Skip to content
laws.sgby aturio
Grounds publishedDecided 26 Aug 2026
Contents

Singapore International Commercial Court

The Tata Power Co Ltd v Kleros Capital Partners Ltd and other matters

Feedback & support

[2026] SGHC(I) 15Case no. Originating Application Nos 13, 24 and 25 of 2025

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

  1. Introduction

  2. [1] In the context of arbitration proceedings, the twin pillars of natural justice, namely the right to a fair hearing and by an independent unbiased tribunal, mark out the guardrails within which a fair adjudicative process steers its course. Both of these pillars ensure that the arbitral process does not sail beyond its proper bounds in terms of ensuring fair and due process. Fairness, however, is not synonymous (nor is it to be confused) with procedural perfection, soundness of reasoning or correctness of the outcome. For that reason, our courts have consistently emphasised that only irregularities that are egregious and occasion real and proven prejudice justify judicial intervention. Unless the alleged breaches have deprived the applicant of a meaningful opportunity to be heard or affected the substance of the decision, the court ought not to set aside or disturb an otherwise sound arbitral determination.

  3. [2] The applicant in SIC/OA 13/2025, SIC/OA 24/2025 and SIC/OA 25/2025 (“OA 13”, “OA 24” and “OA 25” respectively) invokes both limbs of natural justice in support of its applications. For the reasons that follow, we dismiss all three applications.

  4. Facts

  5. [3] The applicant is The Tata Power Company Limited (“Tata”), a listed company incorporated in India and which forms part of a leading Indian industrial group with its principal businesses in power generation and coal mining. The respondent, Kleros Capital Partners Limited (“Kleros”), is a company incorporated in the British Virgin Islands established as an investment advisory firm specialising in the facilitation of cross-border mergers and acquisitions, leveraged buyouts and strategic investment alliances. Kleros was founded by two investment managers, Mr Ingolfur Skulason (“Mr Skulason”) and Mr Probodh Palit (“Mr Palit”). Mr Skulason and Mr Palit both provided evidence in the form of witness statements in the present proceedings.

  6. [4] The dispute before us arises from arbitral proceedings commenced on 30 November 2020 by Kleros against Tata (“Arbitration”). The arbitral tribunal comprised Prof Lawrence Boo (“Prof Boo”) as the presiding arbitrator and Mr A K Ganguli SA (“Mr Ganguli SA”) and Mr Stuart Isaacs KC (“Mr Isaacs KC”) as co-arbitrators, nominated by Tata and Kleros respectively. The Arbitration was bifurcated into two phases – the first phase concerned liability ie, whether Tata had breached its obligations under two non-disclosure agreements (“NDAs”), and the second concerned causation and quantum.

  7. [5] In the Arbitration, Kleros alleged that Tata had breached the NDAs entered into by the parties, and sought as its primary claim, damages for the loss of the chance to invest and/or participate in the project concerned as the principal investor and shareholder and to profit therefrom. In its Liability Award, the Tribunal unanimously found Tata to have breached the NDAs in a number of respects. The Liability Award is not challenged by Tata. In the Quantum Award, Prof Boo and Mr Isaacs KC formed the majority (“Majority”), with Mr Ganguli SA dissenting (“Dissent” or “Minority”). In the Quantum Award, the Majority awarded Kleros damages amounting to approximately US$490m representing the value of that loss of chance.

  8. Background to the applications

  9. [6] The Arbitration arose from two NDAs dated 21 September 2013 and 16 September 2014 respectively. Each NDA contained an arbitration clause at clause 11, pursuant to which any dispute was to be arbitrated in Singapore pursuant to the Arbitration Rules of the Singapore International Arbitration Centre (6th ed, 1 August 2016) (“SIAC Rules 2016”).

  10. [7] It was alleged by Kleros that through contacts it had developed and who possessed geological expertise relating back to the Soviet era, Kleros had obtained knowledge of a substantial amount of coal deposits in Russia estimated at approximately 1.1b tons, in what is known to the parties as the Krutogorovo deposit (“Deposit”). Kleros conceived of a large-scale project to extract the coal through surfacing, mining, washing, processing and transportation by road and barge. As the area surrounding the Deposit lacked essential infrastructure, transportation networks, power supply, electrical facilities and accommodation, was situated far from the sea and other transport links, and also because of the need for significant financial support and the necessary permits, the project required buy-in from the senior levels of the Russian federal government.

  11. [8] On 27 August 2013, Kleros approached Tata as a potential co-investor and informed Tata that it would soon acquire a mining licence for the Deposit. In accordance with its standard practice of conducting detailed due diligence, including a commercial and technical evaluation before committing to any investment opportunity, Tata sought further information from Kleros in respect of the Deposit. This led to the parties entering into the first NDA for a term of one year, expiring on 20 September 2014 (“2013 NDA”). Following this, Tata’s representatives concluded that the investment opportunity required further evaluation before its commercial and technical viability could be assessed.

  12. [9] On 16 September 2014, Kleros and Tata entered into a second NDA for a term of three years, expiring on 15 September 2017 (“2014 NDA”). The 2014 NDA was later found by the Tribunal to be an extension of the 2013 NDA.

  13. [10] In the course of the parties’ dealings under the NDAs, Kleros also shared with Tata information regarding, inter alia, the Deposit and the auction process for obtaining the mining licence. The NDAs imposed upon Tata two overarching obligations: first, to maintain the confidentiality of, and not to misuse, the confidential information as defined in clause 1.5 of the NDAs; and second, an obligation of non-circumvention and good faith in its dealings with Kleros. The relevant clauses in both NDAs, which were largely identical, are reproduced below:

  14. [11] In the second half of 2015, the parties’ relationship began to strain following disputes over who should lead the bid for the mining licence and the respective levels of equity participation – matters which were not covered by the NDAs and would have to be resolved in any subsequent joint venture agreement. In particular, Kleros sought an equity stake of between 26% and 60%, whereas Tata was only prepared to offer Kleros up to a 10% equity stake. On 31 March 2016, a meeting was convened between Tata and Kleros, which Kleros submits effectively brought the relationship between the parties to an end.

  15. [12] It is not presently in dispute that, while the 2014 NDA was still in force and around the time the parties’ relationship began to come under strain in the second half of 2015, Kleros began approaching other potential partners, at least preliminarily, to work with it on the project in place of Tata. Kleros approached, for example, the Japanese Organisation for Metals and Energy Security, which put Kleros in touch with the Marubeni Corporation, and also a Vietnamese broker Mr Vinh Pham, Hannam and Partners, and Red Star UK. Kleros was, however, unable to find a replacement partner.

  16. [13] Eventually, Kleros did not submit a bid to the Russian federal government for the mining licence in the public auction held on 22 December 2017. Between 2017 and 2019, Kleros wound down its operations in the Russian Federation. It also stopped paying its annual filing fee to the BVI Financial Services Commission and was subsequently removed from the Register of Companies.

