Decision and facts
The Singapore Court of Appeal dismissed CAJ and CAK’s appeals on 22 September 2021; full grounds were delivered on 11 November 2021 as [2021] SGCA 102. The case arose from plant-construction contracts. Singapore-seated ICC arbitration proceeded under the 2012 Rules. The employer claimed liquidated damages for delay.
The tribunal found 99 days of delay but reduced the calculation by 25 days after accepting the contractors’ extension-of-time defence. That defence first appeared in written closing submissions: it had not featured in the pleaded case, Terms of Reference or lists of issues. The opposing party objected promptly.
The scope of the submitted dispute
Paragraphs 32–43 and 51–52 distinguish the breadth of an arbitration agreement from the issues actually submitted in a particular proceeding. The new defence depended on specific facts concerning delay causes, notification and the appropriate extension period. It was not merely a different legal formulation of an issue already examined.
The court described the appropriate process: an application to amend the defence, consideration of whether amendment should be permitted, and appropriate opportunities for the other party to amend its response and present documents and evidence. That process had not occurred. The conclusion reflects the agreed procedure and the fact-sensitive nature of the new defence. The discussion of Article 23(4) of the 2012 ICC Rules in paragraph 39 was tentative: the court left open whether “new claims” extends to new defences. Paragraph 40 explains that the outcome did not depend on resolving that question; the decisive defect was the absence of proper amendment and an opportunity to answer the new fact-sensitive defence.
Arbitrator knowledge and expert evidence
Paragraphs 54–57 connect the procedural breach to material prejudice. In particular, the tribunal relied on its own unarticulated experience when selecting the 25-day extension. The parties could not address how that experience related to the specific delay causes and the evidence.
The case does not prohibit appointing arbitrators with industry expertise. It identifies the risk of using that expertise as an independent factual basis that has not been exposed to the parties. In a technical dispute, tribunal experience does not remove the need to examine the record, assess factual and expert evidence and provide an opportunity to respond.
Objection and disposition
Under paragraphs 64–68, the employer had clearly told the tribunal why it objected to the new defence. It did not also need to threaten a later setting-aside application. Addressing some merits questions while maintaining that objection did not amount to acceptance of the procedural defect.
Paragraph 74 confirms the partial result: the provisions granting 25 days of extension were set aside, while the rest of the award remained intact. The consequential 99-day calculation followed from findings already made by the tribunal, rather than a new judicial trial of the construction dispute. Read alongside CBS v CBP and the discussion of procedure and expert evidence.
General information. The applicable legal framework depends on the particular dispute, seat and enforcement country.