Confidentiality vs. the Principle of Public Access

Confidentiality is often one of the key reasons why parties choose arbitration over litigation. While arbitration proceedings are ongoing, confidentiality can usually be maintained through the applicable arbitration rules or by the parties’ express agreement.

However, once an arbitral award is issued and a party decides to request the court at the seat of the tribunal (in Switzerland the Swiss Federal Supreme Court) to set it aside, the matter becomes subject to the procedural rules of state courts, which frequently include rights of public access to certain information (Öffentlichkeitsprinzip).

This also applies as a general rule to setting-aside proceedings before the Swiss Federal Supreme Court. Pursuant to the Swiss Federal Supreme Court Act, hearings (if applicable), oral deliberations, and votes are generally public. Decisions not rendered after public deliberations (which are the vast majority) must be made publicly available at the Court during 30 days in non-anonymised form, and all decisions are published online in anonymised form. All these requirements implement the constitutional principle of public access, which serves to promote transparency in judicial proceedings.

In a recent judgment, the Swiss Federal Supreme Court reaffirmed that the principle of public access applies equally to arbitration-related proceedings. It noted in particular that in the latest revision of the chapter on international arbitration in the Swiss Private International Law Act (PILA) the legislator did not provide for a general exemption for arbitration matters.

Request to exclude the Public and/or for Non-Publication

That said, under the existing procedural rules, the parties may request to exclude the public and waive the publication of decisions, provided that they can demonstrate a legitimate interest that outweighs the significant public interest in transparent jurisprudence.

In its recent decision (4A_605/2024 dated 22 April 2025), the Swiss Federal Supreme Court clarified that the absence of a general exemption for arbitration does not prevent the Court from considering the specific nature of setting-aside proceedings in arbitration matters when deciding on exceptions to the principle of public access. However, it stressed that a general desire for confidentiality, even if shared by both parties, is not by itself sufficient to justify excluding the public. A request to exclude the public must therefore demonstrate a special reason such as an elevated need for confidentiality or a significant threat to personal rights. The Court reaffirmed that arbitration-specific interests justify a more lenient application of the exception. Importantly, it emphasised that the principle of public access should not deter a party from seeking judicial protection for fear of publicity. In the case at hand, the Swiss Federal Supreme Court granted the request and did not publish the decision, except for its considerations on the principles of public access.

In practice, parties seeking to maintain confidentiality to the greatest extent possible may consider agreeing to a waiver of their right to setting-aside proceedings in accordance with Article 192 PILA (whereas careful drafting is required). And even if a setting-aside application is filed against an award, the Court will consider confidentiality concerns and assess requests on a case-by-case basis. Hence, a setting-aside request does not automatically strip the matter of its confidential nature.

Should you require legal advice in the field of arbitration, please do not hesitate to contact us.