Substance over Form: The SICC standard for setting aside arbitral award for Infra Petita

Can the choice made by the arbitral tribunal to not expressly address every sub-issue justify setting aside a multi-hundred-million-dollar award? The Singapore International Commercial Court (SICC) answered this in The Tata Power Company Limited v Kleros Capital Partners Limited¹, dismissing three applications brought by Tata Power against “approximately US$490 million” quantum award. The judgment is a firm reaffirmation of Singapore’s pro-arbitration posture, and clarifies that an infra petita challenge, a claim that a tribunal failed to decide an essential issue will only succeed where there is a “clear and virtually inescapable” inference that the tribunal never turned its mind to the issue at all.

The dispute can be traced all the way back to two non-disclosure agreements (NDAs) circa 2013, between Tata and Kleros, an investment advisory firm, concerning a large coal mining project in Russia. Tata was found to have breached the NDAs by bypassing Kleros and pursuing the project through other channels; Kleros commenced SIAC arbitration in 2020 and, after a bifurcated liability and quantum process, a majority of the tribunal (Prof Lawrence Boo and Mr Stuart Isaacs KC, with Mr A K Ganguli SA dissenting) awarded Kleros approximately US$490 million for loss of a chance to participate in the project.

Tata brought three applications before the SICC: a challenge to two arbitrators’ appointments for apparent bias, an application to set aside the Quantum Award, and a consequential application against the Final Award. Its central argument was that the majority had committed infra petita breaches by failing to properly deal with three key issues; causation, remoteness, and mitigation and it sought to have the awards set aside, or in the alternative, remitted to the tribunal. 

The legal test for Infra Petita

Under Section 24(b)² of the International Arbitration Act 1994 (IAA), an applicant seeking to set aside an award for breach of natural justice must establish which rule was breached, how, its connection to the award, and the resulting prejudice (CDI v CDJ³, citing Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd⁴. Because Singapore courts apply a policy of minimal curial intervention, this threshold is deliberately high.

Drawing on the recent Court of Appeal decision in DKT v DKU⁵, the SICC held that a successful infra petita challenge requires proof that the tribunal “completely failed to consider” the essential issue and not merely that its treatment was inadequate, incorrect, or inelegantly structured. Courts must read awards “generously and supportively,” resolving doubt in the award’s favour; the exercise is not a merits review of the tribunal’s reasoning, but a check on whether the tribunal engaged with the issue at all.

Applying this standard, the court found that the majority had, in substance, engaged with causation by implicitly adopting Kleros’s “No Breach Scenario” counterfactual and addressing Tata’s competing arguments on it. That the Quantum Award lacked a neatly labelled sub-section on causation was immaterial and what mattered was the existence of analysis, not its packaging. The same reasoning disposed of Tata’s remoteness and mitigation related objection,  the majority had folded remoteness into its broader causation analysis, and had devoted a major chunk of the judgment in rejecting Tata’s mitigation arguments on the facts, even after finding mitigation legally irrelevant to a loss-of-chance claim.

Notably, the SICC also considered Indus Powertech Inc v Echjay Industries Private Limited⁶ a recent English High Court decision Tata relied on heavily and held that it added little to Singapore’s existing jurisprudence. If anything, the comparison confirmed that Singapore’s threshold is stricter than the English court’s more forgiving “benefit of the doubt” approach to reading awards. The apparent bias challenge fared no better; shared professional circles and a common litigation funder among unrelated cases is not enough to suggest any of the arbitrators were biased.

Jurisprudential Implications

The judgment makes clear that being unhappy with a tribunal’s reasoning even over a huge sum of money is usually not a reason for any minimal curial intervention court to step in. Dissatisfaction with a tribunal’s reasoning, however large the sum at stake, is rarely grounds for the SICC to intervene. The court reaffirmed that an applicant faces a deliberately high threshold, and that awards are to be read charitably and as a whole, with intervention reserved for truly exceptional cases. Lowering that bar, the court cautioned, would let ordinary errors of law or fact be dressed up as natural justice complaints, opening the door to relitigating matters already settled in arbitration, a risk the court was plainly unwilling to entertain, given the finality that parties bargain for when they choose arbitration in the first place.

Rejecting Tata’s challenge, the SICC drew a firm line between a tribunal failing to decide an issue and deciding it in a way a party dislikes only the former is actionable, and the distinction did much of the analytical work in this case. Its conclusion was unambiguous: the majority had not failed to decide any essential issue, nor was there any credible basis to suspect bias on the part of any member of the tribunal.

Three observations follow for practitioners. First, the inquiry stays confined to whether the tribunal engaged with an issue at all, not how well it did so, a distinction that keeps the merits firmly outside the court’s reach. Second, persuasive foreign authority carried little weight here, since Singapore’s own threshold already sets a stricter standard than comparable common law jurisdictions. Third, a narrow exception survives on paper: reasoning so threadbare that it compels a “clear and virtually inescapable inference” of complete non-consideration though this case came nowhere close to it.

Citations

1. The Tata Power Company Limited v Kleros Capital Partners Limited[2026] SGHC(I) 15 ↩︎
2. International Arbitration Act 1994 ↩︎
3. (CDI v CDJ [2020]5 SLR 484 ↩︎
4. Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 ↩︎
5. DKT v DKU[2025] 1 SLR 806 ↩︎
6. Indus Powertech Inc v Echjay Industries Private Limited[2026] EWHC 827 (Comm) ↩︎

Expositor(s): Adv. Pratistha Dahiya