POINTS FOR COUNTER ON THE GROUND OF BREACH OF

CONFIDENTIALITY
1. That it is a well-accepted principle of law that an award will be
considered to be against public policy and could be set aside
if it is contrary to any substantive law governing the parties.
[ONGC v. Saw Pipes 2003 (5) SCC 705]. In the present case,
the substantive law governing the parties is Indian law
wherein breach of trust/confidentiality is existent in tort law,
contractual law and Indian penal code.
2. That by willfully divulging information provided in the Poyry
report that entrusted to the respondent in violation

to the

express direction provided by the legal contract which

restricted use of the document for internal purposes, the
respondent has committed a crime under Section 409, Indian
Penal Code, 1860.
3. That the respondent has committed breach of obligation
imposed by the contract between Poyry and the respondent as
per Indian Contract Act, 1872.
4. That it is a well-accepted principle in law that the tort of
breach

of

confidentiality

embraces

wider

zone

of

confidentiality that can possibly be asserted where a third

party is obliged to maintain confidentiality, having regard to
the nature and sensitivity of the information. Therefore, the

obligation of confidence rests not only on the original

recipient, but also on any person who received the information
with knowledge acquired at the time or subsequently that it
was

originally

given

in

confidence.

Subsequently,

an

injunction can be claimed by the corporation based on the

right to confidentiality. In Petronet LNG Ltd. v. Indian Petro
Group and Another [2009]95 SCL 207(Delhi), the Delhi High
Court held that:
49. It may be seen from the above discussion, that originally,
the

law

recognized

relationships-

either

through

status

(marriage) or arising from contract (such as employment,

contract for services etc) as imposing duties of confidentiality.
The

decision

in Coco (1969)

marked

shift,

though

imperceptibly, to a possibly wider area or zone. Douglas noted

the paradigm shift in the perception, with the enactment of the
Human Rights Act; even before that, in Attorney General
(2) (also called the Spycatcher case, or the Guardian case) the
Court acknowledged that there could be situations -where a
third party (likened to a passerby, coming across sensitive
information, wafting from the top of a building, below) being
obliged to maintain confidentiality, having regard to the nature
and sensitivity of the information..

51. Though the reported cases, discussed above, all dealt with
individual right, to confidentiality of private information
(Duchess of Argyll;Frazer; Douglas; Campbell and H.R.H. Prince
of Wales) yet, the formulations consciously approved in the
Guardian,

and Campbell,

embrace

wider

zone

of

confidentiality, that can possibly be asserted. For instance,

professional records of doctors regarding treatment of patients,
ailments of individuals, particulars, statements of witnesses
deposing in investigations into certain types of crimes,
particulars of even accused who are facing investigative
processes, details victims of heinous assaults and crimes, etc,
may, be construed as confidential information, which, if
revealed,

may

have

untoward

consequences,

casting

corresponding duty on the person who gets such information either through effort, or unwittingly, not to reveal it. Similarly, in
the cases of corporations and businesses, there could be
legitimate concerns about its internal processes and trade
secrets, marketing strategies which are in their nascent stages,
pricing policies and so on, which, if prematurely made public,
could

result

in

irreversible,

and

unknown

commercial

consequences. However, what should be the approach of the

court when the aggrieved party approaches it for relief, would
depend on the facts of each case, the nature of the information,

the corresponding content of the duty, and the balancing

exercise to be carried out. It is held, therefore, that even though
the plaintiff cannot rely on privacy, its suit is maintainable, as
it can assert confidentiality in its information."
In Zee Telefilms Limited v.Sundial Communications Pvt Ltd
2003 (5) BomCR 404, while discussing the difference between
confidentiality and copyright, the Division Bench of the
Bombay High Court held that:
"10. The law of the confidence is different from law of
copyright. In paragraph 21.2 (page 721), [of Copinger and
Skone-James on Copyright (13th Edn.)] the learned author has
pointed out that right to restrain publication of work upon the
grounds, that to do so would be breach of trust of confidence, is
a broader right than proprietary right of copyright. There can be
no copyright of ideas or information and it is not infringement of
copyright to adopt or appropriate ideas of another or to publish
information received from another, provided there is no
substantial copying of the form in which those ideas have, or
that information has, been previously embodied. But if the
ideas or information have been acquired by a person under
such circumstances that it would be a breach of good faith to
publish them and he has no just case or excuses for doing so,

