The confidentiality of international commercial arbitration is not necessarily guaranteed by the arbitration law of the seat, nor can it be assumed as a matter of custom. Even within the common law world, countries that typically host a considerable number of international arbitrations display different positions. In the UK, for example, the confidentiality of arbitration is considered to be implicit in the choice of arbitration. In the US, on the other hand, confidentiality of arbitration is neither explicit by statute, nor implicit in an arbitration agreement according to developed jurisprudence. The extent of confidentiality in arbitrations seated in the US is a function of the agreement of the parties, any order of the Tribunal entered within the scope of its powers, and – very significantly – the prospect of judicial proceedings relating to the arbitration. When arbitration reaches the US courts, as it so often does, fundamental principles may collide: open courts principles, on one hand, arbitral confidentiality, on the other.
In the US, some recent appellate case law concerning this dimension of the confidentiality landscape suggests that arbitral confidentiality may be gaining some ground on open courts principles in the competition for the sympathies of US federal district judges – at least in New York, where so much of US law affecting international arbitration is made. This is an interesting development, given that those of us who practice here start from the assumed premise that, when an enforcement or vacatur case is commenced in a US district court, the pre-award confidentiality of the arbitration, whether stipulated or ordered, counts for very little, and public access to the entire judicial docket is to be expected.
In this Commentary, we begin with a tour of the common law world outside the US, then return “home” to discuss the recent US appellate cases (and some of their District Court applications) that might tempt us to think a change of judicial attitude toward arbitral confidentiality could be emerging.
The Position Outside North America
Under Singapore’s International Arbitration Act, all proceedings “under this Act in any court are to be heard in private, unless the Court otherwise directs.” The statute states restrictions on public reporting of the private proceedings, and allows the court to make exceptions to the presumption of complete privacy based upon a determination of public interest, or the consent of the parties, or a showing of good cause. (Sections 22 and 23 of Singapore’s International Arbitration Act).
Hong Kong’s Arbitration Ordinance contains similar provisions to those in Singapore, and while the Ordinance provides that a party may publish information about the arbitration in connection with enforcement of a legal right including enforcement or set aside of an award, this is aligned with a “closed court” approach where the court’s docket is not itself open to public inspection. (Hong Kong Arbitration Ordinance, Sections 16-18). In simplest terms, a party may say what it will in a petition to vacate an arbitration award, but its audience upon the filing of the petition will be only the court unless the court otherwise directs.
Australia’s International Arbitration Act invokes the same confidentiality presumption in different terms, broadly defining “confidential information” to embrace essentially all aspects of the arbitral proceedings, and prohibiting disclosure of confidential information, even in proceedings to enforce an award or obtain other relief under the Act, unless the disclosure “is necessary for the purposes of this Act,” and is “ no more than reasonable for that purpose.”
The UK Arbitration Act 1996 contains no comparable provisions, and while there was discussion within the UK arbitration bar as to whether the 2025 revisions to the Act might address this matter, ultimately arbitral confidentiality in the courts was not addressed. So the matter has been left, as it long has been, to common law development. The most famous landmark in that common law development was a 2004 UK Court of Appeal case, the City of Moscow case [City of Moscow v. Bankers Trust, [2004] All ER (Comm) 193 (Mar. 25, 2004)] wherein the principal judgment given by Lord Mance articulated that judicial proceedings related to arbitrations involve two dimensions of public interest:
“Such proceedings are no longer consensual. The possibility of pursuing them exists in the public interest. The courts, when called upon to exercise the supervisory role assigned to them under the Arbitration Act 1996, are acting as a branch of the state, not as a mere extension of the arbitral process. Nevertheless, they are acting in the public interest to facilitate the fairness and well-being of a consensual method of dispute resolution, and both the Rules Committee and the courts can still take into account the parties’ expectations and regarding privacy and confidentiality when agreeing to arbitrate.”
Recent commentary on UK practice stemming from City of Moscow describes the state of play this way: “[T]he starting point for arbitration claims under [UK Civil Procedures Rules], except where the court is asked to determine points of law, is that they are generally heard in private. However, this is only the starting point and the public interest must be taken into consideration in each case.” (This was observed by authors affiliated with Herbert Smith Freehills in a 2022 blog post on the Thomson Reuters Arbitration Blog dated February 4, 2022, “Privacy and Confidentiality of arbitration – related court proceedings: a culture clash”, http://arbitrationblog.practicallaw.com (last visited June 22, 2025)
The Position in Canada
In Canada, many provincial statutes grant the courts discretion to treat as confidential any document filed in a civil proceeding, and therefore to be sealed and omitted from the public record. However it is “well established that the ‘open courts principle’ is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of [Canadian] democracy.” [Taseko Mines Ltd. v. Franco-Nevada Corp., 2023 ONSC 2055 (Can LII) at para. 120]. Jurisprudence from Canada’s Supreme Court instructs federal and provincial courts to issue confidentiality-based sealing orders only where “(1) public disclosure would pose a serious risk to an important public interest, (2) no reasonably alternative measures would prevent this risk, and (3) the benefits of the order outweigh any negative effects.” [Id.].
