1 BYL (the "Promoter") and BYM (the "Company") (collectively, the "Plaintiffs") applied to set aside a Partial Award (the "ICC Award") dated 30 April 2019. The ICC Award was issued by a tribunal (the "Tribunal") of three arbitrators in an ICC Arbitration (the "ICC Arbitration") wherein BYN (the "Investor") was the Claimant, while the Promoter and Company were the 1st and 3rd Respondents respectively. The Tribunal consisted of two co-arbitrators (respectively, Mr. [X] SA ("SA") and Mr. [Y] QC) and the chairperson ("Chairperson"). The ICC Arbitration started on 11 February 2016. The 2nd Respondent in the Arbitration had been dissolved on 10 September 2015 and so did not play a material part in the ICC Arbitration. The seat of the ICC Arbitration is Singapore. But, as found by the Tribunal, Indian law governs the arbitration agreement. The ICC Arbitration remains ongoing. SA has since resigned as co-arbitrator in the circumstances described below and has been replaced by Mr. [Z]. An oral hearing took place in the ICC Arbitration from 29 May to 1 June 2018. That was followed by several rounds of written closing submissions. On 22 March 2019 the Tribunal notified the parties that the arbitral proceedings were closed, and the Tribunal proceeded to its award.
2 The Plaintiffs' setting aside application is premised on two grounds. The first ground (the "put option ground") arises from the Tribunal's decision to award reliefs under two put options in a shareholders' agreement. According to the Plaintiffs, by the ICC Award the Tribunal ordered alternative reliefs. The Plaintiffs say that the Tribunal thus failed to decide the dispute before it and improperly conferred upon itself the power to change the ICC Award if part of it was later found to be unenforceable by a court. The second ground (the "bias ground") arises from the conduct of a Tribunal member. The latter is said to have made belated and only partial disclosures of a co-counsel relationship that he negotiated and entered into with the Investor's legal representatives in the ICC Arbitration while the ICC Award was still being drafted and finalised. The relevant arbitrator's circumstances are said to give rise to a reasonable suspicion of bias (that is, apparent bias) vitiating the ICC Award.
Arbitration - Award - Recourse against award - Challenge against arbitrator - Bias