Airbus Canada Limited Partnership v Joint Stock Company Ilyushin Finance Co.

Arbitration claims ordinarily begin with a presumption of privacy, reflecting the private nature of arbitration. State-court proceedings remain subject to the open justice principle unless privacy is necessary in the interests of justice. Where departure from open justice is necessary, the court must adopt the most proportionate response. The order should interfere with open justice no more than is required to protect the identified interest. Possible measures include a private hearing, a published judgment with limited redactions, and anonymisation.

The claimant applied in connection with an arbitration claim arising at an early stage of the arbitration. It sought an order that the hearing take place in private because the evidence contained commercially confidential material which the parties legitimately expected to remain protected by the confidentiality of their arbitration.

The court had to determine whether the hearing should be private. It also considered the distinct question whether the judgment should be published and, if so, whether redactions or anonymisation would be required.

1. Private hearing ordered. Arbitration claims ordinarily carry a presumption that the hearing will be private because arbitration is a private process agreed between the parties. That presumption does not determine the treatment of proceedings in an English state court, where the open justice principle applies unless the court orders otherwise.
2. The touchstone for departing from open justice is whether privacy is necessary in the interests of justice. The court must identify the relevant necessity rather than treat the private character of the arbitration as conclusive.
3. The response must be proportionate. The court should select the measure which produces the most limited interference with open justice while providing the protection that the necessity of the particular case requires. The available measures include a wholly private process, a private hearing with a published judgment, redactions of commercially sensitive material, and, where necessary, anonymisation.
4. Here, the early stage of the arbitration and the presence of commercially confidential evidence justified holding the hearing in private. The question of publication, redaction and anonymisation could only be determined after judgment. The court indicated that limited redactions in a confidential schedule were likely to provide sufficient protection.

not stated in the judgment.