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A recent Singapore International Commercial Court ("SICC") decision considered the extent to which an arbitral tribunal can exclude evidence after a specified date.

It is often said that arbitral tribunals are the masters of their own procedure. However, there are limits to the powers available to tribunals to sanction parties which fail to adhere to procedural deadlines or to comply with agreed procedures. Unfortunately, frustration among users with a lack (or perceived lack) of sanctions to effectively manage defaulting parties in arbitration is common.

In the recent decision of CYW v CYX [2023] SGHC(I) 10, the SICC considered the extent to which an arbitral tribunal can exclude evidence after a specified date. The SICC decision, which was handed down on May 31, 2023, illustrates the Singapore courts' deferential approach to the review of procedural decisions by tribunals and, at least in Singapore, dispels the misconception that tribunals have no teeth when it comes to enforcing procedural timelines.

During the course of the arbitration, the claimant repeatedly failed to comply with timelines ordered by the Tribunal. The Tribunal then gave the claimant an ultimatum and ordered that, unless the claimant were to submit its witness statements, expert reports, and English translations of all its Bahasa Indonesian exhibits and legal authorities relied upon by a certain date, they would not be admitted. The claimant did not comply with this deadline, and the Tribunal eventually issued an award in the respondent's favour.

The claimant applied to the SICC to set aside the award on the basis that the Tribunal's above procedural orders constituted a breach of natural justice.

In dismissing the set-aside application, the SICC emphasised that tribunals in Singapore arbitration proceedings are entitled to a margin of deference in exercising their procedural powers. The proper test is for the court to ask itself whether the tribunal's conduct falls within the range of what a reasonable and fair-minded tribunal might have done. Considering the facts, the SICC found that it was open to the tribunal to exclude the claimant's evidence because:

• • The tribunal had made clear that the hearing dates were firm;
  • The procedural orders were made in circumstances where there had been consistent noncompliance with the Tribunal's timelines and multiple extensions of time granted by the Tribunal;
  • The claimant had had many months to draft and submit its expert report and witness statements even before the final deadline was imposed. Further, in imposing its final deadline, the Tribunal had already taken into account the difficulty the claimant faced in obtaining instructions and the fact that its witnesses had contracted Covid; and
  • The claimant's conduct, if allowed to continue, would have led to an adjournment of the hearing and thereby compromised the respondent's legitimate interest in the prompt determination of the arbitration.

Tribunals are entitled to deference in decision-making on matters of procedure and, as the case of CYW v CYX highlights, in dealing with noncompliance.

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*Originally published at Enforcement of Arbitration Timelines in Singapore | Jones Day

The authors are lawyers at the global law firm Jones Day.

The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.