DSS v DST [2026] SGHC 145

This judgment concerns an application to set aside the second partial final award (“Award”) issued in an arbitration between [DSS] (“Claimant”) and [DST] (“Defendant”) for alleged breaches of natural justice under s 24(b) of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”).

The background to the parties’ dispute was a series of time charterparties in respect of a particular vessel (“Vessel”), which gave rise to two separate but related arbitrations. The first arbitration (“Head Reference”) was between the owner of the Vessel (“Owner”) and the Defendant, the head charterer of the Vessel. The second arbitration (“Sub-Reference”) was, in turn, between the Defendant and the Claimant, the subcharterer of the Vessel. While separate tribunals were constituted, the arbitrations were heard concurrently, with both tribunals sitting together. Separate awards were issued by each tribunal.

As it was, there were substantial similarities between the award issued in the Head Reference (“Head Award”) and the Award, which was issued in the Sub-Reference. Against this backdrop, the Claimant now alleges that the Award was rendered in breach of natural justice. The Claimant’s primary case is that the extent of the similarities between the awards would cause a fair-minded and informed observer to reasonably suspect that the tribunal in the Sub-Reference had prejudged the matter, which amounted to apparent bias. The Claimant also argues that the tribunal breached the fair hearing rule by deciding the issues in the Sub-Reference on a basis that was not contemplated by the parties, without giving them the opportunity to make submissions on it.

Following the hearing, the General Division of the High Court released its decision in Public Prosecutor v Pek Lian Guan [2026] 3 SLR 1109 (“Pek Lian Guan”). While this was a Magistrate’s Appeal, Chief Justice Sundaresh Menon touched on broader issues of natural justice going beyond the criminal context. The decision clarified, among other things, the conceptual difference between breaches of the rule against bias and breaches of the fair hearing rule, as well as the applicable test for assessing breaches of the fair hearing rule in the judicial context. In particular, Pek Lian Guan addressed the aspect of the fair hearing rule that concerns whether the adjudicator properly applied his mind to the matters before him. While this was not specifically addressed in the Claimant’s initial submissions, the nature of its complaints overlapped with and engaged this aspect of the fair hearing rule. I therefore invited the parties to file further submissions on this particular aspect of the fair hearing rule and the potential implications of Pek Lian Guan in the arbitral context.

Having considered the parties’ submissions and further submissions, I decline to set aside the Award. The application is accordingly dismissed.

Background

The events leading up to the dispute

The Vessel, which was owned by the Owner at all material times, was chartered to the Defendant under a time charterparty (“Head Charter”). The Defendant, in turn, sub-chartered the Vessel to the Claimant under a separate time charterparty (“Subcharter”). The terms of both charterparties were based on standard form contracts and were materially identical.

The Claimant contracted with [Company B] to provide the Vessel as an offshore support vessel to support certain works being carried out by [Company B] for [Company C].

The offshore works required a specialist gangway system to be installed aboard the Vessel. The gangway would serve as a walkway between the Vessel and a Floating Production Storage and Offloading Vessel (“FPSO”). This was essential to allow walk-to-work access for the workers from the Vessel to the FPSO. The gangway was installed prior to the delivery of the Vessel.

The Vessel was thereafter duly delivered to the Claimant upon arrival at the [location redacted] (“Port”), prior to its intended deployment at the [location redacted] (“Site”).

While the Vessel was moored at the Port, the gangway was connected to the FPSO. The gangway subsequently collided with the FPSO, which damaged the gangway and rendered it inoperable.

The collision and the resulting inoperability of the gangway (“Incident”) led to disputes between the Owner, the Defendant and the Claimant over, among other things, the amount of hire payable under the Head Charter and Subcharter and damages for late redelivery of the Vessel.

The conduct of the arbitrations

Following the Incident, the Owner commenced arbitration against the Defendant under the Head Charter. [Judge A] was appointed by agreement as the sole arbitrator in the Head Reference.

The Defendant commenced arbitration shortly after against the Claimant under the Subcharter. A tribunal comprising three arbitrators was constituted in the Sub-Reference. They were: (a) [Judge B], appointed by the Claimant, (b) [Judge C], appointed by the Defendant; and (c) [Judge D], jointly appointed by [Judge B] and [Judge C] (collectively, “Tribunal”). [Judge D] was appointed as the presiding arbitrator in the Sub-Reference.

The arbitrators in both the Head Reference and Sub-Reference were all eminent retired English judges. Both arbitrations were seated in Singapore and conducted under the rules of the Singapore Chamber of Maritime Arbitration in force as of 1 January 2022. The charterparties were governed by English law.

While the Owner agreed to the application for concurrency, the Claimant objected to it initially. The Claimant eventually dropped its objection, and the parties proceeded to agree on the terms of the concurrency order.

The terms of the final concurrency order (“Concurrency Order”) were as follows:

The arbitrations were thereafter conducted in accordance with the terms of the Concurrency Order, with the tribunals sitting together and hearing all the evidence and arguments made by the parties. The arbitrations proceeded in three main tranches:

(a) The first tranche dealt with the preliminary issue of whether the various counterclaims brought by the Defendant and the Claimant were excluded by the Head Charter and Subcharter respectively. The tribunals heard the parties on this issue together, and separate partial awards were issued by each tribunal.

(b) The main tranche dealt with the remaining issues and took place over multiple days. The tribunals sat together and heard all the evidence and arguments of the parties concurrently.

(c) Following the main tranche, the parties were directed to address the tribunals on a number of additional issues by way of further written submissions (“Further Submissions Tranche”). Specifically, as regards the Sub-Reference, these issues concerned: (i) whether a standby rate of hire should apply as the relevant rate of hire in respect of certain periods of the Subcharter (“Standby Rate Issue”); and (ii) whether the reduced rate of hire under cl 44.1 of the Subcharter applied when the FPSO was not on site and turret moored (“Clause 44.1 Issue”).

The issuance of the Award

During the Further Submissions Tranche, the Tribunal had, when it first requested further submissions on the Clause 44.1 Issue, indicated that it was minded to invite the parties in the Sub-Reference to file short submissions, upon publication of the Head Award, on whether the position under the Subcharter in relation to any point should be different. In response, the Defendant indicated that it was amenable to file further submissions, but requested that the release of the awards in the Head Reference and Sub-Reference be aligned.

Subsequently, [Judge A] wrote on behalf of himself and the Tribunal to confirm that since the two awards would be issued simultaneously, the Tribunal would no longer be inviting submissions from the parties on the possible impact of the Head Award on the issues in the Sub-Reference.

The Head Award was issued in June 2025. [Judge A] found substantially in favour of the Owner.

Nine days later, the Tribunal issued the Award in the Sub-Reference, in which it found substantially in favour of the Defendant. Among other things, the Tribunal awarded the Defendant substantial damages for late redelivery of the Vessel and unpaid hire.

In the Award, the Tribunal stated that although it “had the advantage of reading” the draft of the Head Award, the members of the Tribunal “exercised separate and independent judgment” in relation to the common issues arising in both arbitrations and ultimately “reached the same conclusions in relation to the common issues and largely for the same reasons”. This was stated as such:

Shortly after the issuance of the Award, the Defendant sought to obtain interim relief arising from the Award in another jurisdiction. Those proceedings remain pending to date.

On 25 September 2025, the Claimant applied to set aside the Award in Singapore, alleging that the Award was rendered in breach of natural justice.

The parties’ cases

The Claimant’s case

The central plank of the Claimant’s case is that the process by which the Award was prepared showed that the Tribunal had prejudged the issues and that this amounted to apparent bias. The Claimant argues that the extent, nature and effect of the similarities between the Award and the Head Award would cause a fair-minded and informed observer to reasonably suspect that the Tribunal had approached the matter with a closed mind.

Notably, the Claimant clarified at the hearing that it only took issue with the process by which the Award was prepared. It was not taking issue with the conduct of the arbitrations and whether it was in accordance with the terms of the Concurrency Order or as envisaged by the parties. In particular, its position was that even if inter-tribunal discussions were impliedly consented to, and the Tribunal were allowed to read the draft of the Head Award, the Tribunal would still be required to exercise its independent judgment and ensure that the Award was its own. That said, since the Claimant’s case was founded on apparent bias, not actual bias, there was no need to show that “there was a real danger that the [Tribunal] was in fact biased or had a closed mind”. The similarities between the Award and the Head Award had to be viewed from the perspective of a fair-minded and informed observer.

As to the extent of the similarities between the two awards, the Claimant alleges that 108 out of the 211 paragraphs in the Award consisted of wholesale or substantial reproductions of excerpts from the Head Award. The Claimant argues that these reproductions are “not limited to recitations of uncontroversial procedural matters or common ground”, but instead “extend to findings of fact, legal analysis and reasoning on contested issues”. The similarities between the two awards, the short timeframe between the issuance of the awards, as well as the Tribunal’s express acknowledgment that it had the advantage of reading the draft of the Head Award (see [23] above), altogether suggest that the Tribunal had used the Head Award as a template for drafting the Award. Accordingly, relying primarily on the Court of Appeal’s decision in DJP v DJO [2025] 1 SLR 576 (“DJP”), the Claimant submits that a fair-minded and informed observer would have reasonably suspected that the Tribunal’s decision was improperly influenced by anchoring and confirmation bias.

Aside from apparent bias, the Claimant also submits that the fair hearing rule was breached. By relying on the Head Award and using it as a template for the Award, the Tribunal had decided the Sub-Reference on a basis that was not contemplated by the parties, and upon which they did not have the opportunity to address or make submissions.

The Claimant also submits that there was no waiver of its right to object to any breach of natural justice on the ground of apparent bias. Even if it did not object to the inter-tribunal discussions that took place throughout the hearings, the Claimant did not contemplate that the Tribunal would simply reproduce the analysis in the Head Award and put it forward as its own.

As for the requirement of prejudice, the Claimant submits that where the alleged breach of natural justice is founded on apparent bias, this would infect the decision-making process of the Tribunal itself, such that prejudice may be readily inferred. Thus, it is not necessary for the Claimant to demonstrate how the outcome of the arbitrations may have differed if there was no breach.

The Defendant’s case

The Defendant does not dispute that there were substantial similarities between the Award and the Head Award. However, the Defendant argues that the similarities between the awards do not amount to apparent bias on the part of the Tribunal.

The Defendant contends that the similarities between the awards should be viewed in light of the terms of the Concurrency Order and the actual conduct of the arbitrations. The terms of the Concurrency Order, which the Claimant had agreed to, permitted inter-tribunal discussions. Such inter-tribunal discussions occurred throughout the entire course of the proceedings, without any objections being raised by the Claimant. In circumstances where the occurrence of inter-tribunal discussions was consented to, the Defendant contends that the existence of substantial similarities between the awards does not support the allegation of apparent bias.

