Confidentiality is one of arbitration's traditional selling points, yet for most of the 1996 Act's life it rested on assumption rather than statute. The Arbitration and Conciliation (Amendment) Act, 2019 changed that by inserting Section 42A: notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all arbitral proceedings except the award, where its disclosure is necessary for the purpose of implementation and enforcement of the award. The section is a single sentence doing heavy work — and leaving visible gaps. This explainer examines what it covers, where it runs out, and how commercial parties in Delhi should build around it.
What the section covers
Three features of the text deserve close reading. The non-obstante opening — "notwithstanding anything contained in any other law" — gives the duty statutory priority. The scope — "all arbitral proceedings" — is naturally read to embrace the pleadings, documents, evidence, transcripts, orders and the existence and conduct of the reference itself. And the sole express exception — the award, where disclosure is necessary for implementation and enforcement — confirms that the drafters expected awards to surface in execution and challenge proceedings. Within the hearing room, then, the statute now supplies what parties once had to contract for: a default rule that what happens in the arbitration stays there, binding the tribunal, any administering institution, and the parties.
Where it runs out
Unnamed participants
Witnesses, experts, interpreters, transcribers, third-party funders — outside the section's named trio, bound only if undertakings are taken.
The courtroom
Sections 9, 11, 34, 36 and 37 proceedings are public by default; filings there escape the arbitral bubble unless the court orders protection.
Compelled disclosure
Statutory, regulatory, tax and stock-exchange obligations compel disclosure the section's non-obstante clause was not designed to suppress.
No remedy clause
The section creates a duty without a sanction — enforcement rides on contract, interim relief and professional discipline.
These gaps are not drafting accidents so much as the limits of what a one-sentence provision can do, and comparative arbitration law treats each of them as requiring detailed rules. Institutional frameworks commonly supply some of that detail, which is one of several reasons administered arbitration serves confidentiality better than ad hoc references.
Contracting around the gaps
Parties for whom secrecy genuinely matters — disputes involving trade secrets, pricing, unreleased products, sensitive personnel facts — should treat Section 42A as the floor and build upward. The working toolkit: a confidentiality clause in the arbitration agreement defining protected information, permitted disclosures (professional advisers, insurers, auditors, enforcement) and survival after the award; procedural orders at the first hearing extending obligations to witnesses, experts and service providers by signed undertaking; a confidentiality ring or attorneys-eyes-only tier for the most sensitive documents; agreed redaction protocols for any court filing; and, where litigation spillover is foreseeable, prompt applications to the court for sealing or in-camera treatment of identified material, supported by specific — not generic — justification. Tribunals in Delhi routinely make such orders on consent, and the moment to seek them is before sensitive material enters the record, not after.
A caution in the other direction: confidentiality obligations do not license concealment from courts or regulators, and they cannot be deployed to suppress evidence of fraud or to frustrate enforcement. Section 42A's own exception recognises that an award must travel to the executing court; a party resisting disclosure that the law compels will find the non-obstante clause a weaker shield than it appears.
Practical significance for Delhi commercial parties
The statutory duty has changed behaviour at the margins — institutions mark records confidential, tribunals recite Section 42A in first procedural orders, and parties invoke it against press briefings by opponents. But the deeper lesson of the provision is architectural: confidentiality in Indian arbitration is a system built from statute, contract, procedural order and court practice together, and it is only as strong as its weakest layer. Counsel who address all four layers at the outset of a reference — and who plan the litigation-facing layer before any Section 9 or Section 34 filing — deliver the confidentiality clients believe they bought when they chose arbitration.
The chamber of Advocate Manish Jha advises on arbitration agreements, proceedings and enforcement before tribunals, the High Court of Delhi and the Supreme Court of India. This article is for general information; it is not legal advice and does not create an advocate-client relationship.
Frequently Asked Questions
Who is bound by Section 42A?
By its text: the arbitrator, the arbitral institution and the parties to the arbitration agreement. Witnesses, experts, stenographers, transcription services, funders and consultants are not named — a real gap, conventionally closed by confidentiality undertakings obtained from every participant through procedural orders or contract.
Does confidentiality end when a party goes to court?
Court proceedings connected with an arbitration — Section 9 interim measures, Section 11 appointments, Section 34 challenges, Section 37 appeals — are ordinarily conducted in open court, and pleadings there enter a public record. Section 42A does not convert litigation into a sealed process; parties seeking protection in court must apply for confidentiality of specific documents under the court's own procedures, which is granted sparingly.
Can the award itself be disclosed?
Yes, to the extent the statute itself excepts: disclosure of the award is permitted where necessary for implementation and enforcement. Enforcement under Section 36, resisting or bringing a challenge, and disclosures compelled by law — tax, regulatory and reporting obligations, or listed-company disclosure requirements — operate as practical limits on the confidentiality rule.
What is the remedy for a breach of Section 42A?
The section prescribes none. A wronged party's realistic remedies are contractual — damages or injunctive relief where a confidentiality clause or undertaking exists — and, during a live reference, interim measures from the tribunal or the court restraining threatened disclosure. This remedial silence is the strongest reason to supplement the statute with express contractual confidentiality.