Brief overview

On 28 June 2023, Singapore International Commercial Court ("SICC") added another significant ruling to Singapore's arbitral law regime by way of its judgment in CZT v CZU, (2023) SGHC(I)11 ("CZT v CZU"). In CZT v CZU, SICC was faced with an issue regarding the production of the deliberations of an arbitral tribunal in a setting aside application and ruled, for the first time, that such deliberations are confidential except in 'the very rarest of cases.'

Factual background

Pursuant to disputes arising between the parties, in April 2019, CZU commenced a Singapore-seated arbitration against CZT under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, 2017 ("ICC Rules").

As per the ICC Rules, Professor Douglas Jones AO, and Professor Keechang Kim ("Majority") submitted the draft award to the ICC Court for scrutiny, in March 2021. Upon scrutiny, the ICC Court approved the revised draft award in May 2021. However, this version of the award was not shared with the parties. Instead, the Tribunal submitted another version of the draft award to ICC, which was shared with the parties on 20 September 2021 ("Final Award"), after further scrutiny.

In the Final Award, the Majority found CZT liable for contractual breach and ordered it to pay damages (along with interests and costs) to CZU. Notably, the Final Award was not signed by Dr Philipp Habegger (CZT's nominee arbitrator), who shared his dissenting opinion with the parties on the same day. Interestingly, along with his reasons for disagreement (on substance), Dr Habegger levelled several allegations against the Majority including "[they] engaged in serious procedural misconduct," "conceal[ed] the true ratio decidendi from the parties", and "lack of impartiality."

Subsequently, CZT sought setting aside of the Final Award and sought production of the Tribunal's records of deliberation, in support of its case. Primarily, CZT intended to utilize the Tribunal's deliberations to establish few of the allegations raised by Dr Habegger, in his dissenting opinion.

SICC's decision: Confidentiality of Tribunal's deliberations

The principal issue for SICC's consideration was the circumstances when the Tribunal may be ordered to produce its deliberations, in support of an application to set aside the award.

In the absence of any statutory provision in Singapore to allow confidentiality of arbitrators' deliberations, SICC placed reliance on implied legal obligation and well-recognized policy reasons to find that arbitrators' records of deliberations are confidential much like arbitration proceedings themselves.

SICC also helpfully clarified that the objective behind maintaining confidentiality of Tribunal's deliberations is to protect the Tribunal's thought processes / views / opinions / reasons forming the basis of the decision. The court recognized that it is imperative to protect arbitrators' deliberations to promote the integrity and efficacy of the whole arbitral process.

Exception to the norm

In its ruling, SICC also carved out the exception to the general rule of confidentiality. A court may order disclosure of the Tribunal's deliberations if the facts and circumstances of the case are 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 their confidentiality.

Though the court did not draw up a list of cases that may fall within the exception, it strongly opined that the general norm will be deviated from only in the rarest of cases where – allegations of a very serious nature (like allegations of corruption) are raised, and such allegations are shown to have real prospects of succeeding.

In the case at hand, SICC found that CZT's allegations did not fall within the categorised exception or did not meet both the requirements set out above, to allow deviation from the norm. Thus, SICC rejected CZT's application for disclosure and held that it could decide majority of the issues raised by CZT based on the arbitral record.

Key lessons and takeaways

  • SICC has finely balanced the confidentiality of a Tribunal's deliberations, which is backed by well-recognized policy reasons, against the interests of justice which would warrant production of such records.
  • SICC's decision is commendable not only because it follows best international practices in recognizing confidentiality of Tribunal's deliberations (despite lack of statutory provisions), but also because it limits court intervention in arbitrations.
  • Protection of confidentiality accorded to the Tribunal's deliberations also applies to the 'deliberations stage' e., includes any and every iterations / versions / draft of the arbitral awards, until it is finalized / signed.
  • In cases where issues are raised / allegations levelled against the process and not the substance of an arbitrator's decision / deliberations, the confidentiality rule is not applicable. For instance, where allegations are raised that one of the arbitrators has been excluded from the Tribunal's deliberations, the Tribunal may be ordered to produce its records / provide oral testimony.
  • With this ruling, Singapore has ensured that parties do not take disclosure of the Tribunal's deliberations lightly. Rather, parties seeking such production are required to meet an extremely high threshold of proving that: (i) the case involves allegations of a very serious nature; and (ii) such allegations have a real prospect of success.

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