5 The Respondent was the main contractor for a construction project. The Claimant was a subcontractor under a “Design, Supply and Installation of Stone And Tile Sub-Contract” (the “Subcontract”). The Subcontract Works included the supply and installation of two types of marble – Statuario stones (“S Stones”) and Statuario Venato stones (“SV Stones”). The Subcontract terms made provision for a quality assurance and quality control (“QA/QC”) process for stone selection. A stone inspector was appointed, stone inspections took place, and Acceptance Criteria were formulated (see paras 127–132 of the Award).

6 In the course of the project, the architect and/or the Respondent rejected all the S Stones and most of the SV Stones which the Claimant had supplied. The Claimant disputed the rejection of the stones.

7 The Claimant commenced arbitration under the ICC Rules 2017 (the “ICC Rules”), seeking further payment from the Respondent.

8 Pursuant to a decision by the ICC, the Arbitration proceeded only as to the Claimant’s claims. The Respondent’s cross-claims are being pursued in a second arbitration, which is still underway.

9 The arbitrator accepted that “[a]ll stones must comply with the Subcontract Specifications, and Acceptance Criteria” (para 258 of the Award). He then considered the issue: “Did the stones comply with the Acceptance Criteria?” at paras 282–291 of the Award.

10 The arbitrator decided at para 291 of the Award that “the S and SV Stones supplied by the Claimant on this Subcontract met the Acceptance Criteria, and should not have been rejected”.

11 The arbitrator awarded the following reliefs to the Claimant in section O of the Award:

12 There are two aspects to the Respondent’s setting-aside application.

13 First, the Respondent seeks to set aside the arbitrator’s finding that the stones complied with the Acceptance Criteria and should not have been rejected.

14 Second, the Respondent contends that the Claimant was awarded retention monies twice over – the Respondent thus seeks to set aside the amounts awarded to the Claimant.

15 I address these in turn.

16 The Respondent contends that:

(a) the arbitrator decided on a matter that had not been submitted for his decision, in finding that the architect “should have relied on the Stone Inspector (unless it can be plainly demonstrated he was wrong)” in deciding whether the stones complied with the Acceptance Criteria (at para 291(c) of the Award); and

(b) the arbitrator decided that the architect had relied on photographs in rejecting the stones, and that the Respondent’s expert too had relied on photographs; whereas it was common ground that the architect had in fact seen all the rejected stones on site, and that the Respondent’s expert had seen the S Stones at the Claimant’s warehouse.

17 Paragraph 291 of the Award is central to this aspect of the setting-aside application. It reads, in full:

291. The Sole Arbitrator concludes for the reasons set out below, that the S and SV Stones supplied by the Claimant on this Subcontract met the Acceptance Criteria, and should not have been rejected:

(a) The stones are from natural material, and as Mr [B] [ie, the Claimant’s expert] advised, have aesthetic unpredictability. Therefore it is important to set specific control limits in the Acceptance Criteria to achieve consistency, and the QA/QC procedure of inspections at the quarry, the factory, Dry Lays and before shipping, were very important. The Stone Inspector played the key role in this QA/QC process. The Sole Arbitrator agrees with Mr [B] that the aesthetic criteria adopted were restrictive and ambiguous, given the random nature of the stones. There should have been more quantification of the number and types of features which were acceptable or not acceptable, and it was not clear enough what colour or veining was not acceptable.

(b) In the Acceptance Criteria, photographs are used to specify what is acceptable and what is not acceptable. Whilst the Stone Inspector inspected the actual stones at various times before installations, the Architect and the Respondent chose not to attend most of the Dry Lays in Singapore, and relied on the photographs taken at Dry Lays, as did the experts. The Sole Arbitrator agrees with Mr [B] that reliance on photographs is problematic as photographs have different lighting conditions (refer to paragraph 286 above). This could lead to wrong conclusions as to satisfying the Acceptance Criteria.

(c) Both Stone Inspectors were world experts in marble stones as can be seen from their CVs. They were appointed by the Claimant, and approved by the Respondent, but reported to the Architect. They also inspected the stones at various stages of the QA/QC process, and approved them (with limited acceptance), and then sent a report to the Architect. The Respondent made some criticisms of the stone experts, but the Sole Arbitrator did not find these convincing. The Sole Arbitrator has no hesitation accepting the Stone Inspector’s conclusions that the stones met the Acceptance Criteria, rather than the Architect, who is not an expert in marble stones, and who should have relied on the Stone Inspector (unless it can be plainly demonstrated he was wrong). The Sole Arbitrator also considers that it was stubborn and obstinate for the Architect to have refused to attend Dry Lays in Singapore. Technically, it made no difference, where the Dry Lays took place, unless stones were rejected requiring replacement. In the event, the Stone Inspector approved almost all stones after Dry Lays. The Sole Arbitrator has more sympathy for the Respondent for non-attendance as it did not want to jeopardise relations with the Architect. The Architect’s rejections on subjective aesthetic grounds, often after installation, caused difficulties and delays (more on this when EOT is dealt with later in this Award). The Sole Arbitrator agrees with Mr [B] that rejection after installation should only have been for workmanship issues, and this was never alleged in this arbitration.