Further, although the Tribunal may have agreed with and adopted some of the findings in the Head Award, the Defendant submits that this did not suggest that the Tribunal had prejudged the issues in the Sub-Reference, for four main reasons:

(a) First, there was equality between the tribunals. They had access to the same materials and heard the same arguments. The tribunals were therefore equally placed, which distinguished the present case from the situation in DJP.

(b) Second, the Tribunal did not use the Head Award as a template. The Tribunal summarised the respective cases of the parties in the Sub-Reference in detail, and structured its analysis accordingly based on the way the parties had argued their cases.

(c) Third, the Tribunal was cognisant of the differences between the arguments raised in the Head Reference and those raised in the Sub-Reference. The Tribunal considered legal authorities that did not form part of the reasoning in the Head Award, and also referred to provisions of the Subcharter and witness testimony that were not relied upon in the Head Award. This showed that the Tribunal had exercised independent judgment and had not simply adopted the findings in the Head Award.

(d) Finally, while there were similarities between the awards, there were also substantial differences between the awards, which showed that the Tribunal did not abdicate its duty to consider the issues in the Sub-Reference independently and impartially.

On the issue of waiver, the Defendant submits that the Claimant waived its right to object on the ground of apparent bias by failing to object in time to the inter-tribunal discussions that occurred during the course of the arbitrations. The allegation of apparent bias should have been raised before the tribunals, and having failed to do so, it was too late for the Claimant to raise this now.

Finally, on the requirement of prejudice, the Defendant submits that the Claimant has not suffered any actual or real prejudice due to the alleged breach of natural justice. In cases involving an allegation of apparent bias, the focus is on whether there has been “any loss of confidence in the adjudicative process” as a result of the Tribunal’s failure to consider the issues sufficiently. This was not the case here. The Claimant could not identify any points that the Tribunal failed to consider, such that the outcome of the arbitration may have differed if those points had been considered. The Tribunal had considered the Claimant’s various submissions and even invited further submissions on certain issues.

Further submissions

As noted above, I invited the parties to file further submissions on Pek Lian Guan, which was released only after I heard the parties orally. The parties were invited to address the following issues:

The Claimant’s further submissions

The Claimant takes the position that the Tribunal also breached the fair hearing rule by failing to properly apply its mind to the issues, arguments and evidence in the Sub-Reference. The Claimant argues that the submissions made previously in support of apparent bias equally show that a fair-minded and informed observer would reasonably apprehend that the Tribunal did not properly apply its mind to the matters in the Sub-Reference.

The Claimant submits that it is not barred from relying on this aspect of the fair hearing rule to set aside the Award at this stage of the proceedings. This is because the factual basis on which it relies is the same, and was contained in the original supporting affidavit.

As to the applicable test, the Claimant submits that the test of reasonable suspicion, which was held in Pek Lian Guan to apply to the fair hearing rule in the judicial context, should also apply in the arbitral context. This is because the rationale that justice must not only be done but must be seen to be done applies equally to complaints under the rule against bias and the fair hearing rule. The requirement of prejudice in the arbitral context is a sufficient safeguard against complaints of natural justice.

The Defendant’s further submissions

The Defendant submits that the Claimant should not be allowed to raise the argument that the Tribunal did not properly apply its mind to the matters in the Sub-Reference at this stage of the proceedings. This particular aspect of the fair hearing rule was not identified in the Claimant’s supporting affidavit, and the Claimant relied on a different aspect of the fair hearing rule in its original submissions. The Claimant should be required to file a further affidavit to set out the additional grounds on which it relies, and the Defendant should have the opportunity to respond by way of a further affidavit as well.

As to the applicable test, the Defendant takes the position that the test of reasonable suspicion should not be extended to the arbitral context. This is because the public interest in safeguarding the administration of justice does not apply in the context of arbitration, which is essentially a private and consensual mode of dispute resolution. Applying the threshold of reasonable suspicion would also be inconsistent with the case law, Parliament’s intent under s 24(b) of the IAA, and the judicial policy of minimal curial intervention in assessing breaches of natural justice.

In any event, the Defendant submits that the Tribunal did not breach the fair hearing rule, whether on the threshold of reasonable suspicion or on the balance of probabilities. The Defendant relies on essentially the same points as in their previous submissions.

Issues to be determined

As I indicated to the parties at the hearing, the manner in which the Claimant’s complaints were framed meant that the focus in this case would be on the similarities between the Award and the Head Award, rather than the conduct of the arbitrations themselves. Those similarities formed the basis of the various alleged breaches of natural justice and engaged both the rule against bias and the fair hearing rule. I therefore begin by characterising the nature of the Claimant’s complaints and situating those complaints within the rules of natural justice.

The applicable law

The rules of natural justice

It is well-established that the two fundamental tenets of natural justice are that: (a) the adjudicator must be disinterested and unbiased (as expressed in the maxim nemo judex in causa sua); and (b) the parties must be given a proper opportunity to be heard (as expressed in the maxim audi alteram partem) (DJP at [36]). I refer to the former as the “rule against bias” and the latter as the “fair hearing rule”. Although the two are conceptually distinct, they are not mutually exclusive, and the same set of facts could give rise to a complaint on either basis or both (Pek Lian Guan at [62]). Depending on the nature of the allegation and the rule of natural justice engaged, the relevant considerations and consequences may differ. It is therefore of utmost importance that the particular and specific nature of the complaint be identified as far as possible, so that the analysis may be tailored accordingly (Pek Lian Guan at [45] and [102]).

Indeed, as noted in DJP (at [40]), where the allegation is that an award has been substantially copied from another source, this may implicate either the rule against bias, the fair hearing rule or both. This is exemplified by the facts of DJP, where the primary allegation was that substantial parts of the award had been copied from awards in parallel arbitrations that involved similar facts and similar underlying contracts. While the same presiding arbitrator sat in all three arbitrations, the co-arbitrators in the impugned arbitration were not involved in the other parallel arbitrations (DJP at [18]). The concern was therefore that the extent to which the award in the impugned arbitration drew from the awards in the parallel arbitrations would give rise to a reasonable suspicion, on the part of a fair-minded and informed observer, that the tribunal had been impermissibly influenced by the decisions made in the parallel arbitrations, given the presiding arbitrator’s involvement in them (DJP at [70]). On the facts, the Court of Appeal found that the allegation of apparent bias had been made out, and the award was set aside on this basis.

Aside from apparent bias, however, the Court of Appeal also considered another facet of the respondent’s complaint, which was targeted at the tribunal’s reliance on and reference to materials derived from the parallel arbitrations that the parties did not have the opportunity to address (DJP at [80]). This engaged an aspect of the fair hearing rule, namely, that an adjudicator must not decide a case on a basis that was not contemplated by the parties without at least giving them the opportunity to address those points (DJP at [39]). In the circumstances, the Court of Appeal concluded that there had been a breach of natural justice on this basis as well (DJP at [82]).

The present case likewise involves an allegation that substantial parts of the Award had been copied or reproduced from the Head Award. In this regard, the Claimant has framed its complaint as one of apparent bias, namely, that the similarities between the awards would give rise to a reasonable apprehension or suspicion that the Tribunal, in preparing the Award, had prejudged the issues in the Sub-Reference and approached the matter with a closed mind. There are, however, some differences between the nature of the allegation of prejudgment in DJP and the present case which should be borne in mind.

(a) In DJP, the concern was that the presiding arbitrator, who sat in all three arbitrations, had been materially influenced by the decisions in the parallel arbitrations (at [70]). By the time the impugned arbitration was heard, the hearings in the parallel arbitrations had already concluded for the most part. The awards in the parallel arbitrations were also issued about three months before the impugned award (at [19]). There was thus a concern that the presiding arbitrator did not keep an open mind while hearing the impugned arbitration, because he had been influenced by the parallel arbitrations which had been heard and decided earlier (at [70]). The question was therefore whether there was a reasonable apprehension that “the decision-maker had reached a final and conclusive decision … before being made aware of all relevant evidence and arguments that the parties wished to present” (at [38]).

(b) In contrast, in the present case, the Head Reference and the Sub-Reference were heard concurrently, not sequentially. No complaint has been made in relation to the inter-tribunal discussions that took place or the conduct of the arbitrations more generally (see [27] above). It is not alleged that the Tribunal kept a closed mind while hearing the evidence and arguments presented by the parties. Rather, the allegation is that the Tribunal simply adopted wholesale the findings and analysis in the Head Award in deciding the issues in the Sub-Reference. This, in turn, would give rise to a reasonable apprehension or suspicion that the Tribunal had approached the issues in the Sub-Reference with a closed mind, in so far as the Tribunal was inclined or predisposed to resolve those issues in the same way as in the Head Award. The simple point I would highlight is that the timing of analysis differs slightly from that in DJP, in that the alleged prejudgment focuses on the drafting of the Award itself, after the parties had already been heard.

This brings me to my next point. It was readily apparent from the way the Claimant initially presented its case that the alleged copying would also engage the fair hearing rule, quite apart from any concerns of prejudgment amounting to apparent bias. Specifically, the alleged copying would raise concerns as to whether the Tribunal properly applied its mind to the issues in dispute and to the submissions and evidence adduced by the parties. This is an aspect of the fair hearing rule, and is conceptually distinct from the rule against bias (DJP at [39]; Pek Lian Guan at [59] and [62]–[64]). This was made clear in the Claimant’s further submissions, in which the Claimant clarified that it was also challenging the Award on the ground that the Tribunal had not properly applied its mind to the matters in the Sub-Reference. In this regard, the Claimant relied on essentially the same arguments as those made in support of its allegation of apparent bias. This was unsurprising, given that both complaints were based on the alleged copying of the Head Award, and whether they are made out would turn on substantially the same material. That said, despite the obvious overlaps, both grounds of challenge are conceptually distinct and must be analysed separately (Pek Lian Guan at [68]).

Aside from the above, there is yet another aspect of the fair hearing rule which is engaged in the present case, namely, that an arbitrator must not decide the case on a basis that was not contemplated by the parties without first giving them the opportunity to make submissions on it (DJP at [40]). This flows from the Claimant’s secondary complaint that the Tribunal had relied on the Head Award in deciding the issues in the Sub-Reference and used it as a template for drafting the Award, which was not contemplated by the parties and upon which they did not have the opportunity to make submissions (see [29] above). This is conceptually distinct from the Claimant’s primary complaint of apparent bias and the first aspect of the fair hearing rule mentioned above, and thus warrants separate consideration.

To sum up, there are three ways in which the rules of natural justice may be said to have been breached in the present case:

(a) First, whether the alleged copying showed that the Tribunal had prejudged the issues in the Sub-Reference. This relates to the Claimant’s primary complaint of apparent bias (see [48]).

