Confidentiality In Arbitration: Myth Or Reality In India?
- IJLLR Journal
- Jul 7
- 2 min read
Shubhangi Kashyap, B.A. LLB (Hons.), Kirit P. Mehta School of Law, NMIMS University, Mumbai, Maharashtra
ABSTRACT
Confidentiality has always been one of arbitration's most attractive selling points. Parties choose it precisely because they want their disputes resolved away from the public eye without the exposure that court proceedings inevitably bring. In India, however, this advantage has for long existed more on paper than in practice. Until recently, there was no statutory provision that expressly recognized, let alone enforced, a duty of confidentiality in arbitral proceedings. This article examines how that changed and how much it actually changed following the insertion of Section 42A through the Arbitration and Conciliation (Amendment) Act, 2019. The central question it asks is a simple but important one: has the law finally made confidentiality real in Indian arbitration, or does it remain a principle without adequate teeth?
To explore this, the article places India's legal framework in comparative perspective, measuring it against the standards set by the UNCITRAL Model Lawandtherulesofsomeoftheworld'sleadingarbitralinstitutions theICC, the LCIA, the SIAC, and the IBA Rules on Evidence. What emerges from this comparison is a picture of a provision that, while well-intentioned, is incomplete in several significant respects. Section 42A does not define what qualifies as 'confidential information.' It does not specify what remedy a party can seek if the duty is violated. It leaves the scope of permissible exceptions frustratingly vague. And it does not expressly bind the arbitral tribunal an omission that is difficult to justify given the tribunal's central role in the proceedings.
The article also examines how Indian courts have engaged with questions of arbitral confidentiality, with particular reference to the Supreme Court's decision in Emkay Global Financial Services Ltd. v. Girdhar Sondhi and the High Court's approach in ONGC v. Gujarat Energy Transmission Corporation. This domestic judicial landscape is then contrasted with the considerably richer jurisprudence that has developed in England, Australia, Singapore, and France. The article concludes with targeted reform proposals aimed at transforming confidentiality in Indian arbitration from a statutory aspiration into a genuinely enforceable obligation.
Keywords: Arbitration confidentiality, Section 42A, Arbitration and Conciliation Act 1996, UNCITRAL Model Law, International arbitration, Institutional rules, Arbitral privacy, Comparative arbitration law.