(d) The Sole Arbitrator does not accept Mr [R]’s [ie, the Respondent’s expert’s] opinion that the stones inspected on the First Stone Review were not S or SV Stones, or the stones inspected on the Second Stone Review were poorer quality S or SV stones, or similar stone from a different quarry. This has never been alleged previously by anyone on the Project until his Report. Further, Mr [B], unlike Mr [R], carried out a petrographic examination of samples provided by the Claimant, and concluded they were S and SV Stones of Carrara marble, and exhibited typical features. The Sole Arbitrator accepts Mr [B]’s conclusions.

(e) The Sole Arbitrator agrees with Mr [B] that there was no valid reason for rejections of the S and SV stones on this Project. The Sole Arbitrator has carefully looked at the photographs in the Acceptance Criteria (First and Second Stone Review Reports), and compared those with the Dry Lay photographs, and disagrees with Mr [R] that they do not comply. The Sole Arbitrator also agrees with Mr [B]’s criticism of the Architect’s rejections (refer to paragraph 287 above). Visual examination to evaluate aesthetics is subjective, it is agreed, and when photographs are relied upon lighting conditions are problematical. At the end of the day there is no substitute for inspection at the quarry, factor, Dry Lays, and before shipping (if fabrication and Dry Lays are in Italy). The Stone Inspector’s approvals have considerably more weight than the Architect’s objections, as not only were they world experts in marble, but they inspected at source in Italy, or at Singapore Dry Lays. When compliance with the Acceptance Criteria is finally balanced, the Sole Arbitrator gives the benefit of doubt to the Claimant, due to the Architect’s, and to a lesser extent the Respondent’s, refusal to inspect at source, or during Dry Lays in Singapore, the poorly drafted Subcontract Specifications, and unreliable photographs. Therefore, the Respondent is not entitled to a declaration that the stones supplied did [sic] meet the Subcontract requirements. On the preponderance of evidence, they did.

18 The Respondent says that it was never put in issue that the stone inspector’s views should contractually take precedence over those of the architect: thus the arbitrator should not have decided in para 291(c) of the Award that the architect “should have relied on the Stone Inspector (unless it can be plainly demonstrated he was wrong)” (the “Stone Inspector Finding”).

19 At para 221 of the Award, the arbitrator noted that the stone inspector’s scope of works included:

(a) “[a]ssist[ing] the Architect in the range selection and determination of the range for each selected stone, which will then form the basis of QA/QC inspections during the fabrication stage” (at para 221A(vii)); and

(b) “[p]roviding weekly report to the Architect with details of the production status, stone suitability/selection, dry lays, shipment etc.” (at para 221B(iii)).

20 The Claimant accepted that the stone inspector reported to the architect, that it was for the architect to approve the dry lay reports, and that the stone inspector did not give the Claimant the approval to install the stones (see the transcript extract at para 277 of the Award).

21 The arbitrator too accepted that the stone inspector reported to the architect (para 291(c) of the Award), and that “for stone selection, it is clear that the Subcontract Specifications require the Architect’s approval” (para 277 of the Award; also see paras 218 and 219). At para 279 of the Award, the arbitrator said:

Whilst according to Clause 3.3 of the GC (refer to paragraph 204 above), the GC have priority over the Subcontract Specifications, it is accepted by the Claimant that for stones it requires the Architect’s approval. Accordingly, the Sole Arbitrator finds the Architect could give instructions to the Claimant about compliance with the Subcontract Specifications and Acceptance Criteria …

22 At para 274 of the Award, the arbitrator commented on the interplay between the stone inspector’s approval and the architect’s approval:

… The Sole Arbitrator is not persuaded it makes much difference where Dry Lays take place, and the Stone Inspector has had the primary obligation to check that the stones meet the Acceptance Criteria and this can be done in Singapore as well as Italy (but he has to get the Architect’s final approval). It does not matter in which country the laying out of stones at Dry Lays to check aesthetics and compliance with the Acceptance Criteria takes place … At the end of the day it is a matter of aesthetics, and the Stone Inspector either approves and disapproves the stones, whether the Dry Lays took place in Italy or Singapore. The Architect rejected stones not having attended the Dry Lays in Singapore, at times retracting previous approvals, and usually after installation … In any event, the Stone Inspector did not reject the stones be [sic] inspected (with the exception of a few shipped from Italy, but this was inspection prior to shipping not at Dry Lay stage, and also on 28 August 2015).

