Arbitration can be expensive and time-consuming. Concerns have arisen over the quality of awards due to excessive copying, delegation, and AI use, potentially damaging credibility and trust in arbitration. Are standards slipping?

Copy-and-Paste

Arbitrators are appointed for their expertise and judgement. Parties are entitled to carefully reasoned, bespoke decisions that demonstrate a proper consideration of the specific evidence and arguments presented. Drawing on a previous award is not uncommon, particularly where similar legal principles or factual issues arise, but there remains a clear expectation that each award reflects the unique features of the case in hand. The wholesale copying and pasting from earlier awards undermines the perceived independence and rigour of the arbitral process and raises concerns about whether the arbitrator has fulfilled its duty to provide a genuine, considered and impartial determination.

Copy-and-paste was the issue in recent Singapore decisions concerning the Western Dedicated Freight Corridor in India. These decisions were anonymised, and the party names were substituted with designated code.

Background

The disputes concerned a notice issued by the Indian Ministry of Labour and Employment in January 2017 increasing the daily rates of minimum wages to workmen in India with immediate effect (the ‘Notice’). This prompted Contractor claims under Sub-Clause 13.7 [Changes in Legislation] of the FIDIC 1999 forms of contract.

Several arbitrations were commenced. DJO^[1] was the Dedicated Freight Corridor Corporation of India Ltd. (‘DFCCIL’ – a special purpose vehicle), the Employer and respondent to these arbitrations.

• The ‘ICC Arbitration’ (ICC Case No. 26733/HTG^[2]) was commenced by the contractor, Consortium X – comprising DJP^[3] (a Japanese company^[4]), DJQ^[5] (an Indian company^[6]) and DJR^[7] (also an Indian company^[8]). As Consortium X was categorised a ‘foreign contractor’, arbitration was commenced under the ICC Rules and was seated in Singapore. The governing law was that of India. The Contract (CPT-13) incorporated the FIDIC Yellow Book 1999 Conditions of Contract, amended by the Particular Conditions of Contract.
• The ‘CP-301 Arbitration’ was commenced by Consortium Y – comprising two Indian companies, one of which was DJR^[9]. As Consortium Y was categorised a ‘domestic contractor’, arbitration was commenced under the International Centre for Alternative Dispute Resolution, New Delhi, and was seated in New Delhi. The governing law was that of India. The Contract (CP-301) incorporated the FIDIC Yellow Book 1999 Conditions of Contract, amended by the Particular Conditions of Contract.
• The ‘CP-302 Arbitration’ was commenced by Consortium Z – comprising two Indian companies, one of which was DJR^[10]. As Consortium Z was categorised a ‘domestic contractor’, arbitration was commenced under the International Centre for Alternative Dispute Resolution, New Delhi, and was seated in New Delhi. The governing law was that of India. The Contract (CP-302) incorporated the FIDIC Yellow Book 1999 Conditions of Contract, amended by the Particular Conditions of Contract.

The ‘C-301 Arbitration’ and the ‘CP-302 Arbitration’ are together referred to as the ‘Parallel Arbitrations’.

The similarities between the ‘ICC Arbitration’ and the ‘Parallel Arbitrations’ included:

• the same presiding arbitrator;
• the incorporation of the FIDIC Conditions of Contract; and
• the Employer.

The differences between the ‘ICC Arbitration’ and the ‘Parallel Arbitrations’ included:

• the co-arbitrators;
• the arbitration rules;
• the seat of arbitration;
• the arguments raised;
• the amendments to the FIDIC Conditions of Contract in the Particular Conditions of Contract; and
• the Contractor.

By the award in the ‘ICC Arbitration’ (dated 24 November 2023), the Arbitral Tribunal held (among other things) that the Notice issued by the Indian Ministry of Labour and Employment was a change in legislation within the meaning of Sub-Clause 13.7, and DFCCIL was held liable to make additional payment. The Arbitral Tribunal in the ‘ICC Arbitration’ elected to use the award from the ‘CP-301 Arbitration’ as a template for its award. Some 212 paragraphs of the award were copied directly from the CP-301 award.

