Singapore's Apex Court Declines to Grant a Sealing Order Where the Confidential Nature of the Arbitration Was Already Lost

On June 9, 2023, the Singapore Court of Appeal released its decision in The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4 (India v Deutsche Telekom (CA)). The court was faced with an application for a sealing order in proceedings regarding the enforcement of an arbitral award. Ultimately, it declined to grant the order because the confidentiality of the underlying arbitration had already been “substantially” lost.¹

This decision serves as a reminder to parties who want to protect the confidentiality of their arbitration proceedings to ensure that information related to the arbitration should not be released into the public domain. This would include ensuring that there are sealing orders in place in related proceedings in other jurisdictions.

Background

The case arose out of an investor-state arbitration between the Republic of India (India) and Deutsche Telekom AG (Deutsche Telekom), a German company.²

An Indian state-owned entity (the Indian SOE) and one of Deutsche Telekom’s subsidiaries (the DT Subsidiary) were parties to an agreement that was ultimately terminated.³ Deutsche Telekom commenced arbitration proceedings against India, claiming that the termination of the agreement violated a bilateral investment treaty between India and Germany (the Arbitration).⁴ Deutsche Telekom received a favorable final award (the Final Award) and commenced enforcement proceedings in Singapore. It obtained a court order granting it leave to enforce the Final Award (the Leave Order).⁵

India unsuccessfully applied to set aside the Leave Order before the Singapore International Commercial Court (the SICC).⁶ It appealed to the Singapore Court of Appeal (the Appeal) and also applied for a sealing order so that any proceedings related to the Appeal would be heard in private, and any information or documents in the Arbitration (including the names of the parties) would be concealed.⁷ It premised its application on two grounds: (i) under Sections 22 and 23 of the International Arbitration Act 1994 (2020 Rev Ed) (the IAA) read with O 16 r 9(1) of the SICC Rules 2021 and (ii) under the inherent powers of the court.⁸

The Court of Appeal’s Decision

The Court of Appeal began by observing that the general position is that court proceedings should be open to the public, this being consistent with the “hallowed principle of open justice.”⁹ However, one of the exceptions to this was in arbitration-related court proceedings (such as enforcement proceedings), as provided for in the IAA.¹⁰ The court noted that the purpose of a sealing order under the IAA is to “protect the confidentiality of the arbitration itself.”¹¹ It thus reasoned that if the confidentiality of an arbitration had already been lost, the principle of open justice would strongly support lifting this statutory “cloak of privacy.”¹²

With that in mind, the Court of Appeal declined to grant the sealing order sought by India because the case at hand “was clearly a case where the confidentiality of the Arbitration had been lost”¹³ and thus there was “no compelling interest” in keeping the enforcement proceedings confidential.¹⁴ In reaching this conclusion, the court pointed to “multiple disclosures of considerable information relating to the Arbitration.”¹⁵

• First, the Final Award, an interim award, and an award issued in a related arbitration were all available online.¹⁶
• Second, India’s identity had been revealed in a publicly available decision by the Swiss Federal Supreme Court declining to set aside an interim award in the Arbitration.¹⁷
• Third, India and Deutsche Telekom had been identified as parties to enforcement proceedings in Singapore in an article published in the Global Arbitration Review.¹⁸ India’s lawyers also confirmed the parties’ identities in a LinkedIn post that reshared the article.¹⁹
• Fourth, documents in enforcement proceedings commenced by Deutsche Telekom in the U.S. and Germany were all publicly available.²⁰
• Finally, there were insolvency proceedings in India (involving the Indian SOE and the DT Subsidiary) that disclosed the identities of India and Deutsche Telekom as well as the outcome of the Arbitration.²¹

Accordingly, the Court of Appeal held that the enforcement proceedings did not merit confidentiality protection under the IAA.²²

The Court of Appeal further rejected India’s argument premised on the court’s inherent powers because it had been advanced on the same grounds as India’s argument under the IAA, namely the confidentiality of the Arbitration.²³

Key Takeaways

The Court of Appeal’s decision comports with common sense: To grant a sealing order where the confidentiality of an arbitration is already “substantially”²⁴ lost would be, in the court’s words, an “empty exercise.”²⁵ However, it leaves open the question of where Singapore courts will draw the line: Is there a situation where the courts will grant a sealing order even though some information relating to the arbitration has been made public?

The main takeaway from this decision is that parties involved in an arbitration (and their counsel) should ensure that information related to the arbitration not be released into the public domain. Furthermore, if there are related proceedings in other jurisdictions, parties should ensure that there are sealing orders (or their equivalent) in place. This will increase the chances of obtaining a sealing order in subsequent proceedings.

¹ India v Deutsche Telekom (CA), ¶ 38.
² India v Deutsche Telekom (CA), ¶ 3.
³ India v Deutsche Telekom (CA), ¶ 4.
⁴ India v Deutsche Telekom (CA), ¶ 4.
⁵ India v Deutsche Telekom (CA), ¶ 4.
⁶ India v Deutsche Telekom (CA), ¶ 6; also see Deutsche Telekom AG v The Republic of India [2023] SGHC(I) 7.
⁷ India v Deutsche Telekom (CA), ¶ 8.
⁸ India v Deutsche Telekom (CA), ¶ 8.
⁹ India v Deutsche Telekom (CA), ¶ 14.
¹⁰ India v Deutsche Telekom (CA), ¶¶ 15-16.
¹¹ India v Deutsche Telekom (CA), ¶ 23.
¹² India v Deutsche Telekom (CA), ¶ 24.
¹³ India v Deutsche Telekom (CA), ¶ 27.
¹⁴ India v Deutsche Telekom (CA), ¶ 38.
¹⁵ India v Deutsche Telekom (CA), ¶ 30.
¹⁶ India v Deutsche Telekom (CA), ¶ 31.
¹⁷ India v Deutsche Telekom (CA), ¶ 32.
¹⁸ India v Deutsche Telekom (CA), ¶ 33.
¹⁹ India v Deutsche Telekom (CA), ¶ 34.
²⁰ India v Deutsche Telekom (CA), ¶ 35.
²¹ India v Deutsche Telekom (CA), ¶ 37.
²² India v Deutsche Telekom (CA), ¶ 42.
²³ India v Deutsche Telekom (CA), ¶ 43.
²⁴ India v Deutsche Telekom (CA), ¶ 38.
²⁵ India v Deutsche Telekom (CA), ¶ 28.