Samwise Gamgee in JRR Tolkien’s The Lord of the Rings
In the past few years, Singapore’s national courts have observed a rising number of applications to set aside arbitral awards on grounds of alleged procedural irregularities. In particular, parties invoke a breach of the rules of natural justice and/or an excess of jurisdiction by the arbitral tribunal. They argue that the arbitral tribunal has not sufficiently considered their arguments or that it has engaged with issues the parties had never submitted to it. However, what they really seem to be after is a state court review of the substantive portions of the award. They re-characterize the case they unsuccessfully argued in the arbitration as procedural challenges before the Singaporean courts in the hopes of achieving a set aside of the arbitral award. In the Tolkien universe, such disguise of one’s true intentions would be associated with the saying that “fair speech may hide a foul heart”. For the purposes of this article, these set aside applications shall be called “Trojan horse challenges”.
Trojan horse challenges can create considerable problems for the Singaporean courts. They frequently note the increasing difficulty and lengths to which they have to go in order to discern meritorious from unmeritorious challenges. The ensuing conundrum the courts see themselves faced with was articulated in BLB v BLC.