Confidentiality is seen by corporate lawyers as one of the most important advantages of arbitration. Whereas court proceedings are in principle public, arbitration takes place in confidence. This difference is of great importance in practice, especially in commercial disputes involving sensitive information, strategic choices and reputation. Think of disputes about contractual agreements, intellectual property, joint ventures or acquisitions, where disclosure of details can have significant consequences. This can be particularly valuable for companies, as it limits the risk of reputational damage or the leakage of sensitive information.
‘The confidentiality of arbitration is of great value to us as a technology company. We do not want to run the risk of competitively sensitive information becoming public or our reputation being unnecessarily damaged.’ Quote from company lawyer
Confidentiality as a principle of arbitration in the Netherlands
Although the Arbitration Act 2015 does not contain any explicit provisions on confidentiality, it is widely accepted in Dutch arbitration literature that the confidential nature of arbitration is a principle of unwritten Dutch arbitration law. This means that parties who opt for arbitration can expect that information about their dispute will not be made public, unless they agree otherwise. Such deviating agreements may be explicitly laid down in the arbitration agreement or follow from the applicable arbitration rules. This allows the parties themselves to control the degree of confidentiality.
The NAI considers the confidentiality of arbitration to be important and has therefore included a provision to that effect in the NAI Arbitration Rules.
Article 7 – Confidentiality of arbitration and publication of awards, orders and decisions
1. Arbitration is confidential and all persons directly or indirectly involved in arbitration are bound to secrecy, except and insofar as disclosure is required by law or the agreement between the parties.
2. The responsible member of the NAI Case Management Committee will send the candidate arbitrator a confidentiality statement. The responsible member of the NAI Case Management Committee will first send the declaration referred to in Article 13(3), the request for arbitration, the brief response and other (procedural) agreements between the parties to the candidate arbitrator after receiving confirmation of confidentiality.
3. The NAI is authorised to publish (or have published) a judgment, an assignment and a challenge decision, without mentioning the names of the parties and omitting any further information that could reveal the identity of the parties, unless a party has lodged an objection with the NAI Secretariat against the assignment or the challenge decision within two months of the date of the judgment. has lodged an objection to the NAI Secretariat against the assignment or the challenge decision.
It follows from the above that the parties may also agree that certain parts of the arbitration are public. For example, when public interests are at stake, the parties may agree that the arbitral award may be published.
Confidentiality and transparency
Legal literature distinguishes between non-publicity and confidentiality. Non-publicity refers to the closed nature of the proceedings: only the parties and those directly involved, such as arbitrators and representatives, participate in the hearing, for example. This contrasts with court proceedings, where hearings are in principle open to the public.
Confidentiality goes a step further and concerns the secrecy of all information about the dispute, the procedural documents and the arbitral award. This means that not only are third parties excluded from participation, but also that information about the proceedings may not be shared without further ado. For many parties, it is precisely this confidentiality that is essential, because it allows them to be completely open without fear of external consequences.
In addition, transparency is an increasingly important social issue. In the context of arbitration, this involves a certain degree of disclosure of information relating to arbitral proceedings, which in themselves are and remain confidential. Examples include the publication of anonymised arbitral awards, challenge decisions or information about the appointment of arbitrators.
The NAI also considers transparency about arbitration proceedings to be important. The aim is to provide insight into the quality and reliability of arbitration without compromising the confidential nature of the proceedings. The NAI promotes transparency by means of:
1. The publication of anonymised arbitral awards in the Journal of Arbitration (Article 7(3) of the Rules)
2. The publication of the persons on the NAI list of arbitrators since December 2025. Read the news item here.
3. Publishing all appointments in NAI proceedings since 2020. The overview shows which arbitrators (i) were nominated by the parties, (ii) were appointed via the list procedure or (iii) were appointed directly by the NAI. It also shows when the appointments took place.
Finally, it shows which arbitrators have served together on an arbitral tribunal.
4. In addition, the NAI is transparent about its governance and the Arbitration Rules specify who takes which procedural decisions. For example, the board has no insight into or influence on the outcome of individual cases.
Difference with court proceedings
The difference with court proceedings is considerable. Civil proceedings are generally public: hearings are open to the public and judgments are published. As a result, sensitive business data, financial information or strategic considerations may become known unintentionally. This can lead to reputational damage and disruption of business relationships.
Conscious choice for appropriate dispute resolution
It is essential for corporate lawyers and transaction lawyers to understand the importance of confidentiality.
Would you like to know more about the differences between court proceedings and arbitration? Read our explanation of the differences between arbitration and court proceedings at NAI arbitration compared to the courts and other institutions – NAI.
