DSQ v DSR

Facts

DSQ (the Employer) and DSR (the Contractor) were parties to a FIDIC-based design and build contract for works on a railway project. Clause 20 set out a multi-tier procedure in which disputes went first to a Dispute Adjudication Board (DAB) before arbitration. A DAB was appointed for one dispute about AEB boards. Before it decided that dispute, the Contractor referred four further disputes to it; the DAB declined them, saying it was appointed only for the AEB dispute. After the period for a DAB decision passed, the Contractor gave a notice of dissatisfaction and filed a Request for Arbitration on 18 December 2020, also submitting two further disputes directly.

The Employer objected that the pre-arbitral procedure had not been followed. The three-member tribunal dealt with this as a preliminary question and, in Procedural Order No 5 of 16 September 2022, held that all six disputes were admissible and within its jurisdiction. The Employer did not go to court within 30 days. The tribunal later issued a Final Award dated 2 April 2025, revised by a Decision and Addendum dated 25 June 2025, awarding money to the Contractor. In Originating Application No 1062 of 2025 the Employer applied to set the award aside for lack of jurisdiction and for four alleged breaches of natural justice. Andre Maniam J heard the application.

Issues

1. Whether the Employer, having not challenged the tribunal's preliminary ruling on jurisdiction under Art 16(3) of the Model Law or s 10(3) of the International Arbitration Act 1994, was precluded from raising lack of jurisdiction to set aside the award.
2. Whether non-compliance with the pre-arbitral DAB procedure went to admissibility or to the tribunal's jurisdiction, and whether the tribunal decided it correctly.
3. Whether the tribunal breached natural justice by adopting a method for capping prolongation costs that the Employer had no fair chance to answer.
4. Whether the tribunal failed to consider the Employer's case on repudiatory breach, on pre-casting of location box foundations, and its witness's evidence on the hut variation claim.

Holding

The court dismissed the Employer's application to set aside the Final Award dated 2 April 2025 and the Decision and Addendum dated 25 June 2025. Every jurisdictional and natural justice ground failed. Unless the parties agreed costs, they were to file costs submissions by 17 April 2026.

Reasoning

On preclusion, the court found that the tribunal had ruled on jurisdiction as a preliminary question in Procedural Order No 5, so Art 16(3) and s 10(3) applied. It held that the Court of Appeal's view in Rakna Arkshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131, that Art 16(3) has general preclusive effect, formed part of the ratio and was binding, and that the court would follow it in any case. The only exception, for a respondent who takes no part in the arbitration, did not help an Employer that had participated throughout. The Employer had not waived its objection, but it was precluded.

On admissibility, the court agreed with DRO v DRP [2025] SGHC 255 that compliance with a pre-arbitral procedure is generally a matter of admissibility, which the court cannot review, and that International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd [2014] 1 SLR 130 did not decide otherwise. The reference to a DAB did not change this, as arbitration finally decides the dispute. In any event the tribunal was right: clause 20 allowed further disputes to be referred to an existing ad hoc DAB, the Employer's counsel had conceded the last two disputes would follow the first four, and the DAB's wrongful refusal meant there was no DAB in place under Sub-Clause 20.8.

On the cap, the Contractor had put forward its overall length method in written closings, and the Employer had a fair chance to answer it at the oral closing hearing and in later written submissions, but said nothing. The issue was one of construing the contract, and closing submissions are not limited to arguments pleaded from the outset.

On the infra petita complaints, applying DKT v DKU [2025] 1 SLR 806, the award showed the tribunal had decided that the Contractor had not repudiated the contract. Its finding that the location boxes were not on the critical path meant any lapse on pre-casting caused no prejudice. Its stated reservation about the Employer's witness's evidence as a whole meant no clear inference could be drawn that it ignored his evidence on the hut claim, and that evidence could not reasonably have made a difference.

From the judgment