Case Summaries

Republic of India v Vedanta Resources plc [2021] SGCA 50

SUPREME COURT OF SINGAPORE

12 May 2021

Case summary

Republic of India v Vedanta Resources plc [2021] SGCA 50
Civil Appeal No 51 of 2020

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Decision of the Court of Appeal (delivered by Justice Steven Chong):

Outcome: CoA dismisses the appeal against the decision of the High Court in which the High Court had declined to exercise its discretion to grant declaratory relief in relation to a Singapore-seated investment treaty arbitration.

Pertinent and significant points of the judgment

  • The Court of Appeal affirms that a tribunal is entitled to decide what it regards as the correct legal position based on its understanding and interpretation of the law, as long as the issue was before the tribunal and the parties were afforded the opportunity to address the tribunal on that issue. An error of law is insufficient to justify curial intervention, even where the purported error pertains to the lex arbitri (at [21]–[22]).
  • The Court of Appeal finds that the appellant’s application was an abuse of process on several levels: it was an application without foundation, which was also vexatious and improper as it amounted to a relitigation of the issues that had been placed before the tribunal and would require the court to render an advisory opinion as well as violate the principle of minimal curial intervention. Furthermore, the appellant’s attempts to circumvent these difficulties appeared to be a sham (at [55]–[56]).

Background facts

1 The appellant and the respondent are parties to a Singapore-seated investment treaty arbitration (“the Vedanta Arbitration”). Given the potential overlap between the Vedanta Arbitration and another investment treaty arbitration, the appellant sought to implement a regime to permit cross-disclosure of documents between the two arbitrations.

2 In the Vedanta Arbitration, the appellant initially proposed that the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (“the UNCITRAL Transparency Rules”) be applied. When the respondent was not agreeable to this proposal, the appellant filed an application to the tribunal in the Vedanta Arbitration (“the Vedanta Tribunal”) requesting that the Vedanta Tribunal implement the UNCITRAL Transparency Rules.

3 Following the parties’ submissions on this issue, the Vedanta Tribunal rendered its decision on the appropriate cross-disclosure regime in Procedural Order No 3 (“VPO 3”). The Vedanta Tribunal held, among other things, that an implied obligation of confidentiality applied in every arbitration governed by Singapore procedural law, subject to several exceptions including where the public interest or the interests of justice required disclosure. The Vedanta Tribunal thus developed an exception to cover investment treaty arbitrations and held that this exception could be applied together with its procedural powers under the applicable arbitration rules to design a customised confidentiality regime. This resulted in the pronouncement of a cross-disclosure regime whereby the parties were at liberty to apply for the disclosure of any specific, identified document, after having first consulted the other party with a view to reaching mutual agreement.

4 Following the issuance of VPO 3, the appellant applied on two occasions to the Vedanta Tribunal for cross-disclosure of certain documents. The appellant’s first application was partially allowed in Procedural Order No 6 (“VPO 6”) whereas the appellant’s second application was rejected in Procedural Order No 7 (“VPO 7”).

5 After the Vedanta Tribunal had issued VPO 6 and while waiting for the Vedanta Tribunal to issue VPO 7, the appellant filed HC/OS 980/2018 (“OS 980”) in the High Court, seeking the following declarations:

a. a declaration that documents disclosed or generated in the Vedanta Arbitration were not confidential or private; and

b. a declaration that disclosure of documents disclosed or generated in the Vedanta Arbitration, including the documents set out in a schedule to OS 980, by the appellant would not be in breach of any obligation of confidentiality or privacy.

6 In the course of the proceedings in OS 980, the appellant gave the court an undertaking that if the declarations were granted, it would not unilaterally bypass the Vedanta Tribunal to make cross-disclosure of the relevant documents but instead it would rely on the declarations to request the Vedanta Tribunal to reconsider and revise the VPOs (“the Undertaking”).

7 The High Court judge (“the Judge”) dismissed OS 980, finding that although the application in OS 980 was not an abuse of process or a collateral attack on VPO 3, VPO 6 and VPO 7 (collectively, “the VPOs”), the court should not exercise its discretion to grant the declaratory relief sought as such relief was not justified by the circumstances of the case. Dissatisfied, the appellant appealed against the Judge’s decision.

The Court of Appeal's decision

8 The Court of Appeal (“the Court”) held that the appellant had no legitimate basis to invoke the jurisdiction of the court for the declaratory relief. The court’s intervention could not be justified by the mere fact that the Vedanta Tribunal’s decision pertained to the lex arbitri. The Vedanta Tribunal had been presented with a real dispute between the parties, which it resolved with reference to the applicable principles and laws, interpreting and developing the same where necessary. There was no question of the Vedanta Tribunal purportedly “developing” the lex arbitri as the VPOs were binding only on the parties to the Vedanta Arbitration. Furthermore, having failed to raise any complaint at the time of the issuance of VPO 3 and having relied on VPO 3 to seek disclosure under VPO 6 and VPO 7, it did not lie in the appellant’s mouth to allege that the Vedanta Tribunal had acted in excess of its jurisdiction or power: at [21]–[26].

9 Moreover, s 18 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) read with para 14 of the First Schedule to the same and Art 5 of the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”) did not provide a legal basis for the application in OS 980. The issue in VPO 3 was a procedural one and it was trite that an arbitrator was the master of his own procedure: at [29].

10 The Court disagreed with the Judge that the grant of the declarations would not amount to intervening in the Vedanta Arbitration. The Judge’s approach was incorrect as it assumed that it was legitimate to obtain the court’s guidance in relation to a general or abstract question of law, which it was not. It further assumed that such conduct could be legitimised by tying the question to the facts, which the appellant could not do as that would amount to an impermissible attempt to relitigate an issue that the Vedanta Tribunal had determined. It also assumed that such conduct could alternatively be legitimised by providing the Undertaking. However, the Undertaking was precisely what made the application an abuse of process as it revealed that tying the question to the facts was a sham and it left the court in the untenable situation of giving its view in the hope that the Vedanta Tribunal would consider it, with the distinct possibility that it might not: at [31]–[33].

11 The true purpose of the application was exposed by the terms of OS 980 and the Undertaking coupled with the appellant’s submission that its purpose was to use the court’s decision as a persuasive tool. It was apparent that the application in OS 980 had initially started out as a backdoor appeal, which gradually morphed into an attempt to seek an advisory opinion from the court in order to pressure the Vedanta Tribunal to reconsider its decision in the VPOs. Either way, both were manifestly improper: at [35], [46].

12 Regardless of whether the application in OS 980 was characterised as a backdoor appeal or an attempt to obtain an abstract ruling to put pressure on the Vedanta Tribunal, the granting of the declarations would infringe the principle of minimal curial intervention. Furthermore, absent the parties’ agreement to incorporate the UNCITRAL Transparency Rules, there was no room for the court to impose those rules on the parties and such a ruling would also violate the principle of party autonomy: at [48]–[49].

13 Ultimately, the application in OS 980 was an abuse of process. There was no basis for the appellant to invoke the court’s jurisdiction and OS 980 was therefore an application without foundation. It was also vexatious as it amounted to a relitigation of the issues that had been placed before the Vedanta Tribunal. Worse still, it was improper as it would require the court to render an advisory opinion and in doing so, violate the principle of minimal curial intervention. The appellant’s attempts to circumvent these difficulties appeared to be a sham, disguising the true nature and purpose of its application in OS 980: at [55]–[56].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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