New ICC rules favour a targeted but flexible approach to confidentiality

One of the notable developments in the ICC 2026 Arbitration Rules is the introduction of article 12.8 – a provision dedicated to confidentiality. It states: "Arbitrators shall keep confidential all matters relating to the arbitration unless otherwise in the public domain, agreed by the parties, required by applicable law, or necessary to protect a legal right or comply with disclosure obligations.”  

The article provides in clear terms that arbitrators shall keep confidential all matters relating to the arbitration, subject to limited exceptions, namely where information is already public, disclosure is agreed by the parties, required by applicable law, or is necessary to protect a legal right or comply with disclosure obligations.

At first glance, the introduction of such a provision may appear unsurprising. Confidentiality has long been associated with international arbitration and is often cited, alongside neutrality and enforceability, as one of its defining features. Yet its codification in the 2026 Rules was neither self-evident nor uncontested. The debates surrounding article 12.8 reflect a broader evolution in arbitration practice, where confidentiality is both valued and questioned.

The findings of the 2025 Queen Mary University of London survey on international arbitration illustrate this duality. Confidentiality is not the primary driver for users choosing arbitration. Factors such as enforceability of awards and procedural neutrality consistently rank higher. Nonetheless, confidentiality remains important. A significant proportion of respondents continue to view it as an advantage, and a large majority express a preference for keeping commercial arbitrations private. This reflects a persistent expectation among users that arbitration should, at least by default, operate within a confidential framework.

At the same time, this expectation is increasingly challenged. Calls for transparency have gained traction, particularly in disputes involving states or matters of public interest. In such contexts, confidentiality may be perceived as limiting accountability or scrutiny. The inclusion of article 12.8 can therefore be understood as part of a broader effort by arbitral institutions to strike a workable balance between these competing considerations.

The ICC’s chosen approach is both deliberate and nuanced. Article 12.8 imposes a confidentiality obligation solely on arbitrators. This does not extend to the parties, nor does it bind counsel, experts, or other participants. This limited scope reflects a conscious policy choice.

Several reasons explain this design. Firstly, arbitrators occupy a distinct role. They are entrusted with adjudicating disputes within a private framework and are expected to safeguard the integrity and confidentiality of that process. Imposing a default obligation on them aligns with this function.

Secondly, other participants are often already subject to independent confidentiality constraints. Counsel are bound by professional rules and ethical obligations. Experts and consultants are typically subject to contractual undertakings. As for parties, their obligations are primarily governed by their agreement. In the absence of a specific undertaking, they remain free to disclose information relating to the arbitration.

This leads to an important consequence. Confidentiality in ICC arbitration remains fundamentally rooted in party autonomy. Article 12.8 does not create a comprehensive confidentiality regime covering all stakeholders. Rather, it establishes a baseline obligation for arbitrators, while leaving the broader framework to be shaped by party agreement, whether in the arbitration clause, the Terms of Reference, or subsequent procedural arrangements.

The removal of the mandatory nature of the Terms of Reference in the 2026 Rules further reinforces the utility of such a default provision. Where parties do not expressly address confidentiality, article 12.8 ensures that at least one core component of the process remains protected.

The provision is, however, carefully circumscribed by a series of exceptions. Disclosure may be required to comply with legal obligations, including criminal or tax reporting duties, or in the context of judicial proceedings, such as enforcement or annulment actions. It may also be justified where necessary to protect a party’s legal rights. These exceptions are not merely technical. They acknowledge the practical reality that arbitration does not operate in isolation from domestic legal systems.

By expressly incorporating these carve-outs, the ICC recognises that confidentiality, while important, cannot be absolute. The resulting framework is pragmatic rather than rigid.

A further point of interest is what the 2026 Rules do not address. In the new version of the Rules the ICC has chosen not to codify the regime for publication of awards that has existed since 2019 through the ICC Note to Parties. Under that framework, awards may be published by the institution no less than two years after notification, subject to party objection or requests for anonymisation. Where a confidentiality agreement exists, publication requires party consent. By keeping this mechanism outside the Rules, the ICC maintains flexibility and preserves party control over publication.

In adopting article 12.8, the ICC positions itself among institutions that favour a targeted approach to confidentiality. This contrasts with other regimes that impose broader obligations. The London Court of International Arbitration (LCIA) Rules, for instance, extend confidentiality duties to both parties and arbitrators as a default.

Similarly, the Singapore International Arbitration Centre (SIAC) 2025 Rules codify a wide-ranging obligation covering most aspects of the proceedings. Other institutions, such as the Milan Chamber of Commerce (CAM), the German Arbitration Institution (DIS), the Netherlands Arbitration Institute (NAI), and the Swiss Arbitration Centre, also provide for comprehensive confidentiality regimes, typically binding all participants subject to limited exceptions.

Conversely, some institutions adopt a more restrained stance, closer to that of the ICC. The Madrid International Arbitration Center (CIAM) limits the obligation primarily to the tribunal and the institution, while expressly allowing tribunals to issue protective orders for sensitive information. The Stockholm Chamber of Commerce follows a similar model. At the other end of the spectrum, the Vienna International Arbitral Centre (VIAC) Arbitration Rules do not include an express confidentiality provision, leaving the matter largely to party agreement and applicable law.

These divergences highlight a fundamental point: there is no uniform standard of confidentiality in international arbitration. The applicable regime depends on a combination of institutional rules, party agreement, and the governing law.

The role of local law is particularly significant. In France, for example, international arbitration is not subject to a general statutory duty of confidentiality unless it falls within the category of e-arbitration. The Code of Civil Procedure remains silent, thereby leaving the matter to party autonomy. This approach is consistent with the ICC philosophy and reflects a broader view that arbitration should remain flexible and adaptable to the needs of the parties.

By contrast, in jurisdictions such as England and Wales, and Singapore, confidentiality is recognised under common law as an implied obligation arising from the arbitration agreement. In those systems, even in the absence of express provisions, parties may be bound to keep arbitration-related information confidential, subject to established exceptions.

Against this backdrop, article 12.8 appears less as a comprehensive solution than as a carefully calibrated piece of a larger puzzle. It affirms the importance of confidentiality while deliberately avoiding overreach. It respects existing obligations, accommodates legal constraints, and preserves party autonomy.

Ultimately, the provision reflects the enduring tension at the heart of international arbitration. Confidentiality remains a valued feature, but it is no longer unquestioned. The ICC’s response is to offer a clear but limited rule, leaving space for parties to design the level of confidentiality that best suits their dispute.

For practitioners, the message is equally clear: confidentiality should not be assumed, but should be addressed expressly and early with due regard to the applicable rules, the governing law, and the specific context of the dispute.