The Court of Appeal of the Singapore Supreme Court recently upheld the setting aside of an arbitral award passed by a tribunal led by former Chief Justice of India (CJI) Dipak Misra after discovering that 47% of its contents - 212 out of 451 paragraphs - were copied verbatim from two prior awards involving the same presiding arbitrator.
While dismissing an appeal against
an order of the Singapore International Commercial Court (which is part of the High Court), a bench of Chief Justice Sundaresh Menon and Justice Steven Chong ruled,
"...the Parallel Awards were used as templates in drafting the Award to a very substantial degree. It is undisputed that at least 212 paragraphs from the Parallel Awards were retained in the 451-paragraph Award. This has several implications.”
The dispute arose from a contract between a special-purpose vehicle managing freight corridors in India and a consortium of three companies involved in infrastructure projects. The disagreement centred on whether a 2017 Indian government notification increasing minimum wages entitled the consortium to additional payments under their contract.
When negotiations failed, the matter went to arbitration in Singapore under the International Chamber of Commerce (ICC) Rules. The tribunal, also comprising former Madhya Pradesh High Court judge Justice Krishn Kumar Lahoti and former Jammu & Kashmir High Court Chief Justice Gita Mittal, ruled in favour of the consortium in November 2023.
High Court findings
The award was appealed before the Singapore High Court on the ground that the tribunal had copied extensively from two prior awards in related arbitration involving the same presiding arbitrator. All three tribunals were chaired by Justice Misra. The co-arbitrators were not involved in the parallel arbitration.
The High Court found that this approach breached natural justice by:
1. Failing to independently assess the parties’ arguments—some portions referenced submissions from the prior arbitration that were not made in this case.
2. Applying incorrect contractual terms and legal principles, including referencing the wrong version of a key clause and mistakenly applying Indian instead of Singaporean arbitration law.
3. Creating an appearance of bias, as the tribunal appeared to rely on prior decisions rather than considering the case afresh.
Court of Appeal ruling
At the outset, the Court said that it is not inherently wrong for an arbitrator to resolve two related disputes in the same manner. However, given that all three cases had differences, it held,
"That is simply not the case here, where not only was there no possibility of the parties addressing the points raised or conclusions reached in the separate proceedings, but portions from the Parallel Awards were reproduced in the Award, without even being adjusted for differences in the arguments made or in the terms of the applicable contracts."
The Court of Appeal identified three key breaches of natural justice.
Apparent bias
The Court found that a fair-minded observer would reasonably suspect that the tribunal had approached the arbitration with a closed mind, having been improperly influenced by the earlier decisions.
According to the Court, by using previous awards as templates, the President (Justice Misra) created a strong appearance of prejudgment. The Court identified specific cognitive biases at play: anchoring bias (where initial information disproportionately influences later judgments) and confirmation bias (the tendency to favour information that confirms existing beliefs). The extensive copying - nearly half the award - made it reasonable to suspect the tribunal had not truly considered the unique aspects of this case on its merits.
“We are therefore amply satisfied that a fair-minded observer having formed these suspicions would have concluded that the integrity of the decision-making process had been compromised and agree with the Judge that the allegation of apparent bias has been made out.”
Reference to extraneous materials
According to the Court, the tribunal drew on materials from the parallel arbitration that the parties had no access to and therefore couldn't address. The Court recognised that by importing substantial content from parallel arbitration without disclosure, the tribunal effectively denied the parties their right to be heard on that material.
“Applying this to the present case, the patently substantial material derived from the Parallel Arbitrations were extraneous considerations that had not been raised to the parties' attention. That material formed such a pervasive part of the Award that it simply could not be overlooked. It was plain that it was neither contemplated nor agreed to by the parties that the Award could be prepared by such a process. For these reasons, we again agree with the Judge that there had been a breach of the fair hearing rule.”
Inequality among arbitrators
As only the President had knowledge of the parallel arbitration, the co-arbitrators were placed in an unequal position, undermining the integrity of the decision-making process, the Court found. It acknowledged that when one arbitrator has access to information others don't, the collective decision-making process is compromised. According to the Court, party-appointed arbitrators are expected to act independently and impartially, with equal ability to influence the outcome. The unequal access to information undermined this fundamental expectation and further damaged the integrity of the arbitral process.
We also consider that the expectation of equality as between the Arbitrators was compromised. While, as we have noted, there is no evidence as to what actually transpired between the members of the Tribunal, it is known that the two co-arbitrators in this case were not privy to the Parallel Arbitrations. They would thus have had no direct access to any material or knowledge derived from those proceedings, but which appeared to have significantly influenced the outcome of the present Arbitration. The integrity of the Arbitration was therefore further compromised as a result.”
In its conclusion, the Court ruled that it does not insinuate any bad faith on the arbitral tribunal, but the award itself had to be set aside to safeguard the integrity of the process.
“Rather, our decision rests on the importance of safeguarding the integrity and fairness of the arbitral process, which is the primary right accorded to those who opt to resolve their disputes through this means."
This is like a student who copies from a previous exam paper without putting her/his mind to the question posed.
That an ex-Chief Justice of India should be caught in this fashion is a huge loss of credibility for the Indian side as it shows that instead of taking a fresh look at the matter, the CJI just copy pasted the previous conclusion.
Is this how low justice has descended in India that even after having competent legal personnel Indian justices should offer such a shoddy face to the world?