Explainer, International, Ireland, Canada, Arbitration, Ombudsman schemes
Confidentiality, privacy and the published record
Privacy and confidentiality are not the same thing, and some schemes publish their decisions on purpose; each is a setting the rulebook makes.
Published Last reviewed 2 min readBy SpyroLex
In arbitration the hearing is private and the rules usually add a duty of confidentiality, so the case and the award are not disclosed. Privacy and confidentiality are separate: one closes the room, the other binds what people may say. Some schemes instead publish their decisions to build a public body of reasoning. Each is a rulebook setting.
Privacy and confidentiality are not the same
Two ideas are often run together and are not the same. Privacy means the hearing is closed: only the parties and the tribunal are in the room, not the public or the press. Confidentiality is a separate duty, a rule that the parties and the tribunal may not disclose the existence of the case, the evidence or the award. A case can be private without being confidential, which is why the rules say which one applies and how far it reaches.1
The rulebook sets the duty of confidentiality
Where confidentiality applies, it is the rulebook that imposes it. The LCIA Rules 2020 make the parties keep the award and all materials in the arbitration confidential as a general obligation (article 30), and the SIAC Rules carry their own confidentiality duty. The duty is not absolute: disclosure is allowed where the law requires it, or to enforce or challenge the award, so the rules spell out the exceptions rather than leave them to the parties to argue later.12
Some schemes publish on purpose
Other schemes are built the opposite way, to publish. An ombudsman scheme often makes its decisions public so that firms and consumers can see how like cases are decided: Ireland’s Financial Services and Pensions Ombudsman publishes its legally binding decisions in a public database, and Canada’s OBSI publishes the cases where a firm refuses to pay. Publication here is a deliberate design choice, a way to build a body of reasoning others can rely on, not a failure of confidentiality.34
Confidential does not mean no record
Confidential schemes and published schemes have one thing in common: both keep a full internal record. Confidentiality governs what leaves the institution, not what the institution holds. Even a sealed arbitration keeps the dated account of which rule applied and what the tribunal decided, because that record is what a court reads if the award is later enforced or challenged. What is disclosed and what is kept are two different questions.1
| Regime | The hearing | Disclosure |
|---|---|---|
| Commercial arbitration (LCIA, SIAC) | Private | Confidential by rule, with set exceptions |
| Ombudsman scheme (FSPO, Ireland) | Not a public hearing | Final decisions published |
| OBSI (Canada) | Not a public hearing | Firm refusals published |
Whether a case is private, whether it is confidential, and what the scheme publishes are three separate questions. The rulebook answers each one, the same way for every case.
What is disclosed is a rulebook setting
Privacy, confidentiality and publication are all fixed by the rulebook, not decided case by case, and applying them the same way every time is part of administering a case on your own rulebook. Behind either choice sits the same full record, which is what defends a decision at enforcement and challenge.1