Should Tribunal's Deliberations Remain Confidential? ' Singapore Answers The When And How

• Published date: 25 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Khaitan & Co LLP
• Author: Mr Kartikey Mahajan, Prerna Jain and Aayushi Singh

Brief overview

On 28 June 2023, Singapore International Commercial Court ("SICC") added another significant ruling to Singapore's arbitral law regime by way of its judgment in CZT v CZU, (2023) SGHC(I)11 ("CZT v CZU"). In CZT v CZU, SICC was faced with an issue regarding the production of the deliberations of an arbitral tribunal in a setting aside application and ruled, for the first time, that such deliberations are confidential except in 'the very rarest of cases.'

Factual background

Pursuant to disputes arising between the parties, in April 2019, CZU commenced a Singapore-seated arbitration against CZT under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, 2017 ("ICC Rules").

As per the ICC Rules, Professor Douglas Jones AO, and Professor Keechang Kim ("Majority") submitted the draft award to the ICC Court for scrutiny, in March 2021. Upon scrutiny, the ICC Court approved the revised draft award in May 2021. However, this version of the award was not shared with the parties. Instead, the Tribunal submitted another version of the draft award to ICC, which was shared with the parties on 20 September 2021 ("Final Award"), after further scrutiny.

In the Final Award, the Majority found CZT liable for contractual breach and ordered it to pay damages (along with interests and costs) to CZU. Notably, the Final Award was not signed by Dr Philipp Habegger (CZT's nominee arbitrator), who shared his dissenting opinion with the parties on the same day. Interestingly, along with his reasons for disagreement (on substance), Dr Habegger levelled several allegations against the Majority including "[they] engaged in serious procedural misconduct," "conceal[ed] the true ratio decidendi from the parties", and "lack of impartiality."

Subsequently, CZT sought setting aside of the Final Award and sought production of the Tribunal's records of deliberation, in support of its case. Primarily, CZT intended to utilize the Tribunal's deliberations to establish few of the allegations raised by Dr Habegger, in his dissenting opinion.

SICC's decision: Confidentiality of Tribunal's deliberations

The principal issue for SICC's consideration was the circumstances when the Tribunal may be ordered to produce its deliberations, in support of an application to set aside the award.

In the absence of any statutory provision in Singapore to allow confidentiality of arbitrators' deliberations, SICC placed reliance on implied legal obligation and...