(a) a declaration that documents disclosed or generated in the Vedanta Arbitration are not "confidential or private"; and
(b) a declaration that the plaintiff will not breach any obligation of confidentiality or privacy if it were to disclose for the purposes of the Cairn Arbitration any of the documents which were disclosed or generated in the Vedanta Arbitration.
Within seven business days … the other Party may raise objections to such a disclosure, redact any sensitive information, or specify any special confidentiality requirements relative to the [Vedanta Arbitration] (for instance, the requirement that Vedanta agree to keep the documents confidential), it being understood that any such objections or redactions would need to be well-justified and would constitute a rare exception to the principle of open document disclosures. The Tribunal shall be copied in this correspondence.
129.3 The Parties shall not make public, in part or in whole, any other document submitted, produced or created in connection with this proceeding, including but not limited to the Notice of Arbitration, the Response to the Notice of Arbitration, the Statement of Claim, the Statement of Defence, any other written applications, statements, submissions and/or memorials, any and all witness statements and expert reports, all documentary exhibits, the transcripts of hearings and all procedural correspondence.
129.4 The Parties are at liberty to apply (supported by brief reasons) for the disclosure of any specific, identified document to the Cairn Arbitration, after having first consulted the other Party with a view to reach a mutual agreement on such disclosure and/or any redactions. If a Party makes frivolous, unnecessary, and/or excessive requests for cross-disclosures or if the other Party unreasonably or unjustifiably withholds its consent to a request for cross-disclosure, the Tribunal will take such conduct into account in the allocation of costs, at the appropriate stage of the arbitration.
[emphasis in original]
Article 19. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
The arbitrator is, subject to any procedure otherwise agreed between the parties as applying to the arbitration in question, master of his own procedure and has a wide discretionary power to conduct the arbitration proceedings in the way he sees fit, so long as what he is doing is not manifestly unfair or contrary to natural justice (see the Handbook of Arbitration Practice (3rd Ed, 1998)). …
It is therefore plain that the Court's supervisory role is to be exercised with a light hand and that arbitrators' discretionary powers should be circumscribed only by the law and by the parties' agreement.
In my judgment, however, there is nothing in these passages to suggest that the doctrine of issue estoppel can apply to mere questions of procedure, as distinct from issues on the final merits. On the contrary, the whole context in which these remarks occurred was concerned with plainly substantive matters such as cesser of liability and waiver. That Diplock LJ was speaking with that context in mind is in my view well exemplified by the opening sentences of the passage cited above, where Diplock LJ speaks of 'The final resolution of a dispute', or in the closing passage cited above where he refers to an arbitrator's 'final award' or to an 'interim award' which is determinative of certain issues. …
In my judgment, the decision to allow the … amendment was not a decision on the merits, but was a matter of pure procedure, involving no more than issues of discretion. In such circumstances, I cannot see how there can be any question of an issue estoppel. It follows that Mr Berry's submission that the tribunal was functus officio on the ground of there being an issue estoppel must fail. …
… In the context of arbitration, Art 5 of the Model Law provides that '[i]n matters governed by [the Model Law], no court shall intervene except where so provided in [the Model Law]'. The raison d'être of this rule is not to promote hostility toward judicial intervention but to satisfy the need for certainty as to when court action is permissible: LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd  1 SLR 125 ("LW Infrastructure") at . This court in LW Infrastructure found that certain provisions, such as s 47 of the Arbitration Act (Cap 10, 2002 Rev Ed) ("the Act") should be read consistently with Art 5. The upshot of this is that in situations that are expressly regulated by the Act, the courts should only intervene where so provided in the Act (at ) (this position should similarly apply in the IAA context). … [emphasis added]
The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment ; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road. [emphasis added]
The New York Convention permits states to make a reservation to the effect that they apply the Convention 'only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration'. One might question whether investment awards can be qualified as awards in 'commercial disputes' for these purposes, since – a form of mixed arbitration between states and private parties – BIAT arbitration in particular often touches upon sovereign interests and in effect leads to judicial review of state acts … the 1985 UNCITRAL Model Law on International Commercial Arbitration contains a wide definition of the notion 'commercial arbitration', which expressly includes a reference to 'investment'. Thus, for the purposes of the Model Law, investment awards should be viewed as awards should be viewed as awards in 'commercial disputes'. This view was shared by national courts in set aside proceedings concerning investment awards rendered pursuant to the UNCITRAL Arbitration Rules. [emphasis added]
(a) first, if the declaration sought is on a matter governed by the Model Law; and
(b) second, if granting the declaration amounts to the court intervening in such a matter.
