TaxTMI 
TaxTMI 
2026 (1) TMI 504
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....ember of the Arbitral Tribunal [hereinafter referred to as 'Tribunal'], failed to make disclosure about his prior involvement in an arbitration proceeding involving the Defendant and Mr. Manbhupinder Singh Atwal [hereinafter referred to as 'Mr. Atwal'], who happens to be the MD, Chairman, and Promoter of the Defendant. This then led the learned Single Judge to prima facie conclude that if allowed to continue, it would result in the proceedings which are oppressive and vexatious to the Plaintiff/Respondent. With respect to the objections, to the said effect, as raised by the Plaintiff/Respondent herein, the said Arbitrator/member of the Tribunal submitted the following explanation for his non-disclosure and continued non-disclosure by stating as follows: "...Had I made the disclosure, the possibility of the Respondent seeking to challenge my impartiality could not be discounted." 3. The International Court of Arbitration of the International Chamber of Commerce [hereinafter referred to as 'ICC Court] found that there was a non-disclosure on the part of Mr. Yeap, and held that such non-disclosure was ―"regrettable", but permitted the continuance of the proceedings w....
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...., Availability, Impartiality and Independence in terms of Article 11(2) of the ICC Rules. On 19.04.2023, Mr. Yeap submitted the signed statement of Acceptance, wherein it was stated that 'he had nothing to disclose'. 10. Thereafter, vide letter dated 13.07.2023, the ICC Court fixed Singapore as the place of arbitration. The same is reproduced hereunder: "On 13 July 2023, the International Court of Arbitration of the International Chamber of Commerce ("Court"): - fixed Singapore as the place of the arbitration (Article 18(1)). - confirmed Andre Yeap as co-arbitrator upon Claimant's nomination (Article 13(1)). - confirmed Arjan Kumar Sikri as co-arbitrator upon Respondent's nomination (Article 13(1)). - fixed the advance on costs at US$ 515 000, subject to later readjustments (Article 37(2))." 11. Thereon, from 19.04.2023 to 16.01.2025, the arbitration proceeding continued, and a First Partial Award dated 19.06.2024 was issued, which burdened the Plaintiff with financial liability to the tune of Rs. 30 crores (approximately). 12. On 17.01.2025, while preparing for the evidential hearings in the ICC Arbitration, the Counsel for Pla....
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....ile the ICC Court acknowledged that the non-disclosure by Mr. Yeap was regrettable, it was of the view that the circumstances did not establish justifiable doubts with respect to Mr. Yeap's impartiality and independence. 17. In the interregnum, the Plaintiff objected to the continuance of the arbitration proceeding; however, the Tribunal, on 12.03.2025, communicated its intention to fix the evidential hearings in Singapore from 26.05.2025 to 31.05.2025, while granting liberty to the parties to seek variation on seven days' notice, should there be a change in circumstances. 18. Meanwhile, on 13.11.2024, the Plaintiff partially challenged the First Partial Award before the Singapore High Court [hereinafter referred to as 'SGHC'] by filing OA 1185/2024. Thereafter, on 31.01.2025, the Plaintiff approached the SGHC seeking leave to amend OA 1185/2024 to introduce a new ground alleging bias on the part of Mr. Yeap as an additional basis for setting aside the Partial Award. Pursuant thereto, on 03.02.2025, the SGHC granted the Plaintiff permission to file an application seeking the proposed amendment, and accordingly, the Plaintiff filed the relevant application in OA 1185/2024 on 0....
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.... On the next date of hearing, i.e., 21.04.2025, the Defendant entered appearance and objected to the maintainability of the suit. Learned Single Judge left the question of maintainability to be decided on the next date, but issued notice in the application seeking interim reliefs with liberty to the Defendant to file a reply. However, the Tribunal, on 25.04.2025, despite being informed of the pendency of the suit, informed the parties of its decision to proceed with the evidential hearings scheduled for the week commencing on 26.05.2025. 25. On 06.05.2025, the Defendant, apart from objecting to the maintainability of the suit, also objected to the maintainability of a simultaneous proceeding before the learned Single Judge of this Court and the SGHC. Consequently, a statement was made by the Plaintiff that it would consider withdrawing the Article 13(3) Challenge Application filed before the SGHC, which resulted in the adjournment of the hearing to 19.05.2025. On 13.05.2025, the Plaintiff's Counsel issued a letter to the Defendant's Counsel seeking the Defendant's consent to file a joint application before the SGHC for withdrawal of the Article 13(3) Challenge Application, howev....
