The application before me arises out of an arbitration which was bifurcated into two phases on liability and quantum respectively. The claimant in the arbitration (and in this application) succeeded at the liability stage. However, at the quantum stage of the arbitration, the tribunal found that the claimant had failed to prove its pleaded loss, and awarded it only nominal damages. The claimant brings the present application to set aside the award on quantum, on the grounds that the tribunal exceeded its jurisdiction and breached the rules of natural justice by, among others, reversing itself on certain findings it had allegedly made in the award on liability. For the reasons I shall elaborate upon below, I dismiss the claimant's application.
Background to the dispute
The claimant, ONGC Petro additions Limited ("OPAL"), is an Indian joint venture petrochemical company.
OPAL is the owner of the Dahej Petrochemical Complex in the state of Gujarat, India. In or around November 2009, OPAL invited bids for the construction of a High-Density Polyethylene plant ("HDPE Plant") at the complex. The contract was to be on a Licensing plus Engineering, Procurement and Construction ("L+EPC") basis, which meant that the contractor would also have to bring with it a licensor to provide the technological know-how to construct the HDPE Plant, and provide the licence to OPAL to operate the plant using the licensed technology.
Two eligible bids were submitted. The first was by the defendant, DL E&C Co, Ltd (formerly Daelim Industrial Company Limited) ("Daelim"), using the proprietary technology of Chevron Philips Chemical Company LLC ("CP Chem"). The second was by Samsung Engineering Co Ltd ("Samsung"), using the proprietary technology of Mitsui Chemicals Inc ("Mitsui").
OPAL compared the two bids with the aid of its project management consultant, Engineers India Limited ("EIL"), and assessed Daelim's bid to be more advantageous. The L+EPC contract was therefore awarded to Daelim by way of a Notification of Award ("NOA") dated 6 January 2011, for a price of approximately US$138,038,000 plus Indian rupees ("INR") 4,593,300,500. The NOA incorporated by reference OPAL's Bidding Documents, which included the General Conditions of Contract ("GCC"). The GCC contained the arbitration clause constituting the foundation of the arbitration proceedings that were to come. More importantly, the terms of the GCC also formed the basis of much of the dispute regarding OPAL's claims against Daelim. Daelim acknowledged the NOA and the project was set in motion - as per the NOA, the parties were to sign a formal contract within 30 days.
Daelim's triumph in the bidding process was, however, short-lived. Various issues arose with its licensor, CP Chem, which were ultimately never resolved. Just over a month later, on 11 February 2011, Daelim informed OPAL that it could not enter into the formal contract.
OPAL's attempts to mediate between Daelim and CP Chem proved unsuccessful, and OPAL proceeded to terminate the NOA on 28 April 2011. With Daelim no longer an option, the L+EPC contract was awarded to the only other bidder, Samsung, on 29 April 2011.
This set the stage for the dispute between OPAL and Daelim.
The arbitration proceedings
OPAL commenced arbitration proceedings against Daelim on 26 November 2012, claiming damages for Daelim's abandonment of the contract.
A three-member tribunal consisting of Mr Peter Leaver KC, Justice VN Khare (Retd) and Justice RV Raveendran (Retd) (the "Tribunal") was constituted. Justice VN Khare subsequently resigned as a member of the Tribunal and was replaced by Justice GS Singhvi (Retd). The proceedings were vigorously contested, with Daelim bringing challenges to the constitution of the Tribunal and to its jurisdiction, first before the Tribunal itself, and subsequently before the Singapore High Court in HC/OS 140/2016. The subject matter of these challenges are not material to the present application - it suffices to say that the High Court decided that the Tribunal was validly constituted, and the arbitration was seated in Singapore.
Arbitration - Award - Recourse against award - Setting aside - Whether Tribunal was functus officio - Whether Tribunal exceeded its jurisdiction by reversing findings made in Liability Award - Arbitration - Award - Recourse against award - Setting aside - Breach of natural justice - Whether Quantum Award was manifestly incoherent