Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd and others

1. Quentin Loh JC:

2. [1]

   [1] This unfortunate saga started off as a not uncommon building and construction dispute between the owners of a property and a contractor. Unusually, it soon became a full blown mêlée which also embroiled the arbitrator appointed to resolve their disputes.

3. [2]

   [2] The parties involved in these Consolidated Originating Summonses, (No 1807 of 2006/S and No 1231 of 2008/W), are:

4. (a) Mr Anwar Siraj (“Siraj”), and his wife, Ms Norma Khoo Cheng Neo (“Norma”), who were the owners of a property, 2 Siglap Valley, Singapore (“the Property”); references to “the Sirajs” or “Siraj” will also include, unless otherwise stated, Norma;

5. (b) Teo Hee Lai Building Construction Pte Ltd (“the Contractor”), is a company that carries on the business of building and construction and Mr Teo Hee Lai (“Teo”), is a director of the Contractor who was dealing with the construction work on the Property; and

6. (c) Mr John Ting Kang Chung (“the Arbitrator”), an architect of many years standing and a former Treasurer and two-term President of the Singapore Institute of Architects.

7. [3]

   [3] The Arbitrator is the Plaintiff in Originating Summons No 1807 of 2006/N, the Contractor is the 1 Defendant, Siraj is the 2 Defendant and Norma is the 3 Defendant. In this originating summons, the Arbitrator is asking for the following orders:

8. (a) that time for the Arbitrator to issue the Arbitration Award be extended to 15 April 2005;

9. (b) that the Defendants do jointly and severally pay the Plaintiff the sum of $199,178.40 being the arbitrator’s fee outstanding and due under the Arbitration; and

10. (c) costs.

11. [4]

    [4] The Sirajs are the Plaintiffs in Originating Summons No 1231 of 2008/W, the Arbitrator is the 1 Defendant and the Contractor is the 2 Defendant. In this originating summons, Siraj and Norma are asking for the following orders:

12. (a) that the Arbitration Award be set aside;

13. (b) the Arbitration Agreement shall cease to have effect;

14. (c) any and all pending and/or unresolved disputes and/or new disputes which may arise hereafter may be referred to the Courts for resolution/determination;

15. (d) the costs, losses and/or damages suffered by Siraj and Norma arising from the failed arbitration and/or misconduct of the Arbitrator/Contractor be assessed;

16. (e) any other relief and/or remedies that Court deems fit and just; and

17. (f) costs.

18. The Background Facts

19. [5]

    [5] Siraj and Norma, as owners of the Property, entered into a building and construction contract with the Contractor to demolish the one-storey house on the Property and reconstruct a larger two-storey house with an attic, basement and swimming pool for S$1.2 million. The Letter of Award was dated 29 December 1999. The Contract was on the standard Singapore Institute of Architects Form, (Lump Sum 6 Edition, August 1999) and dated 30 December 1999. The construction period was 52 weeks and completion date was 9 January 2001. Sometime on or about 5 April 2001, pursuant to a disputed joint inspection, the Property was handed back to Siraj and Norma. The project architect did not issue a Completion Certificate nor a Certificate of Partial Re-Entry. However the Certificate of Statutory Completion was issued by the Building and Construction Authority on 30 April 2002. By that time disputes and differences had already arisen between the parties. These disputes included fairly common building and construction issues including, (but not limited to), defective workmanship, defects, rectification, delays, entitlement to extensions of time, whether time was at large, whether works were complete by 9 January 2001, whether a certificate of partial re-entry should have been issued, payment of $265,190.17 under a progress claim, a claim for $10,557.50 for Setsco testing (on waterproofing) and report, release of the retention sum, outstanding works and claims for work done.

20. [6]

    [6] The Contract contained an arbitration clause, Clause 37(1), requiring the parties to refer any and all disputes arising between them to arbitration. Under this clause, if the parties failed to agree on an arbitrator, the Singapore Institute of Architects, (“the SIA”), would appoint an arbitrator for them within 28 days of written notice being given by any party to the SIA. This clause also provided that the arbitration proceedings were to be conducted in accordance with the Arbitration Rules of the SIA, (“the Rules”), for the time being in force. The Rules were first published by the SIA in January 1999 and incorporated for the first time in August 1999 in the 6 Edition of the SIA Contract Forms.

21. The Course of the Arbitration Proceedings

22. [7]

    [7] The Contractor sent two letters to the project architect on 25 July and 6 August 2001, which listed some of the disputes to be submitted to arbitration and referred to the appointing of an arbitrator. As notices to arbitrate, these were a little ambiguous. On 16 August 2001 the Contractor gave a proper notice to the Sirajs reciting the disputes that had arisen between them and referring their dispute to arbitration pursuant to Clause 37 of the Contract. Further letters met with no response, even when the Contractor’s lawyer, Mr Das of Ling Das & Partners, (“Mr Das” and “LDP” respectively), wrote on 31 August 2001. Eventually, Messrs Khattar Wong & Partners replied on 1 October 2001 stating that they acted for the Sirajs and asked LDP to write to the SIA to appoint an arbitrator. LDP did so on 8 October 2001. The Chairman, ADR Committee of the SIA replied on the same day stating the fees payable, viz, a registration fee of $515 payable to the SIA, a minimum non-refundable fee of $2,000 ($1,000 to be paid by each party), to be paid to the Arbitrator before the commencement of proceedings and noting that the Arbitrator was entitled to ask for an additional security deposit. The time charge of $350 per hour was also stated as being applicable and the Arbitrator would have to be reimbursed for all out-of-pocket expenses incurred by him. The Contractor paid the $515 and the President, SIA nominated the Arbitrator on 7 December 2001. The Arbitrator accepted the nomination on 10 December 2001 and the SIA President confirmed the appointment on 12 December 2001 to LDP.

23. [8]

    [8] There were some delays in paying the minimum non-refundable fees to the Arbitrator. The Contractor paid its share of $1,000 on 28 December 2001 but the Sirajs despite being represented by Messrs Khattar Wong & Partners, did not. Finally, in order to obtain a preliminary meeting with the arbitrator, the Contractor paid the Sirajs share of $1,000 on 30 January 2001 to the Arbitrator. On 11 March 2001, at the first preliminary Meeting, the Arbitrator issued directions on the filing of pleadings: the Points of Claim, the Points of Defence and Counterclaim and the Reply and Defence to Counterclaim. By this time, Siraj had discharged Messrs Khattar Wong & Partners and appointed Messrs Tan, Rajah & Cheah to represent them. A site inspection took place on 14 March 2002 with lawyers from Messrs Tan, Rajah & Cheah being present.

