Setting Aside a Partial Award from ICC

In BYL and Anor v BYN [2020] SGHC(I) 6 the Plaintiffs sought to set aside a Partial Award obtained through an ICC Arbitration by citing two grounds:

1) The “put option ground” arising from the Tribunal’s decision to award reliefs under two put options in a shareholders’ agreement. The Plaintiffs asserted that the put option reliefs awarded by the Tribunal were in excess of jurisdiction and should be set aside under section 3(1) of the International Arbitration Act read with Article 34(2)(a)(iii) of the UNCITRAL Model Law on the basis that (i) the ICC Award was neither final nor complete in that it entirely failed to resolve the parties’ dispute and (ii) the Tribunal conferred upon itself the power to alter its decision ex post facto.

2) The “bias ground” - The Plaintiffs contended that one of the Tribunal member made belated and only partial disclosures of a co-counsel relationship that he negotiated and entered into with the Defendant’s legal representatives in the ICC Arbitration while the award was still being drafted and finalised.

In relation to the first ground, the Court rejected the Plaintiff’s arguments and propounded that there was nothing incomplete or lacking in finality, “circular”, “contingent” or “unworkable” about the ICC Award in question. Instead, the Court expressed that the pragmatic manner by which the Tribunal handled the issues do not cause the ICC Award to be unconventional, indeterminate or impermissible, and further stated that "the dispositive of the ICC Award took what might appear at first blush to be a convoluted form, not because the Tribunal was arrogating to itself the power to alter its decision depending upon post-award events" but purely because of the way in which the relevant contract clauses were drafted. Consequently, the Court is of the view that the reliance on the first ground to set aside the award should fail.   On the second “bias” ground, the Court held that the test for apparent bias in arbitration proceedings is a test of reasonable suspicion, which involves an assessment of whether there are circumstances which would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the Tribunal may be biased and that a fair hearing may not be possible as a result. In this case, the Court failed to apprehend that there had been any deliberate insufficient disclosure by the Tribunal member. The Court concluded that the Plaintiffs’ tendentious reading of what the Tribunal members have written did not infer any bad faith on the part of the Tribunal.