Court of First Instance – DJO v DJP and others [2024] SGHC (I) 24^[11]

DFCCIL applied to set aside the award in the ‘ICC Arbitration’. The Court did so on the basis that the award was rendered in breach of the rules of natural justice. There were several problems with the award that would have caused a fair-minded, reasonable and informed observer to discern that the Arbitral Tribunal had approached the matter with a closed mind:

• the Arbitral Tribunal had failed to restrict itself to submissions made in the ‘ICC Arbitration’. The award contained verbatim reproductions of the submissions made in the ‘CP-301 Arbitration’;
• a substantial number of authorities were referred to in the award that were not cited by the parties or put to them for their consideration;
• the Arbitral Tribunal cited the wrong version of Sub-Clause 13.8 at paragraph 253 of the award; and
• the Arbitral Tribunal applied the wrong lex arbitri (i.e. legal rules applying to the arbitration) when it came to the issues of interest and costs. The ‘Parallel Arbitrations’ were governed by the Indian Arbitration and Conciliation Act 1996 while the ‘ICC Arbitration’ was governed by the Singapore International Arbitration Act.

The Judge (Justice Simon Thorley KC) observed that not every instance of an arbitrator making an award where portions had been copied from other sources without attribution would render the award liable to be set aside. In each case, the court would have to determine whether there had been a breach of natural justice having regard to the nature, extent and effect of the copying in question.

In this instance, the Court held:

• the presiding arbitrator had prejudged the ‘ICC Arbitration’ because he allowed, or appeared to have allowed, his accumulated knowledge from the ‘Parallel Arbitrations’ to influence his decision, which amounted to a breach of the rule against bias;
• the parties had been denied the right to a fair, independent, and impartial process, because the award was not the independent work of the Arbitral Tribunal considering matters afresh. Instead, the Arbitral Tribunal relied heavily on material drawn from the ‘Parallel Arbitrations’ which the parties had not had the opportunity to address; and
• the Arbitral Tribunal failed to appreciate or even apply its mind to some of the differences between the three arbitrations.

Singapore Court of Appeal – DJP and others v DJO [2025] SGCA (I) 2^[12]

The Consortium appealed, stating that the Judge had been wrongly and unduly preoccupied by the degree of similarity between the award and the awards in the ‘Parallel Arbitrations’, which had no material impact on the outcome of the arbitration. Whilst DFCCIL accepted that there were several errors in the award, it maintained that these were inconsequential to the outcome of the ‘ICC Arbitration’.

The Singapore Court of Appeal affirmed the lower court’s decision to set aside the award, holding that the entire decision-making process employed in the arbitration amounted to a breach of natural justice. Among other things, the Arbitral Tribunal had not approached the case with an open mind, relying in the award on contractual provisions, arguments, and authorities raised in the earlier ‘Parallel Arbitrations’ involving similar issues, and quoting extensively from the awards in those other proceedings.

DOI v DOJ and others [2025] SGHC (I) 15^[13]

The matter was considered again, recently, in DOI v DOJ and others [2025] SGHC (I) 15, where the Singapore International Arbitration Court set aside another ICC award (the ‘Second ICC Arbitration’) issued under similar circumstances.

DOI^[14] was the Dedicated Freight Corridor Corporation of India Ltd. (‘DFCCIL’ – a special purpose vehicle), the Employer and the respondent in the arbitration.

DJO^[15], DOK^[16] and DOL^[17] were again Consortium X, the Contractor and the claimant in the arbitration.

As Consortium X was categorised a ‘foreign contractor’, arbitration was commenced under the ICC Rules and was seated in Singapore. The governing law was that of India. The Contract (CPT-11) incorporated the FIDIC Yellow Book 1999 Conditions of Contract, amended by the Particular Conditions of Contract.

The presiding arbitrator was the same as in the first ‘ICC Arbitration’ and the ‘Parallel Arbitrations’.

By the award in the ‘Second ICC Arbitration’ (dated 5 June 2024^[18]) the Arbitral Tribunal held (among other things and by majority), that the Notice issued by the Indian Ministry of Labour and Employment was a change of legislation within the meaning of Sub-Clause 13.7 and the Consortium was entitled to an upwards adjustment of the Contract Price due to the increase in minimum wages^[19]. Regrettably, the Arbitral Tribunal (by majority) elected to use the award in the first ‘ICC Arbitration’ (which was itself copied from the awards in the ‘Parallel Arbitrations’) as a template for the award.

DFCCIL applied to set aside the award on similar but not identical grounds to those in DJO v DJP and others [2024] SGHC (I) 24 (see above) and mounted a similar but not identical case.

