DJO v DJP & 2 Ors

Q: Which legislation does [2024] SGHC(I) 24 consider?

The judgment refers to Arbitration Act (Cap 10), Indian Arbitration Act (Cap 10), International Arbitration Act (Cap 143A), and International Arbitration Act (Cap 10). The statutes cited are listed in full on this page, each linking to its primary text.

[2024] SGHC(I) 24 Singapore International Commercial Court 15 August 2024 • SIC/OA 8/2024 • 62 min read

18 cases cited (16 SG, 2 foreign) Cited by 3 cases

Catchwords

Arbitration — Award — Recourse against award — Setting aside — Breach of natural justice — Tribunal alleged to have copied large portions of award from awards in parallel arbitrations implicating similar issues — Section 24(b) International Arbitration Act 1994 (2020 Rev Ed)

Practice Areas

Arbitration

Judges (1)

Simon Thorley Delivered

Counsel (8)

Duxton Hill Chambers (Singapore Group Practice) Firm Wong & Leow LLC Firm Ashish Chugh Counsel Defendant Chan Leng Sun Counsel Claimant Darien The Counsel Defendant Nathaniel Lai Counsel Claimant Nicholas Tan Counsel Defendant Tham Lijing Counsel Claimant

Parties (4)

DJO Claimant DJP Defendant DJQ Defendant DJR Defendant

Case Significance

DJO v DJP and others [2024] SGHC(I) 24 was decided by Simon Thorley IJ in the Singapore International Commercial Court on 15 August 2024, in Originating Application No 8 of 2024, following a hearing on 11 July 2024 with judgment reserved. By this application, the claimant, DJO, sought an order that the final award dated 24 November 2023 issued by the arbitral tribunal in ICC Arbitration Case No 26733/HTG be set aside in its entirety pursuant to s 24(b) of the International Arbitration Act 1994 (2020 Rev Ed) and/or various sections of the UNCITRAL Model Law on International Commercial Arbitration, which is given force of law in Singapore by s 3 of the IAA. The defendants were DJP, DJQ and DJR.

The judgment described the case as unusual and troubling, and the catchword identified the central allegation as a breach of natural justice, the tribunal being alleged to have copied large portions of its award from awards in parallel arbitrations implicating similar issues, engaging s 24(b) of the International Arbitration Act 1994 (2020 Rev Ed). The court noted the underlying objective of international commercial arbitration to resolve disputes rapidly and in confidence with independent, impartial adjudicators selected for their expertise. The Arbitration Act, Indian Arbitration Act and International Arbitration Act were referenced. DJO was represented by Duxton Hill Chambers (Singapore Group Practice), with counsel including Chan Leng Sun, Tham Lijing and Nathaniel Lai, while the defendants were represented by Wong & Leow LLC, with counsel including Ashish Chugh and Nicholas Tan.

[2024] SGHC(I) 24 explained

DJO v DJP & 2 Ors ([2024] SGHC(I) 24) is a Singapore judgment decided by the Singapore International Commercial Court on 15 August 2024. It is categorised under Arbitration. Within this corpus it has since been cited by 3 other reported Singapore judgments, a measure of how often later decisions have referred to it. This page summarises what the reported decision covers and links the primary sources — the full judgment, the statutes it cites, and the other cases it engages with — so the decision can be read in context. It is reference information, not legal advice, and it does not state the outcome or any holding beyond what the official judgment records.

What is [2024] SGHC(I) 24 about?

DJO v DJP & 2 Ors ([2024] SGHC(I) 24) is a Singapore International Commercial Court decision from 2024. Its published catchwords are “Arbitration — Award — Recourse against award — Setting aside — Breach of natural justice — Tribunal alleged to have copied large portions of award from awards in parallel arbitrations implicating similar issues — Section 24(b) International Arbitration Act 1994 (2020 Rev Ed)”, which indicate the subject matter the judgment addresses. The full reasoning and orders are in the judgment itself, linked below.

Which legislation does [2024] SGHC(I) 24 consider?

The judgment refers to Arbitration Act (Cap 10), Indian Arbitration Act (Cap 10), International Arbitration Act (Cap 143A), and International Arbitration Act (Cap 10). The statutes cited are listed in full on this page, each linking to its primary text.