  17. [14] After the 2014 NDA expired on 15 September 2017, Tata, through a Russian subsidiary, FENR, submitted a bid to the Russian federal government for the mining licence in the public auction conducted in December 2017. FENR was granted the mining licence on 22 January 2018 for a term of 25 years, ending on 22 January 2043. Tata later determined, however, that the project was not viable. To Tata’s knowledge, the project was never developed by any other party.

  18. [15] In 2021, after commencement of the Arbitration by Kleros (see below at [16]) Tata offered the mining licence to Kleros at the same price at which it (through FENR) had bid for and obtained it. Kleros rejected the offer. On 28 January 2022, FENR submitted a request to the Russian federal government to surrender the licence without having utilised it. The Russian federal government accepted the surrender request on 25 April 2022.

  19. [16] Kleros was restored to the company register in the British Virgin Islands on 17 November 2020, and shortly after, commenced two arbitrations against Tata by way of a Notice of Arbitration dated 30 November 2020 in respect of each of the NDAs. Tata filed its Response to the Notice of Arbitration on 5 January 2021, rejecting the alleged breaches, and on 11 February 2021 the SIAC consolidated the two arbitrations into the Arbitration. Kleros’s case was that Tata had breached the NDAs by misusing the confidential information disclosed thereunder and by acting in bad faith in excluding Kleros from the project.

  20. [17] As prefaced above at [4], the Arbitration was bifurcated with liability being determined first. The Liability Award was issued by the Tribunal on 26 September 2023 as SIAC Award No. 122 of 2023. The Tribunal found unanimously that Tata was liable for a number of breaches of the NDAs – specifically, that Tata had misused confidential information in breach of clause 3.3 of the NDAs, circumvented Kleros in breach of clause 19 of the 2014 NDA and breached its contractual duty of good faith to Kleros. The Tribunal found that the breaches included Tata making several incorrect statements to Kleros which led Kleros to believe that Tata had not disclosed confidential information to any third party, and which in turn led Kleros – being unaware of Tata’s true conduct – to continue dealing with Tata while Tata was in fact planning and making arrangements to push Kleros out of the picture and acquire the mining licence for itself to the exclusion of Kleros.

  21. [18] After the Liability Award was issued, the Arbitration continued to the second phase to determine causation and damages. On 28 October 2024, the Tribunal declared the Arbitration closed pursuant to Rule 32.1 of the SIAC Rules 2016, and on 4 December 2024 submitted a draft final award to the Registrar of the SIAC Court pursuant to Rule 32.3 of the SIAC Rules 2016.

  22. [19] On 21 January 2025, following the Tribunal’s submission of the draft Quantum Award on 4 December 2024, Tata filed a Notice of Challenge with the SIAC Registrar under Rules 14 and 15 of the SIAC Rules 2016, challenging the appointments of Prof Boo and Mr Isaacs KC. The grounds of the challenge were that:

  23. [20] On or about 28 January 2025, the SIAC Registrar ordered a suspension of the Arbitration pending resolution of Tata’s challenge. The parties thereafter exchanged submissions on the challenge in the following sequence. On 28 January 2025, Prof Boo responded to the SIAC’s invitation for comment by referring to his earlier email responses to Tata, while Mr Isaacs KC asserted the challenge to be “wholly without foundation and without merit”. Kleros filed its response on 7 February 2025, asserting that the challenge should be dismissed. On 10 February 2025, Squire Patton Boggs wrote to the SIAC regarding Tata’s reservation of rights in this challenge, in which Tata had stated that it “expressly reserves the right to particularise, add to, amend and/or supplement the factual and legal matters set out herein, and to provide further grounds, evidence and authority in support of its challenge”. On 16 February 2025, Mr Ganguli SA then provided comments on the Notice of Challenge and Kleros’s response. The following day, Kleros made a clarification to one of the paragraphs of its response. Tata’s reply to Kleros’s response followed on 21 February 2025, with Kleros responding in turn on 24 February 2025 seeking leave to respond to new allegations said to be made in Tata’s response. On 25 February 2025, Tata objected to Kleros’s request. The SIAC granted Kleros leave to do so and also granted Tata and the Tribunal the right to provide responsive comments.

  24. [21] A further round of submissions ensued in March 2025. Tata’s comments of 3 March 2025 were directed principally at the alleged ex parte communications between Kleros and Mr Isaacs KC, and to which allegations Mr Isaacs KC responded on the same date. Tata made additional submissions on the alleged ex parte communications on 4 March 2025, with Prof Boo providing his comments on 6 March 2025. On 6 March 2025, the SIAC informed the parties that no further comments or submissions would be considered in respect of the challenge without leave from the Registrar or unless requested by the SIAC Court of Arbitration. Nonetheless, on 20 March 2025, Tata made further submissions regarding the payment of deposits on behalf of Kleros by “Omni Bridgeway (Fund 5) Cayman” and “Omni Bridgeway (Fund 5) Cayman Investment”. On the same day, Prof Boo issued further responses arising from a communication from Tata’s counsel the previous day. Further submissions from both Kleros and Tata followed on 24 March 2025.

  25. [22] Tata’s challenge was considered and dismissed by the SIAC Court on 5 June 2025 in a written reasoned decision, and following which, the suspension of the Arbitration was lifted. On 1 July 2025, the Quantum Award was issued as Award No. 094 of 2025. It comprised two parts – the decision of the Majority, and the Dissent.

  26. [23] On 4 July 2025, Tata filed OA 13 to challenge the appointments of the Majority and the SIAC Court’s decision. When OA 13 was filed, Tata’s grounds of challenge were as follows. First, that Prof Boo and Mr Isaacs KC each failed to disclose their respective appointments in unrelated matters involving Kleros’s legal counsel Squire Patton Boggs, and that this failure gave rise to justifiable doubts as to their independence and impartiality. In respect of Prof Boo specifically, the alleged non-disclosure concerned his appointment in May 2024 by the Chairman of the ICSID Administrative Council to preside over an ad hoc annulment committee in the case of Rand Investments Ltd v Republic of Serbia. Further, Tata submitted that there were ex parte communications between Mr Isaacs KC and Squire Patton Boggs at the outset of the Arbitration, contending that these raised further doubts as to Mr Isaacs KC’s independence and impartiality. Lastly, Tata also contended that Prof Boo had a close connection with Mr Benjamin Hughes (“Mr Hughes”). Mr Hughes was a member of the investment committee of Omni Bridgeway Limited – the third-party funder behind Kleros – and who, Tata alleges, was likely involved in this case even prior to its inception. Tata also relied on the fact that both Prof Boo and Mr Hughes have served as adjunct professors in the Faculty of Law at the National University of Singapore.

  27. [24] On 20 July 2025, Tata sought corrections to the Quantum Award, and after Kleros confirmed its absence of objection on 23 July 2025, these corrections were made by the Tribunal in a Memorandum of Corrections dated 2 August 2025, registered as Award No. 094(a) of 2025.