The Court set aside the award on the basis that it was rendered in breach of the rules of natural justice, specifically (i) a breach by prejudgment amounting to an apparent bias, and (ii) a failure to give a fair hearing, because the Arbitral Tribunal (by majority) did not apply their minds to the essential issues arising from the parties’ arguments in an independent, impartial, and fair manner, and had approached the issues to be decided with a closed mind. Among other things:

• the award contained significant reproductions of submissions made in the first ‘ICC Arbitration’ – allegedly 157 (out of 176) of the paragraphs setting out the reasoning had been reproduced from the first ‘ICC Arbitration’, either verbatim or with minor modifications;
• a substantial number of authorities (allegedly 50) were referred to in the award that were not cited by the parties or put to them for their consideration and submissions;
• the award included an incorrect version of Sub-Clause 13.8 and referred to an annex not included in the contract at issue (which was not a ‘clerical or typographical’ error); and
• decisions on interest and costs were made by applying Indian law despite the arbitration being seated in Singapore—a jurisdictional error similarly copied from the award in the first ‘ICC Arbitration’.

The Judge (Justice Roger Giles) dismissed the Consortium’s defences that DFCCIL had known the presiding arbitrator to be the same presiding arbitrator in the earlier arbitrations and had thus waived its right to challenge the award by failing to raise objections during the proceedings. The Judge acknowledged that similar issues arose across all four arbitrations, and it is ‘simply not humanly possible for arbitrators to erase arguments and findings on similar issues from their minds’. However:

‘While parties to an arbitration may see some benefit in the tribunal’s general familiarity with the subject-matter of the arbitration from an earlier arbitration, that in no way carries with it acceptance that the tribunal will or may decide the parties’ arbitration influenced by the evidence and arguments in the earlier arbitration and not on the evidence and arguments in their arbitration, still less acceptance of a decision for the sake of consistency if that was not warranted on the evidence and arguments in their arbitration. Having the same tribunal in related arbitrations does not give the tribunal license to carry over to one arbitration, without notice to the parties, the tribunal’s reasoning in the other arbitration: rather, it requires the tribunal to be scrupulous in deciding on the evidence and arguments in each …, including if truly necessary arriving at inconsistent decisions. While the tribunal does not sit with an empty mind, it must not sit with a mind closed by one arbitration to proper consideration of the evidence and arguments in the other arbitration.’^[20]

Commentary

The decisions reached by these courts are not unexpected, given the circumstances of the case. What is surprising are the obvious and significant errors contained in the arbitral awards themselves – such as citing the wrong version of Sub-Clause 13.8 and applying the wrong lex arbitri^[21]. These mistakes are particularly concerning in light of the fact that every award rendered under the ICC Rules is subject to a formal scrutiny process by the ICC Court before it is issued. This scrutiny is intended to ensure that awards meet a basic standard of legal and procedural soundness, and to identify any major flaws or inconsistency in reasoning, structure, or format. The situation highlights the need for vigilance not only by arbitrators but also by the administering institutions to uphold the integrity and quality of the arbitral process.

Delegation to a Tribunal Secretary (the ‘Fourth Arbitrator’)

Whilst it is generally acceptable for a tribunal secretary to assist with the day-to-day administrative tasks of an arbitration (such as organising documents, managing communications, or scheduling hearings) the delegation of substantive responsibilities, including the drafting of any part of the arbitral award, is not considered best practice by many commentators. Even where such delegation does not appear to influence an arbitral tribunal’s decision-making, it raises serious concerns about transparency, accountability, and the integrity of the arbitral process.

Parties to arbitration have a legitimate expectation that the arbitrators they have appointed will personally engage with and determine all aspects of the case, including the preparation of the award. Involving a tribunal secretary in the drafting process can create doubts as to who is truly responsible for the reasoning and conclusions reached, potentially undermining the legitimacy of the award. For these reasons, best practice dictates that whilst administrative support is entirely appropriate, the drafting of the award must remain the sole responsibility of the tribunal members.

This was the issue in Emek İnşaat Şti Ltd and WTE Group v European Commission.

Background

ICC Case No. 23090/FS was commenced by the Employer, the European Union, against a joint venture comprising (i) Emek İnşaat Sti Ltd (a Cypriot company), and (ii) WTE Wassertechnik Gmbh (a German company). It concerned the discovery of defects in the construction of sewers, water distribution networks, and pumping stations in Cyprus. The Contract incorporated the FIDIC Red Book 1999 General Conditions of Contract, amended by the Particular Conditions of Contract. Arbitration was commenced under the ICC Rules and was seated in Brussels. The governing law was that of Belgium.

In February 2020 the Arbitral Tribunal issued a partial award on liability. Many of the decisions were made by majority^[22].

After the arbitration proceedings, the joint venture Contractor raised questions about the role of the tribunal secretary in the preparation of the questions to the expert witnesses and her role in the preparation of the arbitral award. In his reply, the presiding arbitrator admitted that the tribunal secretary had prepared a draft list of questions and assisted in the drafting of the award. The presiding arbitrator said that he had reviewed the list of questions and had reviewed, checked and, if necessary, corrected every single phrase in the award.

