In a shocking development, the Court of Appeal of the Singapore Supreme Court recently struck down one of the arbitral awards passed by a tribunal led by none other than the former Chief Justice of India Dipak Misra. The Singapore SC discovered that 47% of its contents – 212 out of 451 paragraphs – were copied verbatim from two earlier awards involving the same presiding arbitrator.
The dispute stemmed from a 2017 Indian government notification increasing minimum wages. The consortium claimed that this entitled them to additional payments. The dispute was submitted to arbitration before the International Chamber of Commerce (ICC) 2022 rules in Singapore as the parties could not agree. In November 2023, the tribunal of Justice Dipak Misra, Justice Krishn Kumar Lahoti, and Justice Gita Mittal delivered an award in favor of the consortium.
However, the award was challenged on the grounds that the tribunal had extensively copied paragraphs from two previous awards involving the same presiding arbitrator, Justice Dipak Misra. The Singapore High Court found that this approach breached principles of natural justice, citing several legal and procedural shortcomings, such as the misapplication of legal principles and terms. The judgment also stated that the award appeared biased, as it relied on previous rulings rather than addressing the specifics of the current case.
The Court of Appeal further held that the tribunal’s extensive use of earlier awards specifically, the citation of previous paragraphs without proper modifications was problematic. It stated that such an approach created an impression of bias because the arguments in this case were not independently assessed by the tribunal. The Court emphasized that the integrity of the arbitral process was compromised because the parties could not address materials and conclusions drawn from a parallel arbitration.
The Court of Appeal highlighted three main breaches of natural justice: apparent bias, reference to extraneous materials that were not available to both parties, and inequality between the arbitrators. In particular, only the presiding arbitrator had access to the materials related to the parallel arbitration, which compromised impartiality.
The Court did not imply any ill faith from the side of the tribunal nor did it wish to interfere with the tribunal’s or arbitration’s conclusions. It merely stressed the importance of fairness and transparency in arbitration. Therefore, in order to protect other arbitral processes from suspicion, the present award was set aside, being so necessary for the purposes of dispute resolution.
