The Republic of India v Deutsche Telekom AG

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 09 June 2023
• Neutral Citation: [2023] SGCA(I) 4
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 1 of 2023 (Summons No 4 of 2023)
• Hearing Date: 25 April 2023,31 March 2023
• Citation: [2023] SGCA(I) 4
• Year: 2023
• Plaintiff Counsel: Cavinder Bull SC, Lin Shumin, Ng Shi Min Nicole and Kenneth Teo (Drew and Napier LLC)
• Defendant Counsel: Koh Swee Yen SC, Joel Quek, Axl Rizqy and Victoria Liu (WongPartnership LLP)
• Subject Matter: Arbitration,Confidentiality,Privacy,Civil Procedure,Inherent powers
• Published date: 09 June 2023

Sundaresh Menon CJ: Introduction

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.¹ The Appeal sought to reverse and set aside an order made below for leave to enforce the final award issued in an arbitration between the parties.

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.

Facts The parties

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.²

Background to the dispute

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.³ 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”).⁴ Following the Tribunal’s issuance of an Interim Award in DT’s favour, India applied to the Swiss Federal Supreme Court to set aside the Interim Award but was unsuccessful.⁵ The quantum stage of the Arbitration was then heard and the Final Award in the Arbitration was rendered thereafter.⁶ 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 2021.⁷

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.⁸

India subsequently applied on 11 January 2022 in HC/SUM 155/2022 (“SUM 155”) to set aside the ORC 4992 Leave Order.⁹ 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”).¹⁰ The SICC eventually dismissed SUM 155 (amongst other applications) on 30 January 2023.¹¹ India then brought this Appeal against the dismissal of SUM 155 with costs.

It should be noted that DT had also commenced enforcement proceedings against India with respect to the Final Award in other jurisdictions such as the United States of America (“USA”) and Germany.¹² Additionally, Antrix had commenced winding-up proceedings against Devas in 2021 before India’s National Company Law Tribunal (the “NCLT”). The NCLT ordered that Devas be wound up, and this winding-up order was upheld on appeal by India’s National Company Law Appellate Tribunal (“the “NCLAT”) and also by the Supreme Court of India.¹³

The present application

The present application in SUM 4 proceeded on two bases: ss 22 and 23 of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”) read with O 16 r 9(1) of the Singapore International Commercial Court Rules 2021 (“SICC Rules 2021”), and/or the court’s inherent powers. Specifically, India sought the following orders (the “SUM 4 Orders”): that CAS 1 and any application filed in CAS 1, including this application, be heard in private; that any information (including the identities of the parties) or document relating to CAS 1 or any application filed in CAS 1 not be revealed or published and be concealed; that the court file for CAS 1 be sealed from inspection by any third parties; that the identity of the parties not be identified in any hearing lists; that, if any judgment or grounds of decision is given in CAS 1, this application, or any other applications filed in CAS 1, there be no publication, including in any law report or professional publication, of the identities of the parties or any other information that may reveal the identities of the parties; and costs of and incidental to this application be in the cause of the appeal in CAS 1.

The parties’ cases

It is important to note that India’s case rested primarily on its contention that the SUM 4 Orders were necessary to protect the confidentiality of the Arbitration.¹⁴ India submitted that the Appeal would entail the disclosure of confidential information because the Arbitration formed its essential factual background¹⁵ and the Appeal arose from the OS 8 proceedings.¹⁶ Details of another related arbitration between Devas and Antrix were also raised in SUM 155 and it was submitted that this too should be subject to the principle of confidentiality.¹⁷ While India accepted that some information relating to the Arbitration had been published online, India maintained that the confidentiality of the Arbitration had not been entirely lost, and that there was information pertaining to OS 8 and the Appeal which was not yet in the public domain.¹⁸

India also contended that it would be in the interests of justice for this court to grant the orders sought. There was a real risk that India would suffer prejudice if the SUM 4 Orders sought were not granted because information relating to the Arbitration had already been misused by third parties (such as an entity known as “DevasFacts”) to portray India negatively.¹⁹

On the other hand, DT argued that the orders sought in SUM 4 would serve no real purpose because the information pertaining to the Arbitration and the related proceedings was already in the public domain.²⁰ DT submitted that it was not relevant or material that the ORC 1321 Consent Order had been granted previously because the extent of information about the Arbitration and the related proceedings presently available in the public domain was significantly more than was the case when DT had taken out SUM 4109, and also because DT’s previous concern over alerting creditors with competing claims to India’s assets was no longer a live concern.²¹

DT also submitted that India’s reliance on the court’s inherent powers to grant sealing orders did not assist its case because it was not in the interests of justice to invoke these powers.²² The principle of open justice should be the predominant consideration in the present circumstances, this being an investment-treaty arbitration which would touch on matters of public interest.²³

In any case, DT also contended that there was no basis for this court to exercise its inherent powers given the lack of a nexus between the OS 900 Enforcement Proceedings and the alleged misuse of information that was said to have taken place as part of a public relations campaign run by anonymous entities to harm India’s reputation.²⁴ Rather, India’s purported concerns in this regard lacked bona fides given that India had been content to publicise decisions and information relating to the Arbitration when this was in its own interests.²⁵

The law on protecting the confidentiality of arbitrations and related proceedings

I begin with the observation that the court may grant a sealing order pursuant to its inherent powers to regulate its own processes and make appropriate orders to achieve the ends of justice (Re Tay Quan Li Leon [2022] 5 SLR 896 (“Leon Tay”) at [22]–[23]; BBW v BBX and others [2016] 5 SLR 755 at [25]–[30], referring to the inherent powers of court reflected in O 92 r 4 of the Rules of Court (Cap 322, 2014 Rev Ed)). However, the general rule is that the making of such privacy orders is a departure from the hallowed principle of open justice and should therefore be the exception rather than the norm. This is so because open justice is fundamental to ensuring public confidence in and the integrity of the judicial system (Leon Tay at [17]).

That being said, the general rule may be departed from in certain circumstances – for instance, in cases involving an abuse of process or the need to prevent a miscarriage of justice or when a statute provides otherwise. The last of this was relevant here because the Appeal pertained to arbitration-related proceedings, and the court’s power to grant privacy orders has been statutorily provided for in ss 22 and 23 of the IAA, which read as follows:

Proceedings to be heard in private

22.—(1) Subject to subsection (2), proceedings under this Act in any court are to be heard in private. (2) Proceedings under this Act in any court are to be heard in open court if the court, on its own motion or upon the application of any person (including a person who is not a party to the proceedings), so orders.

Restrictions on reporting of proceedings heard in private

23.—(1) This section applies to proceedings under this Act in any court heard in private. (2) A court hearing any proceedings to which this...