CZT v CZU

CZT contracted to deliver material packages to CZU, which a contractor was to use to build products for CZU. CZU alleged that some components were defective and, on 25 April 2019, began an ICC arbitration seated in Singapore. A majority of the three-member tribunal found CZT liable and ordered it to pay damages, interest and costs. A draft award approved by the ICC Court in May 2021 was not issued; a revised draft was approved on 23 July 2021 and the final award was sent to the parties on 20 September 2021.

The dissenting arbitrator did not sign. In a lengthy dissent he accused the majority of, among other things, serious procedural misconduct, misstating the record, concealing their true reasoning and lacking impartiality. CZT applied to set aside the award and, in Summonses Nos 788, 789 and 790 of 2023 in Originating Summons No 1 of 2023, sought orders that each arbitrator produce records of the tribunal's deliberations referred to in the dissent. The case was transferred to the Singapore International Commercial Court, where Chua Lee Ming J delivered the judgment of a three-judge coram. CZT withdrew its broader request for all deliberation records.

1. Whether, and when, arbitrators can be ordered to produce records of their deliberations to support an application to set aside their award.
2. Whether CZT's allegations, based on the dissent, fell within any exception to the confidentiality of deliberations.
3. Whether the earlier draft award approved by the ICC Court formed part of the protected deliberations.
4. Whether the documents sought were described with sufficient particularity.

The court held that the confidentiality of arbitrators' deliberations exists as an implied obligation in law, for well-recognised policy reasons: frank discussion, freedom to change views, protection from outside pressure and avoiding spurious challenges. The protection does not cover essential process issues, such as a complaint that an arbitrator was excluded, because those do not touch an arbitrator's reasoning. Beyond that, an exception arises only in the very rarest of cases, where the allegations are very serious, such as corruption, and have real prospects of success, so that the interests of justice outweigh the policy reasons. CZT's wider test based on due process and the interests of justice was too broad, and the foreign cases it cited were of limited help.

CZT did not meet that test. Complaints that the majority went beyond the parties' cases or denied a fair hearing could be decided on the arbitration record. The claims that the true reasons lay in the earlier draft and that the deliberation history was misstated were bare; the dissent gave no facts in support and, by its own words, rested partly on an impression, even though the dissenting arbitrator plainly felt free to disclose what he saw as misconduct. Seeking documents to investigate those claims was a fishing expedition. Lack of impartiality might arguably qualify, but had no real prospect of success here.

The court also held that the ICC scrutiny process is part of the deliberations stage, so the draft award was protected. On particularity, it noted that some items could be identified while others could not, but did not need to decide the point.

The court dismissed all three production applications. CZT had to pursue its setting-aside application on the arbitration record without the records of deliberations. Costs were left for further submissions.