Anwar Siraj and Another v Ting Kang Chung and Another [2003] SGHC 64

Sushant Shukla

Case Details

Citation: [2003] SGHC 64
Court: High Court
Decision Date: 24 March 2003
Coram: Tay Yong Kwang J
Case Number: Suit 123/2003; OM 26/2002
Hearing Date(s): 23 September 2002
Claimants / Plaintiffs: Anwar Siraj; Khoo Cheng Neo Norma
Respondent / Defendant: Ting Kang Chung (First Respondent); Teo Hee Lai Building Construction Pte Ltd (Second Respondent)
Counsel for Claimants: G Raman, V Suriamurthi (G Raman & Partners)
Counsel for Respondent: Richard Tan, Timothy Ng, Lee Hui Yan (Lee & Lee) for the first respondent; S Thulasidas (Ling Das & Partners) for the second respondent
Practice Areas: Arbitration; Challenge against arbitrator; Removal of arbitrator

The decision in Anwar Siraj and Another v Ting Kang Chung and Another [2003] SGHC 64 serves as a definitive statement on the high threshold required to remove an arbitrator for "misconduct" under the Arbitration Act. The dispute arose from a construction contract for a residential property at 2 Siglap Valley, where the owners (the Applicants) sought the removal of the appointed arbitrator, Ting Kang Chung, alleging incompetence, bias, and a failure to conduct the proceedings with due diligence. The Applicants’ grievances were multifaceted, ranging from the arbitrator’s handling of security for costs to his perceived "unprofessional" tone in correspondence and delays in convening a substantive hearing.

The High Court, presided over by Tay Yong Kwang J, dismissed the application in its entirety, reinforcing the principle that a party’s subjective loss of confidence in an arbitrator is insufficient to warrant removal. The court emphasized that "misconduct" in the context of the Arbitration Act (Cap 10, 1985 Rev Ed) requires an objective showing of a substantial miscarriage of justice or a real likelihood of bias. The judgment clarifies that an arbitrator’s robust management of a case, even if it involves making decisions adverse to one party or using firm language in correspondence, does not necessarily equate to a lack of impartiality or a failure in duty.

Doctrinally, the case is significant for its application of the objective test for bias in the arbitral context, distinguishing between procedural imperfections and the "real likelihood" of unfairness. It also addresses the transition between the old Arbitration Act and the Arbitration Act 2001, confirming that the law in force at the commencement of the arbitration governs the removal process. The court's refusal to intervene in the arbitrator's discretionary management of the timeline and security for costs underscores the policy of minimal curial intervention in Singapore’s arbitration landscape.

Ultimately, the significance of this case lies in its protection of the arbitral process from tactical challenges. By imposing a rigorous objective standard, the court ensured that parties cannot easily derail proceedings simply because they are dissatisfied with the arbitrator's preliminary rulings or administrative style. The decision remains a cornerstone for practitioners navigating challenges to arbitral appointments, providing a clear warning that the court will not lightly interfere with the mandate of a contractually or institutionally appointed tribunal.

