SINGAPORE Trends and Developments Contributed by: KOH Swee Yen, SC, Wendy LIN, TIONG Teck Wee and Monica CHONG Wan Yee, WongPartnership LLP
The award was issued by a majority composed of Arbitrators A and C (“Majority” and “Disputed Award”), with Arbitrator B issuing a dissenting opinion. The claimant applied to set aside the award on, among other things, the ground that there had been a breach of the rules of natural justice. The underlying dispute between the parties relates to four contracts to carry out works for sections of a dedicated freight corridor. The Disputed Award was handed down in the last of four arbitrations, corre- sponding to the last of the four contracts. The claim- ant’s overarching complaint was that a substantial part of the Disputed Award (157 out of 176 paragraphs dealing with the substantive issues in the arbitration) were reproduced from the award that was the sub- ject of DJO (“ DJO Award”), which had itself been set aside. In particular, the claimant pointed out: • The Majority were members of the tribunal that issued the DJO Award. • The Disputed Award contained extensive reproduc- tion, often cut-and-paste, from the DJO Award. • This resulted in the Disputed Award containing references to the wrong contractual provisions, non-existent annexures, and placing weight on arguments and authorities which the parties did not raise in the arbitration but which were analysed in the DJO Award. • The Disputed Award also failed to deal with argu- ments that had been raised in the arbitration. The Disputed Award was set aside on the ground that there had been a breach of the rules of natural justice due to apparent bias on the part of the Majority. In arriving at its decision, the SICC held that reproduc- tion can be seen as showing failure of the decision- maker to apply his or her mind to the evidence and arguments before him or her, and this can amount to apparent bias. In this connection, the SICC held that reproduction “can amount to apparent bias if on the reasonable suspicion test the decision-maker appears to the observer to have had (or can amount to actual bias because the court finds that the decision-maker had) a closed mind, a mind which was closed to a decision on the evidence and arguments before him or her: in that manner, prejudgment”.
On the facts, the SICC had “no doubt that the observ- er would have a reasonable suspicion of bias in the form of prejudgment through the Majority coming to their decision with a closed mind, a mind which imported and imposed the reasoning and decision in the DJO Award] … rather than [coming] to a deci- sion on the evidence and arguments before them”. The SICC further found that the breach of the rules of natural justice had prejudiced the claimant’s rights, as there could reasonably have been a difference in the result if the Majority had applied an open mind to the evidence and arguments before them, as “starkly shown” by the dissenting opinion of Arbitrator B. Notably, the SICC rejected the argument raised by the defendants in DOI that the claimant knew that the Majority were members of the tribunal which issued the DJO Award but did not object to their appoint- ments, and that by the time the DJO Award was issued, the claimant would have known that the Majority had reproduced material from the previous two arbitra- tions (the DJO arbitration being the third). The SICC found that an observer would not regard the claimant as having taken the risk of influence from the deci- sions in the earlier arbitrations, and in any event, the reproductions involved “much more than the Major- ity being ‘influenced’ on account of their involvement in the earlier arbitrations”, and “spoke of […] lifting reasoning and analyses, and so decisions, […] with- out applying their minds”. The SICC also rejected the argument that it is “not humanly possible for arbitra- tors to erase arguments and findings on similar issues from their mind”, such that it is unrealistic to say that the arbitrators have to come with an open mind. In rejecting this argument, the SICC cautioned that, “[w] hile the tribunal does not sit with an empty mind, it must not sit with a mind closed by one arbitration to proper consideration of the evidence and arguments in the other arbitration”. Developments Relating to Injunctive Relief Injunctions are among some of the most powerful interim remedies available in litigation and arbitration. They preserve the status quo and safeguard the effi- cacy of judgments and arbitral awards. However, their exceptional nature means that courts will approach them with caution.
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