The modern jurisprudence in Canada concerning the place of arbitration confidentiality in relation to the open courts principle is traceable to a mid-1990s case in the Ontario Superior Court known as the Pizza Pizza case. [887574 Ontario Inc. v. Pizza Pizza Ltd., 1994 CarswellOnt 1214 (OSC 1994)]. In that case, the parties proceeded through arbitration knowing that — by agreement, and by arbitral and judicial orders — it would only be confidential until the award was filed in court. After the judicial filing of the Award, the Court found that the agreement to arbitrate did not in and of itself present public policy grounds for a judicial sealing order to extend confidentiality during the course of the judicial proceedings.
The window for arguments to extend arbitral confidentiality to court proceedings related to the arbitration appears to have opened slightly in 2010, in Telesat Canada v. Boeing Satellite Systems International, Inc. [2010 ONSC 22 (Can LII)]. The sealing order made in the Telesat case strikes the chord of arbitral confidentiality as a distinct dimension of public policy. But in Telesat the arbitration was ongoing; the court’s sealing order was made in the context of an interlocutory appeal from a procedural order concerning the admissibility of certain evidence and an alleged disqualifying bias of the Tribunal Chair. In this context, the Court stated: “In my opinion a properly limited confidentiality order would promote the use of private commercial arbitration and would thereby promote the modern approach to the autonomy of the arbitral process. It would run contrary to the public interest in favour of encouraging private dispute resolution if a party seeking procedural review under the Arbitration Act, for issues such as alleged bias or unfair treatment, could defeat the confidentiality of an on-going arbitration and thereby undo one of the critical advantages of the arbitration process.” [Id. at para. 27].
Readers in all jurisdictions will want to keep Telesat in mind when judicial proceedings other than award enforcement and annulment occur. The open courts principle has a different weight when a non-dispositive judicial adjudication is sought – and in the arbitral context this could include a wide array of proceedings including motions to compel or enjoin arbitration, to enforce arbitral subpoenas or provide other judicial support for obtaining non-party evidence, to disqualify a Tribunal or an arbitrator. Courts may be inclined to share the Telesat court’s view that where an ongoing arbitration is confidential, that confidentiality should not be disturbed where the court is acting only in an ancillary role.
In Canada there was a chance in 2017 for arbitral confidentiality as a public policy value to be extended to a final award enforcement case, in the Donato case [2249492 Ontario Inc. v. Donato, 2017 ONSC 4975 (Cal LII)] but the Court, while sounding the right notes about arbitration and public policy, was unwilling to enter a blanket confidentiality order (and there was no proposal from the sealing order applicant for a more selective restriction on access to the record). Thus the Court stated (in excerpts I condense for concision): “I accept that there is a legitimate public policy interest in encouraging private dispute resolution through arbitrations by protecting the autonomy of the arbitral process…. [However][i]f the confidentiality order sought … were to be granted simply on the ground that the court proceedings involve a private and confidential arbitration, and that the public interest favours such orders to promote arbitrations and protect the expectations of privately and confidentiality of the parties to the arbitration, the consequence would be …[the] widespread granting of sealing orders [that] could tend to diminish public confidence in the administration of justice.” [Id. at paras. 25 and 27, internal quotation marks omitted].
If Donato is a good indication, there may be considerable judicial sentiment in Canada to carry forward the confidentiality of arbitration into the judicial enforcement/vacatur process, but that indiscriminate record-sealing is a bridge too far in a country with such a well-established open courts tradition that is perceived as a fundamental attribute of a democratic legal order.
But suppose the enforcement and set aside case concerned only a single issue: alleged arbitral bias as indicated by certain instances of conduct during the proceedings by an arbitrator, and that the sealing order application contended that the judicial record was encumbered by reams of exhibits and briefs from the arbitral proceedings that had no bearing on the outcome of the enforcement case? Would a judge be less inclined in such a case to worry that granting a sealing order upon portions of the record not material to the court’s decision would nevertheless “diminish public confidence in the administration of justice”? Perhaps.
