Confidential, Yet Admissible? Rethinking Section 42A after JPC Infrastructure v. Alstom

Introduction

Confidentiality is often regarded as a foundational pillar of arbitration.[i] However, this principle does not always sit comfortably with the tribunal’s duty to ensure evidentiary fairness while arriving at the truth. In practice this tension becomes especially visible when a party seeks to rely on a material from another confidential arbitration forcing the tribunal to weigh confidentiality against its fact-finding obligations. In India, this tension has received statutory recognition with the introduction of Section 42A into the Arbitration and Conciliation Act, 1996, which codifies confidentiality as a legal obligation.[ii] However, the provision remains silent on what happens evidentially when that confidentiality is breached.

The recent judgment of the Delhi High Court in JPC Infrastructure Private Limited v. Alstom Transport India Limited, brought this very question before the Court.[iii] While the Court correctly rejected the argument that Section 42A automatically transforms confidentiality into an absolute rule of inadmissibility, the judgment inadvertently exposes a much larger doctrinal gap in Indian arbitration law concerning the admissibility of confidential arbitral material in subsequent proceedings.

The Judgment

The controversy in JPC Infrastructure arose from a subcontract for the Eastern Dedicated Freight Corridor Project. Following the Termination of the contract by Alstom Transport India Limited, which was the respondent in the present case, the petitioner, JPC Infrastructure initiated arbitration under the ICC Rules of Arbitration, 2021 before a three-member Arbitral Tribunal. To substantiate its defence that the project delays were attributed to the respondent’s failure to provide for an encumbrance-free site access, the petitioner sought to rely upon a letter dated 07.06.2017. This letter had been addressed by the respondent to DFCCIL, who was the principal employer, and was part of the record in a separate arbitration proceeding between the two parties. The tribunal declined to admit the letter as evidence, reasoning that it was violative of the confidentiality obligations governing the arbitration under Section 42A of the Arbitration and Conciliation Act, 1996. The petitioner challenged this exclusion under Section 34, arguing that Section 42A merely imposes a duty of confidentiality and it does not prescribe the exclusion of evidence as a consequence of its breach. The Delhi High Court dismissed the challenge, observing that while the Section 42A does not by itself create a rigid rule of inadmissibility, the Tribunal acted within its evidentiary discretion in declining to rely on a document which is obtained in breach of statutory confidentiality.[iv]

Confidentiality is Not Evidentiary Privilege

Beyond the immediate facts of the case, the judgment exposes a pressing need to examine why confidentiality is not the same as evidentiary privilege.[v] The basis of the doctrinal confusion surrounding Section 42A arises from the blurring of these two different legal concepts. While confidentiality puts a substantive obligation on parties not to disclose certain information to third parties, privilege gives parties immunity against the compulsory production of evidence before an adjudicatory body.[vi] A document may be entirely confidential yet fully admissible if it contains facts relevant to the dispute resolution.[vii] The statute regulates confidentiality but it remains entirely silent on privilege.

This distinction is also reflected in comparative jurisprudence. Courts across different jurisdictions have consistently held that a document does not lose its evidentiary value merely because it originated in a confidential arbitration. Where disclosure is necessary to ensure a fair determination of the dispute, confidentiality alone cannot be treated as sufficient ground to exclude the evidence.[viii] The position in India is considerably less straight forward, while Section 42A does not lay down an automatic rule governing the admissibility of confidential material, it nevertheless requires the tribunal to carefully consider the circumstances in which that material was obtained and subsequently disclosed. This places considerable importance on the statutory duty of confidentiality and which in practice  may operate as meaningful constraint on the tribunal’s ability to rely on such evidence.

Does Section 42A Create an Exclusionary Rule?

This brings us to the next question. Does section 42A itself create an exclusionary rule of evidence? A reading of the legislative intent suggests that the provision was meant to preserve confidentiality throughout the arbitral process. It opens with a non-obstante clause, giving an overriding effect to protect confidential information. However, the section does not prescribe any consequence for a breach of that confidentiality. The Delhi High Court therefore, was right to hold that Section 42A by itself, does not create an exclusionary evidentiary rule. Reading such into the provision would amount to judicial overreach. Also, if parliament had intended confidential material inadmissible per se, it would have included it expressly in the provision, as it did for conciliation proceedings under Section 81, where absolute protection is provided.[ix] The High Court’s finding that the tribunal exercised discretion in admitting the evidence, rather than acting under any statutory disqualification, remains faithful to the text of the statute.

