English Commercial Court Orders Publication Of ASI Judgment Despite Arbitration Privacy Objection

A recent judgment of the English Commercial Court has confirmed that the open justice principle can require publication of arbitration-related judgments even where the hearing was held in private ([2026] EWHC 534 (Comm)).

CPR 62.10 ordinarily requires arbitration claims to be heard in private, but that does not necessarily mean that the resulting judgment should not be published. In a ruling dated 9 March 2026, Green J ordered publication of his substantive judgment ([2026] EWHC 403 (Comm)), rejecting the claimant law firm's objection that privacy should be maintained pending appeal. The Court found no good reason to derogate from the open justice principle in circumstances where no significant confidential information was disclosed. The ruling is a practical reminder that bringing an arbitration-related claim in the Commercial Court carries a real risk that the corresponding judgment may be published.

Background

A City law firm (the Firm) applied to the Commercial Court for an anti-suit injunction (ASI) to restrain its employee who was the equivalent of a partner (the Partner) from pursuing employment proceedings he had commenced in Dubai. The Firm relied on an arbitration agreement in its partnership documents. Green J dismissed the application, finding that the Firm had not established to the requisite high probability that a valid and binding arbitration agreement covered the matters in dispute (the Judgment).

After the Judgment was handed down, the Firm objected to its publication on two grounds: first, that publication should be deferred until any appeal was resolved, given a "reasonable expectation that the normal privacy of arbitration claims would apply"; and second, that “its contractual and remuneration structures and arrangements with partners and equivalents were of a nature typically regarded as commercially sensitive”.

Decision

The legal framework

The Partner argued that the Judgment should be published, relying on the principles set out by Mance LJ in Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314 [2005] QB 207 (City of Moscow), which have since been endorsed in Manchester City Football Club Ltd v The Football Association Premier League Ltd [2021] EWCA Civ 1110. In those cases, the Court ordered full publication of the judgments despite the hearings having been held in private, noting that no significant confidential information had been disclosed. 

The Court identified the following principles from City of Moscow as relevant (at [7]):

• CPR 62.10 concerns the hearing, not the publication of the resulting judgment; a reasoned judgment "stands at a different point on the spectrum to the hearing itself, and so raises distinctly different considerations."
• Even where the hearing was in private, the judgment should be made public "where this can be done without disclosing significant confidential information."
• There is a balancing exercise: the factors in favour of publishing must be weighed against the desirability of preserving the confidentiality of the original arbitration and its subject matter. 
• The Court must consider primarily the interests of the parties before it; the concerns of other parties cannot be a dominant consideration. 

Application to the facts

The Court noted that it was not clear whether the principles in City of Moscow were “wholly applicable to a case like this”, given that there was no arbitration and instead a finding that there was not a high probability of a valid and enforceable arbitration agreement. Those were, in the Court's view, important factors favouring publication. This point was reinforced by the fact that the case law cited by the Firm in favour of the grant of an ASI to enforce an arbitration agreement were all published judgments.

Ultimately, the Court rejected both grounds relied on by the Firm for the following reasons:

• On the appeal point: the Firm's expectation of privacy rested on the premise of a valid arbitration agreement. The Court recognised that there is a spectrum, with a private arbitration at one end (although in this case there was no arbitration) and an order of the Court at the other. Here, the Court held that the Judgment fell much closer to the open justice end of the spectrum, particularly given there was not a high probability of a valid and enforceable arbitration agreement. 
• On commercial sensitivity: there was no significant confidential information disclosed in the Judgment and the Firm failed to identify specific passages requiring redaction. The Judgment made no reference to the details of the members' agreement for equity partners or the value of the relevant profit-sharing units. The mere fact that the Firm operated a lockstep model was neither unexpected nor commercially sensitive and such arrangements are commonly discussed in published employment judgments. 

The Court directed publication no earlier than seven days after delivery of the ruling, giving the Firm the opportunity to apply to the Court of Appeal for a stay on publication.

Comment

Although claims under CPR Part 62 are normally heard in private, City of Moscow recognises a wide spectrum between a private arbitration and a published judgment. This case fell much closer to the open justice end of that spectrum, given: (i) the Court had found in the Judgment that there was not a high probability of there being an arbitration agreement covering the dispute between the parties and (ii) there was no real confidential material referred to in the Judgment.

The practical lesson for those considering pursuing arbitration-related court applications is clear: any such application should be pursued on the basis that the resulting judgment may be published. Where the existence of the arbitration agreement is itself in dispute, the risk of publication is greater. Moreover, generalised assertions of commercial sensitivity will not displace the open justice principle. A party seeking to prevent or defer publication must identify specific passages containing significant confidential information. Blanket references to the sensitivity of internal arrangements will not suffice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.