But in a recent award enforcement case in the Alberta Court of King’s Bench [Inter Pipeline Ltd. v. Teine Energy Ltd., 2024 ABKB 740 (Can LII), Dec. 5, 2024], the Court had no sympathy for the argument, as framed by the sealing order applicant, that the confidential nature of arbitration is a “public interest” factor, to which the open courts principle might yield some terrain. Unfortunately the “public interest” argument of the applicant focused on arbitration’s contribution to conservation of public judicial resources, and the court found that argument unpersuasive. On this basis the case may well be an outlier, and the Telesat case, with its reference to “protecting the autonomy of the arbitral process” may be better barometer of judicial sentiment across the Great White North.
The Position in the US Second Circuit and its New York District Courts
Recent cases concerning judicial docket sealing in arbitration cases in the US Second Circuit Court of Appeals – probably the most active federal appellate court in the US for commercial arbitrations – share a common pattern. Claimants who had prevailed in final awards in contractually-confidential employment arbitrations filed award enforcement petitions in the District Court for the Southern District of New York (mainly the Manhattan portion of New York City) and sought to have their awards and related submissions to the Court maintained on the Court’s Internet-accessible public docket even after the awards had been promptly satisfied by the losing parties. The evident objective was for the Claimants’ counsel to recruit new claimants to bring similar arbitrations against the same Respondents based on similar grievances (thereby overcoming the class arbitration waivers the employees had signed). Unsealing the award-confirmation documents on the docket, in this situation, was seen by the Second Circuit in each case as a perverse invocation of the open courts principle, because the applicant in each instance no longer had standing to proceed with an award-confirmation action once the award had been satisfied.
It would have been sufficient, in each case, for the Court to have said only that the arbitration documents on the docket ceased to be “judicial documents” that should be public under open courts principles once the award-confirmation actions were made moot by the award debtors’ full compliance. But in each case, the Second Circuit did not stop there, but also referred to the Federal Arbitration Act as the source of a public policy favoring confidential arbitration. Thus, in In re IBM Arbitration Agreement Litigation, 76 F.4th 74, 81 (2d Cir. 2023), the Court based its decision in part on “the FAA’s strong policy protecting the confidentiality of arbitral proceedings.” In Stafford v. IBM, 78 F.4th 62, 71 (2d Cir. 2023), the Court stated that “[c]onfidentiality is a paradigmatic aspect of arbitration,” and cited older cases in which the court had “affirmed decisions to keep judicial documents subject to confidentiality provisions in arbitration or settlement agreements under seal.” The Court in Stafford referred to “the FAA’s strong policy in favor of confidentiality” and observed that “courts must rigorously enforce arbitration agreements according to their terms.” Id. at 69. And in Billie v. Coverall North America, Inc., 2024 WL 4380618 (2d Cir. Oct. 3, 2024), the Court quoted the Stafford decision’s reference to “confidentiality [a]s a paradigmatic aspect of arbitration.”
Prospects for Evolution
Do these Second Circuit cases place us on the cusp of a new era of confidential treatment of arbitration-related matters in US district courts, or has the Court only provided an opportunistic dictum about confidentiality in cases that really stand only for the proposition that the district courts’ public dockets should not be exploited to breach arbitral confidentiality when (1) there is no genuine dispute for the courts to address, and therefore (2) there is no basis to invoke the presumption of public access to the “judicial documents” that the courts examine to make decisions?
It is probably too early to tell. In a 2024 case that involved the actively-contested confirmation of a final arbitration award, the district court rejected a proposed sealing order and, while it cited Stafford, it did not give weight to the FAA’s recognition of contractually-agreed arbitral confidentiality as a distinct public policy counterweight to open courts principles. Major League Baseball Players Ass’n v. Arroyo, 2024 WL 3028432 at **2-4 (S.D.N.Y. June 17, 2024). In the most recent reported case , a US district court in New York relied on these Second Circuit cases as controlling precedents requiring that the award confirmation submissions remain under seal. But this was another no-controversy case (and therefore effectively no role for the presumption of public access): “[P]etitioner’s bid to confirm the arbitral award in unopposed…. Thus there is no need to unseal any of the documents in question to enable the public to better understand a judicial opinion resolving a contested issue arising from an arbitration.” Chapey v. Khan, 2025 WL 1078300 at *2 (S.D.N.Y. Apr. 9, 2025) (emphasis supplied).
