{"id":57774,"date":"2026-07-13T08:26:53","date_gmt":"2026-07-13T08:26:53","guid":{"rendered":"https:\/\/my.legal500.com\/developments\/?post_type=legal_developments&p=57774"},"modified":"2026-07-13T08:42:04","modified_gmt":"2026-07-13T08:42:04","slug":"institutional-rules-cannot-dilute-statutory-confidentiality-delhi-high-court-reaffirms-the-mandatory-character-of-section-42a-confidentiality","status":"publish","type":"legal_developments","link":"https:\/\/my.legal500.com\/developments\/thought-leadership\/institutional-rules-cannot-dilute-statutory-confidentiality-delhi-high-court-reaffirms-the-mandatory-character-of-section-42a-confidentiality\/","title":{"rendered":"INSTITUTIONAL RULES CANNOT DILUTE STATUTORY CONFIDENTIALITY: DELHI HIGH COURT REAFFIRMS THE MANDATORY CHARACTER OF SECTION 42A CONFIDENTIALITY"},"content":{"rendered":"

I. INTRODUCTION<\/strong><\/p>\n

Can an arbitral tribunal seated in India refuse to admit a document merely because it originated from a separate confidential arbitration? The Delhi High Court answered this question in JPC Infrastructure and Constructions Pvt. Ltd. v. Alstom Transport India Ltd. (O.M.P. (COMM) 124\/2024)<\/em><\/strong>. The Court held that the confidentiality mandate under Section 42A of the Arbitration and Conciliation Act, 1996 (“the Act<\/em><\/strong>“) binds arbitral tribunals seated in India, even where the arbitration is conducted under institutional rules such as the ICC Rules of Arbitration, 2021. The judgment clarifies that party autonomy exercised through institutional rules cannot dilute a statutory confidentiality obligation enacted by Parliament.<\/p>\n

<\/p>\n

II. FACTUAL BACKGROUND OF THE DISPUTE:<\/strong><\/p>\n

The dispute arose from a sub-contract executed between JPC Infrastructure and Constructions Pvt. Ltd. (“Petitioner<\/em><\/strong>“) and Alstom Transport India Ltd. (“Respondent<\/em><\/strong>“) in relation to the Eastern Dedicated Freight Corridor Project. Under a Back-to-Back Sub-Contract Agreement dated 15.12.2015, the Petitioner was engaged for civil, electrical and allied works across fifty-five structures. Disputes arose over site access, project particulars and alleged delays, leading eventually to descoping of works and eventual termination of the contract by the Respondent.<\/p>\n

The disputes were referred to a three member Arbitral Tribunal under the ICC Rules of Arbitration, 2021. Before the Tribunal, the Petitioner sought to rely on a letter dated 07.06.2017 addressed by the Respondent to Dedicated Freight Corridor Corporation of India Limited (\u201cDFCCIL\u201d<\/em><\/strong>) in a separate arbitration between the Respondent and DFCCIL. The Petitioner contended that the letter contained admissions supporting its defence on delay and non-performance.<\/p>\n

The Respondent objected, contending that the letter formed part of confidential arbitral proceedings between the Respondent and DFCCIL and could not be relied upon in view of Section 42A of the Act. The Tribunal, by its Award dated 15.11.2023, sustained the objection and declined to admit the letter. The Tribunal found that the Petitioner had likely obtained the letter through counsel who had also represented DFCCIL in the related proceedings.<\/p>\n

The Tribunal accordingly rejected Claim Nos. 2, 3, 13 and 16, pertaining respectively to geotechnical investigations, topographical surveys, overhead costs and loss of profit. Notably, all counterclaims raised by the Respondent were rejected, and Justice J.D. Kapoor (Retd.) rendered a separate dissenting opinion on Claim Nos. 13 and 16. The Petitioner challenged the exclusion of the letter, and the consequent rejection of these four claims, under Section 34 of the Act before the Delhi High Court.<\/p>\n

III. THE ISSUE BEFORE THE DELHI HIGH COURT:<\/strong><\/p>\n

The primary question before the Court was whether the Tribunal’s exclusion of the letter dated 07.06.2017 on grounds of confidentiality under Section 42A of the Act was vitiated by patent illegality or perversity so as to warrant interference under Section 34 of the Act.<\/p>\n

A related question arose as to whether the confidentiality regime under the ICC Rules, said by the Petitioner to be discretionary in nature, diluted or overrode the mandatory confidentiality obligation under Section 42A once the seat of arbitration was in India.<\/p>\n

The Petitioner also argued that Section 42A merely imposes a \u201cduty of confidentiality<\/em>\u201d and prescribes no consequence for its breach, and that a document otherwise relevant could not be rendered inadmissible on that ground alone.<\/p>\n

IV. ANALYSIS BY THE COURT<\/strong><\/p>\n

The High Court began by noting the limited scope of interference available under Section 34 of the Act. It relied on the Supreme Court’s decision in OPG Power Generation (P) Ltd. v. Enexio Power Cooling Solutions (India) (P) Ltd. ((2025) 2 SCC 417)<\/em><\/strong> for the settled tests governing patent illegality and conflict with the public policy of India.<\/p>\n

On the central issue, the Court held that Section 42A opens with a non-obstante clause and applies notwithstanding anything contained in any other law in force. It observed that confidentiality is one of the defining features of the arbitral process, and that the provision exists to preserve the integrity of that process.<\/p>\n