(b) Second, whether the alleged copying showed that the Tribunal had not properly applied its mind to the issues, arguments and evidence in the Sub-Reference. This relates to the first aspect of the fair hearing rule noted above, and was addressed in the parties’ further submissions (see [49]).

(c) Finally, whether the Tribunal had decided the Sub-Reference on a basis that was not contemplated by the parties (ie, by relying on the Head Award) without giving them the opportunity to make submissions on it. This relates to the second aspect of the fair hearing rule noted above (see [50]).

The test of reasonable suspicion

Having situated the nature of the Claimant’s complaints within the rules of natural justice, I turn next to the applicable test for assessing each complaint.

In the context of apparent bias, it is well-established that the assessment is to be conducted from the perspective of a fair-minded and informed observer of the public. It is not necessary for the court to be satisfied that there was a real danger that the decision-maker was in fact biased or had a closed mind. Rather, the question is whether the hypothetical observer would reasonably apprehend or suspect that the decision-maker had approached the matter with a closed mind and thereby prejudged the issues before him or her (DJP at [38]). The rationale for this is the principle that justice must not only be done, but it must also be seen to be done (DJP at [38]). The threshold of reasonable suspicion is lower than proof on a balance of probabilities and is satisfied if the hypothetical observer would think that bias is possible in the circumstances, which is assessed objectively (Pek Lian Guan at [106]). Among other things, the hypothetical observer will be taken to be aware of all relevant facts capable of being known by a member of the public, and to consider what has been seen or read together with its proper context (DJP at [38]). I will refer to this as the “test of reasonable suspicion”.

That brings me to the applicable test in the context of an alleged breach of the fair hearing rule. In Pek Lian Guan, Menon CJ held that the test of reasonable suspicion would similarly apply to challenges based on the fair hearing rule (at [107]). This is because the underlying rationale that justice must not only be done but it must also be seen to be done so that public confidence in the administration of justice can be maintained applies with equal force to the fair hearing rule. There is therefore no principled basis to confine the test of reasonable suspicion to complaints of apparent bias (at [105]). The effect of this is that in the context of challenges to court decisions, the applicable test for determining whether there has been a breach of natural justice is the test of reasonable suspicion, regardless of whether the alleged breach engages the rule against bias or the fair hearing rule (at [123]).

This raises the question as to whether the test of reasonable suspicion would similarly apply to alleged breaches of the fair hearing rule in the context of challenges to arbitral awards.

There are, of course, some essential differences between litigation and arbitration. On the one hand, the private and confidential nature of arbitration means that arbitral tribunals are “not accountable to the public in the same way that the courts and judges are” (Pek Lian Guan at [83] and [133]). As the details of each arbitration and the reasoning contained in each award are confidential, breaches of natural justice in arbitration “generally do not have broader implications beyond the immediate parties” (Pek Lian Guan at [132]–[133], citing DJP at [54]). In the judicial context, however, the public nature of the proceedings means that breaches of natural justice may undermine public confidence in the administration of justice and in the legitimacy of the judicial system (Pek Lian Guan at [86] and [133]). It is this rationale of ensuring public confidence in the administration of justice that led the court in Pek Lian Guan to conclude that the test of reasonable suspicion, which emphasises the appearance of justice, should similarly apply to challenges based on the fair hearing rule (Pek Lian Guan at [107]–[108]). That this additional dimension of public accountability is absent in the arbitral context would seem to suggest that there is less justification for adopting the test of reasonable suspicion in assessing alleged breaches of the fair hearing rule in arbitration. The possibility that different standards may apply in the arbitral context has at least been alluded to by the Court of Appeal in CVV v CVB [2024] 1 SLR 32 at [33]–[34], in the context of an arbitral tribunal’s duty to give reasons, which is a separate aspect of the fair hearing rule that is not in issue here (see also Pek Lian Guan at [79]; DJP at [55]).

On the other hand, it bears mentioning that parties to an arbitration are generally not afforded the right to an appeal, and it is not possible for the court to review the substantive merits of the tribunal’s decision (DJP at [48]; Pek Lian Guan at [46]–[48]). This emphasis on finality in the arbitral context means that “particular attention must be paid to the integrity of the process” (DJP at [49]). Adopting the less stringent test of reasonable suspicion would therefore help to safeguard the parties’ right to due process, which will often be the primary, or even the sole, means by which an award may be impugned (Pek Lian Guan at [48]).

Having considered the parties’ further submissions on this issue, I have reached the conclusion that the test of reasonable suspicion should also apply in assessing alleged breaches of the fair hearing rule in the arbitral context. In my view, this follows logically from the rationale underlying the application of the test of reasonable suspicion in cases involving allegations of apparent bias. As explained in DJP (at [38]), the threshold of reasonable suspicion applies to give effect to the principle that justice must not only be done, but it must also be seen to be done. Thus, while arbitral tribunals may not be accountable to the public, this does not mean that the appearance of justice can be dispensed with. If the threshold of reasonable suspicion applies to allegations of apparent bias, the same threshold must surely apply to alleged breaches of the fair hearing rule. As noted in Pek Lian Guan (at [118]), the rule against bias and the fair hearing rule exist as co-equal pillars of procedural justice, and procedural justice must be done and seen to be done in both aspects. There is no logical justification for confining the test of reasonable suspicion to the rule against bias while applying a different test to the fair hearing rule. These observations apply with equal force in the arbitral context.

The Defendant submits that adopting the lower threshold of reasonable suspicion would be inconsistent with Parliament’s purpose in enacting s 24(b) of the IAA and with the settled judicial policy of minimal curial intervention in the arbitral process, and that this may in turn encourage unmeritorious setting-aside applications. I do not accept this submission. In my view, such concerns are overstated, given the overriding requirement of prejudice, which operates as the “principal safeguard against unconstrained natural justice complaints” in the context of arbitration (Pek Lian Guan at [131]). This requires a complainant to establish not only that the rules of natural justice have been breached, but also that the breach could reasonably have made a difference to the outcome of the arbitration. While the lower threshold of reasonable suspicion may be more easily satisfied, the requirement of prejudice operates as a sufficient safeguard to filter out unmeritorious challenges.

The Defendant also relies on the Singapore International Commercial Court’s decision in DOI v DOJ [2025] 4 SLR 657 (“DOI”). In DOI, the claimant alleged both apparent bias and breach of the fair hearing rule. In analysing the fair hearing rule, the court expressly noted that its “decision is not one of its own reasonable suspicion of bias in place of the reasonable suspicion of the observer, but one of itself coming to the conclusion that the Majority was biased because they decided the issues before them with a closed mind” (DOI at [135]). This suggests that the threshold of reasonable suspicion would not apply, and that the court must be satisfied on a balance of probabilities that the tribunal had in fact breached the fair hearing rule. However, as DOI was decided before Pek Lian Guan, the question of whether the test of reasonable suspicion applies to the fair hearing rule was not before the court, and the point was therefore not directly addressed.

For these reasons, I hold that the test of reasonable suspicion applies to the fair hearing rule in the arbitral context as well.

The extent and nature of the reproduction or copying

As explained above (see [51]), there are three ways in which the rules of natural justice may be said to have been breached in the present case. Regardless of whether the complaint is characterised as one of apparent bias or as a breach of the fair hearing rule, however, the factual basis for the Claimant’s complaint is the extent of the similarities between the Head Award and the Award, which the Claimant alleges is a byproduct of the Tribunal copying and reproducing the Head Award as its own. Thus, whether the complaints are made out would turn on the inferences that may be drawn from the copied material and the impression conveyed by the Award to a fair-minded and informed observer.

In assessing the copied material, the following considerations should be borne in mind.

As explained in DJP, where the source of the copied material is a related award, much will depend on the nature of the copied material and the degree of proximity between the underlying arbitration proceedings (at [43]). Thus, where the copied material consists of uncontested and uncontroversial matters, which are also relevant and appropriate in the context of the impugned arbitration, the copying may not be objectionable (at [44]). However, where the copied material relates to disputed facts or issues, or matters which are simply irrelevant to the impugned arbitration, such copying would clearly give rise to greater suspicion (at [44]).

Similar considerations were highlighted in Pek Lian Guan in the context of the fair hearing rule. As regards the extent of copying, the court will consider not only how much has been copied, but also what has been copied. The copying of undisputed background facts or a party’s submissions to provide the context of that party’s case will typically give no cause for concern (at [156]). In contrast, where the copying relates to contested issues, this may suggest that the decision-maker may not have applied his or her mind properly to the parties’ arguments (at [156]). As regards the manner of copying, the reproduction of errors in the source material would be a relevant consideration, especially if the error is one of substance. It is also relevant to consider whether the decision contains internal contradictions or inconsistencies which are not explained (at [157]). While it is not necessary for the decision-maker to address every point raised by the parties, a failure to deal with decisive or material issues could indicate that there has been a breach of natural justice (at [158]–[160]). In the final assessment, the court should also consider the quality of the impugned decision as a whole (at [162]). As noted in DJP (at [67]), it would typically not be appropriate to assess each allegation of copying as “isolated breaches of natural justice to be considered in silos”. What is ultimately more important is the overall impression conveyed by the decision to a fair-minded and informed observer, and whether the cumulative effect of the extent, nature and manner of copying evinces an underlying failure in the process.

Concurrent arbitrations

Before turning to the analysis of the Award, I first set out some brief observations on the conduct of concurrent arbitrations more generally.

The parties did not point me to any case law addressing the conduct of concurrent arbitrations, and certainly not in the context of alleged breaches of natural justice. While concurrent arbitrations are a feature of many institutional rules today (see, eg, Rule 29.2 of the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (4th edition, 1 January 2022); Rule 17 of the Arbitration Rules of the Singapore International Arbitration Centre (7th edition, 1 January 2025); Article 22A of the Arbitration Rules of the London Court of International Arbitration (1 October 2020); Rule 17(b) of the London Maritime Arbitrators Association Terms 2021) and are expressly provided for under certain legislation (see, eg, s 35 of the Arbitration Act 1996 (c 23) (UK) and s 26 of the Arbitration Act 2001 (2020 Rev Ed), but not under the IAA), these institutional rules and their accompanying materials offer limited guidance on how concurrent hearings should be conducted.

As it was, this did not cause any difficulties in the present case, given the way the Claimant framed its case. As noted above (see [16]), while there may have been some initial reluctance, the Claimant ultimately agreed to the arbitrations being heard concurrently and did not object to the terms of the Concurrency Order. Thus, the process by which the arbitrations were heard was not in issue. The Claimant does not allege that the concurrent conduct of the hearings undermined the procedural fairness of the arbitrations. Rather, the complaint was targeted at the drafting of the Award itself.

