The Singapore International Commercial Court (“SICC”) comprising Justice Simon Thorley allowed the application to set aside an award made in an arbitration on the ground of breach of natural justice, finding that (a) the presiding arbitrator had demonstrated apparent bias by prejudging the dispute in the Arbitration; and (b) the claimant had been deprived of a fair, independent and impartial decision in light of the reasoning in the Award having been reproduced to a significant extent from a different award in a different arbitration.

This case pertains to DJO's application to set aside the final award in Internation Chamber of Commerce ("ICC") Arbitration Case No. 26733/HTG under the International Arbitration Act 1994 and the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration. DJO, a special purpose vehicle in India, was involved in a dispute with a consortium of three companies—Indian and Japanese—over the application of the FIDIC Conditions in a contract (CPT-13 Contract) related to the Western Dedicated Freight Corridors. The dispute arose from an Indian government notification increasing minimum wages, leading to arbitration in Singapore.

The arbitration was one of three parallel proceedings, all involving similar issues but distinct contracts. The presiding arbitrator in DJO's case, Judge C, also presided over the other two arbitrations (CP-301 and CP-302). DJO argued that the Tribunal in their arbitration improperly copied and pasted reasoning from the CP-301 and CP-302 Awards, breaching natural justice principles, particularly impartiality and the right to a fair hearing.

The Tribunal's award in favour of Consortium X was criticised for using sections from previous awards without independently considering the specific facts and arguments presented in DJO's case. DJO contended that this approach prejudiced their right to a fair, impartial, and independent decision. They also pointed out discrepancies in the application of the governing law and the failure to address unique issues in their arbitration.

The court, led by Simon Thorley IJ, had to consider whether the Tribunal's conduct constituted a breach of natural justice, justifying the setting aside of the award. DJO emphasised that the Tribunal's reliance on earlier awards compromised the independence and impartiality required in arbitration. Consortium X argued that the Tribunal had sufficiently considered the issues specific to DJO's case, and any similarities in reasoning were due to the parallel nature of the disputes.

“…the result of the Tribunal’s copy-and-pasting meant that the reasons in the Award were no reasons at all…The Award did not rehearse the submissions actually made to the Tribunal, but attributed submissions made in the earlier arbitration – repeated almost verbatim – to counsel in the Arbitration. There can, to my mind, be no clearer indication to such an observer that Judge C may have approached the matter with a closed mind…With regret, I conclude that the assertion of apparent bias against Judge C, a highly experienced judge and arbitrator, is well-founded…In sum, I accept DJO’s submission that the Award was made in breach of natural justice and is therefore liable to be set aside on that ground,” the court observed.

Ultimately, the court found merit in DJO's argument that the Tribunal's decision was not independent, as it had overly relied on reasoning from the previous awards without adequately distinguishing between the cases or allowing DJO to address those earlier decisions. The court agreed that this amounted to a breach of natural justice and decided to set aside the award.

Advocate for Claimant: Mr. Chan Leng Sun SC of Duxton Hill Chambers i/b Mr. Sameer Jain a/w Anu Sura of PSL Advocates & Solicitors a/w Tham Lijing and Nathaniel Lai.

Advocate for Defendants: Ashish Chugh, Nicholas Tan and Darien The (Wong & Leow LLC)

Case Details: DJO v DJP & Ors., [2024] SGHC(I) 24

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