Sub Judice In International Arbitration (February 2026)

Introduction

The sub judice rule, an age-long Latin-termed rule applicable in common law legal systems, restricts public discussion on matters pending before a court. The rationale behind the restrictions lies in ensuring that the hearings in the matters are fair and impartial, and that external influences do not prejudice the parties involved.

Unlike court proceedings, arbitration is generally private and confidential, raising the question of whether the sub judice rule has any relevance beyond domestic judicial systems. Yet, as certain arbitrations (for instance cases involving public bodies or matters of significant public interest) have increasingly awakened public attention and interest, concerns about external pressure on arbitral tribunals and the confidential settings of the proceedings have emerged.

In this article, the authors explore the extent to which the sub judice rule applies in international arbitration, analyzing arbitral practice under relevant legal frameworks and considering whether arbitral tribunals should exercise powers to restrict potentially prejudicial public statements by parties to the arbitral proceedings pending before the tribunals.

The authors further contrast the sub judice rule with another rule: the res sub judice rule, which addresses parallel issue in civil proceedings.

The Sub Judice Rule

Sub judice rule is a crucial principle for ensuring fair trial, preserving the integrity of judicial process, and maintaining the effective administration of justice. ¹ The term "sub judice" is Latin and can be loosely translated as "under a judge" or "under judgment".² In principle, when a matter is sub judice, it means that it is currently under consideration by a court. The rule is a long-standing rule of practice that prohibits inappropriate public commentaries on matters pending before the courts. The central aim of the sub judice rule is to safeguard fair trials and maintain judicial integrity, particularly in cases where media coverage or public and political commentary may exert undue influence on the perception of the facts and social significance of the matter and therefore on the court's decision.

Historically, the sub judice rule developed as a rule in a form of contempt of court known as contempt ex facie curiae, that is, contempt occurring outside the courtroom. Originating under the English jury system, its early formulation prohibited any comment on pending proceedings as contempt of court. Over time, the rule evolved from criminalizing "any comment" to prohibiting only statements that "tend to prejudice" the outcome of a trial, and later to those creating a "substantial risk of prejudice."³ This shift reflected the need to the balance freedom of expression with the independence of the judiciary. Despite the historical trajectory, the underlying purpose remains the same: to ensure that courts decide cases unhindered by external influences. Accordingly, two critical conditions for invoking the rule are that the matter must be before a court and pending judgment.

Application of the Sub Judice Rule to International Arbitration

Arbitration is an alternative dispute resolution mechanism in which the parties appoint a neutral third party(s) to resolve their disputes. Arbitration becomes international when: (i) the parties have their places of business in different countries at the time of the arbitration agreement; (ii) the place of arbitration, contractual performance, or the subject matter of the dispute lies outside the country where the parties have their places of business; or (iii) the parties expressly agree that the arbitration concerns more than one country.⁴

Notably, unlike litigation, there is no arbitration principle expressly obligating parties in arbitration to refrain from making public commentaries on matters pending before a tribunal. The closest comparable doctrine is in the presumed confidentiality of arbitration. Many parties prefer arbitration precisely because it is perceived as more private and confidential than litigation. Arbitration is often viewed as providing a confidentiality advantage, including decisions on disclosure during proceedings. Yet even international arbitration frameworks do not quite consistently or explicitly guarantee confidentiality.

For instance, the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2021 do not establish a presumption of confidentiality, though they require private hearings. Article 34(5) states that "An award may be made public with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority". A close reading shows that this provision concerns disclosure after the award is made, not during the proceedings while the matter is pending before the tribunal.

Similarly, the International Chamber of Commerce (ICC) Arbitration Rules 2021 do not prohibit publicity of arbitral proceedings or impose confidentiality by default. According to Article 22(3), "Upon request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information". This means confidentiality is optional and contingent on a party's request.

The London Court of International Arbitration Rules (LCIA) 2020 attempt to make confidentiality mandatory, but again primarily in relation to materials and awards. Article 30(1) provides that "the parties undertake as a general principle to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain ...The parties shall seek the same undertaking of confidentiality from all those that it involves in the arbitration, including but not limited to any authorised representative, witness of fact, expert or service provider". Like the UNCITRAL Arbitration Rules 2021, this provision relates largely to post-award confidentiality rather than restrictions on public commentary during arbitration proceedings.

