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In continuation of Part 1 of this series (Comparison of Arbitration Regime in India, Singapore and England and Wales – Part 1), I would be covering the role of Court in selection of Arbitrators, disclosure of conflicts by arbitrators and role of court in when appointment is challenged, ethical duties of arbitrators, evidentiary assistance and grant of provisional relief by courts in support of Arbitrations, disclosure or discovery in arbitration, arbitration and electronically stored information, confidentiality in Arbitrations, rules of privilege in Arbitration, and arbitral secretaries in this part. With much gratitude, I would like to thank Mr. Sumeet Kachwaha, Mr. Alvin Yeo, Ms. Lim Wei Lee, and Ms. Angeline Welsh for their contributions in the International Bar Association’s (IBA) guide to the law and practice of arbitration published in 2018 which is the primary source of information used in this series to analyze the arbitration practice in these three jurisdictions.
Role of Court in selection of Arbitrators
In India, the courts are involved in appointment of an arbitrator only if parties are unable to agree upon a sole arbitrator or if the two appointed arbitrators fail to agree on a third arbitrator (and there is no party agreed mechanism in place to make the appointment). The role of the court is non-interventionist. By reason of the 2015 Amendment, it is confined to examining the existence of an arbitration agreement. The English Arbitration Act, 1996 has similar default mechanism in case in procedure set out in the arbitration agreement fails.
In Singapore under both the International Arbitration Act and the Arbitration Act where parties have agreed on a sole arbitrator or the default of a sole arbitrator applies, parties are to agree to the joint nomination of the sole arbitrator; failing which, the arbitrator will be appointed by the President of the Court of Arbitration of Singapore International Arbitration Centre. It is same where parties have agreed on a three-member tribunal. No appeal lies against any decision by the High Court or the President of the Court of Arbitration of SIAC on the appointment of arbitrators.
Disclosure of Conflicts by Arbitrators and role of Court in when appointment is challenged
In this regard, the grounds to challenge the appointment of arbitrators are similar under Indian and Singaporean legal regime.
As per Section 12 of the Indian Arbitration Act, 1996, when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose (in writing) any circumstance likely to give rise to justifiable doubts as to his independence or impartiality. An arbitrator can be challenged only if circumstances exist that give rise to justifiable doubts as to his independence or impartiality or if he does not possess the qualifications agreed to by the parties.
In Singapore at the appointment stage, the arbitrator is obliged to disclose to the parties and/or to the relevant appointing authority (as the case may be) any circumstance that may give rise to justifiable doubts as to his or her independence as soon as reasonably practicable. This obligation is a continuing one; the arbitrator must disclose to the parties and/or any relevant appointing authority should any circumstance of similar nature arise in the course of the arbitration.
Just like the Indian Arbitration Act, there are two main grounds of challenge under the AA, IAA and SIAC Rules:
(a) circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality or independence; and/or
(b) the arbitrator does not possess the qualifications agreed to by the parties.
In the absence of an agreed challenge procedure by the parties, the procedure in the AA, IAA, or SIAC Rules applies.
In England, when an arbitrator has a prior interest that might raise doubts about his impartiality, he should disclose that interest at the earliest opportunity. Failure to do so will give rise to a ground to challenge the arbitrator by applying to any body given authority by the parties to decide such challenges (typically an arbitral institution) or, provided the parties have exhausted every contractually-agreed procedure for challenges, to the court.
Ethical Duties of Arbitrators
In Singapore, the SIAC has issued a Code of Ethics for an arbitrator; SIAC-appointed arbitrators are required to confirm their agreement to abide by the Code. The English Arbitration Act requires arbitrators to act fairly and impartially. They must adopt procedures suitable to the circumstances of the particular case, avoid unnecessary delay or expense and provide a fair means of resolving the dispute referred to them. The common law imposes further duties such as the duty to render an enforceable award.