24. [9]

    [9] By 11 June 2002, (3 months after the first preliminary meeting), all the pleadings had been filed. Siraj applied for and was allowed to file a Reply (ie, a Rejoinder) with regard to the Counterclaim. The Arbitrator wrote to the parties on 10 June 2002 stating that he would convene a meeting at a convenient date. Siraj’s solicitor wrote to the Arbitrator on 12 June 2002 for the hearing to be conducted as soon as possible because of the serious defects. Nothing further was heard from the Arbitrator despite the 12 June 2002 letter and reminders on 31 July 2002 and 15 August 2002. Meanwhile discovery took place. During this process there were valid complaints by Siraj about his abortive attempts to inspect the Contractor’s documents. By a letter dated 5 September 2002, the Arbitrator requested each party to pay $8,250 to him, making a total of $18,500, for “...the estimated arbitration fees…” (including $2000 which had earlier been paid). Both Siraj and the Contractor complied and paid. AEICs were filed and exchanged by early October 2002.

25. The Arbitrator then sent another letter dated 30 October 2002 which stated:

26. To a letter from Siraj asking whether counsel could assist him in any difficulty he may be having on procedural matters and pointing out that expert assistance was sought only on specific issues, the Arbitrator replied on 13 November 2002 stating that he had not previously decided to award security for costs and damages and had not delegated his duty to another person. He also stated that he had since made his decision on the applications and had sent notice of the decision to the parties without having consulted anyone on the applications. He said he intended to consult counsel solely on procedural issues as and when the need arose. In another letter of 13 November 2002, the Arbitrator ruled:

27. [14]

    [14] In a letter dated 17 March 2003, Siraj listed 22 interlocutory applications he wished to make. This was heard on 14 April 2003. The hearing lasted some 5 hours, after approximately 6 of these applications, the Sirajs, who were represented at that time by Mr Raman, decided not to participate further as they were dissatisfied with the way the Arbitrator handled the interlocutory applications. The Arbitrator dismissed all 22 applications by a letter dated 30 April 2003.

28. [15]

    [15] On 13 May 2003, the Arbitrator wrote to the parties stating that a considerable amount of time had been spent by him in the arbitration and the deposit of $18,500 previously paid to him was not enough to cover the fees payable for the work done to date and for the work yet to be done. He stated he had spent approximately 130 hours as of 5 May 2003. The Arbitrator therefore made a call under Article 13.1 of the Rules for each party to deposit $25,000 to secure his fees and expenses and that these sums were to be paid by 27 May 2003. The Arbitrator also drew the parties’ attention to Article 13.5 of the Rules. Siraj protested and queried the time spent by the Arbitrator. The Arbitrator replied on 6 June 2003 enclosing a 12-page itemised time sheet from 15 January 2002 to 5 May 2003 showing the breakdown of his 131 hours and 40 min of time spent in the arbitration proceedings. On 29 August 2003, the Arbitrator sent another reminder to the parties to deposit $25,000 each to account of fees and expenses. The Contractor forwarded his $25,000 to the Arbitrator on 10 September 2003 but the Sirajs did not. On the 24 September 2003, the Arbitrator noted payment by the Contractor and directed the Sirajs to pay their $25,000. In this letter he also invited the Contractor to consider paying the Sirajs’ $25,000 and noted:

29. The Arbitrator’s reference to Article 13.3 of the Rules is erroneous as it provides for security for costs and not the payment of a deposit by one party on behalf of a defaulting party. Article 13.3 of the Rules provided that the Arbitrator shall have the power to order any party to provide security for the legal or other costs of any other party by way of deposit or bank guarantee or in any other manner the Arbitrator thinks fit. What the Arbitrator must have meant was that if the Contractor paid the respondents’ share of $25,000, he would give credit for that sum by treating payment of that sum appropriately in his eventual award or as part of the costs payable in the arbitration.

30. [16]

    [16] In the meanwhile, Siraj appealed against the decision of Tay J in OM No.26 of 2002 by filing CA 10/2003 and the arbitration hearing, re-fixed for 2 June 2003, had to be postponed again. Mr Das accepted however this was by consent because if the Court of Appeal agreed with the Sirajs and removed the arbitrator, then there was no point in the meanwhile continuing with the Arbitration.

31. [17]

    [17] To return to the course of the arbitration, the Court of Appeal dismissed the Sirajs’ appeal against Tay J’s decision in OM 26 of 2002 on 18 August 2003. On 26 August 2003, the Arbitrator wrote to the parties stating that he understood that the appeal from Tay J’s decision in OM No 26 of 2002 had been dismissed by the Court of Appeal and directed that the parties appear before him on 10 September 2003 to take hearing dates. The meeting to take dates for the hearing was contentious with Siraj writing rude and unhelpful letters to the Arbitrator before and after the meeting. By then Siraj was representing himself whilst Mr Raman continued to represent Norma. Dates were suggested, discussed and narrowed down to (a) 17 to 28 November 2003, excepting 25 November 2003, and/or (b) 1 to 19 December 2003. Mr Ravidass, (Mr Raman’s colleague), said Mr Raman’s diary was free on those dates but he would still need to take instructions from Norma as she was on hospitalisation leave. Siraj objected to the meeting on a number of grounds including the ground that a District Court Judge had not fixed dates for an assessment of damages in a matter where the Sirajs were plaintiffs and where Mr Das was for the third party. Siraj therefore disagreed with the Arbitrator’s proposed hearing dates in two tranches from 17 to 28 November 2003, but excluding 25 November 2003, and 1 to 5 December 2003 as set out in the Arbitrator’s letter dated 24 September 2003. (Subsequent to that meeting, the Subordinate Courts did not fix a date for the assessment but fixed a PTC for 3 October 2003).

32. [18]

    [18] The Arbitrator wrote to the parties on 1 October 2003, noting that the parties were to revert to him on the proposed dates. He was available; Mr Das and his client confirmed they were available but he had still not heard from Siraj and Mr Raman. The Arbitrator asked the parties to confirm the dates by close of business 6 October 2003. Mr Raman sent a letter dated 6 October 2003 stating that he was still awaiting his client, Norma’s, instructions. Mr Siraj sent a letter dated 7 October 2003 on various other points and issues but did not confirm his availability for the ‘blocked off’ dates. By a fax dated 9 October 2003, the Arbitrator ruled that having given the parties ample opportunity to confirm their availability, he proceeded, (for the third time), to schedule hearing dates in two tranches, on 21, 24 to 28 November 2003, excluding 25 November 2003 and 1 to 5 December 2003.

