PROTECTING PRIVACY OF ARBITRATION ENFORCEMENT PROCEEDINGS
In The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4, the Court of Appeal dealt with the legal basis on which the court may make orders to protect the privacy of arbitration enforcement proceedings in Singapore.
Brief background. In brief, the respondent, Deutsche Telekom AG (“DT”), had commenced arbitration proceedings against the Republic of India (“India”) contending that India had violated a bilateral investment treaty between India and Germany. After obtaining a final award in its favour, DT commenced proceedings in Singapore in HC/OS 900/2021 (the “OS 900 Enforcement Proceedings”) to enforce the final award and obtained an ex parte order of court granting leave to do so.
In doing so, DT had applied in the summons for the OS 900 Enforcement Proceedings as well as other applications filed in relation to them to not be heard in open court and “for information relating to the OS 900 Enforcement Proceedings, SUM 4109 and the parties’ identities to be concealed, for the court file to be sealed and for any published report of the judgment or grounds of decision to be redacted.” ([5]). A consent order was obtained to this effect.
India then applied to set aside the ex parte leave order. The proceedings were then transferred to the Singapore International Commercial Court (“SICC”), which eventually dismissed India’s application to set aside the ex parte order.
India then brought the appeal (“CAS 1”) against the dismissal of India’s application to set aside the ex parte order.
The application. The application before the Court of Appeal, CA/SUM 4/2023 (“SUM 4”), pertained to India’s application to seek the following orders (the “SUM 4 Orders”):
“(a) that CAS 1 and any application filed in CAS 1, including this application, be heard in private;
(b) that any information (including the identities of the parties) or document relating to CAS 1 or any application filed in CAS 1 not be revealed or published and be concealed;
(c) that the court file for CAS 1 be sealed from inspection by any third parties;
(d) that the identity of the parties not be identified in any hearing lists;
(e) that, if any judgment or grounds of decision is given in CAS 1, this application, or any other applications filed in CAS 1, there be no publication, including in any law report or professional publication, of the identities of the parties or any other information that may reveal the identities of the parties; and
(f) costs of and incidental to this application be in the cause of the appeal in CAS 1.”
In brief, India contended that the SUM 4 Orders were necessary to protect the confidentiality of the Arbitration and that it would be in the interests of justice to do so as otherwise, India would suffer prejudice as information relating to the Arbitration had already been misused by third parties.
This was opposed by DT who argued that the SUM 4 Orders would serve no real purpose as information was already in the public domain, that the previous consent order was not relevant or material given the information presently available in the public domain, that the principle of open justice should be the predominant consideration, and there was a lack of nexus between the OS 900 Enforcement Proceedings and the alleged misuse of information.
The interest of confidentiality that is protected. After stating that the general rule is that the making of privacy orders is an exception ([14]), the Court noted that the Court’s power to grant privacy orders has been statutorily provided for in ss 22 and 23 of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”) ([15]).
In this regard, the effect of s. 22(1) IAA is that proceedings under the IAA are “to be heard in private by default” and this is “without the need for any application by a party” ([16]).
Nonetheless, the Court noted that ss 22 and 23 IAA shed “limited light on the nature of the interest of confidentiality that is protected” ([17]).
After analysing the UNCITRAL Model Law on International Commercial Arbitration and the enactment of the IAA and the amendment leading to the present iteration of s 22 of the IAA, the Court held that the confidentiality interest that was meant to be secured is “ultimately linked to protecting the confidentiality of the arbitral proceedings by ensuring that the related court proceedings are heard in private” (emphasis in original; [21]), and that the interest in keeping enforcement proceedings confidential “is essentially a derivative interest designed ultimately to protect the confidentiality of the underlying arbitration” ([23]).
Hence, as held at [24], “… where the confidentiality of the arbitration has been lost, then the principle of open justice would weigh strongly in favour of lifting the cloak of privacy that has been provided for by the statute.”
The application. The Court then found that as the confidentiality of the arbitration had been lost, there was no basis for maintaining the confidentiality of the OS 900 Enforcement Proceedings ([27]).
In this regard, the Court gave significant weight to the fact that the interim and final awards issued in the arbitration were available online ([31]), along with the Swiss Federal Supreme Court’s decision refusing India’s application to set aside the interim award ([32]). There were also other disclosures of information (see [33] – [38]).
As for the issue of the earlier consent order, the Court held that there was no need for the Court to reach a finding on this issue, as “any interest in securing the confidentiality of the Singapore enforcement proceedings was no longer compelling and had been substantially lost once the confidentiality of the underlying Arbitration had been lost” ([40]).
Hence, the Court declined to grant the orders sought by India in SUM 4 and dismissed SUM 4.
Conclusion. The confidentiality interest that is protected by ss 22 and 23 of the IAA is a derivative interest stemming from the interest in protecting the confidentiality of the underlying arbitration. As such, once the confidentiality of the underlying arbitration has been lost, it will be difficult to establish that there is an interest in maintaining confidentiality in the enforcement proceedings.
It is relevant to note that India’s own lawyers had previously published a LinkedIn post where they named India as a party to the Singapore enforcement proceedings, along with stating the size of the final award and linking the post to a Global Arbitration Review article where the identities of the parties had been disclosed.
While this LinkedIn post was subsequently taken down, the Court observed that it “nonetheless constituted the dissemination of information relating to the Singapore enforcement proceedings on a widely accessible platform.” ([34]).
Therefore, while trite, it is important to ensure that confidentiality is maintained not only during the arbitration itself, but also after the arbitration.
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