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By Ananya Pratap Singh

Nature of Matter

Confidentiality of arbitrator deliberations

Case Summary
  1. The Plaintiff entered into a contract with the Defendant for supply of certain component packages which the Defendant  alleged were defective.
  2. The Defendant thus invoked arbitration proceedings under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) in Singapore.
  3. The majority of the Arbitral Tribunal (“Majority”) ultimately ruled in favour of the Defendant and  issued a Final Award which found the Plaintiff is liable to the Defendant for non-performance of  contractual obligations.
  4. However, the Minority arbitrator refused to sign the Final Award and instead issued a dissenting opinion raising various allegations against the Majority including “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 his refusal to sign the Final Award.
  5. In reliance on the dissenting opinion, the Plaintiff applied to the Singapore High Court to have the Final Award set aside under the International Arbitration Act 1994 (2020 Revised Edition) inter alia on the grounds that there was breach of natural justice, that the Majority had exceeded parties’ scope of submission to arbitration, that the agreed arbitral procedure of the parties had not been followed, and that the Final Award was against the public policy of Singapore.
  6. The Plaintiff also wrote to individual arbitrators and the ICC Secretariat seeking disclosure of the records of Tribunal’s deliberations. This request was denied.
  7. The Plaintiff then applied to the Singapore Court seeking production  from the arbitrators of their records of deliberations inter alia on the basis that they are relevant and material to the Plaintiff’s setting aside application. The application came before the Singapore International Commercial Court (“SICC”).
  8. The issue before the SICC was whether the Arbitral Tribunal’s deliberations were protected by the implied obligation of confidentiality over arbitration proceedings.
Ruling

The SICC dismissed the Plaintiff’s Production Application and held that:

  1. While there is no express statutory provision on this, the confidentiality of arbitrators’ deliberations, like the confidentiality of arbitration proceedings, exists as an implied obligation in law.
  2. In this regard, the default position is that arbitrators’ records of deliberations are confidential and are therefore protected against production orders.
  3. The policy reasons for this default position are that:-
    1. Confidentiality is a necessary pre-requisite for frank discussion between the arbitrators;
    2. Freedom from outside scrutiny enables the arbitrators to reflect on the evidence without restriction, to draw conclusions untrammelled by any subsequent disclosure of their thought processes, and, where they are so inclined, to change these conclusions on further reflection without fear of subsequent criticism or of the need for subsequent explanation;
    3. The duty on the tribunal to keep deliberations confidential protects the tribunal from outside influence;
    4. The rule helps to minimise spurious annulment or enforcement challenges based on matters raised in deliberations or differences between the deliberations and the final award and is thereby critical to the integrity and efficacy of the whole arbitral process.
  4. However, there are certain exceptions to this default position which  only apply in the very rarest of cases where:-
    1. The challenge is to what may be described as the essential process rather than the substance of the deliberations;

    2.  The facts and circumstances are such that the interests of justice in ordering the production of records of deliberations outweigh the policy reasons for protecting the confidentiality of deliberations. Such cases must involve allegations of a very serious nature which have real prospects of succeeding.

  5. On the facts of the case,  the exceptions were found not to apply because:-
    1. An allegation of breach of the fair hearing rule is not sufficient per se to displace the protection of the confidentiality of deliberations. Such  allegations can be decided based on the arbitration record.

    2. The mere fact of changes  made to draft awards is not evidence of impropriety. The reasons for the Final Award were those that the Majority chose to give to justify their findings , and they stand or fall on their own merit.

    3. The SICC considered that a lack of impartiality could constitute an exception to the default position, but declined to come to a definitive conclusion on this as the Plaintiff had not shown that its allegations had any real prospects of succeeding.