Behind Closed Doors: Confidentiality in Indian Arbitration

[Aahini and Tanisha are students at Gujarat National Law University.]

Confidentiality is described as one of arbitration’s paramount virtues. It protects sensitive information, thereby allowing disclosures between the parties and safeguards the private nature of arbitration as compared to litigation. This characteristic has taken a new path in India as the country aims to strengthen itself as a global hub for international commerce and dispute resolution. Based on a high-level committee report, chaired by Justice BN Srikrishna, Parliament gave confidentiality a statutory recognition by the way of the 2019 amendment to the Arbitration and Conciliation Act 1996 (Act), which added Section 42A, mandating that arbitral institutions, arbitrators and parties “shall maintain the confidentiality of all arbitral proceedings,” subject only to disclosure required for the implementation and enforcement of awards. Yet its scope was narrow from the start, covering only a few participants.

This uncertainty recently came to the forefront in Kamal Gupta v. LR Builders Private Limited (Kamal Gupta), where the Supreme Court was called upon to decide whether non-parties could attend arbitral hearings. The judgment not only reaffirmed that confidentiality is a statutory command but also clarified the limits of participation in arbitration, marking a significant step in India’s evolving arbitral jurisprudence.

The Veil of Secrecy v/s the Contours of Participation

In the ruling of Kamal Gupta, non-signatories had sought permission to attend hearings based on their financial interest in the dispute. The Delhi High Court allowed their presence, reasoning that it would not prejudice the arbitral process. However, the Supreme Court overturned this view and held that arbitration is a consensual process binding only on signatories or those claiming under them. The court noted that permitting outsiders to attend hearings would violate Section 35 of the act, which limits the binding effect of the award and would also contravene the confidentiality mandate under Section 42A. It further clarified that once an arbitrator is appointed under Section 11(6), the referring court becomes functus officio, thereby foreclosing the scope of ancillary directions on participation and firmly shutting the door on the non-signatories. 

When Confidentiality Collides with Transparency

The jurisprudence on arbitral confidentiality reveals tensions when secrecy conflicts with public interest and transparency mandates. In Kamaladitya Constructions Private Limited v. Union of India, during the final hearing of an ongoing arbitration, the appointed arbitrator reportedly displayed the draft award on his computer screen, allowing the parties to view it. The court held that Section 42A imposes the strictest confidentiality on arbitrators and that the tribunal cannot reveal content to either party until it is finalized. This case explicitly enforces Section 42A against a tribunal member, underscoring that even unintentional leaks by arbitrators are impermissible.

Requests made under the Right to Information Act 2005 (RTI Act) present a different perspective. In the case of RS Sravan Kumar v. CPIO, the Central Information Commission (CIC) addressed an RTI request regarding an ongoing arbitration by a government agency. The applicant sought information related to a dispute between Antrix Corporation and Devas Multimedia. The CIC determined that details regarding the arbitration award could not be disclosed, but it mandated the disclosure of the names of the government’s counsel and the fees paid, citing that these expenses were of public interest. In essence, the CIC upheld the confidentiality of the arbitration’s merits while insisting on transparency concerning the use of public funds. 

A further example comes from the Competition Commission of India (CCI) in the case of Amazon.com NV v. Future Coupon. In this case, Future Coupon Private Limited sought to rely on documents and pleadings filed before an arbitral tribunal in its competition complaint against Amazon. CCI noted that, although the factual background overlapped, the competition and arbitration proceedings were independent and pursued distinct objectives. It held that Section 42A does not automatically bar the use of arbitral documents in other legal proceedings. This shows that arbitration secrecy in India is not absolute, and when litigants invoke arbitration documents in other legal proceedings, Section 42A may not automatically shut the door.