  28. The present applications

  29. [26] OA 13, OA 24 and OA 25 are all applications brought by Tata. As explained above, OA 13 is Tata’s challenge to the appointments of Prof Boo and Mr Isaacs KC as arbitrators in the Arbitration on the ground of apparent bias, brought pursuant to Article 13(3) of the UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006) (“Model Law”), read with s 3 of the International Arbitration Act 1994 (“IAA”). OA 24 and OA 25 are Tata’s applications to set aside, respectively, the Quantum Award and Final Award, whether in their entirety or in part, on the basis of alleged breaches of natural justice (ie, infra petita challenges / breach of agreed arbitral procedure) and/or apparent bias.

  30. [27] OA 24 is advanced on the following grounds: first, in its supporting witness statement, Tata contends that the Majority breached the rules of natural justice and/or the fair hearing rule under s 24(b) of the IAA, and/or acted contrary to the agreed procedure under Article 34(2)(a)(iv) of the Model Law, by reason of the following:

  31. [28] Second, Tata submits that the Majority exceeded the scope of the submission under Article 34(2)(a)(iii) of the Model Law by making a finding on damages that went beyond the relief sought by Kleros in its pleadings. Third, it submits that the Majority’s breaches of natural justice and its non-disclosures give rise to a reasonable suspicion or apprehension, in a reasonable, fair-minded and informed observer with knowledge of the relevant facts, that a fair hearing was not possible.

  32. The Tribunal’s findings

  33. [31] At this juncture and before going any further, it is important to set out in greater detail the Tribunal’s findings in the Liability Award and Quantum Award. This will provide the background for our discussion below on whether the Majority did (or did not) decide the Causation Issue, Remoteness Issue and Mitigation Issue.

  34. [32] It is important to recall that the NDAs placed the following obligations on Tata. Clause 3.3 of the 2014 NDA restricted Tata to using the confidential information (as defined in the NDAs) solely for the purpose of evaluating a potential business transaction with Kleros, and prohibited Tata from disclosing the confidential information except in accordance with the terms of the 2014 NDA or with prior written authorisation. Clause 19 of the 2014 NDA went further – it prohibited Tata from exploiting any aspect of the confidential information in a manner that circumvented Kleros’s economic interest. Beyond these express provisions, the Tribunal also found that Recital B to the NDAs gave rise to a contractual duty of “mutual trust and confidence”, requiring that each party “rely on the other in safekeeping each [other’s] interests as they explore possible future engagement in the [p]roject” and to “act in good faith vis-à-vis the other as understood in English law”. English law was the express choice of law in both NDAs.

  35. [33] In the Liability Award, the Tribunal found that Tata had not breached its obligations under clauses 3.1 and 3.2 of the NDAs to safeguard and restrict disclosure of the confidential information, given that Tata had put into place further non-disclosure agreements when entering into discussions with other entities in connection with the project. Nonetheless, the Tribunal identified three categories of breaches of the NDAs by Tata. The first was that Tata misused the confidential information to advance the project without Kleros and with the intention of excluding Kleros. Tata’s conduct was found to be in breach of clauses 3.3 and 20 of the 2013 NDA, clauses 3.3 and 19 of the 2014 NDA, as well as Tata’s contractual duty of good faith and confidence arising from Recital B to the NDAs. The second was that Tata made false statements to Kleros in breach of that same contractual duty. The third was that Tata concealed from Kleros its intention to exclude and supplant Kleros in the Project, again in breach of clauses 3.3 and 20 of the 2013 NDA, clauses 3.3 and 19 of the 2014 NDA, and the duty of good faith and confidence under Recital B.

  36. [34] These findings of breaches on Tata’s part rested on a series of underlying factual findings. First, findings that Tata excluded Kleros from its discussions and dealings with third parties, encompassing and including Tata drawing on Kleros’s local connections to secure site visits and meetings with Kamchatka government officials and local municipality personnel, feasibility studies conducted with parties like Geosolutions LLC, ROSMORPORT and KPMG, non-disclosure agreements concluded with parties like Sistema JSFC, RDIF, Sberbank and FondVostok to exploit the confidential information without Kleros’s prior consent, and meetings with the Far East Development Ministry from which Kleros was excluded – including by Tata misleading Kleros into believing that a number of meetings held in Mumbai in October 2015 were for unrelated purposes. Second, findings that Tata intended to remove Kleros from the Project entirely, as evidenced by a memorandum of understanding with the RDIF dated 11 December 2014, pursuant to which Tata continued to deal with the RDIF with a view to making it the joint venture partner to the exclusion of Kleros, and Tata’s dealings with Sistema in the knowledge that Sistema sought to exclude Kleros. Third, findings that Tata took active steps to prevent Kleros from participating in the project – in this regard, Tata worked with Russian officials to secure a direct allocation of the mining licence to Tata and, when that proved unsuccessful, Tata engineered repeated postponements of the auction while ensuring no competing bidder would participate. Cutting across all three categories, the Tribunal also found that Tata made misleading representations to Kleros in breach of its duty of good faith, causing Kleros to believe no confidential information had been shared with third parties. Tata also concealed its intention to exclude and replace Kleros as principal and investor, incorporated FENR to bid for the mining licence without disclosing this to Kleros and used its arrangements with RDIF as part of a broader plan to substitute RDIF for Kleros.

  37. [36] On 29 November 2023, after reviewing the parties’ respective proposed versions of the Memorandum of Issues in respect of the second phase of the Arbitration, the Tribunal concluded that both parties’ versions were not materially different. The Tribunal adopted Kleros’s shorter version but with minor amendments of its own, and issued the Memorandum of Issues (Quantum). The Tribunal identified the key remaining issues to be determined as: (a) whether the breaches of the NDAs by Tata caused Kleros to suffer loss and damage in the form of a loss of opportunity to invest and/or participate in the Project as an investor and shareholder (or at all) by itself or with third parties (other than Tata) on terms materially similar to those Kleros had offered to Tata and to profit from the same (if established); (b) if so, to quantify Kleros’s loss and damage by such means as the Tribunal thinks appropriate, including a valuation of the project, the likely participation level of Kleros and the chance that Kleros would successfully have participated in the project; and (c) alternatively, to assess damages by reference to the amount which would have been agreed in a hypothetical negotiation between reasonable parties as the price for releasing Tata from its obligations under the NDAs.

  38. [37] In the Quantum Award, the Majority held that Tata’s breaches of the NDAs, in particular its breaches of the confidentiality and non-circumvention obligations, had caused Kleros to suffer loss and damage in the form of a lost opportunity to invest and/or participate in the project as an investor and shareholder, whether alone or with third parties other than Tata, on terms materially similar to those Kleros had offered to Tata, and to profit therefrom. The Majority’s other key findings were as follows:

  39. [39] In respect of the Final Award, the Majority’s orders were as follows:

  40. The parties’ additional submissions on the case of Indus Powertech

  41. [40] The hearing of the applications took place before us from 16–18 March 2026, following which we reserved judgment. On 10 May 2026, counsel for Tata wrote to the court to draw our attention to a recent judgment of the English High Court in Indus Powertech Inc v Echjay Industries Private Limited [2026] EWHC 827 (Comm) (“Indus Powertech”), which was handed down on 10 April 2026. Tata submitted that the decision was relevant to the issues arising in the three applications, and sought permission to address the court on it. We granted the parties permission, pursuant to which, the parties tendered further written submissions on 28 May 2026 on the relevance of Indus Powertech to the present proceedings. We address Indus Powertech below (at [46]).

