The Republic of India v Deutsche Telekom AG
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 09 June 2023 |
Docket Number | Civil Appeal No 1 of 2023 (Summons No 4 of 2023) |
Court | Court of Appeal (Singapore) |
[2023] SGCA(I) 4
Sundaresh Menon CJ
Civil Appeal No 1 of 2023 (Summons No 4 of 2023)
Court of Appeal
Arbitration — Confidentiality — Privacy — Applicant seeking confidentiality orders for enforcement proceedings in Singapore concerning arbitration awards — Arbitration awards made available online on third-party sites — Parties' identities and outcome of arbitration disclosed — Whether confidentiality orders should be granted under International Arbitration Act 1994 (2020 Rev Ed) to protect confidentiality of underlying arbitration — International Arbitration Act 1994 (2020 Rev Ed)
Civil Procedure — Inherent powers — Third parties allegedly tarnishing applicant's reputation using information disclosed in arbitration — Whether there was basis for court to exercise its inherent powers to grant confidentiality orders
Held, dismissing the application:
(1) The court could grant a sealing order pursuant to its inherent powers to regulate its own processes and make appropriate orders to achieve the ends of justice. However, the general rule was that the making of such orders would entail a departure from the principle of open justice and therefore should be the exception rather than the norm: at [14].
(2) The court's power to grant privacy orders had been statutorily provided for in ss 22 and 23 of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”). The effect of s 22(1) IAA was that court proceedings relating to arbitration matters under the IAA were presumptively private as a starting point. Where proceedings were to be heard in private, the court may issue further directions pursuant to s 23 of the IAA to permit the disclosure of information in a way that would protect each party's reasonable interest in confidentiality: at [15] and [16].
(3) The purpose of ss 22 and 23 of the IAA was to protect the confidentiality of the arbitration itself and the interest in keeping any enforcement proceedings confidential under the IAA was a derivative interest designed to protect the confidentiality of the underlying arbitration. This was borne out by the Minister's second reading speech in Parliament and also by the text of ss 22 and 23 read together in context: at [21] to [24].
(4) The court should not be made to go through an empty exercise to protect confidentiality when there was nothing left to protect. If the information in question was known to the public at large, it would be unrealistic and pointless to seek to deal with it as though it was confidential: at [28] and [29].
(5) There had already been multiple disclosures of considerable information relating to the Arbitration, the identities of the parties and enforcement proceedings in Singapore and abroad. In light of these disclosures of information, the confidentiality of the Arbitration had substantially been lost, and there was no compelling interest in keeping the enforcement proceedings in Singapore confidential: at [30] to [38].
(6) There was no basis for invoking the court's inherent powers as an alternative unless this was done to protect some other interest that was independent of that protected by the statutory provision. Recourse to the inherent powers was unhelpful in this case because India's position was advanced on the same grounds, namely that the Arbitration was confidential. Having held that that was no longer the case when considering the position under ss 22 and 23 of the IAA, an argument for the exercise of inherent powers founded on the same grounds was hopeless: at [43].
(7) While India had also submitted that the disclosure of information in CAS 1 would provide ammunition for third parties to tarnish India's reputation and that this justified invoking the court's inherent powers, an intrinsic feature of open justice was that the conduct of all parties would be open to be scrutinised by those who might be interested. In any event, the court did not see how any further information which might be disclosed in CAS 1 would assist these third parties in their alleged attempts to tarnish India's reputation: at [44] to [46].
AG v Observer Ltd [1990] 1 AC 109 (refd)
BBW v BBX [2016] 5 SLR 755 (refd)
Dorsey James Michael v World Sport Group Pte Ltd [2014] 2 SLR 208 (folld)
Siva Kumar s/o Avadiar v Quek Leng Chuang [2021] 1 SLR 451 (refd)
Tay Quan Li Leon, Re [2022] 5 SLR 896 (refd)
Wee Soon Kim Anthony v Law Society of Singapore [2001] 2 SLR(R) 821; [2001] 4 SLR 25 (refd)
The appellant was the Republic of India (“India”). The respondent, Deutsche Telekom AG (“DT”), was a multinational company incorporated under the laws of the Federal Republic of Germany. DT was also a shareholder of a company known as Devas Multimedia Private Limited (“Devas”).
India and DT were involved in an arbitration seated in Switzerland (the “Arbitration”) over the termination of an agreement between an Indian state-owned entity, Antrix Corporation Ltd, and Devas. Following the tribunal's issuance of the final award (the “Final Award”) in DT's favour, DT commenced enforcement proceedings in Singapore and obtained an ex parte order of court granting it leave to enforce the Final Award in Singapore (the “Leave Order”).
India subsequently applied in HC/SUM 155/2022 (“SUM 155”) to set aside the Leave Order. The Singapore International Commercial Court (“SICC”) dismissed SUM 155. CA/CAS 1/2023 (“CAS 1”) was India's appeal against the dismissal of SUM 155 with costs.