In India, although the law does not prescribe any code of conduct or ethical duties from arbitrators, as per principles applicable to all judicial and quasi-judicial tribunals, the legal standard in deciding a challenge to an arbitrator is that justice should not only be done but seen to be done. Actual bias is never required. The test is whether there is a real likelihood of bias. The law in this regard is part of the administrative law of India. In one of my posts (Comparative Analysis of Challenging an Award on the ground of breach of Natural Justice in England and Wales, Singapore and India), I had covered a comparative analysis of challenging an award on the grounds of breach of natural justice in these three jurisdictions and found that Indian law does not explicitly recognize breach of natural justice by an arbitrator as a ground to set aside an award and its only by the force of a case law that it is recognized under the ‘Public Policy’
Grant of Provisional Relief by Courts in Support of Arbitrations
Under the Indian Arbitration Act, courts have very wide powers to grant interim measures before, during, or even after the award is pronounced (but before it is enforced). However, post the 2015 Amendment, a court shall entertain an application for grant of interim measures post formation of the arbitral tribunal, only if it is satisfied that the facts and circumstances of the case make it inefficacious for the party to approach the arbitral tribunal for the said relief. In this regard, the recent case of Delhi High Court in (Delhi High Court: Whether there is a threshold bar or inherent lack of jurisdiction with Indian courts to deal with BIT arbitrations; Whether the BIT arbitrations and suits relating to BIT arbitrations are governed by private international law or any other system of law including domestic law) marks great importance. The case involves the issues related to grant of anti-arbitration injunction by the Court.
In India, a court ordered relief will remain in force following constitution of the arbitral tribunal, but would not prevent the tribunal from reaching final conclusions which may be at variance of the court order.
A somewhat similar approach has been adopted by the English Courts in this regard. The English Courts may grant interim injunctions to support arbitrations if the arbitral tribunal has no power or is unable to act effectively. In a recent case the English court held that where there is sufficient time for an applicant to obtain relief from an expedited tribunal or emergency arbitrator, it does not have power to grant urgent relief. The English court can direct that its order shall cease to have effect, in whole or in part, on the order of the tribunal.
However, in Singapore, the situation is bit different. The Singapore courts are empowered to grant the same interim reliefs as those available to the arbitral tribunal under both the IAA and AA; note, however, that this specifically excludes the powers to grant security for costs and discovery of documents. The court can grant interim relief both before and after constitution of the tribunal.
Under the IAA, the Singapore courts may grant interim relief in aid of arbitration, regardless of the seat of the arbitration. The Court will, however, grant interim relief only where the arbitral tribunal is unable to or in exceptional cases of urgency, and insofar as necessary for the preservation of evidence or assets. If the matter is not one of urgency, an application to court for interim relief can be brought only with the permission of the arbitral tribunal or the agreement in writing of the other parties.
Under both the IAA and AA, any court-ordered provisional relief will cease to have effect when the arbitral tribunal makes an order which expressly relates to the whole or part of the court’s interim order.
Evidentiary Assistance of Courts in Support of arbitration
The position in India and England are similar while Singapore has one major difference in this regard. In India, the arbitral tribunal or any party with the approval of the tribunal may apply to the competent court for assistance in taking evidence. Going beyond the Model Law, the Indian Arbitration Act states that any person failing to attend in accordance with the court direction, or refraining from giving evidence, or guilty of contempt of the arbitral tribunal, shall be subject to like penalties and punishments as are applicable in law. Judicial assistance also extends in a similar manner to any document to be produced or property to be inspected. This provision is applicable to offshore arbitrations as well (unless the parties have provided otherwise).
The English courts have the same powers to act in support of arbitration as they have in litigation. They have the power to summon witnesses, require a person to produce documents or material evidence, preserve evidence, make freezing orders and appoint a receiver. The English court will only exercise these powers if the tribunal cannot act or cannot act effectively; the court’s powers are intended to support the arbitration and not to supplant the powers of the tribunal.
In Singapore, under the AA and IAA, any party to an arbitration may apply to the Singapore Courts for a subpoena to testify or a subpoena to produce documents; a subpoena if granted by the Court compels the attendance before an arbitral tribunal of a witness wherever he/she may be within Singapore. The difference in Indian and Singaporean regime lies in the fact that under the Singapore law, a party cannot be compelled to produced documents which he/she could not be compelled to produce in a civil trial of the action, e.g. if the documents are privileged.
Disclosure or Discovery in arbitration
The position is similar in England and Singapore in this regards. In Singapore, the tribunal has broad discretion to determine the relevance, materiality and admissibility of all evidence as it sees fit. Generally, in dealing with requests for documents, Singapore arbitrators commonly refer to the IBA Rules on Evidence. Extensive general discovery with full lists and disclosure of documents is usually discouraged.
There is no requirement in English law to disclose any documents in an arbitration and so disclosure can be dispensed with entirely in some cases. The Arbitration Act confers a wide discretion on tribunals which enables them to tailor the extent of disclosure to the requirements of particular cases.
