Singapore Court Affirms Power of Arbitral Tribunals to Order Attorneys' Eyes Only Disclosure

In Short

The Situation : In a recent application to set aside a Singapore arbitral award, the Singapore High Court considered whether a court of law . This is an Attorney 's Eyes Only ("AEO") disclosure.

The Result : The Singapore High Court held that the court was empowered to issue an AEO order. Arbitration law and arbitration law (19659003) Looking Ahead : The decision points to the broad discretion decisions under Singapore law

The Confidentiality Regime in Singapore and AEO Orders

Arbitration proceedings in Singapore are confidential in nature, where the provision of arbitration agreement or the procedural rules. AAY and others v AAZ [2009] SGHC 142. The duty of confidentiality extends to, among other things, documents and evidence disclosed in the course of proceedings, subject to certain limitations and exceptions. AEO orders are most commonly used in this context to protect sensitive trade information or trade secrets, such as engineering and construction, manufacturing, technology and licensing, and for certain types of information where special circumstances warrant additional safeguards. (19659008) Confidentiality in Singapore, arbitration proceedings and other laws, but not limited to the right of a party to be afforded a reasonable opportunity to present its case. It was on this basis that China Machine New Energy Corporation ("CMNC") applied to an arbitration award against it in the recent case of China Machine New Energy Corporation v Jaguar Energy Guatemala LLC [2018] SGHC 101 (" China Machine ")

The Dispute and the Arbitration

The backdrop of China Machine was a complex dispute arising out of an engineering and construction agreement between the parties which CMNC was required to design and build a coal-fired power plant in Guatemala. The dispute was arbitrated in Singapore under the 1998 Rules of Arbitration of the International Chamber of Commerce and was conducted on an expedited basis. During the arbitration proceedings, it was requested that Jaguar disclose certain documents that it agreed to disclose to CMNC's counsel and experts on the basis that they would not be disclosed to CMNC. The agreement between the parties had been terminated and Jaguar contended that the materials could be used by CMNC to frustrate their completion of the project, to the breakdown of the relationship between the parties and the conduct of CMNC.

The court ordered the disclosure on an AEO basis in the first instance, noting the serious concerns raised by Jaguar about the potential improper use of the documents. However, the court left the door open for CMNC to subsequently apply for limited disclosure of the sensitive documents. Ultimately, CMNC did not submit a further application and the court found for Jaguar on a majority of issues in dispute.

CMNC's Application to Set Aside

CMNC that the AEO order deprived it of a reasonable opportunity to present its case and a breach of natural justice under Article 34 (2) (a) (ii) of the UNCITRAL Model Law on International Commercial Arbitration and Section 24 ( a) of the International Arbitration Act (Cap 143A, 2002 Rev Ed).

While noting that AEO disclosure orders are not entrenched in Singapore jurisprudence, the court held that the court was empowered to issue such an order by the 1998 ICC Rules and that, in any event, such an order shall be in accordance with Article 19 (2) of the Model Law. The Court of Justice has not appropriately exercised such powers that the Court has decided to and

1. Two Key Key Takeaways
   1. Arbitration proceedings in the United States of America. 19659019] [ad_2]
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