It is well accepted that an arbitral tribunal's deliberations are confidential. But is this principle absolute? More specifically, will a tribunal be ordered to disclose its deliberations if an arbitrator claims that his or her fellow arbitrators had engaged in serious procedural misconduct, attempted to conceal the true ratio decidendi or lacked impartiality?
This was the exact question before the Singapore International Commercial Court.
In this case, the Court refused to order the Tribunal to disclose its deliberations. The Court found that there are strong policy reasons in favour of keeping the Tribunal's deliberations confidential. So, while the confidentiality of deliberations is not absolute, the Court would only order disclosure in the 'very rarest of cases'.
Background
The underlying arbitration related to a Contract for the delivery of certain equipment, documents and services. The arbitration was seated in Singapore and held under the ICC Rules.
The Claimant in the arbitration alleged that the Respondent breached its obligations under the Contract. In the Final Award, the Majority of the Tribunal found for the Claimant – it held that the delivered items were defective, so the Respondent was liable to the Claimant in damages.
In his dissenting opinion, the Dissenting Arbitrator claimed that the Majority had:
- engaged in serious procedural misconduct;
- attempted 'to conceal the true ratio decidendi from the Parties';
- distorted the deliberation history;
- lacked impartiality; and
- knowingly stated an incorrect reason for his refusal to sign the Final Award.1
In the conclusion to the dissenting opinion, the Dissenting Arbitrator also stated that he had 'lost any and all trust in the impartiality of [his] fellow arbitrators'.2
In light of this, the Respondent sought an order from the Singapore courts that the Tribunal should disclose the records of its deliberations.3
The Court's decision
The Court refused to order the Tribunal to disclose its deliberations.
As a starting point, the Court accepted that the internal deliberations between tribunal members should generally be kept confidential. This is supported by four policy reasons:
- Confidentiality is necessary for open discussions between arbitrators;4
- Since adjudication is an iterative process, keeping deliberations confidential will allow arbitrators to reflect and change their conclusions without fear of criticism;5
- A duty to keep deliberations confidential would discourage a dissenting arbitrator from leaking or publicising discussions or decisions with which he or she disagreed;6 and
- Confidentiality helps to minimise spurious challenges based on matters raised in deliberations, or differences between the deliberations and the final award. Otherwise, this may result in satellite litigation, which will make it more difficult for the parties to achieve finality on the dispute.7
However, the confidentiality of the Tribunal's deliberations is not absolute. While confidentiality will only be set aside 'in the very rarest of cases', it can be set aside if the interests of justice in ordering production outweigh the policy reasons for protecting the confidentiality of deliberations.8 This could arise if there are:
- serious allegations like corruption; and
- real prospects of the allegations succeeding.9
In this case, the Court agreed that the alleged lack of impartiality could constitute a serious allegation.10 This is because impartiality is fundamental to the integrity of the arbitral proceedings. However, the threshold for a 'serious allegation' is very high. Even if the reasons in the Final Award were not the true reasons for the decision, the Court doubted whether this allegation would be serious enough.11
In any event, the Court held that the Respondent had not shown any real prospects that the allegations would succeed. In support of its argument, the Respondent relied solely on the Dissenting Arbitrator's conclusions. However, this was not sufficient, as the Dissenting Arbitrator did not provide any facts in support of his dissenting opinion. For example, the Dissenting Arbitrator did not explain why the reasons in the Final Award did not reflect the Majority's true reasons for their decision.12
On this basis, the Court refused to order the Tribunal to disclose its deliberations.
In obiter, the Court also distinguished between the process and the substance of deliberations. According to the Court, only the arbitrators' thought processes and reasons are confidential, and the process of deliberation is not.13 Thus, if an arbitrator claims that he or she was excluded from discussions, this would not be confidential per se, as it relates to the deliberation process and not the substance of the dispute.
Key takeaways
This is the first time that a Singapore court has considered this topic and confirms that Singapore is aligned with other arbitration-friendly jurisdictions like England & Wales.14
Even though Singapore does not have a statutory provision dealing with the confidentiality of a tribunal's deliberations,15 the Court confirmed the general understanding in the international arbitration community that a tribunal's deliberations should be treated as confidential. This will provide confidence to arbitrators in Singapore-seated arbitrations, and ensures that internal discussions between arbitrators remain candid, robust and open.
From a party's perspective, this decision will promote the finality of an arbitral award, which is one important reason why parties choose to resolve their disputes by arbitration. In this decision, the Court accepted that the production of a tribunal's deliberations is likely to open Pandora's Box and encourage satellite litigation. In practice, it would therefore be difficult for an unsuccessful party to seek production of a tribunal's internal discussions to try to set aside an unfavourable award.
Indeed, it is difficult to identify a situation where a Court would order a tribunal to disclose its deliberations. For an application to be successful, a party will have to show that there are serious allegations and that there are real prospects of the allegation succeeding.16 This will leave the party in a catch-22. For the party to obtain a tribunal's deliberations, it will first need to show that there are real prospects of establishing the allegation. In most cases, however, the party will be seeking disclosure precisely because it does not have sufficient facts to support its allegation. This is especially since the dissenting arbitrator is obliged to keep the tribunal's deliberations confidential, so the dissenting opinion cannot speak to the substance of the tribunal's deliberations. This was exactly what happened in this case. Accordingly, it is difficult to see when this exception would apply in practice.
1 [2023] SGHC(I) 11 at [19].
2 [2023] SGHC(I) 11 at [19].
3 [2023] SGHC(I) 11 at [23]. Under the Singapore Rules of Court 2014, the Court has the power to order a person who is not party to the proceedings (including the Tribunal) to produce documents.
4 [2023] SGHC(I) 11 at [44(a)]; P v Q [2017] EWHC 148 at [60].
5 [2023] SGHC(I) 11 at [44(b)]; P v Q [2017] EWHC 148 at [60] ('Adjudicatory conclusions rarely emerge fully formed, as Athena from the head of Zeus').
6 [2023] SGHC(I) 11 at [44(c)].
7 [2023] SGHC(I) 11 at [44(d)]; P v Q [2017] EWHC 148 at [63].
8 [2023] SGHC(I) 11 at [53].
9 [2023] SGHC(I) 11 at [53].
10 [2023] SGHC(I) 11 at [61].
11 [2023] SGHC(I) 11 at [61].
12 [2023] SGHC(I) 11 at [65].
13 [2023] SGHC(I) 11 at [50].
14 See, for example, P v Q [2017] EWHC 148.
15 By contrast, Article 1479 of the French Code of Civil Procedure expressly provides that the deliberations of an arbitral tribunal shall be confidential.
16 [2023] SGHC(I) 11 at [53].
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