SINGAPORE Trends and Developments Contributed by: Koh Swee Yen, Joel Quek, Alessa Pang and Andre Soh, WongPartnership LLP
Under the Model Law, the defendant’s only permis - sible challenge to the award was through Singapore’s courts. By initiating proceedings in the Philippines to declare the award void, the defendant acted contrary to Singapore law. The SICC accordingly granted the permanent ASI sought by the claimant. The SICC clarified that, while resisting enforcement abroad is permitted, the Philippines Action went beyond this and was impermissible as a matter of Singapore law. Safeguarding the integrity of the arbitral process: tribunal copying as a breach of natural justice DJO v DJP involved a Singapore-seated arbitration relating to the development and operation of dedicat - ed freight corridors (DFCs) within India. The claimant was an Indian-incorporated special purpose vehicle, which engaged the defendants to perform construc - tion works on a specific section of one of the DFCs. The claimant had entered into a separate contract with the defendants, as well as two other contracts with other contractors for construction works on dif - ferent sections of the DFCs (one of which related to the underlying arbitration in DOI v DOJ ). Although the contracts were broadly similar, the terms of each were not identical. The underlying dispute arose from the defendants’ assertion that they were entitled to adjust - ments to the contract price pursuant to the “Change of Law” clause. The other contractors made similar claims, and four different arbitrations were com - menced against the claimant. A common presiding arbitrator was appointed for all of those arbitrations. The underlying award in DJO v DJP was the third to be issued among the four arbitrations. Despite each arbitration involving distinct contracts and factual cir - cumstances, the claimant observed that substantial portions of the award appeared to have been repli - cated from the awards issued in the two preceding arbitrations, and applied to set aside the award. The SICC at first instance set aside the award on the ground that it had been issued in breach of natural justice, as the tribunal had impermissibly used the two preceding awards as templates from which a substan - tial portion of the award was prepared. This decision was upheld by the Singapore Court of Appeal (SGCA), which held that the fact that the pre - ceding awards were used as templates in the drafting
of the award gave rise to a reasonable apprehension that the tribunal’s decision was improperly influenced by anchoring bias – which refers to the unconscious tendency to rely on an earlier conclusion without regard to new information and fresh analysis – and hence that the allegations of apparent bias had been made out. The SGCA also agreed with the SICC that there had been a breach of the fair hearing rule, as the material derived from the preceding awards – which formed a substantial part of the award – were extrane - ous considerations that had not been brought to the parties’ attention. The final award among the four arbitrations was chal - lenged on similar grounds in DOI v DOJ , and was also set aside by the SICC. The SICC similarly found that there had been a breach of natural justice arising from both apparent bias and a breach of the fair hearing rule. Additionally, the SICC noted that reproduction from earlier awards in the analysis and decision of so-called inessential issues was just as significant in consider - ing apparent bias by prejudgment in the analysis and decision on essential issues. This was on the basis that a breach of natural justice prejudiced the rights of the claimant, and, where such breach had resulted from apparent or actual bias, it could not reasona - bly be said that such breach was only technical or inconsequential. In such a case, it could be said that the breach itself was the prejudice as it infringed the claimant’s right to due process and tainted the deci - sion-making process. The SICC’s decision in DOI v DOJ was not appealed. The Development of Investor-State Dispute Settlement in Singapore Since the matter involving the investor-State arbitra - tion between the Lao People’s Democratic Republic (“Laos”) and Sanum Investments Ltd and Lao Hold - ings NV in 2013, the Singapore courts have seen a rise in cases relating to the enforcement and setting- aside of investor-State arbitration awards. This is in part because many investor-State parties and arbitral tribunals are selecting Singapore as the seat of the arbitration, which is testament to Singapore’s position as a globally respected arbitration hub.
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