33. [19]

    [19] On the 27 October 2003, Mr Das wrote in for a date to hear his client’s application based on Article 13.5 of the Rules which provided that if a party failed to pay a deposit directed by the arbitrator to secure his fees and expenses under Article 13.1 or Article 13.2, the arbitrator may refuse to hear the claims or counterclaims of the non-complying party but the arbitrator may proceed to determine the claims or counterclaims of the complying parties. As noted above, the Arbitrator had earlier directed the parties to deposit an additional $25,000 each on 23 May 2003. Neither party complied. In his 29 August 2009 letter, he reminded the parties of his direction. The Contractor then paid his $25,000 on 10 September 2003 but the Sirajs did not despite another reminder from the Arbitrator on 24 September 2003.

34. [22]

    [22] On 24 November 2003, Siraj, Norma and Mr Raman again failed to turn up. The Arbitrator waited from 10 am to 10.30 am. His secretary telephoned Mr Raman’s office and was told he would not be attending the hearing but his secretary was unable to reach Siraj. At 10:30 am, the Arbitrator proceeded with the hearing. Mr Das proceeded to open his case, presented his evidence, called his witnesses and concluded his case by 5.15 pm. The Arbitrator then wrote to the parties recording what happened on 24 November 2003 and stated that he would consider the evidence presented to date.

35. [23]

    [23] On 1 December 2003, the Arbitrator wrote to the parties asking the Contractor to submit final written submissions if it wished to within 2 weeks, ie, by 14 December 2003; Siraj and Norma were given liberty to submit written submissions in reply within 2 weeks of receipt of the Contractor’s written submissions; and the Contractor was given 10 days thereafter to file written reply submissions.

36. [24]

    [24] Mr Raman wrote to the Arbitrator on 15 December 2003 expressing surprise that the Arbitrator proceeded with the hearing in the absence of his client. Mr Raman referred to his previous correspondence asking “…for a number of matters to be set right before [they] could attend before [the Arbitrator] for the hearing...”, accused the Arbitrator of ignoring the rules of natural justice, conducting a hearing that was a farce and a perversion of justice in the name of an arbitration and rhetorically asked “..how on earth..” the Respondents could submit written submissions when they were not at the hearing, did not hear what the Contractor’s witnesses had to say, did not peruse the documents presented by the Contractor or the Arbitrator’s notes of evidence. Mr Raman then wrote that his client would have no choice except to seek a remedy elsewhere at the appropriate time.

37. [25]

    [25] The Contractor sent in his written submissions on 12 December 2003. The Sirajs did not send in any written submissions.

38. [27]

    [27] This delay of 1 year 4 months resulted in a very unfortunate consequence. Article 14.1 of the Rules states:

39. The Arbitrator accepts that in view of the non-response of Siraj and Mr Raman and the receipt of the written submissions of the Contractor on 12 December 2003, the time limit for his Award to be issued expired on 10 February 2004; (see para 16 of his Affidavit affirmed on 15 September 2006 in OS 1807/2006). Whilst there can be an interesting debate on when the hearing was closed, ie, 60 days from: (a) the 12 December 2003 when the Contractor filed and served his written submissions on the Arbitrator (and presumably on Siraj) or (b) 15 December 2003 when Mr Raman (and assuming Siraj sent a similar letter on the same date, and if on a different date on the later of the two dates) sent in his letter clearly electing not to file any written submissions or (c) 26 December 2003 being the expiry of 2 weeks when Siraj and Norma should have filed and served their written submissions, this issue does not arise for consideration as the Award was published long after the maximum possible time therefor had expired.

40. [28]

    [28] On 1 February 2006, Siraj wrote to the Arbitrator referring to the “...lapsed arbitration...” and noting, amongst other things, that in the Arbitrator’s latest facsimile of 31 May 2005 he had dropped the title “Arbitrator” when signing off and asked the Arbitrator whether he accepted the position taken by Mr Raman in his letter dated 7 April 2004 that “…the time for [the Arbitrator] to write the award has already expired...” and that “...any award made by [the Arbitrator] will be invalid and unenforceable…” Despite this correspondence, it was only on 19 June 2006, some 2 years 4 months after the time for publishing his Award expired, that the Arbitrator wrote to the parties proposing a meeting on 26 June 2006 to extend time limit by consent. Mr Das wrote in for the Contractor on 30 June 2006 agreeing to the extension of time. Consent was of course not forthcoming from the Sirajs. On 19 September 2006, (about 2 years 7 months after time had expired), the Arbitrator filed OS 1807/2006 asking for an extension of time to 15 April 2005 to issue his Award and that the Sirajs and Contractor jointly and severally pay him the sum of $199,178.40 for his outstanding fees.

41. The Numerous Legal Proceedings

42. [29]

    [29] Innumerable legal proceedings, mostly initiated by the Sirajs, sprang from this dispute. There were two District Court actions and appeals therefrom. There were two other originating summonses, two originating motions, Suit No 348 of 2006 and innumerable applications taken out by the Sirajs. The Court of Appeal dealt with about 10 appeals: CA 53/2002, CA 10/2003, DCA 19/2004, CA 112/2006, CA 15/2008, CA 21/2008, CA 80/2008, CA 172/2008, CA 18/2009, CA 49/2009.

43. [30]

    [30] After one too many appeals, on 5 February 2009 the Court of Appeal ordered, in CA 172 of 2008, that OS No 1807 of 2006 and OS No 1231 of 2008 be consolidated and enjoined the parties from taking out any more applications in respect of these consolidated originating summonses and directed the parties to proceed to a hearing. Mention should be made of a successful application by the Arbitrator, Summons in Chambers No 5671 of 2007 for a mareva injunction freezing $250,000 of the Sirajs from the sale of the Property. The Sirajs appealed to the Court of Appeal in CA 80 of 2008/Q and on 8 July 2009, the Court of Appeal reduced the funds frozen to $100,000.

44. [31]

    [31] As I was assigned to hear the Consolidated Originating Summonses, I dealt with various outstanding applications in relation to the hearing, eg, (a) an application to expunge parts of an affidavit; (b) an application to cross-examine deponents of three affidavits, (c) leave to file a response affidavit, (d) a review of taxation and a related OS No 1213 of 2009. The application to expunge parts of the affidavits was dismissed as there were no grounds to do so but Sirajs were given leave to cross-examine the Arbitrator and file a response affidavit if the Sirajs deemed it necessary. Finally the consolidated originating summonses, which arose from the arbitration, proceeded for hearing from 16 to 18 December 2009, some 8 years after the Arbitrator was appointed by the President of the SIA.

