Not So Confident(ial)? — Decoding Singapore Court Ruling on Confidentiality in Arbitration-Related Court Proceedings

The confidentiality of international arbitration is often touted as its unique advantage. However, the confidentiality of related court proceedings, such as proceedings for the enforcement or annulment of arbitral awards, has often been debated. In most jurisdictions, the interest served by preserving the confidentiality of such court proceedings is trumped by the countervailing principle of open justice. Over the last decade, however, there has been a gradual shift in this trend. Certain jurisdictions like Hong Kong, Dubai, New Zealand, and Singapore have come to recognise the importance of preserving the confidentiality of arbitration-related court proceedings.

In Singapore, section 22 of the Singapore International Arbitration Act, 1994 (IAA) initially reflected a presumption of open justice wherein the parties could ‘opt-in’ for private court hearings and restricted disclosures. This presumption was reversed by an amendment made to the IAA in 2022. Section 22 now provides that court proceedings shall be conducted in private by default, unless the court, ‘on its own motion’ or upon an application from any person, decides otherwise. Similarly, section 23 now provides for restrictions on reporting such private proceedings.

The Singapore Court of Appeal (SCA) recently departed from the default position under the new IAA regime. It refused confidentiality orders in an appeal emanating from proceedings for the enforcement of an arbitral award (Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4). In this post, we examine the SCA’s decision and its potential impact on the confidentiality of arbitration-related court proceedings. 

Key Facts

An investment arbitration was initiated by Deutsche Telekom (DT) against the Republic of India (India) in Switzerland (Arbitration). The arbitral tribunal initially passed an interim award in favour of DT, which was upheld by the Swiss Federal Supreme Court. Subsequently, a final award was passed, based on which DT initiated enforcement proceedings in Singapore (Singapore EP), the USA, and Germany.

In September 2021, DT secured an ex-parte order for enforcing the final award in Singapore (Leave Order). Under the erstwhile IAA regime, DT had also applied for the Singapore EP to be heard in private and for the sealing of court records to prevent other creditors with competing claims to India’s assets from being alerted. Eventually, the parties arrived at a consent order agreeing that the proceedings be held in private, the court file be sealed, and any published judgment given be redacted (Consent Order).

In January 2022, India challenged the Leave Order (Challenge Proceedings), which was dismissed by the Singapore International Commercial Court (SICC) on January 30, 2023. Against this, India preferred an appeal (India v DT) along with an application under sections 22 and 23 of the IAA read with order 16 rule 9(1) of the SICC Rules 2021 (SICC Rules 2021) (Confidentiality Application). India argued that although some information about the Arbitration was available online, its confidentiality had not been entirely lost. Information about the Challenge Proceedings and the appeal remained private, and there was a risk of its misuse by third parties to disparage India’s image. DT opposed the application inter alia on the ground that information relating to the Arbitration and its ancillary proceedings was already available in the public domain, and the extent of such information was enhanced when DT had applied for confidentiality orders in 2021. Furthermore, the concern over alerting other creditors was no longer material. 

Dismissing the Confidentiality Application, the SCA analysed the legislative intent underlying the recent amendment. It found that the primary purpose of the amendment is the protection of confidentiality of the arbitration itself, and the confidentiality of ancillary court proceedings is only preserved as a derivative interest (paras 18-23). In this light, the SCA held that confidentiality orders for the court proceedings could be granted only if the confidentiality of the Arbitration was still intact. It observed that this confidentiality had been substantially lost, as multiple disclosures of the information sought to be protected by India had already been made:

1. the interim and final arbitral awards were accessible online;
2. court proceedings relating to the Arbitration in other jurisdictions were in the public domain;
3. news reports identifying the parties had been published;
4. counsel representing India had published posts on LinkedIn identifying the parties and the quantum in dispute in the Arbitration; and
5. associated winding up proceedings of Devas before company courts in India had also disclosed details of the Arbitration.

Impact

Under sections 22 and 23 of the IAA, a private hearing is the default rule. Thus, absent an application by either party to ‘opt-out’ of this default mechanism, it is worth noting that India was not bound to file an application to enforce the default position.

Nevertheless, the court could have directed open court proceedings on its own motion. However, sections 22 and 23 do not provide any guidance for exercising the court’s discretion. The SCA could have thus expounded on the principles to be considered for deviating from the default position, such as (a) protection of interest of any party, (b) public interest, or (c) interests of justice. However, instead of examining these aspects, the SCA interpreted sections 22 and 23 on the basis that the underlying legislative intent was only to protect the confidentiality of the arbitration proceedings and, if the same was ‘substantially lost,’ the default mechanism of private hearings could be deviated from.

In doing so, the SCA failed to engage with India’s primary contention that confidentiality had not been ‘entirely lost.’ Moreover, it failed to set out when exactly the threshold of confidentiality being ‘substantially lost’ is met. This omission is particularly relevant as even when the Consent Order was passed under the previous ‘opt-in’ regime of the IAA, the confidentiality of the underlying arbitration had arguably been ‘substantially lost’—the interim and final awards had been issued and details of ancillary proceedings, including the challenge to the interim award and enforcement proceedings in other jurisdictions, were publicly available. Thus, it remains to be seen how this standard is shaped and applied in future cases.

The SCA’s decision also raises the following concerns:  

First, even in court proceedings relating to arbitration, there is information over which the parties have a right to confidentiality. For instance, in enforcement proceedings, details of the properties of the award debtor may be sought to be protected. Thus, confidentiality of related court proceedings may have an intrinsic value independent of the confidentiality of the arbitration.

Second, in any instance where there are related proceedings in other jurisdictions (particularly those with lenient confidentiality regulations, such as the USA, Sweden, and Switzerland), the confidentiality of the court proceedings in Singapore may now be considered to be lost. Moreover, even in jurisdictions with stringent confidentiality requirements for arbitration (for instance, Hong Kong), there are certain statutory or customary exceptions, such as disclosures to be made by listed companies, disclosures to government or regulatory bodies, and the like. According to the SCA judgment, it may be argued that parties making such public disclosures would automatically lose the right to confidentiality for any court proceedings under the IAA. Similarly, it is now possible for any party opposing a confidentiality application to indirectly have information about the arbitration published online to deny confidentiality orders to the opposite party. The SCA failed to provide any safeguards against such disclosures, which can render the amendments to sections 22 and 23 of the IAA redundant.

Conclusion

It remains to be seen how the above aspects will be addressed and how the SICC interprets and applies the SCA judgment in other cases. Meanwhile, parties and counsel should be mindful of the highlighted risks and ensure that the confidentiality of the arbitration remains substantially protected before seeking orders for confidentiality of court proceedings. Thus, they should abstain from publishing any information about ongoing arbitrations or related proceedings on any social media platforms, even after the conclusion of the arbitration. Furthermore, parties should also consider identifying specific objectives for retaining the confidentiality of court proceedings, independent of the confidentiality of arbitration proceedings.

Nikita Garg is an LL.M. Candidate at the University of Cambridge.

Robin Grover is an LL.M. Candidate in International Dispute Settlement (MIDS) at the Geneva Graduate Institute and the University of Geneva.