  42. Issues to be determined

  43. [41] Based on our summary above of the factual and procedural background to this case, the following key issues arise for our determination:

  44. Whether the Tribunal failed to decide the issues of causation, remoteness and mitigation

  45. [42] Section 24(b) of the IAA sets out the power of this court to set aside an arbitration award where a breach of the rules of natural justice occurs in connection with the making of that award. To succeed, an applicant must establish (a) which rule of natural justice was breached; (b) how it was breached; (c) the connection between the breach and the making of the award; and (d) the prejudice caused to the challenging party’s rights (CDI v CDJ [2020] 5 SLR 484 (“CDI v CDJ”) at [29], citing Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) at [29]). An applicant mounting a challenge under s 24(b) of the IAA faces a high threshold because our courts adopt a policy of minimal curial intervention. Consistent with this policy, the courts will read arbitral awards generously and supportively, and will intervene only in exceptional cases where a breach of natural justice is established (CDI v CDJ at [30]–[31]). In the context of an infra petita complaint, the applicant must show that the tribunal failed to consider or determine an essential issue that was submitted for decision, rather than merely giving inadequate reasons or reaching an incorrect conclusion. Ultimately, the court’s inquiry is directed to whether the arbitral process was conducted fairly and whether the tribunal’s conduct fell outside the range of what a reasonable and fair-minded tribunal could have done, causing prejudice to the applicant in the making of the award (CDI v CDJ at [30]–[31]).

  46. [43] Tata, in its submissions, invokes the well-established principle of natural justice that every party is entitled to a fair hearing and a fair opportunity to present its case. This entails, at the minimum, that the tribunal turns its mind to the arguments and issues raised by the parties – otherwise, it is a breach of natural justice for the tribunal to have not brought its mind to bear on an important aspect of the dispute before it (Soh Beng Tee at [43]; AKN v ALC [2015] 3 SLR 488 (“AKN v ALC”) at [46]). A tribunal that neglects to do so drains the fair hearing principle of any real content. In BRS v BRQ [2021] 1 SLR 390 (“BRS v BRQ”) at [90] and [97]–[108], the Court of Appeal recognised this as a necessary corollary of the parties’ general right to be heard on every issue potentially relevant to the resolution of their dispute. Where a breach is alleged on this basis, the applicant must point to a “clear and virtually inescapable” inference that the tribunal failed to apply its mind to the argument in question (AKN v ALC at [46]). No breach of natural justice should be found where the facts are equally consistent with the tribunal having misunderstood the case, erred in law, or considered the point unnecessary to address. The threshold is a high one, because a tribunal’s omission is ordinarily inferred rather than expressly demonstrated. As DKT v DKU [2025] 1 SLR 806 makes clear at [8], the tribunal must have completely failed to consider the point:

  47. [44] It is with these broad principles in mind that we now discuss each of the issues in turn.

  48. The Causation Issue

  49. [45] The first question is whether the Tribunal determined, or completely failed to determine, the issue of causation as an essential issue – and in particular, whether it made any finding as to “but-for” causation. This is, in essence, a counterfactual inquiry: the “but-for” causation test requires a claimant to establish that but for the defendant’s breach, the claimed loss would not have occurred. Applied here, the question is whether the Quantum Award contains any indication that the Majority did consider and determine what Kleros would have done, and whether it would have suffered the loss of chance it alleges, in the absence of Tata’s breaches of the NDAs – in the hearing before us, this was referred to as the “No Breach Scenario”. In order to answer this question, it is therefore necessary for us to consider whether the Tribunal made findings on the Causation Issue, either expressly or by necessary implication, bearing in mind how the parties presented their arguments on the issue in the Arbitration, and whether any such findings are capable of constituting a determination of causation sufficient to dispose of the parties’ competing cases on that issue.

  50. [46] Before we delve further into the Causation Issue, we first turn to consider the relevance of Indus Powertech (see above at [40]). In Indus Powertech, the English High Court found that a tribunal had failed to address two essential sub-issues on causation – referred to as the “capacity” issue and “lead time” issue – and remitted those issues to the tribunal. Tata submits that the court in Indus Powertech explained what constitutes an “issue” that a tribunal must decide: namely, that it is a question which fairness demands be addressed, on which the whole or a substantial part of the claim depends, and which would appear in a properly drawn up and appropriately (but not excessively) granular list of issues, even if it had not been formally pleaded. Tata further submits that it must be made apparent to the parties that the issue had been determined and it cannot be inferred that a tribunal rejected a point merely because it did not refer to it.

  51. [47] Applying Indus Powertech to the present case, Tata submits that the agreed “but-for” test and agreed No Breach Scenario counterfactual were essential issues the Majority had to address, that the whole of Kleros’s loss of chance claim depended on them, and that the Majority’s failure to apply its mind to these issues went to the heart of the decision-making process. In a similar vein, Tata submits that the same principles espoused in Indus Powertech apply equally to the issues of remoteness and mitigation. Finally, on remission, Tata argues that unlike English law, under which remission is mandatory unless inappropriate, Singapore law confers a broader discretion on the court, and that for the reasons already set out in its reply submissions, remission would be wholly inappropriate in this case.

  52. [48] In response, Kleros submits that Indus Powertech provides no support for Tata’s case, for three reasons. First, Indus Powertech establishes no new law and is simply an application of well-settled English arbitration principles to specific facts. Second, the threshold in Singapore is stricter than under English law: under Singapore law, an applicant must show a “clear and virtually inescapable inference” that the tribunal “did not apply its mind at all” to an essential issue, a requirement not discussed in Indus Powertech. Third, the facts in the present case can be distinguished on the basis that unlike in Indus Powertech, the Majority here did engage with causation and its sub-issues, and any errors in that analysis are, at best, errors of law rather than a failure to deal with an issue. Further, there was no agreement of the parties that bound the Tribunal to a specific counterfactual. Accordingly, Kleros submits that Indus Powertech has no impact on this case and does not help Tata.

