12. Confidentiality and court proceedings

12. Confidentiality and court proceedings 

Confidentiality is a primary reason parties select arbitration, and the Hong Kong framework provides one of the few express statutory duties of confidentiality in the world. This protection operates on two distinct levels: the confidentiality of the arbitration itself and the privacy of related court proceedings. 

Under section 18 of the Arbitration Ordinance (Cap. 609), unless the parties agree otherwise, no party may disclose any information relating to the arbitral proceedings or the award to third parties. As this is a default position, parties enjoy the autonomy to strengthen these protections or, conversely, to agree on specific protocols for disclosure. This duty is subject to specific statutory exceptions, including disclosures made: 

• To protect or pursue a legal right or interest; 
• To enforce or challenge an award in legal proceedings; 
• To any government body, court, or tribunal when obliged by law; 
• To professional advisers of the parties; or 
• To third-party funders or lawyers for the purpose of funding or fee arrangements. 

Although section 18 provides a statutory default prohibiting disclosure, drafting an express clause is considered “far better” for several reasons: 

• Tailoring for listed companies: Many organizations, such as public-listed companies, have statutory disclosure obligations that may conflict with absolute confidentiality. An express clause can define specific protocols for such disclosures to avoid breaching the arbitration agreement. 
• Certainty and scope: An express provision clarifies that the existence of the arbitration itself is confidential, a point that is explicitly stated in some institutional rules (such as HKIAC 2024 Administered Arbitration Rules Art. 45) but is only arguably implied under section 18. 
• Strengthening default rules: Parties may choose to strengthen default protections or agree on specific protocols for handling sensitive trade secrets or corporate strategies. 

To safeguard the private nature of the process, section 16 provides a statutory presumption that court proceedings relating to arbitration are not heard in open court. A matter will only be heard in open court if a party applies for it and the court is satisfied there are good reasons to depart from the default. 

Under section 17, the court retains control over the information published about these “closed” proceedings. While the court generally prohibits publication if a party objects, section 17(4) creates a mandatory exception for judgments of major legal interest. In such cases, the court will permit the judgment to be published in law reports and professional publications, provided that identifying details are concealed to respect the parties’ legitimate interest in their privacy.