1 This was an application under s 48 of the Arbitration Act 2001 (2020 Rev Ed) (the “AA”) to set aside the arbitral award No 99 of 2023 dated 31 July 2023 (the “Award”) ¹ made in the SIAC Arbitration No 166 of 2022 (the “Arbitration”) by the sole arbitrator (the “Tribunal”).

2 The applicant had taken its claims against the respondent through the full ambit of the legal process. The applicant had been heard in adjudication, the Arbitration and in this application to set aside the Award. After I had dismissed the application, the applicant appealed. I set out the reasons for my decision.

3 The applicant, a Singapore company, was a sub-contractor in a construction project known as “Defu Industrial City” (the “Project”). ² Specifically, the applicant was a sub-contractor for the Project’s aluminium windows and doors, glazing works, screens, louvres, fins, box-up, skylights, canopies and linkway. ³ The contract between the applicant and the main contractor, Lian Beng Construction (1988) Pte Ltd (“Lian Beng”), was entered into on 28 November 2017 (the “Lian Beng Contract”). ⁴

4 The respondent, also a Singapore company, was the applicant’s sub-contractor in the Project. ⁵ Under the sub-contract between the parties made on 4 May 2018 (the “Sub-Contract”), ⁶ the respondent agreed to supply labour to the applicant for installation works. ⁷ The parties accepted that the Sub-Contract incorporated the arbitration clause in the Lian Beng Contract. ⁸

5 On 15 July 2022, the applicant issued a notice of termination in respect of the Sub-Contract to the respondent. ⁹ By then, the respondent’s work had already been substantially completed. ¹⁰ The applicant alleged that the respondent had, amongst other things, failed to deploy a safety supervisor and failed to promptly and diligently rectify defects as required under the Sub-Contract. ¹¹ According to the applicant, these amounted to repudiatory breaches of the Sub-Contract. ¹²

6 On 18 May 2022, the respondent lodged an adjudication application against the applicant under the Building and Construction Industry Security of Payment Act 2004 (2020 Rev Ed) (the “SOPA”). ¹³ This was in respect of the respondent’s payment claim dated 15 April 2022 and the applicant’s payment response dated 10 May 2022 for a negative amount. ¹⁴ In the adjudication determination in SOP/AA 078/2022 (the “Adjudication”), the adjudicator allowed the majority of the respondent’s claims and rejected all of the applicant’s backcharges. ¹⁵ The applicant was ordered to pay the respondent the sum of S$616,670.80 and the costs of the Adjudication. ¹⁶

7 On 28 June 2022, pursuant to the arbitration agreement incorporated into the Sub-Contract, ¹⁷ the applicant commenced the Arbitration against the respondent. ¹⁸ The parties agreed that the Arbitration would be a documents-only arbitration. ¹⁹ In the Award, the Tribunal dismissed all of the applicant’s claims and allowed most of the counterclaims advanced by the respondent. ²⁰ The following decisions of the Tribunal were relevant to this application:

(a) The Tribunal allowed the respondent’s counterclaim for S$776,694.51 for the balance value of work done by the respondent in the Project (the “Balance Work Counterclaim”). ²¹

(b) The Tribunal dismissed the applicant’s claims for the sums of S$486,354.68 and S$159,641.71 paid to third party contractors Pan Sing Pte Ltd (“Pan Sing”) and Toto Group Pte Ltd (“Toto”) respectively, for work done to complete the respondent’s work (the “Pan Sing and Toto Claims”). ²²

(c) The Tribunal dismissed the applicant’s claim for the sum of S$161,000.00 in respect of the respondent’s alleged failure to deploy a competent and qualified safety supervisor for the Project (the “Safety Supervisor Fees Claim”). ²³

(d) The Tribunal dismissed the applicant’s claim for the sum of S$505,080.00 incurred in supplying labour to the Project due to the respondent’s alleged failure to carry out various works on site (the “Labour Supply Claim”). ²⁴

(e) The Tribunal allowed the respondent’s counterclaim for the retention sum of S$90,780.07 due to the respondent under the Sub-Contract (the “Retention Sum Counterclaim”). ²⁵

(f) The Tribunal dismissed the applicant’s prayer for a declaration that no money was payable to the respondent pursuant to the Adjudication, and allowed the respondent’s counterclaim for legal costs of S$15,941.56 in the Adjudication (the “SOPA Declaration and SOPA Costs Counterclaim”). ²⁶

8 On 25 September 2023, the respondent commenced HC/OA 980/2023 seeking an order to enforce the Award. The said order was granted on 26 September 2023. ²⁷

9 On 18 October 2023, the applicant brought the present application to set aside the Award.

10 The applicant sought to set aside the Tribunal’s decisions at [7] above pursuant to: ²⁸

(a) section 48(1)(a)(iv) of the AA, on the ground that the Award deals with disputes not contemplated by or not falling within the terms of the submission to the Arbitration, or contains decisions on matters beyond the scope of the submission to the Arbitration (the “Scope of Submission Ground”);

(b) section 48(1)(a)(v) of the AA, on the ground that the arbitral procedure was not in accordance with the parties’ agreement (the “Arbitral Procedure Ground”); and

(c) section 48(1)(a)(vii) of the AA, on the ground that a breach of the rules of natural justice occurred in connection with the making of the Award by which the applicant’s rights have been prejudiced (the “Natural Justice Ground”).

The applicant also argued that if the Award were set aside on any of the above grounds, the Court should not exercise its discretion to remit the Award to the Tribunal for her reconsideration. ²⁹

11 The respondent objected to the application on the basis that there were no valid grounds for setting aside the Award. ³⁰ The respondent also took the position that even if any of the alleged grounds were made out, the matter should be remitted to the Tribunal for reconsideration ³¹ pursuant to s 48(3) of the AA, which provides that a court:

12 The issues I had to determine were whether the Tribunal’s decisions on the following claims and counterclaims should be set aside under the Scope of Submission Ground, the Arbitral Procedure Ground, and/or the Natural Justice Ground:

13 The starting point in a setting-aside application is that the Singapore courts adhere to the policy of minimal curial intervention (Soh Beng Tee & Co Pte Ltd v Fairmont Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) at [60]). This policy is undergirded by two principles. The first is the “need to recognise the autonomy of the arbitral process by encouraging finality, so that its advantage as an efficient alternative dispute resolution process is not undermined” (Soh Beng Tee at [65(c)]). The second is the parties’ acceptance, in opting for arbitration, of the “risks of having only a very limited right of recourse to the courts” (Soh Beng Tee at [65(c)]). In particular, a setting-aside application is “not a guise for a rehearing of the merits”, so parties “must not be encouraged to dress up and massage their unhappiness with the substantive outcome into an established ground for challenging an award” (TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972 (“TMM Division”) at [2]). In other words, a losing party should not seek to set aside an award on the basis that the tribunal’s decision was wrong on the merits.

