According to UNCITRAL Model Law, Art. 34(2)(a)(iii), a court at the seat may set aside an arbitral award that contains decisions on matters outside the scope of submission to arbitration (i.e. ultra petita or extra petita awards).
What about infra petita awards, or awards that fail to address all matters in arbitration? Can parties challenge such awards based on Art. 34(2)(a)(iii) or must they rely on a different ground?
The Singapore Court of Appeal gives answers to these questions in DEM v DEL [2025] SGCA 1, the court's first judgment of this year.
FACTS
In 2019, DEL, DEM, and two other parties entered into a business purchase agreement ('BPA') concerning the sale of a franchised enrichment centre. Shortly after, DEL 'realised that the Franchise was generating less revenue than expected because [DEL and two other parties]: (a) diverted clients and staff to a new enrichment centre; (b) misappropriated teaching curriculum; (c) misrepresented the Franchise's revenue potential' (¶7).
DEL commenced a SIAC arbitration against DEM et al. under BPA. While the respondents in arbitration were represented by a single counsel at the commencement stage, later DEM ceased to be represented and stopped participating in arbitration.
SIAC appointed a Sole Arbitrator and arbitration progressed.
Before the substantive hearing, DEL settled with other parties and the proceedings continued against DEM only. DEM did not appear before the Sole Arbitrator at the substantive hearing. Unexpectedly, right after the hearing, the Sole Arbitrator received an email from an unknown address ('J Email Address').
The sender alleged to be DEM and that the other respondent had informed him of the proceedings. DEM also requested that all correspondence be sent to J Email Address. Having verified those allegations with counsel for that other respondent, the Sole Arbitrator found the sender's allegations to be false and proceeded with arbitration, ultimately, finding in favour of DEL.
In summer 2023, DEL obtained a judgment entered in terms of the award from the Singapore courts, and later applied to serve the enforcement judgment at DEM's three last known email addresses and via eLitigation to his Singpass inbox. However, a day after the application, DEM sent an email to SIAC and the process server for DEL's counsel from J Email Address. DEM alleged that he was only recently made aware of the award and had not been given proper notice of the arbitration.
Later, DEM sought to set aside the award under SG Arbitration Act 2001, s. 48 (phrased almost identically to UNCITRAL Model Law, Art. 34) alleging: (a) a lack of proper notice; (b) failure to consider an essential issue (i.e. the infra petita ground); (c) breach of natural justice; and (d) breach of public policy as grounds.
SGHC'S DECISION AND THE APPEAL
In DEM v DEL and another matter [2024] SGHC 80, Singapore High Court dismissed DEM's challenge. The SGHC found, inter alia, that: (a) the delivery of the arbitration documents to DEM's physical and email addresses indicated in BPA constituted proper notice, and that, in any event, proper service would not have made a difference, as DEM chose not to participate in arbitration; (b) on proper reading of the award the Sole Arbitrator had implicitly dealt with the allegedly not-considered essential issue; (c) allegations of the breach of natural justice were 'parasitic on the first two grounds and therefore also failed' and (d) other claims did not meet the high threshold required to invoke the public policy ground (¶17).
DEM appealed, dropping the public policy ground, while maintaining the rest. DEM argued that SGHC erred in finding that he had been properly notified since BPA did provide for service by email and that the Sole Arbitrator had implicitly considered the essential issue. As far the breach of natural justice ground was concerned, DEM alleged the breach of the fair hearing rule.
SGCA'S DECISION AND REASONING
Singapore Court of Appeal dismissed DEM's appeal in its entirety.
On the alleged lack of proper notice ground, SGCA noted, inter alia, the following.
The non-service of the notice of arbitration under the then effective SIAC Rules woud not per se be fatal to the award, provided 'the evidence is clear that the other party had "proper notice", which may be actual or deemed (¶27). The former requires proof 'that the arbitral respondent in fact knew about the arbitration and was in a position to fully present its case', while the latter, being the notice effected in accordance with the agreeed contractual provisions, 'may be relied upon where there is insufficient proof of actual notice' (¶¶ 28 & 30).
The 'the concepts of "notice" and "service" should be distinguished ... the relevant inquiry is whether a party was adequately notified of the arbitration such that it was given a full opportunity to participate in the same' and the focus of such inquiry is on the subtance not the form of a notice (¶29). '[E]ven if proper notice is not given, the challenging party will stilll have to establish that the absence of notice has impacted its ability to present its case' (¶31).
In present case, DEM had actual notice of arbitration as evidenced by his email to the Sole Arbitrator, and even if he had not the delivery of the arbitration documents to his physical and email addresses indicated in BPA was sufficient evidence of the deemed notice (¶¶32-50). Therefore, 'the complaint of lack of proper notice was ... without merit' (¶51).
On the Sole Arbitrator's alleged failure to consider essential issue, SGCA, inter alia, found that:
UNCITRAL Model Law, Art. 34(2)(a)(iii) and its 'national counterpart' SG Arbitration Act 2001, s. 48(1)(a)(iv) only contemplate ultra petita challenges to awards, where the tribunal exceeded their mandate. Therefore, infra petita challenges do not fall within the abmit of these provisions and 'should be better rationalised as a separate and independent natural justice challenge' (¶¶53-58).
Against this background, the principles applicable to natural justice challenges as formulated in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2020] SGCA 12 apply to infra petita challenges (¶59). To wit, a challenging party shall, among other things, demonstrtate prejudice arising from the tribunal's alleged failure to consider a certain issue (¶67). Further, a party cannot raise an infra petita challenge where it had deliberately chose not to participate in the arbitration, did not make any statements and submissions and, consequently, failed to raise the issue that was the subject matter of its infra petita challenge (¶63).
Although SGHC was wrong to find that the Sole Arbitrator had implicitly considered the essential issue, his failure to do so 'did not constitute any breach of natural justice because the omission would have been direct consequence of [DEM's] failure to raise the issue by reason of his non-participation in the Arbitration' (¶62) and DEM did not prove any prejudice caused by such ommission, in any event (¶67).
Since the breach of the natural justice challenge was parasitic to the above, SGCA found it without merit.
CONCLUSION
SGCA's judgment in DEM v DEL is yet another example of the high threshold for a successful infra petita challenge. It also serves as a stark reminder that a properly notified recalcitrant respondent bears all risks of non-participation in the arbitral proceedings. Finally, although DEM v DEL, [2025] SGCA 1 concerned a challenge to a domestic award, the principles laid down by the SGCA are of relevance to similar challenges to international awards as the express references to the Model Law and the CMNC's judgment so imply.