Singapore Court confirms narrow scope for revealing arbitrators' deliberations

Background

The parties entered into a contract, under which the plaintiff would deliver certain materials to the defendant. The defendant appointed a contractor to construct products from the materials.

The defendant alleged that the materials were defective and, in 2019, commenced arbitration proceedings against the plaintiff. The arbitration was seated in Singapore and conducted pursuant to the ICC Rules.

The majority found the plaintiff liable and awarded the defendant damages. The third arbitrator declined to sign the final award and issued a dissent alleging that the majority “engaged in serious procedural misconduct”, “continued misstating of the record”, attempted “to conceal the true ratio decidendi from the Parties” and carried out a “distortion of the deliberation history” (the Dissent).

When asked by the plaintiff to share the tribunal’s deliberations, each of the arbitrators declined.

The plaintiff therefore filed production applications seeking disclosure of the deliberations in support of its application to set aside the award.  The applications were determined on the basis of Order 110 r 15(3) of the Rules of Court (2014).

Implied obligation in law that a tribunal’s deliberations are confidential

The principal issue of law for the SICC to decide was when arbitrators could be ordered to produce records of their deliberations as evidence in aid of applications to set aside their awards.

It was common ground that “the default position is that arbitrators’ records of deliberations are confidential and are therefore protected against production orders.” The SICC noted that the confidentiality of deliberations between arbitrators exists as an implied obligation in law.

The SICC also confirmed that there are well-recognised policy reasons to protect such confidentiality, including that it facilitates frank discussion between arbitrators, and helps minimise spurious annulment or enforcement challenges based on matters raised in arbitrator deliberations.

Exceptions to the confidentiality of deliberations

However, the SICC found that the confidentiality of arbitrator deliberations does not apply to “essential process issues” (for example, where an arbitrator has been excluded from deliberations). The SICC explained that essential process issues do not involve an arbitrator’s thought process or the reasons of his decision-making, and therefore the policy reasons described above are inapplicable.

Beyond essential process issues, the SICC stated that a case may fall within an exception to the general rule that confidentiality over arbitrator deliberations must be maintained if “the facts and circumstances are such that the interests of justice in ordering the production of records of deliberations outweigh the policy reasons for protecting the confidentiality of deliberations.” However, it would take “a very compelling case” (“the very rarest of cases”) to outweigh these strong policy reasons. The SICC commented that to fall within this exception, the case must “involve allegations that are very serious in nature”, such as allegations of corruption, and the plaintiff must show that “the allegations have real prospects of succeeding”. 

There was no real prospect of success

On the facts, the SICC considered that the plaintiff’s request did not fall within an exception to the confidentiality of arbitrator deliberations.

Whilst the plaintiff argued that the majority lacked impartiality, and the SICC noted that this could arguably constitute an exception, the SICC found that the plaintiff had no real prospect of succeeding. The plaintiff’s reliance on the Dissent was clearly insufficient to outweigh the policy reasons in favour of deliberations remaining confidential. The Dissent did not state any basis for the “bare allegations” made against the majority, and certain allegations were the arbitrator’s “own subjective views or opinions”. 

Comment

The decision confirms that the Singapore courts’ support for the preservation of confidentiality in arbitration proceedings extends to a tribunal’s deliberations and provides guidance on the high threshold that an applicant must meet to obtain a production order over such deliberations.  

Judgment: CZT v CZU