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....ponded to by the Tribunal, in which the response of the Defendant was sought within 24 hours. On the same day, the Defendant filed a motion for an injunction before the SGHC in the Challenge Application to prevent the Plaintiff from proceeding with the suit. 30. Further, on 22.05.2025, the Defendant's Counsel issued an email to apprise the Plaintiff of its intention to mention the motion for injunction before the Duty Registrar for the said motion to be listed before the SGHC on 23.05.2025. On the same day at 10:22 AM (IST), the Defendant issued an email to the Tribunal and insisted on proceeding with the evidential hearings. At 03:39 PM (IST), the Tribunal apprised the parties, stating that the evidential hearings will commence on 26.05.2025. 31. On the same day, at 10:30 PM (IST), the Plaintiff's Counsel mentioned the matter before the Judge-in-Charge (Original Side) of the SGHC for listing of an urgent application to restrain the Defendant from proceeding with the motion for injunction pending hearing in the suit, which was allowed. However, at 02:42 PM, the Defendant withdrew the motion for injunction petition as it was inappropriately filed in the pending Article 13(3) C....
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....for the following reasons: i. The judicial authority of the Civil Courts under Section 9 of the Code of Civil Procedure [hereinafter referred to as 'CPC'] and its inherent powers under Section 151 of the CPC remain preserved to safeguard against the misuse of the arbitral process, unless expressly barred by the statute, which is not the case herein. ii. In instances where the Tribunal acts contrary to the fundamental tenets of judicial procedure or the governing statute, the Civil Courts shall retain jurisdiction. iii. The concept of anti-arbitration injunction is not alien to other prominent jurisdictions. However, the power is to be exercised sparingly. iv. Arbitration proceedings could be injuncted, wherein the attending circumstances would render the continuation of the arbitration proceeding oppressive or unconscionable. v. The test under Article 11 of the ICC Rules is a pre-emptive and precautionary one. The arbitrator cannot withhold disclosure on the ground that, in his or her view, the fact or association is benign or too remote to influence impartiality. vi. The conduct of the Defendant therein, when examined holistica....
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.... Partial Award and a challenge to the appointment of a co-arbitrator. The learned Single Judge passed an injunction order despite there being an anti-suit injunction order dated 23.05.2025, passed by the SGHC. vi. The Civil Suit is not maintainable in the facts of law by virtue of the doctrine of res judicata and the doctrine of estoppel. Since the issue of bias against the co-arbitrator was already adjudicated on three occasions: namely, (a) at the stage of partial setting aside of First Partial Award; (b) setting aside of First Partial Award on additional grounds of bias; and, (c) the challenge before the SGHC, which was against the ICC Court's decision and Plaintif's appeal before the Singapore Court of Appeal. vii. While submitting that the Plaintiff has approached the supervisory court, i.e., the Singapore Court, at the first instance, it was contended that the Plaintiff has indulged in forum shopping. viii. While calling upon the Court to exercise judicial comity, a prayer was made to set aside the order. ix. The Plaintiff's conduct was claimed to be vexatious and oppressive by resorting to forum shopping and viol....
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....d by, construed and take effect in all respects according to the Laws and Regulations of the Sultanate of Oman. 19.3 Any dispute or difference of opinion between the parties hereto arising out of this Agreement or as to its interpretation or construction shall be referred to arbitration. The Arbitration Panel shall consist of three Arbitrators, one Arbitrator to be appointed by each party and the third Arbitrator being appointed by the two Arbitrators already appointed, or in the event that the two arbitrators cannot agree upon the third Arbitrator, third Arbitrator shall be appointed by the International Chamber of Commerce. The place of the Arbitration shall be mutually discussed and agreed. 19.4 The decision of the Arbitration Panel shall be final and binding upon the parties." (Emphasis supplied.) 43. Based on the contentions of the parties and the assertions advanced by them, we are of the opinion that the following issues fall for our determination: A. Whether Article 19 of the Agreement which encapsulates the Dispute Resolution, as it presents itself, determines the "Seat" of the Arbitration, or the substantive law governing the Agreement, to....
