CONCURRENT ARBITRATIONS AND NATURAL JUSTICE
In DSS v DST [2026] SGHC 145, the Singapore High Court held that substantial similarities between awards issued in concurrent arbitrations did not, on the facts, establish apparent bias or any breach of the fair hearing rule, and it therefore declined to set aside the award.
Background. The case arose from two related time charterparty arbitrations concerning the same vessel: a “Head Reference” between the owner and the head charterer (which resulted in the “Head Award”), and a “Sub-Reference” between the head charterer and the sub-charterer (which resulted in the Award that is the subject matter of the setting aside application) (Judgment [1]–[2]).
Separate tribunals were constituted, but the arbitrations were heard concurrently, with both tribunals sitting together and issuing separate awards (Judgment [2]).
The complaint arose because there were substantial similarities between the Head Award and the Award(Judgment [3]).
The claimant alleged that those similarities showed that the Sub-Reference tribunal (the “Tribunal”) had prejudged the matter, giving rise to apparent bias, and had also breached the fair hearing rule by deciding the case on a basis not contemplated by the parties (Judgment [3]).
The claimant alleged that 108 out of 211 paragraphs of the Sub-Reference award consisted of wholesale or substantial reproductions from the Head Award, extending to findings of fact and legal analysis on contested issues (Judgment [28]).
The defendant accepted that there were substantial similarities, but argued that they did not amount to apparent bias, particularly given the concurrency order, the overlap in issues, and the parties’ consent to inter-tribunal discussions (Judgment [32]–[34]).
In the interests of brevity, this article will focus primarily on the portion of the judgment where the Court addressed concurrent hearings, as well as the rule against bias.
The framework. The Court treated the complaint as engaging both pillars of natural justice: the rule against bias and the fair hearing rule. It also distinguished between two aspects of the fair hearing rule, namely whether the Tribunal had properly applied its mind to the issues and evidence, and whether it had decided the case on a basis not contemplated by the parties by relying on the head award (Judgment [45]–[50]).
The Court further held at Judgment [58]–[61] that the test of reasonable suspicion applies not only to apparent bias but also to the fair hearing rule in the arbitral context, while the separate requirement of prejudice remains an important safeguard against unmeritorious challenges at Judgment [59].
Concurrency is not consolidation. The Court made clear that concurrent hearings are not objectionable in themselves, but may raise natural justice concerns if proper safeguards are not maintained (Judgment [70]).
An agreement for arbitrations to be heard concurrently, even with inter-tribunal communications or discussions, does not consolidate the proceedings or merge the tribunals (Judgment [70(a)]).
The consequence is important: each arbitration remains separate, and each tribunal must consider the issues before it independently (Judgment [70(a)]).
Separate awards should be issued, and each award should reflect that tribunal’s own reasons, preferably in its own words (Judgment [70(b)]).
The Court accepted that concurrent arbitrations often involve common issues of fact or law, and that different tribunals may arrive at the same conclusion for substantially the same reasons (Judgment [70(c)]).
But the Court cautioned that if there are no meaningful differences between the awards, the impression conveyed to a fair-minded and informed observer may still be one of bias (Judgment [70(c)]).
Copying is not automatically fatal. The Court did not treat copying as objectionable in the abstract. The analysis depends on the nature, extent and manner of the copied material, as well as the overall impression conveyed by the award (Judgment [62]–[65]).
Copying uncontested background facts or descriptive material is less likely to raise concern (Judgment [64]–[65]).
Copying contested findings, substantive reasoning, errors, unexplained inconsistencies, or material bearing on decisive issues is more likely to support an inference that the tribunal failed to exercise independent judgment (Judgment [64]–[65]).
In Judgment [96], the Court Court recognised that copied findings on contested facts carry greater weight because such findings would require the tribunal to evaluate the evidence and exercise judgment independently.
However, the Court identified examples at Judgment [98]–[100] where the Tribunal went beyond mere description, including its assessment of the Captain’s evidence and the inferences it drew about the reconnection of the gangway.
At Judgment [101], the Court accepted that those findings had been expressed in identical terms to the Head Award and that “these would, at first glance, raise concerns as to whether the Tribunal had truly evaluated the evidence with an open mind, as opposed to simply being predisposed to make the same factual findings as in the Head Award”.
But the Court did not stop there.
At Judgment [102]–[103], the Court held that a number of other passages relied on by the claimant were not truly evaluative findings at all, but were primarily descriptive recitations of the evidence.
At Judgment [104]–[105], the Court held that the copying of genuinely evaluative findings formed only a minor part of that section and was insufficient, when the award was viewed as a whole, to give rise to a reasonable suspicion of apparent bias.
At Judgment [106], the Court gave three further reasons why the copied factual findings did not cross the line.
First, the head reference and sub-reference arose out of the same factual matrix and were heard concurrently.
Secondly, the claimant could not identify any factual issue specific to the sub-reference that the Tribunal had failed to address.
Thirdly, the impugned findings relating to the Captain’s evidence were ultimately immaterial to the resolution of the dispute because the Tribunal’s decision turned elsewhere, including on the Clause 44.1 issue.
The legal issues. The same pattern appeared in the Court’s treatment of the legal analysis.
On the Clause 44.1 issue, the Court noted at Judgment [112]–[113] that both tribunals were dealing with essentially the same contractual question, in a chain of charterparties, on materially overlapping arguments and materials.
Against that backdrop, the Court held at Judgment [114]–[119] that the similarities in reasoning were within “reasonable limits” and did not rise to the level of apparent bias, and that the Tribunal had tailored its analysis to the sub-reference and relied on material not cited in the head award.
The overall conclusion on apparent bias. At Judgment [137]–[139], the Court emphasised that the award had to be assessed holistically.
A significant portion of the similar material was descriptive or related to points that were not decisive, while there was “ample evidence” that the Tribunal was alive to differences between the two references and had addressed sub-reference-specific arguments separately.
On that overall assessment, the Court held that a fair-minded and informed observer would not reasonably suspect that the Tribunal had approached the sub-reference with a closed mind.
Takeaway. While the setting aside failed in this case, as the Court cautioned at Judgment [70], “[w]hile concurrent hearings are not objectionable in themselves, issues of natural justice may readily arise if appropriate procedural safeguards are not put in place.”
This is an important takeaway. When dealing with complex disputes, case management tools are important, but such tools must always be used with the relevant and appropriate safeguards in place.
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