By Wong Siew Hong, Eldan Law LLP
Nature of Case
Setting Aside – Bias
Facts
The Plaintiffs had applied to set aside a Partial Award (the “ICC Award”) dated 30 April 2019 issued by a tribunal (the “Tribunal”) of three arbitrators in an ICC Arbitration (the “ICC Arbitration”).
Two grounds were cited for the setting aside:
The first ground (the “put option ground”) arises from the Tribunal’s decision to award reliefs under two put options in a shareholders’ agreement. According to the Plaintiffs, by the ICC Award the Tribunal ordered alternative reliefs.
The second ground (the “bias ground”) arises from the conduct of a Tribunal member. The complaint is that the member was said to have made belated and only partial disclosures of a co-counsel relationship that he negotiated and entered into with the Defendant’s legal representatives in the ICC Arbitration while the ICC Award was still being drafted and finalised.
The Ruling
On the first “put option” ground, the Plaintiffs raised 2 main points to support their assertion that the put option reliefs purportedly awarded by the Tribunal were in excess of jurisdiction and should be set aside under section 3(1) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the “IAA”) read with Article 34(2)(a)(iii) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) viz (i) the ICC Award was neither final nor complete in that it entirely failed to resolve the parties’ dispute, as the Tribunal left it to a supervising or enforcing court to determine quantum-related matters, and (ii) the Tribunal, by the ICC award, purported to confer upon itself the power to alter its decision ex post facto, if its order regarding the quantum related matters should be set aside or refused enforcement for any reason notwithstanding the Tribunal had became functus upon rendering the ICC Award.
The Court held that the Plaintiffs’ two points are in essence the same argument expressed in different ways and the Court rejected the Plaintiff’s arguments. The Court found there was nothing incomplete or lacking in finality, “circular ,” “contingent” or “unworkable” about the ICC Award in question . Instead, the pragmatic manner adopted by the Tribunal did not have the result of making the ICC Award something that would be unconventional, indeterminate or impermissible. Indeed, the Court took the view that "the dispositive of the ICC Award took what might appear at first blush to be a convoluted form, not because the Tribunal was arrogating to itself the power to alter its decision depending upon post-award events" but purely due to the way in which the contract clauses in question were drafted. Accordingly, the Court concluded that there was no basis for setting aside the ICC Award on the first ground.
On the second “bias” ground, the Court held that the test for apparent bias in arbitration proceedings is analogous to that applicable in court proceedings, namely, a test of reasonable suspicion. That test involves an assessment of whether there are circumstances which would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the tribunal may be biased and that a fair hearing may not be possible as a result. On the facts, the Court did not accept that there had been deliberate (or any) insufficient disclosure by the tribunal member. The Court concluded that it had not found the Plaintiffs’ tendentious reading of what the tribunal member wrote as any basis for inferring bad faith on the part of the tribunal.
The Court therefore dismissed the application.