45. Extension of Time to Issue an Award

46. [32]

    [32] The Arbitrator’s error in overlooking a time limit within which to issue his award was a very serious error. Party autonomy, which is a cornerstone of arbitration, has been emphasized time and again by our highest Court. If the parties have chosen to agree to a time limit within which an arbitrator has to render his award and that contract or arbitration clause contains no provision to extend time, other than by mutual agreement, then no court is in a position to re-write the contract for the parties, (unless there is a statutory provision conferring such a power). For this reason, Redfern & Hunter’s Law and Practice of International Commercial Arbitration (4 Ed, 2004) warns at [8-66]:

47. A substantially similar passage in the 1 Edition of the above book was cited with approval in Petro-Canada v Alberta Gas Ethylene Co (1991) 121 AR 199 at 214; see also Ian MacDonald Library Services Ltd v PZ Resort Systems Inc (1987) 14 BCLR (2d) 273 where the court set aside an arbitration award made several months after the expiry of the time for making it; see also Halsbury’s Laws of Singapore, Vol 2 (Butterworths Asia, 1998) footnote 6 to [20.102]. As against that, Robert Merkin, Aribtration Law, (Informa, Looseleaf Ed, 1991, May 2009 Release states at [18.29]: “...The expiry of the time limit does not necessarily operate to remove the jurisdiction of the arbitrators, and there are a number of possibilities for the extension of time. In the first place, time may not be of the essence under the contract, so that its expiry has no effect.” With respect, I disagree with the foregoing statement by Merkin. I am of the view that the statement in Redfern & Hunter, quoted above, is the correct analysis.

48. [33]

    [33] The former Arbitration Act (Cap 10, 1985 Rev Ed), (“the AA 1985”) is the applicable Act as the 2001 Arbitration Act (Cap 10), (“the AA 2001”), only came into force on 1 March 2002 and this arbitration was commenced in July or August 2001; (section 65 of the AA 2001 provides that AA 2001 would not apply to arbitrations commenced before 1 March 2002 unless the parties have so agreed in writing). Section 15 of the AA 1985 provides:

49. There are no Singapore cases on this provision and therefore no guidelines have been previously laid down as to how a Court should exercise its discretion when an application is made under Section 15 to extend time to make an award.

50. [34]

    [34] Mr Ng, counsel for the Arbitrator, sought to rely on Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 2 SLR 609 for the proposition that under the SIA Form contract, once an award was published, delay was not a good reason to set aside an award even it was published 10 years late; a fortiori where the delay was only 1 year 2 months late. But as I pointed out to Mr Ng, that case is of no help to his client because the contract there was entered into on the 1979 SIA Conditions of Contract. That contract form did not include the important sub-paragraph 2 in Clause 37(1) which appears only from the 6 Edition onwards:

51. As noted above, the SIA Arbitration Rules were first published in January 1999 and only incorporated into the SIA Conditions of Contract Form in the 6 Edition published in August 1999. In Hong Huat Development the Court of Appeal while noting that a 10 year delay in publishing an award was deplorable, also observed that once published, the courts could not set it aside. But this does not assist the Arbitrator here because there were no rules governing the arbitration in Hong Huat that limited the time for the award to be issued. Building contract disputes arising from SIA Form contracts entered into after August 1999 would have incorporated the Rules which imposed a time limit on arbitrators to make their awards. Simply put, the issue in Hong Huat Development was different. It was for setting aside an award, inter alia, on the ground that the delay in its publication amounted to misconduct and the Court of Appeal held that despite the deplorable 10-year delay, once an award was rendered, delay per se was not a good enough reason to set aside it aside. The parties could have applied before the award was rendered to have applied to remove the arbitrator but they did not do so.

52. [35]

    [35] Mr Ng also referred me to Parkes v Smith (1850) 15 QB 297 for the proposition that a court could extend the time limit for an award to be published a second time beyond the specified date in the arbitration agreement and at a time when the award was not yet published. Mr Ng relied on the following passage in the judgement, (but I take a little more of the passage than quoted in Mr Ng’s written submissions); in response to counsel’s submission that the enlargement of time for making an award was regular, Lord Campbell CJ said:

53. I find this case of little or no assistance for two reasons. First, the case was quite different on its facts and the application to extend time was made before expiry of the time limit. This case involved a partnership dispute where the indenture dated 23 December 1846, provided that if there were any differences or disputes between the partners on the instalment payments to the retiring partner or any deductions therefrom, it would be referred to arbitration before a named arbitrator who was to render his award in writing before the expiration of 4 calendar months from the 1 day of January 1847 and that “… it shall be lawful for the said arbitrator by any writing … from time to time to enlarge the time for making his award in the said matters … but so as the period to which the time shall be so enlarged shall not exceed the 1 day of July 1847.” When such disputes arose, the matter was referred to the named arbitrator for arbitration. The arbitrator here was very careful to be mindful of his time limit. Before the expiration of the 4 months, the arbitrator extended, in writing, the time limit to 29 June 1847 as he was empowered to under the arbitration clause and thereafter, before 29 June 1847, the arbitrator applied to court to extend the time to 1 December 1847 to render his award. This order was granted by the Court. The arbitrator then rendered his award before the expiry of the extended time limit. Secondly, care should be taken when relying on such an old statutory provision where the background to that statutory enactment was quite different from the 1985 AA which was a separate statute containing 41 sections and 3 schedules. The power to extend time in Parkes v Smith was under section 39 of 3 & 4 W.4, c.42 which was an 1833 statute dealing with the law on amendment, eg, Section 1 gave the power to judges to make alterations in the mode of pleadings in the superior courts. Section 39 dealt with enforcing and upholding submissions to arbitration and tucked away at the very end of that section it provided:

54. Nonetheless, even then it is interesting to note that counsel for the plaintiff, J A Russell argued at p 307, which seemed to be accepted by the court, that the latest cases at that time, including Leslie v Richardson 6 Com. B. 378, favoured the power of the courts to enlarge time but the authority to enlarge after the expiration of a limited time has never been recognised where the clause was restrictively worded as in their case.

55. [36]

    [36] Section 15 of the AA 1985 is based on Section 13(2) of the 1950 English Arbitration Act which provides:

56. There appear to be only two reported English cases on this provision. Both provide limited guidance on their facts for the exercise of the discretion under Section 31(2) but do not lay down any general rules.

