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Judgment on challenge to arbitrator should be made public

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Jack Busby

Associate

London

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10 May 2021

A court judgment on challenging an arbitrator should be published in full.  Any expectations of confidentiality and/or privacy were limited by the amount of information already in the public domain through press reports.  The only significant confidential information in the judgment was the existence of the arbitration and the parties to it, but that did not materially expand on what was already in the public domain.

Press reports about a high-profile dispute

Last year the MailOnline and Sky Sports reported that the proposed takeover of Newcastle United Football Co Ltd (NUFC), by a consortium whose members included the Saudi Public Investment Fund, had fallen through. The reports described a dispute between NUFC and The Football Association Premier League Ltd (PLL), resulting from PLL’s determination in June 2020 that Saudi Arabia would become the controlling entity of NUFC if the deal went through.

A challenge to the impartiality of an arbitrator

Subsequently, NUFC challenged PLL’s determination and started arbitration in September 2020, under the Arbitration Code in the PLL’s Rules. NUFC unsuccessfully applied to the court seeking the removal of the chair on the ground of an appearance of a lack of impartiality, under s24 Arbitration Act 1996 (Act). 

The question arose as to whether the court’s decision on the challenge to the chair should remain confidential. 

A reminder – confidentiality of court judgments made in connection with arbitration

Judgments in arbitration matters should generally be published where it can be done without disclosing significant confidential information, although publication may involve suitable redaction or anonymisation. Publication is particularly favoured when a judgment contains a significant point of law or practice, or involves questions of standards of fairness.

A party seeking to maintain confidentiality in the context of arbitration need only establish that it had an expectation that the subject matter would be confidential. If no such expectation exists, a party can seek to preserve confidentiality by establishing that publication would cause some other positive detriment.

The court rejected any broad principle that a party’s expectation of confidentiality is destroyed as soon as the existence of an arbitration, and the issues in dispute, enter the public domain. An assessment of whether a court judgment should remain confidential is ultimately a fact-specific exercise, and involves a balance between: (i) the public interest in publishing judgments implicating standards of fairness in arbitration; and (ii) the parties’ interests in preserving the confidentiality of the underlying arbitration. 

Judge orders publication of judgment

The court identified that the facts that would enter the public domain upon publication of the judgment were limited and immaterial. This meant that it was unnecessary in this case to withhold publication or to redact or anonymise any information. The court reiterated the particular interest in publishing judgments arising from s24 applications because they implicate the fairness and integrity of arbitration, and found that PLL’s expectations of confidentiality and/or privacy were limited in this case because of the information already in the public domain (ie the press reports released before arbitration had been commenced). The only significant confidential information in the judgment was the existence of the arbitration and the parties to it, but that did not materially expand on what was already in the public domain and PLL had not demonstrated any positive detriment arising from the publication of these details. 

The judge ordered the publication of the judgment without redaction or anonymisation.

Comment

Confidentiality has always been considered a defining feature of arbitration. However, it is important to bear in mind that there are a number of ways in which details of an arbitration can become public, particularly when parties seek relief from the courts. Such cases might involve, for example, applications to challenge or enforce an award issued by an arbitral tribunal.

When an arbitration matter comes before the court, issues of confidentiality should be considered from a number of angles: whether the hearing should be in private; whether the resultant judgment should be in public; and whether the publication of a judgment should be tempered by redactions or anonymisation.

The decision in this case is notable from a confidentiality perspective because the court issued a judgment while the arbitral proceedings were ongoing (and also happens to involve a dispute that has attracted more interest than most, given the parties and the subject matter). It provides useful insight into the balancing act between the general interest in publishing court decisions, and parties’ expectations of privacy when it comes to arbitrating disputes. The balance in this case ultimately fell in favour of publication.

Further information

This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. If you wish to receive this publication, please contact Amy Edwards, amy.edwards@allenovery.com

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