
On 17 December 2024, a three-judge panel of the Singapore Court of Appeal (Sundaresh Menon CJ, Steven Chong JCA and Robert French IJ) handed down judgment in Reliance Infrastructure Ltd v Shanghai Electric Group [2024] SGCA(I) 10, upholding the SICC’s decision to dismiss a challenge to a US$146 million SIAC arbitration award.
The respondent (“SEC”) was represented by Cavinder Bull SC of Drew & Napier LLP in relation Singaporean law, Nico Leslie as co-counsel in relation to English law, and Ketan Gaur of Trilegal as co-counsel in relation to Indian law at first instance. SEC having succeeded on all issues before the SICC, the appellant (“Reliance”) appealed primarily on two issues, both governed by Singaporean law. Nico Leslie (assisted by Christopher Monaghan) continued to work with the Drew & Napier team on the appeal and attended the final appeal hearing.
In December 2022, a SIAC Tribunal had passed a unanimous arbitral award in favour of SEC and against Reliance, requiring the Indian company to pay US$147 million plus interest pursuant to a guarantee contract that was executed in June 2006. The arbitration had arisen out of a dispute in relation to non-payment against certain equipment and services provided by SEC for the Sasan Ultra Mega Power Project at Sasan, Madhya Pradesh, in northern India. Reliance had raised numerous objections to liability under the guarantee.
In March 2023, Reliance launched the SICC challenge, arguing that the tribunal lacked jurisdiction due to (i) forgery of the guarantee contract containing the arbitration agreement, or in the alternative (ii) a lack of actual or apparent authority on behalf of the employee who executed the relevant contract (which was governed by English law). The SICC dismissed that challenge, holding that Reliance had waived that objection by failing to press it during the arbitration proceedings and that the forgery allegations were not made out. The SICC also dismissed Reliance’s analysis of authority and the doctrine of separability under English law.
The SICC’s decision generated substantial local and international publicity and the parties agreed to the decision being published without redactions after the court said the seriousness of the allegations made in the context of a major infrastructure project “should be known” to the international business community.
On appeal, Reliance challenged the SICC’s conclusions both as to waiver and as to forgery, alleging (in respect of waiver) that the SICC had departed from the correct test as Reliance did not have sufficient knowledge of the alleged forgery at the time of the arbitration. It also raised public policy objections that it said were incapable of waiver.
The SCA dismissed the appeal on the grounds that (i) Reliance had sufficient knowledge for its decision not to advance a forgery allegation during the arbitration to amount to waiver (and it had failed to reserve its position); and (ii) having made that strategic choice, it could not invoke principles of public policy to avoid the effect of its waiver. The Court also held that the SICC’s decision on the facts was “soundly based on the evidence” and correct.
The SCA’s judgment can be found here.