14 The cases interpreting the International Arbitration Act 1994 (2020 Rev Ed) (the “IAA”) and the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) were relevant to the present application brought under the AA. As observed in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal [2013] 1 SLR 125 (“L W Infrastructure”), the court is “entitled and indeed even required to have regard to” the IAA and the Model Law in interpreting the AA, especially where the provisions are similar (at [34]). This is because the legislative intent of the AA is to align the curial law governing domestic arbitrations with the Model Law (L W Infrastructure at [33]–[34]). In that regard, the Scope of Submission Ground, the Arbitral Procedure Ground and the Natural Justice Ground are in pari materia with the grounds for setting aside an award under Arts 34(2)(a)(iii) and 34(2)(a)(iv) of the Model Law and s 24(b) of the IAA respectively. I turn to the applicable principles for each ground.

15 Under the Scope of Submission Ground, the court applies a two-stage test to determine if an award should be set aside: (a) first, the court considers what matters were within the scope of the parties’ submission to arbitration; and (b) second, the court asks if the award involved such matters or any “new difference” outside the scope of the parties’ submission (GD Midea Air Conditioning Equipment Co Ltd v Tornado Consumer Goods Ltd and another matter [2018] 4 SLR 271 (“GD Midea”) at [39]). Five sources will be considered in delineating the matters within the scope of the parties’ submission to arbitration: (a) the pleadings; (b) the agreed list of issues; (c) the opening statements; (d) the evidence adduced in the arbitration; and (e) the closing submissions (CDM and another v CDP [2021] 2 SLR 235 (“CDM”) at [18]).

16 Under the Arbitral Procedure Ground, a party seeking to rely on this ground must show that (a) the parties agreed on a particular arbitral procedure; (b) the tribunal failed to adhere to that agreed procedure; (c) the failure was causally related to the tribunal’s decision; and (d) the party mounting the challenge is not barred from invoking this ground by failing to raise an objection during the proceedings before the tribunal (GD Midea at [63], citing AMZ v AXX [2016] 1 SLR 549 (“AMZ”) at [102]).

17 Under the Natural Justice Ground, an applicant must establish the following four elements: (a) which rule of natural justice was breached; (b) how it was breached; (c) in what way the breach was connected to the making of the award; and (d) how the breach prejudiced the applicant’s rights (Soh Beng Tee at [29]).

18 Having briefly set out the applicable legal principles, I turn to address each decision of the Tribunal that was challenged by the applicant.

19 The challenge against the Tribunal’s decision to allow the Balance Work Counterclaim was the crux of the applicant’s case. To provide some context, I start with a summary of the Tribunal’s reasoning in the Award. The Tribunal found that the applicant had wrongfully terminated the Sub-Contract, such that the respondent was entitled to damages flowing from the wrongful termination. ³³ In that regard, the Tribunal noted that the respondent had claimed damages in the form of expectation damages. According to the respondent, its expectation interest at the time it entered into the Sub-Contract was the full value of the adjusted contract sum. ³⁴ The Tribunal accepted the respondent’s submission and allowed its Balance Work Counterclaim. This amounted to the full value of the adjusted contract sum, less past payments made by the applicant under the Contract. ³⁵

20 The applicant relied on the Scope of Submission Ground, the Arbitral Procedure Ground and the Natural Justice Ground to challenge this decision. However, for reasons explained below, none of those grounds were established.

21 Under the Scope of Submission Ground, the applicant argued that the Balance Work Counterclaim was framed in the Arbitration as a claim for the value of work that the respondent had “purportedly already completed” [emphasis in original]. ³⁶ This was evident from the parties’ pleadings, the agreed list of issues and the evidence filed in the Arbitration. ³⁷ The issue of whether the respondent was “entitled to the full value of the balance unfinished works” [emphasis added] in consequence of the applicant’s allegedly wrongful termination of the Sub-Contract (the “Expectation Damages Issue”) was not an issue submitted to the Tribunal. ³⁸ Having determined this issue in the Award, the Tribunal thus acted outside the scope of submission to the Arbitration.

22 In response, the respondent contended that the Expectation Damages Issue was clearly raised in its Written Submissions to the Tribunal. ³⁹ The applicant had also understood this issue to form part of the scope of submission to the Arbitration. This could be inferred from the fact that the applicant had specifically replied to this issue in its Reply Written Submissions, ⁴⁰ where it was expressly argued that the respondent’s position in its Written Submissions “[was] wrong as a matter of principle”, since it “had not done the balance work at all”. The applicant also argued in its Reply Written Submissions that “the Sub-Contract was rightfully terminated”. ⁴¹

23 I agreed with the applicant that prior to the respondent’s Written Submissions, the live issue in the Arbitration was the respondent’s entitlement to the value of work allegedly already completed by the respondent.

(a) The respondent, by its Defence and Counterclaim filed in the Arbitration, counterclaimed for the “value of works done to-date” [emphasis added]. ⁴² The respondent pleaded that it had submitted a progress claim “for all work done to 15 July 2022 [ie, the date of termination]”, as it “had completed all the work as per its scope of works on site”. ⁴³ In the applicant’s Reply and Defence to Counterclaim, it was “denied that the [r]espondent had completed all of its works”. ⁴⁴

(b) In the agreed list of issues, the issue for the Balance Work Counterclaim was framed as “[w]hether the [r]espondent is entitled to damages for balance value of work done and retention and if so the quantum thereof” [emphasis added]. ⁴⁵

(c) Chen Hua, the respondent’s director, stated in his witness statement that the respondent was claiming for “the balance value of work done owing to [the respondent]” [emphasis added]. ⁴⁶ His witness statement also exhibited drawings showing the “works completed” by the respondent. ⁴⁷

24 The first time that the Expectation Damages Issue was explicitly raised was in the respondent’s Written Submissions. It was contended that because of the applicant’s wrongful termination of the Sub-Contract, the respondent was “entitled to the value of the adjusted contract sum, being its expectation interest when [it] entered into the Sub-Contract”. ⁴⁸ The amount claimed under the Balance Work Counterclaim was the full value of the adjusted contract sum, less past payments received by the respondent. ⁴⁹ As pointed out by the applicant, whether the respondent could claim the entire contract sum, even for works which were not completed by the respondent, was not raised prior to the respondent’s Written Submissions. ⁵⁰

25 The fact that an issue has been raised in one of the five sources identified in CDM (ie, the pleadings, the agreed list of issues, opening statements, evidence and closing submissions) does not mean that the issue was within the scope of submission to arbitration. As the Court of Appeal in CAJ and another v CAI and another appeal [2022] 1 SLR 505 (“CAJ”) clarified, those five sources are “not discrete or independent sources” [emphasis in original] (at [50]). At the same time, the court takes a holistic and practical approach in determining the scope of submission. As explained by the Court of Appeal in CJA v CIZ [2022] 2 SLR 557 (“CJA”) (at [38]):

Similarly, the Court of Appeal in CKH v CKG and another matter [2022] 2 SLR 1 (“CKH”) highlighted that the relevant test is “what the parties, viewing the whole position and the course of events objectively and fairly, may be taken to have accepted between themselves and before the [t]ribunal” (at [16]).

26 Hence, the reference to the Expectation Damages Issue in the respondent’s Written Submissions was insufficient in itself to show that the issue came within the scope of matters submitted for the Tribunal’s determination. However, looking at the totality of the matter, I found that the Expectation Damages Issue was within the scope of submission.