What earlier Singapore cases does [2024] SGHC(I) 24 cite?

Among the in-corpus authorities it refers to are [2024] SGHC 107. The complete list of cases cited, and of later cases that cite this decision, is shown on this page.

How influential is [2024] SGHC(I) 24?

Within this corpus, [2024] SGHC(I) 24 has been cited by 3 later reported Singapore judgments. That count reflects references from other decisions held in this corpus only and is a conservative lower bound on how often the case has actually been cited.

Summary

SUPREME COURT OF SINGAPORE

15 August 2024

Case summary

DJO v DJP and others [2024] SGHC(I) 24

Singapore International Commercial Court – Originating Application No 8 of 2024

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Decision of the Singapore International Commercial Court (delivered by Simon Thorley IJ):

Outcome: The Singapore International Commercial Court (the “SICC”) allowed the application to set aside an award (the “Award”) made in an arbitration (the “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.

Pertinent and significant points of the judgment

• Before asking if the tribunal had applied its mind to the essential issues in the arbitration, there was a necessary antecedent question of whether the tribunal had applied its mind to the issues in an independent, impartial and fair manner. If the answer to this was in the negative, no amount of thoroughness in reasoning on the essential issues would obviate a finding that the tribunal had acted in breach of natural justice: at [108].

• A tribunal’s obligation of independence and impartiality of thought required it to not draw on extraneous matters, and to focus solely on the factual matrix of the case and the submissions made to it: at [110].

• Where a tribunal draws on matters outside of the facts and arguments presented to it, and neither clearly distinguishes these extraneous matters from the material presented to it nor gives the parties an opportunity to address it on these matters, the parties’ right to a fair, independent and impartial award would have been compromised: at [115].

Background

1 The claimant applied to set aside an award (the “Award”), issued by a three-member tribunal (the “Tribunal”) hearing an arbitration (the “Arbitration”) involving a dispute arising out of a large-scale construction contract (the “CPT-13 Contract”), based on the central allegation that the Tribunal had copied substantial parts of the Award from awards in parallel arbitrations (the “CP-301 Arbitration” and “CP-302 Arbitration”, and the “CP-301 Award” and “CP-302 Award”) that involved similar facts and similar underlying contracts (the “CP-301 Contract” and “CP-302 Contract”).

2 The presiding arbitrator in the Arbitration (“Judge C”) had also acted as arbitrator in the CP-301 and CP-302 Arbitrations.

3 The claimant argued that the Award should be set aside under s 24(b) of the International Arbitration Act 1994 (2020 Rev Ed), as well as various other provisions of the UNCITRAL Model Law on International Commercial Arbitration, on the basis that the Award was (a) rendered in breach of the rules of natural justice; (b) rendered in circumstances where the Tribunal had deviated from the parties’ agreed procedure; and (c) contrary to the public policy of Singapore. Essentially, the claimant argued that the Tribunal had exhibited apparent bias in its cutting-and-pasting from the CP-301 Award and/or breached the fair hearing rule by relying on extraneous matters to the Arbitration, such as the CP-301 Award and the facts and arguments in the CP-301 and CP-302 Arbitrations. The claimant also contended that such cutting-and-pasting (a) meant that the tribunal’s reasons in the Award were no reasons at all, and thus in breach of the parties’ agreed procedure; and (b) was contrary to Singapore public policy which had ostensibly recognised plagiarism as highly objectionable conduct.

Decision of the court

4 The claimant’s challenge to the Award was allowed: at [121].

5 The Tribunal used the CP-301 Award as a template for the Award and sought to “massage” it into a state where it appeared to deal with the issues in the Arbitration specifically. It was not seriously disputed that substantial parts of the CP-301 Award were reproduced in the Award. This process led to a number of problems in the Award: at [55]–[56].

(a) First, the Tribunal placing weight on submissions made to it in the earlier arbitrations and not restricting itself to the submissions made in the Arbitration: at [57]–[65].

(b) Second, the Tribunal drawing upon authorities cited in the earlier arbitrations which were not cited in the Arbitration: at [66]–[67].

(c) Third, the Tribunal reciting and relying upon provisions of the CP-301 Contract which differed from those of the CPT-13 Contract which was the subject of the Arbitration: at [68]–[71].