57. [37]

    [37] In Oakland Metal Co Ltd v D Benaim & Co Ltd [1953] 2 QB 261, a case decided well before The Nema, (see [38] below), the main issue before the court was whether an award was a nullity because one of the arbitrators was not qualified. The arbitration clause called for arbitration under the LME Rules, (London Metal Exchange), or the NA Rules, (National Association of Non-ferrous Scrap Metal Merchants). Both the LME and NA Rules required arbitrators to be duly qualified under their respective regimes. When disputes arose, A proposed arbitration under the LME Rules. B proposed the NA Rules. B, upon perusing a copy of the LME Rules sent by A, wrote and asked A to (i) consider using the NA Rules as the rules were substantially similar to the LME Rules, (ii) that as they, (B), had already appointed X, who was duly qualified under the NA Rules, to be their arbitrator, suggested that A should choose an arbitrator duly qualified under the NA Rules and (iii) for the arbitration to proceed under the NA Rules. A then replied on 24 December 1952 appointing Y, who was qualified under the LME Rules but not the NA Rules, as their arbitrator but made no reference to his qualification or the rules under which the arbitration should proceed. The arbitration proceeded under the NA Rules and an award was made in favour of B on 16 February 1953. A then sought to nullify the award on various grounds; the main ground being that Y was not qualified under the NA Rules. The case centres on this issue. Not surprisingly, A’s contention was given short shrift. The court held that A was estopped from raising his appointed arbitrator’s lack of qualification. A also relied upon other grounds which were all rejected. One of them was that under the NA and LME Rules, rule 7 required the award to be made and delivered to the secretary of the association within a period of 30 days from the appointment of the arbitrator last appointed; that would have been in early February 1953 whereas the award was not made until 16 February 1953. B asked the Court to extend time to make the award under section 13(b) of the English 1950 Arbitration Act. Parker, J said: “Under that section the court has a very wide discretion to enlarge the time after it has expired. It seems to me this is a proper case in which to do so, subject to this, that the court hesitates to do so if the application is made at a late date.” The learned judge went on to say that it was perfectly reasonable, given the commencement of court proceedings, for B not to make the application at once but to apply to the trial judge because if B had made such an application to the master, the master would have referred the matter to the trial judge. The court proceeded to extend the time to make the award by one month thereby validating the award which was made about a fortnight beyond the time limited to do so.

58. [38]

    [38] In Techno Ltd v Allied Dunbar Assurance Plc & Ors [1993] 22 EG 109, a rent review arbitration, the parties had agreed a statement of facts which included a certain assumption that a hypothetical building, by reference to which the rent was to be assessed, was to be of “similar…height construction and layout” to the building actually being rented, even though the assumption set out in the rent review clause was silent as to height, construction and layout of hypothetical building. However the arbitrator rejected the assumption included in the agreed statement of facts as he felt that the rent review clause was silent as to ‘height, construction and layout’, and limiting himself to the characteristics of the hypothetical premises as set out in the lease, formed a view on the annual rent and issued his award. The Court agreed with the tenant that the arbitrator had misconducted himself in discarding the assumption agreed upon by the parties and remitted the matter back to the arbitrator for reconsideration. The Court also extended the time for the arbitrator to do so. This case thus stands for the proposition that if an award is made in time, but is remitted back to the arbitrator due to some technical misconduct that could be corrected, the court will extend time for the arbitrator to do so. This is an obvious case where the discretion should be exercised to extend time in effect as an ancillary power to the court’s power to remit.

59. [39]

    [39] It is clear that section 15 of AA 1985 confers upon the court a wide discretion to extend time whether or not the time limit has expired. Whilst there are no express limitations, unlike section 36 of the 2001 AA, there is little doubt that this discretion has to be judicially exercised. The sea change in the ability to resort to the courts from arbitrations, arbitrators and their awards occurred as long ago as 1982 in Pioneer Shipping Ltd v BTP Tioxide, “The Nema” [1982] AC 724 and Antaios Compania Naviera SA v Salen Rederierna ARBITRATOR, “The Antaios” [1985] AC 191 and both of these cases have been adopted by our Court of Appeal in Hong Huat Development and in many other cases. Since then, party autonomy has been emphasized as a cornerstone time and again together with a policy of minimal court intervention by our highest court.

60. [40]

    [40] So when should a court exercise its discretion to extend time and override the parties’ agreement? A clear case to do so would be to curb abuse where a time limit is imposed by reference to the commencement of the arbitration. In such a case, it is open to a party to frustrate the arbitration by delaying tactics until it becomes impossible to comply with the time-limit: see Redfern & Hunter’s Law and Practice of International Commercial Arbitration (4 Ed, 2004) at [8-67]. For this reason, after reviewing the pros and cons and some institutional rules, the learned authors opine at [8-68] that in general it is preferable that no time limit should be prescribed. Equally where a party, by his actions, such as taking out an injunction, prevents an arbitrator from making his award within the time limit, can expect the court to extend time provided the arbitrator applies to extend time as soon as it becomes apparent that he cannot comply with the agreed time limit.

61. [41]

    [41] In my view it is clear that section 15 of the AA 1985 should be exercised by a court to prevent a substantial injustice, as in the example above, and provided there is no prejudice to the other party. The court should be slow to exercise its discretion if by doing so it overrides party autonomy which is paramount. First, if an arbitration clause is clearly worded that come what may the arbitrator must issue his award within a specified time, a court should not interfere unless there are exceptional circumstances. The parties may well have a reason to agree a tight timeline, eg, because there are downstream arbitrations which would depend on the result of the first arbitration. Secondly, unless there are very good reasons, a court should not entertain any application under section 15 if the time limit has expired, a fortiori, if the time limit has expired by a large margin. The longer the delay in making the application the less likely a court would exercise its discretion to extend time. What is a large margin must necessarily depend on the facts of each case. There should be no hard and fast rule. What is clear in this case is that the delay was by such a wide margin that I would not entertain any such application for an extension of time, a fortiori when there were letters dated 7 April 2004 pointing this out to the Arbitrator. Despite these letters, he only published his award just over one year later on 15 April 2005 and the first attempt to ask the parties to agree was only on 19 June 2006. It would not only be a prudent measure but a preferable pre-requisite that any application for extension of time should be made before expiry of the time limit agreed to by the parties for rendering the award. Any application to extend time after the time limit has expired would need very good reasons and extenuating circumstances for the court to exercise its discretion to extend time, eg, the court remits an award or part of an award back to the arbitrator to reconsider. Thirdly, the discretion is exercised if in all the circumstances of the case it would cause a substantial injustice if time were not extended. The prejudice to the other party should also be put into the scales when deciding if substantial injustice would result.

62. [42]

    [42] If a party meets these three criterion, what then would constitute good reasons for an extension? Again this is fact sensitive and no hard and fast rules should be set. Obvious examples come to mind, eg, an arbitrator may be taken ill for a substantial period of time after close of the hearing or there was a fire in his premises which caused his documents and working papers to be destroyed or the matter was much more complex than envisaged by the agreed time line and the arbitrator needs more time to render a properly reasoned award. All these would be good grounds and would likely be factors that will influence a court to exercise the discretion under section 15 to extend the time limit, especially when it is made before the expiry of the time limit. Section 15 undeniably provides that the application can be made before or after the expiry of the time limit. This caters, for example, where a serious illness or a fire intervenes just before the expiry of the time limit and the arbitrator is only able to make such an application upon recovery which is after the time limit has expired.