Timeline of Events

30 December 1999: The Applicants and the Second Respondent (Teo Hee Lai Building Construction Pte Ltd) sign an agreement for the demolition and reconstruction of a house at 2 Siglap Valley for the sum of $1.2 million.
9 January 2001: The contractual completion date for the construction project.
12 December 2001: A significant date in the lead-up to the formal dispute, involving correspondence regarding the project's progress and alleged defects.
28 December 2001: Further correspondence or events related to the burgeoning dispute between the owners and the contractor.
30 January 2002: The dispute continues to escalate, leading toward the referral to arbitration under the SIA standard contract.
1 March 2002: The Arbitration Act 2001 comes into operation, creating a jurisdictional question as the arbitration commenced prior to this date.
11 March 2002: The arbitrator, Ting Kang Chung, convenes the first meeting of the parties to provide directions for the filing of pleadings.
14 March 2002: A site meeting is held at 2 Siglap Valley where the Applicants point out alleged defects to the arbitrator.
11 June 2002: The Applicants write to the arbitrator emphasizing the need for the hearing to be conducted as soon as possible.
12 June 2002: The Applicants send a follow-up letter to the arbitrator regarding the urgency of the proceedings.
4 July 2002: A date associated with the ongoing procedural friction and correspondence between the parties and the tribunal.
9 July 2002: Further procedural developments or correspondence within the arbitration framework.
31 July 2002: The arbitrator issues directions or correspondence that the Applicants later cite as evidence of delay or misconduct.
15 August 2002: The Applicants continue to press for a hearing date, expressing frustration with the arbitrator's perceived lack of responsiveness.
17 September 2002: A date relevant to the filing of documents or the escalation of the challenge against the arbitrator.
18 September 2002: Continued procedural activity immediately preceding the High Court hearing.
20 September 2002: Final preparations or filings before the substantive hearing of the Originating Motion.
23 September 2002: The substantive hearing of the Originating Motion (OM 26/2002) takes place before Tay Yong Kwang J.
27 September 2002: Post-hearing developments or further submissions.
30 September 2002: Continued procedural steps following the High Court hearing.
1 October 2002: A date marking the transition into the period where the court deliberated on the judgment.
5 October 2002: Further dates recorded in the metadata regarding the timeline of the dispute and its legal resolution.
9 October 2002: Relevant date in the chronology of the parties' interactions.
10 October 2002: Procedural milestone in the ongoing litigation.
11 October 2002: Further activity recorded in the case history.
28 October 2002: A date associated with the later stages of the application process.
30 October 2002: Continued procedural tracking.
31 October 2002: End of October milestones in the case timeline.
7 November 2002: Early November developments.
12 November 2002: Mid-November procedural events.
13 November 2002: Continued documentation or correspondence.
20 November 2002: Late November milestones.
22 November 2002: Significant date in the latter half of 2002 regarding the case's progress.
24 March 2003: Tay Yong Kwang J delivers the judgment, dismissing the Originating Motion.

What Were the Facts of This Case?

The Applicants, Anwar Siraj and Khoo Cheng Neo Norma, were the owners of a residential property located at 2 Siglap Valley. On 30 December 1999, they entered into a construction contract with the Second Respondent, Teo Hee Lai Building Construction Pte Ltd, for the demolition of an existing structure and the reconstruction of a new house. The contract price was fixed at $1.2 million. The parties utilized the standard form of contract provided by the Singapore Institute of Architects (SIA), which contained a mandatory arbitration clause for the resolution of any disputes arising out of or in connection with the works.

The project encountered significant difficulties, and the contractual completion date of 9 January 2001 passed without the works being finalized to the Applicants' satisfaction. A dispute crystallized around July 2001, primarily concerning allegations by the Applicants of shoddy workmanship and serious construction defects. These defects were described as including the delamination of tiles, persistent water seepage, flooding of the basement area, and dampness on the walls. The Second Respondent, in turn, had its own claims, likely for progress payments or variations, leading to a referral of the matter to arbitration. Pursuant to the SIA contract, the President of the SIA appointed the First Respondent, Ting Kang Chung, as the sole arbitrator to adjudicate the dispute.

The arbitration commenced, and the arbitrator held an initial meeting on 11 March 2002 to set the procedural timetable for pleadings. Shortly thereafter, on 14 March 2002, a site visit was conducted at 2 Siglap Valley, during which the Applicants personally highlighted the physical defects to the arbitrator. However, the relationship between the Applicants and the arbitrator quickly deteriorated. The Applicants became increasingly frustrated with what they perceived as the arbitrator's lethargy in bringing the matter to a substantive hearing. They sent multiple letters, notably on 11 June 2002 and 12 June 2002, urging the arbitrator to fix a hearing date and complaining about the lack of progress.

The friction was exacerbated by several procedural incidents. First, the Second Respondent applied for security for costs against the Applicants. The arbitrator eventually ordered the Applicants to provide security in the sum of $8,250. The Applicants contended that the arbitrator had mishandled this application, particularly regarding the timing of the order and the arbitrator's alleged failure to consider their counter-arguments. Second, a dispute arose regarding the arbitrator's own fees. The arbitrator had requested a deposit of $2,000 toward his fees, which the Applicants viewed with suspicion, especially when coupled with the arbitrator's communications regarding his billing. Third, the Applicants took issue with the tone of the arbitrator's correspondence, which they characterized as "unprofessional," "rude," and indicative of a bias toward the Second Respondent.