  53. [49] Having considered the parties’ submissions on the issue, we are of the view that Indus Powertech lends little, if any, additional weight to our existing analysis on the issues before us – nor does it add anything to our existing jurisprudence on infra petita challenges. For example, in Indus Powertech at [58] and [59], the English court summarised the approach the court should take in deciding whether or not a tribunal should be given the benefit of the doubt as to whether it can be said to have failed to decide an issue, in the following terms:

  54. [50] The approach as summarised above is neither new nor particularly controversial even under Singapore law, but it does provide a useful aide memoire; of greater importance is how that approach is applied to the particular facts of any case. Our decision in these proceedings is concerned with what constituted essential issues before a tribunal, and Tata’s case in this regard rests on the premise that the No Breach Scenario (as defined above at [45]) was the agreed counterfactual that bound the Tribunal in terms of deciding causation using the “but-for” test. Similarly, in respect of the Remoteness Issue and the Mitigation Issue, Tata’s case rests on the premise that the parties had agreed on them as issues to be determined, and that the Tribunal had also failed to decide these essential issues. Whether Tata’s case stands up to scrutiny is a fact specific exercise, on which Indus Powertech does not cast any useful light as it was a case decided on its specific facts.

  55. [51] As we explain in greater detail below, even proceeding on the assumption that causation, remoteness and mitigation were all essential issues that required determination by the Tribunal, the evidence does not bear out a failure by the Majority to decide them. To the contrary, the Quantum Award contains numerous and sufficient references demonstrating that the Majority did turn its mind to each of these issues and determined them. As we also explain below, on the Causation Issue, we are unpersuaded that the parties ever arrived at any agreement as to the population of the counterfactual and what the Tribunal could or could not consider in that counterfactual world when determining the issue of causation. For these reasons, Indus Powertech does not add much to the discussion or bear materially on our decision.

  56. [52] Before we turn to the substantive question of whether the Tribunal failed to determine the issue of causation, an important preliminary issue arises as to whether Tata has, through its written submissions, sought to advance a new ground of challenge that was not raised in its originating application or supporting witness statements. In this regard, counsel for Kleros, Mr Toby Landau KC (“Mr Landau KC”), submits that the No Breach Scenario was introduced by Tata for the first time in its written submissions. Kleros argues that Tata’s original ground, summarised above at [27], has undergone a “complete makeover” and is therefore time-barred.

  57. [53] Mr Davinder Singh SC (“Mr Singh SC”), counsel for Tata in relation to the fair hearing issues, contends that this submission is baseless, noting that Tata had consistently submitted that the causation analysis required consideration of a counterfactual world in which there were no breaches, as this was necessary to determine whether the breaches had in fact caused Kleros’s loss. Tata further points out that Kleros’s own submissions describe Tata’s counterfactual in the Arbitration as one that assumes Tata did not breach the NDAs, which is precisely the No Breach Scenario, thereby undermining Kleros’s own contention.

  58. [54] Tata further submits that Kleros’s time-bar objection is a mischaracterisation of Mr Shantanu Singh’s witness statement. While Kleros relies on paras 76 to 103 of that statement to argue that Tata’s complaint is about the Majority’s failure to consider Tata’s breaches in the pre-March 2016 period (ie, the period between the parties’ entry into the 2013 NDA in September 2013 and the date of the last meeting between the parties in March 2016), it does not engage with paras 68 to 72, which make clear that Tata’s complaint has always been about the Majority’s failure to apply its mind to the essential issue of causation and, in particular, their failure to consider the agreed counterfactual in which Tata did not commit any breaches – ie, the No Breach Scenario. As Mr Shantanu Singh explained at para 80 of his witness statement, the Majority’s analysis of causation was conducted entirely within a breach scenario, disregarding the counterfactual altogether. As there is no change of case, Tata submits that the time-bar objection is a non-starter.

  59. [55] Having regard to all of the above, we are of the view that the case advanced by Tata in its written submissions – that the Tribunal failed to determine the No Breach Scenario counterfactual, or indeed any counterfactual at all – does amount to a new and distinct ground of challenge that was not raised or articulated in OA 24 or the supporting witness statement. In substance, the complaint advanced by Tata in its written submissions is that the Majority failed to undertake the causation analysis by reference to a particular counterfactual said to have been agreed between the parties ie, the No Breach Scenario. That complaint is, in our view, materially different from the grounds originally identified in Tata’s supporting witness statement.

  60. [56] On an examination of Mr Shantanu Singh’s witness statement, and in particular paras 70 to 95 thereof, the thrust of Tata’s case on causation was that the Majority failed to have regard to events before March 2016 and from 2013, and further failed to conduct a “breach-by-breach analysis” – that is, to analyse how each breach as identified in the Liability Award caused Kleros’s loss. Instead, the Tribunal is said to have glossed over the individual breaches and adopted a broad-brush approach. There is nothing in the witness statement that remotely suggests that one of Tata’s major complaints, if not its biggest complaint in these proceedings, was that the Majority failed to decide “but-for” causation on the basis of an agreed counterfactual.

  61. [57] In BTN v BTP [2022] 4 SLR 683 (“BTN v BTP”), the High Court observed that the originating application and/or supporting affidavit in an application to set aside an award should compendiously set out all the grounds of challenge that the applicant intends to pursue – failing which, the respondent may be taken by surprise and deprived of a fair opportunity to respond (at [61]–[63]). There, a preliminary dispute arose as to whether the plaintiffs were entitled to rely on an issue that had not been articulated in the affidavit originally filed in support of their setting aside application, but was instead introduced through a second affidavit filed over a year later. In the present case, we are satisfied that Tata has, through its submissions, advanced an entirely new basis for challenging the Quantum Award.

  62. [58] The difficulty for Tata is that the supporting witness statement of Mr Shantanu Singh contains nothing that foreshadows the case now sought to be advanced by Tata on the Causation Issue. Apart from a vague reference at para 71(d) of the witness statement of Mr Shantanu Singh (repeated at para 71(e)) to the need for the Tribunal to consider “the correct counterfactual”, the witness statement is otherwise silent on the matters that now form the centrepiece of Tata’s submissions. For example, it does not identify what the alleged “correct counterfactual” was, nor does it assert that any such counterfactual had been agreed between the parties, and where that agreement could be found. It further fails to explain how, or in what respect, the Tribunal purportedly failed to determine causation by reference to that agreed counterfactual. Most significantly, it does not articulate the core of the complaint now advanced – that the Tribunal failed to decide the issue of causation because it failed to determine the No Breach Scenario counterfactual.

