The Singapore Court of Appeal has refused confidentiality orders in relation to arbitration enforcement proceedings because the confidentiality of the underlying arbitration had already been lost. The court relied on the publication of the underlying award online and in foreign enforcement proceedings, and press coverage of the Singapore proceedings that had been “effectively confirmed” when posted to LinkedIn by lawyers (acting for India, which had been trying to obtain the confidentiality orders).
Singapore law respects privacy and confidentiality even if the arbitration is subject to related court proceedings. In 2022, Singapore amended the International Arbitration Act 1994 (“IAA“) to make all arbitration-related court proceedings private by default and gave the court powers to keep information relating to the proceedings confidential. The spirit behind these amendments was to maintain the confidentiality of the arbitration proceedings throughout the parties’ dispute, in departure from the normal principle of open justice.
However, if substantial information relating to the arbitration has already entered the public domain, Singapore’s Court of Appeal recently decided in India v Deutsche Telekom AG [2023] SGCA(I) 4 that it would be unrealistic and pointless to protect such confidentiality since it has already been lost.
Why was India interested in protecting confidentiality?
Deutsche Telekom (“DT“) applied in the Singapore courts to enforce a US$132 million arbitral award against the Republic of India.
In response, India applied for orders that the Singapore court proceedings be heard in private. India asserted that the papers filed in the Singapore court proceedings had been improperly disclosed in related US court enforcement proceedings, and that disclosure of information in the Singapore court proceedings would provide more ammunition for third parties who wish to tarnish India’s reputation. India referred to Twitter posts, website headlines, and other public commentary which suggested that India’s conduct with respect to the various arbitrations was repressive and wrongful. India therefore asked for confidentiality orders in respect of information (including the identities of the parties) and documents relating to the proceedings; for the case file to be sealed; for the parties not be identified in any hearing lists; and for any published judgment to be redacted.
How did India lose its right to confidentiality?
The Court of Appeal dismissed India’s application for confidentiality.
The court analysed the purpose underlying the amendments to the IAA which made all arbitration-related court proceedings private by default. It held that the amendments had been made to protect the confidentiality of arbitral proceedings, and that this position, referred to as a ‘cloak of privacy’, was an exceptional departure from the general rule of open justice. It therefore followed that the threshold question for granting the orders sought by India was whether the confidentiality of the arbitration had already been lost.
The court found that the information which India sought to protect was already in the public domain in several ways.
- The arbitration awards had been published online and were readily available.
- Court proceedings in Switzerland, the United States and Germany relating to the arbitral awards were publicly available and already revealed the parties’ identities in the arbitration.
- Related winding up proceedings in Indian courts had also disclosed the identity of the parties and outcome of the arbitration.
- News reports had been made regarding the arbitration.
- India’s own lawyers had published a LinkedIn post identifying India as a party to the Singapore proceedings and stating the size of the award. The post also provided a link to an article published in the Global Arbitration Review which named India and DT as parties to the enforcement proceedings in Singapore, essentially confirming their identities.
The court found that confidentiality in the arbitration had been substantially lost and the application was therefore dismissed. It also commented in response to India’s submissions as to possible prejudice from disclosure, that on the contrary, it would likely be in India’s interest for the public to hear its side of the story.
Further, while the court may have inherent and statutory powers to make orders to protect a party’s confidentiality despite information about the arbitration having entered the public domain, India did not identify any basis to exercise such powers except for the confidentiality of the arbitration itself.
What parties arbitrating in Singapore should note
This is an exceptional case where information about the arbitration had already been widely reported. In most cases, the privacy and confidentiality of arbitration in Singapore remains protected and it is the default position that court related proceedings are similarly private.
Nevertheless, to reduce the risk of information from arbitration-related court proceedings in Singapore becoming public, businesses and government entities may consider the following:
- A party arbitrating in Singapore and seeking confidentiality protections cannot have its cake and eat it. If you choose to publish selected information about the arbitration in any manner to achieve other ends, you may run the risk of losing all confidentiality.
- Extra care should be taken when coordinating multi-jurisdictional proceedings relating to the arbitration. In some jurisdictions such as Switzerland and the United States, the courts may require publication of information relating to the arbitration, thereby making the information public, and consequently undermining confidentiality protections elsewhere.
- Brief all persons involved about the importance of maintaining confidentiality of the arbitration. Ensure that they do not publish information about the arbitration on social media.
- Identify reasons for protecting confidentiality, apart from the confidentiality of the arbitration itself.
- If you learn that other parties in the arbitration may publish information about the case, consult your legal team immediately about the possibility of an injunction to prevent the leak.
- Document and quantify your losses caused by the breach of confidentiality as far as possible. Reputational harm and loss of business opportunities may be difficult to prove.
How we can help you protect confidentiality and privacy in arbitrations
We are well-versed in managing confidential information relating to arbitrations and the reputational risks faced by business and states involved in disputes.
If you want to find out more about protecting the confidentiality and privacy of arbitrations in Singapore more generally, please contact one of our Singapore arbitration partners or your usual Herbert Smith Freehills Prolegis contact.
For further information, please contact:
Alastair Henderson, Partner, Herbert Smith Freehills
alastair.henderson@hsf.com
