Case update – Privacy of arbitration and the public domain

Singapore’s apex court considers the legal basis upon which orders may be made to protect the privacy of arbitration enforcement proceedings.

In Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4, the Singapore Court of Appeal considered whether the presumptive principle of confidentiality should apply to information pertaining to an arbitration and related enforcement proceedings in Singapore, in circumstances where considerable information relating to the arbitration was already publicly available, including the interim and final awards. The Court’s decision turned on whether the confidentiality of the underlying arbitral proceedings had substantially been lost.

Background

The original dispute involved a terminated agreement between an Indian state-owned entity, Antrix Corporation Ltd, and Devas Multimedia Private Limited, a company of which Deutsche Telekom AG (Deutsche Telekom) was a shareholder. Deutsche Telekom initiated arbitration proceedings against the Republic of India (India) in Geneva, Switzerland, which concluded with the issuing of a final award in Deutsche Telekom’s favour. Following this, Deutsche Telekom secured a court order to enforce the final award in Singapore. India's subsequent attempts to set aside this order proved unsuccessful, leading to India’s appeal to reverse and set aside the order for leave to enforce the final award (Appeal).

Confidentiality under the IAA

India applied for inter alia the Appeal and related applications to be heard in private and for the case file to be sealed. The appeal rested on two grounds: first, sections 22 and 23 of the International Arbitration Act 1994 (IAA) read in conjunction with Order 16 Rule 9(1) of the Singapore International Commercial Court Rules 2021; and second, the court’s inherent powers.

The court recognised that the principle of confidentiality is ingrained in international arbitration proceedings and confirmed that the object of sections 22 and 23 of the IAA is to protect the confidentiality of arbitration proceedings.

However, the court underscored that this protection was not absolute. The principle of open justice, whereby court proceedings are almost always conducted in public, is a powerful one and the need to secure the confidentiality of the arbitration proceedings can only outweigh the principle of open justice under certain circumstances.

In this case, the court found that the cloak of privacy had already been lifted. The arbitral awards had been made available online, information about the arbitration and the enforcement proceedings in Singapore had been published in international news outlets, and certain legal decisions from the Indian Courts which revealed the outcome of the arbitration were publicly available. India's lawyers in Singapore had also acknowledged the proceedings in a LinkedIn post.

The court concluded that the confidentiality of the arbitration had been lost and there was no compelling interest to keep the enforcement proceedings in Singapore confidential, stating “The Court should not be made to go through an empty exercise to protect confidentiality when there is nothing left to protect." If the information is in the public domain, there is little to no basis for maintaining confidentiality.

Exercise of inherent powers

In its judgment, the Court also rejected India’s argument that it should exercise its inherent powers to uphold the confidentiality of the proceedings.

India contended that revealing details in the appeal might empower third parties to damage its reputation, and that this justified invoking the court’s inherent powers. The court disagreed, emphasising that the principle of open justice allows all parties' actions to be scrutinised. Avoiding negative exposure does not warrant a grant of privacy orders deviating from this principle. Moreover, the court did not see how the additional disclosed information would assist third parties in damaging India's reputation.

Conclusion

Apart from useful pronouncements on the presumptive principle of confidentiality ingrained in arbitral proceedings, the court’s decision serves as a practical reminder to parties involved in arbitral proceedings to safeguard information related to the arbitration and ensure that it is not released into the public domain, lest it lose its confidential nature.