DLS v DLT

Facts

DLS, a main contractor, and DLT, its sub-contractor on a project in a foreign country, were in a Singapore-seated ICC arbitration begun by the sub-contractor in April 2023 over delay losses. On the sub-contractor's application for urgent interim measures, the three-member tribunal issued a "First Partial Award" dated 19 June 2024. Two decisions in it were challenged: a Monthly Payment order requiring the contractor to pay US$172,135.54 a month towards the sub-contractor's operational costs until completion, conditional on security in case repayment was later ordered; and a Lump Sum Payment order finding US$117,339.48, a VAT refund, owing and due to the sub-contractor and requiring the contractor to pay it if the client did not.

In November 2024 the contractor applied in Originating Application No 1185 of 2024 to set aside both decisions for breach of natural justice and for exceeding the scope of submission. In January 2025 it learned that one arbitrator had sat in a prior, unrelated arbitration brought by the sub-contractor's chairman, represented by the same law firm. It challenged that arbitrator before the ICC Court, which rejected the challenge on the merits, and filed SUM 316 of 2025 seeking permission to add apparent bias as a new ground. The judge dismissed the challenge to the Monthly Payment decision on 14 February 2025, and dealt with SUM 316 and the Lump Sum Payment decision on 27 March 2025.

Issues

1. Whether the Monthly Payment and Lump Sum Payment decisions were awards that could be set aside, or orders or directions on interim measures under s 12 of the International Arbitration Act 1994
2. Whether the Lump Sum Payment decision exceeded the scope of submission or was made in breach of natural justice
3. Whether the contractor should be permitted to add apparent bias of an arbitrator as a new basis for setting aside after the three-month period

Holding

The High Court dismissed the setting-aside application in full. The Monthly Payment decision was an order or direction not susceptible to setting aside, and the Lump Sum Payment decision, though an award, disclosed no ground for setting aside. SUM 316 was dismissed because the apparent bias ground was hopeless, and the judge stated that it would have failed on the merits in any event. The sub-contractor was awarded costs of $25,000 plus disbursements and a further $16,850 (all in).

Reasoning

The definition of award in s 2 of the Act excludes orders or directions made under s 12. Following Persero, the question is one of substance, not label: provisional decisions that do not finally dispose of an issue and can be varied, such as interim payments before a final assessment, are not awards. The Monthly Payment was expressly interim, secured against possible repayment, and subject to review in the final award, so it could not be set aside. Even had it been an award, the contractor had a reasonable opportunity to answer the sub-contractor's alternative bases, Article 13 and the foreign law, and chose not to; that was no breach of natural justice.

The Lump Sum Payment was different: the tribunal finally decided the sum was owing on the basis of admissions, with nothing left to determine, so it was a partial award. It was within the scope of submission, because the interim measures application was incorporated by reference into the statement of claim and the terms of reference covered later submissions. The tribunal did not need to address arguments about interim relief once it granted final relief, and the contractor had never sought an evidentiary hearing or shown what it could have said to dispute the sum.

On SUM 316, a supplementary affidavit after the three-month period is not time-barred where the application itself was filed in time, as BZW v BZV shows, and the ICC Court's decision does not bind the court. The new ground could not have been raised earlier, but it was hopeless. The judge agreed that the prior appointment, over four years earlier in an unconnected matter, did not itself suggest bias. Non-disclosure is only a factor, as BYL v BYN and Halliburton show. The arbitrator learned of the link only in October 2024, assessed disclosure reasonably against the IBA Guidelines, and referred to a possible challenge only after deciding disclosure was unnecessary. In any case, the awareness arose after the partial award was made, so any bias could not have affected it.

From the judgment