The Applicants also alleged that the arbitrator had failed to ensure the timely submission of documents by the Second Respondent, thereby allowing the contractor to delay the proceedings. They pointed to various dates—including 31 July 2002 and 15 August 2002—where they claimed the arbitrator had failed to act decisively. The Applicants' dissatisfaction reached a breaking point, leading them to file an Originating Motion in the High Court seeking the removal of Ting Kang Chung as arbitrator, a refund of all fees paid to him, and an order that the underlying construction dispute be heard by the High Court instead of continuing in arbitration. They essentially argued that the arbitrator had "misconducted himself or the proceedings" within the meaning of the Arbitration Act.

The Second Respondent opposed the application, maintaining that the arbitrator had acted within his discretion and that the Applicants were simply attempting to bypass the agreed-upon arbitration process. The arbitrator, represented by separate counsel, defended his conduct, arguing that his management of the case was fair and that the Applicants' complaints were based on a subjective and erroneous interpretation of the procedural history. The matter came before Tay Yong Kwang J on 23 September 2002 for a substantive hearing to determine whether the high threshold for the removal of an arbitrator had been met.

What Were the Key Legal Issues?

The primary legal issue was whether the grounds for the removal of the arbitrator had been established under the relevant statutory framework. This required the court to address several sub-issues:

Applicable Legislation: Whether the application should be governed by the Arbitration Act 2001 or the preceding Arbitration Act (Cap 10, 1985 Rev Ed). This was critical because the arbitration had commenced before the 2001 Act came into force on 1 March 2002.
Definition of "Misconduct": What constitutes "misconduct" under Section 17 of the Arbitration Act? The court had to determine if procedural delays, firm correspondence, or discretionary rulings on security for costs could rise to the level of misconduct.
The Test for Bias: Whether the test for removing an arbitrator for perceived bias is subjective (the party's loss of confidence) or objective (the "real likelihood" test).
Standard of Conduct: Whether the arbitrator's specific actions—such as requesting a $2,000 fee deposit, ordering $8,250 in security for costs, and the alleged delay in fixing a hearing—amounted to a "substantial miscarriage of justice."
Consequential Orders: If the arbitrator were removed, whether the court had the power to order a refund of fees and whether the dispute should be transferred to the High Court, effectively overriding the parties' original agreement to arbitrate.

How Did the Court Analyse the Issues?

The court began by resolving the jurisdictional question regarding the applicable law. Although the application was originally brought under section 16 of the Arbitration Act 2001, the court agreed with the arbitrator’s counsel that since the arbitration commenced before 1 March 2002, the governing law was the pre-2001 Arbitration Act (Cap 10, 1985 Rev Ed). Specifically, the court looked to Sections 17 and 18 of that Act, which provide:

"17. (1) Where an arbitrator or umpire has misconducted himself or the proceedings, the court may remove him. (2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the court may set the award aside." (at [39])

In defining "misconduct," Tay Yong Kwang J adopted the definition from Halsbury’s Laws of England, stating that it refers to "such a mishandling of the arbitration as is likely to amount to some substantial miscarriage of justice" (at [40]). This established a very high bar for the Applicants to clear. The court emphasized that misconduct is not merely a procedural error or a decision that one party disagrees with; it must be a fundamental failure that undermines the integrity of the dispute resolution process.

The court then addressed the central issue of bias and the standard for removal. Relying on the authority of Hagop Ardahalian v Unifert International S.A. (The ‘Elissar’) [1984] 2 Lloyd’s Rep 84, the court articulated the "real likelihood" test:

"The test is an objective one and there must exist real grounds for which a reasonable person would think there is a real likelihood that the arbitrator could not or would not fairly determine the issue on the basis of the evidence and the arguments to be adduced before him" (at [41]).

This objective standard was crucial. The court explicitly rejected the Applicants' argument that their subjective loss of confidence in the arbitrator was sufficient. Tay Yong Kwang J noted that if a subjective test were applied, any party unhappy with a preliminary ruling could easily derail the arbitration by claiming they no longer trusted the arbitrator. This would lead to chaos and the frequent abortion of arbitral proceedings.

The court then systematically analyzed the Applicants' specific complaints:

1. Delay in Proceedings: The Applicants complained that the arbitrator had not fixed a hearing date despite their repeated requests in June 2002. The court found that while there might have been some delay, it did not amount to misconduct. The arbitrator had to manage the exchange of pleadings and the discovery process. The court observed that an arbitrator has a wide discretion in managing the timeline of the case, and a few months of perceived inactivity in a complex $1.2 million construction dispute did not constitute a "substantial miscarriage of justice."

