In DJP and others v DJO [2025] SGCA(I) 2, the Singapore Court of Appeal, the apex court of Singapore, upheld the High Court’s decision to set aside an arbitral award after finding that the Tribunal breached the rules of natural justice by extensively copying portions of its award from other arbitral awards containing certain similarities.
 
Brief Facts
 
The arbitration concerned claims arising from a rail project pursuant to a contract between the Appellants, a consortium of companies and the Respondent, a special-purpose vehicle set up to manage a network of Dedicated Freight Corridors in India (“Arbitration”). The Appellants sought additional payment under the contract on the basis that there was a change in Indian labour legislation, but claim was contested by the Respondent on various grounds.
 
Around the same time as the Arbitration, the Respondent was also defending two other sets of arbitration (“Parallel Arbitrations”). There were certain overlaps between the Parallel Arbitrations and Arbitration including the dispute in question. Significantly, the Parallel Arbitrations were chaired by the same presiding arbitrator (“President”) as the Arbitration but involved different co-arbitrators. There were distinctions between the three arbitrations in terms of the administering institutions, seat of arbitration, arguments, particular conditions and times of claim.
 
Around three months after the awards in the Parallel Arbitrations (“Parallel Awards”) were issued in favour of the claimants in those arbitrations, the award for Arbitration (“Award”) was rendered in favour of the Appellants.
 
Central to the Respondent’s complaint was the discovery that at least 212 paragraphs out of 451 paragraphs of the Award were reproduced from the Parallel Awards. There were also other errors in the Award including references to uncited authorities in the Award, application of the wrong formulae for certain calculations and application of the wrong law of the place of arbitration (lex arbitri) for interest and costs.
 
High Court
 
The Respondent applied to set aside the Award on the following three grounds: 

The High Court set aside the Award on the third ground, that the Award was rendered in breach of the rules of natural justice. The High Court inter alia, found that the allegation of prejudgment which gave rise to an assertion of apparent bias was made out against the President as he had prejudged the Arbitration. The High Court also found that the parties had been denied a fair, independent and impartial process and had no opportunity to address the material drawn from the Parallel Arbitrations which was heavily relied upon by the Tribunal.
 
Court of Appeal
 
The Appellants sought to reverse the decision of the High Court Judge. At the Court of Appeal, the Appellants argued that the copying was inconsequential and had no material impact on the outcome. The Appellants also argued that new paragraphs were drafted by the Tribunal to address the fresh arguments raised by parties. On the other hand, the Respondent argued that a fair-minded and appropriately informed observer would undoubtedly and reasonably suspect that the Tribunal did not approach the Arbitration with a fair and open mind.
 
Principles of Natural Justice
 
Upon noting that the principal complaint concerns the allegation of breach of natural justice, the Court laid down and explained the two fundamental tenets of natural justice, which are that the adjudicator must be disinterested and unbiased and that the parties must be given an opportunity to be heard. The Court also highlighted two specific applications of the fair hearing rule relevant in the instant case which are that: 

Copying
 
The Court then extensively analysed the issue of copying. The Court distinguished between lifting material from the submission of one of the parties from copying material from an external academic source such as an article of a textbook. In the former, the Court held that the key question is whether a fair-minded and informed observer would reasonably suspect that the adjudicator lacked the necessary fairness and impartiality in addressing the matter. If so, the award may be liable to be set aside. As for the latter, while the arbitrator might be criticised for a lack of professionalism, but it would be difficult for a party challenging to establish that this constituted a breach of natural justice resulting in prejudice.
 
The Court noted that in a situation such as the instant case, where the source of the copied material is a related award, much will likely depend on the nature of the material that is reproduced, as well as on the degree of proximity between the dispute at hand, i.e. the Arbitration and the proceedings from which that material emanated, i.e. the Parallel Arbitrations.
 
In addition, the Court also highlighted that the inferences to be drawn may also vary depending on whether the two sets of proceedings involve the same tribunal and the same parties. In particular, where material is copied from an award issued by a differently constituted tribunal, or in an arbitration involving different parties, there may be concerns that the relevant arbitration had been decided on the basis of material that was: (a) not equally accessible to all relevant parties and/or arbitrators; and therefore (b) not equally considered by the same.
 
The Court also considered the relevance of cases involving judicial officers who reproduce the contents of submissions or other materials. The Court was of the view that there are some essential differences between arbitration and court litigation which have an impact on the materiality and significance of such copying. In summary, the two key differences are, firstly, parties are generally not afforded the avenue to appeal in arbitration which gives rise to the emphasis on finality in arbitration. This means that particular attention must be paid to the integrity of the process by which a decision is reached. Secondly, the confidential nature of arbitration means that the details of each arbitration and the reasoning contained in each award remain confidential to those who are privy to the arbitration. Further, source material copied by an arbitrator from another award is typically not accessible to parties who were not involved in the original proceedings.
 