63. [43]

    [43] The law has moved on and I refer by way of comparison to section 36 of the AA 2001 which now lays down the following considerations for domestic arbitrations commenced after 1 March 2002:

64. (i) Unless otherwise agreed by the parties, the Court has a discretion to extend time either on the application of one of the parties or the arbitrator;

65. (ii) All arbitral processes for such an extension of time must have been exhausted before applying to the court;

66. (iii) The Court shall not grant an extension of time unless it is satisfied that substantial injustice would otherwise be done; and

67. (iv) The Court has the discretion to extend time for such period and on such terms as it thinks fit, whether or not the time limited under the arbitration agreement or by a previous order of court has expired.

68. Under section 36, three points should be noted. First all available arbitral avenues to extend time must have been exhausted. This includes asking the other party to agree. If the present case fell to be decided under section 36 of the AA 2001, then the arbitrator should try to get the consent of the parties well before the expiry of the time limit so that failing agreement of the parties, he has time to make the application to court. Secondly, section 36(4) now spells out what was silent in section 15 1985 AA; the Court will not extend time unless it is satisfied, ie, the applicant must prove on a balance of probabilities, that substantial injustice would be done if time is not extended. This also includes balancing any prejudice that the other party may suffer if time is extended. Robert Merkin, Arbitration Act 1996 (Informa: 2008, 4 Ed) at p.183 opines that the ‘substantial injustice’ test means the court should take into account relative fault, the sum at stake and the consequence of failure to act. I would agree but say that these are not the only factors to take into account, the court should be able to weigh all the facts and circumstances of the case before it. These first two points are also reflected in section 50 of the English Arbitration Act 1996, a provision upon which our section 36 is closely modelled. Reference should be made to Minermet SpA Milan v Luckyfield Shipping Corpn SA [2004] Lloyds Rep 348 and Pirtek (UK) Ltd v Deanswood Ltd [2005] EWHC 2301 for illustrations of how the English Courts have applied section 50 of their 1996 Act. Thirdly, now the parties can, by agreement, exclude the court’s power to extend time but the agreement must clearly state and preferably provide that there shall be no enlargement of time to make the award, whether by the parties or by the arbitrator. It is probably unnecessary to state expressly that they forego their rights for an extension under the AA 2001 although as a measure ex abundanti cautela the parties should do so. Unlike section 15 of the AA 1985, which applied irrespective of the parties’ agreement, section 36 (1) to (3) endorses the principle of party autonomy. Section 36 reflects the modern view that having chosen arbitration as a method of dispute resolution, there must be finality and the parties have to live with their arbitrator and his award, good, bad or indifferent.

69. [44]

    [44] It follows that the Arbitrator has failed to satisfy the foregoing criterion by being out of time by a considerate period both in the making his award and in bringing his application to extend time and also because the SIA Rules imposed a clear and strict time limit. The failure by an applicant to satisfy or fully satisfy the above criterion does not, ipso facto, deprive him from obtaining an extension of time under section 15, 1985 AA. The less fully the above criterion are satisfied, the better the reasons must be for the court to extend time. It is to this and considerations of injustice, to which I now turn.

70. The Arbitrator’s Reasons for Not Being Able to Issue his Award in Time

71. [45]

    [45] The Arbitrator gave a number of reasons for not being able to render his award within the time limited by the SIA Rules. Besides making his application well after the time limited for making his award had expired, (see [26] and [28] above), I first note that his reasons were not all within one affidavit. Some were ‘developed’ over time.

72. [46]

    [46] First, the Arbitrator complained that the issues raised were complex and/or complicated. An examination of these issues will reveal that on any view this was an overstatement; they were the usual kind of disputes one would expect in any building and construction dispute.

73. (a) The first issue listed was that there were over no less than 8 requests for extensions of time (“EOTs”), and complicated by the fact that the project architect had not dealt with them, allegations that the Sirajs had interfered with the construction schedule, including requiring works to be stopped to carry out an owner-instructed test and delay certificates allegedly being erroneously issued. The Arbitrator also stated that the complication was that he had to sort out all the above facts and the sequence of occurrence thereof. This is quite surprising. EOTs and time issues arise in almost every building and construction dispute. Any experienced architect would expect to face these issues in their everyday practice in dealing with applications for EOTs from contractors and certifying or refusing EOTs under the SIA or PSSCOC Conditions of Contract in Singapore. Moreover, the construction sequencing here would not be overly complex because they involved construction sequences for a 2-storey bungalow with an attic, basement and pool; not a warehouse, hotel, hospital or commercial complex.

74. (b) Another “complex” issue was the Contractor’s entitlement to various payments and complicated by the Sirajs’ allegations that there were 42 outstanding or defective items of work; he refers to the most serious alleged defect, described by the Sirajs as ‘life threatening’, over a discharge pipe at the basement toilet which protruded 30cm above the floor trap purportedly to cater to external water table level which was 30 cm above the basement floor. Again disputes as to entitlement to payment and deductions are commonplace and there are almost no building and construction disputes which do not feature such issues as a major portion of the disputes. The quantity surveyors may value works done, but it is the architect who finally certifies payment under the SIA Forms and it is the architect who issues the final certificate and final accounts. Assessment of defects or outstanding works are also commonly dealt with by the Architect when a project nears completion. Lists of defects or outstanding works for practical completion, TOP and CSC inspections and defects liability period occur in every construction project and these lists are issued by the architect.

75. (c) As for the protruding 30 cm discharge pipe, which was also listed as a complex and complicated issue, the Arbitrator was able to criticise the designer for designing a basement for a property at the bottom of a valley with a high water table; something he criticised as going against the forces of nature. When giving evidence, he clarified he was referring to a design defect but yet conceded he did not say so in his written award and in the portion where he gave his reasons, he wrongly said “…It is not clear whether the flooding of the Basement could be due to the low water table at that locality.” Upon being questioned, he admitted he meant “high” water table.

76. (d) The Arbitrator also had to decide whether the Contractor had completed the ‘Works’ by 9 January 2001, the contract completion date. This again is a straightforward factual issue for decision and I cannot see how it is unusually complex or complicated. It is all the more surprising as the CSC had been issued and the Sirajs were living in the Property. Again it is something that an architect has to certify as a matter of routine in all his projects in his professional life.

77. (e) Whether time was at large was another issue listed as being complex and complicated by the Sirajs’ behaviour. I note that this again often arises in building and construction disputes especially when it is linked with assessment of EOTs. I asked the Arbitrator and he certainly knew what this entailed.