There has been some consideration of the value and benefit of concurrent arbitrations, including possibly the avoidance of inconsistent awards in related or connected matters (see generally Bernardo M Cremades & Ignacio Madalena, “Parallel Proceedings in International Arbitration” (2008) 24(4) Arbitration International 507 at 518; Anastasia Kalantzi, “Parallel Arbitral Proceedings: An Analysis of the Issue of Parallel Arbitrations in International Commercial Arbitration within the European Legal Space” (2023) 3 The Italian Review of International and Comparative Law 1 at 23–24). The issue is not at play in the present case, and thus any deeper examination will be left for another occasion.

While concurrent hearings are not objectionable in themselves, issues of natural justice may readily arise if appropriate procedural safeguards are not put in place. In this regard, the following points should be noted:

(a) An agreement for the arbitrations to be heard concurrently, and even for inter-tribunal communications or discussions, does not amount to a consolidation of the proceedings or a merging of the tribunals. The arbitrations remain separate, and parties are entitled to expect that each tribunal will consider the issues before it independently.

(b) Separate awards should be issued, and it is imperative that each award reflects the tribunal’s own reasons for its decision. As far as possible, those reasons should be expressed in the tribunal’s own words. As the facts of the present case illustrate, similarities in the language used may give rise to a suspicion that the tribunal has not exercised independent judgment.

(c) Concurrent arbitrations will often involve common issues of fact or law, and it may well be the case that the tribunals arrive at the same conclusion for largely the same reasons. However, even if one tribunal agrees with the reasoning of the other, the impression conveyed to a fair-minded and informed observer may still be one of bias if there are no meaningful differences between the awards.

(d) To ensure compliance with the requirements of natural justice, it will be particularly important for each tribunal to identify and address any points specific to the arbitration before it. Where common reasons are adopted, the tribunal should also clearly distinguish in its award between its own reasoning and the reasoning in the related award with which it agrees.

The Claimant is not barred from relying on the first aspect of the fair hearing rule

With the principles above in mind, I turn to the Defendant’s preliminary objection, which is that the Claimant should not be permitted to rely on the first aspect of the fair hearing rule, namely, that the Tribunal did not properly apply its mind to the matters in the Sub-Reference, given that this was only raised in the Claimant’s further submissions.

It is trite that a party seeking to set aside an Award for breach of natural justice must identify which rule of natural justice was breached (Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) at [29]). To similar effect, O 48 r 2(4) of the Rules of Court 2021 (“ROC”) requires the “grounds in support of the application” and “any evidence relied on by the claimant” to be set out in the supporting affidavit.

The Defendant argues that the Claimant is precluded from relying on the first aspect of the fair hearing rule, as the Claimant’s supporting affidavit only identified apparent bias as the basis on which it sought to set aside the Award. While the fair hearing rule was raised in the Claimant’s previous submissions, the complaint was targeted at the second aspect of the fair hearing rule, which is that the Tribunal had decided the issues in the Sub-Reference on a basis not contemplated by the parties without giving them the opportunity to address it. The Defendant contends that the Claimant should be required to file an affidavit setting out the new ground of challenge, and that the Defendant should in turn have the opportunity to respond by way of a further affidavit.

The Defendant relies on the Court of Appeal’s decision in Prometheus Marine Pte Ltd v King, Ann Rita [2018] 1 SLR 1 (“Prometheus Marine”). In that case, the appellant had sought to raise allegations of fraud and non-pecuniary corruption against the arbitrator in the proceedings below. These allegations were raised for the first time in the appellant’s further submissions. Given the gravity of the allegations, the court below declined to consider these additional arguments unless an affidavit setting out their factual basis was produced, which the appellant ultimately failed to do (Prometheus Marine at [51]). On appeal, the Court of Appeal held that the court below was entirely correct in declining to hear these additional arguments in the absence of a further affidavit from the appellant setting out the evidence that it would rely on, as the procedural requirements under the Rules of Court (Cap 322, R 5, 2014 Rev Ed) had not been complied with (Prometheus Marine at [52]).

In my view, the present case is clearly distinguishable from Prometheus Marine. The allegations of fraud and non-pecuniary corruption in Prometheus Marine were premised on a different factual basis from the other grounds relied on for setting aside. Further, given the serious nature of those allegations, they had to be clearly particularised. It was in those circumstances that the Court of Appeal held that a further affidavit would have been required. In contrast, the factual basis for the Claimant’s arguments on the first aspect of the fair hearing rule has been sufficiently set out in its supporting affidavit, and is identical to that relied on for its arguments on apparent bias. As noted in Pek Lian Guan (at [68]), while the two rules are conceptually distinct, they are “not mutually exclusive” and “the same set of facts could potentially found a complaint on either basis”. That is precisely the case here. The Claimant has relied on the same materials and raised essentially the same arguments in support of both grounds of setting aside. It has not been suggested that the Claimant raised any new factual allegations in its further submissions that would have required a response. I therefore find that a further affidavit would not be necessary, and the Claimant is permitted to rely on the first aspect of the fair hearing rule as an additional ground of setting aside.

The procedural requirement under O 48 r 2(4) of the ROC does not preclude me from considering the additional arguments on the first aspect of the fair hearing rule. Although O 48 r 2(4)(a) of the ROC requires the “grounds in support of the application” to be stated, this does not require the claimant to set out the specific legal arguments that it will be making in its supporting affidavit. It is sufficient to set out the underlying factual basis for the complaints, leaving the legal arguments to be developed during submissions. As the Court of Appeal observed in Prometheus Marine (at [52]):

Accordingly, the Claimant is permitted to rely on the first aspect of the fair hearing rule.

The Award was not rendered in breach of natural justice

I turn to the alleged breaches of natural justice, which, as noted above (see [51]), may be categorised into three separate complaints.

Having considered the parties’ submissions and further submissions, I am satisfied that there was no breach of natural justice, whether under the rule against bias or under either aspect of the fair hearing rule engaged in this case. I address each ground in turn.

There was no apparent bias

I turn to the ground of apparent bias.

The copied portions with which the Claimant takes issue generally relate to two main areas of the Award. These may be broadly categorised as follows:

As a preliminary point, I note that the Tribunal pre-emptively declared in the Award that it had exercised independent judgment in deciding the issues in the Sub-Reference (see [23] above). This shows that the Tribunal was aware that the similarities between the Head Award and the Award might give rise to concerns. The Tribunal thus sought to forestall any allegations of breaches of natural justice from the outset. Of course, a bare declaration that the Tribunal exercised independent judgment would not be sufficient to address the concerns about apparent bias. As noted in BZV v BZW [2022] 3 SLR 447 (at [128]), such “general and self-serving” statements cannot operate in themselves to immunise an award against alleged breaches of natural justice (see also Pek Lian Guan at [161]). What is more important is the overall impression conveyed by the Award to a fair-minded and informed observer. If the copied portions are so substantial as to give rise to a suspicion of prejudgment, a bare statement to the contrary would do nothing to displace that suspicion.

For completeness, while the introductory paragraphs of the Award were included in the Claimant’s table of comparison between the Award and the Head Award, these paragraphs were purely descriptive or factual in nature, and dealt entirely with uncontentious matters such as the relationship between the parties, the background to the dispute, the procedural history of the two arbitrations, the various claims, defences and counterclaims made by the parties, and the relevant provisions of the Subcharter. The Claimant rightly did not place much reliance on these paragraphs to support its allegation of apparent bias. As explained (see [64]–[65] above), such instances of copying would not cause a fair-minded and informed observer to harbour a suspicion that the Tribunal kept a closed mind in drafting the Award.

The facts as found by the Tribunal in the Sub-Reference

The first section of the Award with which the Claimant takes issue is the section entitled “[t]he facts as found by the Tribunal in the Sub-Reference”. This consists of paragraphs 38 to 92 of the Award, which broadly correspond to paragraphs 34 to 84 of the Head Award.

The Claimant argues that the reproduced material in this section was not limited to undisputed background facts or common ground, but instead extended to specific evaluative findings made in the Head Award. These factual findings were simply adopted wholesale by the Tribunal in the Award, which suggested that the Tribunal kept a closed mind in assessing the evidence before it.

The Defendant accepts that there were portions within this section of the Award which contained the Tribunal’s findings of fact. However, these findings were minimal, and the impugned paragraphs largely consisted of recitations of undisputed facts. Thus, the similarities between the two awards in respect of this section do not give rise to an appearance of prejudgment.

(1) Undisputed background facts

In my judgment, the impugned paragraphs in this section of the Award mostly related to undisputed background facts. While the Tribunal purported to set out its factual findings in this section of the Award, as evidenced by the title of the section, this was somewhat misleading, as most of the paragraphs did not actually contain the Tribunal’s findings of fact or its assessment of the evidence. Thus, the fact that many of the impugned paragraphs in this section were either identical or substantially similar to the corresponding paragraphs in the Head Award did not point towards a finding of apparent bias.

To illustrate, the Tribunal outlined the following series of events in this section of the Award:

(a) The Tribunal first described the events which took place prior to the Incident. These included the delivery of the Vessel to the Defendant, the installation of the gangway by the Defendant, and the delivery of the Vessel to the Claimant upon its arrival at the Port.

(b) Next, the Tribunal outlined the chronology of events on the day before the Incident and on the day of the Incident itself. The Tribunal described how the connection of the gangway to the FPSO was tested while the Vessel remained moored at the Port for necessary works, and how the FPSO eventually collided with the gangway and damaged it.

(c) The Tribunal then considered the evidence of the Defendant’s representative on board (“Captain”). The Captain testified that he had raised concerns about the connection of the gangway to the FPSO while the Vessel remained at the Port and suggested taking various precautions to mitigate the risk of collision and damage. However, these concerns were ignored by the representatives of the other parties on board.

(d) The Tribunal then summarised the expert evidence adduced by the parties. While various expert reports were tendered initially, these were eventually consolidated into two joint reports, as there was a large measure of agreement between the experts. The joint reports considered the circumstances surrounding the Incident, the actions and responses of the relevant parties, and the likely causes of the collision.

(e) Finally, the Tribunal outlined the events which took place after the Incident. These included when the FPSO was eventually moved to the Site, and the arrangements made by the parties to proceed with the intended works on the FPSO in light of the damage to the gangway.

It is evident from the above that while these matters were labelled as the Tribunal’s factual findings, they were, in reality, primarily descriptions of the series of events which took place before, during, and after the Incident. This was done in considerable detail, given the technical nature of the dispute. In doing so, the Tribunal relied on the available documentary evidence and the agreed expert evidence. For instance, the timeline of events as set out by the Tribunal above was agreed upon by the experts. These matters were therefore mostly undisputed. Where specific factual details were subject to conflicting evidence from the parties, such as when the FPSO was moved to the Site, these were easily resolved over the course of the proceedings. Other discrepancies between the parties’ evidence and the documentary evidence or the agreed expert evidence were also noted and resolved. In any event, I would note that these matters were ultimately not crucial to the resolution of the parties’ dispute, having regard to the Award as a whole.