  63. [59] Indeed, the paucity of any reliance by Tata on the alleged failure of the Tribunal to decide the Causation Issue on the basis of an allegedly agreed No Breach Scenario is underscored by the fact that a review of Mr Shantanu Singh’s witness statement reveals that the word “counterfactual” appears only twice, namely, in paras 71(d) and 71(e). In our view, those isolated references, bereft of any accompanying explanation or elaboration, are insufficient to put either Kleros or the court on notice that Tata intended to advance a challenge of the nature now pursued in its submissions. A party cannot, by reliance on a passing, obtuse and undeveloped reference in a witness statement, reserve to itself the ability subsequently to formulate and advance a substantially different ground of challenge. To permit such an approach would undermine the requirement that the grounds of challenge be clearly and properly articulated within the applicable time limits. The witness statements served with the originating summons must reasonably contain all the facts, evidence and grounds relied upon in support of the application to set aside an award, with sufficient particularity, so that the defendant is properly apprised of the case being mounted against it and can put forth its opposition accordingly if it wishes to (BTN v BTP at [62]). Notwithstanding the common practice for a plaintiff to file further reply affidavits, this does not permit a plaintiff to advance new grounds by introducing facts and circumstances that could and should have been raised at the outset – such conduct would spring a surprise on the defendant, prolong proceedings and potentially encourage the abuse of process (BTN v BTP at [63]). Accordingly, we find that the ground now advanced by Tata regarding the Majority’s alleged failure to decide the issue of causation was not contained in OA 24 or the witness statement supporting it, and is accordingly time-barred. That would be sufficient to dispose of Tata’s objections on the Causation Issue in so far as it turned on the Majority’s alleged failure to decide the Causation Issue on the basis of the No Breach Scenario.

  64. [60] However, we do not rest on this conclusion alone. Assuming that we are wrong on the time-bar issue, we have considered Tata’s substantive submissions on the Causation Issue and conclude that they are without merit in any event. We elaborate on our reasons below, and address Tata’s grounds both as originally framed in Mr Shantanu Singh’s witness statement and as advanced in Tata’s written submissions.

  65. [61] Tata’s case is that the Majority abdicated their duty to analyse and failed to apply its mind to the essential issue of causation in the Quantum Award. Tata advances three principal complaints in this regard. First, that the Majority’s causation analysis was improperly coloured by the unanimous findings from the Liability Award, rather than conducted afresh. Second, that the Majority completely failed to consider whether Tata’s breaches in the pre-March 2016 period caused Kleros to lose any alleged opportunity during that period. Third, that the Majority made a new finding of reputational harm by Tata not found in the Liability Award, and linked that finding to Kleros’s inability to find third parties to exploit the project during the nine-month window of opportunity from March to November 2016. Tata further argues that the Majority ought not to have adopted a broad-brush approach to causation, and should instead have conducted a breach-by-breach analysis, identifying each act of breach and tying it to how that breach may have caused Kleros loss.

  66. [62] Kleros disputes each of these complaints. As to the first, Kleros submits that the Majority undertook a comprehensive causation analysis spanning 22 pages of the Quantum Award, considering all of the parties’ submissions. While the Majority did rely on certain unanimous factual findings from the Liability Award, it expressly acknowledged that those findings did not establish causation ipso facto, but rather, provided the background against which causation was to be determined in the Quantum Award phase. Kleros further notes that the parties and the Tribunal had always expected the factual findings from the Liability Award to remain relevant to the Quantum Award phase – indeed, the Tribunal had described the Arbitration as one where “parties work as if it is one single arbitration”, a characterisation Tata never challenged and expressly endorsed in its email of 29 April 2023. To require the Tribunal to consider those facts afresh would be illogical, highly inefficient, and would render the Liability Award meaningless. Kleros also observes that Tata itself relied on findings from the Liability Award in its closing statements for the Quantum Award phase, and that its attempts to challenge those findings were in substance attempts to re-litigate matters already decided against it.

  67. [63] On Tata’s complaint of a lack of a “breach-by-breach” analysis by the Majority, Kleros points to para 192 of the Quantum Award, in which the Majority expressly found that but for Tata’s breaches, Kleros would have made efforts to develop the project with a third party. In reaching that conclusion, the Majority at para 186 of the Quantum Award accepted Mr Skulason’s evidence that Kleros had chosen to do business with Tata on the assumption that Tata would not breach its obligations under the NDAs, and that Kleros had exhausted all reasonable attempts to salvage a possible investment partnership with Tata. It was those efforts by Tata, the Majority found, that caused Kleros’s loss of chance. Those efforts had been unanimously found in the Liability Award to constitute contractual breaches, including Tata’s failure during the pre-March 2016 period to disclose to Kleros that it intended to exclude and supplant it – a finding specifically referenced by the Majority in its causation analysis at para 177(6) of the Quantum Award.

  68. Analysis and decision

  69. [64] As a starting point, we note that neither party specifically set out “but-for” causation as an issue in their respective versions of the Memorandum of Issues. On 13 November 2023, Kleros submitted to the Tribunal its version of the remaining issues to be addressed in the Quantum Award phase as follows:

  70. [65] On 14 November 2023, Tata submitted its version in the following terms:

  71. [66] On 17 November 2023, Kleros submitted its response to Tata’s version:

  72. [67] The Tribunal considered both parties’ formulations of the remaining issues, substantially favoured Kleros’s original formulation and eventually set out its own revised formulation as follows:

  73. [68] Apart from the issues above, the other 22 issues had been considered and resolved in the Liability Award.

  74. [69] In the Quantum Award, the Tribunal further broke down the first issue into the following three sub-issues. These were: (a) whether the loss of chance claimed by Kleros is a recognised head of damage; (b) whether, on the balance of probabilities, Kleros did lose the chance; and (c) whether Kleros was required to – and, if so, did adequately – mitigate its damages. What is immediately apparent is that none of those formulations specifically identified “but-for” causation as an agreed or essential issue, nor was there any reference to any agreed counterfactual, or its precise content or parameters. The significance of this will be explained later in this judgment.

  75. [70] Be that as it may, and even assuming that Tata is not precluded from advancing its current arguments on the Causation Issue (ie, that the Majority failed to decide the essential issue of causation on the basis of the agreed “but-for” test and the agreed No Breach Scenario counterfactual), we are not persuaded that Tata has demonstrated any breach of natural justice. More specifically, Tata has not shown that a virtually inescapable inference arises that the Tribunal completely failed to determine the issue of causation by reference to the No Breach Scenario counterfactual said to have been agreed by the parties.

  76. [71] We accept in this regard that an issue may be brought into play in an arbitration even if not specifically raised in pleadings or in an agreed list of issues (CDM v CDP [2021] 2 SLR 235 at [18]; CAJ v CAI [2022] 1 SLR 505 at [49]–[50]), and we are prepared, for the sake of argument, to give Tata the benefit of the doubt that applying the “but-for” test in the No Breach Scenario was an issue to be determined in the Arbitration. Nonetheless, a close, commercial and reasonable reading of the Quantum Award reveals that the Tribunal accepted Kleros’s arguments on what the “but-for” counterfactual scenario entailed, and which Tata did not object to. The Tribunal then proceeded to address Tata’s arguments that its breaches could not have caused Kleros’s loss.

