Non Disclosure Agreement Arbitration Clause Template for England and Wales

An arbitration clause in an NDA ensures that disputes about alleged disclosures remain confidential. Court proceedings are public by default in England and Wales, which could expose the very confidential information the NDA is meant to protect. Arbitration is private, and the proceedings and award can be kept confidential under an express confidentiality agreement between the parties and the arbitral institution.

No. There is no general implied duty of confidentiality in English arbitration law (unlike in some other jurisdictions). Parties should include an express confidentiality obligation covering the arbitration proceedings, any evidence produced, and the award itself. Institutional rules (such as the LCIA or ICDR rules) may provide some confidentiality protections, but a bespoke clause in the NDA itself is the most reliable approach.

Yes, and it's advisable. Naming an institution (such as the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), or the Chartered Institute of Arbitrators (CIArb)) provides ready-made procedural rules, tribunal appointment mechanisms, and institutional support. Ad hoc arbitration without an institution is possible under the Arbitration Act 1996, but managing the procedure independently can be complex and costly.

An arbitral tribunal in England and Wales can award compensatory damages, account of profits (in some cases), and interest. However, arbitrators cannot grant interim injunctions with the same speed and authority as the English High Court, which can grant freezing orders and search orders on an emergency basis. Many NDA arbitration clauses therefore carve out the right to seek emergency court relief pending the arbitration.

The Trade Secrets (Enforcement, etc.) Regulations 2018 provide a statutory framework for protecting confidential business information in England and Wales, but proceedings under those regulations must be brought in the courts. Where an NDA contains an arbitration clause, the parties contractually agree to use arbitration instead. The arbitral tribunal applies English law, including the standards set by the Regulations, when determining whether a breach occurred.

Yes, specifying England (or England and Wales) as the seat (or legal place) of the arbitration is important. The seat determines which national court has supervisory jurisdiction over the arbitration, the applicable procedural law, and the grounds on which an award can be challenged. Specifying the seat in the NDA avoids costly disputes about jurisdiction at the outset of any dispute.

With care. Section 203 of the Employment Rights Act 1996 means that a settlement agreement compromising statutory employment rights must meet strict formality requirements (including independent legal advice). An arbitration clause in a workplace NDA can validly resolve contractual claims (such as breach of a confidentiality obligation) but cannot override statutory rights. Any such clause must be carefully drafted to avoid inadvertently waiving unwaivable rights.

LCIA arbitration in London typically concludes within 18 to 24 months for complex disputes. High Court litigation is often comparable in duration but is more variable. Arbitration offers the advantage of a fixed timetable and a specialist tribunal, while court proceedings benefit from broader disclosure powers and easier enforcement of interim injunctions. For NDA disputes involving urgently needed injunctive relief, parties often combine arbitration with a court carve-out.