SICC sets aside “copy-paste” arbitral award passed by tribunal headed by retired Indian judge

The Singapore International Commercial Court (SICC) recently set aside an international arbitral award passed against a Government of India freight railway network company on finding that significant portions of the award appeared to be “copy-pasted" [DJO v DJP and others]..International judge Simon Thorley termed the case an “unusual and troubling” one and concluded that the manner in which the arbitral award was drafted by the arbitral tribunal breached natural justice principles and raised apprehensions of bias.Notably, the “copy-paste” issue arose as one of the three arbitrators (retired Indian judges) who delivered the November 2023 arbitral award - referred to as "Judge C" - was also the presiding member for two other arbitration cases that involved similar (but not identical) disputes.Since such “copy-paste” work indicated that the arbitral tribunal did not independently apply its mind to the unique facts of the present case, Judge Thorley concluded that he had no option but to set aside the award.“…the result of the Tribunal’s copy-and-pasting meant that the reasons in the Award were no reasons at all…The Award did not rehearse the submissions actually made to the Tribunal, but attributed submissions made in the earlier arbitration – repeated almost verbatim – to counsel in the Arbitration. There can, to my mind, be no clearer indication to such an observer that Judge C may have approached the matter with a closed mind…With regret, I conclude that the assertion of apparent bias against Judge C, a highly experienced judge and arbitrator, is well-founded…In sum, I accept DJO’s submission that the Award was made in breach of natural justice and is therefore liable to be set aside on that ground,” the August 15 ruling said..However, the SICC stopped short of terming the lapse an act of plagiarism, since it appeared less to be a dishonest act, and was more an attempt to cut short the arbitral tribunal’s work. Judge Thorley, therefore, rejected an argument that the award was against Singapore’s public policy, which frowns upon plagiarism..A team from PSL Advocates & Solicitors comprising Sameer Jain and Anu Sura instructed the team from Duxton Hill Chambers, Singapore comprising Chan Leng Sun SC (lead counsel), Tham Lijing and Nathaniel Lai who represented the claimant (DJO).Ashish Chugh, Nicholas Tan and Darien The (Wong & Leow LLC) represented the defendants (Consortium X)..Background.The dispute emerged in 2020 between a special purpose vehicle set up by the Indian government ("DJO") and a consortium (referred to as “Consortium X” in the ruling) of three companies who had entered into an agreement in 2015 to lay down railway lines for certain freight trains in India.Notably, in 2017, the Indian government issued a notification to raise the minimum wages payable to workers.Three years later, in March 2020, Consortium X issued a communication to DJO, requesting additional payments to factor in the notification to raise minimum wages.After differences arose over DJO’s obligations, an arbitral tribunal with three retired Indian judges as members was constituted in April 2022. Two members (Judge A and Judge B) of the tribunal were appointed by the parties, while the third member (Judge C) was nominated by the other two members. Pertinently, Judge C was also the presiding member of the arbitral tribunal that had decided on two similar arbitration cases ("CP-301" and "CP-302") a short while before he was appointed to examine the present case.In both the earlier cases, the arbitral tribunal presided by Judge C had ruled in favour of a consortium (Consortiums Y and Z) that had pursued a claim against DJO.In November 2023, the third ruling (in the present case) was also rendered in favour of the Consortium (Consortium X) and against DJO.DJO (claimant) questioned the correctness of this award before the SICC.The claimant pointed out that over 200 paragraphs in the November 2023 arbitral award were verbatim reproductions from the awards in CP-301 and CP-302.“Consortium X takes issue with the exact number and the degree of reproduction but accepts that at least 212 paragraphs of the Award were taken,” the SICC noted..SICC ruling.In his August 15 ruling, Judge Thorley agreed with DJO’s contention that the "copy-paste" involved in the award led to a breach of natural principles. Rather than approach the case at hand afresh, the tribunal used the awards in CP-301 and CP-302 as “templates”, which it then modified to a version that appeared to suit the case at hand, the SICC said. The ruling also contains comparative tables to show examples of paragraphs that were copy-pasted.Among other aspects, the SICC noted that:.Arguments recorded in one ruling were reproduced in the other but with a change of the counsel’s name; Authorities not cited by the counsel during the arbitration, but which found mention in the two previous cases, were relied on in the 2023 arbitral award. Nine such cases were identified by DJO. The wrong law of arbitration (lex arbitri) was applied to calculate costs and interests. Notably, Indian arbitration law governed the two previous cases, while Singapore’s arbitration law was applicable to the present case. Some reproduced observations made “no sense” in the context of the arbitration in which the November 2023 award was pronounced; References were made to provisions that were not found in the contract. The tribunal failed to consider certain unique issues to the case at hand..Opining that the right to a fair, independent and impartial award was affected, the SICC proceeded to set aside the award..[Read Judgment]