CONFIDENTIALITY PREVAILS OVER RELEVANCE: DELHI HIGH COURT UPHOLDS TRIBUNAL’S EXCLUSION OF DOCUMENT SOURCED FROM A SEPARATE ARBITRATION UNDER SECTION 42A

The Delhi High Court, in JPC Infrastructure and Constructions Pvt. Ltd. v. Alstom Transport India Ltd. , dismissed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (The Act) challenging an ICC award dated 15.11.2023. Justice H.V. Shankar held that a party cannot rely upon a document forming part of separate confidential arbitral proceedings merely because it supports its case, and that an arbitral tribunal’s decision to exclude such a document, after examining its provenance, is an exercise of evidentiary discretion that does not amount to patent illegality or a conflict with the public policy of India.

The dispute arose from the Eastern Dedicated Freight Corridor Project of the Dedicated Freight Corridor Corporation of India Ltd. (DFCCIL) between Bhaupur and Khurja. By a Letter of Acceptance dated 21.07.2015, DFCCIL awarded Alstom Transport India Ltd. (Alstom) the principal contract for electrification, signalling, telecommunication and allied works, divided into segments including Slice-103. Alstom, in turn, issued a Letter of Acceptance dated 04.12.2015 to JPC Infrastructure and Constructions Pvt. Ltd. (JPC), and the parties executed a back-to-back sub-contract dated 15.12.2015 (Sub-Contract).

The Sub-Contract was a lump-sum contract of Rs. 34,09,58,091 for civil, electrical and associated works relating to fifty-five structures at Daudkhan, Hathras and Khurja, to be completed within 675 days from 03.08.2015. JPC’s case was that performance depended on Alstom first providing encumbrance-free site access and finalised project particulars, without which geotechnical investigations, topographical surveys and design work could not proceed. Alstom maintained that all necessary information and access were provided, and that delays were attributable solely to JPC. Portions of the work were descoped, and the Sub-Contract was ultimately terminated by Alstom.

Disputes were referred under Clause 29.3 of the Sub-Contract to a three-member tribunal under the ICC Rules of Arbitration, 2021, comprising Justice D.K. Jain (Retd.), Justice Dipak Misra (Retd.) and Justice J.D. Kapoor (Retd.). JPC relied on a letter dated 07.06.2017 addressed by Alstom to DFCCIL (Rejected Letter), which allegedly admitted that surveys could not commence without encumbrance-free site access. Alstom objected that the letter formed part of its separate arbitration with DFCCIL and was confidential.

The Tribunal sustained the objection. It rejected JPC’s plea that Alstom’s employees had handed over the letter, noting that no meeting was shown to have occurred after the letter was written, and found it “highly probable” that JPC obtained it through its counsel, who had represented DFCCIL in the arbitration and related court proceedings against Alstom. It held that counsel, as agents of the parties, are equally bound by Section 42A. Certain claims of JPC were partly allowed, all of Alstom’s counterclaims were rejected, and Claim Nos. 2, 3, 13 and 16 (geotechnical investigations, topographical surveys, overhead costs and loss of profit) were rejected, with Justice J.D. Kapoor (Retd.) dissenting on Claim Nos. 13 and 16.

Before the High Court, JPC confined its challenge to Claim Nos. 2, 3, 13 and 16 and, more particularly, to the exclusion of the Rejected Letter. JPC contended, inter alia, that Section 42A imposes only a duty of confidentiality and does not create a rule of inadmissibility; that the letter had entered the public domain through court proceedings; that Article 22(3) of the ICC Rules makes confidentiality discretionary; and that the exclusion of vital evidence rendered the award patently illegal under Section 34(2A). Alstom contended that the Tribunal had consciously adjudicated the issue, that institutional rules cannot dilute a statutory mandate, and that the rejected claims rested on independent findings which JPC had not challenged.

Analysis and findings of the Court: 

The Court reiterated that it does not sit in appeal under Section 34, relying on OPG Power Generation (P) Ltd. v. Enexio Power Cooling Solutions (India) (P) Ltd. for the principle that a possible view of the arbitrator on facts must be respected, as the arbitrator is the ultimate master of the quantity and quality of evidence.

In this context, the Court held as follows: 

1. Issues were considered and not ignored: The Tribunal had not overlooked the Rejected Letter. The award contained a separate and detailed discussion of its provenance, admissibility and permissible use after considering rival submissions, which took the case outside the “ignoring vital evidence” category of perversity.

2. Purposive reading of section 42A: Although Section 42A does not expressly use the term “inadmissibility”, it opens with a non-obstante clause and statutorily protects confidentiality as a defining attribute of arbitration. Reading it as a bare obligation with no practical consequence would allow parties to procure documents from another arbitration and deploy them in collateral proceedings, rendering the protection illusory.

3. Evidentiary discretion of the Tribunal: Even assuming Section 42A does not create a rigid exclusionary rule, the Tribunal retained authority to regulate the evidentiary record by examining the provenance of the document and the circumstances of its procurement. Its decision was an exercise of evidentiary discretion and not a jurisdictional error, patent illegality or perversity.

4. Relevance distinct from permissible use: A party has no unrestricted right to rely on a document solely because it may support its case, irrespective of how it was obtained or the legal obligations governing its disclosure. The Tribunal was justified in examining permissibility before evidentiary value.

5. ICC Rules subject to the Act: As the seat was in India, the proceedings remained subject to the mandatory provisions of the Act. Institutional rules derive their efficacy from party autonomy and operate subject to the governing law; they cannot dilute or override Section 42A.

6. Public domain and new grounds: Production of a document in judicial proceedings does not automatically strip it of confidentiality; this depends on how access was obtained and the governing legal regime. The Tribunal’s findings on provenance were findings of fact with no demonstrated perversity. Further, a Section 34 proceeding cannot be used to reconstruct the arbitral case on contentions never urged before the Tribunal.

7. No independent challenge to merits: JPC did not assail the Tribunal’s independent findings on Claim Nos. 2, 3, 13 and 16. Once the approach to the Rejected Letter was upheld, the foundation of the challenge fell, and no conflict with public policy under Section 34(2)(b)(ii) or patent illegality under Section 34(2A) was made out. 

Conclusion:

The High Court dismissed the petition, leaving the award undisturbed, with no order as to costs. The judgment gives Section 42A real practical consequence by upholding a tribunal’s power to exclude material sourced in breach of confidentiality from a separate arbitration; confirms that, for India-seated arbitrations, the statutory confidentiality mandate prevails over discretionary institutional regimes such as Article 22(3) of the ICC Rules; extends the confidentiality obligation, through agency, to counsel and their offices; and reaffirms that evidentiary determinations rendered after due consideration fall within the tribunal’s domain. For practitioners in multi-tier construction and procurement projects, where back-to-back sub-contracts often give rise to parallel arbitrations, it serves as a reminder that documents from an upstream arbitration cannot simply be imported into downstream proceedings.