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 rendered in proceedings before a three-member tribunal, including a presiding arbitrator (“Judge C”). Judge C was also the presiding arbitrator in two parallel India-seated arbitrations (“Indian Arbitrations”) and had, in those roles, acquired knowledge of the facts and submissions traversed in the Indian Arbitrations. The SICC found that, rather than approaching the issues in the ICC arbitration de novo on the basis of submissions made therein and writing a self-standing award, the ICC tribunal elected to use awards rendered in the Indian Arbitrations (“Earlier Awards”) as “a template” for its award in the ICC arbitration, and to “massage” it into a state where it dealt (or appeared to deal) with the issues in the ICC arbitration. Indicators of this included that the ICC award: • attributed submissions made in the Indian Arbitrations to counsel in the ICC arbitration; • referred to authorities that were not cited in the ICC arbitration; • referred to terms found in the contracts from the Indian Arbitrations; and • incorrectly applied Indian law (instead of Sin- gapore law) to the determination of interest and costs. In seeking to set aside the ICC award, the claim- ant argued that there had been (among other things) the following breaches of natural justice: • the rule against bias precludes an arbitrator from pre-judging a case and the accumulated knowledge of Judge C and his willingness to use that knowledge in preparing the ICC award constituted impermissible pre-judging; and • the right to a fair hearing includes the right to a fair, independent and impartial decision, which had not been the case in light of the
ICC tribunal’s copies “copy and pasting” in the ICC award. The SICC (whose decision may yet be subject to appeal) agreed with the claimant on both counts. • On apparent bias, the SICC held that the court should assume the mantle of “a fair- minded, informed and reasonable observer” and ask whether such a person, after con- sidering the facts and circumstances, would suspect that the arbitrator had approached the matter with a closed mind. As the SICC found that the ICC award failed to consider the submissions actually made to it, but attributed submissions made in the Earlier Arbitrations (repeated almost verbatim) to counsel in the ICC arbitration, there was “no clearer indication [...] that Judge C may have approached the matter with a closed mind”. • The SICC further held that the right to a fair hearing (which includes the right to a fair, independent and impartial decision) was also lost in this case, noting that the award was not an independent piece of work based solely on the submissions and materials placed before the ICC tribunal. In so holding, the SICC stressed that “[w]here, in making its award, a tribunal draws heavily on facts and arguments in previous cases and does not clearly distinguish between those facts and arguments and those which are presented to them in the instant case and also fails to give the parties an opportunity to address it on the previous award, the right to a fair, independ- ent and impartial award will be lost”. While it was not necessary (in light of the above findings) for the SICC to determine the appli- cant’s additional argument that the award was also in conflict with Singapore public policy, the SICC noted that it “would not characterise what
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