Dem v Del [2025] Sgca 1: A Stern Warning to Non-Participating Parties in an Arbitration

The Singapore Court of Appeal recently addressed an important issue concerning arbitration. The case centered on whether a non-participating party to an arbitration could later challenge an award on the grounds that the arbitrator failed to consider a point not raised during proceedings. The Court firmly rejected this, emphasizing that a party who chooses not to participate cannot later raise objections. This ruling serves as a Warning To Non-participating Parties In An Arbitration, clarifying that failing to engage in the process prevents them from undermining the award afterward. Allowing such conduct, the Court noted, would amount to “hedging of the most egregious form.”

We unpack the Court of Appeal’s decision in this update.

Background

The underlying dispute arose in relation to an arbitration concerning a Business Purchase Agreement (“BPA”) between the Respondent and three parties including the Appellant.  Despite being given notice in accordance with the notice provisions of the BPA, the Appellant did not participate in the arbitration. However, shortly after the hearing, the Appellant sent an email from an unknown email address indicating that he was informed of the existence of the arbitration. Despite efforts taken by the Arbitrator and the Respondent to write to this email address and verify the identity of the Appellant, the Appellant did not respond.

Following the issuance of the award in favour of the Respondent, the Appellant sought to set aside the award under section 48 of the Arbitration Act 2001 (“AA”) for, among other things, a lack of proper notice and a failure of the arbitrator to consider an essential issue.

The law on proper notice

Under s 48(1)(a)(iii) of the AA, the legal burden lies on a party seeking to set aside the award to “prove to the satisfaction of the Court” that it “was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party’s case”. Proper notice may be actual or deemed.

• Actual notice of the arbitration requires proof that the party in fact knew about the arbitration and was in a position to fully present its case.
• On the other hand, deemed notice may be relied on where there is insufficient proof of actual notice. For example, notice given pursuant to a notice or service clause will suffice. However, deemed notice may be rebutted by appropriate evidence of non-receipt.

On the facts, the Court found that the Appellant had, by his own admission, become aware of the arbitration when he sent an email. Despite efforts taken by the Arbitrator and the Respondent to write to this address and verify the identity of the Appellant, the Appellant did not respond. The Court found that this was a situation where the Appellant had deliberately elected to remain silent. In the Court’s view, the Appellant’s deliberate failure to engage with the Arbitrator or the Respondent was consistent with his decision not to participate in the arbitration. The Court was therefore amply satisfied that the Appellant had actual notice of the Arbitration based on his own evidence.

Alternatively, the Appellant was also found to have deemed notice as notice was effected in compliance with the notice provisions of the BPA.

Consequences of a party’s non-participation in an arbitration

The Appellant had also brought an infra petita challenge against the award, i.e. a challenge that the arbitrator failed to deal with a matter falling within the scope of submission to the arbitrator. Here, the Appellant argued that the arbitrator had failed to consider an essential issue, i.e. whether the BPA was supported with consideration.

While the Court agreed with the Appellant that this issue was not dealt with by the arbitrator, the Court found that it was simply not open for the Appellant to raise an infra petita challenge where:

1. he had elected not to participate in the arbitration;

2. he did not file any pleadings; and

3. consequently, he failed to raise the key issues especially the issue which was the subject matter of his infra petita challenge.

In the Court’s view, to allow the Appellant to raise this challenge at this stage would be to “permit hedging of the most egregious form.” Where an issue was not properly brought before the arbitrator, an aggrieved party should not be allowed to complain about the arbitrator’s failure to consider the same. The Court must be wary of a party who accuses an arbitrator of failing to consider and deal with an issue that was never before him in the first place.

Key takeaways

The Court’s decision is a stern warning to parties in an arbitration who have deliberately chosen not to participate – absent any compelling reason, non-participation in an arbitration may subsequently limit the challenges a party may bring against an award before the Singapore Court. This decision reinforces the importance of timely and proactive involvement in arbitration to avoid the limitations placed on a party’s legal recourse after the issuance of the award.

For more information, please contact:

Una Khng (Una.Khng@helmsmanlaw.com)

Daniel Ho (Daniel.ho@helmsmanlaw.com)

Irvin Ho (Irvin.ho@helmsmanlaw.com)

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