2. Security for Costs ($8,250): The Applicants argued that the arbitrator’s order for security for costs was biased. The court found that the arbitrator was entitled to make such an order under the Arbitration Act. The fact that the arbitrator ruled in favor of the Second Respondent on this procedural point was not evidence of bias. The court noted that the amount ($8,250) was not unreasonable in the context of the overall claim. The arbitrator’s handling of the application, including the timing of his decision, was within the bounds of his procedural discretion.

3. The Arbitrator’s Fees ($2,000): The Applicants were suspicious of the arbitrator’s request for a $2,000 deposit. The court found nothing improper in an arbitrator requesting a deposit for his fees and expenses. This is standard practice in arbitration to ensure the tribunal is remunerated for its time. The court saw no evidence that this request was linked to any improper motive or bias.

4. Tone of Correspondence: The Applicants characterized the arbitrator’s letters as "rude" and "unprofessional." The court reviewed the correspondence and found that while the arbitrator was firm and perhaps blunt, his language did not cross the line into misconduct. The court noted that arbitrators often have to deal with difficult and contentious parties, and a robust administrative style is sometimes necessary to keep the proceedings on track. The court held that "unprofessional" tone, even if proven, does not automatically equate to a "real likelihood of bias."

5. The Site Visit: The Applicants claimed the arbitrator did not pay sufficient attention to the defects they pointed out at 2 Siglap Valley on 14 March 2002. The court dismissed this, noting that the purpose of a preliminary site visit is often just to familiarize the arbitrator with the subject matter, not to make final findings on defects. The arbitrator’s conduct during the visit did not suggest he had closed his mind to the Applicants' case.

In conclusion, the court found that the Applicants had failed to provide any objective evidence of bias or incompetence. Their complaints were essentially a collection of procedural grievances and a subjective dislike of the arbitrator’s personality and management style. None of these factors, individually or collectively, met the high threshold of "misconduct" required for removal under Section 17 of the Arbitration Act.

What Was the Outcome?

The High Court dismissed the Applicants' Originating Motion in its entirety. The court found no basis to remove Ting Kang Chung as the arbitrator, nor any grounds to order a refund of his fees or to move the dispute to the High Court. The operative conclusion of the court was succinct:

"I therefore dismissed their Originating Motion." (at [46])

The dismissal meant that the arbitration between the Applicants and the Second Respondent regarding the construction of the house at 2 Siglap Valley was to continue before the same arbitrator. The court's decision effectively reaffirmed the arbitrator's mandate and required the parties to proceed with the arbitral process they had contractually agreed upon in the SIA contract.

Regarding costs, the court made a specific allocation to reflect the nature of the challenge. The Applicants were ordered to pay the costs of the Originating Motion to both the First Respondent (the arbitrator) and the Second Respondent (the contractor). In a notable exercise of discretion regarding the arbitrator's costs, Tay Yong Kwang J stated:

"I thought it fair that the costs payable by the Applicants to the arbitrator should be 90% of the total. The Applicants were also ordered to pay the costs of this application to the Second Respondent." (at [46])

The 90% costs award in favor of the arbitrator likely reflected the court's view that while the arbitrator was a necessary party to the application, he should be substantially indemnified for having to defend his professional conduct against unsubstantiated allegations of misconduct. The costs were ordered to be taxed if not agreed between the parties. The court did not grant any of the ancillary reliefs sought by the Applicants, such as the declaration that the arbitrator was incompetent or the order for the dispute to be heard in court. The status quo of the arbitration was preserved, and the Applicants were penalized in costs for bringing what the court deemed an unmeritorious challenge.

Why Does This Case Matter?

Anwar Siraj v Ting Kang Chung is a seminal case in Singapore arbitration law because it reinforces the principle of "minimal curial intervention." In the early 2000s, as Singapore was positioning itself as a global hub for international arbitration, this judgment sent a clear signal that the courts would not allow the arbitral process to be easily disrupted by disgruntled litigants. The case matters for several reasons of doctrinal and practical importance.

First, it establishes a very high threshold for the removal of an arbitrator. By adopting the Halsbury definition of "misconduct" as a "substantial miscarriage of justice," the court ensured that only the most egregious failures in the arbitral process would warrant judicial interference. This protects the finality and efficiency of arbitration. If every procedural disagreement or perceived slight in correspondence could lead to an arbitrator's removal, the system would be ripe for abuse by parties seeking to delay the resolution of claims against them.

