This article was originally published in Practical Law Arbitration. Reproduced with permission. This client alert is co-written by Reed Smith Pte Ltd and Resource Law LLC who together form the Reed Smith Resource Law Alliance in Singapore. Reed Smith LLP is licensed to operate as a foreign law practice in Singapore under the name and style, Reed Smith Pte Ltd (hereafter collectively, “Reed Smith”). Where advice on Singapore law is required, we will refer the matter to and work with Reed Smith’s Formal Law Alliance partner in Singapore, Resource Law LLC, where necessary.

In Republic of India v Vedanta Resources plc [2021] SGCA 50, the Singapore Court of Appeal dismissed an appeal against the decision of the Singapore High Court refusing an application for declaratory relief. While the Court of Appeal upheld the High Court decision, it did so for different reasons than the High Court.

* Timothy Cooke is a Partner in Reed Smith's Singapore office. Kohe Hasan is a Partner in Reed Smith's Singapore office and a Director of Resource Law LLC.  Gautam Lamba is an Associate in Reed Smith's Singapore office. Khyati Raniwala is an Associate in Reed Smith's Singapore office.

Speedread

The Singapore Court of Appeal has dismissed an appeal against a decision of the Singapore High Court refusing an application for declaratory relief.

The appeal arose from the appellant's application to the High Court for declarations that documents disclosed or generated in investment-treaty arbitrations were not "confidential" or private, and that the appellant could disclose those documents in a parallel arbitration with the same underlying facts.

The application for the declarations was made against a tribunal's procedural order in an on-going investment treaty arbitration. The High Court dismissed the application on grounds that declaratory relief was not justified where the tribunal's order was reasonable and the tribunal had acted entirely within its powers.

The Court of Appeal noted that the High Court judge correctly identified the preliminary question of whether a party to an investment treaty arbitration, who puts a question of law to a tribunal and receives an unfavourable ruling, can put the same question before the Singapore court by an application for declaratory relief. The High Court judge answered this question in the affirmative but decided not to exercise his discretion to grant the declaratory relief sought. The Court of Appeal arrived at the opposite conclusion on this question, answering it in the negative.

While the Court of Appeal agreed with the High Court's ultimate decision to refuse declaratory relief, it arrived at this decision, not as a matter of discretion, but because it found the application to be an abuse of process. It held that the application was:

  • A "backdoor appeal".
  • Framed as a request for an advisory opinion, which was not a legitimate basis to invoke the court's jurisdiction.
  • A blatant violation of the principle of minimal curial intervention.

The decision affirms the robust stance of the Singapore courts in "backdoor appeals" to re-litigate issues already determined by a tribunal. (Republic of India v Vedanta Resources plc [2021] SGCA 50 (12 May 2021).)

Background

Section 18 of the SCJA read with paragraph 14 of the First Schedule to the SCJA sections provides in relevant part:

"18(2) Without prejudice to the generality of subsection (1), the General Division shall have the powers set out in the First Schedule.

[…]

FIRST SCHEDULE

[…]

14. Power to grant all reliefs and remedies at law and in equity, including damages in addition to, or in substitution for, an injunction or specific performance."

Article 5 (Extent of Court Intervention) of the Model Law provides:

"In matters governed by this Law, no court shall intervene except where so provided in this Law."