ARBITRAL DELIBERATIONS STAY SECRET DESPITE ALLEGATIONS TANTAMOUNT TO TRIBUNAL DISHONESTY

The Singapore International Commercial Court has refused to order disclosure of the deliberations of a three-member tribunal in a Singapore-seated ICC arbitration, despite the dissenting arbitrator's "serious allegations tantamount to accusing the Majority of dishonesty". This case shows that there is a high bar to obtain disclosure of a tribunal's deliberations, even if one of the arbitrators alleges serious procedural misconduct.

The court considered that it could assess most of the due process and impartiality issues, without ordering disclosure of deliberations, based on the arbitral record.

With respect to the allegations (in the minority arbitrator's dissent, repeated in the annulment proceedings) that the majority's award did not reflect the majority's "true reasons" and that the majority "provided an untruthful account of the deliberation history and misstated the record", the court concluded that these did not have a real prospect of success and therefore disclosure was not ordered.

Arbitral deliberations are confidential, with rare exceptions

While the rules of various arbitral institutions expressly protect the confidentiality of arbitrators’ deliberations, there is no equivalent provision in the Singapore International Arbitration Act. Nevertheless, the court declared that the confidentiality of deliberations, like the confidentiality of arbitration proceedings, exists as an implied obligation in law. The confidentiality of deliberations extends also to the ICC Court's scrutiny of the draft award.

The court considered it possible that questions of fact, and the extent of consultation between arbitrators, could be grounds for ordering disclosure of a tribunal's deliberations. However, there are very strong policy reasons for protecting deliberations’ confidentiality and "exceptions are only to be found in the very rarest of cases".

The arbitration award and dissent

The arbitration arose from a contract for the seller to deliver packages of materials, machinery, equipment, as well as provide documents, design and services to a buyer. The Tribunal comprised Professor Douglas Jones AO, Professor Keechang Kim and Dr Philipp Habegger.

The majority of the Tribunal, comprising Professor Jones and Professor Kim awarded damages, interests and costs for delivery of a defective package.

The minority, Dr Habegger, disagreed with the majority's findings, stated that he had “lost any and all trust in the impartiality of [his] fellow arbitrators”, and refused to sign the award. He also penned a dissent, stating a host of complaints, including that the majority:

• “engaged in serious procedural misconduct” and “continued misstating […] the record”,
• attempted “to conceal the true ratio decidendi from the Parties”;
• engaged in “distortion of the deliberation history”;
• lacked impartiality; and
• knowingly stating an incorrect reason for the minority's refusal to sign the award.

Request to preserve the Tribunal's deliberation records

The seller requested that the ICC Court and the arbitrators preserve the full record of deliberations. Each arbitrator responded differently.

• Dr Habegger confirmed that he would preserve the records to the extent his professional duties so require.
• Prof Jones confirmed that he would preserve the records in so far as they exist and without accepting that any of the documents can be disclosed.
• Prof Kim declined to respond to the request regarding the preservation of records, taking the view that there was no ground for the request.

Application for annulment of the award and production of the Tribunal's deliberation records

The seller then applied to annul the award in the Singapore courts on the basis that:

• there was a breach of natural justice;
• the majority exceeded the terms or scope of the submission to arbitration; and
• the arbitral procedure was not in accordance with the agreement of the parties; and
• the award is in conflict with the public policy of Singapore.

Alongside its application for annulment, the seller requested that the Singapore court order the arbitrators to produce:

• the Tribunal’s records of deliberations correspondence, notes, and drafts between any members of the Tribunal and/or the ICC; and
• documentary evidence within the Tribunal’s records of deliberations referred to in the minority's dissent.

The seller argued that these documents needed to be produced because they were important to their case that:

• the majority decided a key liability issue for the true reasons that are not contained in the award and/or as a result of a breach of a fair hearing; the chain of reasoning adopted by the majority could breach the fair hearing rule;
• the majority attempted to conceal the true reasons behind the award by issuing an earlier draft for approval by the ICC Court, before making material changes to it in the final award; and
• the majority lacked impartiality.

Disclosure of deliberations was unnecessary and based on insufficient evidence

The court held that, as a general rule, tribunal deliberations are confidential. The court acknowledged the "well-recognised policy reasons" for protecting the secrecy of deliberations, including to allow frank discussions between arbitrators, to allow arbitrators to change their conclusions after further reflection, and to minimise spurious annulment or enforcement challenges.

An exception lies in "very rare" circumstances where there is a compelling case that the interests of justice in ordering disclosure of deliberations outweigh the policy reasons for the protection of confidentiality of deliberations. The courts considered that such a case would have to involve allegations that are very serious in nature and have real prospects of succeeding. For example, the court stated that allegations of corruption would be serious enough because such allegations attack the integrity of arbitration at its core. An order should be made for the disclosure of deliberations in such a case, provided that none of the statutory grounds for objecting to a production request applyt, such as privilege or procedural economy.

On the facts, the above requirements for such an exception were not met. The court decided that the fair hearing rule did not displace the confidentiality of deliberations. Allegations that the majority went beyond the parties’ cases or failed to give the seller an opportunity to comment could be decided on the arbitration record alone. Therefore, disclosure of the deliberation records was not necessary.

Further, while arbitrator impartiality was a sufficiently serious allegation, the seller failed to show that they had real prospects of success. The minority's dissent contained bare allegations of the majority's dishonesty without stating "the facts that allegedly support [the minority's] views or opinions".

How we can help you if arbitral impropriety is alleged

We have significant experience in disputes where various forms of arbitral impropriety have been alleged. We have worked with our clients both to protect the arbitral procedure and award, as well as to explore potential recourse against arbitrator impropriety.

If you want to find out more about how to handle allegations of arbitrator impropriety in arbitrations more generally, please contact one of our Singapore arbitration partners or your usual Herbert Smith Freehills Prolegis contact.