Mr Kevin Ho                                         Ms Grace Loke
(65) 6499 9483                                    (65) 6499 9487
kevin.ho@braddellbrothers.com      grace.loke@braddellbrothers.com

In AKM v AKN [2014] 4 SLR 245 (“AKM v AKN”), an interesting recent decision peppered with references to the Lord of the Rings (to anonymize the parties), the Singapore High Court set aside an SIAC arbitral award on the basis that the tribunal had failed to properly consider the losing party’s arguments, and hence deprived it of natural justice.

The Singapore High Court found inter alia that the tribunal had in its award (i) failed to deal with an important aspect of the losing party’s arguments; (ii) misstated the losing party’s position; (iii) failed to mention concessions by the opposing party; (iv) failed to analyse the losing party’s submissions; and (v) departed in a significant respect from the submissions of both parties, and in particular, from the submissions of the winning party.

The decision has been regarded as bold by various commentators, given that in an earlier decision by the Singapore Court of Appeal - BLC v BLB [2014] 4 SLR 79, it was said that a Singapore court – when faced with an application to set aside an award for an alleged failure to consider a party’s arguments – should be wary of such allegations; the court had to look “at the entirety of the arbitral award instead of “assiduously combing an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process”. In contrast, the Singapore High Court in AKM v AKN appeared to have engaged in a close examination of the arbitral award, devoting a significant part of its judgment to how the award was written.

It is unclear whether AKM v AKN will survive on appeal. What is certain however is that arbitrators now have a timely reminder to ensure that in their awards, the parties should be able to see their main arguments set-out accurately, and then ruled upon. Additionally, we may now see SIAC arbitrators employing a procedural tool akin to ‘terms of reference’ (a feature of ICC arbitrations) where each party states its case, on which both parties as well as the tribunal then sign-off, to prevent similar setting-aside applications being made against their awards. Such a practice has its merits - both the tribunal and the parties can use that document as a convenient checklist to ensure that all arguments made by the parties are adequately ventilated and dealt with.