The Singapore Court of Appeal delivered a judgment last month addressing circumstances in which the courts at the seat can interfere in procedural rulings by investment treaty arbitral tribunals.
The case arose from the Republic of India’s application to the Singapore-seated Tribunal in Vedanta v India requesting cross-disclosure of documents between the Vedanta arbitration, and the related Netherlands-seated Cairn v India arbitration. The Vedanta Tribunal issued an order putting in place a limited disclosure regime, permitting cross-disclosure on a case-by-case basis. Last year, India applied to the Singapore High Court seeking a declaration that it would not breach confidentiality if it were to disclose for the purpose of the Cairn arbitration any of the documents generated in the Vedanta arbitration.
Vedanta argued before the High Court that India’s application was an abuse of process. The High Court rejected this argument, but nonetheless refused to grant the declaration that India sought. In doing so, the High Court made some observations on confidentiality in investment treaty arbitrations, which we discussed in a previous blog post.
India thereafter appealed to the Singapore Court of Appeal, which, earlier this month, ruled that India’s application was “an abuse of process on several levels” and was “improper” and “vexatious”. The important takeaways are below.
- The Court of Appeal clarified that a tribunal’s decision could not be reviewed simply because it adopted a mistaken view of the lex arbitri. An error of law is insufficient to justify curial interference. A court may only interfere in situations prescribed under Singapore’s International Arbitration Act and/or the Model Law (e.g., a claim that the tribunal acted in excess of jurisdiction, in breach of natural justice or contrary to public policy).
- It is not legitimate to obtain guidance from the courts at the seat in relation to a general or abstract question of law (in the case at hand, the scope of confidentiality in treaty cases), and such conduct cannot be legitimised by tying the question to the facts. India’s application for declaration “was tantamount to an invitation to the court to act as an amicus to the Vedanta Tribunal [which] the court does not do”. This would leave the court “in an untenable situation of giving its view to the Vedanta Tribunal in the hope that the Vedanta Tribunal would give it some consideration, with the distinct possibility that the Vedanta Tribunal might decide to ignore the court’s view altogether”.
- The parties do not have a right of appeal against a tribunal’s decision. The application for declaratory relief was in substance a backdoor appeal, because if the court were to grant the declaration, it would “effectively overrule the Vedanta Tribunal’s decision.”
- The arbitral tribunal is the “master of its own procedure” and it would be “inappropriate for the court to intervene in its decision”. This would lead to a slippery slope as “whenever a party is dissatisfied with a tribunal’s decision on a procedural matter which the party claims is not covered by existing case law, it can invite the court to rule on the procedural matter in order for such a ruling to be used as a tool to persuade the tribunal to reconsider its decision”.
- India’s application was also a violation of the principle of minimal curial intervention, which dictates that courts “should not without good reason interfere with the arbitral process”, and should act with a view to “respecting and preserving the autonomy of the arbitral process”.
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Courts “should not without good reason interfere with the arbitral process”, and should act with a view to “respecting and preserving the autonomy of the arbitral process”.