The joint venture Contractor requested further information, which led the presiding arbitrator to resign, stating that the joint venture Contractor’s continued disagreement and conduct in criticising certain decisions in the award was aggressive and vexatious, and that he no longer felt sufficiently impartial.

The joint venture Contractor subsequently filed a civil action asking the Belgian Court of First Instance to set aside the partial award on several grounds, including a delegation of decision power to the tribunal secretary.

Court of First Instance: Belgian Court of First Instance, 17 June 2021^[23]

On 17 June 2021, the Belgian Court of First Instance ruled that in ICC arbitration, a tribunal secretary is permitted to draft decision-making parts of an award, as long as the Arbitral Tribunal personally reviews the file and validates or corrects the said draft in light of its review of the file. The court’s decision turned on its interpretation of the words ‘and/or’ in paragraph 187 of the ICC ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration’, dated 1 January 2019 (the ‘ICC Note’^[24])^[25].

‘A request by an arbitral tribunal to an Administrative Secretary to prepare written notes or memoranda shall in no circumstances release the arbitral tribunal from its duty personally to review the file and/or to draft any decision of the arbitral tribunal.’ [emphasis added]

The Court recognised that one of the cardinal principles of arbitration is ‘the intuitu personae character of the appointment of arbitrators, chosen for his personal, intellectual and human qualities. The appointed arbitrators therefore undertake to personally decide the dispute submitted to them by the parties, thus excluding any delegation‘^[26]. But there must be proof of a real and unlawful delegation of decision power.

Court of Appeal: Belgian Court of Cassation C.21.0548.F/1 24 April 2023

On 24 April 2023, the Belgium Court of Cassation upheld the first instance decision, noting that the prohibition against the Arbitral Tribunal delegating its jurisdictional function does not prevent the tribunal secretary from preparing notes and memoranda which form part of the award, provided the Arbitral Tribunal carries out a personal examination of the file and reviews, corrects, and validates it. In essence, the Court of Cassation upheld the lower court’s interpretation of paragraph 187 of the ICC Note.

We have written about this case previously in Be Nice to the Kid in the Corner.

Commentary

Of course, an arbitrator must not delegate its decision-making authority. But, determining where the boundary lies between permissible assistance and impermissible delegation is inherently subjective. A first draft, for instance, can do more than merely outline content – it can shape the overall narrative, set the tone and direction of the award, and create an initial framework or reference point. This can influence subsequent revisions by narrowing the perceived range of acceptable outcomes and subtly steering the reader away from alternative viewpoints. This is why, in other contexts such as settlement negotiations, parties often seek to be the first to circulate a draft agreement, because controlling the initial narrative provides a strategic advantage.

In light of these dynamics, the most practical and transparent approach is to clearly define the role and responsibilities of any tribunal secretary at the outset of the arbitration. Whilst tribunal secretaries can and often do provide valuable administrative support, there are very few decisions that endorse or legitimise their involvement in the substantive drafting.

The Use of AI

Much has been written about the use of artificial intelligence (AI) tools in law. In March 2025 the Chartered Institute of Arbitrators (CIArb) issued a Guideline on the Use of AI in Arbitration (2025)^[27], recognising the risks generated by AI tools, including the enforceability of arbitration awards. It states:

‘8.2.  Arbitrators should not relinquish their decision-making powers to AI but may use AI to support more accurate and efficient processing of submitted information, always ensuring independent judgment. Arbitrators are advised to refrain from using AI in ways that could compromise the integrity of the proceedings or the validity or enforcement of the award. Specifically, the Tribunal should avoid delegating any tasks to AI Tools, such as legal analysis, research and interpretation of facts and law, or application of the law to the facts, if such use could influence procedural or substantive decisions.

8.3.  Arbitrators should also independently verify the accuracy and correctness of information obtained through AI, ensuring their judgment is free from confirmation bias and other distortions. They should conduct their own research, using AI generated information as a supportive tool, while maintaining a critical perspective to prevent undue influence on their decisions, including through appropriate supervision.

8.4.  An arbitrator shall assume responsibility for all aspects of an award, regardless of any use of AI to assist with the decision-making process.’

Regrettably, there have been a number of reported cases involving the use of AI tools where so called ‘AI hallucinations’ have led to serious errors in legal submissions. These hallucinations typically involve the generation of authorities that are either incorrect, misapplied, or entirely fictitious. While such instances have so far been relatively rare in construction-related disputes, they serve as a cautionary reminder of the risks associated with relying on AI-generated content without appropriate human oversight.