In India, however, the discovery is through a court order and the court would allow it only if it is considered relevant or for saving costs. The Indian courts do not order discovery as a matter of routine (or by way of a fishing expedition) as it may carry adverse consequences for the opposite party. If a document is referred to or relied upon in a pleading, then generally discovery is to be allowed.
Arbitration and electronically stored information
Electronic discovery is not yet the norm in Singapore arbitrations, although it is gaining favour. There are no applicable guidelines on control procedures for handling data and inspection. This is generally left to the parties’ agreement, but Singapore arbitrators may draw appropriate guidance from the Singapore courts’ practice directions on electronic disclosure.
In India, elaborate rules have been prescribed under the Indian Evidence Act for electronically stored information. However, the said Act does not apply to arbitrations and it is rare for Indian arbitrators to require compliance with the same.
In English law, there are no special rules for handling electronically stored information in the context of arbitrations. Parties usually look to the best practices developed in relation to litigation, and increasingly arbitration, and adapt them to the case accordingly. Tribunals typically try to avoid wide-ranging electronic disclosure exercises.
Confidentiality in Arbitrations
Singapore and England recognizes the concept of confidentiality in Arbitrations where this is absent in India. Singapore law implies a general obligation of confidentiality into all Singapore arbitrations. Parties are under an implied undertaking not to use documents disclosed for any purpose other than the dispute or arbitration proceedings in which they were obtained. Disclosure or use of such documents can only take place with consent of the other party or by order of court where it is in the interests of justice or reasonably necessary. The IAA and AA safeguard confidentiality in arbitration-related court proceedings; for example, parties can apply for proceedings to be heard in camera and for the court file to be sealed from public access.
The English Arbitration Act does not mention confidentiality, but the courts will imply a duty of confidentiality on the parties to an arbitration and the tribunal to maintain the confidentiality of the hearing, the documents generated and disclosed during the proceedings and the award itself. This implied duty is, however, subject to broad exceptions. Confidentiality can be waived with the leave of the court if certain criteria are met. Such a waiver of confidentiality must be in the interests of justice or in the public interest, necessary for the protection of the legitimate interests of an arbitrating party and with the express or implied consent of the party that produced the document.
Indian law does not impose any such obligation. Indeed, given the transparency laws of the country (including the Right to Information Act, 2005) the state and its agencies cannot agree to keep arbitration proceedings confidential. Similarly large corporations may also find it difficult to have any such agreement.
Rules of Privilege in Arbitration
Under Indian law, arbitrators do not have the same protection as judges or magistrates and as such do not have any privilege against examination as to their conduct or as to anything which may come to their knowledge in the discharge of their functions. However, no arbitrator can be summoned in a court proceeding as a matter of routine. This would be done by a court (if at all) sparingly and after due deliberation. Further, an arbitrator cannot be summoned as a witness merely to show how he has arrived at his conclusions.
Conciliation proceedings initiated under the provisions of the Act are privileged and the conciliator or parties cannot testify as to views expressed, or proposals or admissions made, during any arbitral or judicial proceeding.
There are no special provisions in the arbitration law as to attorney client privilege but the general law is wide enough to cover arbitrations and indeed any attorney work product.
There are no specific provisions in Singapore law as to the application of rules of privilege in arbitrations. However, tribunals in Singapore arbitrations do commonly refer to the IBA Rules on Evidence, which addresses the issue of privilege.\
There are no specific rules under English law as well in this regard, but the tribunal will typically apply legal professional privilege. The tribunal will determine which documents the parties should disclose. Complex questions often arise, such as whether the law of privilege of the jurisdiction in which the document was created or of the jurisdiction of the seat of the arbitration should apply. Tribunals frequently will try to resolve these questions by applying either the English law of privilege or the law that provides the most protection against disclosure.
As a matter of English law there are no specific rules or requirements governing the use of arbitral secretaries, but tribunals must not delegate decision making power to a secretary without the consent of the parties. In a recent case the English court held that the critical yardstick was that tribunal members could not abrogate or impair their personal decision-making function.
The use of arbitral secretaries, whilst increasing in Singapore arbitrations, is not yet common practice. The SIAC has issued a Practice Note on the appointment of administrative secretaries by tribunals, which makes clear that no administrative secretary may be appointed without the consent of all parties to the arbitration.
The Indian Arbitration Act enables the arbitrator with the consent of parties to arrange for administrative assistance by a suitable institution or person. However, there are no rules or regulations in this regard. Tribunal secretaries are more frequently being appointed.