Key takeaways

• Notwithstanding the lack of any statutory provision in Singapore that expressly protects the confidentiality of arbitrators' deliberations, the court found that such deliberations are nevertheless confidential as an implied obligation of law. That said, the protection of the confidentiality of deliberations is not absolute but is subject to exceptions. One such exception is where there exist allegations of corruption which have a real prospect of succeeding.
• Where the challenge concerns an essential process rather than the substance of the deliberations, this does not relate to the arbitrators' thought processes or reasons for their decision. Therefore, the policy reasons for the protection of the confidentiality of deliberations are not engaged. An example of an essential process issue is where the complaint is that a co-arbitrator has been excluded from the other arbitrators' deliberations. The arbitrators would be free to give evidence on such an issue without delving into the content of the deliberations themselves.

Background facts

The underlying dispute concerned a contract to deliver certain component packages that included materials, machinery and equipment. CZU alleged that certain components delivered by CZT were defective, and commenced an arbitration against CZT. This arbitration was governed by the Arbitration Rules of the International Chamber of Commerce ("ICC Rules"). In due course, the arbitral tribunal ("Tribunal") was constituted.

The majority of the arbitrators on the Tribunal ("Majority") submitted a draft award to the ICC Court, pursuant to Article 34 of the ICC Rules. The ICC Court scrutinized the draft award on 29 April 2021 and decided to further scrutinise it at one of its next sessions. On 28 May 2021, the Secretariat informed the parties' lawyers that the ICC Court approved the revised draft award on 27 May 2021 ("May Award") and that it would notify the award to the parties once the May Award had been finalized and signed.

However, the May Award was not notified to the parties. Instead, the Deputy Counsel to the ICC Court informed the parties' lawyers that the Secretariat had received a further draft of the award from the Tribunal implementing the ICC Court's comments, and would invite the Court to further scrutinise the draft award.

Subsequently, the ICC Court approved the draft award at its session on 23 July 2021, and sent across a final award ("Final Award") to the parties. The Final Award was signed by the Majority, which held that CZT was liable to CZU for non-performance of its obligations under the contract.

However, one of the arbitrators ("Minority") refused to sign the Final Award. In its dissent ("Dissent"), the Minority leveled several allegations against the Majority, stating, among other things, that the Majority had engaged in serious procedural misconduct and lacked impartiality.

Subsequently, CZT sought to set aside the Final Award ("Setting Aside Application"), alleging, among other things, that there was a breach of natural justice and the Final Award was in conflict with the public policy of Singapore. CZT also asked the Tribunal and the ICC secretariat whether it would be willing to disclose the Tribunal's records of deliberations. In aid of this request, CZT sought a court order for the production of documents recording the Tribunal's deliberations. CZT reasoned that the records of deliberations were relevant and material to the Setting Aside Application for the following reasons:

• The Majority decided a key liability issue on grounds or for the true reasons that are not contained in the Final Award (but in the May Award, as stated by the Minority) and/or as a result of a breach of the fair hearing rule. CZT submitted that a breach of the fair hearing rule could arise from the chain of reasoning adopted by the Majority.
• The Majority attempted to conceal the true reasons behind the Final Award (by issuing the May Award for the ICC Court's approval before making material changes to it in the Final Award following further concerns expressed by the Minority and despite the May Award having been approved by the ICC Court).
• The Majority lacked impartiality.

Applicable rules

Given that the Setting Aside Application was commenced prior to the enactment of the Rules of Court 2021 ("2021 Rules"), the Rules of Court 2014 ("2014 Rules") applied to CZT's application for document production by the Tribunal.