(d) Fourth, the Tribunal applying the wrong lex arbitri to the assessment of interest and costs: at [72]–[74].

(e) Fifth, the Tribunal’s failure to consider issues that were unique to the Arbitration properly: at [75]–[77].

6 The concern arising from the cutting-and-pasting from the CP-301 Award into the Award was that it gave the impression to the reasonable and impartial observer that the Tribunal had not properly applied its mind to the facts and circumstances of the case before it. The observer would form the reasonable conclusion that the Tribunal had extracted what it thought were the essential similarities of the two cases and then proceeded to decide them as if they raised identical issues, without appreciation for the nuances of each case: at [91]–[92].

7 The crucial issue to be determined was whether the Tribunal applied its mind to the essential issues in the Arbitration. However, to this, there was a necessary antecedent question, which was whether the Tribunal applied its mind to the issues in an independent, impartial and fair manner. If it did not, then however thorough its reasoning in relation to the issues, that thoroughness would not overcome the underlying flaw, as the Tribunal’s obligation of independence and impartiality lay at the heart of natural justice. In this respect, independence and impartiality required the Tribunal to not draw on extraneous matters, and to focus solely on the factual matrix of the case and the submissions made to it: at [108]–[110].

8 DJO’s allegation that the presiding arbitrator, Judge C, had prejudged the Arbitration and thereby exhibited apparent bias was well-founded. A hypothetical fair-minded, informed and reasonable observer would undoubtedly have held a suspicion that Judge C had approached the dispute in the Arbitration with a closed mind. The Award did not rehearse submissions made to the Tribunal in the Arbitration, but attributed to the counsel in the Arbitration submissions that had been made in the earlier arbitrations almost verbatim. The test for apparent bias focussed on whether there was a reasonable suspicion, as opposed to a concluded view, that justice had not been done. As the full facts of what went on in the Tribunal’s deliberations and preparation of the Award would not be known to the hypothetical observer, reading the Award on its face against the background knowledge that the observer would have, the suspicion or apprehension of prejudgment was a very real one: at [111]–[114].

9 DJO’s allegation that it had been deprived of its right to a fair hearing, which included a right to a fair, independent and impartial decision, was also made out. It was abundantly clear that the Award was not the independent work of the Tribunal based solely on the material and submissions before it in the Arbitration. Where, in making its award, a tribunal draws heavily on facts and arguments in previous cases and does not clearly distinguish between those facts 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, independent and impartial award will be lost. The Tribunal in the present case had never given the parties the chance to submit on the CP-301 Award which it based the Award on, nor could it have done so, given that the CP-301 Award post-dated the parties’ submissions in the Arbitration: at [112], [115].

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

What was the natural justice allegation in DJO v DJP [2024] SGHC(I) 24?

The claimant DJO alleged a breach of natural justice, contending that the arbitral tribunal had copied large portions of its award from awards in parallel arbitrations implicating similar issues, and sought to set aside the award under s 24(b) of the International Arbitration Act 1994.

What award did DJO seek to set aside in DJO v DJP [2024] SGHC(I) 24?

DJO sought to set aside the final award dated 24 November 2023 in ICC Arbitration Case No 26733/HTG in its entirety, under s 24(b) of the International Arbitration Act and the UNCITRAL Model Law, before Simon Thorley IJ in the Singapore International Commercial Court.

Statutes Cited

Arbitration Act (Cap 10) Cases on this Act →

Indian Arbitration Act (Cap 10) Cases on this Act →

s 31(7) s 31A

International Arbitration Act (Cap 143A) Cases on this Act →

s 24(b)

Cases Cited (18)

SG (1)

[2024] SGHC 107

SLR (15)

[2007] 1 SLR(R) 597 [2007] 3 SLR(R) 86 [2013] 1 SLR 125 [2014] 3 SLR 180 [2014] 4 SLR 79 [2015] 3 SLR 488 [2016] 1 SLR 549 [2016] 5 SLR 54 [2018] 2 SLR 1156 [2021] 1 SLR 276 [2022] 1 SLR 505 [2022] 2 SLR 557 [2023] 1 SLR 55 [2023] 4 SLR 1031 [2024] 1 SLR 32

UK (1)

[1924] 1 KB 256

HK (1)

[2021] HKCFI 1707