By Tan Yi Lei and Justin Gan, Stephenson Harwood (Singapore) Alliance
|
Nature of Matter |
Setting Aside of Arbitral Award – Whether arbitral procedure was in accordance with agreement of parties / party unable to present case |
|
Case Summary |
The Claimant commenced an arbitration on 14 June 2018 which was subject to the Singapore International Arbitration Centre ("SIAC") Rules (6th ed, 2016) ("SIAC Rules"). By the parties’ agreement, the arbitration would be conducted as an expedited arbitration according to the Expedited Procedure in the SIAC Rules, and the SIAC accordingly directed as such. Although the Claimant was legally represented when the notice of arbitration was submitted on its behalf, the Claimant subsequently discharged its counsel and the Claimant's General Manager ("R") instead acted as the party representative. On 30 October 2018, a procedural order was made which provided, amongst others, that "[w]here a party is represented by Counsel, communications with the Tribunal shall be with Counsel instead of the Party's representatives." ("Procedural Order"). On 28 January 2019, Claimant instructed a new counsel ("T") for the hearing of 11 to 13 February 2019. After the award for the expedited arbitration was issued (the “Award”), the Claimant sought to set it aside on the following arguments:
|
| Ruling |
The Court dismissed the Claimant's setting-aside application. Co-Counsel Argument A party has a common law right to choose his representation in arbitration, although this right can be limited by statute. Under the SIAC Rules, a party may choose to be represented by both legal counsel and non-legally-qualified party representatives. However, the more important question is whether a contention concerning the infringement of a party’s right to choose representation would deprive the party of a reasonable opportunity to present its case. In this case, when the tribunal sought clarification from the Claimant on the intended role of R, the Claimant only requested that R participate in the Opening Statement. The Claimant alleged the tribunal had expressed an understanding that R's role was to be limited. The Court found this to be untrue as the Claimant was given an opportunity to address R’s involvement in the arbitration, and it was the Claimant who expressed that R would participate during the Claimant’s opening statement at the hearing, and solely in that aspect. The Court also highlighted that the Claimant should have highlighted any concern to the tribunal. It should not have held it in reserve in an attempt thereafter to set aside the Award when the matter did not go the Claimant's way. Agreed Procedure Argument There was nothing untoward about the Procedural Order. It was understandable that a tribunal may not wish to have multiple lines of communications with a single party. A tribunal can reasonably direct that there be one line of communication between each party and the tribunal. Further, T had introduced herself as "the Claimant's Counsel" and requested R be copied in further correspondence. The tribunal responded and referred to the Procedural Order and requested that the Claimant follow the arrangement in the Procedural Order (i.e. communications only with Claimant's counsel). The Claimant "noted" the directions and comments in respect of the Procedural Order, without objecting. Further, the Claimant could have, but did not apply to vary the Procedural Order. Instead, it waited until after the Award had been issued, and then complained that the Procedural Order had infringed its right to decide how it would be represented in the arbitration. Interruption Argument The alleged interruption was found to be entirely innocuous and the tribunal had merely indicated in its alleged interruption, what it understood from R's presentation in the Opening Statement and the areas which it wished R to address further. If such a complaint were to succeed, it would reduce tribunals to passive observers until the time came for them to render their decision. The question the Court should ask is whether the tribunal did (or decided not to do) falls within the range of what a reasonable and fair-minded tribunal in those circumstances might have done. Tribunal Declined R's Question Argument The tribunal declined R's request to question a witness (after T had indicated the Claimant had no further questions). The Court declined to set aside the Award on this basis. First, this was outside the scope of R's agreed speaking role at the hearing – i.e. to address the tribunal solely on the Claimant's Opening Statement. Second, there was no protest from the Claimant. R could have asked the tribunal to reconsider its decision not to allow R to question the witness, or could have instructed T to ask the question, or T could have sought time to take instructions from R on that, or R herself could have asked for time to speak with T. None of this happened and instead T said that the Claimant had no further questions for the witness. Third, the Claimant did not adduce evidence to show that R's intended questions would reasonably have made any difference to the tribunal's deliberations. FRP Claim Argument The Court found that the tribunal did not fail to deal with the Claimant's FRP claim. First, the tribunal had dealt with each individual component of the FRP claim in its award and dismissed each of them. Second, the Claimant attempted to recharacterize its claim as being on the basis that its FRP invoice had not been disputed until the arbitration – but the Court found this argument had not been raised in the arbitration. Third, the FRP invoice did not contain any provision which gave the Claimant the right to be paid the amount stated on the FRP invoice unless a formal dispute was brought within a certain time, notwithstanding that the Claimant was actually not entitled to the components in the FRP invoice. Fourth, at the highest, the Claimant's complaint would be that the tribunal had failed to comprehend its recharacterized claim and appreciate its merits. However, an inference that the arbitrator had acted in breach of natural justice should not be drawn if the facts are also consistent with the arbitrator simply having misunderstood the aggrieved party’s case. In this case, the Court found that the tribunal applied itself (meticulously) to addressing the Claimant’s FRP claim. The Claimant in fact acknowledged that the tribunal had examined and rejected each component of the FRP invoice, but argued that the tribunal had failed to consider whether the Claimant was nevertheless entitled to be paid on the FRP Invoice. The FRP Claim Argument therefore had no merit |