Order 110 r 15(3) of the 2014 Rules sets out the requirements for a request to produce. These include describing the requested documents with sufficient particularity and stating how the documents are relevant and material to the party's case. O 110 r 17(2)(b) also specifies that the following objections may apply to resist an application for production:

1. Lack of sufficient relevance to the case or materiality to its outcome
2. Legal impediment or privilege
3. Unreasonable burden to produce the requested documents
4. Loss or destruction of the document that has been shown with reasonable likelihood to have occurred
5. Grounds of commercial or technical confidentiality that the court determines to be compelling
6. Grounds of special political or institutional sensitivity (including evidence that has been classified as secret by the government, a foreign government or a public international institution) that the court determines or the Attorney General certifies to be compelling
7. Such considerations of procedural economy, proportionality, fairness or equality of the parties as the court determines to be compelling

The court found that the plaintiff bears the burden of satisfying the court that the documents sought are relevant to the case and material to its outcome. Conversely, the defendant bears the burden of making good any of the objections in O 110 r 17(2)(b)(ii) to (vii) that it relies on.

When can arbitrators be ordered to produce their records of deliberations in aid of applications to set aside their awards?

Notwithstanding the lack of any statutory provision in Singapore that expressly protects the confidentiality of the arbitrators' deliberations, the court found that such deliberations are nevertheless confidential as an implied obligation of law. In this regard, the court recognized several policy reasons for the protection of confidentiality of arbitrators' deliberations:

1. Confidentiality is a necessary prerequisite for frank discussion between the arbitrators. This secrecy is indispensable if the deliberation is to produce a true discussion and argument and not become a mere exchange of cautiously expressed and selected views.
2. Freedom from outside scrutiny enables the arbitrators to reflect on the evidence without restriction, to draw conclusions untrammeled 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 (e.g., to the party that appointed them).
3. The Tribunal's duty to keep deliberations confidential protects the Tribunal from outside influence. For example, the existence of such a duty would discourage an arbitrator from leaking or publicizing discussions or decisions with which they disagreed.
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.

That said, it was also common ground between the parties that the protection of the confidentiality of deliberations is not absolute but is subject to exceptions. In this regard, the court noted that it will only be in the very rarest of cases that the arbitrators' deliberations will be ordered to be disclosed. The court illustrated that one such example could be where there exist allegations of corruption which have a real prospect of succeeding.

Relatedly, the court also noted the distinction between process issues and disagreements on substance. The protection of confidentiality does not apply where the challenge concerns an essential process rather than the substance of the deliberations. An example of an essential process issue is where the complaint is that a co-arbitrator has been excluded from other arbitrators' deliberations. In such circumstances, the protection does not apply to such process issues because they do not involve an arbitrator's thought processes or reasons for their decision. The policy reasons for the protection of the confidentiality of deliberations are therefore not engaged.

On the facts, the court was unconvinced that it should order the production of the Tribunal's deliberations:

• An allegation of breach of the fair hearing rule is not sufficient per se to displace the protection of the confidentiality of deliberations. Besides, such an allegation can be decided based on the arbitration record — documents recording the content of deliberations are unnecessary.
• The mere fact that changes were made to a draft award is not evidence of any impropriety — the reasons for the Final Award are those that the Majority chose to give to justify the findings they made, and they stand or fall on their own merit. 
• It might appear that the lack of impartiality could constitute an exception. However, the court refused to come to a definitive conclusion as it found the plaintiff had not shown that its allegations had any real prospects of succeeding.

Conclusion

The SICC's decision represents a welcome clarification on the scope of confidentiality in arbitrations. On one hand, the court must consider the public policy considerations of preserving the confidentiality of a tribunal's deliberations to facilitate a frank and constructive exchange of views.

On the other hand, there are also valid arguments that the confidentiality of deliberations should yield, where considerations of due process and the interests of justice and preserving Singapore's integrity and reputation as a seat of arbitration arise. 

While this decision deals with the now-outdated 2014 Rules, this case reinforces Singapore's long-standing position on the preservation of confidentiality in arbitrations. Moving forward, this case might serve as useful guidance for the operation of the SICC Rules and the 2021 Rules in document production applications. As the court noted, it would only order for the production of an arbitrator's deliberations in the "very rarest of cases", and it would "take a very compelling case" to overcome the underlying policy reasons in play.

* * * * *

© 2023 Baker & McKenzie.Wong & Leow. All rights reserved. Baker & McKenzie.Wong & Leow is incorporated with limited liability and is a member firm of Baker & McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "principal" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.