A Review of the Singapore High Court’s Decision in DLS v DLT and Another [2025] SGHC 61

THE AUTHOR:
Arya Gerard, Senior Associate at TSMP Law Corporation

When does a ruling from an arbitral tribunal amount to an award and why does it matter? Can parties raise new grounds to set aside an award after the three-month time period for applications to set aside awards has passed? These issues were addressed by the Singapore High Court (“SGHC”) in DLS v DTL [2025] SGHC 61. As to the first question, the SGHC held that only decisions which definitively or finally dispose of a matter are awards under the International Arbitration Act 1994 (“IAA”), which are susceptible to setting-aside applications. As to the second question, the SGHC clarified that it may be possible to introduce other grounds for setting aside an award so long as the underlying setting-aside application was made within the three-month time period.

Background Facts

The Claimant (“Contractor”) and the Defendant (“Sub-Contractor”) were parties to an agreement for a construction project in Country X (“Project”).

The Sub-Contractor later commenced arbitration against the Contractor, claiming losses arising from delays in the completion of the Project. The arbitration was seated in Singapore, governed by the International Chamber of Commerce (“ICC”) Rules of Arbitration in force on 1 January 2021 (“ICC Rules”), and heard before a three-member arbitral tribunal (“Tribunal”).

After the constitution of the Tribunal, the Sub-Contractor brought an application seeking purported “urgent interim measures” which led to the Tribunal’s decisions recorded in the First Partial Award dated 19 June 2024 (and corrected on 9 October 2024). The Contractor sought to set aside the following two decisions in the First Partial Award (“Setting-Aside Application”) which the Tribunal granted in the Sub-Contractor’s favour, on the grounds of breach of natural justice and exceeding the scope of submission to arbitration (the “Two Grounds”):

A payment order requiring the Contractor to pay a sum of US$172,135.54 on a monthly basis to the Sub-Contractor to cover the Sub-Contractor’s operational costs until the final completion of the Project (“Monthly Payment Decision“); and

A payment order requiring the Contractor to make a one-off lump sum payment of US$117,339.48 to the Sub-Contractor (“Lump Sum Payment Decision“).

About 3 months after the Contractor brought the Setting-Aside Application, the Contractor sought the Court’s permission to add an additional ground of apparent bias in relation to one of the arbitrators (“Subject Arbitrator”) to partially set aside the First Partial Award (“Leave Application”). Prior to the Leave Application, and after the commencement of the Setting-Aside Application, the Contractor filed an application to the ICC Court of Arbitration (“ICC Court”) challenging the independence of the Subject Arbitrator (“Challenge”). The ICC Court subsequently dismissed the Challenge.

The Court’s Decision and Reasoning

Setting-Aside Application

The SGHC first considered the threshold question of whether the decisions in the First Partial Award were “awards” under section 2 of the IAA or “orders or directions” under section 12 of the IAA. The SGHC emphasised that only awards could be set aside, and that section 24 of the IAA and Article 34(2) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) accordingly have no application to orders or directions.

Adopting a substance over form approach, the SGHC highlighted the following propositions:

orders or directions are provisional in nature, and do not definitively or finally dispose of either a preliminary issue or a claim in an arbitration;
a provisional decision is inherently capable of being varied in due course;
an order for interim payment of damages prior to a final assessment is a provisional decision; and
how a decision is labelled is not decisive as to its nature.

The SGHC found that the Monthly Payment Decision was an order or direction under section 12 of the IAA, as the decision was subject to review in the final award. In particular, the Monthly Payment Decision stated that the payment order was subject to the Sub-Contractor providing security “in the event that repayment is subsequently ordered” (see [27(c)]). In fact, the Sub-Contractor had proposed providing security to support its application for the payment order, thereby implicitly acknowledging that the relief claimed was interim in nature (see [29]).

Conversely, the SGHC found the Lump Sum Payment Decision was an award under section 2 of the IAA as the Tribunal had found that the sum was owing and due to the Sub-Contractor without any conditions (i.e., with no possibility of repayment or a final assessment) (see [34]).

The SGHC dismissed the application to set aside the Monthly Payment Decision, since it was not an “award” that was capable of being set aside. As for the Lump Sum Payment Decision, although it was capable of being set aside, the SGHC did not grant the application on the Two Grounds raised by the Contractor. The SGHC observed that (i) the Lump Sum Payment Decision fell within the matters that were before the Tribunal, and (ii) there was no breach of natural justice because the Tribunal had applied its mind to the relevant issues and had provided the parties with a reasonable opportunity to present their cases (see [51]–[61]).

Leave Application

The SGHC considered two preliminary points: (i) whether the Contractor was precluded from introducing a new basis for setting-aside after the three-month period allowed for applications to set aside awards had passed (see section 24 of the IAA read with Article 34(3) of the Model Law); and (ii) the effect of the ICC Court’s decision on the Challenge.

The SGHC confirmed that the Contractor was not precluded from seeking the court’s permission to introduce a new basis for setting-aside, given that the Setting-Aside Application had been filed within the prescribed three-month time frame (see [91]). However, the court would still have to determine whether to exercise its discretion to allow the introduction of a new basis for setting-aside, by considering the following factors:

whether the new basis could and should have been raised at first instance; and
whether the new basis was hopeless.