These cases collectively paint a picture of evolving Indian jurisprudence. Courts have underscored the importance of confidentiality, which forbids outsiders from participating in arbitration, sanctions arbitrators who disclose information, and respects the secrecy of pending arbitrations. At the same time, they have balanced it against legitimate transparency goals. The Supreme Court has even remarked that allowing non-parties to participate in arbitration is unknown to the law. But a comprehensive body of confidentiality case law is still developing, especially regarding remedies for breach beyond removing an arbitrator. In practice, then, Indian courts have upheld Section 42A’s strict duty of secrecy while navigating its exceptions under other laws, such as the RTI Act and the Digital Personal Data Protection Act 2023. The Indian judiciary has recognized the confidentiality of arbitrations throughout, except in cases involving specific interests. The unresolved tension between transparency and arbitration remains a significant hurdle. The courts are expected to continue refining the boundaries of confidentiality in future decisions to elevate India’s arbitral landscape. 

International Best Practices and Comparative Analysis

The most successful international practices and comparative analysis provide a roadmap for how India can strengthen its approach. Under the LCIA Arbitration Rules 2020, Article 30 mandates parties to maintain confidentiality of all awards and materials submitted for the arbitration and casts a duty upon them to seek the same undertakings from authorized representatives, witnesses, experts and service providers. Article 30.2 further expands the scope of these obligations to the arbitral tribunal, the tribunal secretary, and any tribunal-appointed expert. This framework upholds that all participants, including the parties and arbitrators, are expressly bound by confidentiality and that written undertakings are obtained from those who may access confidential material. 

The SIAC Arbitration Rules prescribe similar duties. Rule 39 of the 2016 rules mandates that the tribunal, the parties and any person appointed by the tribunal, including an expert, safeguard every material relating to the proceedings and the award confidentially. It also stated that “matters relating to the proceedings” include the existence of the arbitration, pleadings, evidence and any materials produced, and all other documents produced by another party in the proceedings or the Award arising from the proceedings. The 2025 SIAC Rules amended this framework. Under Rule 59.4, “matters relating to the proceedings” includes the existence of the arbitration, the deliberations of the Tribunal, the pleadings, evidence, submissions, and all other materials and written communications produced and submitted by the parties in the arbitration, and any decision, ruling, order, or award. Moreover, Rule 59.1 mandates the parties, and any party representative, witness or expert, third-party funder, the members of any Tribunal, any Emergency Arbitrator, and any person appointed by a Tribunal, including any Tribunal Secretary and any Tribunal-appointed expert, the SIAC Court, the President, the Vice President, the Registrar, and the SIAC Secretariat to be under a continuing obligation to treat all matters relating to the proceedings as confidential. The revised rules expand the scope of parties under obligation and matters related to proceedings.

Comparing these regimes to Section 42A reveals limitations in the Indian framework. Section 42A mandates that arbitrators, arbitral institutions and parties must maintain confidentiality. Still, it does not expressly extend this duty to witnesses, experts or tribunal secretaries, nor does it define what “arbitral proceedings” encompass. By contrast, international rules impose confidentiality broadly. These comparative insights suggest that India could strengthen its confidentiality regime by amending Section 42A to cover all parties involved under the obligation of confidentiality and defining what constitutes arbitral proceedings.

Navigating India’s Future Course

The Supreme Court’s ruling in Kamal Gupta is a landmark decision in the field of arbitration in India. The court ensured that the arbitral process in India retained its consensual nature by excluding the intervention of non-signatories, thereby strengthening confidentiality as a statutory imperative. With this decision, however, it also highlights the flaws in the existing mechanism and the narrow drafting of Section 42A.

If India wants to establish itself as an international arbitration hub, then the confidentiality regime must be further strengthened. All persons handling arbitral material should be monitored, and courts must standardize mechanisms for sealed filings and closed hearings so that such sensitive correspondence does not appear in public records. 

Arbitration in India is conducted in a closed-door manner. However, if those doors are to instill confidence in the international community, then they should not only be shut on outsiders, but rather, they must be fortified from the inside. Only then will confidentiality rise from the status of a fragile concept to a definite guarantee.