One of the long established advantages of arbitration over the use of courts to decide disputes is that the arbitration process is private and the eventual award is confidential to the parties involved. So the fact of a dispute, the parties to the dispute, the arguments raised, the evidence of witnesses and the eventual result are all kept private.

Contrast this with court litigation where (save in very exceptional circumstances e.g. involving national security) commercial disputes are heard in open court.

There has been a recent growing trend for arbitrations to end up in some form of court process where for example one party challenges the jurisdiction or conduct of the arbitrator or in some cases the award itself. Recent case law shows that when an arbitration finds itself before a judge in the High Court the confidentiality protection which is the bedrock of arbitration may become more apparent than real.

This case law shows that the courts will not withhold the publication of reasoned judgments on the basis that to do so would undermine confidence in English arbitrations. This conflict between the privacy of an underlying arbitration and the public judgment in any related court proceedings means that parties to an arbitration might not get what they bargained for, i.e. privacy and confidentiality, when they entered into the arbitration agreement. For more on this, read our analysis of the latest case in this area, C v D.

Wragge & Co provide an analysis and action points.