In this instance, the Contractor’s Leave Application was filed on 5 February 2025, approximately three months after the Setting-Aside Application was commenced (13 November 2024). While the Setting-Aside Application had been filed within the prescribed three-month time limit under Article 34(3) of the Model Law, the Contractor’s Leave Application was not. The Contractor’s apparent bias argument arose from facts that it learned only after the filing of the Setting-Aside Application (see [106]). However, the SGHC ultimately found that the new basis of apparent bias was hopeless (see [186]).

The Contractor’s apparent bias argument was premised on the Subject Arbitrator’s alleged failure to disclose that he was one of the members of the arbitral tribunal in a prior arbitration involving the Sub-Contractor’s chairman in his personal capacity. The SGHC reaffirmed that the test to determine apparent bias is 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 (see [120]). In particular, even if there was non-disclosure of circumstances that ought to have been disclosed, a finding of apparent bias would not necessarily follow suit (see [123]).

As for the outcome of the ICC Court’s decision, the SGHC noted that the fact that the ICC Court had rejected the Challenge did not preclude the Contractor from seeking to set aside aspects of the First Partial Award on the basis of apparent bias (see [100]). In this regard, the SGHC’s analysis on apparent bias underscores two key principles. First, the failure to disclose a relevant circumstance does not, without more, establish apparent bias. The Court must still assess whether the undisclosed matter would give rise to justifiable doubts as to the arbitrator’s impartiality in the eyes of a fair-minded reasonable person. Second, institutional decisions on arbitrator challenges, such as those rendered by the ICC Court, are not binding on the Singapore Courts exercising supervisory jurisdiction over arbitral awards, though they may be relevant to the court’s analysis.

Commentary

The SGHC’s judgment is noteworthy in three respects.

First, the SGHC’s decision affirms the Singapore courts’ adoption of a substance over form approach in determining the nature of arbitral decisions. Parties to arbitral proceedings should frame the interim relief sought in a manner that safeguards the relief from challenges raised by way of setting-aside applications. For instance, parties seeking interim payment orders should expressly characterise the relief as provisional and subject to adjustment in the final award, include conditions such as security or repayment obligations in the event of an adverse final determination, and avoid language suggesting that the tribunal is making a final disposition of the underlying claim. In practice, this may involve requesting that the Tribunal’s order expressly states that it is without prejudice to the parties’ rights in the final award (e.g., Article 28(1) of the ICC Rules, which contemplates interim measures that preserve or restore the status quo). By structuring relief in this way, parties can minimise the risk that an interim measure is reclassified as a final award susceptible to setting aside.

Second, to determine if there was apparent bias based on the Subject Arbitrator’s alleged non-disclosure, the SGHC considered the interaction between the ICC Rules, the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (1 January 2021), and the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (“IBA Guidelines”). Notably, the SGHC outlined that the disclosure obligations under the IBA Guidelines appear to be greater than those under the ICC Rules, given that a subjective test is applied to determine both independence and impartiality (see [163]). Arbitrators should remain alive to the Orange List at Part II of the IBA Guidelines, which sets out a list of situations giving rise to doubts as to the arbitrator’s independence or impartiality and may warrant disclosure depending on the circumstances. The practical implication of this divergence is significant: compliance with the disclosure requirements under the applicable institutional rules may nonetheless fall short of the standard contemplated by the IBA Guidelines. This raises the question of whether the IBA Guidelines’ broader disclosure standard should be adopted universally as a baseline requirement across all institutional rules. Proponents of universal adoption would argue that a higher disclosure threshold promotes transparency and reinforces parties’ confidence in the impartiality of the Tribunal. However, critics may contend that overly expansive disclosure obligations risk generating unnecessary challenges and satellite litigation, thereby increasing costs and delays. The SGHC’s decision suggests that, at least in Singapore, the IBA Guidelines serve as a useful reference point for assessing disclosure adequacy, even where the applicable institutional rules impose a narrower obligation.

Third, the SGHC interpreted the three-month timeline to file a setting-aside application to apply to the underlying Setting-Aside Application only. That said, parties should be mindful that they would not usually be permitted to introduce new facts and circumstances that could and should have been raised at first instance if such facts were already known at the time of the filing of a setting-aside application. The permissibility of including new facts and circumstances would primarily depend on (i) whether the opposing party would suffer prejudice that cannot be compensated by costs, (ii) the stage of the proceedings at which the amendment is sought, and (iii) whether the new ground is supported by facts that were not previously available to the applicant.

Recently, the Ministry of Law (“MinLaw”) commissioned the Singapore International Dispute Resolution Academy (“SIDRA”) to conduct a study on the international arbitration regime in Singapore. One of the questions SIDRA considered was whether the time limit to file a setting-aside application should be reduced. SIDRA was of the view that the current three-month time limit for setting aside applications should not be reduced but that a new provision should be enacted to extend the time limit in setting aside applications involving fraud or corruption. Given that MinLaw’s public consultation on the IAA concluded on 2 May 2025, it remains to be seen whether any amendments to the IAA will be made in respect of the three-month timeline and how the Singapore courts will interpret such a provision.

ABOUT THE AUTHOR

Arya Gerard serves as one of the Co Vice-Chairpersons of the Technology and Innovation Committee at the Law Society of Singapore. She has experience working on arbitration cases under the SIAC and ICC Rules. Arya also has a keen interest in the challenges posed by emerging technologies and actively participates in initiatives that promote the responsible adoption of information technology within the legal community. Through her practice and continued engagement with technological trends, she hopes to help shape legal responses that balance technological advancement with the public interest.

*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.