23 The Respondent contends that the Stone Inspector Finding went against the contractual scheme that final approval rested with the architect, not the stone inspector – a point accepted by the Claimant, and indeed by the arbitrator himself.

24 I do not, however, read the Stone Inspector Finding as subordinating the architect’s approval to that of the stone inspector. To the contrary, it is consistent with the contractual scheme where the stone inspector reported to the architect, and it was then for the architect to decide whether to rely on the stone inspector’s view, or to take a contrary position. In para 291(c) of the Award, the arbitrator was not deciding what the contractual framework was (which was not in issue); he was deciding whether the stones complied with the Acceptance Criteria (which was in issue), and on that he accepted the stone inspector’s conclusion that the stones did comply, notwithstanding the architect’s rejection of them.

25 The arbitrator reasoned that the architect should have relied on the stone inspector (unless it can be plainly demonstrated he was wrong), because both stone inspectors were world experts in marble stones, whereas the architect was not. Contractually, it was for the architect to decide whether to approve or reject the stones, but if he rejected the stones that decision would be open to challenge by the Claimant, who could then point to the stone inspector’s approval to support its contention that the stones had met the Acceptance Criteria. That is what happened here.

26 In the Arbitration, the Claimant had not made an argument in terms identical to the Stone Inspector Finding, but that did not mean that the arbitrator had exceeded the scope of the submission to arbitration, or that there had been a breach of natural justice. Whether the stones complied with the Acceptance Criteria was an issue in the Arbitration, and the parties had put forward opposing contentions on it. In that regard, the Claimant challenged the architect’s rejection of the stones, and relied on the stone inspector’s approval of them. It was thus open to the arbitrator to make the Stone Inspector Finding, as part and parcel of him preferring the stone inspector’s views to those of the architect.

27  In any event, as I elaborate below at [46]–[47], the arbitrator had other reasons for finding that the stones complied with the Subcontract. Merely setting aside the Stone Inspector Finding would not affect the arbitrator’s conclusion that the stones complied with the Acceptance Criteria, unless the Respondent could undermine those other reasons as well.

44 The Respondent’s setting-aside application is brought on two grounds: excess of jurisdiction, and breach of natural justice.

45 In so far as the Respondent relies on breach of natural justice, it needs to show that its rights have been prejudiced by that breach. That is expressly stipulated in s 48 of the AA, and in case law. The court in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 stated at [86]:

This has been explained in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal [2013] 1 SLR 125 at [54] and [91]–[92] as: “whether as a result of the breach, the arbitrator was denied the benefit of [material that] … could reasonably have made a difference to the arbitrator” [emphasis added].

46 In the present case, the arbitrator’s finding that the S Stones complied with the Acceptance Criteria and were wrongly rejected, was based on multiple reasons, including:

(a) the relative expertise of the stone inspector as compared to the architect (paras 291(c) and 291(e) of the Award);

(b) the arbitrator had looked at the photographs in the Acceptance Criteria and compared them with the dry lay photographs, and disagreed with the Respondent’s expert that they did not comply with the Acceptance Criteria (para 291(e) of the Award); and

(c) the arbitrator agreed with the Claimant’s expert that there were no valid reasons for rejection of the S Stones, and with his criticisms of the architect’s rejections (para 291(e) read with para 287 of the Award).

47 None of these reasons was dependent on the architect only attending one of the four dry lays of the S Stones. In relation to sub-para (a) above, I have already found that the arbitrator was entitled to prefer the stone inspector’s views to those of the architect, given their relative expertise (see [18]–[27] above). Even if the arbitrator had appreciated that the architect had attended all four of the dry lays of the S Stones in Singapore, it would not reasonably have made a difference to his decision that the stone inspector’s views were to be preferred. That is also the case with the reasons set out in sub-paras (b) and (c) of the preceding paragraph.

48 The Respondent, however, submits that as it is also relying on excess of jurisdiction, there is no need to show prejudice.

49 Section 48(1)(a)(iv) of the AA on excess of jurisdiction does not expressly require that the applicant prove that “the rights of any party have been prejudiced” thereby (a phrase found in s 48(1)(a)(vii) of the AA on breach of natural justice). Prejudice is not an express requirement for grounds other than breach of natural justice.

50 However, a court retains a discretion not to set aside an award even if one of the grounds for setting aside has been made out: CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305 (“CRW”) at [98]–[100]. The court found that the tribunal had acted in excess of jurisdiction and also in breach of the rules of natural justice, and had caused real prejudice – accordingly, there was no basis for the court to invoke its residual discretion to refuse to set aside the award.

51 As a corollary, if there is no actual or real prejudice, the court might decline to set aside the award: see Coal & Oil Co LLC v GHCL Ltd [2015] 3 SLR 154 (“Coal & Oil”) at [48]–[52], and Triulzi Cesare SLR v Xinyi Group (Glass) Co Ltd [2014] 1 SLR 114 (“Triulzi”) at [54].