  77. [72] Before we delve into the arguments and analysis in greater detail, we would highlight that there was considerable argument before us on whether the No Breach Scenario counterfactual was in fact common ground or agreed in the Arbitration. We would make the following observations. From the arbitral record – in particular Kleros’s opening statement at paras 29 to 33, its closing submissions at paras 107 to 112, and its reply submissions at paras 14 to 16 – Kleros repeatedly submitted that in the counterfactual world, Tata was obliged to inform Kleros if it intended to walk away without breaching the NDAs. This submission emerges most clearly in Kleros’s reply closing submissions at para 16: “Tata cannot rely on that… because the counterfactual world which the Tribunal has to consider for the purpose of Kleros’s Loss of Chance claim is one in which Tata must be assumed not to have breached the NDAs”. Footnote 12 of that paragraph refers to Kleros’s closing submissions at para 108, where Kleros argued: “As soon as Tata decided that it no longer wished to explore the possibility of developing the Krutogorovo Deposit with Kleros, it should have informed Kleros of the same and walked away without breaching the NDAs” [emphasis added].

  78. [73] It is notable that Tata – be it in its opening statement, closing submissions or reply submissions – did not object to this submission. Specifically, Tata did not contend that no such obligation for Tata to notify Kleros and walk away arose or had been found in the Liability Award; nor was there any submission by Tata that this was an unpleaded point or a contention that was contrary to an agreed counterfactual.

  79. [74] Further, in its opening statement (at paras 34, 37, 41, 44 and 47) , Tata set out its case on causation in a loss of chance claim in the following terms: “if the claimant has lost a real or substantial chance that involves whether a third party would act in a certain way, causation is satisfied and the tribunal can move on to assessment of that chance” [emphasis added]. Tata returned to the question of causation in its closing submissions at paras 90 and 95, and again in its reply closing submissions at paras 10 to 15 and essentially repeated its submissions on causation contained in its opening statement. At no point did Tata object to, or engage with, Kleros’s submission that in the “but-for” No Breach Scenario counterfactual world, Tata was obliged to inform Kleros as soon as it intended to walk away. It is also reasonably clear to us that even though both sides may have argued at various points on the basis that the “but-for” test applied to causation, there was no agreement on what the No Breach Scenario counterfactual in fact entailed in terms of its specific parameters or what the Tribunal could or could not consider in that counterfactual world – and Tata has not in fact shown that the precise parameters of what could be considered by the Tribunal in that counterfactual world were also agreed or clearly delineated by the parties. Kleros in fact submits that the specifics of what could be considered or populated in the counterfactual world were not agreed and very much in dispute.

  80. [75] This is significant for two reasons. First, as we indicated above (at [71]), we are prepared to assume for Tata’s benefit that the parties argued “but-for” causation on the basis of a counterfactual world in which Tata did not breach the NDAs ie, the No Breach Scenario. But the second and more important reason is that, in our view, the Tribunal ultimately accepted Kleros’s arguments on causation in the No Breach Scenario, even if only implicitly, based on parameters which Kleros raised and which Tata did not object to or rebut. We elaborate below.

  81. [76] At paras 183 to 186 of the Quantum Award, the Majority accepted Mr Skulason’s evidence that when Kleros chose to do business with Tata and not explore deals with other potential partners, it did so on the assumption that Tata would not breach its contractual obligations under the NDAs and go behind Kleros’s back to exclude it from the project. The Majority found that, by March 2016, Kleros had exhausted all reasonable attempts to salvage a possible investment partnership with Tata, and that this was met with Tata's efforts to actively exclude Kleros from the Project. The Majority’s reasoning – ie, that it was Tata’s conduct in breach of the NDAs, rather than any self-imposed constraint on Kleros’s part, that caused Kleros’s loss of chance – informs the Majority’s analysis when it addressed each of Tata’s arguments as to why Kleros would not have been able to develop the project either on its own or with a third party. While this reasoning may not emerge explicitly or clearly from a reading of the Quantum Award, it equally cannot in our view be said that a “virtually inescapable” inference arises that the Tribunal completely failed to address and decide the issue of causation.

  82. [77] Reverting to the Quantum Award, at para 34, the Tribunal summarises Tata’s arguments on loss of chance and causation. At paras 45 to 48, the Tribunal explains its approach, and one finds repeated references in the Quantum Award to the phrase “a real and substantial chance” of developing the project on its own or with a third party – for example, paras 172 to 176 – which echoes Tata’s own submissions on causation (see above at [74]). Immediately thereafter, at para 177, the heading reads “But for Tata’s breaches…”, and at para 181, after summarising the breaches found in the Liability Award, the Tribunal states: “The Majority is satisfied on the balance of probabilities that but for Tata's breaches, Kleros would certainly have made efforts…”. These references, taken together, constitute evidence demonstrative of the issue of causation being present in the Tribunal’s mind – whether articulated as the “but-for test” or the “real and substantial chance” formulation that Tata itself had advanced.

  83. [78] At paras 182 and 183 read with para 192 of the Quantum Award, the Tribunal then sets out and accepts the evidence of Mr Skulason and Mr Palit. In accepting Mr Palit’s evidence that “[h]ad Tata walked away as soon as it decided it did not wish to pursue the Project… I am confident that we could have successfully developed the Project with another partner”, the Tribunal was, in our view, approaching the issue of causation and the counterfactual in the manner argued for by Kleros in its opening and closing submissions (at [72] above). As we have noted above (at [73]), Tata did not at any time object to or engage with Kleros’s submissions in this regard on causation despite having the opportunity to do so. To recapitulate, Kleros’s submission was that, in the No Breach Scenario counterfactual world, the contemplated scenario was one where as soon as Tata knew it did not wish to explore the project with Kleros any further, it should have informed Kleros and walked away. And once that happened, Kleros would no longer be bound by any of its self-imposed restraints (referred to by the Tribunal at para 186 of the Quantum Award) and could explore the opportunity either on its own or with others.

  84. [79] After accepting Kleros’s submissions, the Tribunal then proceeds to address Tata’s multifarious arguments on why Kleros could not have developed the project with anyone else – for example, that Kleros lacked the financial wherewithal, the expertise, and the support of the Russian government. Tata made extensive submissions on these points and the Majority dealt with each of them, and at para 238 of the Quantum Award, the Majority answers Issue 1(b) in the affirmative. In doing so, it was addressing Tata’s own arguments on causation that Kleros did not have a real and substantial chance of exploiting the Deposit, and therefore Tata’s breaches did not cause Kleros any loss.

  85. [80] In our judgment, reading the section of the Quantum Award dealing with Issues 1(a) and 1(b) as a whole, reasonably, commercially and not with a hypercritical eye but supportively, and with a view to understanding the Tribunal’s approach in substance, we are far from satisfied that a virtually inescapable inference arises that the Tribunal completely failed to apply its mind to and decide the issue of causation.

  86. [81] While there are aspects of the Quantum Award that could have benefited from clearer drafting, we do not engage in an exercise concerning literary precision – the Majority’s reasoning need only be discernible. The court is not concerned with the quality of the award or the depth of its analysis but the fact or existence of analysis. Further, it is also established law that a tribunal is only required to deal with essential issues, not every argument raised, and must be given fair latitude in selecting which issues are essential (ASG v ASH [2016] 5 SLR 54 (“ASG v ASH”) at [59], citing TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972 at [72]–[77]). A decision on one argument that resolves an essential issue suffices, and remaining arguments that become academic need not be addressed (ASG v ASH at [59]). Critically, natural justice requires that parties be heard, not that they receive responses on every submission – and a tribunal that has genuinely applied its mind to an issue does not breach natural justice merely because its conclusion may appear inexplicable or reflects a miscomprehension of the submissions (SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2010] 1 SLR 733 at [60]; ASG v ASH at [60]).

