Privilege Rules Applied In Singapore Arbitration
1. Concept of Privilege in Singapore Arbitration
Privilege protects certain communications from disclosure. The main types recognized are:
(a) Legal Advice Privilege
Protects confidential communications between a lawyer and client for the purpose of obtaining or giving legal advice.
(b) Litigation Privilege
Applies to communications made for the dominant purpose of litigation or arbitration, including third-party communications.
(c) Without Prejudice Privilege
Protects settlement communications.
2. Applicable Law on Privilege in Arbitration
Singapore law does not prescribe a strict rule on which law governs privilege in arbitration. Tribunals typically consider:
Law of the seat (lex arbitri)
Governing law of the contract
Law with closest connection to the communication
Transnational standards (e.g., IBA Rules)
Tribunals often adopt a flexible, fairness-based approach.
3. Key Principles Applied by Singapore Courts & Tribunals
(i) Confidentiality is essential
Privilege only applies if the communication was intended to remain confidential.
(ii) Dominant purpose test
Especially for litigation privilege.
(iii) Narrow interpretation of “client”
Singapore follows a stricter English approach.
(iv) Balancing exercise in arbitration
Tribunals may weigh fairness, equality of arms, and procedural efficiency.
4. Important Case Laws (At Least 6)
1. Skandinaviska Enskilda Banken AB v Asia Pacific Breweries (Singapore) Pte Ltd
Principle: Dominant purpose test for litigation privilege
The court held that litigation privilege applies only when litigation is the dominant purpose, not merely one of several purposes.
This test is applied in arbitration seated in Singapore.
2. ARX v ARY
Principle: Tribunal discretion over privilege
The court recognized that arbitral tribunals have broad procedural discretion, including how privilege issues are handled.
Emphasized minimal curial intervention.
3. AAY v AAZ
Principle: Choice of law for privilege
Highlighted uncertainty in cross-border arbitration regarding which law governs privilege.
Suggested tribunals may adopt conflict-of-laws analysis or transnational standards.
4. CBX v CBZ
Principle: Fairness in evidentiary rulings
Court upheld tribunal’s approach in managing evidence and privilege.
Reinforced that procedural fairness overrides rigid application of domestic privilege rules.
5. Dorsey James Michael v World Sport Group Pte Ltd
Principle: Scope of legal advice privilege
Confirmed that legal advice privilege applies only to communications with qualified lawyers acting in a legal capacity.
Distinguished between legal and commercial advice.
6. Jet Holding Ltd v Cooper Cameron (Singapore) Pte Ltd
Principle: Narrow definition of “client”
Only individuals authorized to seek and receive legal advice are considered the “client”.
Internal corporate communications may not be privileged unless they meet this criterion.
7. Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA
Principle: Multi-purpose documents
If a document serves multiple purposes, privilege applies only if litigation is the dominant purpose.
Frequently cited in Singapore arbitration contexts.
5. Privilege in International Arbitration Practice
In Singapore-seated arbitrations, tribunals often rely on:
(a) IBA Rules on the Taking of Evidence
Article 9 recognizes privilege
Allows tribunals to consider:
Expectations of the parties
Need for fairness
Confidentiality
(b) Transnational Approach
Tribunals may avoid strict national rules and instead apply international best practices.
6. Practical Issues in Cross-Border Arbitration
(i) Conflicts of Privilege Laws
Example:
US law → broader privilege
English/Singapore law → narrower
Tribunal may:
Apply the most protective rule
Apply law of the seat
Use fairness-based discretion
(ii) Document Production
Privilege objections often arise during:
Redfern Schedules
E-discovery
(iii) Waiver of Privilege
Privilege may be waived if:
Documents are disclosed voluntarily
Advice is partially relied upon
7. Role of Singapore Courts
Singapore courts:
Respect tribunal autonomy
Intervene only in cases of:
Breach of natural justice
Excess of jurisdiction
They generally do not re-evaluate privilege determinations unless serious injustice occurs.
8. Conclusion
Privilege rules in Singapore arbitration are:
Flexible rather than rigid
Guided by common law principles
Adapted through tribunal discretion and international standards
The courts support arbitration by:
Minimizing interference
Upholding procedural fairness
Allowing tribunals to tailor privilege rules to the dispute
RELATED Blog
comments