52 The Respondent sought to confine Coal & Oil and Triulzi to the ground of breach of agreed procedure, but the proposition that the court has a discretion whether to set aside an award is not limited to that ground. This discretion was recognised in CRW where the court was considering excess of jurisdiction and breach of natural justice (the same grounds relied upon here).

53 The Respondent cited GD Midea Air Conditioning Equipment Co Ltd v Tornado Consumer Goods Ltd and another matter [2018] 4 SLR 271 (“Tornado”) at [60] for the proposition that no actual or real prejudice needed to be shown for an award to be set aside on the ground of excess of jurisdiction (although the court went on to find (at [61] and [67]–[71]) that there was actual or real prejudice in that case).

54 In Tornado, the tribunal made a finding that a certain clause had been breached when that was not in issue, and moreover the tribunal’s interpretation of the clause was contrary to the parties’ own interpretation of it. That, in turn, led to other findings in the award. Had the tribunal not exceeded its jurisdiction and deprived the aggrieved party of the opportunity to be heard on the point, it could reasonably have arrived at a different result (see Tornado at [67]–[71]).

55 In the present case, the arbitrator’s mistake in finding that the architect only attended one of the four dry lays of the S Stones is not as material as, for example, his (hypothetical) finding that the architect had not attended any of those dry lays. Moreover, the arbitrator’s mistake concerned only one of several grounds on which he based his decision that the stones complied with the Acceptance Criteria and were wrongly rejected. As stated above at [47], I find that the impugned reasons would not reasonably have made a difference to the arbitrator’s decision on the issue of compliance with the Acceptance Criteria. As such, the Respondent did not suffer actual or real prejudice.

56 Moreover, s 48(1)(a)(iv) of the AA provides as follows:

57 Even if the impugned reasons exceeded the arbitrator’s jurisdiction, they can be separated from the other reasons for his finding that the stones complied with the Acceptance Criteria and were wrongly rejected. At most, only the impugned reasons could be set aside; not the other reasons, and not the arbitrator’s conclusion on the stones.

58 In the circumstances, I decline to set aside the arbitrator’s finding that the stones complied with the Subcontract and were wrongly rejected.

71 The Respondent applied for sealing and redaction orders to preserve the confidentiality of the Arbitration. The Claimant contended that the Arbitration was not confidential, but it did not object to the court files being sealed from public inspection, and I made that order.

72 As requested by the Respondent, the setting-aside application was heard “otherwise than in open court” pursuant to s 56 of the AA, and this was not resisted by the Claimant.

73 It has been recognised that “as a principle of arbitration law at least in Singapore and England, the obligation of confidentiality in arbitration will apply as a default to arbitrations where the parties have not specified expressly the private and/or confidential nature of the arbitration”, and where Singapore is the seat of the arbitration, “confidentiality will apply as a substantive rule of arbitration law, not through the … AA, but from the common law” (AAY v AAZ [2011] 1 SLR 1093 (“AAY”) at [55]).

74 It is, however, open to the parties to agree that their arbitration will not be confidential. The Claimant contended that this is precisely what happened when the parties agreed to arbitrate under the ICC Rules. The ICC Rules do not contain any express stipulation that arbitrations conducted thereunder are confidential. Instead, Art 22(3) of the ICC Rules on “Conduct of the Arbitration” provides that:

Upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information.

75 The Claimant’s contention was that until and unless a party makes a request under Art 22(3) of the ICC Rules and the tribunal then makes orders concerning the confidentiality of the arbitration proceedings, an arbitration governed by the ICC Rules is not confidential even if seated in a jurisdiction like Singapore where, as a substantive rule of arbitration law, arbitrations are by default confidential.

76 I did not agree with the Claimant. The ICC Rules are neutral as to confidentiality – as such, they may be utilised in jurisdictions like Singapore and England where there is a general obligation of confidentiality, or in jurisdictions like Australia or the United States where the default position may be otherwise (see AAY at [54]–[55]). In a Singapore-seated arbitration like the present one, the parties’ agreement to the ICC Rules does not displace the general obligation of confidentiality. The fact that Art 22(3) of the ICC Rules expressly allows a party to apply to the tribunal for confidentiality orders itself indicates that an agreement to arbitrate in accordance with the ICC Rules is not thereby an agreement to non-confidential arbitration.

77 As far as confidentiality is concerned, the ICC Rules are a blank slate; they do not whitewash the default legal position. In the circumstances, I also grant the redaction orders sought by the Respondent.

78 For the above reasons, I grant the Respondent’s application for sealing and redaction, but I dismiss the Respondent’s setting-aside application. I will hear the parties on costs and any consequential orders.