A Contextual Approach to the Obligation of Confidentiality in Arbitration in Singapore: An Analysis of the Decision of the Singapore High Court in AAT and Others v. AAZ

摘要

AAT and others v. AAZ(AAY) is the first (and to date the only) decision in Singapore which has comprehensively considered the common law jurisprudence on the implied obligation of confidentiality in arbitration. Significantly, the High Court examined both the juridical basis as well as the scope of the obligation of confidentiality in arbitration. Observing that the jurisprudence on this subject is not uniform, Chan Seng OnnJ indicated that the approach taken in the landmark decision of the English Court of Appeal in John Forster Emmott v. Michael Wilson & Partners Ltd (Emmott) was to be taken as the basis for future developments in this branch of the law. It is of interest here that two of the established exceptions to confidentiality, viz., disclosure of matters: (ⅰ) where the public interest so requires; and (ⅱ) with the consent of all the parties to the arbitration, were considered by the Court. The Court explained in AAT that the 'public interest' exception was multi-faceted in the sense that varied situations could conceivably fall under that head, but the outcome would be different in each case depending on the context and the various considerations in play. In this regard, the particular question with which the Court was faced was a novel one (which had hitherto not been considered by common law courts elsewhere), viz., whether the defendant breached the dujty of confidentiality by disclosing materials relating to the arbitration to the authorities. Additionally, the Court also had the opportunity to consider whether section 39 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A) (CDTSCA) would confer immunity on the defendant in relation to any alleged breach of the obligation of confidentiality.