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....g from or in connection with the agreement shall lie with the courts at New Delhi, India, whereas the place of arbitration shall be mutually discussed and agreed by the parties. It further provides that any reference to arbitration shall be governed by, and conducted in accordance with, the ICC Rules. Furthermore, as already noted above, based on the choices of venue presented, the ICC Court fixed the place to be Singapore. 50. Dissecting Article 19 set out hereinabove, we are of the prima facie view that, the said Article is comprised of four parts and which, when read contextually, delineate the applicable law, the jurisdiction clause, and the workflow of arbitral process. While so dissecting and analysing the Article, we are also mindful of the fact that it would be the sum total of the whole which would finally determine our prima facie finding in this respect. 51. The first half of Article 19.1, which reads thus, "19.1 Disputes if any, arising out of or related to or any way connected with this agreement shall be resolved amicably in the First instance or otherwise through arbitration in accordance with Rules of Arbitration of the International Chamber of Commerce.", is ....
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....concerned with identifying the law to be referred for the operation and performance of the contract and does not, by its terms, extend to the law regulating the arbitral process. The clause is directed towards the substantive legal regime governing the performance and administration of contractual obligations in Oman, such as compliance with local labour law requirements, regulatory approvals, and other operational norms relevant to the execution of the works. Its scope is therefore confined to the performance and compliance issues under the agreement and does not, in any manner, alter or supersede the law governing the dispute resolution or the determination of the juridical seat. 56. Additionally, in the present case, Article 19.2 cannot be construed as an indicator of the seat because the clause does not mention arbitration, arbitral procedure, or the courts supervising arbitration. Its subject matter is limited to the contractual obligations and regulatory requirements binding the parties in Oman. It relates to permissions, statutory compliance, and enforcement of contractual duties within that jurisdiction. Consequently, the provision has no bearing on identifying the jurid....
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....self, override the clear expression in Article 19.1. It is well-established in arbitration jurisprudence, including by the Supreme Court in BGS SGS Soma JV (supra), that when parties specify a court of exclusive jurisdiction, such designation ordinarily guides the determination of the seat in the absence of contrary indicators. 62. As already expressed hereinbefore, the first part of Article 19.1 states that arbitration shall be conducted in accordance with the ICC Rules. These rules govern the procedure for administering the arbitration, including the appointment of arbitrators and procedural timelines. Therefore, the reference to ICC Rules does not, in itself, determine the juridical seat of arbitration. However, significantly, the second part of Article 19.1 vests the jurisdiction of the disputes arising from the Agreement with the courts at New Delhi, India. Therefore, on a conjoint reading of both parts of this Article, it becomes evident that the ICC rules have been referred for the purposes of governing the procedural aspect of the arbitration and is not directed towards deciding the substantive disputes arising from the contract and thus, it cannot be referred for the de....
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....ts of the arbitral framework, even though they intentionally left the designation of the place of arbitration undecided. 65. When Article 19 is read holistically, contextually and harmoniously, it becomes clear that the omission to specify the place/venue of arbitration was not inadvertent but intentional. The parties, while settling other essential elements of the arbitral architecture, consciously refrained from fixing the place of arbitration at the time of execution. Such an omission, when viewed against the backdrop of the clause conferring exclusive jurisdiction on the Courts at New Delhi and the selection of the Institutional Rules, indicates a deliberate choice to avoid attributing any juridical significance to the place/venue of arbitration at that stage. 66. Had the parties intended that the place of arbitration would function as the juridical seat and thereby the supervisory jurisdiction, it is reasonable to expect that they would have expressly identified such a place in the agreement. The fact that the place of arbitration was left open for later decision, and ultimately fixed by the ICC Court only due to the failure of the parties to agree, strongly suggests tha....
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.... intention to designate New Delhi, India, as the juridical seat of arbitration. ii. Article 19.3 refers to the venue for the conduct of arbitral proceedings and cannot be construed as an agreement on the juridical seat. iii. The ICC Court's administrative fixation of Singapore as the "place" of arbitration is to be understood as a fixation of the venue and does not alter the juridical seat. 72. Therefore, the argument of the learned Senior Counsel representing the Defendant, based upon the doctrine of lex fori, lacks substance for the following reasons: i. The seat of the arbitration is Indian Law. ii. The jurisdiction of the Civil Court in India, being plenary, is excluded only by specific and categorical exclusion, which is not the case of the Defendant. iii. The principles enshrined in Section 42 of the A&C Act do not apply to an independent civil suit. iv. Given that Indian Courts have jurisdiction, the resistance in this respect qua the maintainability of the Anti- Arbitration Suit, would clearly not survive. 73. The first question would thus stand answered. This Court shall now proceed to examine Question No. (ii). I....
