Singapore Court of Appeal Sets Out Framework for Infra Petita Challenges

In the recent case of DKT v. DKU [2025] SGCA 23, the Singapore Court of Appeal has, noting its observation of an “increasing tendency for disgruntled award debtors to abuse this ground of challenge on wholly unmeritorious grounds,” taken the opportunity to set out a clear framework for dealing with infra petita challenges.

BACKGROUND

The case of DKT v. DKU [2025] SGCA 23 concerned an appeal against the dismissal of an application to set aside an arbitral award. The underlying dispute concerned the respondent’s engagement of the appellant’s building maintenance services, which included carrying out crack repairs on the walls and ceilings of the respondent’s network of buildings located around the island that were used for electricity transmission services in Singapore.

Works were carried out by the appellant between 2012 and 2016, for which the appellant submitted at least 278 claim forms to the respondent amounting to approximately $2.2 million. In 2018, the respondent had, through the sample testings carried out by a construction consultancy firm, discovered that the appellant’s works were either incomplete or not in compliance with the specifically agreed method for performing crack repairs.

The respondent commenced an arbitration against the appellant for its contractual breaches and succeeded in obtaining an award requiring the appellant to make payment of around $2 million to the respondent. The arbitral tribunal accepted the expert report prepared by the construction consultancy firm and found that in at least 246 instances, the appellant charged the respondent for crack repairs where no repairs were actually necessary.

THE APPELLANT FAILED TO HAVE THE AWARD SET ASIDE

The appellant sought to set aside the award pursuant to Section 48(1) of the Singapore Arbitration Act 2001, alleging multiple breaches of rules of natural justice. This was dismissed by a judicial commissioner in the lower court.

On appeal, the Singapore Court of Appeal agreed with the lower court’s decision and criticized the appeal as “baseless” and “nothing more than unmeritorious complaints because they were, in truth, directed at challenging the merits of the award, but presented under the guise of natural justice challenges in a vain attempt to come with the ambit of limited grounds” for setting aside.

Amongst other challenges, the appellant raised two infra petita challenges, alleging that the tribunal had (1) disregarded certain of the appellant’s pleaded defenses; and (2) failed to apply its mind to the appellant’s arguments relating to the expert’s admission that core samples were taken from the wrong places in at least five locations.

Referencing various portions of the arbitral award, the Court of Appeal found that it was evident that the arbitral tribunal had considered the appellant’s defenses and had applied its mind to the appellant’s arguments. The Court of Appeal opined that it was beside the point that the appellant may disagree with the arbitral tribunal’s findings, and further highlighted that “in this sort of inquiry, the court is not to be drawn into the merits, correctness or sufficiency of the arbitrator’s analysis”.

THE FRAMEWORK FOR INFRA PETITA CHALLENGES

As held in the earlier Court of Appeal decision of DEM v. DEL [2025] 1 SLR 29 (see our January 23, 2025 LawFlash), at its core, an infra petita challenge is directed at the tribunal’s failure to deal with a matter falling within the scope of submission to the arbitral tribunal. The Court of Appeal took the view that an infra petita challenge should be better rationalized as a separate and independent natural justice challenge, and not under Article 34(2)(a)(iii) of the Model Law (which the court considered as contemplating only ultra petita challenges—where the tribunal exceeds its mandate by dealing with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of submission to arbitration).

The Court of Appeal set out four conditions that have to be satisfied for a successful infra petita challenge to be mounted.

1. The point must have been properly brought before the tribunal for its determination. The challenge is not open to nonparticipating parties (see our previous LawFlash), parties who wish to advance a different case that was not made before the tribunal, or parties who for some other reason failed to raise the point in question.
2. The point must have been essential to the resolution of the dispute. This stems from the principle that a tribunal does not have the duty to deal with every issue raised or to pursue moot issues.
3. The tribunal must have completely failed to consider the essential point. This will typically be a matter of inference that must be shown to be clear and virtually inescapable if one is to be drawn. As the court stated:

We emphasise again that the focus here is not on how well or accurately the tribunal understood, analysed and dealt with the point, but with whether it did in fact consider the point at all (however incompetently or incorrectly it may be said to have done so).

4. Even if the tribunal failed to consider an essential point placed before it, there must have been real or actual prejudice occasioned by this breach of natural justice.

KEY TAKEAWAYS

It is of note that the Court of Appeal opined that the judicial commissioner in the lower court was “exceedingly generous in the attention she had devoted to the appellant’s arguments” for which it considered “unnecessary and, of greater concern to [the Court of Appeal], also risks encouraging recalcitrant award debtors to burden the courts with needlessly excessive and convoluted references to the arbitral record.”

Beyond setting out a clear framework for infra petita challenges moving forward, this decision also serves to send a strong signal to award debtors of what to expect in future should unmeritorious and/or baseless setting aside challenges be mounted as a guise for reopening the merits.