PSL Advocates & Solicitors, acting along-side Duxton Hill Chambers, Singapore secured a judgment from the Singapore International Commercial Court (SICC), where the court has set aside an ICC award against Government of India’s freight network company for breach of natural justice and apparent bias.
Acting for the applicant, Mr. Sameer Jain and Ms. Anu Sura from PSL Advocates & Solicitors were solicitors instructing Mr. Leng Sun Chan, SC, who acted as lead counsel in the SICC. He was assisted by his colleagues from Duxton Hill Chambers, Mr. Tham Lijing and Mr. Nathaniel Lai.
The applicant before SICC, a special purpose vehicle (referred to as DJO in the judgment), responsible for maintaining and operating the freight corridor in India, was faced with an arbitral award passed in favour of a consortium of Japanese and Indian entities (DJP). This award was challenged in Singapore on the ground that substantial portions of the award were copy pasted from two other parallel arbitration awards, passed by different tribunals and thus, not only did the Respondent not get an opportunity to respond so such arguments, it also reflected that the Tribunal had pre-judged the issues in the arbitration. It is pertinent to mention that the three arbitrations shared a common presiding arbitrator.
The SICC ruled that the tribunal – whose chair had presided over two earlier parallel proceedings – had substantially “copied-and-pasted” sections from the other awards, including name of a different contract, submissions made in other parallel arbitrations and authorities not cited by either parties, which resulted in breach of natural justice. The court concluded that the Tribunal failed to provide an independent and impartial decision based solely on the material before it in the current arbitration.
“This judgment is an important correction to a decision-making process that had gone disturbingly wrong. Kudos to PSL for their indispensable and meticulous work, and to my steadfast colleagues at Duxton Hill Chambers”, commented Leng Sun Chan, SC from Duxton Hill Chambers, Singapore.
"Due process, equal opportunity and natural justice is the cornerstone of arbitration. The judgment is significant for it reinforces that deviation from above will leave an award susceptible to a challenge, irrespective of who wrote an award." said Sameer Jain, Managing Partner at PSL Advocates & Solicitors.
“The thoroughness of Sameer and Anu were invaluable and we are very pleased with the result for the client”, commented Tham Lijing from Duxton Hill Chambers, Singapore.
“This judgment is expected to have far-reaching implications for future arbitrations and challenge proceedings, particularly concerning the issues of apparent bias and duty of each tribunal member to independently assess the case while drafting the Award. Special thanks to the team at Duxton Hill Chambers for steering the challenge brilliantly in Singapore”, commented Anu Sura, Counsel at PSL Advocates & Solicitors.
The setting aside is a significant win for the Indian Public Sector Undertaking because of the high threshold applicable in Singapore to set aside an award rendered in an International Commercial Arbitration. The Court of Appeal in Singapore remarked in November 2021 that over the last 20 years, the success rate of setting aside applications is about 20 per cent: CAJ v CAI [2022] 1 SLR 505 at [2]. In modern times, the chances of a setting aside application succeeding are arguably – and apocryphally – much lower. However, this case highlights that in appropriate cases, the courts in Singapore would interfere to uphold the principles of natural justice.
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