In the world of arbitration, where the same cast of characters regularly appears on different stages, the question of who knows what – and who can tell whom – has always been deliciously complex. The Commercial Court’s recent decision in A Corporation v. Firm B and another, EWHC 1092 (Comm) (2025) serves up a masterclass in navigating these treacherous waters, with Mr Justice Foxton at the helm delivering a judgment that manages to be both pragmatic and principled.

Two Vessels and Too Many Lawyers

Picture this: A law firm, Firm B, with offices spanning continents, finds itself in the middle of a confidentiality conundrum. The London office had acted for B Corporation in a dispute about Vessel 1, which settled nicely. The firm’s Asia office was representing C Corporation in a separate arbitration about Vessel 2. The plot thickens when we learn that the opposing parties in these arbitrations – A Corporation and D Corporation, respectively – are corporate siblings, having a common beneficial owner.

A Corporation, sensing danger, sought injunctions faster than you can say “information barrier.” A’s concern? That confidential nuggets from the Vessel 1 arbitration might find their way into the Vessel 2 proceedings, giving C Corporation an unfair advantage. It wanted Firm B out of the Vessel 2 arbitration entirely, demanding a forensic “cleansing” of files and sworn affidavits about what information had already crossed the Pacific.

But the current of riches was not to be, and the tide returned only hollow crates.

The Sliding Scale of Secrets

What makes Foxton J’s judgment particularly enlightening is his articulation of what might be called the “sliding scale of arbitral confidentiality.” Not all confidential information, it seems, is created equal. The judgment draws careful distinctions between:

• The inherently public: Facts about defective goods or contractual disputes don’t become confidential simply because someone commences arbitration. If your vessel arrives in poor condition, that unfortunate fact doesn’t transform into a secret merely because you choose to arbitrate rather than litigate.
• The procedurally protected: Documents created for arbitration – pleadings, witness statements, expert reports – enjoy confidentiality not because their content is inherently secret, but because they were deployed in a private process.
• The genuinely sensitive: Information disclosed by your opponent under compulsion sits at the apex of the confidentiality pyramid, deserving the highest protection.

This nuanced approach reflects the reality that arbitration confidentiality isn’t a monolithic concept but rather, as the Privy Council suggested was necessary in Associated Electric, sets buoys between different types of documents and information, some inherently more confidential or sensitive than others.[1]

The Maritime Bar’s Dilemma

Perhaps the most practical insight from the judgment concerns what Foxton J delicately terms the “experience that lawyers acquire through conducting arbitrations.” In the small world of maritime arbitration (though the same would hold true for arbitration in many other sectors) where the same solicitors and counsel regularly appear for and against the same parties, drawing the line between protected information and professional experience becomes an art form.

Inevitably, lawyers learn about their opponents’ litigation strategies, which document requests tend to yield results, how particular arbitrators approach certain issues, and what contraband might be stowed away in experts’ and witnesses’ quarters. This accumulated wisdom – the maritime lawyer’s stock-in-trade – cannot be quarantined simply because it was acquired in confidential proceedings. As Foxton J notes with admirable understatement, while the line is difficult to articulate, “experienced lawyers generally have a good sense of which side” of the line they’re on.[2]

When Geography Helps

The continental divide between Firm B’s offices proved crucial to the outcome. While Lord Millett’s famous dictum in Prince Jefri Bolkiah v. KPMG (A Firm), H.L (1998) warns that “information moves within a firm,” the physical and operational separation between London and Asia offices made the threat of disclosure less compelling. The court found no realistic possibility of further confidential information making the trans-Pacific journey, especially after the London lawyers agreed to step down from the Vessel 2 matter.

The judgment also highlights a critical distinction between “former client” cases (where firms face a heavy burden to show no risk of disclosure) and “no relationship” cases like this one. When a firm has never acted for the party seeking the injunction, that party must prove a real risk of prejudice – a burden that A Corporation couldn’t meet.

The Settlement Slip-Up

In a moment of candour, Firm B admitted to one clear breach: passing along information about A Corporation’s settlement offers. Yet even this admission didn’t save A Corporation’s application. The information had already reached C Corporation, and given the significant differences between the two disputes, its utility was limited. Sometimes, it seems, the harbour gates are best left open after the ship has sailed.

Practical Takeaways

For practitioners navigating these waters, the judgment offers valuable guidance:

1. Pre-arbitration facts remain fair game: The circumstances leading to a dispute don’t become confidential merely because arbitration follows. Your opponent’s defective performance is still their defective performance.
2. Context matters: The court will consider the actual prejudice to all parties, including innocent clients who might lose their chosen counsel. C Corporation, having instructed Firm B’s Asia office for over a year for reasons unrelated to the Vessel 1 dispute, would have suffered real prejudice from an injunction.
3. Information barriers can work: But they must be robust, properly implemented, and implemented before the court gets involved. The judgment suggests that voluntary measures, properly executed, may be more effective than court-ordered arrangements.
4. Document your decisions: The careful approach to confidentiality taken by Mr W, the Firm B partner with conduct of the matter, despite some missteps, ultimately helped demonstrate that Firm B took its obligations seriously. When navigating confidentiality’s narrow straits, it helps to keep a clear logbook.

Charting the Wider Seas

This decision fits within a broader trend of English courts taking a pragmatic approach to arbitral confidentiality. Rather than treating it as an absolute principle, the courts recognise that commercial reality demands flexibility. The “sliding scale” approach allows the system to protect genuinely sensitive information while avoiding outcomes that would paralyse the relatively small community of specialist practitioners.

For international firms with offices spanning continents, the message is reassuring. Geographic separation, combined with sensible information barriers and professional conduct, can allow different offices to act in related matters without falling foul of confidentiality obligations.

The judgment stands as a testament to the Commercial Court’s ability to deliver principled yet practical justice – even when that means telling an applicant that their fears of confidentiality breaches, while understandable, don’t justify the nuclear option of disqualifying opposing counsel.

As disputes continue to proliferate and law firms continue to globalise, the delicate balance struck in A Corporation v. Firm B provides a workable framework for managing the inevitable conflicts. It’s a reminder that in the world of arbitration, as in navigation, the key to avoiding hazards is to chart a careful course between them, and that in arbitration, as in life, the best secrets might be those that aren’t really secrets at all.

[1] Section 12, referring to Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co of Zurich UKPC 11 (2003), at section 20.

[2] Section 26.