A recent case in the Singapore Court of Appeal raised a significant legal question regarding whether a nonparticipating party to an arbitration can challenge an arbitral award on the grounds that the arbitrator had failed to consider a point that was not put in issue (the “Infra Petita challenge”). In holding that nonparticipating parties cannot raise an infra petita challenge, the court took the opportunity to clarify that infra petita challenges should be treated as natural justice challenges.
Additionally, the court reaffirmed the current legal principles applicable in determining whether proper notice of the appointment of an arbitrator or of the arbitral proceedings was given.
The case of DEM v. DEL [2025] SGCA 1 concerned an appeal of a setting aside application of an arbitration award. The underlying dispute concerned the sale of a franchise under a Business Purchase Agreement (BPA) between the purchaser (the Respondent in this appeal) and three opposing parties: Mr. Z (the Appellant), Ms. Y, and Z Co. Shortly after the sale, the Respondent allegedly realized that the Appellant, Ms. Y, and Z Co. had diverted clients and staff to a competitor.
In August 2020, the Respondent filed a notice of arbitration against all three parties: the Appellant, Ms. Y, and Z Co. In October 2020, the Singapore International Arbitration Centre (SIAC) informed the parties of the appointment of a sole arbitrator (the Arbitrator). Nearly a year later, in August 2021, the Respondent reached a settlement with Ms. Y and Z Co., and arbitration proceeded against only the Appellant.
Despite being given proper notice under the terms of the BPA, one of which provided for notice to be sent to an agreed-upon email address, the Appellant chose not to participate in the arbitration proceedings. Shortly after the hearing in September 2021, the Appellant sent an unexpected email from an unknown email address, claiming to be informed of the arbitration by Ms. Y and requesting correspondence be sent to this new email address, but became unresponsive when the Arbitrator and Respondent's lawyers attempted to verify his identity. In April 2023, an arbitration award was published in favour of the Respondent, who then sought to enforce the award in the Singapore courts. About two months later, the Appellant obtained a judgment entered in the terms of the award.
After almost two years of silence, the Appellant suddenly reappeared in July 2023, using the same unknown email address to contact the SIAC and the Respondent's lawyers' process server. The Appellant claimed he was only recently made aware of the award and requested all arbitration documents be sent to a different residential address. The Appellant thereafter sought to set aside the award in August 2023 under Section 48 of the Arbitration Act 2001 on various grounds, including (1) a failure by the Arbitrator to consider an essential issue and (2) a lack of proper notice.
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. It is often considered the flip side to an ultra petita challenge—which is directed at a tribunal dealing with a matter falling outside the scope of submission to the arbitral tribunal.
The Court of Appeal took the opportunity to establish that infra petita challenges constitute a distinct natural justice ground, separate from and independent of Article 34(2)(a)(ii) of the Model Law, as rationalized in several previous Singapore decisions. Therefore, principles that apply to natural justice challenges will equally apply to infra petita challenges.
On the relevant legal principles, the court held that an aggrieved party should not be allowed to complain about the tribunal’s failure to consider an issue where the issue was not properly brought before the tribunal. The court emphasized that disputes that parties choose to submit to arbitration will demarcate the jurisdiction of the tribunal, and the court must thus be wary of accusations that an arbitrator had failed to consider and deal with an issue that was never before him in the first place.
In holding that the Appellant’s infra petita challenge failed, the court found that the Appellant
Of note, the court had opined that to allow the Appellant’s challenge “would be to permit hedging of the most egregious form.”
In dealing with the Appellant’s contention that there was a lack of proper notice, the court reaffirmed the principles applicable to the law on proper notice. Under s 48(1)(a)(iii) of the Arbitration Act 2001, the party seeking to set aside an arbitration award bears the legal burden to prove they “were not given proper notice of the appointment of an arbitrator or arbitral proceedings or were otherwise unable to present their case.” Proper notice can be established in two ways: actual notice and deemed notice.
Actual Notice
Actual notice requires proof that the arbitral respondent knew about the arbitration and was in a position to fully present their case. While the legal burden remains on the respondent to prove a lack of notice, evidence of actual notice typically lies with the arbitral claimant. In the absence of such satisfactory evidence, the omission or failure to serve the notice of arbitration may be fatal—not because of the nonservice itself, but because it would mean the other party had no notice whatsoever of the arbitration.
A crucial distinction exists between the concepts of “notice” and “service.” While personal service of arbitration papers is typically how actual notice is demonstrated, such service is not strictly necessary, as the law focuses on substance over form. The key consideration is whether a party was made aware of the arbitration in a manner that would allow them to fully present their case, regardless of how they were notified. This assessment is inherently fact sensitive.
Deemed Notice
Alternatively, deemed notice may be relied on where there is insufficient proof of actual notice. Rule 2.1(iii) of the 2016 SIAC Rules considers communication to be received if it is delivered “to any address agreed by the parties.” This requirement is satisfied if notice is provided through the contractually specified method. Nevertheless, deemed notice can be rebutted by appropriate evidence of nonreceipt, with the burden of proving such nonreceipt falling on the party claiming they did not receive the notice.
Critically, even where there is a lack of proper notice (whether actual or deemed), the challenging party must establish that the absence of notice has impacted their ability to present their case before the tribunal. If a party deliberately chooses not to attend or participate in the arbitration despite being aware of it and having the opportunity to participate, they cannot rely on the absence of proper notice to challenge the award.
Having examined the applicable legal principles, the court found that proper notice had been given to the Appellant as he was aware of the arbitration. The court emphasized that this was not a case where the Appellant, who was aware of the arbitration, had requested time to respond and was unreasonably denied, but rather one where he deliberately remained silent despite all notification efforts. The Appellant's failure to respond to emails sent to the contractually agreed email address was consistent with his decision not to participate in the arbitration, further satisfying the court that proper notice had been given.
This decision provides helpful guidance on raising challenges against an arbitral award for a lack of proper notice and on an infra petita ground. From a practical perspective, a party deciding its strategy in face of an arbitration may wish to give serious consideration to the consequences of remaining silent and adopting a nonparticipatory approach.
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