27 I start with the applicant’s position in its Reply Written Submissions. The applicant argued that “the Sub-Contract was rightfully terminated”. ⁵¹ However, if the Tribunal disagreed and was minded to allow recovery in relation to the unfinished works, awarding both the Balance Work Counterclaim and loss of profits on those unfinished works would amount to a double recovery. ⁵² It was argued that between the two claims, the Tribunal should only allow the claim for loss of profits. ⁵³ This was because the claim for balance value of work done was simply “wrong as a matter of principle” when the respondent “had not done the balance work at all”. ⁵⁴

28 Based on the above response, I agreed with the Tribunal that the applicant had in fact made “its objections in principle” to liability (but not quantum) vis-à-vis the Expectation Damages Issue. ⁵⁵ Indeed, in the applicant’s own words, its case in the Arbitration was that the respondent’s claim for “the full value of the balance unfinished works” and the claim for “loss of profits on the same [unfinished] works” were alternative remedies for wrongful termination. ⁵⁶ This was notwithstanding that the Balance Work Counterclaim as initially framed did not engage with these matters – namely, the respondent’s entitlement to the “full value of the balance unfinished works”, and damages for the allegedly wrongful termination of the Sub-Contract. As summarised by the respondent, the applicant did not object to the respondent raising the Expectation Damages Issue belatedly, and in fact, responded to the same in its Reply Written Submissions. ⁵⁷ The applicant’s own conduct thus demonstrated that it had accepted the Expectation Damages Issue as a matter within the scope of submission to the Tribunal.

29 The surrounding circumstances buttressed this conclusion. First, one of the key issues pleaded in the Arbitration was whether the Sub-Contract had been validly terminated by the applicant. ⁵⁸ It followed that the issue of the appropriate remedy to be awarded in the event that wrongful termination was established – which would potentially include an award of expectation damages – was also within the scope of submission to the Tribunal. When pressed on this point at the hearing, the applicant’s counsel submitted that the respondent had only prayed for specific remedies in the Arbitration, eg, damages for the balance value of work done, damages for prolongation, and damages for loss of profits. ⁵⁹ The respondent did not pray for general damages for wrongful termination. According to the respondent, the Tribunal should not have awarded anything other than those specific and narrow remedies. I disagreed. What was within the scope of submission to a tribunal is not limited by what was pleaded by the parties (see [15] above). Instead, as noted in CJA, “the court must look at matters in the round” (at [38]). Having considered the Expectation Damages Issue against the context that wrongful termination was a pleaded issue in the Arbitration, I was convinced that the Expectation Damages Issue was itself an issue properly within the scope of submission to the Tribunal.

30 Another relevant circumstance was that the Sub-Contract had been terminated in the midst of the maintenance period, during which the respondent was to rectify the discovered defects. ⁶⁰ In other words, the respondent’s works had already been substantially completed at the time the Sub-Contract was terminated. ⁶¹ Hence, for those completed works, there were clearly sums owed by the applicant to the respondent under the Sub-Contract. This was consistent with the parties’ cases in the Arbitration:

(a) In the Statement of Claim, the applicant arrived at the aggregate sum claimed against the respondent by deducting the various backcharges from the value of “total work done” by the respondent. ⁶² Similarly, in resisting the respondent’s Balance Work Counterclaim, the applicant noted in its Written Submissions that it had already given the respondent credit for the value of the “total work done” by the respondent under the Sub-Contract. ⁶³ Thus, the applicant did not dispute that the respondent had substantially completed its works and had not been paid for those works.

(b) The respondent advanced another counterclaim for the release of the retention sum, which was a sum of money withheld by the applicant to ensure that the works were “completed and free from defects or complaints”. ⁶⁴ This indicated that the costs of defects were being considered separately. It was thus undisputed that irrespective of the presence of any defects, there were amounts to be paid to the respondent in relation to the substantially completed works.

Based on the above, whether there was any significant difference between (a) the value of the substantially completed works (for which the applicant itself had given credit in the Arbitration), and (b) the adjusted contract sum (less past payments) claimed for by the respondent, was also an issue within the scope of submission to the Tribunal.

31 At this juncture, I address the applicant’s arguments mounted in reliance on the case of CAJ. In CAJ, the respondent in that case sought liquidated damages against the appellants for a delay in the mechanical completion of a plant. In their closing submissions, the appellants raised for the first time a defence that they were entitled to an extension of time (the “EOT Defence”). The tribunal accepted the EOT Defence, but this was set aside by the Court of Appeal. It held that the EOT Defence could only have fallen within the scope of submission to the arbitration upon introduction by an appropriate amendment to the pleadings (CAJ at [52]).

32 I disagreed with the applicant that its case was analogous to CAJ. ⁶⁵ At first glance, the facts of the present case appear similar in that a new issue was only raised for the first time in the Written Submissions. But in CAJ, the respondent in that case objected (in its closing submissions) to the appellants raising the unpleaded EOT Defence. In the present case, as noted above at [28], there was no such objection by the applicant. Instead, the applicant proceeded to address the Expectation Damages Issue in its Reply Written Submissions. Another point of divergence was that the EOT Defence in CAJ was a “specific and fact-sensitive contractual defence which … [did not] arise from and was not a natural consequence of the existing pleaded defences” (CAJ at [44]). Rather, its sole relevance to the pleaded issues was that “it would have a bearing on the respondent’s claim for liquidated damages” (CAJ at [45]). The Expectation Damages Issue was distinguishable. Noting the points canvassed at [29]–[30] above, this issue was clearly connected to the Arbitration. Nor did the determination of this issue require fresh evidence and fact-finding, unlike the EOT Defence in CAJ. Hence, the case of CAJ did not assist the applicant.

33 Applying the test in CKH (see [25] above), viewing the whole position and course of events objectively and fairly, I found that the Expectation Damages Issue was an issue that the parties accepted as an issue to be determined in the Arbitration. The Tribunal did not exceed her jurisdiction in determining that issue. The applicant’s challenge under the Scope of Submission Ground failed. The applicant could not simply put its head in the sand and block out all the surrounding circumstances of the Arbitration by focusing narrowly on one issue as the ground for setting aside on the Scope of Submission Ground.

34 The applicant argued that the Tribunal’s decision on the Expectation Damages Issue departed from r 20 of the Arbitration Rules of the Singapore International Arbitration Centre (6th Ed, 1 August 2016) (the “SIAC Rules”) and the agreed list of issues, both of which formed part of the agreed arbitral procedure. ⁶⁶ The respondent counter-argued that the Arbitration was conducted under the SIAC Rules and administered by the SIAC. ⁶⁷ The Tribunal was also appointed by the SIAC. ⁶⁸ These were all in accordance with the arbitration clause and hence the parties’ agreed arbitral procedure.