Thus, while the impugned paragraphs in this section of the Award were indeed identical or at least substantially similar to the corresponding paragraphs of the Head Award, there could generally be no complaint of apparent bias or of any closing of the mind on the part of the Tribunal. This portion of the Award mostly dealt with undisputed background facts. It was descriptive in nature and largely did not involve any exercise of judgment or assessment of the evidence by the Tribunal.

It bears reiterating that the Head Reference and the Sub-Reference arose out of the same factual background. The background and the events surrounding the Incident were equally relevant to both proceedings. In that context, it would not, to my mind, be objectionable for the Tribunal to adopt similar language in recounting the events leading up to the dispute. A hypothetical observer, who is fully aware of these circumstances, would place little weight on the similarities between the awards in this section in assessing whether there was bias.

It may be the case that if there are other aspects of the Award which are problematic, the copying of even undisputed background facts may compound the concern of prejudgment amounting to apparent bias. However, that was not the case here. In my view, the similarities in the impugned paragraphs did not infect or worsen the impact of the copying found in other parts of the Award. While the background facts provided the essential context to the disputed legal issues, they did not ultimately affect the determination of those issues.

While the Claimant has not characterised this section of the Award as such, I find that it comprised mostly undisputed background facts, and the similarities between the two awards in respect of this section would not lead a fair-minded and informed observer to reasonably suspect that there was prejudgment amounting to apparent bias.

(2) The Tribunal’s findings of fact

While this section of the Award was generally descriptive in nature and pertained to undisputed background facts, I accept that there were at least some factual findings made by the Tribunal in this section. The Defendant accepted this as well.

As explained (see [64]–[65] above), where the copied material relates to contested facts, that would generally weigh more heavily on the mind of a fair-minded and informed observer in assessing whether there was bias. The reason for this is that such findings would require the tribunal to evaluate the evidence and exercise its judgment. The parties’ core expectation is for the tribunal to do so independently and with an open mind. Thus, where these findings are simply reproduced from another source, the impression that a fair-minded and informed observer would have is that the tribunal’s purported findings were plagued by a degree of anchoring and confirmation bias, in so far as the tribunal was inclined to make the same factual findings as in the source material (see DJP at [74]).

Looking at the Award holistically, however, as the findings of fact in this section of the Award were not very extensive, the hypothetical observer would not harbour a reasonable suspicion that the Tribunal approached the evidence in the Sub-Reference with a closed mind or that the Tribunal was predisposed to make the same factual findings as in the Head Award.

For example, in describing the Captain’s evidence, there were instances where the Tribunal went beyond mere description and evaluated the quality of his evidence, before going on to state the conclusions that could be drawn from it. These are set out in the table below, with the evaluative portions highlighted in bold and underline:

There were also instances where the Tribunal purported to draw certain inferences or conclusions from the evidence, as set out in the table below:

Thus, in the course of recounting the evidence, the Tribunal did at times go beyond mere description. The Tribunal characterised the Captain’s evidence as “impressive”, and made findings on the interactions between the Captain and the other personnel on board the Vessel, namely, that the Captain did not give or purport to give instructions and only confined himself to giving advice. The Tribunal also drew certain inferences in relation to the circumstances in which the gangway was reconnected to the FPSO, which resulted in the collision.

These factual findings by the Tribunal were worded in identical terms to the corresponding portions of the Head Award. Having regard to the principles in DJP and Pek Lian Guan (see [64]–[65] above), these would, at first glance, raise concerns as to whether the Tribunal had truly evaluated the evidence with an open mind, as opposed to simply being predisposed to make the same factual findings as in the Head Award.

Against this, however, are the other instances of alleged factual findings relied on by the Claimant which, in my view, do not actually constitute as such. As set out below, the Claimant argues that these statements by the Tribunal also constituted evaluative findings which pointed towards apparent bias:

I do not accept the Claimant’s characterisation of these other statements as evaluative findings. In my view, these statements were primarily descriptive in nature, whereby the Tribunal recounted the evidence adduced by the parties. They fell within the type of copied material that would not give rise to much concern from a fair-minded and informed observer’s perspective. The language used, or indeed, adopted from the Head Award, may have given some additional colour to the series of events which was not entirely necessary, but that did not affect the Tribunal’s reasoning or its key factual findings.

Ultimately, the essential question is whether a fair-minded and informed observer would reasonably suspect that the Tribunal did not keep an open mind in assessing the evidence and was predisposed to making the same findings of fact as in the Head Award. Taking the allegations as a whole, I do not find that the extent and nature of the copying would give rise to such a suspicion.

First, as regards the extent of the copying, I find that most of the copied material did not actually relate to the Tribunal’s findings on contested facts. As explained, many of the statements relied on by the Claimant were not actually evaluative in nature, but rather, descriptive. Thus, while there were substantial similarities between the two awards, the extent of copying had to be viewed in that light. The copying in relation to the Tribunal’s findings on contested facts, which would weigh most heavily on the mind of a hypothetical observer, formed only a minor part of this section. Viewing the Award as a whole, that would not be sufficient to give rise to a reasonable suspicion of apparent bias.

Second, I would emphasise again that the present case involved a series of time charterparties concerning the same vessel. The disputes under the Head Charter and Subcharter arose out of the same factual matrix and circumstances. The claims that were made revolved around materially the same clauses as well. There was thus considerable overlap in the legal and factual issues between the Head Reference and the Sub-Reference. The tribunals also heard the arguments and evidence concurrently. In circumstances where much of the background to the disputes in both references was shared, and the context of the Head Charter was relevant to the Subcharter and vice versa, it would have been expected that the description of the facts in the Award would share many similarities with that in the Head Award. Where the Tribunal made certain factual findings based on the evidence that went beyond mere description, these were minor and did not affect the overall impression conveyed by the Award to a hypothetical observer. What would have been more persuasive would be the presence of factual issues specific to the Sub-Reference that were not addressed by the Tribunal (see DJP at [76] and Pek Lian Guan at [158]–[160]). The Claimant did not raise any such examples. It is also worth noting that in so far as the impugned findings of the Tribunal related to the Captain’s evidence as set out above, these findings were ultimately immaterial to the resolution of the dispute. As noted by the Tribunal, it was “unnecessary to discuss further the role played by [the parties] in the causation of [the Incident]”, in light of, among other things, its findings on the Clause 44.1 Issue.

Finally, the Claimant alleges that there were terminological errors in the Head Award which were imported into the Award. The Claimant contends that these errors show that the Tribunal simply lifted sentences from the Head Award in drafting the Award. For example, the Tribunal stated at one point that “[t]he Tribunal will revert to the question whether an adequate weather watch was being conducted on [the Owner]”. This was an error because the Tribunal had intended to refer to the Vessel instead of the Owner.

I do not accept this argument and accord little to no weight to this error in my overall assessment of the Award. As noted in Pek Lian Guan (at [157]), while the reproduction of errors in the source material is a relevant factor, it is also important to consider the nature of the error and whether the error was one of substance. In my view, the alleged error was relatively minor and clerical in nature. I accept that the Tribunal had intended to refer to the Vessel instead of the Owner. However, this error made no substantive difference to the Tribunal’s reasoning or the outcome. Further, the Tribunal’s intended meaning was clear, and it could be readily inferred from the context that the Tribunal intended to refer to the Vessel. I also note that the Vessel was named after the Owner, and the similarities in their names likely contributed to the Tribunal inadvertently using the wrong term. A fair-minded and informed observer, having regard to these circumstances and reading the Award in its proper context (DJP at [38]), would have understood what the Tribunal meant and regarded the error as of little significance. It would neither affect the hypothetical observer’s assessment of whether there was apparent bias, nor taint the overall impression conveyed by the Award.

Notably, aside from the above error, the Claimant has not pointed me to any error in the copied material which affected the Tribunal’s reasoning on the material issues between the parties in some way. Had that been the case, those errors would have been a strong indicator of apparent bias. That was the case in DJP, where the errors related to substantive matters, such as the applicable law to certain issues (at [78]). The absence of errors of this nature meant that little weight could be placed on the terminological error relied on by the Claimant in the overall assessment of the Award.

Viewing this section as a whole, while the Tribunal made some factual findings, I find that the extent and nature of the copying would not cause a fair-minded and informed observer to harbour a suspicion that there was prejudgment on the part of the Tribunal in assessing the evidence before it.

The Tribunal’s analysis and determination of the legal issues

The other section of the Award with which the Claimant takes issue is the Tribunal’s analysis and determination of the legal issues. As set out in the Claimant’s table of comparison, the similarities were in respect of three issues: (a) the Clause 44.1 Issue; (b) the Standby Rate Issue; and (c) the late redelivery issue. As noted (see [64]–[65] above), copying in relation to contested issues which are critical to the determination of the parties’ dispute would naturally be given more weight in the assessment of apparent bias. From the perspective of a fair-minded and informed observer, such copied material would point more strongly towards an inference that the Tribunal had approached the issues in the Sub-Reference with a closed mind. I address each issue in turn.

(1) The Clause 44.1 Issue

This issue concerned whether the reduced rate of hire under cl 44.1 of the Subcharter was applicable during the period immediately after the Incident, in circumstances where the FPSO was turret moored at the Port and not at the Site. This was a question of construction of the words in cl 44.1 in the context of the other terms of the Subcharter and the background information reasonably available to the parties.

The Claimant sought to rely on the reduced rate of hire under cl 44.1 of the Subcharter in the Sub-Reference against the Defendant. The Defendant, in turn, sought to rely on the reduced rate of hire under the equivalent clause in the Head Charter in the Head Reference against the Owner. There was thus a great deal of overlap between both proceedings not only in relation to the legal issue at hand, but also in the arguments made by the parties. Indeed, arguments made in the Sub-Reference were adopted as arguments in the Head Reference and vice versa. This was unsurprising given that the parties were essentially involved in a chain of charterparties, and claims were being made up and down the chain. The implication of this was that, in deciding the Clause 44.1 Issue, the materials before both tribunals were essentially the same. While it was still incumbent on both tribunals to exercise independent judgment and to evaluate the arguments in the context of their respective references with an open mind, the fact that the tribunals reached the same conclusion for similar reasons has to be evaluated in that context, and should not be regarded as suspicious in itself. As noted in DJP (at [71]), it is “not inherently wrong” for related disputes to be resolved in the same manner. Ultimately, the question is whether a fair-minded and informed observer would, having regard to the circumstances and the Award as a whole, harbour a reasonable suspicion that the Tribunal had prejudged the Clause 44.1 Issue, such that this amounted to apparent bias.

