CONFIDENTIALITY IN ARBITRATION: RECENT DEVELOPMENTS IN SINGAPORE
Legal Era|December 2020
Two recent developments in Singapore case law and legislation reflect a willingness to preserve confidentiality related obligations in all arbitrations
Germaine Chia,Khyati Raniwala

Germaine Chia

Senior Associate

STEPHENSON HARWOOD

This article discusses recent developments in respect of the obligation of confidentiality in arbitration proceedings in Singapore. This is especially relevant to parties based within the region and particularly in India, who select Singapore as the seat of arbitration.1 Further, Indian parties, being the top foreign user of SIAC arbitration, regularly select the SIAC Rules to govern their arbitrations, which is one of the few sets of rules that imposes an express obligation of confidentiality.2 Contrary to litigation, arbitration proceedings are considered to be private in nature. Singapore has followed the English law approach and has adopted a general obligation of confidentiality in all arbitrations.3 Arbitral proceedings and documents arising therefrom will be regarded as confidential, even where no provision has been made for confidentiality in the arbitration agreement or applicable institutional rules. This obligation is an implied term arising from the parties’ expectations of the arbitration agreement. This duty of confidentiality binds arbitrators and parties and extends to (i) documents disclosed in arbitration, (ii) hearing transcripts, and (iii) awards. The duty of confidentiality, however, is not sacrosanct, and there are exceptions to the duty.

The decision in Vedanta confirms the position that a general obligation of confidentiality arises in common law in all arbitrations unless the parties have otherwise agreed, and this obligation is also subject to certain exceptions

Two recent developments in Singapore case law and legislation reflect a willingness to preserve confidentiality-related obligations in all arbitrations.

In the last few years, the issue of the court’s powers to enforce confidentiality obligations has been a source of debate in Singapore. In the case of BBW v BBX & Ors [2016] SGHC 190 (“BBW v BBX”), the Singapore High Court held that the courts have an inherent power to grant sealing orders in support of arbitration-related court proceedings.5 It confirmed that the courts may use their powers to preserve confidentiality-related obligations even in cases which may not be under the International Arbitration Act (Cap. 143A) (“IAA”), but relate to an arbitration.6 The Singapore High Court arrived at the decision to grant the sealing orders in spite of the fact that there was no express provision of confidentiality in the IAA.

CONFIDENTIALITY IN ARBITRATION

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