In CDM and anor v CDP [2021] SGCA 45, the appellants sought to set aside an award on grounds of excess of jurisdiction and/or breach of natural justice. The Singapore Court of Appeal found, in light of the parties’ pleadings, agreed list of issues, evidence adduced, and submissions in the arbitration, that none of the grounds for setting aside relied on by the appellants was made out. The Court of Appeal also declined to adopt the position in Hong Kong, where there exists a default position that a party which has unsuccessfully sought to set aside an arbitral award will be liable to pay the successful party’s costs on an indemnity basis.
The key findings of the Court of Appeal were as follows:
- The jurisdiction of an arbitral tribunal is, for the most part, defined by the pleadings filed in the arbitration. While the Notice of Arbitration and the Statement of Claim lay out the dispute from the claimant’s perspective, it would be incorrect to treat them as exhaustively defining the jurisdiction of the tribunal [at [1]].
- The fact that a party to arbitration has formed the view that the tribunal had decided the dispute on a matter which it perceived as not being the “focus” or “crux” of the dispute is not a basis for asserting that the tribunal had acted in excess of jurisdiction [at [44]].
- While the category of “exceptional circumstances” attracting indemnity costs is not closed, it would do violence to the notion of such circumstances having to be “exceptional” if every instance of an award being challenged unsuccessfully could be said to, at least presumptively, be an “exceptional” circumstance warranting indemnity costs. More fundamentally, such an approach is not reflective of Singapore’s approach to indemnity costs. Thus, rather than create a presumption that indemnity costs apply in every instance where an application to set aside has been unsuccessful, the setting-aside context should be merely one of the factors the Court takes into consideration when deciding whether or not to order indemnity costs [at [53]].
See the Summary of the case here.