Second, the case provides a definitive rejection of the subjective test for bias. The court’s insistence on an objective "real likelihood" test—from the perspective of a reasonable person—is a vital safeguard. It prevents a party from "judge-shopping" or "arbitrator-shopping" by simply declaring a loss of confidence. This is particularly important in construction arbitration, where disputes are often long, technical, and emotionally charged. The judgment acknowledges that friction between a tribunal and the parties is common and does not, in itself, indicate a lack of impartiality.

Third, the decision clarifies the arbitrator's broad discretion in managing proceedings. The court's refusal to find misconduct in the arbitrator's handling of security for costs ($8,250) or the timeline for the hearing confirms that the court will not second-guess the tribunal's administrative decisions. As long as the arbitrator is acting within the scope of the Arbitration Act and the parties' agreement, the court will defer to the tribunal's management of the case. This gives arbitrators the confidence to be robust in their case management without the constant fear of a court challenge.

Fourth, the case highlights the risks associated with challenging an arbitrator. The order for the Applicants to pay 90% of the arbitrator's costs serves as a deterrent against frivolous or tactical challenges. It reminds practitioners that a challenge to an arbitrator is a serious matter that carries significant cost consequences if it fails. This is a crucial practical consideration for any lawyer advising a client on whether to seek the removal of a tribunal member.

Finally, the case is a reminder of the importance of the contractual agreement to arbitrate. By refusing to transfer the dispute to the High Court, Tay Yong Kwang J upheld the sanctity of the SIA contract. The court's message was clear: if you agree to arbitrate, you must see that process through, and the court will only step in as a last resort in cases of genuine and serious misconduct. This reinforces the reliability of arbitration clauses in Singapore law, which is foundational to the country's reputation as a pro-arbitration jurisdiction.

Practice Pointers

Objective Evidence is Mandatory: Practitioners must advise clients that a subjective "loss of confidence" in an arbitrator is legally irrelevant for a removal application. Any challenge must be grounded in objective facts that would lead a reasonable person to perceive a real likelihood of bias or a substantial miscarriage of justice.
High Bar for "Misconduct": Before filing a motion for removal, counsel should evaluate whether the arbitrator's actions truly amount to "misconduct." Discretionary rulings on security for costs, deposits for fees, or the scheduling of hearings are rarely sufficient grounds for removal unless they are coupled with evidence of bad faith or gross incompetence.
Document the Friction: If an arbitrator's conduct is truly problematic, practitioners should meticulously document the specific instances, including the dates and the exact nature of the perceived bias. In this case, the Applicants relied on dates like 11 June 2002 and 12 June 2002, but their evidence failed to meet the objective standard.
Beware of Cost Consequences: A failed challenge to an arbitrator can result in heavy cost orders, potentially including a high percentage of the arbitrator's own legal fees (as seen with the 90% order here). This risk must be clearly communicated to the client.
Distinguish Style from Substance: An arbitrator's "rude" or "unprofessional" tone in correspondence is generally insufficient for removal. Practitioners should focus on whether the arbitrator's style actually prevents a fair hearing or indicates a closed mind on the substantive issues.
Check the Applicable Act: Always verify which version of the Arbitration Act applies. As this case demonstrated, the date the arbitration commenced (relative to 1 March 2002) determines whether the old Act or the 2001 Act governs the removal process.
Exhaust Arbitral Remedies: Before approaching the court, parties should attempt to raise their procedural concerns with the arbitrator directly. A failure to do so may make the court less inclined to find that a "substantial miscarriage of justice" has occurred.

Subsequent Treatment

The principles articulated in Anwar Siraj v Ting Kang Chung regarding the objective test for bias and the high threshold for "misconduct" have been consistently followed in subsequent Singapore High Court and Court of Appeal decisions. The case is frequently cited as a foundational authority for the proposition that a party's subjective dissatisfaction with an arbitrator's management style or preliminary rulings does not constitute grounds for removal. It remains a key reference point in the "minimal curial intervention" doctrine, ensuring that the Singapore courts remain a supportive but non-interfering partner to the arbitral process. Later cases have reinforced the "real likelihood" test, often citing this judgment to distinguish between mere procedural irregularities and the fundamental unfairness required to set aside an award or remove a tribunal member.