UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
9. Confidentiality 9.1 Extent of Confidentiality
flexible, case-by-case approach rather than a blanket rule.
Confidentiality in arbitration is recognised as an implied term of the arbitration agreement, though it is not codified in the Arbitration Act 1996. In Hallibur- ton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, the Supreme Court confirmed that confi - dentiality is “an important and free-standing implied term” covering pleadings, written submissions, wit - ness statements, disclosed documents, transcripts and the award. However, the obligation is not absolute. Recognised exceptions permit disclosure where: • the parties consent; • a court order or legal duty compels it; • it is reasonably necessary to protect a party’s legiti - mate interests; or • the interests of justice require it. When a party brings arbitral material before the Eng - lish courts, typically to enforce an award, challenge the tribunal’s jurisdiction (Section 67), or allege serious irregularity (Section 68), the court must balance two competing interests: keeping the arbitration confiden - tial and ensuring justice is administered openly. In practice, the court has broad case-management powers to manage this tension. It may order that hear - ings take place in private rather than in open court, restrict who can see particular documents through “confidentiality rings” (where only named lawyers or experts gain access), direct that sensitive passages in the award or submissions be redacted before fil - ing, or limit inspection of court files to prevent wider publication. The court can also anonymise the parties in its published judgment, as seen in cases styled “A v B” or “P v Q”. However, these protections are not automatic. A party seeking confidentiality must usually apply for it and demonstrate that disclosure would cause real harm. The court retains discretion and will not shield mate - rial from public view where transparency is necessary for the proper administration of justice. The result is a
10. The Award 10.1 Legal Requirements
Under the Arbitration Act 1996, Section 52, the parties are free to agree on the form of an award. Absent such agreement, the award must be: • in writing, signed by all arbitrators (or all those assenting); • reasoned, unless it is an agreed award or the par - ties have dispensed with reasons; • state the seat of arbitration and the date of the award. The award is treated as made at the seat, regard - less of where it was signed or delivered (Section 53). Notification must be made without delay by service of copies on the parties, absent contrary agreement (Section 55). The Act imposes no general statutory time limit for making an award. Any deadline will derive from the arbitration agreement or applicable institutional rules. Where such a contractual time limit exists, the court may extend it under Section 50 if satisfied that sub - stantial injustice would otherwise result. A failure to give adequate reasons may expose the award to challenge: in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep 130, the Court of Appeal stressed the tribunal’s duty to state reasons sufficient to show that it addressed the essential issues. 10.2 Types of Remedies Under English law, there are some limits on the rem - edies an arbitral tribunal may award. Section 48 of the Arbitration Act 1996 provides that the parties are free to agree on the tribunal’s remedial powers. Absent such agreement, the tribunal may make declarations, order payment of money in any currency, order a party to do or refrain from doing anything (akin to injunctive relief) and order rectification, setting aside or cancel - lation of a deed or document. Notably, the tribunal
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