35 I agreed with the respondent that this challenge was misconceived. The Tribunal had adhered to the agreed arbitral procedure (see [16] above). Rule 20.4 of the SIAC Rules (which the applicant relied on) required the respondent’s Defence and Counterclaim to set out in full detail (a) the relevant facts; (b) the relevant legal grounds or arguments; and (c) the relief(s) claimed, together with the amount of all quantifiable claims. However, this rule does not prevent a tribunal from deciding on matters that are not expressly pleaded. Rule 27(m) of the SIAC Rules (which is also a part of the parties’ agreed arbitral procedure) provides that unless otherwise agreed by the parties and except as prohibited by the mandatory rules of law applicable to the arbitration, a tribunal may “decide, where appropriate, any issue not expressly or impliedly raised in the [pleadings] of a party provided such issue has been clearly brought to the notice of the other party and that other party has been given adequate opportunity to respond”. The Expectation Damages Issue was clearly brought to the applicant’s attention in the respondent’s Written Submissions. The applicant had sufficient opportunity to respond to it in its Reply Written Submissions, and the applicant in fact did so (see [27] above). There was thus no breach of the SIAC Rules.

36 Further, it is not that every departure from an agreed list of issues will amount to a breach of the agreed arbitral procedure. In that regard, the applicant’s reliance on GD Midea was misplaced. In that case, the Procedural Order provided that “[a]s a general principle, no Party shall be permitted to advance any new factual allegations or any new legal arguments at the Oral Hearing, unless expressly permitted by the Tribunal” (GD Midea at [64]). It was in this context that this court found that the agreed list of issues was a part of the parties’ agreed arbitral procedure (GD Midea at [64]). As the issue of breach of cl 4.2 of the supply agreement in that case was not featured in the agreed list of issues, the tribunal’s finding on that clause was held to be in breach of the agreed procedure (GD Midea at [64]).

37 In the present case, the applicant failed to show that the agreed list of issues was part of the parties’ agreed arbitral procedure. Procedural Order No 1 in the Arbitration did not contain a condition akin to that in GD Midea. ⁶⁹ There was no other evidence adduced by the applicant to show that there was an agreement by the parties to be strictly bound by the agreed list of issues.

38 In any event, even if there was an agreed procedure that had been breached, the applicant was barred from invoking the Arbitral Procedure Ground. It made no objection during the Arbitration – specifically, in its Reply Written Submissions – against the respondent’s attempt at introducing a new issue at that stage. The applicant’s failure to do so meant that it could no longer be heard to complain that the Tribunal deviated from the agreed procedure by determining that issue (see [16] above).

39 For the foregoing reasons, the applicant’s challenge under the Arbitral Procedure Ground failed.

40 Broadly, the applicant made two allegations under the Natural Justice Ground. First, the Tribunal either disregarded the applicant’s submissions without considering their merits, or did not attempt to understand those submissions. ⁷⁰ Second, there was no reasonable notice to the applicant that the Tribunal would award the respondent expectation damages in the form of the “full value of the balance unfinished works”. ⁷¹

41 The relevant rule of natural justice was the “fair hearing rule”, which requires that each party “be given a fair hearing and a fair opportunity to present its case” (Soh Beng Tee at [43]). There are two situations in which the fair hearing rule may be breached (BZW and another v BZV [2022] 1 SLR 1080 (“BZW”) at [60]). The first situation is where the tribunal failed to apply its mind to the essential issues arising from the parties’ arguments (BZW at [60(a)]). This was related to the applicant’s first allegation. The second situation, which engaged the applicant’s second allegation, is where the tribunal adopted a defective chain of reasoning. As explained in BZW at [60(b)]:

42 I turn to the applicant’s first allegation that the Tribunal did not attempt to understand or consider the merits of the applicant’s submissions. According to the applicant, the Tribunal was “wrong” to find that the applicant had not challenged the quantum of the Balance Work Counterclaim. ⁷² In its Reply Written Submissions, the applicant argued that the respondent should only be entitled to at most 10% of the value of works lost for loss of profits. ⁷³ In other words, the applicant’s submission was that damages for wrongful termination should be assessed on the basis of the respondent’s loss of profits (instead of the full value of the balance unfinished works, as claimed for by the respondent), and that the quantum of damages should be limited to 10% of the value of works lost.

43 In essence, the applicant’s argument on natural justice was that the Tribunal had failed to comprehend its submission. But this was not a breach of the rules of natural justice. The Tribunal had applied its mind to the essential issue of the quantum of the Balance Work Counterclaim. In the Award, the Tribunal “accept[ed] the [applicant]’s submission that such a claim [on loss of profits] would amount to a double recovery”. ⁷⁴ The Tribunal thus decided to only award the respondent damages under the Balance Work Counterclaim and dismissed the claim for loss of profits. However, the applicant had only contested the quantum of the claim for loss of profits and not the quantum of the Balance Work Counterclaim. Accordingly, the Tribunal “[saw] no reason to not allow the [r]espondent the full amount claimed” for the Balance Work Counterclaim. ⁷⁵ The Tribunal had evidently applied her mind to the applicant’s submissions in making her decision.

44 The following passage from BZW was apposite (at [60(a)]):

I did not find the Tribunal’s decision on the quantum of the Balance Work Counterclaim to be “inexplicable”. Even if it could be so characterised, that the Tribunal came to her decision based on an erroneous understanding of the applicant’s submissions would only disclose an error of fact or law, neither of which amounted to grounds for setting aside the Award.

45 Finally, the applicant argued that the respondent had not explained why its expectation interest should be measured based on the contract sum. ⁷⁶ Relatedly, the applicant also argued that awarding profits lost on the unfinished works was a “more reasonable remedy”. ⁷⁷ In essence, the applicant was objecting to the respondent’s measure of expectation damages being based on the full value of the contract sum. However, these substantive arguments were only raised for the first time in this setting-aside application. These belated objections ought to have been raised earlier in the Arbitration, ie, in the applicant’s Reply Written Submissions. The applicant could not challenge the Award on its merits at this stage.

46 On the second allegation that the Tribunal adopted a defective chain of reasoning, a party would have reasonable notice of the tribunal’s chain of reasoning if it (a) arose from the parties’ pleadings; (b) arose by reasonable implication from their pleadings; (c) was unpleaded but arose in some other way in the arbitration and was reasonably brought to the party’s actual notice; or (d) flowed reasonably from the arguments actually advanced by either party or is related to those arguments (BZW at [60(b)]).

47 Looking at the Tribunal’s chain of reasoning, the Tribunal rejected the applicant’s contention that the Sub-Contract had been rightfully terminated. ⁷⁸ It followed that the respondent was entitled to damages for wrongful termination. ⁷⁹ The Tribunal then noted that the respondent had claimed damages for wrongful termination in the form of expectation interest, which the respondent argued should be calculated by deducting past payments from the adjusted contract sum. ⁸⁰ The applicant’s argument – ie, that the respondent was not entitled to the Balance Work Counterclaim as it had not done the balance work – was rejected. This was because “it was the [applicant’s] wrongful termination of the Sub-Contract that resulted in the [r]espondent not completing the balance value of works under the Sub-Contract”. ⁸¹ As the applicant had not challenged the respondent’s measure of the expectation interest, ⁸² or the quantum tendered by the respondent, ⁸³ the Tribunal allowed the respondent the full amount claimed. ⁸⁴

48 While this chain of reasoning did not arise from the pleadings, it stemmed from the parties’ Written Submissions and the Reply Written Submissions (see [24] and [27] above), and was reasonably brought to the parties’ actual notice (BZW at [60(b)]). Further, the chain of reasoning flowed reasonably from the arguments actually advanced by both parties or was related to those arguments (BZW at [60(b)]). It bears emphasis that an award will only be set aside on the basis that the Tribunal adopted a defective chain of reasoning if the tribunal acted “either irrationally or capriciously”, such that “a reasonable litigant in his shoes could not have foreseen the possibility of reasoning of the type revealed in the award” (BZW at [60(b)]). Having failed to object to or address the respondent’s measure of its expectation interest, a reasonable litigant in the applicant’s shoes could have foreseen that the Tribunal would award the full amount claimed by the respondent.