In my judgment, while the Tribunal’s reasoning on the Clause 44.1 Issue does share similarities with the corresponding portions of the Head Award, this does not rise to the level of apparent bias. To a certain extent, these similarities had to be viewed against the context of the dispute and the overlap between the arguments raised in both references. More importantly, the Tribunal was aware of the differences in the arguments raised in the Sub-Reference and tailored its analysis accordingly, which helped to assuage any concerns of prejudgment.

To illustrate, I set out the impugned paragraphs of the Award alongside the corresponding paragraphs of the Head Award in respect of the Clause 44.1 Issue:

While there were similarities between the above paragraphs, I find that the similarities were within reasonable limits, given that the tribunals were faced with essentially the same issue and arguments. There were sufficient differences in the language used, and the paragraphs in the Award appear to have dealt with the issue more extensively. Where identical language was used, this seemed to mostly relate to factual descriptions or the wording of the relevant provisions of the Subcharter, which would not give rise to much concern from the perspective of a fair-minded and informed observer.

The same may be said of the other impugned paragraphs. In interpreting cl 44.1 of the Subcharter, the Tribunal placed reliance on, among other things, the agreed expert evidence and the evidence of the Captain. While these were recounted in identical terms as in the Head Award, such similarities would not generally be cause for concern, as they were descriptive in nature. Further, the Tribunal relied on portions of the Captain’s evidence that were not cited in the Head Award. This would help to address any concerns of apparent bias that a fair-minded and informed observer may have.

The Claimant specifically points to the conclusion at paragraph 107(13) of the Award, where the Tribunal rejected the Claimant’s arguments in relation to the Clause 44.1 Issue. This was worded in almost identical terms to paragraph 113 of the Head Award. The Claimant submits that this shows that the Tribunal simply adopted the reasoning in the Head Award without considering the issue independently, as it was required to do. I set out these paragraphs in the table below for comparison:

I accept that the similarities in the language used were extensive. On the whole, however, the core of the Tribunal’s reasoning in respect of this issue was found in the preceding sub-paragraphs set out above, where the other provisions of the Subcharter were discussed. That was the main basis on which the Tribunal determined the correct interpretation of cl 44.1 of the Subcharter, and paragraph 107(13) of the Award had to be viewed in that light. It was conclusory in nature, and did not reflect the main reasons for the Tribunal’s decision. In addition, the conclusions reached in both awards were not entirely the same. In considering one of the hypothetical examples suggested by the Claimant in the Sub-Reference, the Tribunal decided that cl 44.1 would be “applicable for such time as it took to rectify the deficiency in the Vessel’s equipment”, given that the equipment failure would have occurred “at a time when the FPSO was turret moored … at [the Site]”. In contrast, the conclusion in the Head Award was that the Vessel would be off-hire in those circumstances, such that consideration of cl 44.1 would not even arise. That the conclusions reached by both tribunals were not entirely the same militates against the Claimant’s argument that the Tribunal simply adopted the reasoning in the Head Award without considering the issue independently. Accordingly, I find that the similarities here do not tip the scales in the Claimant’s favour.

Aside from the similarities between the awards, it would also be relevant to consider the differences between them. In DJP, the arguments raised in the three related arbitrations were not identical. The Court of Appeal noted that the respondent in the impugned arbitration made additional arguments in respect of a particular issue which were not canvassed in the parallel arbitrations. The fact that these additional arguments were not addressed in the impugned award was accorded significant weight by the Court of Appeal in concluding that there was apparent bias (DJP at [76]). In the same vein, if there were arguments specific to the Sub-Reference which were not separately addressed by the Tribunal, this would be a significant factor pointing towards apparent bias. However, that was not the case here. There was, in fact, sufficient evidence that the Tribunal was alive to the differences between the arguments raised in the Sub-Reference and Head Reference, and tailored its analysis accordingly.

(a) First, the Tribunal expressly noted that the Claimant did not rely on the words “station keeping disruption” in cl 44.1 of the Subcharter to trigger the application of the reduced rate of hire, even though that had been argued in the Head Reference. Thus, while the Head Award dealt with the words “station keeping disruption”, the Tribunal did not do so in the Award.

(b) Second, the Tribunal noted some of the other arguments raised by the Claimant in respect of the Clause 44.1 Issue. Ultimately, in light of the Tribunal’s conclusion that cl 44.1 does not apply when the FPSO was not turret moored at the Site, it was not necessary for the Tribunal to consider these other arguments. As explained in Pek Lian Guan (at [160]), it is not necessary for an adjudicator to address every point raised by the parties, and it is sufficient that the decisive or material issues have been considered and dealt with. Thus, it was sufficient that the Tribunal noted these other arguments, and the Tribunal did not have to go further to separately dispose of them.

In my judgment, these differences show that the Tribunal did in fact keep an open mind in considering the various arguments made in the Sub-Reference, and was not predisposed to resolve the Clause 44.1 Issue in the same way as in the Head Award. The Tribunal was cognisant of the differences between the two references and did not blindly adopt the analysis in the Head Award.

Taking this section as a whole, I am satisfied that the overall impression conveyed to a fair-minded and informed observer would not give rise to a reasonable suspicion of prejudgment, and that the differences were sufficient to quell any concerns that the Tribunal did not approach the issues in the Sub-Reference with an open mind.

(2) The Standby Rate Issue

Aside from the Clause 44.1 Issue, the Claimant also takes issue with the Tribunal’s analysis of the Standby Rate Issue. The Standby Rate Issue was yet another basis on which the Claimant relied to claim a reduced rate of hire under the Subcharter, and was in turn raised by the Defendant in the Head Reference. This issue was dealt with at paragraphs 130 to 156 of the Award, which broadly correspond to paragraphs 87 to 101 of the Head Award.

In my view, the similarities between the awards in this section again do not cross the threshold of apparent bias. The table below sets out the impugned paragraphs in the awards for comparison:

It is evident from the above passages that the primary basis on which the Tribunal disposed of this issue was the prejudice the Defendant would suffer if the Claimant were allowed to run its case on the Standby Rate Issue, given that this issue was only raised on the very last day of the hearings. While the parties were invited to tender further submissions on this issue, the Tribunal ultimately concluded that it was too late for the issue to be raised. The Tribunal did go on to consider the merits of the parties’ arguments, but the similarities in respect of the Tribunal’s discussion of the merits would weigh less heavily on the mind of a fair-minded and informed observer, given that it did not play a central role in the Tribunal’s determination of the issue.

In contrast, the Tribunal’s explanation as to why the Claimant was not permitted to raise the Standby Rate Issue was couched in sufficiently different language from the corresponding paragraph of the Head Award. Given that this was the decisive point on which the issue was disposed of, indications that the Tribunal exercised independent judgment here would naturally be accorded greater weight from the perspective of a fair-minded and informed observer, and would counteract any concerns that the Tribunal had approached the issue with a closed mind. Indeed, immediately after the aforementioned paragraph, as set out in the table below, the Tribunal proceeded to elaborate on its reasons for finding that prejudice would be caused to the Defendant. This analysis had no equivalent counterpart in the Head Award and demonstrated that the Tribunal had considered this point fully and independently from the Head Award.

As noted above (at [83]), a bare declaration that the Tribunal considered the issues independently would not ordinarily be sufficient to forestall concerns about apparent bias founded on extensive similarities between the awards. That was not, however, the case here. Indeed, the Tribunal’s exercise of independent judgment was evidenced by its very reasoning on the issue, which in turn lent credibility to its declaration. In the circumstances, a fair-minded and informed observer would regard this paragraph of the Award as a strong indication that there was no prejudgment amounting to apparent bias on the Tribunal’s part.

The Tribunal then proceeded to consider specific points raised by both parties in the Sub-Reference. This, again, pointed against a finding of apparent bias. For example, one of the disputed issues concerned the terms on which the parties agreed for the Claimant to pay hire at the standby rate on a provisional basis. The Tribunal resolved this evidential dispute in favour of the Claimant. While this did not ultimately affect the Tribunal’s decision that the Claimant’s case on the Standby Rate Issue could no longer be raised, these findings indicate or at least give the impression that the Tribunal kept an open mind and actively engaged with the issues specific to the Sub-Reference, and an informed observer would certainly place significant weight on this in his or her overall assessment of the Award.

Examining this section as a whole, I find that the similarities do not rise to the level of apparent bias. There was sufficient evidence that the Tribunal approached the Standby Rate Issue with an open mind and considered the arguments independently from the Head Award. In so far as the main basis on which the Tribunal disposed of this issue was the prejudice to the Defendant, the similarities in the Tribunal’s discussion of whether the standby rate of hire was in fact applicable did not move the needle. I am satisfied that a fair-minded and informed observer would not reasonably harbour a suspicion that there was bias on the part of the Tribunal in drafting this section of the Award.

(3) The late redelivery issue

While this section of the Award was not highlighted by the Claimant in its written or oral submissions, it was included in the table of comparison, and I consider it relevant to my overall assessment of the Award. The issue in respect of the late redelivery of the Vessel was dealt with at paragraphs 157 to 174 of the Award, which correspond to paragraphs 127 to 148 of the Head Award.

The Tribunal began by summarising the key findings made in the Head Award on this issue. While there were substantial similarities in the language used, those were to be expected, given that the Tribunal expressly stated that it was summarising the findings in the Head Award. Thus, no objection could be taken here. The Tribunal went on to state that it reached similar conclusions as in the Head Award, but this would not raise any concern so long as the Tribunal explained its own reasons for doing so.

This was, in fact, the case, as the Tribunal went on to explain its reasons for finding that there was late redelivery of the Vessel by the Claimant, and that the Claimant remained liable to pay hire. In this regard, the Tribunal dealt with and disposed of various arguments raised by the Claimant to support its position that there was in fact no breach of contract on its part. These paragraphs were not included in the Claimant’s table of comparison. They showed, to my mind, that the Tribunal had considered the issues and arguments with an open mind, and would indicate to a hypothetical observer that there was no bias.

The Claimant takes issue with the subsequent paragraphs of the Award, in which the Tribunal determined the relevant rates of hire as well as the dates on which they applied. In my view, the similarities between the awards here do not give rise to a reasonable suspicion of apparent bias. The reproduced material consisted mostly of either uncontroversial statements of the law, or a recounting of the arguments and evidence that were before both tribunals and relevant to both references. Although that evidence formed the basis for the Tribunal’s conclusion on the Defendant’s entitlement to hire on the relevant dates, when viewed in context, it is unlikely that a fair-minded and informed observer would accord significant weight to the similarities here in his or her overall assessment of the Award.

