Singapore's Supreme Court Sets Aside Award By Tribunal Presided Over By Ex-CJI Dipak Mishra Upon Finding Almost 50% Copy-Pasted Content

The Supreme Court of Singapore has set aside an arbitral award passed by a tribunal presided over by former Chief Justice of India Dipak Mishra upon finding that almost half of the contents of the award were verbatim 'copy-pasted' from earlier awards passed by the same presiding arbitrator.

A bench comprising of Chief Justice Sundaresh Menon and Justice Steven Chong held:

"...New arguments arose because of the slightly different factual matrix presented by the Arbitration...Despite this, the Parallel Awards were used as templates in drafting the Award to a very substantial degree. It is undisputed that at least 212 paragraphs from the Parallel Awards were retained in the 451-paragraph Award. This has several implications." 

The brief background of the dispute was present in a contract between a special-purpose vehicle (SPV) managing freight corridors in India and a consortium of three companies involved in infrastructure projects.

Disagreement between the parties arose when, in 2017, an Indian government notification increased the minimum wage. A question arose on whether this would entitle the consortium to additional payments under their existing contractual terms.

Due to a failure in negotiations, the dispute was referred to arbitration in Singapore, under the International Chamber of Commerce Rules. The tribunal whose order was set aside was presided over by ex-CJI Dipal Mishra and also comprised of a former HC judge and former HC Chief Justice. The tribunal eventually ruled in favour of the consortium.

The award was then challenged before the High Court on the grounds that large contents of the award were taken from contents in parallel proceedings which had happened in the past and were also chaired by the ex-CJI, but involved other co-panelists. 

The High Court in those proceedings had held that the large similarities between the present award and previous parallel awards showed an amount of bias in the mind of the presiding arbitrator and a failure to independently assess the parties' stance. It thus set aside the award.

In appeal, the parties approached the Supreme Court.

Arbitrator Can Resolve Related Disputes In A Similar Manner, But All Cases Were Different

The Supreme Court clarified that while an arbitrator can refer to earlier rationale used to solve similar disputes in the past, in this case, all the cases involved contained different sets of facts, and thus, taking findings from earlier cases to decide the present one was not feasible.

"It is not inherently wrong for an arbitrator to resolve two related disputes in the same manner...that is simply not the case here, where not only was there no possibility of the parties addressing the points raised or conclusions reached in the separate proceedings, but portions from the Parallel Awards were reproduced in the Award, without even being adjusted for differences in the arguments made or in the terms of the applicable contracts," the Court held.

Persistent Errors In Award Leads To Suspicion Of Bias, Casts Doubt On Its Integrity

The Court held that there were several errors in the award delivered by the tribunal, such as applying the wrong law on the issue of interests and costs; in short, it applied the procedural law applicable to the Parallel Arbitrations and not the present Arbitration.

"There are several other minor errors...the Award cites the title of the CP-301 Contract instead of the CPT-13 Contract. Viewed in totality, these errors further evidence the problem with the underlying decision-making process. To the fair-minded and informed observer, it would appear that the Tribunal might not have adequately applied itself to the facts and submissions actually made in the Arbitration. Again, this would cast doubt on the integrity of the decision-making process," the bench observed.

"We are therefore amply satisfied that a fair-minded observer having formed these suspicions would have concluded that the integrity of the decision-making process had been compromised and agree with the Judge that the allegation of apparent bias has been made out," it added.

Reference To Extraneous Considerations

The Supreme Court held that the tribunal in this case had relied on materials from the parallel arbitrations that the parties in this case had no access to and had not addressed. It was held that taking substantial material in this manner, from a parallel arbitration without disclosing it to the parties, denied them a right of audience.

"...The patently substantial material derived from the Parallel Arbitrations were extraneous considerations that had not been raised to the parties' attention. That material formed such a pervasive part of the Award that it simply could not be overlooked. It was plain that it was neither contemplated nor agreed to by the parties that the Award could be prepared by such a process," the Bench said.

Unequal position of the Arbitrators  

Court held that since, in this case, much of the material relied on was imported from parallel proceedings where only the President (Ex-CJI) was present, it had created an inequality among the other arbitrators, who were unaware of the facts of the parallel proceedings.

"While, as we have noted, there is no evidence as to what actually transpired between the members of the Tribunal, it is known that the two co-arbitrators in this case were not privy to the Parallel Arbitrations. They would thus have had no direct access to any material or knowledge derived from those proceedings, but which appeared to have significantly influenced the outcome of the present Arbitration. The integrity of the Arbitration was therefore further compromised as a result," the court held.

Accordingly, the appeal was dismissed, the High Court's order was upheld, and the award was set aside.

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