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"Arbitration may be fast and flexible, but never at the expense of procedural integrity."
Courts in Singapore have long positioned themselves as guardians of the efficiency and fairness of arbitration. Recent Court of Appeal decisions underscore this commitment by reaffirming a simple yet critical message: arbitration may be fast and flexible, but never at the expense of procedural integrity.
Across three judgments, the Court of Appeal has clarified the limits of natural justice in arbitration, signalling when it will step in to correct a flawed process and when the finality of an award must prevail. For parties considering post‑award options, these decisions provide sharp, practical insight into how Singapore’s courts will approach challenges going forward.
Copying That Costs: The Need for a Fresh, Independent Mind
In DJP v DJO [2025] SGCA(I) 2, the Court of Appeal considered whether an arbitral award should be set aside because substantial portions (212 out of 451 paragraphs) had been copied from two earlier awards issued in related arbitrations. The three arbitrations had overlapping parties, issues and timeline, and shared the same tribunal president. The Singapore International Commercial Court set aside the award for breach of natural justice and the Court of Appeal affirmed this decision.
The court accepted that copying is not per se impermissible. The difficulty arises when the reproduction, particularly from related awards, gives rise to a reasonable apprehension of bias or prejudgement. The proper question is whether a fair‑minded and informed observer would suspect that the tribunal failed to approach the matter with a fresh, independent mind. Relevant considerations include:
- the proximity of issues between proceedings;
- whether reproduced material concerns contested points;
- whether the same arbitrators or parties are involved; and
- whether copied material was equally accessible to all parties and all members of the tribunal.
The court reiterated that judicial review focuses on the integrity of the process, not the correctness of the outcome. Finality and confidentiality reinforce the need for equal treatment: parties must have equal access to the material relied upon, and arbitrators must be equally placed to assess it. When one arbitrator relies on extraneous material unavailable to co‑arbitrators or the parties, the fairness of the entire process is compromised.
In this case, the copying went well beyond background or undisputed issues. It permeated contested questions, incorporated material never put to the parties and resulted in errors traceable to the earlier awards – from applying the wrong contractual documents and procedural law to importing reasoning without engaging with new arguments raised in the later arbitration. Since the two co‑arbitrators had no involvement in the earlier proceedings, the president’s reliance on such material created inequality within the tribunal itself. Collectively, these factors led the court to conclude that the arbitration had been decided through an unfair process.
"Efficiency has limits. Arbitrators must not only act independently; their independence must be visible."
The lesson is straightforward: efficiency has limits. Arbitrators must not only act independently; their independence must be visible. Copy‑and‑pasting crosses the line when it undermines the appearance of a fresh mind or equality of treatment.
Efficiency vs Fairness: Documents‑Only Arbitrations Under Scrutiny
The appeal in Wan Sern Metal Industries v Hua Tian Engineering [2025] SGCA 5 allowed the Court of Appeal to revisit the practical limits of natural justice in an expedited documents‑only arbitration. It also considered how arbitrators should balance speed against the duty to ensure procedural fairness.
The dispute arose from a construction subcontract. The appellant terminated the subcontract after alleging defective works; the respondent contended the termination was wrongful and sought payment for work done. The arbitration proceeded on an expedited, documents‑only basis. While the respondent’s pleaded counterclaim sought damages for completed work, it introduced a claim for uncompleted work only in its written submissions. The arbitrator accepted both components and dismissed the appellant’s claims. The High Court upheld the award.
On appeal, the Court of Appeal allowed the challenge in part. It held that the arbitrator had acted in breach of natural justice because the expedited, documents‑only procedure had created a lack of clarity as to the parties’ positions, which the arbitrator “could and should have recognised” and addressed. In such proceedings, pleadings assume heightened significance in defining the parameters of the issues and preventing a party from being confronted with a point it has not had an opportunity to address. When an unpleaded issue emerges only in submissions, it is prudent for the tribunal to clarify the parties’ positions and ensure both sides have a fair opportunity to respond, reflecting the shared responsibility of tribunal and parties in documents‑only processes.
Applying these principles, the court found that the arbitrator mistakenly believed that the appellant did not object to the respondent’s valuation of its expectation interest. In fact, the appellant had raised the point that there was no basis in law for claiming the value of work not done. This misunderstanding meant the arbitrator failed to consider whether she could decide an unpleaded claim at all. The breach caused actual prejudice because it could reasonably have affected the damages awarded for uncompleted work. The court therefore set aside the award to the extent it granted the unpleaded claim.
In practice, parties who wish to introduce a new claim must amend their pleadings rather than raise it for the first time in submissions. Parties faced with unpleaded issues must object promptly. Tribunals must remain alert to procedural risks and take proactive steps to ensure fair notice and a genuine opportunity to address new issues before deciding them.
Natural Justice Is Not a Gateway to Re‑Argue the Merits
The decision in DKT v DKU [2025] SGCA 23 confirms that natural justice is not a vehicle to re‑litigate the merits of an arbitral award. The dispute arose from a contract to carry out building repairs and the tribunal found that the appellant had charged the respondent for unnecessary repair work. The appellant sought to set aside the award of around US$2m made against it, alleging that there had been multiple breaches of the rules of natural justice.
The Court of Appeal found the challenge wholly without merit. It held that the appellant’s complaints were, in truth, an attempt to revisit the tribunal’s factual findings under the guise of natural justice. To deter such tactics, the Court reaffirmed a strict four‑part test for infra petita challenges (i.e. allegations that the tribunal failed to consider an issue):
- the point must have been properly raised for determination;
- it must have been essential to the dispute;
- the tribunal must have completely failed to consider it; and
- real or actual prejudice must have been caused.
"Natural justice is not a vehicle to re‑litigate the merits of an arbitral award."
Crucially, the focus is not on how well the tribunal understood, analysed or expressed its reasoning, but whether it did in fact consider the point at all. Applying this framework, the court held that the tribunal had plainly considered the appellant’s defences. Given the weakness of the appeal, the court ordered the appellant to pay the respondent’s costs on an indemnity basis, signalling its firm stance against baseless natural justice challenges aimed at reopening the merits.
Conclusion: A Clear Roadmap for Parties and Tribunals
Taken together, these decisions sharpen the contours of natural justice in Singapore‑seated arbitration. The message is consistent:
- arbitrators must demonstrate transparent, independent reasoning, especially where related arbitrations or copied material are involved;
- procedural clarity is essential especially in expedited or documents‑only proceedings – surprises in pleadings or submissions will not be tolerated; and
- award finality remains robust – natural justice is a shield against unfairness, not a sword to attack unfavourable outcomes.
For businesses, these judgments provide a practical roadmap: act promptly when procedural issues arise, ensure pleadings are properly framed, and conduct arbitrations with procedural discipline. In return, Singapore’s courts guarantee a system where arbitration remains efficient, fair, and firmly supported – but never at the cost of its integrity.
London Trainee Kate McMahon also contributed to this article.
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