the court may grant injunction against him. The distinction

between the copyright and confidence may be of considerable
importance with regard to unpublished manuscripts / works
submitted, and not accepted, for publication or use. Whereas
copyright protects material that has been reduced to permanent
form, the general law of confidence may protect either written or
oral confidential communication. Copyright is good against the
world generally while confidence operates against those who
receive information or ideas in confidence. Copyright has a
fixed statutory time limit which does not apply to confidential
information, though in practice application of confidence usually
ceases

when

the

information

or

ideas

becomes

public

knowledge. Further the obligation of confidence rests not only

on the original recipient, but also on any person who received
the information with knowledge acquired at the time or
subsequently that it was originally given in confidence."
[Also see Mr. Diljeet Titus, Advocate v. Mr. Alfred A. Adebare 130
(2006) DLT 330 para 81]. In light of this, the evidence is
wholly

inadmissible

confidentiality

and

as
the

it

violates

respondent

Poyrys
by

right

divulging

to

such

information is subjecting both the arbitral tribunal and the

claimant to an obligation of confidence which due to such

disclosure now not only rests on the original recipient, but

also on any person who received the information with the
knowledge that it was originally given in confidence and was
admitted without Poyrys explicit consent. Further, if an award
is passed taking into consideration such evidence, an
injunction against it can be claimed by Poyry based on
violation of its right to confidentiality.
5. That it is a well-accepted principle of law that an award will be
considered to be against public policy and could be set aside
if it is contrary to the provisions of the Arbitration and
Conciliation Act, 1996. [ONGC v. Saw Pipes 2003 (5) SCC 705;
DDA v. R.S. Sharma and Co. (2008) 13 SCC 80] In the present
case, the wholly inadmissible report made by Poyry must not
be admitted by the Arbitral Tribunal during the ongoing
arbitral proceedings as the appellants were not given an
opportunity to question the validity of the evidence. This
prima facie is against the Audi Alteram Partem principle which
undoubtedly is a fundamental juristic principle in Indian law
and is also contained in Sections 18 and 34 (2) (a)(iii) of the
Arbitration and Conciliation Act.
6. That in the case of Oil and Natural Gas Corporation
Ltd.Vs.Western Geco International Ltd., the Honble Supreme
Court further held that a Court and so also a quasi- judicial
authority must, while determining the rights and obligations

of parties before it must do so in accordance with the

principles of natural justice. [PARA 38] In the light of the
facts of the present case, it is abundantly evident that the
arbitral tribunal did not take due cognizance of the audi
alteram partem rule and that there was non-application of
mind to the attendant facts and circumstances
7. That in the case of Oil and Natural Gas Corporation
Ltd.Vs.Western Geco International Ltd., the Honble Supreme
Court inter-alia held that
39. No less important is the principle now recognised as a
salutary juristic fundamental in administrative law that a
decision which is perverse or so irrational that no reasonable
person would have arrived at the same will not be sustained in
a court of law. Perversity or irrationality of decisions is tested
on

the

touchstone

of

Wednesbury

principle

[Associated

ProvincialPicture Houses Ltd. v. WednesburyCorpn., (1948) 1

KB 223: (1947) 2 All ER 680 (CA)] of reasonableness. Decisions
that fall short of the standards of reasonableness are open to
challenge in a court of law often in writ jurisdiction of the
superior courts but no less in statutory processes wherever the
same are available.
Further, it is settled law that where a finding is based on no evidence, or

 an arbitral tribunal takes into account something irrelevant

to the decision which it arrives at; or
ignores vital evidence in arriving at its decision,

such decision would necessarily be perverse. [H.B. Gandhi,

Excise and Taxation Officer cum- Assessing Authority v.
GopiNath& Sons, 1992 Supp (2) SCC 312 at p.317]. In the
present case, the arbitral tribunal while admitting this wholly
inadmissible evidence has over-looked the confidentiality
clause and its actions may subject the award to injunction by
the

Poyry

Corporation

on

confidentiality is being violated.

ground

that

its

right

to