When can a party claim confidentiality for an arbitration?

Singapore court rules on India’s application to seal its dispute with Deutsche Telekom

A June 2023 decision by the Singapore Court of Appeals (SGCA) has clarified when a party can claim confidentiality for arbitration hearings and acts as a timely reminder to lawyers to be wary of making comments through social media.

Facts

The SGCA was ruling on an appeal filed by the Republic of India against an order of the Singapore International Commercial Court (SICC). The SICC’s order allowed Deutsche Telekom (DT) to enforce an award made against India in an arbitration.

The arbitration proceedings were filed by DT which had challenged state-owned Antrix Corporation’s termination of a contract with Devas, in which DT was a shareholder. DT had brought the action against the Republic of India on the basis that the termination had violated the bilateral investment treaty between India and Germany. As part of the appeal, India also filed an application asking that the appeal be heard in private and information about the appeal and any judgment be sealed and not available publicly.

India’s argument was that the arbitration formed the essential factual background of the appeal, which would therefore entail the disclosure of confidential information. India said that the limited information that was already available was being misused to portray India negatively, and that India would suffer prejudice if the proceedings were heard in open court.

DT responded saying that information about the arbitration was already in the public domain, and that it was not in the interests of justice for the court to seal the proceedings. DT argued that the principle of open justice ought to be the predominant consideration, especially since a bilateral investment treaty arbitration would touch on matters of public interest. Additionally, DT also argued that India had in the past publicized information and decisions relating to the arbitration when it suited its interests.

Observations of the court

The court noted that the International Arbitration Act, 1994 (IAA) allows the court to decide whether the proceedings should be heard in open court and information about the proceedings published. Proceedings are private by default under the IAA, the court noted, though the court could order otherwise, either of its own accord or on application by a party.

Examining the motivation behind this, the court found that the law was intended to secure the confidentiality of arbitral proceedings by ensuring that related court proceedings were heard in private. The court found that there was no independent interest in the confidentiality of court proceedings, and there would typically be no question of enforcement proceedings being conducted in private. The court added that “imposing a cloak of privacy” in court proceedings was an exceptional measure.

In the case at hand, the court observed that the confidentiality of the arbitration had already been lost, and that there had been multiple disclosures of information about the arbitration, the identity of the parties, and the enforcement proceedings in Singapore and elsewhere. The interim and final awards issued were available on websites and the Swiss court’s decision to reject India’s application to set aside the final award was also publicly available. The Global Arbitration Review (GAR) had carried an article expressly identifying India and DT as parties to the enforcement proceedings, and India’s lawyers had in fact effectively confirmed the parties’ identity. India’s lawyers had also published a post on LinkedIn identifying India as a party to the enforcement proceedings, stating the size of the final award, and linking to the GAR article. This was eventually taken down when DT’s lawyers wrote to India’s lawyers about it.

The court noted that India had not disputed these facts, but said that confidentiality “had not been entirely lost” and that there was some information not yet in the public domain. However, the court said that it should not have to go through an “empty exercise” when there is no confidentiality left to protect. Citing Dorsey James Michael v. World Sport Group Pte. Ltd., the court said that “the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.”

The immediate takeaway for lawyers is clear – discretion on social media may provide better long-term benefits, even if posts without identifying features capture fewer eyeballs in the short-term. While future jurisprudence will no doubt clarify the extent of when confidentiality has been substantially lost, parties would do well to pay attention to this new variable.

 

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