The Relationship Between Confidentiality and Procedural Fairness

The relationship between confidentiality and procedural fairness requires much closer scrutiny. When certain relevant evidence is excluded from the proceedings citing confidentiality, based on the fact that it arose from a different arbitration proceeding, it presents a significant challenge to procedural fairness. [x] The Act mandates equal treatment of parties and provides full opportunity to present their case. [xi] Therefore, the tribunal is required to weigh the substantive relevance of the document before removing it.[xii] When it excludes highly probative evidence to protect confidentiality, it unintentionally gives primacy to privacy over accurate fact finding. This rigid application of confidentiality suppresses the truth, and therefore can be susceptible to challenge under Section 34[xiii] for violating fundamental policy of Indian law. [xiv] 

A Comparative Perspective on Confidentiality

International jurisdictions too have dealt with the similar question of procedural fairness and confidentiality. English courts have consistently recognised confidentiality as an implied term of the arbitration agreement, while simultaneously acknowledging that the obligation is qualified rather than absolute. Beginning with Dolling-Baker, [xv]  the courts permitted disclosure where necessary to protect legal rights, a principle further elaborated in Ali Shipping Corporation[xvi]  and later consolidated in Emmott. [xvii]  Singapore has adopted a similar approach. In Myanma Yaung, the Singapore High Court recognised that confidentiality principally governs the relationship between the parties and does not impose an absolute duty of secrecy against the world at large, allowing disclosure where recognised exceptions apply. [xviii]

Institutional Framework and International Practice

Institutional frameworks for arbitration also reflect a similar approach. Article 22(3) under the ICC Rules of Arbitration provides the tribunal with the power to issue orders for protecting confidential information.[xix] Other institutions like LCIA[xx] and SIAC[xxi] similarly regulate the procedural management of privacy through their respective rules. Furthermore, UNCITRAL Arbitration Rules preserve the confidentiality of certain aspects of the arbitral process, such as permitting in camera hearings and restricting publication of awards, but they do not create a comprehensive evidentiary privilege that prevents the subsequent use or disclosure of all documents produced during the arbitration. [xxii] These frameworks mandate the confidentiality, however they do not automatically prohibit a confidential document if it is relevant and material to the case. These rules rely heavily on the discretion of tribunal in admitting such evidence.

Unanswered Questions

The decision of Delhi High Court does provide an immediate clarity on the limits of Section 42A; however, it does leave many doctrinal uncertainties unanswered. Firstly, it remains uncertain whether confidential information brought before the Court by a Section 34 petitioner loses its confidential status when it enters the open court record. Secondly, status of illicitly obtained evidence is still not clear. If a party obtains a highly relevant document from a separate arbitration proceeding, the question arises that whether the improper source of the evidence alone justifies its exclusion. Lastly, it still remains uncertain, what factors the tribunal should look into to balance the confidentiality against procedural fairness, including the safeguards that should accompany such disclosures. Until these questions are answered, the application of Section 42A is likely to remain uncertain.

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[i] Gary B Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021) ¶ 2770–2778; Nigel Blackaby and others, Redfern and Hunter on International Arbitration (7th edn, OUP 2023) ¶ 2.134–2.146.

[ii] Arbitration and Conciliation Act 1996, s 42A.

[iii] JPC Infrastructure and Constructions Pvt Ltd v Alstom Transport India Ltd 2026 DHC 5370 ¶ [61]–[92].

[iv] JPC Infrastructure and Constructions Pvt Ltd v Alstom Transport India Ltd (n 3).

[v] Redfern and Hunter (n 1) ¶ 2.145–2.148.

[vi] Born (n 1) ¶ 2784–2795.

[vii] Dolling-Baker v Merrett [1990] 1 WLR 1205 (CA) ¶ 1213–1215.

[viii] Ali Shipping Corp v Shipyard Trogir [1999] 1 WLR 314 (CA) ¶ 326–327.

[ix] Arbitration and Conciliation Act 1996, s 81.

[x] Redfern and Hunter (n 1) ¶ 6.95–6.102.

[xi] Arbitration and Conciliation Act 1996, s 18.

[xii] Born (n 1) ¶ 2408–2436.

[xiii] Arbitration and Conciliation Act 1996, s 34(2)(b)(ii).

[xiv] Associate Builders v Delhi Development Authority (2015) 3 SCC 49 ¶ [27]–[42].

[xv] Dolling-Baker (n 7) ¶1213–1215.

[xvi] Ali Shipping (n 8) ¶ 326–328.

[xvii] Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184 ¶ [107]–[115].

[xviii] Myanma Yaung Chi Oo Co Ltd v Win Win Nu [2003] SGHC 124.

[xix] ICC Arbitration Rules (2021) art 22(3).

[xx] LCIA Arbitration Rules (2020) arts 30.1–30.2.

[xxi] SIAC Arbitration Rules (2025) r 59.

[xxii] UNCITRAL Arbitration Rules (2013) arts 17(3), 28(3), 34(5).

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