78. (f) The Arbitrator also referred to the issue of whether a Certificate of Partial Re-Entry deeming Completion as at 5 April 2001 ought to have been issued by the project architect. This again is a not unusual occurrence on which an architect would be asked to make a call in projects where it is alleged the works are not complete but the owner decides to take partial possession of the works. This is one of the very certificates an architect may be asked to issue in the SIA Form. If the Arbitrator in his professional life as an architect may be called to issue such a certificate under the SIA Form, I cannot see how it could be thought of as such a complex issue for him.

79. (g) The Arbitrator had to decide what payments were due to the Contractor. There was nothing complex about this. If the Arbitrator needed to measure any quantities, he had the right to appoint an expert to assist him. Otherwise it was a straightforward question as to what payments were due to the Contractor; what sums were the Sirajs entitled to deduct for defects or outstanding works or delays in completion; what was the final balance and in whose favour it was. Whether the sum of $256,190.17 was due or not, whether it was a progress claim or a quantum meruit claim, who was to pay for the $10,557.50 bill, whether the Contractor was entitled to further payment on the Final Account were all grist for the mill. There was nothing unduly complex or complicated about these payment issues. If there were any additional complexities or complications that took these issues out of the ordinary disputes one would expect in a building and construction contract dispute, the Arbitrator has certainly not made out anything at all in that direction.

80. (h) Whether the retention sum should be released to the contractor was, quite remarkably, listed as a complicated issue.

81. [47]

    [47] A second reason given was that because the Sirajs chose not to attend the arbitration hearing, or to file Final Submissions or to give evidence, meant that he did not have the benefit of their rebuttals to the Contractor’s claims. As a result he had to spend long hours poring over the pleadings, analysing the evidence and arguments presented on behalf of the Contractor and analysing evidence submitted by the Sirajs prior to the hearing. At the hearing, the Arbitrator also emphasized that the Sirajs had submitted over 3,500 documents which he had to go through in checking them against the claims of the Contractor. This calls for comment on two scores.

82. [48]

    [48] First, the Arbitrator would have been aware of this difficulty immediately after the hearing on 24 November 2003. He was in possession of all the facts by then and should have known this was going to cause the complication or complexity he now complains of. He therefore should have taken out an application to extend time well before the time limited for the making of his award. This reason therefore cannot help him.

83. [49]

    [49] Secondly, and more significantly, it shows this Arbitrator’s lack of experience and knowledge. This squarely raises the issue of just what the duty of the Arbitrator is where one party to an arbitration involving oral evidence chooses not to attend the arbitration hearing, but has submitted documents in his list of documents and his AEICs. It is certainly not the duty of an arbitrator in a default hearing to assume the role of advocate for the absent party or to protect its interests. Guidance can be found in the standard textbooks on arbitration:

84. (a) see Mustill & Boyd, Commercial Arbitration (Butterworths, 2 Ed, 1989) at pp.537-538: “The arbitrator must properly address himself to the question whether the claimant’s evidence proves his case. This requires him not only to make sure that the evidence bears out the claimant’s assertion, but also that it has the appearance of being true, and is internally consistent. Further than this, he need not, and indeed should not, go. It is not his function to search out the truth, but to choose between two versions presented to him; and if only one version is presented, he does not thereby become an advocate for the other side.”

85. (b) see Merkin Arbitration Law (Looseleaf Ed, 2009) at [16.33]: “Faced with the need to proceed ex parte, the arbitrator’s duty is to proceed fairly as is possible under the circumstances, but the arbitrator must not act as advocates for the absent party, seeking to put forward their own theories to contradict the unchallenged evidence of the attending party, at least unless that party is given an opportunity to rebut those theories”;

86. (c) see Redfern & Hunter, the Law and Practice of International Commercial Arbitration, (4 Ed, 2004) at [6-121]: “The arbitral tribunal has no duty to act as advocate for a party who has elected not to appear, but it must examine the merits of the arguments of law and fact put to it by the participating party, so as to satisfy itself that these are well-founded.”

87. (d) this has also been endorsed by the courts, see Fox v PG Wellfair [1981] 2 Lloyd’s Rep 514, a building contract claim with alleged defects where the respondents allowed the hearing to go undefended, and although the case involved an arbitrator using his own special knowledge, Lord Denning MR said at p.522: “But in a case like this I do not think it is the duty of the arbitrator to protect the interests of the unrepresented party. If the defendants chose not to turn up to protect themselves, it is no part of the arbitrator’s duty to do it for them.”

88. Applying these principles, in my judgment, the Arbitrator was wrong to try to justify the time spent on the arbitration, by saying he had to trawl through over 3,500 documents submitted by the Sirajs to check the evidence. If an arbitrator who only heard the evidence of the Contactor’s witnesses and perused their documents put forward at the ex parte hearing, then proceeds to trawl through the documents of the absent party to see if they contradict the Contractor’s evidence, he will or may be taking evidence into account that is not even attested to or explained or put to witnesses and applying and giving effect to them in coming to his conclusions without giving the complying party a chance to comment on or rebut the same. Further it is extremely difficult for such an Arbitrator to avoid developing his own theories and doing so without giving the other party a chance to meet or rebut the same will amount to misconduct. All the arbitrator is required to do in such circumstances is to scrutinise the evidence of the attending party, ask such questions as he feels necessary on their evidence to satisfy himself that it proves their case and claims on a balance of probabilities. He is entitled to test and probe internal inconsistencies or contradictions appearing on the attending party’s evidence. He is not to act as an advocate for the absent party based on that absent party’s pleadings and/or documents and/or AEICs if they have been filed. This is standard arbitration procedure if the parties’ evidence is presented by witnesses and documents.

89. [50]

    [50] A third complaint was that the Sirajs made innumerable challenges to his handling of the arbitration. They made repeated allegations of procedural errors culminating in 22 interlocutory applications before the hearing. The Arbitrator handled that correctly by giving the Sirajs and their counsel the opportunity to ventilate them and proceed to dismiss them as they were without merit. The Arbitrator also complained that even after the hearing, the Sirajs and Dr Raman showered letters on him continually challenging his conduct citing letters of 8 (2 letters), 9 (2 letters), 10, 12, 15, 19 December 2003, 23 and 29 March 2004 and 7 April 2004 (2 letters). Having perused these letters, I can see the language used was rude and unpleasant but I cannot see that they are of such a nature that they would cause anyone, other than someone with too delicate a disposition to handle any unpleasantness and disputes, much loss of sleep in dealing with them. They certainly are not of such a nature that would unduly complicate the making of an award in a case like this. Arbitrators just have to deal firmly with parties who indulge in such tactics and who use intemperate and rude language. It is unfortunately all part and parcel of an arbitrator’s work.

