Judgment handed down in A Corporation v Firm B [2025] EWHC 1092 (Comm)

On 8 May 2025, the Commercial Court handed down its judgment in A Corporation v Firm B. The case provides useful guidance around the obligation of confidentiality in arbitral proceedings, and in particular, the parameters of this obligation where a law firm acts for multiple clients in separate arbitrations arising out of the same or similar circumstances.

Nicholas Vineall KC of 4 Pump Court was instructed on behalf of the Defendants and Richard Millett KC and Ellen Tims of Essex Court Chambers for the Claimant.

Overview

1. The Claimant ‘A Corporation’ sought an injunction to restrain the First Defendant (a law firm with offices in London and Asia) from:

• • continuing to act for a third company, ‘C Corporation’, in an ongoing arbitration against ‘D Corporation’ (a company in the same ultimate ownership as A Corporation) (‘the Vessel 2 Reference’); and
  • providing any confidential information to C Corporation or anyone assisting C Corporation in relation to the ongoing arbitration.

2. Prior to the application, the First Defendant’s London office had acted for ‘B Corporation’ in separate arbitral proceedings against the Claimant with a similar/related subject matter (‘the Vessel 1 Reference’). The Claimant sought to argue that, unless restrained, the Defendants would be in breach of, or were at risk of being in breach of, their obligations of arbitral confidentiality.
3. The Court dismissed the Claimant’s application in full, holding that it would not be just and equitable to grant the injunctive relief sought. The decision thus clarifies the scope of the obligation of confidentiality in arbitration and its exceptions, and the application of these principles in practice.

The Court’s Decision

4. As above, the Claimant sought to argue that, by continuing to act for C Corporation, the First Defendant was in breach of, or at risk of being in breach of, its obligation of confidentiality. The Claimant relied on the implied obligation of arbitral confidentiality which arises under English law. The critical questions for the Court in determining the application were:

(i) to what material does the obligation of arbitral confidentiality extend; and

(ii) what are the relevant exceptions to obligations of arbitral confidentiality?

(i)        What material is caught by the obligation of arbitral confidentiality ?

After reviewing the relevant authorities, the Court summarised the position as follows:

• As a matter of English law, the default rule is that the parties to an arbitration agreement will be taken to have impliedly agreed to an obligation of confidentiality. This obligation embraces different types of documents and information, some of which is inherently more confidential or sensitive than others. The types of documents and information which are embraced by the obligation include:

1. 1. the hearing or hearings in the arbitration (including transcripts or notes of the hearing);
   2. documents disclosed by a party in the arbitration to other parties in the arbitration in the hands of those other parties;
   3. documents generated or prepared for and then used or produced in the arbitration (including pleadings, witness statements and expert reports, written submissions and correspondence between the parties or their representatives relating to the arbitration); and
   4. the arbitral award.

• To the extent that the aforementioned documents are themselves a source of confidential information, information derived from those documents is also subject to obligations of confidentiality.
• However, a party’s own documents that come into existence independently of the arbitral process do not become subject to a limiting obligation of confidence in their own hands merely because that party discloses or relies on them in the arbitration. Likewise, the fact that a commercial dispute leads to the commencement of an arbitration does not itself make the existence of the dispute and the events which gave rise to it confidential. For example, if a party buys goods which it concludes are defective, that fact does not become confidential simply because the buyer commences an arbitration against the seller.

The Court then illustrated how these principles might be applied in practice. Where, for example, a buyer commences arbitral proceedings against a seller for defective goods, the Court explained that:

• the buyer will not be able to disseminate the particulars of claim filed in the arbitration asserting that complaint, even if no other information has been drawn on in preparing them; and
• similarly, a witness statement setting out certain facts or an expert report addressing the condition of the defective goods will be subject to confidentiality even though these documents do not contain and/or are not derived from inherently confidential information or information obtained from any other party.

This reflects the fact that the obligation of confidentiality in arbitration arises not from the ‘inherent confidentiality’ of the material, but the private nature of the arbitral process.

The Court then distinguished such information (which is protected by the obligation of arbitral confidentiality) from the ‘experience which lawyers inevitably acquire from conducting arbitrations’, clarifying that the latter is not ‘off limits’ for use in a subsequent proceedings. Although the Court observed that the line between protected information and ‘experience’ is not always easy to articulate, it gave the following as examples of the types of ‘experience’ which will not be protected:

• knowledge about the type of documents generally available in relation to particular types of issues;
• how major players and repeat litigators in the field structure their businesses or record-assembly and keeping;
• the litigation strategies of particular opponents and their approach to contested issues;
• which document requests have and have not yielded results; and
• the outlook of particular arbitrators to on issues such as the construction of contracts, readiness to find dishonesty, disclosure, amendments and security for costs.

(ii)       Exceptions to Arbitral Confidentiality

As to the various exceptions which arise to the obligation of arbitral confidentiality, the Court observed that, although it was not necessary to comprehensively review all of the exceptions:

• one such exception is where it is reasonably necessary for the protection of the legitimate interests of an arbitrating party;
• this exception (‘where it is reasonably necessary for the protection of the legitimate interests of an arbitrating party’) includes for the purposes of making claims against or defending claims by a third party;
• the dissemination (rather than ‘publication’) of certain information is permissible for the purpose of advancing a party’s case in the subject arbitration in which the obligation of confidentiality has arisen – for example, disclosing material to lawyers, factual witness and experts for the purpose of preparing for the arbitration; and
• it is very strongly arguable that it is permissible to use at least some material that is confidential for the purpose of trying to elicit similar fact evidence from a third party who is believed to have similar complaints against the opposing party.

Application by the Court

Applying those principles, and having regard to the relative prejudice to the First Defendant and Corporation C, as compared to the Claimant, the Court refused  the Claimant’s application.

Read the full judgment here.

Article written by Kaity Crowe.

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Nick Vineall KC

Call 1988 King's Counsel 2006

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