By the present application, India sought orders that CAS 1 and any other applications filed in connection with it be heard in private, that any information (including the parties' identities) or documents relating to CAS 1 or any application filed in CAS 1 be concealed, that the case file for CAS 1 be sealed, that the parties in CAS 1 not be identified in any hearing lists and that any published judgment or decision that may be issued in these proceedings be redacted.
International Arbitration Act 1994 (2020 Rev Ed) ss 22, 22(1), 22(2), 23, 23(3), 23(4)
Rules of Court (2014 Rev Ed) O 92 r 4
Singapore International Commercial Court Rules 2021 O 16 r 9(1), O 16 r 9(1)(a), O 16 r 9(1)(b)
Cavinder Bull SC, Lin Shumin, Ng Shi Min NicoleandKenneth Teo (Drew and Napier LLC) for the applicant;
Koh Swee Yen SC, Joel Quek, Axl RizqyandVictoria Liu (WongPartnership LLP) for the respondent.
9 June 2023
Sundaresh Menon CJ:
1 This was a contested application, CA/SUM 4/2023 (“SUM 4”), brought by the appellant in CA/CAS 1/2023 (the “Appeal” or “CAS 1”) for the Appeal and any other applications that may be filed in connection with it to be heard in private, for any information (including the identities of the parties) or documents relating to the Appeal to be concealed, for the case file for the Appeal to be sealed, for the parties in the Appeal to not be identified in any hearing lists and for any published judgment or decision that may be issued in these proceedings to be redacted. The Appeal sought to reverse and set aside an order made below for leave to enforce the final award (“Final Award”) issued in an arbitration between the parties.
2 SUM 4 raised the question of the legal basis upon which the court may make orders to protect the privacy of arbitration enforcement proceedings in Singapore. I dismissed SUM 4 on 25 April 2023 and now provide the detailed grounds for my decision.
3 The appellant is the Republic of India (“India”). The respondent, Deutsche Telekom AG (“DT”), is a multinational company incorporated under the laws of the Federal Republic of Germany.
4 An Indian state-owned entity, Antrix Corporation Ltd (“Antrix”), and a company of which DT was a shareholder, Devas Multimedia Private Limited (“Devas”), were parties to an agreement which was subsequently terminated. DT commenced arbitration proceedings seated in Geneva, Switzerland, against India, contending that India's annulment of the agreement was in violation of a bilateral investment treaty between India and Germany (the “Arbitration”). Following the tribunal's issuance of an interim award (“Interim Award”) in DT's favour, India applied to the Swiss Federal Supreme Court to set aside the Interim Award but was unsuccessful. The quantum stage of the Arbitration was then heard and the Final Award in the Arbitration was rendered thereafter. DT then commenced HC/OS 900/2021 in Singapore (the “OS 900 Enforcement Proceedings”) and obtained an ex parte order of court (namely, HC/ORC 4992/2021) granting it leave to enforce the Final Award in Singapore (the “ORC 4992 Leave Order”) on 3 September 2021.
5 It is relevant to note that DT had applied under HC/SUM 4109/2021 (“SUM 4109”) for the OS 900 Enforcement Proceedings as well as other applications filed in relation to them to not be heard in open court, for information relating to the OS 900 Enforcement Proceedings, SUM 4109 and the parties' identities to be concealed, for the court file to be sealed and for any published report of the judgment or grounds of decision to be redacted. The parties corresponded in relation to SUM 4109 and eventually arrived at a consent order, HC/ORC 1321/2022 (the “ORC 1321 Consent Order”) dated 19 January 2022. The ORC 1321 Consent Order required the proceedings to be heard otherwise than in open court, the court file to be sealed and any published judgment given in relation thereto to be redacted.
6 India subsequently applied on 11 January 2022 in HC/SUM 155/2022 (“SUM 155”) to set aside the ORC 4992 Leave Order. On 31 March 2022, the OS 900 Enforcement Proceedings and other related proceedings were transferred to the Singapore International Commercial Court (the “SICC”) by way of SIC/OS 8/2022 (“OS 8”). The SICC eventually dismissed SUM 155 (amongst other applications) on 30 January 2023. India then brought this Appeal against the dismissal of SUM...
To continue reading
Request your trial-
The Republic of India v Deutsche Telekom AG
...v Indian Overseas Bank [2023] 2 SLR 261 (refd) Reecon Wolf, The [2012] 2 SLR 289 (refd) Republic of India, The v Deutsche Telekom AG [2023] 2 SLR 77 (refd) Republic of the Philippines, The v Maler Foundation [2014] 1 SLR 1389 (refd) Sang Cheol Woo v Spackman, Charles Choi [2022] SGHC 298 (r......
-
Dbx v Dbz
...(distd) Harold Birnbaum v Islamic Republic of Iran DEC 124-967-2 (14 December 1995) (refd) Republic of India, The v Deutsche Telecom AG [2023] 2 SLR 77 (refd) Xstrata Coal Queensland Pty Ltd v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd [2020] Bus LR 954 (refd) Facts ......