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The Singapore Court of Appeal recently declined an application by India to keep court proceedings relating to the enforcement of an investment arbitration award confidential for reasons including the proceedings having been publicised in the media and through social media. We consider the implications for parties concerned about confidentiality of arbitration related court proceedings.
Background and the Court of Appeal judgment
The case was part of a long-running dispute between an Indian state owned entity (Antrix) and foreign investors involved in leasing capacity on Indian satellites. When Antrix terminated the satellite leasing agreements, one of the investors, Deutsche Telekom AG, commenced investment arbitration proceedings (seated in Geneva) against India alleging breach of a Germany-India BIT. It obtained a favourable award, and obtained leave from the Singapore High Court to enforce the award in Singapore.
India applied to set aside the leave order, but this was rejected by the Singapore International Commercial Court. India appealed to the Singapore Court of Appeal. It sought a “privacy order” in these appeal proceedings to allow its appeal to be heard in private, information/ documents to be concealed, the case file to be sealed and the parties not to be identified in hearing lists or any published judgments or orders.
The Singapore Court of Appeal declined to make the privacy orders. The court affirmed the confidentiality of arbitration and related court proceedings under Singapore law (as provided under Singapore’s International Arbitration Act 1994 (“IAA”)), but explained that such protection only applied insofar as the proceedings remained confidential. Here, this had already been lost through a series of partial disclosures: (i) the underlying arbitration awards were available on third party websites; (ii) a related Swiss judgment relating to the arbitration was publicly available and identified India (even though the other party names were redacted); (iii) an article in the Global Arbitration Review (apparently verified by India’s counsel) expressly identified India and Deutsche Telekom as parties and (iv) India’s Singapore lawyers had published LinkedIn posts identifying the parties and the value of the award. In these circumstances, the court would not conduct an “empty exercise” to maintain privacy of the enforcement proceedings [28-29], and the principle of “open justice in curial proceedings” would prevail [24, 27].
The Court also rejected arguments that the orders were needed to protect India’s reputation. The court rejected this argument, holding that “The private interest of a party not to be seen in an adverse light does not warrant a grant of privacy orders in a departure from the principle of open justice.” [45]
Conclusion and observations
In this age of quick information access and social media, this judgment illustrates the ease with which confidentiality may be lost through a collective swathe of information being fed into the public domain. Whilst limited disclosures may occur (such as a judgment in which party names are redacted), the situation in this case was very different and involved multiple voluntary disclosures which perhaps could have been managed in a more rigorous way so as to avoid the issues which arose later.
It is particularly significant that this decision comes from Singapore, as the default setting of its regime is robust protection of arbitration confidentiality. Specific protections under the IAA include that the arbitral tribunal is expressly empowered to enforce the parties’ confidentiality obligations [s 12(j), IAA]; arbitration-related court proceedings are to be heard in private by default [s 22, IAA]; the court may issue directions relating to whether and what information may be published about arbitration-related court proceedings, and may order redaction of party names [s 23, IAA]; and where case reporting (despite redaction) is likely to reveal the matter, the court may direct that no report be published for a period not exceeding 10 years. Singapore courts have also followed an approach of minimal curial intervention by declining to rule on substantive issues of confidentiality which were before an arbitration tribunal (see our post here).
However, the Singapore courts retain a discretion to order a public hearing and to permit disclosure of information about the proceedings. This is largely similar to the confidentiality regime in the UK, where the Civil Procedure Rules (CPR 62.10) generally call for privacy of arbitration-related court hearings, albeit with the court’s discretion to hold them in public. Furthermore, even if the court proceedings are in private, English courts have, on occasion and weighing any public interest against the impact on any confidentiality concerns, permitted publication of a judgment even when both parties had opposed it.
Returning to the investment treaty context, the additional public interest element in such cases (as recognised in, for example, the UNCITRAL Transparency Rules) may affect the equation in such matter. Courts might be more averse to granting or maintaining confidentiality protection in respect of court hearings for such claims.
We act for a large number of parties globally who are actively having to deal with the issues in arbitrations (such as maintaining confidentiality as described above) and can provide expert and informed advice (including on an urgent basis) if you are facing, or anticipate facing, such issues.13 July 2023
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