The loss of confidentiality of arbitral proceedings
19 June 2023
In The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4, the Court of Appeal dismissed India’s application for confidentiality orders to protect the privacy of arbitration enforcement proceedings in Singapore. Confidentiality of the arbitration had been lost once considerable information relating to the arbitration was disclosed in public forums.
Summary
Deutsche Telekom AG (“DT”) commenced an investment treaty arbitration seated in Geneva, against India for violation of a bilateral investment treaty between India and Germany. DT commenced enforcement proceedings in Singapore and obtained an ex parte order of court for leave to enforce the final award in Singapore. DT applied for confidentiality orders for the enforcement proceedings which India consented to.
After India’s application to set aside the leave order was dismissed by the Singapore International Commercial Court, India filed an appeal. India also applied for confidentiality orders for the appeal and related applications pursuant to sections 22 and 23 of the International Arbitration Act 1994 (“IAA”) and/or the court’s inherent powers. DT objected.
The Court of Appeal held that where confidentiality of the arbitration had been lost, the principle of open justice would weigh strongly in favour of lifting the cloak of privacy that had been provided for by the statute under sections 22 and 23 of the IAA. There had been multiple disclosures of considerable information relating to the arbitration, the identity of the parties and enforcement proceedings in Singapore and abroad. Such disclosures included an article published in Global Arbitration Review and a LinkedIn post published by India’s own lawyers. Thus, the confidentiality of the enforcement proceedings in Singapore did not merit continued protection.
Significance
This case serves as a reminder for parties and counsel to maintain confidentiality of the arbitration. The Singapore courts would generally protect confidentiality of the arbitration by granting confidentiality orders for arbitration-relating proceedings. However, once confidentiality of the underlying arbitration is lost, there would be no merit for such orders. Parties should be mindful of the information relating to the arbitration that is published, and if necessary, take steps to remove the publicly available information so as not to undermine the confidentiality of the arbitration.
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