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.... a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." 74. Since there exists no specific bar excluding the jurisdiction of the civil courts in the present matter, the civil courts in India have the jurisdiction to try and decide the present dispute. Hence, the jurisdiction of the civil courts is not prima facie barred in the present case. 75. We have, prima facie, held that as per Article 19, the seat of the arbitration shall lie with the Courts at New Delhi, India. The attention of the Court has not been drawn to the statutory provision which excludes the....
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....sue examined in this judgment by the Supreme Court is not relevant to the present case because the case was primarily decided on the concept of the seat of arbitration while distinguishing it from a venue of arbitration. 80. The next reliance of learned Senior Counsel representing the Defendant is upon the judgment of the Supreme Court in HPCL BioFuels Ltd. v. Shahaji Bhanudas Bhad [(2024) SCC OnLine SC 3190]. In this judgment, learned Senior Counsel has referred to Paragraph Nos. 50, 51, and 52 of the judgment. On a careful study of this judgment, it becomes evident that the Supreme Court was hearing an appeal against the judgment passed on 31.01.2024 by the High Court of Judicature at Bombay, wherein the petition filed under Section 11(6) of the A&C Act was allowed. In Paragraph No. 31, the Court identified the issues that required adjudication. All the issues identified are in the context of Section 11(6) of the A&C Act, which does not apply to the facts of the present case. In Paragraph Nos. 50, 51, and 52, the effect of withdrawal of the previous petition was examined in the context of principles enshrined under Order XXIII Rule 1 of the CPC. 81. The next reliance is on ....
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....ble and not applicable to the peculiar facts in the present matter. Moreover, a strong presumption in favour of the jurisdiction of the civil courts exists. Wherever the court finds that the provisions of a particular statute, which exclude the jurisdiction of the civil courts, have not been complied with or the Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the jurisdiction of the civil courts is not ousted. 84. As already noted above, vide Arbitration and Conciliation (Amendment) Act, 2015 [hereinafter referred to as '2015 Amendment'], a proviso to Section 2(2) of the A&C Act was added, which reads as follows: "(2) This Part shall apply where the place of arbitration is in India: Provided that subject to an agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act." 85. By virtue of the aforesaid amendment, th....
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....n constitutes the foundational legal framework governing the validity, supervision, and integrity of the arbitral process. Therefore, questions concerning the impartiality and independence of arbitrators fall squarely within this supervisory domain. As these standards form part of the public-law safeguards of the seat of arbitration, they cannot be displaced or diluted by any procedural rules agreed upon by the parties or adopted from institutional frameworks. To permit the procedural law to override the lex arbitri would erode the very public policy considerations that the seat State has embedded in its statutory regime to ensure fairness, transparency, and legitimacy in arbitration. 91. The primacy of the law of the seat is further underscored by the consequences that flow from non-compliance with the standards of the seat State. An award rendered in violation of the seat's statutory standards of impartiality is liable to be set aside by the courts at the seat, thereby undermining the finality and enforceability of the award. International commercial arbitration requires a predictable and coherent supervisory structure. Such predictability would be compromised if procedural ru....
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....s. The same is reproduced hereunder: "12. Grounds for challenge.- (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,- (a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. Explanation1.-The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Explanation 2.-The disclosure shall be made by such person in the form specified in the Sixth Schedule. (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, wit....
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....fth Schedule, give rise to justifiable doubts as to the impartiality of the arbitrator in the present case: "Arbitrator's relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party. *** Previous services for one of the parties or other involvement in the case 20. The arbitrator has within the past three years served as counsel for one of the parties or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter, but the arbitrator and the party or the affiliate of the party have no ongoing relationship. 21. The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter. 22. The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties." 99. The threshold of impartiality under the Indian legal framework is anchored in the principle....
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.... for government and private sector clients. MSA is a company incorporated under the laws of Oman. MSA's address is: P.O. BOX: 1372, Postal Code : 130, Azaiba Muscat, Sultanate of Oman Email: [email protected] [email protected] 10. MSA is represented in this arbitration by its authorized counsel: Mr. Kirat Singh Nagra Mr. Kartik Yadav Mr. Pranav Vyas Mr. Manhar Singh Saini Ms. Sumedha Chadha Mr. Tushar Nagar DSK LEGAL Level 5, Max House, Okhla Industrial Estate, Phase - 3 Road, New Delhi - 110020, India Email: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]" 103. Pursuant thereto, the Defendant nominated Mr. Andre Yeap, Senior Counsel from Singapore, as its co-arbitrator in November 2018 in a separate matter, which involved Mr. Atwal, who happens to be the MD, Chairman, and Promoter of the MSA Global LLC (Oman). Since, the ICC Rules are a....
