BYL v BYN: Setting Aside of ICC Partial Award Due to Put Option Reliefs and Arbitrator Bias
In BYL and BYM v BYN, the Singapore International Commercial Court addressed an application by BYL and BYM to set aside a partial award issued in an ICC Arbitration. The Plaintiffs sought to set aside the award on grounds related to the Tribunal's decision on put options and alleged bias of an arbitrator. The court, presided over by Anselmo Reyes IJ, dismissed the application, finding no basis to set aside the award under the International Arbitration Act or the UNCITRAL Model Law.
1. Case Overview
1.1 Court
SINGAPORE INTERNATIONAL COMMERCIAL COURT1.2 Outcome
Application dismissed.
1.3 Case Type
Arbitration
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
BYL v BYN concerns an application to set aside an ICC partial award based on alternative put option reliefs and arbitrator bias. The court dismissed the application.
1.7 Decision Date
2. Parties and Outcomes
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Anselmo Reyes | International Judge | Yes |
4. Counsels
4. Facts
- BYL and BYM sought to set aside a partial award in an ICC Arbitration.
- The ICC Award was issued by a tribunal of three arbitrators.
- The application was premised on the tribunal's decision to award reliefs under two put options.
- The second ground was based on the conduct of a tribunal member who made belated disclosures of a co-counsel relationship.
- The dispute arose out of a Share Subscription and Shareholders Agreement dated 7 August 2008.
- The Investor became a 35% shareholder in the Company, with the Promoter holding the remaining 65%.
- Clauses 14 and 17 of the SSHA gave the Investor two put options.
- SA was appointed as arbitrator but later became co-counsel with the Firm representing the Investor in another matter.
- SA resigned from the ICC Arbitration after a challenge to his independence.
5. Formal Citations
- BYL and another v BYN, Originating Summons No 9 of 2019, [2020] SGHC(I) 06
6. Timeline
| Date | Event |
|---|---|
| Share Subscription and Shareholders Agreement signed | |
| Second Respondent in the Arbitration dissolved | |
| ICC Arbitration started | |
| Investor nominated Mr. [Y] as co-arbitrator | |
| Plaintiffs nominated SA as arbitrator | |
| Investor informed the ICC and the Plaintiffs that [BBB] would act as co-counsel | |
| SA signed a Statement of Acceptance, Availability, Impartiality and Independence | |
| Investor confirmed it had no objection to SA’s appointment as arbitrator | |
| ICC confirmed the appointments of Mr. [Y] and SA as co-arbitrators | |
| Chairperson was appointed as presiding arbitrator | |
| Investor's Statement of Claim was dated | |
| Development commenced operations | |
| Oral hearing took place in the ICC Arbitration | |
| Oral hearing took place in the ICC Arbitration | |
| Investor's Post-Hearing Brief was dated | |
| SA circulated part of the ICC Award drafted by him | |
| SA was approached to act for [MMM] at a Delhi High Court hearing | |
| SA appeared before the Delhi High Court in the enforcement proceedings | |
| Tribunal notified the parties that the arbitral proceedings were closed and sent a draft of the ICC Award to the ICC for scrutiny | |
| ICC approved the draft ICC Award with comments | |
| Tribunal informed the parties that it had revised the draft ICC Award and sent it to the ICC for final approval | |
| Partial Award (the “ICC Award”) was dated | |
| ICC transmitted the finalised ICC Award to the parties | |
| Mr. [N] and Ms. [P] met SA | |
| Hearing before the Delhi High Court | |
| Mr. [N] and Ms. [P] met with SA | |
| Investor filed submissions on the ongoing matters in the ICC Arbitration | |
| SA emailed the parties to the ICC Arbitration disclosing his instruction by an Indian law firm | |
| SA replied to the Plaintiffs' solicitors | |
| SA’s engagement as counsel in the UNCITRAL Arbitration was formalised | |
| Plaintiffs brought a challenge in respect of SA’s ability to act as an independent arbitrator | |
| Chairperson and Mr. [Y] declined to comment on the ICC Challenge | |
| SA provided his comments to the challenge | |
| SA issued revised comments | |
| Plaintiffs applied to the Singapore Court to set aside the ICC Award | |
| SA commented further on the ICC Challenge | |
| ICC asked SA whether he wished to resign or have the ICC decide the ICC Challenge | |
| SA replied to ICC and resigned | |
| ICC accepted SA’s resignation |
7. Legal Issues
- Setting Aside Arbitral Award
- Outcome: The court dismissed the application to set aside the arbitral award.