One recent case concerns a Statement of Case in a tax matter. In Zzaman v Revenue and Customs (HICBC – discovery assessment) [2025] UKFTT 539 (TC)^[28], the Court considered a Statement of Case, written with the assistance of AI. Although some of the case citations in the Statement of Case were inaccurate, the use of AI did not appear to have led to the citing of fictitious cases. However, the cases cited did not provide authority for the propositions that were advanced, highlighting the dangers of reliance on AI tools without human checks to confirm that assertions the tool is generating are accurate.

Another case, arising from California, concerns an arbitral award involving video game prices. In LaPaglia v ValveCorp (California)^[29], the claimant accused the arbitrator of using AI to draft the award, supposedly so he could go on holiday on time. The claimant petitioned to have the award set-aside^[30]:

‘The decision must be vacated because, by relying on AI to reach his ruling, [the arbitrator] exceeded his authority bound by the scope of the parties’ arbitration agreement. The parties’ arbitration agreement empowers “a neutral arbitrator” to resolve disputes between them … The agreement also binds the arbitrator, who is responsible for supplying “a written decision” and a “statement of reasons” for their holding … An arbitrator’s reliance on generative AI to replace their own role, and the parties’ submissions, in the litigation process betrays the parties’ expectations of a well-reasoned decision rendered by a human arbitrator’.^[31]

Commentary

The legal profession is built on accuracy, reliability and credibility. Where AI tools produce flawed or fabricated references, the consequences can be significant for the integrity of the submissions, the overall fairness of the proceedings, and also the credibility of the lawyers or arbitrators involved.

Closing Remarks

To sum up, arbitrators should be cautious about succumbing to the temptations of shortcuts like copying, delegation, and AI use, as these carry significant risks. Like Dr Faust’s bargain, these shortcuts may exact too high a price, risking parties’ trust in arbitrators.

I would be delighted to address any questions you may have in relation to these issues. Please do not hesitate to get in touch at victoria.tyson@howardkennedy.com.

 

 

[1] Designated code name.

[2] IRCON International Ltd., Mitsui & Co., Ltd. and Tata Projects Ltd. v. Dedicated Freight Corridor Corporation of India (II), ICC Case No. 26733/HTG.

[3] Designated code name.

[4] Assumed to be Mitsui & Co Ltd.

[5] Designated code name.

[6] Assumed to be IRCON International Ltd.

[7] Designated code name.

[8] Assumed to be Tata Projects Ltd.

[9] Designated code name.

[10] Designated code name.

[11] DJO v DJP and others [2024] SGHC (I) 24.

[12] DJP and others v DJO [2025] SGCA (I) 2.

[13] DOI v DOJ and others [2025] SGHC(I) 15.

[14] Designated code name.

[15] Designated code name.

[16] Designated code name.

[17] Designated code name.

[18] No case number is given in the court judgment.

[19] The dissenting arbitrator found the claim to be barred under Sub-Clause 20.1 and also by estoppel (among other things).

[20] Paragraph 115.

[21] Although the ICC would not have had sight of the ‘Parallel Arbitrations’ to check for copy-and-paste issues.

[22] In July 2022 the Arbitral Tribunal issued a final award. Again, many of the decisions were made by majority.

[23] Emek İnşaat Şti Ltd and WTE Group v European Commission, Belgian Court of First Instance, 17 June 2021

[24] ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration‘, dated 1 January 2019

[25] On 1 January 2021 the ICC released an updated ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration’. Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration – 01-01-2021 – ICC – International Chamber of Commerce. The ‘and/or’ language was not revised. This was a missed opportunity for the ICC to clarify that Arbitral Tribunals must draft their own decisions.

[26] Emek İnşaat Şti and WTE Group v European Commission, Belgian Court of First Instance, 17 June 2021, section III, para 1, page 12.

[27] CIArb, Guideline on the Use of AI in Arbitration, 2025.

[28] Zzaman v Revenue and Customs (HICBC – discovery assessment) [2025] UKFTT 539 (TC) (03 April 2025).

[29] LaPaglia v. Valve Corp., Case No: 3:25-CV-00833 RBM DDL, U.S. Dist. Ct., S.D. CA.

[30] The outcome of this application has not yet been publicised.

[31] LaPaglia v. Valve Corp., Case No: 25CV0833 RBM DDL, U.S. Dist. Ct., S.D. CA., page 10, lines 5-11.