49 The applicant argued that it could not have foreseen reasoning of the type used in the Award. According to the applicant, the present case fell squarely within the scenario contemplated in Glaziers Engineering Pte Ltd v WCS Engineering Construction Pte Ltd [2018] 2 SLR 1311 (“Glaziers”), ie, where the outcome came as a surprise, which was in turn indicative of a breach of the fair hearing rule. ⁸⁵ In Glaziers, the Court of Appeal observed that the outcome of a dispute may be surprising in circumstances where the parties did not even address the issue – being an issue that the tribunal ultimately regarded as decisive – “because they (a) did not know; and (b) could not reasonably have expected that it would be in issue at all” [emphasis in original] (at [58]). According to the applicant, the “mere assertion” of the Expectation Damages Issue in the respondent’s Written Submissions, for the first time, could not have transformed it into a decisive issue. ⁸⁶ Hence, the applicant “did not know and could not reasonably have expected that [the Expectation Damages Issue] would be an issue” and therefore did not address it. ⁸⁷

50 I noted that the applicant’s argument (that it did not address the Expectation Damages Issue) was inconsistent with the applicant’s earlier explanation of its case. As discussed at [27]–[28] above, the applicant explained that in the Arbitration, its case was that the respondent’s claim for the full value of the balance unfinished works and the claim for loss of profits were alternative remedies, and that the former claim was “wrong as a matter of principle”. Before me, the applicant even contended that it had challenged the quantum of the Balance Work Counterclaim. ⁸⁸ Thus, the applicant had the opportunity to address the Expectation Damages Issue in its Reply Written Submissions and it in fact did so, albeit cursorily. The applicant’s argument under the Natural Justice Ground seemed to be a narrower one – ie, the applicant did not, as observed by the Tribunal, “object to or address the [r]espondent’s measure of its expectation interest” being based on the full value of the Sub-Contract ⁸⁹ because it did not expect this to be an issue.

51 Looking at the matter holistically, the applicant could reasonably have expected that the measure of expectation damages would be a decisive issue in the Arbitration. In particular, the respondent’s measure of its expectation loss had direct relevance to the issue of wrongful termination, which was pleaded in the Arbitration (see [29] above). The applicant thus had reasonable notice of the Tribunal’s chain of reasoning, and the chain of reasoning had “sufficient nexus” to the parties’ arguments (see [41] above).

52 Further, the fact that the parties had opted for an expedited arbitration without an oral hearing ⁹⁰ was a relevant consideration in my finding that there was no breach of the natural justice rules. As observed in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2020] 1 SLR 695 (at [143]):

Having agreed to an expedited arbitration, the implied understanding was that the Tribunal would rely heavily on the parties’ Written Submissions and Reply Written Submissions in making her determination. Accordingly, it was all the more incumbent on the applicant to engage with the Expectation Damages Issue fully when it appeared as the crux of the respondent’s case in its Written Submissions. However, the applicant merely insisted that the respondent had not finished the works and failed to challenge the respondent’s measure of expectation damages. It was the applicant who had chosen to address the issue half-heartedly. As the applicant failed to show that there was a breach of the rules of natural justice, the Natural Justice Ground was not made out.

53 It follows from the discussion above that none of the grounds for setting aside the Tribunal’s decision on the Balance Work Counterclaim were established. I therefore dismissed this head of the applicant’s setting-aside application.

54 The applicant argued that the Tribunal had misunderstood its case on the Pan Sing and Toto Claims. According to the applicant, its claim was for backcharges incurred in relation to the engagement of Pan Sing and Toto before the termination of the Sub-Contract. However, the Tribunal had an “erroneous impression” that the Pan Sing and Toto Claims related to backcharges incurred as a result of the termination of the Sub-Contract. ⁹¹ Hence, the Tribunal was wrong to have dismissed the Pan Sing and Toto Claims on the basis that the applicant had wrongfully terminated the Sub-Contract. ⁹² The applicant sought to set aside the Tribunal’s decision under the Scope of Submission Ground, the Arbitral Procedure Ground and the Natural Justice Ground.

55 The applicant relied on the arguments at [54] above to allege that the Tribunal had dealt with an issue which was not within the scope of the parties’ submission to the Arbitration. ⁹³ The respondent counter-argued that the issues relating to the Pan Sing and Toto Claims were clearly raised and addressed in all the relevant Arbitration documents (ie, the pleadings, witness statements, reply witness statements, Written Submissions and Reply Written Submissions). ⁹⁴

56 Applying the two-stage test in GD Midea (see [15] above), the first question was what matters were within the scope of submission to the Tribunal. I considered the following sources:

(a) In the Statement of Claim, the applicant pleaded that the respondent “was short of manpower and failed to complete the entirety of the works”, such that the applicant had to engage Pan Sing and Toto to carry out the respondent’s works. ⁹⁵ Various documents evidencing payments made to Pan Sing and Toto were exhibited to the Statement of Claim. ⁹⁶ In the Defence and Counterclaim, the respondent denied that its manpower was insufficient. ⁹⁷

(b) In the agreed list of issues, the issue was framed as “(a) [w]hether the [applicant] was entitled to terminate the [r]espondent’s contract; and/or (b) [w]hether the [applicant] was entitled to its costs for engaging Pan Sing [and/or Toto], and if so the amount thereof”. ⁹⁸

(c) In the witness statement of the applicant’s manager, Lee Wen Choong, it was alleged that the manpower deployed by the respondent was “entirely insufficient”, with only two workers deployed on site at times. ⁹⁹ In response, Chen Hua averred in his reply witness statement that the applicant needed Pan Sing and Toto because it had caused a delay and was “rushing its own works to hand over to Lian Beng”. ¹⁰⁰ In the witness statement of Ding Ming (“Mr Ding”), who was the respondent’s site manager and safety supervisor, he referred to a “Delay Expert Report” which concluded that there was a wrongful addition of labour by the applicant. ¹⁰¹ Mr Ding also alleged that the applicant had engaged Pan Sing and Toto because it “had to catch up on the works/accelerate the works, to meet its deadline to Lian Beng”. ¹⁰²

(d) In its Written Submissions, the applicant argued that it was entitled to terminate the Sub-Contract due to the respondent’s repudiatory breach. ¹⁰³ Further, “[a]s a result of the [r]espondent’s failure to complete the [w]orks, the [applicant] had to engage Pan Sing [and Toto] to complete the [r]espondent’s scope of works”. ¹⁰⁴ In its Reply Written Submissions, the respondent contended that the termination of the Sub-Contract was wrongful. ¹⁰⁵ Further, the applicant was not entitled to the Pan Sing and Toto Claims as “the delay was caused by [the applicant] as indicated in the Delay Expert Report”, not by the respondent. ¹⁰⁶

Based on the above, whether the termination of the Sub-Contract was wrongful and whether the respondent’s manpower was insufficient (such that the applicant was entitled to engage Pan Sing and Toto) were both issues which were properly within the scope of submission to the Tribunal.

