

This article was first published in the Practical Law Arbitration Blog on 8 October.
One well-known reason for commercial parties to choose arbitration is the reassurance that such proceedings are confidential. For various reasons, parties prefer not to air “dirty linen” in public.
However, having been through an arbitration process and obtained an Award from the Tribunal, the possibility of Court proceedings initiated by the losing party can potentially undermine this confidentiality. Indeed, it is not unheard of for losing parties who don’t want to pay the full sum awarded and wish to apply commercial pressure to threaten Court proceedings with a view to making unmeritorious allegations about the winning party and/or the arbitration in public. On the other hand, a party with a valid complaint about an Award may feel reticence about recourse to the Courts if there is a risk of confidential matters being publicised.
It is undoubtedly the case that Court proceedings attract different public policy considerations to a private consensual arbitration. There is a public interest in “open justice” and in the law being developed in published judgments that are available to all. In the context of complaints about the conduct of arbitration, there is also a public interest in ensuring and disseminating appropriate standards of fairness for the benefit of all arbitrators and arbitration users.
These factors are often held to outweigh the parties’ interest in confidentiality, especially when it comes to determining whether a judgment in an arbitration case should be publicised. Every year numerous judgments are published concerning sections 67-69 of the Act. In the recent case of Manchester City v Premier League [2021] EWCA Civ 1110 the Court of Appeal affirmed the right of the Court to publish a judgment on a section 67/68 application, even where both parties objected to publication.
How worried, therefore, should parties be about the possibility of publicity where an Award is challenged under sections 67-69 of the 1996 Act? In short, not overly. In this context privacy concerns are alleviated in a number of ways and should not be overstated:
As noted in the Manchester City case, Commercial Court judges are experienced at balancing the various factors in play. Although the parties’ wishes are not paramount, they are taken into account. As Lord Justice Males put it: “the business community will see that…Commercial Court judges can be trusted to ensure that genuinely confidential information is not published…publication of such judgments will confirm the pro-arbitration stance consistently taken by the English courts…It will demonstrate that the second 68 gateway is a very narrow one…and that it is only in cases of real injustice that arbitral awards can be successfully challenged in the English courts”.