THE REPUBLIC OF INDIA v DEUTSCHE TELEKOM AG

Facts

Deutsche Telekom AG (DT), a German company, brought an investment treaty arbitration seated in Geneva against the Republic of India, arguing that India's annulment of an agreement between the Indian state-owned Antrix Corporation Ltd and Devas Multimedia Private Limited, in which DT was a shareholder, breached the India-Germany bilateral investment treaty. DT obtained an interim award and then a final award, and India's challenge to the interim award in the Swiss Federal Supreme Court failed. DT obtained leave on 3 September 2021 to enforce the final award in Singapore, with a consent order that those proceedings be heard in private and the file sealed. India's application to set aside the leave order was dismissed by the Singapore International Commercial Court on 30 January 2023, and India appealed (CA/CAS 1/2023).

In CA/SUM 4/2023, India applied to the Court of Appeal for the appeal and related applications to be heard in private, for information and the parties' identities to be concealed, for the file to be sealed and for any published judgment to be redacted. It relied on ss 22 and 23 of the International Arbitration Act 1994 with the SICC Rules 2021, and on the court's inherent powers. DT opposed, saying the information was already public.

Issues

1. What confidentiality interest ss 22 and 23 of the International Arbitration Act protect in arbitration-related court proceedings
2. Whether the confidentiality of the arbitration had been lost so that privacy orders were no longer justified
3. Whether the court should use its inherent powers to grant the orders to protect India from reputational harm

Holding

The Chief Justice dismissed the application on 25 April 2023, reserved the costs of the application until after the hearing of the appeal, and ordered that India's security for costs remain in place until further order.

Reasoning

Privacy orders depart from the principle of open justice and are exceptional. Section 22 of the Act now makes proceedings under it private by default, and s 23 restricts publication. Looking at the legislative history and the Minister's second reading speech, the court held that these provisions exist to protect the confidentiality of the underlying arbitration; the interest in private enforcement proceedings is derivative. Where the arbitration's confidentiality is lost, open justice weighs strongly in favour of lifting privacy. India itself argued only that confidentiality had not been entirely lost.

The court found it had been substantially lost. The interim and final awards, and the award in a related Devas and Antrix arbitration, were available online; the Swiss decision named India; a Global Arbitration Review article identified the parties to the Singapore proceedings; India's own Singapore lawyers had posted on LinkedIn naming India and linking that article; material from the US and German enforcement proceedings was public; and Indian court decisions on winding up Devas disclosed the parties and the arbitration's outcome. India did not dispute these disclosures. The court made no finding on whether India's concerns lacked good faith, as lifting privacy is not a penalty.

On inherent powers, India relied on the same confidentiality ground, so the argument could not succeed once the statutory basis had fallen away; inherent powers are used only on grounds of necessity. A party's wish not to be seen in an adverse light by critics does not justify departing from open justice, and openness might even let India put its side of the story.

From the judgment