5.3 If a party is dissatisfied with procedural orders or directions made by the tribunal there exists no right to have the order or direction set aside by the Singapore courts. That is for two reasons. First, Article 5 of the Model Law provides that 'In matters governed by this Law, no court shall intervene except where so provided in this Law ', and … Article 19(2) provides that the tribunal may conduct the arbitration in such manner as it considers appropriate (subject to contrary agreement of the parties, and to the terms of Model Law). Secondly, procedural orders are not an 'award' within the meaning of Article 34 of the Model Law or s 24 of the IAA, and therefore cannot be set aside under those provisions.
5.4 Where a party is dissatisfied with procedural orders or directions made by the tribunal, the proper course is to invite the tribunal to reconsider its decision. If the making of the disputed orders or directions is to be relied upon as a ground for challenging the eventual Award, it will usually be necessary for the disaffected party to clearly state its objections at the time, for the right to complain later may otherwise be lost by waiver.
[emphasis in original in italics; emphasis added in bold]
(a) the court must have jurisdiction and power to award the remedy;
(b) the matter must be justiciable;
(c) the exercise of the discretion must be justified by the circumstances of the case;
(d) the plaintiff must have locus standi and there must be a real controversy for the court to resolve;
(e) any person whose interests might be affected by the declaration must be before the court; and
(f) there must be some ambiguity or uncertainty about the issue in respect of which the declaration is asked for so that the court's determination would have the effect of laying such doubts to rest.
(a) One role is to adjudicate and determine the dispute before him on the merits. This is necessarily a composite task. It entails finding the facts, ascertaining the law, developing the law if necessary and applying the law as ascertained or developed to the facts as found to resolve the parties' dispute. I call this the "Adjudicatory Role".
(b) Another role is to contribute to a coherent corpus of common law by generating judgments recording the adjudicator's legal reasoning which are then published and form the basis for other decisions, either as binding or persuasive authority. I call this the "Precedential Role".
… I fully accept that the common law is subject to judicial development, but such development builds incrementally on existing principles. That follows from two considerations. The first is that judicial decisions are normally backward-looking in the sense that they decide what the law was at the time which is relevant to the dispute between the parties. In order to preserve legal certainty, judicial development of the common law must therefore be based on established principles, building on them incrementally rather than making the more dramatic changes which are the prerogative of the legislature. Following that approach, new rules may be introduced or existing rules may be reformulated or departed from, but the courts continue to apply principles which formed an established part of the law at the time of the events in question. The judges are then faithful to their oath to 'do right to all manner of people after the laws and usages of this Realm'. Secondly, that constraint on judicial law-making is also compatible with the pre-eminent constitutional role of Parliament in making new law, and with the procedural and institutional limitations which restrict the ability of litigation before the courts to act as an engine of law reform.
… It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of 'judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law '. When the rules run out, as they often do, a judge has to rely on principles, doctrine and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.
