The Arbitration Act 2025 introduced some significant revisions to the Arbitration Act 1996. The most significant revisions were explained in John Abbott’s article dated 26 February 2025. But what was not included in the Arbitration Act?
Confidentiality
The 1996 Act had no provision regarding confidentiality. Neither does the 2025 Arbitration Act address the question of confidentiality. It is commonly thought that arbitrations are always confidential. That is not necessarily the case (see our article Confidentiality in Arbitration).
Parties very often elect to import the rules of an arbitral institution into their arbitration agreement. Many of those rules include a requirement for confidentiality, but not all of them do. The LCIA Rules, for example, contains confidentiality obligations. It is important to check the rules of the applicable arbitral institution. In addition, unless the arbitration agreement itself contains a provision for confidentiality, the parties should raise the question and consider asking the Tribunal to make a direction for confidentiality and include such provision in the agreed terms of reference for the arbitration. This may be particularly important in ad hoc arbitrations where there is no arbitral institution involved.
It was thought that it was better to allow the parties to make their own decisions on confidentiality rather than to impose something through statute. Parties can chose to make provision for confidentiality if they want to, either through the arbitration agreement itself or by incorporating arbitral rules which include confidentiality provisions. It is therefore important to consider the question of confidentiality at an early stage. Check the arbitration agreement, does it contain a confidentiality provision? Check the rules of any arbitral institution to which the arbitration may be subject. Do those rules contain a confidentiality provision?
Appeals
Section 69 of the Arbitration Act 1996 has not been interfered with. Section 69 permits the parties to agree to opt out of the right to appeal. If the arbitration agreement provides there will be no appeal, then there can be no appeal against the tribunal’s award. Whether this is appropriate or not should be considered at the point the arbitration agreement is being formulated. The rules of many arbitral institutions prohibit appeals. Again, this should be considered at the point the arbitration agreement is being drafted when selecting the rules to which an arbitration should be subject.
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