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....arpal Shah vs. Manbhupinder Singh Atwal (supra). It is to be noted here that, in fact, MSA is an abbreviated form of Manbhupinder Singh Atwal. 105. Further, as per Mr. Yeap's response, he became aware of the conflict in October 2024, however, he failed to disclose the same. Even when the application was filed by the Plaintiff challenging the impartiality and independence of Mr. Yeap, he did not recuse but gave a specious explanation for his disclosure, which has already been reproduced. 106. Hence, the Court is required to ascertain whether the impartiality disclosure meets the statutory threshold mandated under the law of the seat, i.e., Indian law. 107. The material placed on record establishes that the proposed arbitrator was privy to a prior professional engagement involving Mr. Atwal, whose association is integrally linked with MSA Global, and that such a relationship falls squarely within the categories delineated in the Fifth Schedule appended to the A&C Act as circumstances capable of giving rise to justifiable doubts concerning impartiality arise. 108. This Court is of the considered view that the omission to disclose the aforesaid prior professional involvemen....
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.... * The arbitrator or prospective arbitrator or his or her law firm acts or has acted on behalf of one of the parties or one of its affiliates as director, board member, officer, or otherwise. * The arbitrator or prospective arbitrator or his or her law firm is or has been involved in the dispute, or has expressed a view on the dispute in a manner that might affect his or her impartiality. * The arbitrator or prospective arbitrator has a professional or close personal relationship with counsel to one of the parties or the counsel's law firm. * The arbitrator or prospective arbitrator acts or has acted as arbitrator in a case involving one of the parties or one of its affiliates. * The arbitrator or prospective arbitrator acts or has acted as arbitrator in a related case. * The arbitrator or prospective arbitrator has in the past been appointed as arbitrator by one of the parties or one of its affiliates, or by counsel to one of the parties or the counsel's law firm. In assessing whether a disclosure should be made, an arbitrator or prospective arbitrator should consider relationships with non-parties having an interest in the ....
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....rguments of the learned Senior Counsel representing the Defendant on the doctrine of estoppel and res judicata are not applicable because neither is there any prior suit involving the same issue which has been finally decided, nor the proceedings before the Tribunal and challenge before ICC Court, which in fact is not a court, or the SGHC, affects the maintainability of the suit. 115. The doctrine of estoppel is provided in Chapter VIII of the Bharatiya Sakshya Adhiniyam, 2023 [Chapter VIII of the Indian Evidence Act, 1872] [hereinafter referred to as 'BSA 2023']. The pre-requisites of Section 121 of BSA 2023 [Section 115 of Indian Evidence Act, 1872] are required to be met before the doctrine of estoppel can be applied. It has not been shown as to when the Plaintiff has, by his declaration, act or omission, caused or permitted the Defendant to believe that he will never file a civil suit. It is also not proved that the Defendant has acted upon such a belief and changed his position. 116. Further, the foreign anti-suit injunction granted by the SGHC, being a decision emanating from the arbitration venue jurisdiction, does not attain the status of res judicata before a civil c....
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.... finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." 118. Section 11 of the CPC mandates that no Court shall try any suit or issue in which the matter directly and substantially in issue has been adjudicated upon in a former proceeding by a Court of competent jurisdiction. The essential requirements for the application of Section 11 of the CPC include: (i) identity of parties; (ii) identity of issues directly and substantially in question; (iii) a final adjudication on merits; and most critically, (iv) the adjudication by a Court of competent jurisdiction. 119. It is this latter requirement of competent jurisdiction that assumes determinative significance in the factual matrix of the present case. A judgment or order, including one rendered by a foreign court, can operate as res judicata before an Indian court only if the foreign forum possessed the requisite jurisdictional competence as understo....
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.... Section 13(a) of the CPC mandates that the foreign court issuing the judgment must possess competence not merely in terms of in personam jurisdiction over the parties, but also with respect to the subject matter, as understood under internationally recognised jurisdictional norms. In the absence of such subject-matter competence, the foreign judgment stands vitiated and is rendered null and void for purposes of recognition in India. 125. In the context of international commercial arbitration, the juridical seat (India, in the case at hand) vests exclusive supervisory jurisdiction in the courts of that seat over all aspects of the curial process. An anti-suit injunction issued by a non-seat forum, such as a mere venue jurisdiction, purporting to restrain a party from approaching Indian seat courts for statutory relief under the A&C Act raises grave concerns as to the foreign court's subject-matter authority. When a foreign court arrogates unto itself the power to regulate or impede the supervisory processes of the designated Indian seat, such conduct amounts to the foreign court acting "manifestly in excess of jurisdiction". This jurisdictional transgression directly attracts th....
