Singapore High Court Sets Aside Arbitration Award for Arbitrator’s Overextensive Use of Witness Gating

February 04, 2020

In CBP v. CBS [2020] SGHC 23, the Singapore High Court had the opportunity to determine whether an arbitrator had a right to deny one party from hearing evidence from any of the plaintiff’s witnesses. At issue was whether Rule 28.1 of the Singapore Chamber of Maritime Arbitration (SCMA) rules gave the arbitrator powers to exclude witness testimony.

Rule 28.1 of the SCMA rules provides:

Unless the parties have agreed on a documents-only arbitration or that no hearing should be held, the Tribunal shall hold a hearing for the presentation of evidence by witnesses, including expert witnesses, or for oral submissions.

It bears noting that Rule 28.1 of the SCMA rules is similar to Article 24 of the UNCITRAL Model Law on International Commercial Arbitration.

The claimant bank in the arbitration argued that the rule should be read disjunctively, in that if parties could not agree on a documents-only arbitration, then Rule 28.1 only obligated the arbitrator to call for a hearing for oral submissions. It also argued that it was within the arbitrator’s powers to manage the procedure such that he could determine whether to hear any evidence.

The respondent argued that witness gating of this nature was not permissible and that Rule 28.1 did not grant such a power.

The Singapore High Court agreed with the respondent, noting that in this case, the arbitrator had refused to hear evidence from all witnesses and in any form—whether to be examined or simply through written statements. The Court also noted that the case hinged on an allegation of an oral agreement and, in this context, it would be unfair for the arbitrator to exclude the evidence.

Importantly, the Court accepted that tribunals are vested with the power to witness gate if such practice assists in the efficiency of the proceedings. However, this is always tempered by a tribunal’s duty to afford parties a right to a fair hearing and a fair opportunity to present their case.

The Singapore High Court set aside the award.

Teaching Points

  1. While witness gating is permissible in the interest of efficiency, this practice must always be balanced with the right to a fair hearing and a fair opportunity to present a party’s case.
  2. Applications to dispose of witness testimony and, therefore, to witness gate should be taken with care given the possibility that this may form a ground to set aside an award rendered.