[emphasis in original in italics; emphasis added in bold]
… It is then necessary to consider what the arbitrator must ultimately do. …
… As previously noted, Böckstiegel suggests that the 'fundamental duty of the arbitrators is to come to a reasoned decision on the claims put before them after giving the parties an equal and full opportunity to present their case'. Another way to describe deciding in an adjudicatory or judicial manner is to say it involves deciding the issues between the parties, after hearing arguments of the parties, considering the evidence (written and oral), taking account of the contract terms and trade usages and applying the applicable law or relevant rules. This is in contrast to simply determining what is 'fair' or applying discretion.
… An adjudicatory function … is described as quasi-judicial in nature and involves making determinations of fact under applicable principles of evidence, including burdens and standards of proof and determining the implications of the facts so found under applicable principles of law. An adjudicatory function is essentially a rights-based rather than an interest-based function, and would be described by economists as a zero sum game whereby there is ultimately a winner and a loser on each defended claim and cross-claim.
Sundaresh Menon CJ, in his extra-judicial speech, "The Rule of Law and the SICC", at the Singapore International Chamber of Commerce Distinguished Speaker Series (10 January 2018)63, also notes that "arbitration is designed to be ad hoc and confidential, and is predominantly concerned with resolving the specific disputes between the parties" (at para 28(c)).
In the strictest sense, arbitrators make 'hard law' as their awards are binding on parties and are enforceable in law. They are also engaged in a 'softer variant of lawmaking ', which typically occurs in one of two situations. In one situation, there is a 'gap' or uncertainty in the legal issue which the courts have not resolved. Arbitrators fill that gap with their own reasoning. In the other situation, parties have chosen arbitration precisely so that they are not bound by a particular set of national laws. The parties seek a private dispute resolution mechanism with a set of alternative legal rules, therefore providing arbitrators with the legitimacy to make laws.
International commercial arbitrators certainly do make law. They are often tasked with making crucial decisions on complex areas of law. They espouse principles that are developed to fill gaps in national laws. They are deeply involved in comparative law and create principles that are useful, or could be useful, to those involved in international commerce. …
[emphasis in original in italics; emphasis added in bold]
It is widely accepted that the key jurisdictional basis of an arbitrator's rights, duties and powers is to be found in the arbitration law that is applicable. This will usually be the arbitration law in the Seat of the arbitration. When parties select the place of arbitration within a particular geographical location, this ought to mean that their intention is 'that the arbitration is conducted within the framework of the law of arbitration of (that location) '. This is generally described as the lex arbitri. A lex arbitri might either expand on the powers conferred on a tribunal by consent or may seek to limit them in some way. Typically it will do both. [emphasis added]
73.1 UNCITRAL Rules 1976 : The Tribunal is of the view that the Rules do not impose a general obligation of confidentiality, except as expressly defined in Article 25(4) and Article 32(5), the latter of which the Parties have varied by mutual agreement.
73.2 The BIT/International Law : The Tribunal believes that the body of law is strongly trending towards the view that there is no general obligation of confidentiality that applies to an investment treaty arbitration such as this.
73.3 Law of the Seat : The Tribunal is of the opinion that the arbitral law of Singapore as the seat of arbitration allows for the application of a public interest exception to an implied duty of confidentiality.
[emphasis in original]
… For all the reasons set out in the cases cited above, the Tribunal finds that there is a strong public interest in having a degree of transparency with regard to the proceedings in any investment treaty arbitration and it is unnecessary at this point to lay down a narrow and specific definition of the exception. Indeed, the common law exception can be usefully applied together with the Tribunal's inherent power under Article 15.1 to design a confidentiality regime customized for the particular circumstances of the case.
In view of the determinations and findings above, and having had the benefit of careful consideration of Cairn, this Tribunal believes that the tribunal in Cairn came to an appropriate balance of the interest of the parties and public interest. With the minor difference that this Tribunal will allow the publication of the names of the members of the Tribunal, the Order seeks to replicate the formula adopted by the Cairn tribunal. The Tribunal believes that the order set out in the subsequent section strikes the right balance between the various interests and, ultimately, achieves what is necessary and appropriate in the circumstances of this case.
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