- Category: Procedural
- Sub-Issues:
- Excess of jurisdiction
- Breach of natural justice
- Public policy violation
- Apparent Bias of Arbitrator
- Outcome: The court found no apparent bias vitiating the ICC Award.
- Category: Substantive
- Sub-Issues:
- Failure to disclose co-counsel relationship
- Reasonable suspicion of bias
- Enforceability of Put Option Clauses
- Outcome: The court found no basis to set aside the award based on the put option reliefs granted.
- Category: Substantive
- Sub-Issues:
- Validity of clause 17 under FEMA
- Double recovery
8. Remedies Sought
- Setting Aside of ICC Award
9. Cause of Actions
- Setting Aside of Arbitral Award
- Breach of Contract
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| UES Holdings Pte Ltd v KH Foges Pte Ltd | High Court | Yes | [2018] 3 SLR 648 | Singapore | Cited for the test of apparent bias in arbitration proceedings. |
| PT Central Investindo v Franciscus Wongso and others and another matter | High Court | Yes | [2014] 4 SLR 978 | Singapore | Cited for the application of the reasonable suspicion test to remove an arbitrator for bias. |
| BOI v BOJ | High Court | Yes | [2018] 2 SLR 1156 | Singapore | Cited for the objective application of the reasonable suspicion test and the characteristics of the hypothetical reasonable observer. |
| Halliburton Co v Chubb Bermuda Insurance Ltd and others | Court of Appeal | Yes | [2018] 1 WLR 3361 | England and Wales | Cited for the principle that non-disclosure is a factor to be considered in assessing apparent bias. |
| Davidson’s case | House of Lords | Yes | [2005] 1 SC (HL) 7 | United Kingdom | Cited regarding the impact of non-disclosure on the perception of impartiality. |
| Paice v MJ Harding (trading as MJ Harding Contractors) | High Court of Justice | Yes | [2015] EWHC 661 (TCC) | England and Wales | Cited regarding the impact of an inappropriate response to disclosure on the conclusion of apparent bias. |
| Cofely Ltd v Bingham | Court of Appeal | Yes | [2016] 2 All ER (Comm) 129 | England and Wales | Cited regarding the impact of an inappropriate response to disclosure on the conclusion of apparent bias. |
| Helow v Secretary of State for the Home Department | House of Lords | Yes | [2008] 1 WLR 2416 | United Kingdom | Cited regarding the need for something more than non-disclosure to justify an inference of apparent bias. |
13. Applicable Rules
| Rule Name |
|---|
| 2012 ICC Rules of Arbitration |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| International Arbitration Act (Cap 143A, 2002 Rev Ed) | Singapore |
| UNCITRAL Model Law on International Commercial Arbitration | Singapore |
| Foreign Exchange Management Act 1999 (Act 42 of 1999) | India |
15. Key Terms and Keywords
15.1 Key Terms
- ICC Arbitration
- Partial Award
- Put Option
- Apparent Bias
- Co-Counsel
- Share Subscription and Shareholders Agreement
- Foreign Exchange Management Act
- UNCITRAL Award
- Reasonable Suspicion
15.2 Keywords
- arbitration
- ICC
- bias
- put option
- Singapore
- international
- commercial
- award
- setting aside
17. Areas of Law
16. Subjects
- Arbitration
- International Commercial Law
- Conflict of Interest