Summary

Arbitration - Award - Recourse against award - Setting aside

1. It is well-established that the principle of party autonomy undergirds the arbitration regime in Singapore. A facet of party autonomy is that the disputing parties select the arbitrators they wish to make up the tribunal or, at the least, agree on the process by which the tribunal is to be constituted. The flipside of this autonomy is that parties take the arbitrators as they are.

2. It is also well-established that our courts firmly maintain a policy of minimal curial intervention in arbitral disputes, subject to a narrow and exhaustive list of exceptions. A court will not intervene in an arbitral award on the mere allegation by a party that the tribunal got the decision wrong. Under the statutory regime in Singapore governing international arbitrations, a party dissatisfied with a tribunal's award has no recourse to the court's appellate jurisdiction to overturn the decision on its merits. A court may however intervene if, for example, there has been a failure of process resulting in a breach of natural justice.

3. A complaint that a breach of natural justice has been occasioned in the making of an arbitral award can take different forms - one instance where a court may intervene is if it can be demonstrated clearly that an arbitral tribunal completely failed to consider or apply its mind to an important issue or argument that was raised for its consideration and decision. However, for a court to be so satisfied, that conclusion or inference must, as the Court of Appeal reminds us, be a virtually inescapable one (AKN and another v ALC and others and other appeals [2015] 3 SLR 488 ("AKN") at [46]):

46. .. It will usually be a matter of inference rather than of explicit indication that the arbitrator wholly missed one or more important pleaded issues. However, the inference - that the arbitrator indeed failed to consider an important pleaded issue - if it is to be drawn at all, must be shown to be clear and virtually inescapable. If the facts are also consistent with the arbitrator simply having misunderstood the aggrieved party's case, or having been mistaken as to the law, or having chosen not to deal with a point pleaded by the aggrieved party because he thought it unnecessary (notwithstanding that this view may have been formed based on a misunderstanding of the aggrieved party's case), then the inference that the arbitrator did not apply his mind at all to the dispute before him (or to an important aspect of that dispute) and so acted in breach of natural justice should not be drawn.

4. The passage quoted above demonstrates that the bar an aggrieved party needs to cross is necessarily set high.

5. In many a case that has come before our courts, parties have sought to confuse the court's role (some cynics might argue, as a deliberate strategy) by presenting what is effectively a backdoor appeal on the merits in the guise of a process breach, and painting the tribunal's disagreement with an argument as a failure by the tribunal to even consider or understand that argument or the issue at hand. Time and again, the Court of Appeal has warned that the courts must be wary of attempts by an aggrieved party to mount what is, in effect, an appeal in disguise: see, eg, AKN; Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 2 SLR 1279.

6. In this application, CWP is the claimant and CWQ is the defendant. The claimant seeks a partial setting aside of a final award dated 4 May 2022 (the "Award") rendered by a three-member arbitral tribunal (the "Tribunal"). For reasons I elaborate upon below, I dismiss the claimant's application.

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