DLS v DLT

The claimant (the Contractor) and the defendant (the Sub-Contractor) were parties to a Singapore-seated ICC arbitration before a three-member tribunal, which issued a First Partial Award on 19 June 2024. The Contractor applied in OA 1185 to set aside parts of that award and, by SUM 316, sought permission to add apparent bias on the part of one arbitrator as a new ground. The bias complaint was that the arbitrator had not disclosed his role in an earlier arbitration in which the Sub-Contractor's chairman was the claimant, represented by the same lawyers. The ICC Court had already rejected a challenge to the arbitrator on 27 February 2025. On 27 March 2025 the High Court dismissed SUM 316 as hopeless and dismissed the setting-aside application in DLS v DLT [2025] SGHC 61.

The next day, 28 March 2025, the Contractor filed Originating Application No 317 of 2025 under Art 13(3) of the Model Law asking the court to terminate the arbitrator's mandate. It then sued in a foreign court for a declaration and injunction against the arbitration continuing with that arbitrator, and later sought to discontinue OA 317. On 23 May 2025 the court granted the Sub-Contractor an interim anti-suit injunction, refused the discontinuance and adjourned the challenge. The court was told that the Contractor then went ahead with the foreign hearing in breach of the injunction. At the 7 July 2025 hearing new solicitors sought an adjournment, which was refused, and then made no submissions.

1. Whether the Contractor should be allowed to discontinue or adjourn the challenge application.
2. Whether issue estoppel barred the challenge for apparent bias after the Setting-Aside Decision.
3. Whether the challenge had any merit in any event.

The court refused discontinuance because under Art 13(3) the seat court decides the challenge, and letting the Contractor withdraw might allow it to tell the foreign court that no parallel proceedings remained. The adjournment was refused given the breach of the anti-suit injunction and the six weeks already given to take instructions.

On issue estoppel, the four requirements set out in Lee Tat Development Pte Ltd v MCST Plan No 301 [2005] 3 SLR(R) 157 and applied in Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 were met: a final, unappealed decision on the merits by a competent court, between the same parties, on the same issue of apparent bias. No special circumstances existed under the test in Arnold v National Westminster Bank plc [1991] 2 AC 93, since nothing new had become available. Of the two added points, the first (that the arbitrator should have linked the two claimants sooner) had been expressly abandoned at the SUM 316 hearing the day before and relied on documents the Contractor always had. The second, that the Sub-Contractor was the chairman's alter ego, was a bare allegation; the chairman owned only 40% of its shares. The court did not need to decide whether matters not raised before the ICC Court could be raised under Art 13(3).

On the merits, the court had already found the bias case hopeless and saw nothing in the new affidavit to change that view.

The court dismissed the challenge application with costs. It held that the Contractor was precluded by issue estoppel from challenging the arbitrator for apparent bias, and agreed in any event with the ICC Court that there was no apparent bias.