The Tribunal then reproduced paragraphs of the Head Award containing [Judge A]’s reasons for finding that the applicable market rate was US$115,000 and his calculation of the damages that the Owner was entitled to. These were reproduced in full. In my view, in so far as the Claimant included this paragraph in its table of comparison, it should be disregarded in assessing the extent of the copying. This was not an instance of copying, but rather an explicit reference to the Head Award with proper attribution of the source material. That would not generally be objectionable, so long as the Tribunal supplemented this with its own reasoning and did not rely wholly on external materials to justify its decision. Further, relevant differences from the source material should be noted where this would affect the reasoning or outcome, as was indeed the case here. The Tribunal noted that the losses suffered by the Defendant differed from that of the Owner, and adjusted the calculation of the damages accordingly.

Finally, the Tribunal went on to consider the Claimant’s other arguments for denying the Defendant’s late redelivery claim. In rejecting these arguments, the Tribunal relied on the summary of the evidence in the Head Award. Again, given that the evidence was before both tribunals and the summary was largely descriptive in nature, the similarities in the language used were to be expected, and would not raise any concerns to a fair-minded and informed observer.

I am satisfied that the Tribunal’s discussion in this section of the Award likewise does not point towards a finding of apparent bias.

Overall effect of the similarities between the awards

In assessing whether there is apparent bias, I do consider it necessary to weigh the allegations as a whole. Ultimately, the question is whether the overall impression conveyed by the Award would give rise to a reasonable suspicion of apparent bias from the perspective of a fair-minded and informed observer. The substance of the Claimant’s complaint was targeted at the process by which the Award was drafted. In this regard, the allegations of copying in respect of each section of the Award cannot be taken in isolation (see DJP at [67]). Even if the copied material in each section does not individually amount to apparent bias, it would still be possible for the cumulative effect of the similarities to give rise to a suspicion of bias.

In the present case, taking the Award as a whole, I find that the overall effect of the similarities between the awards would not give rise to a reasonable suspicion that the Tribunal had approached the issues in the Sub-Reference with a closed mind. As explained, a significant portion of the impugned paragraphs dealt with undisputed background facts and was primarily descriptive in nature (see [89]–[90] above). Even in the Tribunal’s analysis of the legal issues, many of the alleged similarities related to the Tribunal’s description of the evidence (see [116] and [135] above) or to points which were ultimately not decisive (see [119] and [125]–[126] above). The implication of this was that the extent, nature and effect of the copying had been somewhat overstated by the Claimant. On the flip side, there was ample evidence to show that the Tribunal was alive to the differences between the Head Reference and Sub-Reference, and considered the arguments that were specifically raised in the Sub-Reference separately and independently (see [119]–[120], [128] and [134]–[135] above). This would help to counteract concerns of prejudgment, and I accorded this significant weight in my overall assessment of the Award. While the threshold for apparent bias to be made out is not a high one, and would be met if a fair-minded and informed observer would think that bias is possible in the circumstances (see Pek Lian Guan at [106]), I am satisfied that this was not made out in the present case.

Thus, I decline to set aside the Award on the ground of apparent bias.

There was no breach of the fair hearing rule

I turn next to the alleged breaches of the fair hearing rule.

As explained (see [51] above), the Claimant’s complaint engaged two aspects of the fair hearing rule, namely: (a) whether the Tribunal properly applied its mind to the arguments and evidence before it; and (b) whether the Tribunal arrived at its decision on a basis that was not contemplated by the parties (ie, by relying on the Head Award) without giving them the opportunity to make submissions upon it.

While these two aspects of the fair hearing rule are conceptually distinct from the rule against bias, the material on which the complaints were based was largely the same, namely, the alleged copying from the Head Award. There was thus considerable overlap between the issues, and for similar reasons, I find that there was no breach of the fair hearing rule.

I address each aspect of the fair hearing rule in turn.

The Tribunal properly applied its mind to the matters in the Sub-Reference

As explained (see [58] above), the test of reasonable suspicion applies to the fair hearing rule in the arbitral context. The question under this first aspect of the fair hearing rule is therefore whether the similarities between the awards would cause a fair-minded and informed observer to reasonably suspect that the Tribunal had not properly applied its mind to the matters in the Sub-Reference.

The Claimant relies on essentially the same arguments as those made in support of the allegation of apparent bias. In sum, the Claimant argues that the similarities between the awards were extensive, amounting to more than half of the Award, and extended to findings of fact and analysis of contested issues. This raises grave doubts as to whether the Award truly represented the product of a process of reasoned inquiry and deliberative decision-making.

The Defendant likewise raises the same points in response. In sum, the Defendant argues that the similarities were to be expected, given the overlap in the issues, arguments and evidence before both tribunals. Further, inter-tribunal discussions were permitted by the parties under the Concurrency Order. In such circumstances, the Defendant contends that the similarities between the awards do not mean that the Tribunal failed to properly apply its mind to the matters in the Sub-Reference.

For largely the same reasons as above, I am satisfied that a fair-minded and informed observer would not reasonably suspect that the Tribunal failed to properly apply its mind to the matters in the Sub-Reference.

Regarding the Tribunal’s findings of fact, I find that there is sufficient evidence that the Tribunal judiciously considered the evidence and arguments presented by the parties. As explained (see [90] above), most of the impugned paragraphs in this section of the Award were descriptive in nature and dealt with uncontested facts, such as the series of events that took place before, during and after the Incident. The extent of the similarities was thus somewhat overstated by the Claimant. While there were instances where the Tribunal went beyond mere description and evaluated the quality of the evidence, such as the Captain’s testimony, these were minimal and ultimately immaterial to the resolution of the dispute (see [105]–[106] above). The similarities between the awards in this regard were therefore insufficient to give rise to a reasonable suspicion that the Tribunal had failed to properly assess and weigh the evidence before it.

As for the Tribunal’s reasoning on the contested issues, I similarly find that there is sufficient evidence that the Tribunal properly engaged with the arguments raised by both sides and exercised independent judgment in deciding the issues in the Sub-Reference. I highlight the key points as follows:

(a) The Tribunal’s conclusions on certain issues and arguments were not entirely the same as those in the Head Award (see [119] above). This is particularly significant where the differences affected the outcome of the case (see [134] above).

(b) The Tribunal was alive to the differences between the arguments raised in the Sub-Reference and those raised in the Head Reference, and tailored its analysis accordingly. Where arguments were noted but not specifically disposed of, this was because it was unnecessary for the Tribunal to consider them. It is sufficient that the Tribunal dealt with the decisive or material issues (see [120] and [126] above).

(c) The Tribunal specifically addressed issues and arguments raised only in the Sub-Reference (see [128] and [132] above).

I also accept the Defendant’s submission that the similarities between the awards must be viewed in light of the overlap in the issues, arguments and evidence before both tribunals. Some degree of similarity was to be expected and cannot, without more, give rise to a reasonable suspicion that the Tribunal failed to properly apply its mind to the matters in the Sub-Reference. That said, this argument cannot be taken too far. The fact that inter-tribunal discussions were permitted by the parties under the Concurrency Order, or that both tribunals were confronted with the same issues, does not mean that the Tribunal is entitled to simply adopt the findings and reasoning in the Head Award. The rules of natural justice require arbitral tribunals to independently weigh the arguments raised by both sides. Extensive similarities between related awards will therefore give rise to the inference that the tribunal failed to do so, regardless of the overlap between the proceedings or the manner in which the proceedings were conducted. Whether that threshold is crossed will depend on the particular circumstances of the case. On the facts here, it was not, for the reasons that I have given.

Therefore, the first aspect of the fair hearing rule was not breached.

The Tribunal did not rely impermissibly on the Head Award

I turn to the second aspect of the fair hearing rule. The test of reasonable suspicion likewise applies here (see [58] above).

The nub of the Claimant’s complaint under this aspect of the fair hearing rule is the Tribunal’s alleged reliance on the Head Award as the basis of its decision in the Sub-Reference. Such reliance was said to be impermissible as the parties did not have the opportunity to consider and make submissions on the potential implications of the Head Award on the issues in the Sub-Reference. Even if the Claimant did not object to the inter-tribunal discussions that took place, the Claimant argues that the parties could not have contemplated that the Tribunal would simply reproduce the analysis in the Head Award and put it forward as its own.

The Defendant contends that any reliance on the Head Award was both reasonable and fair. The Tribunal had previously referred to [Judge A]’s views in its first partial award, to which the Claimant had not objected. The Tribunal also made clear to the parties that it intended to refer to the Head Award, and no objections were raised at the time. The Defendant therefore submits that the Claimant must have known that the Tribunal was likely to refer to the Head Award in arriving at its decision, and cannot now complain that the fair hearing rule was breached. The Defendant further argues that the Head Award cannot be characterised as extraneous material, given that the same issues, evidence and arguments were before both tribunals.

In my view, there were sufficient differences between the two awards, such that a fair-minded and informed observer would not reasonably suspect that the Tribunal blindly relied on the Head Award as the sole basis for its decision in the Sub-Reference. I accept the Claimant’s submission that if the reliance on the Head Award amounted to unthinking and wholesale adoption, this would be impermissible and in contravention of the second aspect of the fair hearing rule. This is because the Tribunal was obliged to exercise independent judgment in deciding the issues in the Sub-Reference, and could not simply abdicate its adjudicative function by blindly reproducing the analysis in the Head Award. In the circumstances of the present case, however, it was permissible for the Tribunal to refer to and consider the analysis and findings in the Head Award in arriving at its decision, provided that the Tribunal can still be said to have exercised its own independent judgment on the issues in the Sub-Reference. I should note that the mere fact that portions of the Head Award were adopted or reproduced does not on its own engage the concern identified in Pek Lian Guan. What is objectionable is not copying alone. What must be emphasised is that the concern of the courts is that the adoption of another decision-maker’s analysis may show that the adjudicator failed to independently consider and determine the issues. Thus, the crucial question is whether the Award, viewed as a whole, demonstrates that the Tribunal exercised its own judgment on the issues in the Sub-Reference. If it did, the fact that the Tribunal ultimately agreed with and adopted portions of the reasoning in the Head Award would not, in itself, amount to a breach of natural justice.

In DJP, the complaint was that the tribunal had impermissibly relied on material derived from the parallel arbitrations to which the parties did not have access and could not address. Those arbitrations had been heard separately by a differently constituted tribunal and involved slightly different parties. It was in those circumstances that the Court of Appeal found that it was not within the parties’ contemplation for the tribunal to rely so heavily on such extraneous material in making its decision (DJP at [80]–[82]).