57 Turning to the second stage of the test in GD Midea, the question was whether the Award had dealt with matters within the scope of the parties’ submission to the Arbitration. I failed to see how the applicant’s contention – ie, that Pan Sing and Toto were engaged “before the termination of the Sub-Contract … and not as a result of the subsequent termination of the Sub-Contract” ¹⁰⁷ – was relevant. This contention appeared to stem from the applicant’s misunderstanding of the Tribunal’s reasoning. The Tribunal knew exactly what the applicant’s case was (ie, that Pan Sing and Toto were engaged before the Sub-Contract was terminated). Nothing in the Award suggested that the Tribunal had determined the issue of whether the applicant was entitled to backcharges incurred as a result of the termination. Instead, the Tribunal found that based on the agreed list of issues and the parties’ submissions, “the [applicant]’s entitlement to these backcharges hinge[d] on whether the [applicant] was entitled to terminate the Sub-Contract”. ¹⁰⁸ Having determined that the termination was wrongful, it followed that the applicant could not establish the Pan Sing and Toto Claims. ¹⁰⁹ The Tribunal also found that the applicant did not have credible evidence on the alleged delay and manpower shortage on the part of the respondent. ¹¹⁰ The issues that the Tribunal ruled on were squarely within the scope of the parties’ submission to the Arbitration.

58 Accordingly, the applicant’s challenge under the Scope of Submission Ground was not made out.

59 The applicant alleged that the Tribunal had decided on an issue which the parties did not agree to put forward for determination. ¹¹¹ As a result, the Tribunal had acted in breach of the parties’ agreed arbitral procedure. ¹¹² The respondent counter-argued that there was no departure from any arbitral procedure, repeating the arguments raised at [34] above. ¹¹³

60 I agreed with the respondent. As noted at [57] above, the issue determined by the Tribunal was not whether the applicant was entitled to backcharges incurred as a result of the termination of the Sub-Contract. The applicant thus failed to demonstrate that the Tribunal had determined an issue that was not agreed by the parties. Based on the documents placed before the Tribunal (see [56] above), it was clear that the issues determined by the Tribunal had been agreed by the parties. In the absence of any breach of the parties’ agreed procedure, I dismissed the applicant’s challenge under the Arbitral Procedure Ground.

61 The applicant argued that the Tribunal had failed to consider the merits of its submissions or even try to understand them. ¹¹⁴ The respondent counter-argued that the Tribunal had understood and considered the applicant’s pleaded case but rejected it on the merits. ¹¹⁵

62 I found that the Tribunal had applied its mind to the essential issue in the Pan Sing and Toto Claims – ie, whether the respondent’s allegedly insufficient manpower entitled the applicant to engage Pan Sing and Toto. From the Award, it was clear that the Tribunal had considered “the [applicant]’s pleadings … and witness statements, … the parties’ agreed list of principal issues and the parties’ respective written submissions and reply written submissions”. ¹¹⁶ After considering the parties’ cases, the Tribunal found that the applicant “[did] not appear to have led any credible evidence on any delay and manpower shortage of the [r]espondent entitling it to engage Pan Sing and Toto respectively”. ¹¹⁷ I agreed with the respondent that the Tribunal had considered whether the respondent was responsible for any delay and manpower shortage, and rejected the applicant’s case. ¹¹⁸

63 The applicant contended that the Tribunal “had gotten the sequence wrong” in finding that the applicant had failed to provide any credible evidence of delay and manpower shortage on the part of the respondent. ¹¹⁹ According to the applicant, the very fact that Pan Sing and Toto were engaged to carry out the respondent’s works before the termination of the Sub-Contract “[was] evidence of the [respondent’s] delay and manpower shortage”. ¹²⁰

64 The applicant was essentially saying that the Tribunal had made a wrong decision on the merits because she laboured under a flawed understanding of the evidence before her. This did not amount to a breach of the rules of natural justice. The Tribunal had patently considered the applicant’s evidence and found it insufficient. Again, any inexplicable decision arising from the Tribunal’s failure to comprehend the applicant’s submissions would be an error of fact or law (see [44] above). This was not a valid ground to set aside the Award. As there was no breach of any rules of natural justice, the Natural Justice Ground failed.

65 In light of the above, I dismissed the applicant’s challenge to set aside the Tribunal’s decision on the Pan Sing and Toto Claims.

66 The applicant contended that the Tribunal had failed to properly consider the issue of whether the respondent had provided any safety supervisors. More specifically, it was said that the Tribunal had dismissed the applicant’s claim even though the respondent did not furnish evidence of work done or permits to work prepared by its alleged safety supervisors. ¹²¹ In this regard, the applicant relied on the Scope of Submission Ground, the Arbitral Procedure Ground and the Natural Justice Ground. ¹²²

67 The applicant did not submit specifically (whether orally or in its Written Submissions) on why the Tribunal’s decision should be set aside under the Scope of Submission Ground. In any event, I was not persuaded by the applicant’s challenge on this ground. The Tribunal framed the issue as whether the applicant was entitled to “a backcharge … for its provision of a safety supervisor (Ahmmed Roni) that the Respondent had allegedly failed to provide”. ¹²³ I agreed with the respondent that this issue was addressed in all the relevant documents submitted to the Tribunal: ¹²⁴

(a) In the Statement of Claim, the applicant explicitly pleaded that the respondent had “failed to deploy a competent and qualified Safety Supervisor”, such that the applicant had to supply one to the respondent. ¹²⁵ The respondent denied this in the Defence and Counterclaim. It was alleged that Ahmmed Roni had supervised the works of the applicant and its other sub-contractors, not those of the respondent. ¹²⁶

(b) The issue of “[w]hether the [r]espondent failed to deploy a competent and qualified safety supervisor” was included in the parties’ list of agreed issues. ¹²⁷

(c) The applicant relied on the witness statement of Ahmmed Roni. His evidence was that he was the only safety supervisor appointed by the applicant. ¹²⁸ He was also the only individual who had prepared the permit to work. ¹²⁹ Further, five individuals identified as the respondent’s safety supervisors – namely, Mr Ding, Yan Fei, Xie Leizi, Lin Xingmin and Chen Xianping (the “respondent’s Safety Supervisors”) – had no necessary qualifications to be safety supervisors. ¹³⁰ The respondent relied on the witness statements of the respondent’s Safety Supervisors. They gave evidence of their qualifications, records of their presence at the work site, and the duties they carried out as safety supervisors. ¹³¹

(d) The applicant argued in its Written Submissions that the respondent’s Safety Supervisors were not in fact deployed as safety supervisors. ¹³² For instance, the qualifications held by Mr Ding, Chen Xianping and Yan Fei were “all dated”. ¹³³ There was also no proof that the respondent’s Safety Supervisors had carried out the work of safety supervisors. A key task of a safety supervisor was the preparation of the permit to work, which was not done by the respondent’s Safety Supervisors. ¹³⁴ They were not the ones giving the daily toolbox safety briefings either. ¹³⁵ Instead, it was Ahmmed Roni who prepared the permit to work reports ¹³⁶ and the toolbox meeting records. ¹³⁷

(e) The respondent argued in its Written Submissions that the respondent’s Safety Supervisors were all qualified. ¹³⁸ They had also performed their duties as safety supervisors. ¹³⁹ Ahmmed Roni was the applicant’s safety supervisor “for the purposes of the [Lian Beng] Contract”, and his appointment did not mean that the respondent had failed to supply a safety supervisor under the Sub-Contract. ¹⁴⁰

Hence, the issue identified by the Tribunal above was indisputably within the scope of the parties’ submission to the Arbitration.

