Singapore Bars India From Sharing Arbitration Documents

It is trite that parties to an arbitration in Singapore are obligated to keep the documents and proceedings confidential. However, a question arose whether this general obligation of confidentiality applies to all arbitrations, specifically, in an investment treaty arbitration.   This question stemmed from India’s application for cross-disclosure of documents in two related investment-treaty arbitrations - Cairn v India (seated in the Netherlands) and Vedanta v India (seated in Singapore) in the case of India v Vedanta Resources PLC [2020] SGHC 208. While both Tribunals allowed for the cross-disclosure of documents, the Vedanta Tribunal ruled that cross-disclosure could only be permitted on a case-by-case basis, whereas the Cairn Tribunal will uphold objections to the open document disclosure only rarely. It was clear that the Cairn Tribunal’s order was broader.  

India thereafter sought a declaratory relief from the Singapore High Court that it would not breach confidentiality if it were to disclose in the Cairn arbitration any of the documents generated in the Vedanta arbitration.  

The Court upheld the Vedanta Tribunal’s decision, holding that:  

1.       Under Singapore law, a general obligation of confidentiality arises in common law in all arbitrations
          unless agreed otherwise.

2.       Referring to the Singapore High Court decision in AAY v AAZ (2011), the general obligation of
          confidentiality is subject to the following non-exhaustive exceptions: ·     

• where there is express or implied consent to disclosure; ·     
• where disclosure is permitted by a Tribunal order, or with the leave of the court; ·     
• where disclosure is reasonably necessary for the protection of the legitimate interests of a party to the arbitration; and   
• where the interest of justice/public interest require disclosure.

More importantly, it was held that considerations that apply to a private arbitration do not apply equally to investment-treaty arbitrations. A different approach may well be warranted in investment-treaty arbitration, given the different stakeholders and the sovereign and public interests implicated.