  87. [82] In our view, there is sufficient evidence in the Quantum Award to demonstrate that the Tribunal applied its mind to and approached the question of causation on the basis of the arguments put before it by both sides, and that in so far as it had to consider the No Breach Scenario counterfactual, the Majority did so in accepting Kleros’s submissions on what that counterfactual specifically entailed. It does not, in our view, matter that the Majority did not expressly state or find that Tata was obliged to inform Kleros of its intention to walk away – it was implicit in the Majority’s reasoning, in particular its acceptance of the evidence of Mr Skulason and Mr Palit (see above at [78]) and Kleros’s submissions, that in that no breach counterfactual world, Kleros would come to know that Tata was no longer interested and had walked away, thus clearing the way for Kleros to move forward either on its own or with another party. Contrary to the submission of Mr Singh SC, there was no need for the Tribunal to have found any such obligation on the part of Tata in the Liability Award. In the Liability Award, the Tribunal was determining what breaches Tata had in fact committed. In the Quantum Award, and in addressing the counterfactual, the Tribunal was entitled to consider what Tata ought to have done in a counterfactual world where Tata committed no breaches. Based on Kleros’s submissions, the Majority was perfectly entitled to accept the submission that Tata was obliged to notify Kleros and walk away, and thereafter analyse whether, on the evidence before it and the submissions advanced, there was a real and substantial chance that Kleros could have developed the project either on its own or with a third party. In essence, therefore, Tata’s present infra petita complaint is, in our view, really a disguised attempt (borne out of counsel’s ingenuity) at attacking the merits of the Majority’s decision, which is a matter that is not justiciable before us.

  88. [83] It is also apparent to us that whilst the Tribunal may have broken down the first quantum issue into three sub-issues, the Majority’s analysis in the Quantum Award did not neatly compartmentalise the issues into Issue 1(a) and Issue 1(b) – the Majority’s reasoning at times straddled both, and this must be borne in mind when reading the Quantum Award as it demonstrates to us that the Majority was not addressing the issues in silos or with blinkers on.

  89. [84] As for Tata’s complaint that the Tribunal failed to conduct a breach-by-breach analysis, our first observation is that this was not how Tata itself argued its case on causation in the Arbitration. Tata’s case on causation in the Arbitration was directed at why Kleros would not have been able to develop the project on its own or with anyone else, and the Tribunal addressed each of those arguments in turn – this is apparent from paras 96 to 101 of the Quantum Award. Again, Tata’s complaint in this regard is, in substance, no more than a veiled attempt at challenging the merits of the Quantum Award.

  90. [85] For the foregoing reasons, it is our view that Tata’s complaint that the Majority breached the fair hearing rule on the Causation Issue, whether on the grounds as originally raised in OA 24 and the supporting witness statement and/or in its written submissions, are without merit. In our judgment, there was no breach of natural justice by the Majority. The Majority did apply its mind to and decide the issue of causation. Accordingly, we dismiss this ground of objection.

  91. The Remoteness Issue

  92. [86] At the outset, it is apparent to us that Tata’s arguments on this issue are, in effect, an attempt to force a square peg into a round hole. Tata submits that the Quantum Award should be set aside for breach of natural justice and/or failure to follow the agreed procedure on the ground that the Majority abdicated its duty to analyse and failed to apply its mind to Tata’s submissions that Kleros’s damages for loss of chance were too remote and therefore unrecoverable.

  93. [87] Kleros’s position, in response, is that the Tribunal did in fact address the issue of remoteness, and did so in the context of both Issues 1(a) and 1(b). Kleros points to paras 29 to 30 and 32 to 33 of the Quantum Award in relation to Issue 1(a), and paras 120 to 125 and 168 to 171 in relation to Issue 1(b), as evidence that the Majority had the remoteness arguments squarely in view throughout its analysis.

  94. [88] At the hearing before us, Mr Singh SC submitted that Kleros’s written submissions had not, in his view, engaged with Tata’s actual argument. He directed the court to para 75 of the Quantum Award, where the Tribunal had adopted a test requiring an examination of whether the essence of the breach of duty included depriving the claimant of the relevant chance. His complaint was that having adopted that test, the Tribunal conducted no further analysis of whether it was actually satisfied in respect of the various breaches found in the liability phase, leaving it entirely unclear whether every breach, or only some, had been considered sufficient to meet the test. He submitted that this failure to apply the adopted test amounted to a denial of a fair hearing on what the Tribunal itself had identified as the core of the remoteness inquiry, and adopted all his earlier arguments on natural justice in support. In response, Mr Landau KC challenged the premise of Tata’s argument, submitting that there was no agreement that remoteness was an issue squarely before the Tribunal – it did not appear in the agreed list of issues, and the fact that both sides had addressed it in their submissions could not amount to an agreement sufficient to found a natural justice challenge. He further submitted that even if the Tribunal had been obliged to address remoteness as an essential issue, any failure to apply a cited test correctly would at most constitute an error of law, which is not a ground for setting aside. In any event, he submitted that the Tribunal had engaged extensively with the remoteness test set out in McGregor on Damages throughout the Quantum Award and not merely at para 75, pointing to paras 281 and 282 under the mitigation analysis as further instances where the Tribunal applied the same test, and noting that the relevant McGregor formulation appeared at least ten times across the Quantum Award, demonstrating that the Tribunal had the remoteness test firmly in mind throughout its analysis.

  95. Analysis and decision

  96. [89] Having considered the Quantum Award carefully, we agree with Kleros’s analysis. The starting point is to understand how the parties themselves framed the issues. Based on the first issue as sub-divided by the Tribunal, causation, remoteness and/or foreseeability were considered together under Issue 1(b). In Tata’s own opening statement, under the heading “Kleros is not entitled to damages for loss of opportunity”, Tata addressed the law on loss of chance claims at para 42, citing a reference from Chitty on Contracts, and at para 47 submitted that “if the tribunal finds that Kleros had on the balance of probabilities lost a real and substantial chance (and not a speculative one) that a third party would have acted in a certain way, then the tribunal can proceed to quantification to apply the appropriate discount to reflect the loss of chance”. Tata’s own approach was therefore to address causation/remoteness and foreseeability under the same umbrella as opposed to addressing them as discrete issues, and the parties themselves appeared, at times, to treat the two aspects as overlapping rather than involving discrete inquiries and analysis. Indeed, para 71 of Mr Shantanu Singh’s witness statement in these proceedings is further evidence that Tata itself recognised that the “causation analysis” necessarily included considering whether the loss of chance claimed was “foreseeable”.

The judgment continues past this page. Read the rest at eLitigation.