No Set Aside By Reason Of Failure To Call Witness

Corrs Chambers Westgarth review the Singapore High Court’s 2019 decision in BVU v BVX [2019] SGHC 69, where the Court dismissed an application to set aside an international arbitral award because of non-disclosure by a party to the arbitration (in the form of a failure to call employees as witnesses and disclose key documents), which the opposing party considered crucial evidence. The arguments – that the award should be set aside on the basis that the award was induced or affected by fraud or corruption and that the award was in conflict with Singapore’s public policy – both failed.

The authors observe that there are two noteworthy aspects to the decision – first, it is a reminder that the bar to set aside an award on grounds of non-disclosure is high; not only must a non-disclosure be shown, but it must have been deliberate, must have affected the outcome of the arbitration, and cannot have been done for a good reason, meaning that if a non-disclosure issue arises during an arbitration, it is dangerous to treat it as ‘a card in hand’ to be played to resist enforcement later; and second, it is a good illustration of the dangers of approaching arbitration with the presumption that usual Court-based procedures and obligations apply. … READ MORE

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About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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