Are arbitrators' deliberations confidential?
30 June 2023
The answer is yes. This question was decided by the Singapore International Commercial Court (“SICC”) for the first time in CZT v CZU [2023] SGHC(I) 11. The protection of the confidentiality of deliberations is not absolute but is subject to exceptions, which are found only in the very rarest of cases.
Summary
The defendant commenced arbitration against the plaintiff for breach of contract. The arbitral tribunal, by a majority, issued an award against the plaintiff. The minority did not sign the award. The minority issued a dissenting opinion in which he accused the majority of having “engaged in serious procedural misconduct”, “continued misstating of the record”, attempting “to conceal the true ratio decidendi from the Parties”, “distortion of the deliberation history”, lack of impartiality, and knowingly stating an incorrect reason for the minority’s refusal to sign the award.
The plaintiff applied to set aside the award. The plaintiff also applied for the members of the tribunal to produce their records of deliberations to support its case that the majority did not state the true reasons in the award and lacked impartiality. The SICC dismissed the applications for the production of the arbitral tribunal’s deliberations.
The SICC held that the confidentiality of deliberations is protected. However, the protection is not absolute and is subject to exceptions, which are found only in the very rarest of cases. The facts and circumstances of the case must be so compelling as to persuade the court that the interests of justice in ordering production of the records of deliberations outweigh the policy reasons for protecting the confidentiality of deliberations. Such a case would have to involve very serious allegations (like allegations of corruption) which must be shown to have real prospects of succeeding.
The SICC found that the plaintiff’s case did not fall within the exceptions. The plaintiff’s case that the majority did not state the true reasons in the award was insufficient to constitute an exception. The plaintiff’s allegations that the Majority lacked impartiality could constitute an exception, but the SICC did not have to come to a definitive conclusion since the plaintiff had not shown that such allegations have real prospects of succeeding.
Significance
Like the confidentiality of arbitration proceedings, the arbitrators’ records of deliberation are also confidential. Such records are protected against production orders save in exceptional situations where the interests of justice in ordering production prevails. Considering the seriousness of the minority’s allegations against the majority which go to the integrity of the arbitration, it remains to be seen if the SICC judgment is the final word on this matter.
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