The findings by the Court of Appeal
 
The Court affirmed the High Court Judge’s decision in setting aside the Award based on the following broad grounds: 

Prejudgment amounting to apparent bias
 
The Court found that there was a prejudgment amounting to apparent bias as the Tribunal did not keep an open mind and the Award was impermissibly influenced by the Parallel Awards.
 
The Court clarified that it is not inherently wrong for an arbitrator to resolve two related disputes in the same manner if the arbitrator had not approached the case with a closed mind. In the instant case, there was no possibility of the parties addressing the points raised or conclusions reached in the separate proceedings. Further, the Court noted that portions from the Parallel Awards were reproduced in the Award, without being adjusted for differences in the arguments made or in the terms of the applicable contracts. The Court made four key points in this regard:
 

First, there were material differences between the arbitrations and as such the respondent had adopted a slightly different case strategy in the Arbitration and there were new arguments due to the slightly different factual matrix in the Arbitration. Despite this, there were material reproduction by the Tribunal which did not consider the differences.

 
The Court found that a fair-minded observer would reasonably apprehend that the Tribunal’s decision was affected by anchoring bias, arising from its reliance on the earlier Parallel Awards as the starting point for drafting the Award. This reliance created the appearance that the Tribunal failed to approach the matter with a fresh and open mind. The Court further stated that such a decision would also appear to be plagued by confirmation bias, in the sense of a reluctance to depart from an initial view once formed.
 
While the Court acknowledged that some risk of such bias is inherent when similar disputes are heard by the same adjudicator, that alone does not amount to a breach of natural justice. However, in this case, the concern was compounded by the Tribunal’s failure to appreciate the differences between the different arbitrations and by its adoption of parts of the Parallel Awards that became erroneous in the new context—thereby reinforcing the impression of confirmation bias.
 

Second, this suspicion of bias would have been exacerbated when considering the identity of issues and outcomes in the three arbitrations. Despite differences in the arguments raised by the respondent, the Tribunal reached the same conclusions on common issues and employed substantially similar reasoning in each Award.

 

Third, in relation to the analysis and discussion on the fresh arguments raised by the respondent, the Court noted that these paragraphs were mostly interposed between paragraphs reproduced from the Parallel Awards. The Court observed that the structure and presentation of these reasons would have given the impression that the fresh arguments might not have been considered with an open mind.

 

Fourth, the Court observed that there were many errors in the approach of reproduction from Parallel Awards and viewed in totality, the errors further evidence the problem with the underlying decision-making process.

 
In light of the above, the Court of Appeal was satisfied that a fair-minded observer would have concluded that the integrity of the decision-making process had been compromised and the allegation of apparent bias has been made out.
 
Reference to extraneous considerations
 
The respondent further contended that the Tribunal improperly relied on materials that were not available to the parties and on which they had no opportunity to comment. In this regard, the Court found that there had been a breach of the fair hearing rule as substantial material derived from the Parallel Arbitrations were not raised to the parties’ attention, was neither contemplated nor agreed to by the parties.
 
Unequal position of the Arbitrators
 
The Court found that the expectation of equality among the arbitrators was undermined, as the two co-arbitrators were not privy to the Parallel Arbitrations and had no direct access to the materials or knowledge arising from those proceedings, even though such material appeared to have materially influenced the outcome of the present Arbitration.
 
No Partial Setting Aside
 
The Court rejected the Appellant’s alternative position to partially set aside the Award. By focusing on the proportionality between the harm caused by the breach and how the harm may be remedied, the Court held that the breach of natural justice permeated the whole Award. Further, the Court found that remission operates as a mutually exclusive alternative to the power to set aside an award. Given that there is no basis to reverse the High Court’s decision, it is no longer open for the Appellants to seek an order of remission on appeal.
 
Comments
 
The arbitral tribunal must remain vigilant in ensuring procedural fairness, not only during the hearing process, but also in the delivery of the award. This case is a clear reminder to arbitrators that no perceived pursuit of efficiency can be done at the expense of natural justice. It is also important that arbitrators remain mindful of the perception of biasedness when considering cases involving similar disputes and to ensure that the award is rendered based on the submissions and material before the tribunal.
 
 
Case Note by Loshini Ramarmuty (Partner) and Lim Chin Lun (Associate) of the Construction and Engineering Practice of Skrine.