68 The next question was whether the Tribunal had exceeded the scope of submission. The Tribunal concluded that the respondent “had, on the balance of probabilities, provided a safety supervisor”. ¹⁴¹ In coming to this determination, the Tribunal found that the Sub-Contract “[did] not provide for any requisite qualifications and responsibilities” of a safety supervisor. ¹⁴² This finding was made in relation to the issue raised by the applicant. The witness statements filed on the applicant’s behalf and its Written Submissions questioned the qualifications of the respondent’s Safety Supervisors (see [67(c)] and [67(d)] above). The Tribunal also found that even if the respondent had breached its obligation to provide a safety supervisor, the applicant’s claim would still have failed. This was because the applicant failed to show that Ahmmed Roni had been deployed because of the respondent’s breach. ¹⁴³ Looking at the materials put forward in the Arbitration (as summarised at [67] above), the applicant itself had placed before the Tribunal the issue of its entitlement to backcharges incurred in relation to the engagement of Ahmmed Roni. The Tribunal did not exceed the scope of submission to the Arbitration in making her findings.

69 In light of the above, the applicant’s challenge under the Scope of Submission Ground was baseless.

70 In both its written and oral submissions for this application, the applicant did not explain how the Tribunal departed from the parties’ agreed arbitral procedure in determining the Safety Supervisor Fees Claim. I was therefore not persuaded that there were any such breaches, and this sufficed to dispose of the applicant’s challenge under the Arbitral Procedure Ground.

71 The Natural Justice Ground was the focus of the applicant’s case in relation to the Safety Supervisor Fees Claim. The applicant objected to the Tribunal’s approach on two issues. The first issue was whether the respondent’s Safety Supervisors had prepared the permits to work. ¹⁴⁴ The second issue was whether there was actual proof that the respondent’s Safety Supervisors had done any safety supervisory work. ¹⁴⁵

72 On the first issue, the applicant contended that the Tribunal had failed to address her mind to the issue. ¹⁴⁶ I disagreed. As pointed out by the respondent, the Tribunal had explicitly referred to the applicant’s case. ¹⁴⁷ The Award cited the applicant’s argument that the respondent “[had] not provided any proof that [the respondent’s Safety Supervisors] carried out the work of a safety supervisor such as preparing Permit to Work reports”. ¹⁴⁸ The applicant was asking the Court to infer that the Tribunal, despite having made explicit reference to the applicant’s submissions, nevertheless failed to consider the issue. Such an inference, “if it is to be drawn at all, must be shown to be clear and virtually inescapable” (AKN and another v ALC and others and other appeals [2015] 3 SLR 488 at [46]). There was no basis to draw any such inference in this case, bearing in mind the Tribunal had expressly addressed the applicant’s case.

73 The applicant raised the alternative argument that the Tribunal had regard to the issue “in only the most superficial sense without making any attempt to understand [it] and thereby failed to deal with [it] substantively”. ¹⁴⁹ I noted that the Tribunal did not make an explicit finding on whether the respondent’s Safety Supervisors had prepared the permits to work. However, this did not mean that the Tribunal made no attempt to understand the issue or deal with it substantively. Rather, the Tribunal considered the parties’ cases and expressed that she was “more persuaded” by the respondent’s argument, ¹⁵⁰ ie, that there was no requirement under the Sub-Contract for safety supervisors to prepare the permit to work reports. ¹⁵¹ Given this, it would have been unnecessary to make a specific finding as to whether the respondent’s Safety Supervisors had prepared those reports. Further, as noted in the Award, the parties had agreed that the final award would be issued “with reasons in key or summary only”. ¹⁵² That this issue was not expressly addressed in the Award did not in itself prove any breach of natural justice. Hence, the applicant’s objection in relation to the first issue fell away.

74 As to the second issue (ie, whether there was any proof that the respondent’s Safety Supervisors had carried out safety supervisory work), the applicant contended that the Tribunal did not address her mind to it. ¹⁵³ The Tribunal accepted that the respondent had provided a safety supervisor in accordance with the Sub-Contract “simply because their purported safety supervisors had the necessary qualifications and certifications”. ¹⁵⁴

75 I was not persuaded by this argument. The Tribunal’s finding was not premised solely upon the qualifications of the respondent’s Safety Supervisors. The Tribunal concluded that the respondent had deployed the requisite safety supervisors “[b]ased on the evidence provided” by the respondent. ¹⁵⁵ Such evidence included witness statements by the respondent’s Safety Supervisors. They gave evidence on, among other things, how they “would carry out [their] duties as safety supervisor, by ensuring the safety of the site where [the applicant was] carrying out works on, and [the applicant]’s workers”. ¹⁵⁶ I noted that in the Award, the Tribunal did not state the specific evidence she relied upon in so finding for the respondent. However, the Tribunal also clarified that it should “not be assumed that any evidence … not specifically set out [in the Award] has not been considered by the Tribunal”. ¹⁵⁷ The Tribunal did not set out all the relevant evidence “[i]n view of the expedited procedure” that the parties had opted for, and “in the interest of saving time and costs”. ¹⁵⁸ In light of all these, the applicant’s contention that the Tribunal had not directed her mind to the second issue also failed. There was no breach of any rules of natural justice, and so the Natural Justice Ground failed on that basis.

76 To conclude, the applicant’s challenge to set aside the Tribunal’s decision on the Safety Supervisor Fees Claim failed on all three grounds. I hence dismissed this head of the applicant’s setting-aside application.

77 For the Labour Supply Claim, the applicant argued that its case in the Arbitration was that the labour supply for all installation works had been sub-contracted to the respondent. ¹⁵⁹ Hence, the fact that the applicant’s workers were deployed to work on site sufficed to prove that they were deployed to carry out the respondent’s scope of works. ¹⁶⁰ The applicant sought to set aside the Tribunal’s decision on the Labour Supply Claim under the Scope of Submission Ground, the Arbitral Procedure Ground and the Natural Justice Ground. ¹⁶¹ As with the Safety Supervisor Fees Claim, the applicant did not explain, be it in its written or oral submissions, how the first two grounds were established in relation to this claim.

