DSK Legal Team that represented Alstom: – Dinesh Pardasani (Partner), Aishwary Kumar Tiwari (Principal Associate), Siddharth Chechani (Principal Associate), Amrit Singh (Associate)
The Delhi High Court has dismissed a challenge under Section 34 of the Arbitration and Conciliation Act 1996 (the Act) to an ICC arbitral award in JPC Infrastructure and Constructions Private Limited v Alstom Transport India Limited [O.M.P. (COMM) 124/2024], providing guidance on the operation of Section 42A of the Act and the circumstances in which material originating from a separate arbitration may be relied upon in subsequent proceedings.
The judgment upheld an arbitral award rendered in favour of Alstom Transport (the Contractor) in a dispute with JPC Infrastructure and Constructions Private Limited (the Sub-contractor) arising out of the Eastern Dedicated Freight Corridor Project being executed by Dedicated Freight Corridor Corporation of India Limited (the Employer). During the Section 34 proceedings, the challenge was confined to the rejection of four claims and was founded principally on the Tribunal’s refusal to rely upon a letter sent by the Contractor to the Employer, which had formed part of separate arbitral proceedings between those parties (the Disputed Letter).
The Court’s judgment provides guidance on a number of significant issues concerning arbitral confidentiality, evidentiary discretion and the scope of judicial review under Section 34.
First, the Court held that this was not a case in which the Tribunal had overlooked, ignored or failed to notice material evidence. On the contrary, the Award contained a “separate and detailed discussion” concerning the provenance, admissibility and permissible use of the Disputed Letter. The Tribunal had specifically considered the issue and reached a reasoned determination that the Disputed Letter ought not to be relied upon. The Court therefore rejected the Sub-contractor’s submission that the Tribunal had disregarded material evidence.
Secondly, the Court upheld the Tribunal’s approach to Section 42A of the Act. Rejecting the Sub-contractor’s submission that Section 42A merely imposes a duty of confidentiality without practical consequences, the Court held that the provision “cannot be interpreted in a manner that renders the statutory protection of confidentiality illusory”. The Court further observed that acceptance of the Sub-contractor’s interpretation would reduce the statutory mandate to “a mere formality devoid of effective content”. The Court held that “the real issue was whether a document found to have originated from confidential arbitral proceedings and procured in circumstances inconsistent with the confidentiality obligation recognised under Section 42A of the Act could legitimately be relied upon in a separate arbitration”. In the Court’s view, the Tribunal was justified in concluding that it could not.
Thirdly, the judgment clarifies the relationship between arbitral confidentiality and evidentiary discretion. The Court held that, even assuming Section 42A of the Act does not itself create “a rigid rule of inadmissibility”, the Tribunal was entitled to examine “the provenance of the document, the circumstances in which it came into the possession of the Petitioner and the implications of permitting reliance upon material originating from a separate confidential arbitral proceeding”. The Court held that permitting reliance upon such material would “undermine the very confidentiality regime which Section 42A of the Act seeks to protect”. The decision to decline reliance upon the Disputed Letter was therefore characterised as “an exercise of evidentiary discretion” and could not “be characterised as a jurisdictional error, patent illegality or perversity”.
Fourthly, the Court rejected the Sub-contractor’s argument that the confidentiality regime under the ICC Rules displaced the operation of Section 42A of the Act. The Court held that although the arbitration had been conducted under the ICC Rules, the seat of arbitration was India and the proceedings therefore remained subject to the mandatory provisions of the Act. A statutory mandate enacted by Parliament could not be “diluted, displaced or overridden” by institutional rules. Accordingly, the Tribunal was justified in treating Section 42A of the Act as “controlling and binding” notwithstanding the confidentiality regime under the ICC Rules.
Fifthly, the Court rejected the submission that the Disputed Letter had entered the public domain because it had allegedly formed part of court proceedings. The Court held that whether a document can be said to have entered the public domain depends upon “the circumstances in which access thereto is obtained and the legal regime governing such access”. The Tribunal had not been presented with material conclusively establishing that the confidentiality attaching to the Disputed Letter had ceased to exist and had accepted the Contractor’s account regarding its provenance. Those findings were findings of fact and “no perversity” had been demonstrated.
Finally, the judgment reiterates the limited scope of judicial intervention under Section 34 of the Act. The Court emphasised that a Section 34 proceeding “cannot be converted into a forum for reconstructing the arbitral case on an altogether different factual foundation” and that a party “cannot be permitted to invite a Court exercising jurisdiction under Section 34 of the Act to set aside an award on the basis of a case never presented before the arbitral forum”. The Court further held that the challenge ultimately sought a re-examination of a reasoned evidentiary determination made by the Tribunal, an exercise that falls outside the permissible confines of judicial review under Section 34 of the Act.
In this respect, the judgment serves as a reminder of both the importance of arbitral confidentiality under Section 42A of the Act and the limited role of the Court when reviewing a reasoned arbitral award. The Court ultimately concluded that the Tribunal’s approach accorded with the “scheme, object and purpose” of the Act, that no conflict with public policy or patent illegality had been established, and dismissed the petition in its entirety.