When Does a Tribunal’s Reasoning Become a Breach of the Right to Be Heard? Lessons from Singapore

How far may an arbitral tribunal go beyond the reasoning advanced by the parties without violating the parties’ right to be heard? The Singapore High Court recently considered this in DWL v DWM [2026] SGHC 179. In its reasoning, the tribunal had placed strong reliance on two contractual provisions that neither party had expressly invoked. The Court nevertheless dismissed challenges based on both excess of jurisdiction and breach of natural justice.

Background

The claimant agreed to supply equipment for an energy production plant operated by the respondent in Country X. The contract was concluded against the background of an existing sanctions regime, with further sanctions anticipated.

Under Article 27B of the parties’ contract, the claimant was required to respond to sanctions affecting performance by either seeking regulatory authorisations or altering its equipment, depending on the option selected by the respondent.

Further sanctions were imposed shortly after execution of the contract. The respondent then withheld a milestone payment, concerned that further payment would increase its exposure under a contract whose performance had become uncertain. In response, the claimant suspended the contract.

One issue in the arbitration was whether the claimant’s obligations under Article 27B continued after that suspension. The respondent argued that Article 27B was intended to enable the parties to continue performing the contract despite sanctions and should therefore continue to apply. The claimant maintained that suspension relieved it of its Article 27B obligations.

The tribunal agreed with the respondent. It accepted the respondent’s broader case that Article 27B formed part of a contractual road map intended to preserve the parties’ relationship notwithstanding the sanctions. Articles 45.6 and 54 of the contract also featured strongly in its reasoning: Article 45.6 addressed the continuing effect of obligations in certain suspension and termination circumstances, while Article 54 identified the provisions which survived termination. Importantly, however, neither party had expressly relied on Articles 45.6 or 54.

The Court’s Decision

The Court first rejected the claimant’s jurisdictional challenge, reasoning that the scope of submission to arbitration is determined by examining the arbitral record “in the round”. The enquiry is not limited to the particular contractual provisions identified in the pleadings. Here, the issue of whether Article 27B survived suspension was before the tribunal. The respondent had also invited the tribunal to interpret Article 27B by reference to the wider contractual arrangement between the parties.

The Court referred to WRP Asia Pacific Sdn Bhd v Grant Thornton Singapore Pte Ltd [2025] SGHC 198, where an unpleaded contractual provision was held to fall within the submission to arbitration because it was “clearly intertwined with the broader issue” before the tribunal.

The Court considered Articles 45.6 and 54 to fall within the same category. They concerned the survival of contractual obligations and therefore bore directly on whether Article 27B continued to apply. This was so “regardless of whether the Tribunal was ultimately correct in finding that they applied”.

The Court also reiterated that tribunals need not “abide slavishly by the pleadings”. They may depart from the manner in which the parties formulate their arguments where the decision remains premised on a fundamental issue submitted for determination.

The Court also rejected the claimant’s argument that there was a breach of natural justice.

The claimant’s main argument was that it had not been given an opportunity to address Articles 45.6 and 54, and that it could not have reasonably foreseen the tribunal’s reasoning.

The Court approached the issue through the test set out in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86. The question was whether a reasonable litigant in the claimant’s position could have foreseen reasoning “of the type” adopted by the tribunal. A breach will generally require a sufficiently significant or “dramatic” departure from the parties’ submissions, together with real or actual prejudice. The Court noted that in cases of contractual interpretation, a tribunal reading the contract for itself, including provisions not expressly referred to by the parties, is “probably not merely foreseeable but expected”. At the same time, the Court recognised that it may be different where the tribunal proceeds on a provision, or part of a provision, different from that which was the subject of argument.

On the facts, the Court adopted a broad view. Because the respondent had invited the tribunal to consider the parties’ entire contractual arrangement, it held that the claimant was on reasonable notice that “all other provisions in the Contract were now in play” for determining the meaning and effect of Article 27B. 

The Court also considered that the survivability of Article 27B had been latent in the dispute well before the hearing as the respondent had alleged a “continuous breach” of Article 27B, and the claimant itself had expressly advanced the proposition that suspension extinguished its Article 27B obligations.  The claimant therefore had the opportunity to address whether and how Article 27B continued to operate following suspension or termination, including with reference to other contractual provisions such as Articles 45.6 and 54.

Against that background, the Court treated this case as one in which an argument had been missed rather than an opportunity to be heard having been denied. The claimant’s argument that Articles 45.6 and 54 were inapplicable did not change that conclusion. If anything, their apparent inapplicability was itself an argument the claimant could have advanced in the arbitration. As the Court explained, there is a distinction “between opportunities that a tribunal must give a party, and opportunities that parties themselves open the door to but then fail to exploit”.

The Court nevertheless added that tribunals should be mindful of the risk that, when developing reasons of their own in support of one party’s conclusion, the other party may feel that it has not been properly heard. Given the role Articles 45.6 and 54 ultimately played in the tribunal’s reasoning, it considered that, “as a matter of good practice”, the tribunal perhaps ought to have raised their relevance with the parties before relying upon them.

How Far Does Foreseeability Extend?

The Court recognised at the outset of the decision that it might not be foreseeable for a tribunal to proceed on a provision or part of a provision different from that which had been the subject of argument. Yet, on the facts, the Court considered that the respondent’s invitation to consider the wider contractual arrangement was sufficient to put the claimant on notice that “all other provisions in the Contract were now in play”.

This leaves an important question about how broadly the parties’ arguments should be characterised. There is a difference between saying that the wider contract was relevant to Article 27B and saying that reliance on Articles 45.6 and 54 in particular was reasonably foreseeable. Neither provision had been cited by the parties or raised by the tribunal. If foreseeability is framed too generally, i.e., Article 27B was being interpreted and therefore any provision bearing upon its operation was foreseeable, then the protection afforded by the fair hearing rule may become narrow in contractual disputes.

A useful comparison, although not one considered in DWL v DWM, is AKN v ALC [2015] SGCA 18 (discussed here). There, the parties had conducted the arbitration on the basis of a claim for loss of profits. On the final day of the hearing, the tribunal raised the possibility of treating the claim instead as one for loss of an opportunity to earn profits. The Court of Appeal held that this did not take the tribunal outside its jurisdiction, as the loss-of-opportunity claim fell within the generic claim for damages. It nevertheless found a breach of natural justice because the parties had not been given a proper opportunity to address the new basis of damages or adduce evidence on the value of the lost opportunity.

On the other hand, in DWL v DWM, reliance on Articles 45.6 and 54 did not require the parties to meet a different factual or evidential case, and there was arguably a close connection between the reasoning in the award and the case actually argued. The survival of Article 27B was expressly disputed, the respondent had relied on the broader contractual structure, and the claimant itself had asserted in the arbitration that the suspension of the contract had extinguished its obligations under Article 27B. The Court’s decision may therefore be better understood as turning on this factual connection rather than establishing that any provision capable of bearing on a live interpretative issue may necessarily be relied upon without inviting further submissions by the parties.

That leaves a separate practical question: even where natural justice does not require a tribunal to invite further submissions, when should it nevertheless do so?

Drawing the Line

Tribunals are not required to put every step in their reasoning to the parties. They remain entitled to analyse the law and evidence independently, and requiring submissions on every step in their reasoning would be impractical and risk encouraging the familiar “due process paranoia”.

There may nevertheless be cases where inviting brief further submissions is prudent even if not required. Where an unargued point may affect the outcome, a focused question may avoid later complaints by the parties. 

For counsel, the decision also suggests that an argument based on the overall structure of a contract may widen the range of provisions which the tribunal can reasonably be expected to consider.