78 I start with the Scope of Submission Ground. The issue of whether the respondent had failed to supply labour to carry out various works on site was indubitably within the scope of the parties’ submission to the Arbitration. A few examples would suffice to illustrate this point:

(a) The applicant pleaded in the Statement of Claim that the respondent had failed to supply labour, such that the applicant had to supply additional labour on site. ¹⁶² This was denied in the respondent’s Defence and Counterclaim. ¹⁶³

(b) The issue of whether the respondent had failed to supply labour was explicitly contained in the agreed list of issues. ¹⁶⁴

(c) In the witness statement of Lee Song Chuan Simon (“Mr Lee”), who was the applicant’s project manager, it was stated that the respondent “was unable to allocate enough workers” due to its commitment to at least two other projects. ¹⁶⁵ It was alleged that as a result of the respondent’s insufficient manpower, the applicant had to deploy its own workers. ¹⁶⁶ Evidence of toolbox meeting records was adduced to show that the applicant’s workers were present on site. ¹⁶⁷ As for the respondent, Mr Ding’s witness statement listed out the works undertaken by the respondent’s workers. ¹⁶⁸ It also exhibited records of the manpower that the respondent had on site. ¹⁶⁹ Mr Ding further alleged that the additional labour supplied by the applicant was for its own scope of works. ¹⁷⁰

79 The Tribunal did not exceed her jurisdiction in disposing of the Labour Supply Claim. She found that the applicant “[had] not provided any satisfactory evidence and [had] not discharged its burden of proving that the [r]espondent [had] failed to supply sufficient labour”. ¹⁷¹ This finding dealt with an issue that fell squarely within the scope of the parties’ submission. The applicant’s challenge under the Scope of Submission Ground thus failed.

80 I also dismissed the applicant’s challenge under the Arbitral Procedure Ground. The Tribunal was not in breach of any agreed arbitral procedure. As noted above at [77], the applicant had also not identified any such procedure.

81 Under the Natural Justice Ground, the applicant argued that since it had sub-contracted all labour works to the respondent, “a reasonable litigant would have expected the Tribunal to find that all works being done onsite by the [a]pplicant’s workers were for the Project”. ¹⁷² This argument was misconceived. The relevant test under the Natural Justice Ground is not, as the applicant framed it, whether a reasonable litigant would have expected the tribunal “to find” in favour of the party. That would be a challenge against the tribunal’s findings on the merits, which was impermissible (see [13] above). The relevant test is whether the Tribunal conducted herself either irrationally or capriciously, such that “a reasonable litigant in [the applicant’s] shoes could not have foreseen the possibility of reasoning of the type revealed” in the Award (see [41] above).

82 Applying the correct formulation to the present case, the Tribunal did not act irrationally or capriciously. The mere fact that the applicant’s workers were doing work on site did not prove that they were performing the respondent’s scope of works. In dismissing the applicant’s Labour Supply Claim, the Tribunal explained that she was “not persuaded” by Mr Lee’s “unsubstantiated and unsupported” evidence. ¹⁷³ The Tribunal also stated that the applicant failed to prove that its workers, as tabulated in the toolbox meeting records, had been deployed to carry out the respondent’s works. ¹⁷⁴ The Tribunal’s reasoning flowed from the arguments and evidence placed before it by both parties. As a reasonable litigant could have foreseen the Tribunal’s reasoning, the applicant could not establish the Natural Justice Ground.

83 The applicant failed to show that the Tribunal’s decision on the Labour Supply Claim should be set aside under any of the three grounds. I therefore dismissed the application to set aside this decision.

84 According to the applicant, the setting-aside of the decision on this counterclaim was consequential on the Court setting aside the decisions on the Pan Sing and Toto Claims, the Safety Supervisor Fees Claim and/or the Labour Supply Claim. ¹⁷⁵ Since I have not set aside any of those decisions, the applicant’s challenge to set aside this counterclaim was not engaged.

85 The applicant sought to set aside the Tribunal’s decisions on the SOPA Declaration and the SOPA Costs Counterclaim under the Natural Justice Ground. It was alleged that the Tribunal had disregarded the applicant’s submissions “without considering the merits thereof” or had failed to “really try to understand” them. ¹⁷⁶ Specifically on the SOPA Declaration, the applicant argued that contrary to the Tribunal’s finding, the applicant had in fact challenged the adjudicator’s determination on the value of the work done by the respondent. ¹⁷⁷ According to the applicant, its case in the Arbitration was that due to the respondent’s shortcomings, the applicant had to engage Pan Sing and Toto to carry out the respondent’s works. This engagement was before the respondent was terminated. ¹⁷⁸ It followed that the adjudicator’s finding on the value of work purportedly done by the respondent prior to its termination was wrong, since Pan Sing and Toto had done some of the respondent’s works. Hence, on a proper understanding of the applicant’s case, the applicant was objecting to the amount determined in the Adjudication to be the value of work done by the respondent prior to its termination. ¹⁷⁹ It was thus “wrong” for the Tribunal to award the SOPA Costs Counterclaim. ¹⁸⁰

86 I was not persuaded by the applicant’s arguments. As noted at [62] above, nothing in the Award suggested that the Tribunal had misunderstood the applicant’s case on the Pan Sing and Toto Claims. There was also no convincing basis upon which I could infer that the Tribunal had failed to “really try to understand” the applicant’s case on the SOPA Declaration.

87 I also disagreed with the applicant that the Tribunal had disregarded its case without considering its merits. As admitted by the applicant, its purported failure to dispute the value of work done was only “[o]ne of the reasons” that led the Tribunal to refuse the applicant’s prayer for the SOPA Declaration. ¹⁸¹ There was another (and more significant) reason for dismissing this claim. By failing to make a setting-aside application to the Court (as required under the SOPA), the applicant had waived its right to set aside the adjudication determination. ¹⁸² The Tribunal had considered the applicant’s claim and ultimately decided to dismiss it for its want of merit. There was no breach of any rules of natural justice.

88 The applicant’s argument on the SOPA Costs Counterclaim turned on the Court setting aside the Tribunal’s decision not to grant the SOPA Declaration. Since I refused to do so, the applicant’s argument on the SOPA Costs Counterclaim also failed. The applicant failed to establish that the Tribunal’s decisions on the SOPA Declaration and the SOPA Costs Counterclaim should be set aside under the Natural Justice Ground. I thus dismissed the application to set aside the Tribunal’s decisions on both matters.

89 In conclusion, I dismissed the setting-aside application in its entirety. Accordingly, I did not have to consider the issue of whether to remit the matter back to the Tribunal for reconsideration. The applicant had presented its application in an “omnibus” fashion. There were aspects of the Award (such as the Balance Work Counterclaim) which merited a close review in this application. The applicant however applied to set aside almost all of the decisions in the Award and on multiple grounds under the AA in respect of each. On some of those grounds, the applicant did not even present any arguments or submissions (see [67], [70] and [77] above). This approach runs the risk of distracting the Court from the real issues in contention and failed to do proper justice to the applicant’s submissions.

90 In that regard, the respondent sought indemnity costs on the basis that the applicant’s arguments were unmeritorious. However, I considered that the present case did not cross the high threshold to justify an exceptional order of indemnity costs. I hence rejected the respondent’s prayer for indemnity costs and ordered costs on the standard basis in the amount of S$15,000 to the respondent.