By S&S Co. Advocates & Solicitors · Published 24 June 2026 · Informational content, not legal advice. See our disclaimer
A Widely Assumed, Only Partially Codified Protection
One of arbitration's commonly cited advantages over litigation is confidentiality: the idea that a commercial dispute can be resolved away from the public record of a court proceeding. For a long time under the 1996 Act, this expectation rested more on general practice, institutional rules and party agreement than on an explicit statutory guarantee. The 2019 amendment changed that by inserting Section 42A, which for the first time gave confidentiality an express statutory footing for arbitrations under the Act.
What Section 42A Actually Says
Section 42A requires the arbitral tribunal, the arbitral institution, and the parties themselves to maintain confidentiality of all arbitral proceedings, except the award itself, where disclosure is necessary for the purpose of implementing or enforcing the award. The provision is broadly worded, covering not just tribunal deliberations but the wider conduct of the proceedings.
Where the Protection Has Real Limits
Confidentiality under Section 42A is not absolute. The award itself can be disclosed to the extent necessary for its implementation or enforcement: which, practically, means that once a party moves to enforce an award or challenges it under Section 34, the substance of the dispute typically becomes part of the public court record, since court proceedings in India are generally open (subject to specific orders sealing particular records in appropriate cases). Parties genuinely concerned about long-term confidentiality should recognise that a contested Section 34 or Section 9 proceeding can significantly narrow the practical confidentiality the underlying arbitration otherwise enjoyed.
Separately, confidentiality obligations under Section 42A do not override a party's independent legal obligations: for instance, disclosure obligations to regulators, stock exchanges (for a listed company), or in response to a lawful court order or statutory disclosure requirement in another proceeding altogether.
Strengthening Confidentiality Through the Contract
Because the statutory baseline, while helpful, has real limits, parties who want stronger confidentiality protection should consider incorporating institutional rules with more detailed confidentiality provisions, and adding an express confidentiality clause to the arbitration agreement itself covering matters such as the treatment of documents produced in the arbitration, restrictions on using information obtained in the arbitration for unrelated purposes, and the parties' conduct regarding any public statements about the dispute while it remains pending.
Frequently Asked Questions
Does Indian law guarantee that my arbitration will remain entirely confidential?
Section 42A creates a general confidentiality obligation, but it is not absolute: the award can be disclosed for enforcement purposes, and a subsequent Section 34 or Section 9 court proceeding is generally open, which can bring the substance of the dispute into the public record.
Can I sue for breach of confidentiality if the other party discloses details of our arbitration?
This depends on the specific facts and any additional confidentiality terms in the arbitration agreement itself: Section 42A creates a statutory obligation, and its breach may give rise to a remedy, but the scope of any such remedy is fact-specific and not free from complexity.
Does confidentiality apply to documents I produce during the arbitration?
Section 42A's general language would cover the proceedings broadly, but parties seeking more specific, detailed protection for documents and evidence should add express contractual confidentiality terms rather than relying solely on the statutory baseline.
Is a Section 34 challenge to my award a public proceeding?
Generally yes: court proceedings in India, including a Section 34 challenge, are ordinarily open to the public, subject to the court's power to seal specific records in an appropriate case.
References & Further Reading
This article references the following statutory provisions. It is educational content, not advice on any specific dispute.
- Arbitration and Conciliation Act, 1996, Section 42A (inserted by the Arbitration and Conciliation (Amendment) Act, 2019): confidentiality of arbitral proceedings.
- See our Arbitration & Dispute Resolution practice area for further reading.