One of the strongest reasons for a business in a dispute to choose arbitration is confidentiality. In supply, technology, M&A, joint venture or IP disputes, confidentiality can be commercially critical.

The ability to avoid a public courtroom may protect pricing structures, technical know-how, internal communications and reputational interests. However, the level of protection depends on the institution. 

Under Article 44 of the 2018 DIS Arbitration Rules for instance, confidentiality extends, unless the parties agree otherwise, to the existence of the arbitration, the parties’ identities, the nature of the claims, witnesses and experts, procedural orders and awards, and non-public evidence. Under the 2026 ICC Rules the parties can actively seek orders from the tribunal (Article 23(3) ICC) to ensure the desired level of confidentiality. 

Both frameworks can offer stronger protection than ordinary German court litigation, but the level of protection depends not only on the institutional framework, but also on how actively the parties pursue confidentiality protections within the arbitration.

This key advantage is however often overstated in practice. German court proceedings are public in principle under section 169 GVG. File access is not fully open-ended, but section 299 ZPO regulates access to the court file, and section 273a ZPO now allows the court, on party application, to classify disputed information as requiring confidentiality protection. That improves protection for sensitive material, but it does not transform litigation into a private process. 

Arbitration runs into the opposite risk: parties assume the matter will remain completely private, although later annulment proceedings, enforcement proceedings, statutory disclosure obligations, auditor requests, or regulatory reporting duties may still bring key elements into a wider circle. Article 44 DIS itself expressly recognises carve-outs where disclosure is required by applicable law, other legal duties, or for recognition, enforcement, or annulment of an award. 

The current arbitration reform debate in Germany points in the same direction: proposed section 1054b ZPO-E would permit publication of awards in anonymised or pseudonymised form under an opt-out mechanism, making confidentiality an issue that should be addressed actively rather than assumed. For more information on the reform, please read our article Germany modernises arbitration law: Key proposals for a more international, digital, and court-supported framework.

Confidentiality should not be treated as an automatic by-product of arbitration. It should be planned. The institution matters. The wording of the arbitration clause matters. Internal governance matters as well. A company that chooses arbitration for confidentiality reasons but has no internal protocol on who may receive pleadings, procedural orders, or awards is often less protected than it assumes.

Key takeaway

If confidentiality is one of the main reasons for preferring arbitration, the institution, the clause, and the company’s own disclosure protocol should be aligned from the outset.

German Disputes Bites series

We hope you enjoyed the first in our series of ten blogs on Litigation vs Arbitration. This series will cover different aspects of the choice between a litigation or arbitration forum in dispute resolution in Germany.