In the present case, however, both references were heard concurrently. All the arguments and evidence adduced in one proceeding would have been equally accessible to the tribunal and the parties in the other. The extent of overlap in the issues between the references was such that the parties even adopted the position and arguments of their counterparts in the other reference on occasion, as was the case in respect of the Clause 44.1 Issue and the Standby Rate Issue. Further, as the Defendant points out, the Claimant has not taken issue with the inter-tribunal discussions that took place. Some exchanging of views between the tribunals on these common issues must therefore have been within the parties’ contemplation. In these circumstances, the Head Award did not constitute extraneous material in the sense envisaged in DJP, and the parties must be taken to have accepted that, in deciding the issues in the Sub-Reference, some reference to and consideration of the findings and analysis in the Head Award was justified, subject to the caveat that the Tribunal must still have exercised its own separate judgment.

It follows that the essential question is whether the Tribunal had relied on the Head Award to such an extent that it cannot be said to have exercised its own separate judgment. That would clearly not have been within the parties’ contemplation, and if that were indeed the case, the Tribunal would have been required to afford the parties the opportunity to address the Head Award.

Consistent with my conclusions above, I find that there was sufficient evidence that the Tribunal had considered the issues and arguments in the Sub-Reference separately and independently from the Head Award. While the Tribunal agreed with the reasoning in the Head Award and adopted passages from it at times, it was not inherently wrong for the Tribunal to resolve the issues in the Sub-Reference in the same manner (DJP at [71]). The Tribunal was aware of the differences in the arguments raised and, where appropriate, addressed those arguments separately. The Claimant did not point me to any instance where the Tribunal reproduced analysis from the Head Award that was irrelevant in the context of the Sub-Reference. The overall impression conveyed by the Award was therefore not one of blind adoption of the analysis in the Head Award, but rather, one where the Tribunal referred to the analysis in the Head Award and consciously arrived at the same conclusion in the exercise of its own independent judgment.

Accordingly, the second aspect of the fair hearing rule was not breached as well.

The Claimant has not suffered any prejudice

I turn to the issue of prejudice.

Given my finding above that there was no breach of natural justice, it is not strictly necessary for me to consider the issue of prejudice. Nevertheless, as the parties did submit on this issue before me, I address it briefly here.

In cases involving breaches of natural justice, it is well-established that the party seeking to set aside an award must show that the breach caused actual or real prejudice (Soh Beng Tee at [86] and [91]). This requires something more than mere technical unfairness, and although it is not necessary to show that a different outcome would have been reached by the tribunal if there had been no breach, the complainant must show that the breach could reasonably have made a difference to the arbitrator. As explained in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd [2013] 1 SLR 125 (“L W Infrastructure”) at [54]:

The discussion of the requirement of prejudice in the above cases took place in the context of alleged breaches of the fair hearing rule. These involved allegations that the parties were denied the opportunity to address the tribunal on specific issues (see L W Infrastructure at [81], [88] and [91]; Soh Beng Tee at [94]–[95]). For prejudice to be made out in such cases, it must be shown that the issues on which the parties were not heard were material and that this could reasonably have made a difference to the outcome of the arbitration.

In cases involving allegations of apparent bias, however, the cases have not analysed prejudice as a separate element that must be made out to set aside the award. For example, in DJO v DJP [2024] SGHC(I) 24 (“DJO”), the issue of prejudice was raised at first instance. While the court noted the requirement for actual or real prejudice to be shown and the claimant’s argument that such prejudice had been made out (DJO at [90(e)] and [102]), the court did not go on to analyse the issue of prejudice after finding that there was apparent bias. The award was set aside without any express finding of prejudice. On appeal, the Court of Appeal agreed that the allegation of apparent bias had been made out and affirmed the setting aside of the award for breach of natural justice, without undertaking a separate inquiry into the issue of prejudice (DJP at [79] and [84]).

The Claimant submits that the approach taken in DJP and DJO may be understood on the basis that where apparent bias has been established, prejudice will ordinarily be inferred, unless there are circumstances to rebut this inference. The rationale for this is that an allegation of apparent bias, if made out, infects the tribunal’s entire decision-making process from the outset. The prejudice lies in the corruption of that process itself, rather than in any consideration of how the outcome might have differed. This may be contrasted with cases involving a breach of the fair hearing rule, where the allegation is that the tribunal did not allow the parties to be heard on discrete issues, which may or may not affect the overall outcome of the arbitration.

To support this proposition, the Claimant relies on the English decision of Aiteo Eastern E & P Co Ltd v Shell Western Supply and Trading Ltd [2024] EWHC 1993 (Comm) (“Aiteo”). In this case, the English High Court held that substantial injustice, the English equivalent of “prejudice” under s 24(b) of the IAA, would “normally be inferred in a case where there is apparent bias on the part of the arbitral tribunal” (Aiteo at [221]).

I accept the Claimant’s submission. As explained in RAV Bahamas Ltd v Therapy Beach Club Inc [2021] AC 907 (“RAV Bahamas”) at [35], there are some irregularities which are so serious that substantial injustice is “inherently likely” or “likely in the very nature of things” to result. In such cases, it may be inferred from the nature of the irregularity itself that substantial injustice would have been caused to the aggrieved party (RAV Bahamas at [36]), and the burden is on the opposing side to show that there was in fact no substantial injustice, ie, that the outcome of the arbitration would have been the same regardless of the irregularity (RAV Bahamas at [37]). One example of an irregularity that would justify such an inference would be where the arbitrators failed to deal with key issues between the parties (RAV Bahamas at [35]–[36]).

This reasoning applies with equal force in the context of the IAA. In my judgment, where the breach of natural justice is sufficiently serious, it would be self-evident that actual or real prejudice has been caused to the aggrieved party. In such circumstances, prejudice may be readily inferred, and the evidential burden would lie on the opposing side to rebut that inference. A finding of apparent bias which taints the tribunal’s decision-making process as a whole would fall within this limited category of breaches of natural justice where prejudice may be inferred as a matter of course (Aiteo at [223]). To be clear, this does not mean that the requirement of prejudice is dispensed with in such cases. Rather, this approach simply recognises that prejudice may be inferred in certain situations where the breach in question is sufficiently serious, and places the evidential burden on the opposing side as a matter of practicality. I accept the Claimant’s submission that DJP and DJO may be understood on the basis that the finding of apparent bias was sufficient, without more, to justify an inference of prejudice, and there were no circumstances to rebut that inference.

In cases where an allegation of apparent bias has been made out, prejudice may be readily inferred, and the evidential burden is on the other side to point to circumstances which rebut that inference. As for the circumstances which could possibly rebut such an inference, it suffices for me to note the following observations in Aiteo (at [223] and [225]):

The Claimant did not waive its right to object on the ground of apparent bias

Finally, I turn to the issue of waiver. Given my finding above that there was no breach of natural justice, it was likewise not strictly necessary for me to address this issue.

The Defendant argues that the Claimant had, by its conduct, waived its right to object on the ground of apparent bias. The Claimant had agreed to the terms of the Concurrency Order. The Claimant also failed to object to the inter-tribunal discussions that took place throughout the hearings. Further, the Tribunal expressly acknowledged in its first partial award in the Sub-Reference that it had considered the first partial award in the Head Reference in coming to its decision. Despite all this, there was no complaint of apparent bias made by the Claimant at any point in the proceedings. Accordingly, it was too late for the Claimant to now complain of apparent bias in the Award arising from the inter-tribunal discussions.

I do not accept this submission. In my judgment, the Claimant’s acceptance of or failure to object to the occurrence of inter-tribunal discussions could not be construed as a waiver of its right to object on the ground of apparent bias. As explained above (at [27]), the Claimant does not take issue with the conduct of the arbitrations nor with the occurrence of inter-tribunal discussions. The Claimant’s complaint was only targeted at the process by which the Award was drafted. In this regard, even if the Claimant impliedly consented to the inter-tribunal discussions, this does not mean that the Claimant consented to the Tribunal simply adopting the analysis in the Head Award and reproducing it as its own in the Award. It was still incumbent on the Tribunal to exercise independent judgment and consider the issues in the Sub-Reference afresh. Viewed in this light, the Claimant did not have an earlier opportunity to raise its allegation of apparent bias before the Tribunal. The allegation only crystallised when the Award was issued and the Claimant had the opportunity to review it. Thus, the Claimant cannot be said to have waived its right to object on this ground by its conduct. The Claimant’s alleged acceptance of the inter-tribunal discussions was beside the point.

The authorities relied on by the Defendant may be readily distinguished. First, the Defendant relies on the Court of Appeal’s decision in China Machine New Energy Corp v Jaguar Energy Guatemala LLC [2020] 1 SLR 695 (“China Machine”), where it was held (at [170]) that:

Thus, where the allegation of breach of natural justice is targeted at the process by which the arbitration was conducted, the onus is on the complaining party to raise its procedural objection before the tribunal, so that the tribunal has the opportunity to remedy it. If no objections are raised, the complaining party will be taken to have waived its right to object on that basis. However, that is not the case here. The Claimant’s allegation of breach of natural justice was targeted at the process by which the Award was drafted. This being the case, the only opportunity the Claimant would have had to raise its objection was after the Award was issued and the Claimant had the opportunity to scrutinise it against the Head Award (see [173]). Prior to that, there was no basis for the Claimant to raise its objection of apparent bias based solely on how the arbitrations had been conducted. Although the arbitrations were heard concurrently, the proceedings remained separate and there was no consolidation of any kind. At all times, it was contemplated that the tribunals would issue separate awards. The Tribunal did suggest that it was minded to invite the parties to tender further submissions upon the publication of the Head Award as to whether the analysis in the Head Award would affect the issues in the Sub-Reference (see [19] above). As it was, this did not occur, as the tribunals decided to issue their awards simultaneously. In my view, however, this suggestion alone would not have raised any concerns of apparent bias on the Claimant’s part, such that the Claimant would have been expected to raise its objection at that stage.

Second, the Defendant relies on ASM Shipping Ltd of India v TTMI Ltd of England [2005] EWHC 2238 (Comm) (“ASM Shipping”), which was cited in China Machine itself. In ASM Shipping, the English High Court found that there was apparent bias based on the relationship between one of the arbitrators (“X”) and a key witness (at [41]–[44]). This was discovered by the complaining party during the course of the proceedings itself, at which point X was asked to recuse himself. X refused to do so. Instead of applying to the court to have X removed, the complaining party allowed the arbitration proceedings to continue. Although they maintained their objection in their correspondence with the other side, this was not sufficient, and the English High Court found that the complaining party had, by its conduct, waived its right to object to X’s continued involvement on the ground of apparent bias (at [48]–[49]).

ASM Shipping does not assist the Defendant. The allegation of apparent bias in that case was again based on facts known to the parties while the proceedings were still ongoing. It was thus possible for the objection to be raised before the tribunal, and if that proved unsatisfactory, before the court. In the present case, the basis for the Claimant’s allegation of apparent bias only came to light after the Award was released. The allegation could not have been raised at an earlier stage.

Hence, the Claimant’s conduct did not amount to a waiver of its right to object on the ground of apparent bias.

Conclusion