There may be an opportunity here for the community of arbitrators and arbitration counsel to influence the direction of the courts’ practices. As a first step, confidentiality orders agreed by counsel and approved by the Tribunals could more consistently – as they often do – obligate any party making any application for judicial relief, including confirmation or vacatur of any award, to seek judicial approval for filing under seal, to file under seal initially where such filing is permitted by the district court’s rules of practice (or where this is not permitted, to commence the proceedings by making the motion for leave to file under seal), and to affirmatively support the exercise of the court’s discretion to respect arbitral confidentiality by keeping the record sealed. A confidentiality order having such specificity may tend to inhibit a common arbitration guerrilla tactic – the interlocutory filing of a lawsuit on a public docket (e.g. to enjoin the arbitration, or to assert a claim by or against a non-signatory that is allegedly non-arbitrable, or – as was true in the Chapey v. Khan case – nominal compliance with a confidentiality order obligation to file under seal, but with accompanying submissions that are, as the district court observed in agreement with Respondent’s assessment “in all but name a request to unseal”). This obligation may be tempered by an exception that permits a party to advocate before the Court for unsealed filings where public exposure may be necessary to remedy previous breaches of the confidentiality of the arbitration by or on behalf of an adverse party that may have resulted in public dissemination of disinformation, where the party observing the obligation of confidentiality may have no other effective recourse to correct public disinformation.
Further, there could be an opportunity for district courts to develop – with support from counsel advocating a broader judicial berth for arbitral confidentiality – a more nuanced approach to the balancing of open court principles and arbitral confidentiality.
The argument(s) might go something like this:
- Confidentiality as a “paradigm” attribute of arbitration, protected by the FAA at least where it is expressly adopted by agreement of the Parties, loses much of its value in attracting parties to arbitration if confidentiality must be sacrificed as a condition of seeking judicial relief related to the arbitration. The more judicial relief that is required, under current law and practice, the more the parties’ agreement to arbitrate privately and confidentially is denied enforcement by the courts. This judicial practice, and the principles underlying it, are effectively a federal common law limitation on the promise of FAA Section 2 and its jurisprudence that agreements to arbitrate will be enforced according to their terms (where those terms include the confidentiality of the arbitration).
- Most commercial arbitrations do not implicate matters of broad “public interest.” They may be interesting to some narrow segment of the public, but not for reasons that are recognized within the constitutional (First Amendment) rationale for public access to judicial documents. Under existing law, only the First Amendment rationale should create a nearly unrebuttable presumption of public access to judicial proceedings. The other rationale, the common law rationale, that public access is valued to hold judges accountable for the integrity of their work and their adherence to the rule of law, should be acknowledged to be a relatively weaker presumption, one that is more amenable, as compared to the First Amendment imperative, to exceptions based on other public policy values like arbitral confidentiality.
- As was suggested in the Telesat case in Ontario discussed above, the common law rationale for public access (monitoring judicial integrity and adherence to the rule of law) is more compelling when a court is making a final disposition, to confirm or vacate an award, and is less compelling when the court is performing a facilitative function such as enforcing an arbitral subpoena or addressing a motion affecting the scope of a sitting Tribunal’s jurisdiction over issues or persons. And the courts should particularly strive to protect the agreed-upon confidentiality of the arbitration while it is in progress, as the day when any public exposure of the case in a confirmation/vacatur context might never arrive if the case is resolved before a final award or if there is voluntary compliance with the final award. The development of case law in this area would also tend to inhibit the tactical resort to collateral judicial proceedings by a party seeking to exert settlement pressure on its adversary by public exposure through public court dockets.
- The common law rationale for public access to judicial documents does not necessarily require instantaneous public access at the time such documents are uploaded to an electronic court docket. A confidentiality agreement of the Parties, or a procedural order of the Tribunal establishing confidentiality, if applicable prima facie to documents being filed on a court docket that is accessible to the public absent a sealing order, should be a sufficient basis for a US court asked to grant relief under the FAA to order the submissions the remain under seal at least for a period sufficient to enable the court to determine which of the documents are judicial documents because they are required for the court’s performance of its adjudicatory function. The time of such a determination often will be, but will not necessarily be, the time of an adjudication – for example, after entry of a judgment vacating, or confirming or denying confirmation of, an arbitral award. That is the time – unless there is a First Amendment interest of the public in following the proceedings as they unfold – when the integrity of the Court’s decision-making is most effectively examined, and such deferred publication would enable courts to strike a more refined balance between open courts principles and the FAA’s protection of agreed arbitral confidentiality.
- One salutary aspect of this approach is that a party will be discouraged from deploying excessive and unnecessary publication of arbitral documents, that do not meaningfully bear on the adjudication, as a cudgel to induce compliance with the award or acceptance of a settlement. Should either objective be achieved, there will be no adjudication, and the common law rationale for public access to arbitral documents as judicial documents will evaporate, just as it did in Stafford. The common law rationale for publication should prevail over the confidentiality that the FAA protects (either because it results from the direct agreement of the parties results indirectly from a procedural order made in the agreed arbitral process) when there has been (or at least rather clear will be, as when the matter is fully submitted) an adjudication whose legitimacy should be exposed to public examination — not when such an adjudication is merely a possibility.
