Clifford Chance

Singapore High Court orders production of documents in connection with enforcement of an arbitral award

In DFD v DFE [2024] SGHCR 4, the Singapore Court ordered a party seeking to enforce an arbitral award to produce documents to a party resisting enforcement of that award. While the enforcement of an arbitral award is often thought of as a mechanical exercise with little room for judicial probing, the case demonstrates that in appropriate circumstances it may be possible to apply for production of documents relevant and material to the grounds raised to resist enforcement of or to set aside an arbitral award.

Background

Having granted permission for an arbitral award to be enforced against the first and second respondents, the Singapore Court was asked to consider a challenge to enforcement brought by the second respondent, who was now under the control of a liquidator who had been appointed after the award was made.

Broadly, the liquidator resisted enforcement on the grounds that:

1. the arbitration agreement was invalid and unenforceable;
2. there had been no dispute between the parties; and
3. the award had been procured by fraud.

A common thread underlying these arguments was the liquidator's suggestion that the arbitration was not genuine, and had been orchestrated for the claimant to improperly procure the transfer of certain shares from the second respondent to the claimant, in order to "steal a march" on competing creditors.

To support its challenge to enforcement, the liquidator successfully applied for a court order directing the claimant to produce seven categories of documents. Broadly these documents related to:

1. An alleged agreement to change the arbitral institution identified in the applicable arbitration agreement;
2. Pre-arbitration communications evidencing a dispute between the parties; and
3. Documents that would ordinarily be expected to be created in a typical arbitration, such as communications between the parties and the tribunal regarding the conduct of the arbitration.

The second respondent later argued that the document production order was not complied with, and applied for an "unless order" or a peremptory order. In simple terms, such an order dismisses the defaulting party's action unless it complies with an order of court.

The Singapore High Court granted the document production order and the peremptory order. In short, the court found it appropriate to apply the usual conditions for making a document production order under the Singapore Rules of Court:

1. The requested documents must be described with sufficient particularity.
2. The requested documents must be material to the issues in the case. A document is material if it bears a demonstrable nexus with at least one of those issues and has a significant bearing on that issue such that it could potentially affect the court's decision.
3. The requesting party must provide sufficient evidence that the requested documents are in the possession or control of the producing party.

As there were no pleadings filed in these proceedings, the court identified the "issues in the case" by examining the affidavits filed by parties and comparing the respective positions of the parties. The issues identified were:

1. Whether there was in fact any agreement between parties to change the arbitral institution identified in the applicable arbitration agreement.
2. Whether there was any dispute between parties in connection with the subject matter of the arbitration before its commencement.
3. Whether the arbitration had been a sham.

In this case, the court rejected the argument that the liquidators were engaging in a "fishing" exercise, holding that there could be "no question of fishing" if the requesting party could "properly articulate each category of requested documents" and demonstrate materiality to the issues in the case.

However, the court did decline to order production of the eighth category of documents requested, namely documents relating to post-award communications. The court reasoned that what took place before and during the arbitration would have more probative value in respect of whether the arbitration was a sham.

Comment

Several elements of the factual background are noteworthy:

1. The parties to the arbitration were related – the first respondent was the ultimate parent of the second respondent and also the majority shareholder of the claimant.
2. The respondents made no objection to the claimant's requests for relief in the arbitration and to the "authenticity, legality and relevance" of the evidence submitted by the claimant.
3. The second respondent was now under the control of a liquidator, who raised concerns about (among other things) the second respondent's failure to raise credible defences in the arbitration, the lack of contemporaneous documents in respect of the dispute and the arbitration, and the interests of the second respondent's creditors.

It is also notable that the court considered that the approach to document production applications in this context should not be affected by the policy of minimal curial intervention in arbitral proceedings, reasoning that the liquidator was merely applying for a procedural remedy available to "any similarly placed litigant" and that the court was not being asked to engage with the substantive merits of an arbitral award.

In fact, this is not the first time that a Singapore court has been asked to order the production of documents to support grounds for resisting enforcement or setting aside an arbitral award. In CZT v CZU [2023] SGHC (1) 11, the Singapore International Commercial Court declined to order the members of the tribunal to produce records of deliberations because those records were confidential and the interests of justice in that case did not outweigh such confidentiality.