Are Arbitration Proceedings Truly Confidential?

Manchester City Football Club v The Football Association Premier League [2021] EWCA Civ 1110

Background

The Premier League conducted an investigation into Manchester City. During this investigation, they requested certain documentation from the club. Manchester City refused to provide the documents requested and, as a result, the parties entered into arbitral proceedings. It is important to note that one key advantage of arbitration proceedings over Court proceedings is the possibility of keeping matters confidential.

In June 2020, Manchester City applied to the Court under Section 67 – 69 Arbitration Act 1996 to challenge the arbitration award. Within the application, they sought to challenge the jurisdiction of the tribunal and further alleged that the tribunal was tainted with bias.

In March 2021, the Court dismissed the application and refused permission to appeal the arbitration award. Interestingly, the Judge indicated that she was minded to publish her decision coming to the conclusion that the publication of the judgment would not result in the disclosure of any confidential information and actually it would only disclose the existence of the dispute and arbitration. The parties both opposed this arguing that arbitration proceedings should remain confidential.

Manchester City applied to the Court of Appeal to appeal the Judge’s decision to publish the judgment.

What was decided?

When coming to their decision, the Court of Appeal considered a number of different factors including:

1. Public Interest – They came to the conclusion that it would be in the public’s interest to publish the judgment, particularly, as the judgment did offer a particularly helpful precedent;
2. Objection – The fact that both parties had objected to the publication did hold some weight in the Court of Appeal coming to their decision; and
3. Prejudice – Manchester City argued that if the judgment was published it would prejudice their position. The Court of Appeal did not accept this on the basis that the publication would only disclose the existence of the arbitration – it would not disclose the full substance of the underlying dispute.

Weighing up the above, the Court of Appeal decided to dismiss the appeal and upheld the decision of Moulder J to publish the judgments.

Comment

The above acts as a helpful reminder that, whilst it is possible to keep the subject matter of an arbitration confidential, once an application has been made to the Court to appeal any aspect of the arbitration, there is a possibility that some information from the arbitration will be published and therefore will become publicly available.