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....xercise of extremely limited jurisdiction in the Impugned Order of injunction is not called for. 128. It is also evident that before the SGHC took any decision on the Challenge Application, the Plaintiff not only filed the suit and sought an injunction in which notice stood issued, but also filed an application for withdrawing its challenge from the SGHC. Hence, the argument of learned Senior Counsel representing the Defendant that the Plaintiff has indulged in 'forum shopping' or 'elected remedy' is prima facie incorrect. 129. Additionally, the Plaintiff, in fact, filed the Civil Suit on 15.04.2025, whereas the SGHC rejected the application on 07.07.2025, whereas the reasons were uploaded only on 24.07.2025. This was just a day prior to the Impugned Order passed by the learned Single Judge on 25.07.2025. Hence, the argument of learned Senior Counsel representing the Defendant with respect to the election of remedy and the Plaintiff indulging in 'forum shopping' is found without substance, and hence rejected. 130. The second part of the submission of learned Senior Counsel representing the Defendant is with respect to the anti-suit injunction order passed by the SGHC. Lear....
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....intiff issued a letter through its Singapore Counsel, expressing its intent to withdraw its appeal by 07.05.2025, before Supreme Court at Singapore against the First Partial Award decision by the High Court of Singapore. Meanwhile, consequent to the defendant's request, the Tribunal observed that despite giving multiple opportunities to the plaintiff for purpose of filing its substantive response to the wasted costs application, the plaintiff has failed to do so. The Tribunal further observed that it will consider the wasted costs application, either during or after the evidential hearing. 96. On 05.05.2025, the plaintiff filed a Notice of withdrawal before the Supreme Court at Singapore thereby seeking to withdraw the appeal unconditionally. On 16.05.2025, the plaintiff also filed an application before the High Court of Singapore seeking withdrawal of the challenge to the ICC Court's decision. On 19.05.2025, the plaintiff requested the Tribunal for the deferment of the evidentiary hearing on the ground of pendency of this suit. However, when the Tribunal asked for the defendant's consent, the defendant vide email dated 19.05.2025 stated that the evidential hearing sho....
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....isengagement from the arbitral process. It was coupled with the defendant's own fresh motion seeking an anti-suit injunction, yet another tactical step designed not to resolve the underlying dispute, but to suppress the plaintiff's recourse to legal remedies and to preclude judicial examination of the legitimacy of the arbitral process. The totality of this conduct unequivocally suggests a mala fide and oppressive litigation strategy, one which is intended to exhaust, delay, coerce and manoeuvre the plaintiff by compelling it to defend itself across multiple legal forums simultaneously, irrespective of the merits of the dispute. Alongside, it is intended to prevent the plaintiff from pursuing any legitimate claim before the judicial fora despite the plaintiff having legitimate apprehensions qua the ongoing arbitration proceeding. 101. Such tactics, which are neither fair nor in consonance with the objectives of arbitration or civil litigation, amount to a weaponisation of the judicial process for collateral purposes. The evident abuse of legal machinery to harass the plaintiff and frustrate its access to justice cannot be countenanced by a Court of law. For, the Courts in ....
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....is Court as the arbitration proceedings are prima facie vexatious and oppressive in nature." 131. Additionally, as already established above by the learned Single Judge that the proceedings before the Tribunal are prima facie vexatious and oppressive in nature, and the Court has analysed all three factors for the grant of an injunction, namely, prima facie case, balance of convenience, and irreparable injury, which the Plaintiff is likely to suffer if the injunction is not granted. It is also observed that the Plaintiff cannot be compelled to participate in an arbitral proceeding before the Tribunal whose impartiality is in serious doubt. 132. Similarly, the submission of learned Senior Counsel representing the Defendant to the effect that the Plaintiff, after invoking the jurisdiction of the SGHC on three occasions and one occasion in the Singapore Court of Appeal, cannot file the present suit, lacks substance because it is evident that the Plaintiff at the first instance challenged the correctness of the First Partial Award before the SGHC. During its pendency, an application for permission to introduce apparent bias as a new basis for setting aside the First Partial Award ....