The Singapore High Court has held that parties are not entitled to rely on provisions in the International Arbitration Act to apply for in camera proceedings and for sealing orders where the action before the court is not specifically brought under the IAA; nevertheless, the High Court may take into consideration the policy that arbitral proceedings remain confidential in exercising its inherent jurisdiction to make such orders.
Section 22 of the Singapore International Arbitration Act (IAA) provides that proceedings brought under the IAA be heard otherwise than in open court (i.e., in camera proceedings), while section 23 provides for restrictions on the reporting of such in camera proceedings. In BBW v. BBX (2016) SGHC 190, the Singapore High Court considered whether a party could rely on those provisions of the IAA to apply for proceedings to be held in camera and for the sealing of court documents in an action that was not brought under the IAA but nevertheless was closely connected to related arbitral proceedings.
In the court proceedings (the Suit), BBW prayed for (1) a declaration that there was a valid indemnity agreement between him and a deceased party, and (2) the enforcement of that agreement against BBX. BBX was the personal representative of the deceased party’s estate. BBW argued that the deceased party had agreed to indemnify him against all liability, loss, or damage arising out of an arbitration (the Arbitration) between BBW as respondent and the claimant, a third party to the Suit.
In the Arbitration, the claimant sought damages from BBW pursuant to an agreement by BBW to purchase shares from the claimant. BBW’s position in the Arbitration was that those shares were beneficially owned by the deceased party, who was the father-in-law of the claimant in the Arbitration. The deceased party and the claimant in the Arbitration were engaged in litigation in Seychelles in relation to the deceased party’s claim to those shares.
The High Court’s Analysis
The High Court began its analysis by making clear that sections 22 and 23 of the IAA only apply to “proceedings under this Act” (i.e., the IAA); on a plain reading of those provisions, they only applied to specific actions brought under the IAA (e.g., an action brought to enforce an arbitral award, an application to set aside an award, and so on).
The High Court then considered BBW’s arguments based on another High Court decision in AZT v. AZV (2012) 3 SLR 794, where the court had granted a sealing order in an originating summons action concerning the apportionment of liability between co-respondents in a Singapore arbitration. In coming to its decision, the court in AZT referred to section 22 of the IAA and also referred to the concept of sealing orders more generally (but without making explicit reference to section 23 of the IAA). BBW submitted that this decision lent weight to the argument that the court had power to grant sealing orders sought pursuant to the IAA.
The High Court rejected BBW’s interpretation of AZT on the basis that
- there was nothing on the face of the application in AZT to indicate that it was based on section 23 of the IAA;
- the court’s analysis in AZT did not consider the wording of section 23 of the IAA, which it ought to have done had it considered that it was dealing with an application under that provision;
- it is difficult to conceive how the application in AZT, which was for the apportionment of liability, could have been an application under the IAA; and
- section 23 of the IAA was not a provision concerning the sealing of court documents, and therefore the court in AZT could not have granted such an application pursuant to that provision.
Despite this, the High Court nevertheless found on analysis of AZT and other case law that it had the power, pursuant to its inherent jurisdiction, to grant orders for the sealing of documents and in camera proceedings after weighing the competing interests of the preservation of confidentiality of arbitral proceedings against the need for open justice. On the facts of BBW v. BBX, the High Court held that it was appropriate to exercise its inherent jurisdiction and granted BBW’s application on that basis.
The difference between granting an application pursuant to the court’s inherent jurisdiction and section 22 of the IAA is that in the latter situation, the IAA provides a mandatory regime for proceedings to be held in camera, whereas in the former situation, confidentiality in arbitration is but one of the factors that will be considered by the court in seeking to strike a balance between competing policy considerations.