90. [51]

    [51] A fourth complaint was that Siraj made complaints to the police. As these have been the subject of numerous separate applications and proceedings, I shall not repeat them here other than to give a brief summary. Siraj brought along some exhibits to a preliminary hearing. They included some pumps for the swimming pool, a mattress that was soiled by water in the basement and a box of papers or documents. The Arbitrator complained that that gave rise to the filing of police reports, complaints to the Home Affairs Ministry and the filing of Magistrate’s complaints. The Arbitrator explained to me in the witness box that he was in a bind. If he made an award in favour of the Contractor, then the Sirajs would contend (and presumably proceed to set aside his award on the ground) that he did so to spite them for filing all those reports and proceedings but if he found for the Sirajs then the Contractor would contend that he caved in to pressure (and similarly apply to set aside his award). So he had to wait until these matters were resolved before he could continue. I found this reason put forward by the Arbitrator to clearly show he did not have the necessary training, competence or experience to handle arbitrations. I asked the Arbitrator what if a party deliberately set about doing such acts to make sure his arbitrator sat tight and not make his award for a few years? Would that not be falling prey to delaying tactics? He said with hindsight, he saw what I meant. His behaviour also did not explain why he did not apply to court well before February 2004 to extend time on this ground. He would have been roundly advised by the judge not to get distracted by such manoeuvres by any party and proceed to make his award, confident in his own ability to be objective and to make his findings without bias and to stand by it no matter what antics a party may be up to in trying to delay or disrupt the arbitration process.

91. [52]

    [52] A fifth reason given by the Arbitrator for needing an extension of time was that he became the President of the SIA after his appointment. He says that unfortunately at the relevant time a lot of unexpected matters arose which involved him as the President of the SIA and these matters involved the government and government linked bodies. He had to deal with the measures after the 9/11 attack, he had to deal with finalising household shelters that were a requirement for all new buildings and then there were the discussions for legislation similar to Australia’s Security of Payment Act. SIA was opposed to the last mentioned matter as the campaign to get that legislation implied the SIA Conditions of Contract were unfair to contractors. Eventually the Building and Construction Industry Security of Payment Act was passed in November 2004. The Arbitrator set out an impressive number of meetings he had to attend at paragraphs 9, 10 and 11 of his Affidavit sworn on the 24 July 2007. The short answer to this is that an arbitrator who accepts an appointment should ensure he has the time to complete his task. All the more so when the Arbitrator should have remembered that his own professional body drafted the Rules which imposed the 60 day time limit to make an award.

92. [53]

    [53] I find that none of these factors put forward by the Arbitrator constitute reasons, let alone good reasons, to extend time to make his award out of time. He informed the parties his award was ready for collection 1 year 2 months after the time had expired for him to do so. He tried to get the parties consent to extend time more than 2 years 4 months after time had expired to make his award. Furthermore, his application to extend time under section 15 1985 AA was made way out of time, more than 2 years 7 months after the time to make his award had expired. That alone would have precluded any consideration by a court to extend time under section 15 of 1985 AA unless there were very exceptional reasons or extenuating circumstances.

93. [54]

    [54] Weighing all the above factors this case boils down to the following.

94. (a) First, was there a clear and applicable time limit within which the award had to be made? The answer is a clear: Yes.

95. (b) Secondly, was the application to extend time under section 15, 1985 AA made in time? For the reasons set out above, the answer is clearly: No.

96. (c) Thirdly, is the application supported by good reasons or grounds? Admittedly the Sirajs were difficult and obstructive but this of itself is not a reason to extend time. The Arbitrator has not furnished any good reason in support of his application. The answer to this question is thus: No.

97. (d) Fourthly, is this application supported by the interests of justice? The answer is no because the actual work done by the Arbitrator cannot be considered to serve either party’s quest for justice. The process adopted by the Arbitrator was flawed and his strange award and the manner of its publication did not engender any confidence in the dispute resolution process. Moreover, both parties considered his fee for this process to be, to put it mildly, excessive. Although this may be cured by taxation under section 36, 1985 AA, it does not arise in this case. Whilst it may be a hardship for the Contractor to have his monetary award a nullity, this is not a substantial injustice because the parties have chosen arbitration for their dispute resolution and errors of the arbitrator are part and parcel of this choice.

98. The Appointment of Arbitrators by the SIA

99. [55]

    [55] Siraj started off his cross-examination of the Arbitration by asking about his qualifications to conduct arbitrations and the Arbitrator’s “Certificate”, (marked “AS-1”), issued by the Singapore Institute of Arbitrators, (“SIArb”). Siraj questioned the Arbitrator as to how long the course lasted and his clear answer was that the course was over a few months, held during weekends and then followed by an examination. He repeated this a number of times. Siraj pressed on, pointing out that the Certificate only referred to the course being conducted on two days over a weekend, 29 and 30 March 2003 and then one day, 5 April 2003, on the next weekend, presumably for the examinations. The Arbitrator continued to deny this and said: “The three days there are the 3 days of examination after the course.” That was quite untrue.

100. [56]

     [56] After his cross-examination and re-examination, I posed some questions to the Arbitrator and gave him a chance to correct his evidence. The Arbitrator agreed with me that his course was the Entry Level Course. I reminded him of his earlier answer and re-asked him about the length of the course and he replied:

101. I then prefaced my next question with the statement that some of my ex-partners in practice attended this same course run by SIArb and I know that there were 2 days of lectures over one weekend and the next weekend was the one-day examination. I then asked him whether he would reconsider his earlier answer to Siraj. The Arbitrator however maintained his answer:

102. [57]

     [57] I know his answer to be incorrect. What the Arbitrator attended was the Entry Level Course run by the SIArb and the Chartered Institute of Arbitrators. It states so on the certificate:

103. This is well known to anyone practising or working in the arbitration field. It is also well known to anyone in the arbitration field in Singapore that this Entry Level Course is only a basic course, it does not include the writing of an award. The next level course run by SIArb will involve the writing of an award as part of the examination. These are all matters that are well publicised by the SIArb and well known in the arbitration community, (including aspirants), in Singapore.

104. [58]

     [58] More than that, the Arbitrator only obtained his Entry Level Qualification quite some time after he was appointed arbitrator by the SIA on 12 December 2001 in the dispute between the Sirajs and the Contractor. I then asked the Arbitrator whether he had any previous experience in conducting an arbitration before this appointment. His answer was no, only mediations, which of course are entirely different.

105. [59]

     [59] I must say I find this disturbing. I have also referred above to various aspects of the Arbitrator’s handling of this arbitration which showed he did not have the training, the experience nor the competence to handle this arbitration. This is well illustrated by his answer to a question I put to him, in relation to [11] above:

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