Accordingly, the duty of confidentiality is, at best, implied,rather than express, unless specifically provided in the arbitration agreement, institutional rules, or governing law. Even under the common law, maintaining confidentiality in arbitration is not universally recognized as an express legal obligation. For example, Nigeria's Arbitration and Mediation Act 2023, which incorporates the 2006 UNCITRAL Model Law amendments, does not expressly provide that arbitration hearings are confidential, although an implied duty is recognized. ⁵ Likewise, the United Kingdom Arbitration Act 1996, as amended in 2025, contains no explicit confidentiality provision, with courts recognizing mandatory confidentiality only as an implied obligation. For instance, in Ali Shipping Corp. v Shipyard Trogir,⁶ the English Court established that the private nature of arbitration gives rise to an implied obligation of confidentiality as a matter of law.

By contrast, India's Arbitration and Conciliation Act 1996, as amended in 2021, expressly mandates that arbitrators, institutions and parties maintain the confidentiality of proceedings, except in relation to awards where disclosure is necessary for enforcement.⁷ To be sure, Section 42A of the India's Arbitration and Conciliation Act, 1996 (2019 Amendment) provides that "Notwithstanding anything contained by any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain confidentially of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award." (Emphasis supplied." ⁸

Premised on the above, it is evident that the sub judice rule does not apply to international arbitration. However, some elements of sub judice rule may be spotted in international arbitration only to the extent that confidentiality is made an obligation either by law or agreement of parties. The sub judice rule is rooted in domestic judicial proceedings, designed to restrict public commentary, particularly by the media, in order to shield courts from external pressures. In India, a common law jurisdiction, a Committee of Presiding Officers reviewing the scope of the sub judice rule clarified that it applies only to proceedings before civil and criminal courts and courts martial, and not ordinarily to other judicial or quasi-judicial bodies such as tribunals, which are generally fact-finding bodies.⁹

Arbitration, by contrast, does not involve courts (at least during the merits stage) but rather the parties and their witnesses. It typically concerns matters of private interest and is generally not subject to public scrutiny. Exceptions may arise, however, in investment–state arbitration, which involves disputes between foreign investors and host States. Such cases are usually governed by the rules of the International Centre for Settlement of Investment Disputes (ICSID) or other international arbitral institutions.¹⁰ Nevertheless, –arbitration is of a private and consensual nature rather than judicial nature which is the setting that the sub judice rule ordinarily governs. Therefore, the sub judice rule is not directly applicable to international arbitration

Sub Judice Rule Versus Res Sub Judice Rule

Unlike the sub judice rule, which restricts public commentary about matters pending before a court, the res sub judice rule is a principle that restrains a court from trying a case that is already pending in another court of competent jurisdiction between the same parties and on the same subject-matter.¹¹ It is based on public policy, which aims to confine a plaintiff to a single set of litigation proceedings and to prevent the possibility of parallel proceedings, conflicting decisions, and multiplicity of suits. The sub judice and res sub judice rules differ in many aspects, including their definitions, rationales and purposes, criteria, scope of application, and legal consequences.

In the nature of their application, the sub judice rule regulates speech and commentaries by litigants and external parties like the media that may prejudice judicial decision-making, whereas the res sub judice rule directs courts, tribunals, and even arbitral bodies, to decline jurisdiction, stay proceedings, or otherwise defer to an already-seized forum when the same dispute is pending elsewhere. Essentially, the res sub judice rule regulates adjudicatory competence, while the sub judice rule limits public interference.

