends to hearings in the arbitration, including transcripts and notes of the hearings; documents disclosed in the arbitration that are not already in the hands of the other party; documents generated or prepared for and then used or produced in the arbitration, to include pleadings, witness statements, expert reports and other written submissions and correspondence; and the arbitral award itself [14]. To the extent those documents are the source of confidential information, the information derived from those documents is itself subject to the arbitral duty of confidentiality [15].

The existence of the dispute and the events that gave rise to it are not within the scope of arbitral confidentiality. This is because while the deployment of information in arbitration attracts arbitral confidentiality, the information itself will not become subject to arbitral confidentiality simply because it is deployed in arbitration (for example, because the information is not derived from the arbitral proceedings) [20]. In this regard, Foxton J referred to “a sliding scale of arbitral confidentiality” with the disclosure of a parties’ own filings or reports being at the “less intrusive” end and the disclosure of documents or material produced in the arbitration by the other party “near the most sensitive end”. This “sliding scale” may be relevant when determining whether an exception to arbitral confidentiality applies or whether injunctive relief should be granted to prevent a breach of arbitral confidentiality [22].

Foxton J distinguished between information protected by the obligation of arbitral confidentiality and the experience that lawyers acquire from practising and/or conducting arbitrations. Examples of the latter include knowledge that lawyers acquire about the type of documents available in relation to particular types of issues or the litigation strategies of particular opponents [24]. Foxton J observed that the line between what is and is not “off limits” is not an easy one to articulate, but that “experienced lawyers generally have a good sense of which side of it they are on” [26].

Foxton J went on to consider the exceptions to arbitral confidentiality including “where it is reasonably necessary for the protection of the legitimate interest of an arbitrating party” [28]. Examples falling within this exception included the disclosure of material subject to arbitral confidentiality:

(a) to lawyers, factual witnesses and experts;

(b) to a non-party whose conduct is relied on by the other party, in order to elicit their evidence for use in the arbitration;

(c) for the purpose of seeking to elicit similar fact evidence from a non-party who is believed to have similar complaints against the opposing party (held to be of particular importance in this case for reasons contained in the confidential annex to the Judgment [31]); and/or

(d) to make claims against or defend claims by a third party.

It is as regards the “legitimate interest” exception that Foxton J’s reference to “a sliding scale of arbitral confidentiality” is likely to be most relevant, with it being easier for parties to establish that the threshold has been met where they seek to make disclosures of the type that Foxton J identified as being on the “less intrusive” end of the scale.

The alleged misuses of confidential information

Applying these principles, Foxton J considered each of the alleged misuses of confidential information. Foxton J found that it was “strongly arguable” that the Defendants’ passing on A Corporation’s settlement offer in Arbitration 1 to Firm B’s Asia office constituted a breach of a confidentiality obligation. However, this was a point that was accepted and conceded by the Defendants [35(iv)].

All other alleged misuses of confidential information asserted by the Claimant were rejected either because they did not breach any confidentiality obligation or because they fell within one of the exceptions to the rule [35].

Conclusion

Foxton J was ultimately satisfied that there existed no realistic possibility of further information or materials from Arbitration 1 reaching C Corporation and Firm B’s Asia office. He found that it was for the Claimant to persuade him that there existed a real risk of confidential information crossing between Firm B’s offices, and that it had not done so. Foxton J felt the geographical distance between Firm B’s London and Asia offices and the removal of Mr W from Arbitration 2 meant it would not be just or equitable to grant the requested injunctive relief.

Significance of the Court’s decision

This is an important judgment that provides practical guidance on the scope of confidentiality obligations arising in arbitrations under English law, together with real-life examples of their application to commonly arising issues for international arbitration practitioners.

The Judgment helpfully distinguishes between categories of information and material that attract confidentiality (to include arbitral submissions and other documents prepared for or produced by a party in the arbitration and to which the other party would not otherwise have access, together with information derived from those documents) and information that is not generally confidential (to include the fact of the dispute and the events giving rise to it).

The Judgment sets out the exceptions to the rule and highlights several examples falling within the exception for disclosure that is “reasonably necessary for the protection of the legitimate interest of an arbitrating party”, including disclosure to non-parties for the purpose of obtaining evidence.

Finally, the Judgment provides useful clarification of the test that will be applied by the English Court in determining applications of this nature, including when considering the effectiveness of measures employed by multi-office firms to prevent the transfer of confidential information between offices – whether generally or in connection with other matters. 

In-depth 2025-139