The Court rejected the Petitioner’s contention that Section 42A merely creates an unenforceable obligation. It reasoned that reading the provision to carry no practical consequence would substantially erode the protection Parliament intended, and would reduce the statutory mandate to a formality devoid of effective content.<\/p>\n

Court on the interplay between institutional rules and statutory mandates:<\/em><\/strong><\/p>\n

The Court examined the Petitioner’s reliance on Article 22(3) of the ICC Rules, which merely enables a tribunal to issue directions concerning confidentiality upon request. It held that institutional rules operate within the framework of the governing statute, and cannot dilute or override an express legislative command contained in the Act.<\/p>\n

Court on party autonomy and the governing law of the seat:<\/em><\/strong><\/p>\n

The High Court held that even though the arbitration was conducted under the ICC Rules, the seat of arbitration being in India meant that the arbitral proceedings remained subject to the mandatory provisions of the Act. It observed that institutionalised arbitral proceedings derive their efficacy from party autonomy, but operate subject to the governing law.<\/p>\n

The Court concluded that a statutory mandate enacted by Parliament cannot be \u201cdiluted, displaced or overridden<\/em>\u201d by rules framed by an arbitral institution. It held that the Tribunal was therefore fully justified in treating Section 42A as controlling and binding, irrespective of the more discretionary approach to confidentiality permitted under the ICC Rules.<\/p>\n

Court on relevance versus permissible use of evidence:<\/em><\/strong><\/p>\n

The Court distinguished between the relevance of a document and its permissible use. It held that a party cannot claim an unrestricted right to rely upon evidence merely because it may support its case, irrespective of the circumstances in which the document was obtained. The Court found no jurisdictional error, patent illegality or perversity in the Tribunal first examining the permissibility of reliance before assessing evidentiary value.<\/p>\n

Mere production of a document in judicial proceedings:<\/em><\/strong><\/p>\n

The Court also rejected the Petitioner’s argument that the letter had entered the public domain merely because it had been referred to in separate proceedings before the Court. It held that mere production of a document in judicial proceedings does not automatically establish loss of confidentiality, particularly where the document originates from an arbitration protected by a statutory confidentiality obligation.<\/p>\n

On facts, the Court noted that the Tribunal had returned specific findings that the Petitioner’s explanation for possessing the letter was unconvincing, and that the document had likely reached the Petitioner through counsel common to both proceedings. The Court held these to be findings of fact within the Tribunal’s domain, and found no perversity demonstrated in them.<\/p>\n

V. OBSERVATIONS OF THE COURT AND THE JUDGMENT<\/strong><\/p>\n

The Court observed that the Petitioner had not independently challenged the merits of the Tribunal’s findings on Claim Nos. 2, 3, 13 and 16. The entire challenge rested on the exclusion of the single letter. Once the Court found no infirmity in the Tribunal’s approach to that document, the foundation of the challenge fell in entirety.<\/p>\n

The Court also distinguished the Petitioner’s reliance on Global Aviation Services Private Limited v. Airport Authority of India (2018 SCC OnLine Bom 233)<\/em><\/strong> and the Constitution Bench decision in In Re: Interplay Between Arbitration Agreements under Arbitration Act, 1996 and Stamp Act, 1899 ((2024) 6 SCC 1)<\/em><\/strong>. It held that neither decision addressed the admissibility of evidence sourced in breach of arbitral confidentiality, and that the latter, properly read, reinforced the principle that a non-obstante clause must be construed to advance the legislative purpose underlying it.<\/p>\n

Finding no ground of patent illegality or conflict with the public policy of India, the Delhi High Court dismissed the petition and upheld the Arbitral Award dated 15.11.2023 in its entirety, with no order as to costs.<\/p>\n

VI. CONCLUSION<\/strong><\/p>\n

The judgment in JPC Infrastructure v. Alstom Transport<\/em><\/strong> clarifies an important aspect of cross-arbitration confidentiality for parties operating under institutional rules with an Indian seat. The principle that emerges is that Section 42A of the Act operates as a mandatory, non-derogable obligation. It binds parties, counsel and tribunals alike, regardless of any more permissive confidentiality regime available under institutional rules chosen by the parties.<\/p>\n

For practitioners, the judgment carries practical significance in multi-contract projects where related disputes are frequently arbitrated in parallel or successive proceedings involving overlapping counsel. Documents or admissions obtained from one confidential arbitration cannot be freely imported into another, even where such material appears directly relevant to a party’s case. Counsel acting across related arbitrations must be alert to the risk that possession of documents from one proceeding, however obtained, may attract the bar under Section 42A in a related but separate reference.<\/p>\n

What the judgment ultimately protects is the sanctity of the arbitral process. It ensures that confidentiality remains a substantive safeguard rather than a rule with no practical teeth.<\/p>\n

The decision also carries a broader lesson for arbitration lawyers acting on both sides of related disputes involving a common employer or principal contractor. Where the same counsel appears in successive or parallel arbitrations arising from a single project, care must be taken to preserve the separateness of each proceeding. An arbitral tribunal seated in India will not treat the flexible confidentiality provisions under institutional rules as a substitute for the mandatory statutory obligation under Section 42A of the Arbitration Act. Parties must accordingly structure their evidence strategy in compliance with this requirement.<\/p>\n

By Pragalbh Bhardwaj, Associate Partner <\/span><\/strong><\/p>\n

Pragalbh Bhardwaj<\/a><\/p><\/blockquote>\n