Confidentiality of arbitration proceedings may not always be protected - The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4

In general, arbitration proceedings are confidential. Arbitration-related cases which end up in the courts often are reported only after the names of parties have been anonymised, and it is quite common for a sealing order to be issued on the court file, so as to preserve the confidential nature of the arbitration.

Introduction

In general, arbitration proceedings are confidential.¹ Arbitration-related cases which end up in the courts often are reported only after the names of parties have been anonymised, and it is quite common for a sealing order to be issued on the court file, so as to preserve the confidential nature of the arbitration. In the recent case of The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4, the Singapore Court of Appeal ("CA") considered an application for a sealing order. The court examined the relevant legislation and concluded that while court proceedings relating to arbitration are typically kept private, nevertheless the court does have the power to order an open hearing.² The CA considered the significance of sections 22 and 23 of the International Arbitration Act 1994 (2020 Rev Ed) ("IAA") to determine the nature of interest in confidentiality that has to be protected, which was the confidential nature of the arbitration itself. As the confidentiality of the Arbitration in this instance had already been substantially lost, the court found that it would be in the interests of open justice not to grant the sealing order and accordingly dismissed India's application.

Background facts

The appellant, the Republic of India ("India"), owned an entity, Antrix Corporation Ltd, which entered into an agreement with Devas Multimedia Private Limited ("Devas").The agreement was later terminated. The respondent, Deutsche Telekom AG ("DT"), a company incorporated in Germany, was a shareholder of Devas. DT had initiated arbitration proceedings ("Arbitration") in Switzerland, against India, alleging that India's termination of the agreement violated an investment treaty between India and Germany. DT obtained an award in its favour and subsequently commenced enforcement proceedings in Singapore; it obtained an ex parte order of court granting leave to enforce the award in Singapore.

India applied to set aside the order granting leave for DT to enforce the award. The Singapore International Commercial Court ("SICC:") heard and dismissed India's application, and India then appealed against the SICC's decision and additionally sought an application for a sealing order to protect the confidentiality of the Arbitration. 

Decision

In this instance, the CA had to consider India's application for a sealing order. India based its application on two grounds:³

i. Sections 22 and 23 of the IAA read with Order 16, rule 9(1) of the Singapore International Commercial Court Rules 021 and/or
ii. The court's inherent powers

India's case was substantially grounded on the fact that the sealing order was necessary to protect the confidentiality of the Arbitration. Even though some information on the Arbitration had already been made available online, India argued that the confidentiality of the Arbitration had not been entirely lost. India also alleged that it faced a risk of suffering prejudice if the sealing order was not granted as information on the Arbitration had been relied upon by external parties to negatively portray India. 

DT argued that the application for a sealing order was of no real value given that the information relating to the Arbitration and other proceedings was already available to the public. DT also argued that the court's inherent powers were reserved to cases where it was in the interests of justice to use them, and this was not such a case. 

The CA stated in its decision that a court may grant a sealing order pursuant to its inherent powers. However, in light of the principle of open justice, "imposing a cloak of privacy on court proceedings" is treated as an exception rather than the norm.⁴ This exception might apply to prevent a miscarriage of justice, for instance.⁵ Usually, arbitration proceedings are heard in private by default without the need for application by a party, pursuant to s. 22 of the IAA. Similarly, O. 16 r. 9(1)(a) and O. 16 r. 9(1)(b) of the SICC Rules 2021 also give the court the ability to preserve the confidentiality of proceedings. 

However, in this particular case, there were multiple instances where information relating to the Arbitration had already been disclosed, both in Singapore and abroad.⁶ Accordingly, the CA held that "there was insufficient basis to override the strong interest in open justice in curia proceedings."⁷

Conclusion

The decision of this case is useful in illustrating that the confidentiality of an arbitration proceeding may not always be protected if the parties do not take the relevant precautionary measures to ensure that information is not released to the public.

Disclaimer

This article is produced by lawyers of Premier Law LLC, a constituent Singapore law practice of RPC Premier Law which is a Joint Law Venture with international law firm Reynolds Porter Chamberlain (RPC). 

¹ For instance, see Rule 39 of the Singapore International Arbitration Centre SIAC Rules 6th Edition

² Section 22(2) of IAA

³ Paragraph 8 of the Judgment

⁴ Paragraph 24 of the Judgment

⁵ Paragraph 15 of the Judgment

⁶ Paragraphs 31 to 37 of the Judgment

⁷ Paragraph 28 of the Judgment