Furthermore, while the purposes of the sub judice rule are to safeguard the impartiality of decisionmakers, ensure due process, and protect the appearance of justice being done, the res sub judice rule is justified by the need to avoid duplication of judicial effort, curb the abuse of process, uphold comity between courts or tribunals, and minimize the risk of conflicting judgments. ¹²

Additionally, the sub judice rule is invoked in circumstances where proceedings are pending before a competent court or tribunal, a public statement is made concerning the matter, and such a statement presents a real and substantial risk of prejudice to the fairness of the trial. The res sub judice rule criteria, on the other hand, are that there are two or more proceedings involving the same parties, the same subject-matter, and the proceedings are pending before competent fora with overlapping jurisdiction.¹³ The forum seised of the matter later is expected to stay or dismiss its proceedings to avoid duplication. Whereas a breach of the sub judice rule can amount to contempt of court, attracting penal or disciplinary sanctions, a violation of res sub judice rule may render proceedings voidable, unenforceable, or subject to interdiction or annulment for lack of jurisdiction.

Despite their relevance to arbitration, the sub judice rule, unlike the res sub judice rule, is designed for court systems and does not directly apply to arbitration, whether international or domestic. The res sub judice rule, however, has relevance in arbitration, particularly in cross-border disputes where multiple proceedings may be initiated in courts and arbitral tribunals simultaneously. For instance, in Antrix Corporation Pvt. Ltd. v. Devas Multimedia Pvt. Ltd., ¹⁴ where the parties each invoked the arbitration agreement in different arbitral tribunals under the ICC and UNCITRAL rules respectively, the Supreme Court of India upheld the principle that an arbitration agreement cannot be invoked twice for the same cause of action. The Court stated that once an arbitral tribunal is properly constituted and seised of a dispute, a second tribunal cannot be established for the same dispute, essentially barring the second arbitration from going forward under the doctrine of res sub judice. This doctrine intersects with other principles such as lis pendens, res judicata and abuse of process.

Conclusion

The sub judice rule plays a pivotal role in safeguarding the integrity of judicial proceedings and promoting the independence of the judiciary. However, as a common law doctrine rooted in domestic court practice, it has no direct application in international arbitration, where proceedings are, at least, impliedly, generally private and confidential. Arbitral hearings typically take place outside public scrutiny and primarily concern the interest of private individuals.

Exceptions may, however, arise in investor-state arbitration and certain forms of commercial arbitration where proceedings attract political attention or involve issues of public interest and commentary. Even in such cases, it is the parties' agreement, the institutional rules, or governing law that dictates confidentiality and publicity, not the sub judice rule.

By contrast, the related doctrine of res sub judice holds greater relevance in arbitration, as it prevents parallel proceedings before different arbitral tribunals or between an arbitral tribunal and a court. In this way, it preserves procedural efficiency, avoids conflicting decisions, and strengthens the legitimacy of the arbitral process.

Footnotes

1 AG v Times Newspaper Ltd. (1974) AC 273.

2 Ridhima Chandani, 'The Rule of Sub Judice & Freedom of Speech and Expression: Scope and Restrictions', (2022) International Journal of Law Management & Humanities, 5(3) 1071.

3 The Sub Judice Rule - Briefing Note by Glenn Penfold, Webber Wentzel Bowens for the South African National Editors' Forum.

4 UNCITRAL Model Law on International Commercial Arbitration, Article 1(3).

5 See Nigeria's Arbitration and Mediation Act 2023, First Schedule (Arbitration Rules), articles 29(3) and 42(5).

6 [1999] 1 WLR 314; see also Dolling-Baker v Merrett [1990] 1 WLR 1205.

7 See Section 42A of the India's Arbitration and Conciliation Act, 1996, as amended in 2021

8 Ibid, available at https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_46_00004_199626_1517807323919&orderno=47 accessed February 17, 2026.

9 Ridhima Chandani (fn 2), 1073.

10 Phillip Oladimeji, 'Investor State Dispute Settlement (ISDS) and the Nigerian Legal Judicial Regime', SSRN, (2023) 3. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4571432

11 Umar Tipu, 'Doctrine of Res sub judice and Doctrine of Res judicata', (2020), SSRN, 2. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3714151 .

12 Ibid, 5

13 Ibid.

14 [2013] (2) ARBLR 226 (SC); Also see National Thermal Power Corporation (NTPC) v. Singer Company et al. (1992] 3 SCC 551).

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