SGCA DEALS WITH AN INFRA PETITA CHALLENGE AGAIN

It has been less than six months since DEM v DEL [2025] SGCA 1, when the Singapore Court of Appeal ('SGCA') had another chance to address the law with respect to infra petita challenges to arbitral awards.

A quite succint judgement delivered by Sundaresh Menon CJ in DKT v DKU [2025] SGCA 23 sets out 'a clear framework for dealing with infra petita challenges to deter such unmeritorious challenges' (¶7).

FACTS

DKU, an electricity transmission services provider, engaged DKT as a contractor, inter alia, to carry out 'crack repairs on the walls and ceilings of [DKU's] buildings where necessary' (¶3). Over the span of four years, DKT submitted at least 278 claim forms for works allegedly performed.

To verify the quantity and quality of works allegedly completed by DKT and paid by DKU, the latter retained a consultancy firm. According to the firm's report, the works in questions 'were either incomplete or had not been carried out in compliance with the specifically agreed method for performing crack repairs' (¶4). Relying mainly on the said report, DKU commenced arbitration against DKT for breach of contract.

The arbitral tribunal accepted the firm's report, finding that DKT breached the contract and awarding damages to DKU. DKT made an application to set an award aside under SG Arbitration Act 2001, s. 48 (phrased almost identically to UNCITRAL Model Law, Art. 34) alleging breaches of rules of natural justice. The judicial commissioner dismissed the DKU's application. Dissatisfied, DKT appealed.

SGCA'S DECISION AND REASONING

Having identified the core issues on appeal:

• the allegation that the tribunal disregarded cetain defences DKT raised;

• the tribunal's alleged failure to apply its mind to DKT's arguments relating to the admitted flaws in the firm's report (the 'infra petita challenges'); and

• the assertion that the tribunal's reasoning as far as as such flaws were concerned was not reasonably expected by DKT;

the SGCA dismissed DKT's in its entirety.

SGCA noted that a succesful infra petita challenge requires the following conditions to be met:

• The issue allegedly not decided by the tribunal 'must have been properly brought' before it (¶8(a));

• The issue in question 'must have been essential to the resolution of the dispute', as arbitrators are not required to deal with every issue single raised, but only essential ones (¶8(b));

• The tribunal 'must have completely failed to consider the point'. '[T]he focus here is not on how well or accurately the tribunal understood, analysed and dealt with the point; but with whether it did in fact consider the appoint at all' (¶8(c)); and

• If all of the above is true, 'there must have been a real or actual prejudice occasioned by this breach of natural justice' ((¶8(d).

In SGCA's view, the tribunal 'evidently had considered' DKT's defences and had applied its mind to the DKT's arguments pertaining to the amitted flaws in the firm's report. SGCA's explained that there was no room to complain that the tribunal 'had not applied his mind sufficiently' as in infra petita challenges 'the court is not to be drawn into the merits, correctness or sufficiency of the arbitrator's analysis' (¶¶10-11).

SGCA was likewise not convinced by the last DKT's argument and found it without merit.

CONCLUSION

Considering the wording and contents of the SGCA's judgement, DKT v DKU is likely to become the leading authority on infra petita challenges both in domestic and international arbitration setting in Singapore.