Challenging the award using infra petita basically argues that the tribunal had not exercised its mandate by considering all the material issues that were raised in the arbitral proceedings, thus violates the natural justice.

In order for the court to entertain the infra petita challenge of the award, the complainant should establish that a tribunal completely fails to consider an essential issue raised in the arbitration. The threshold is high, according the Court of Appeal of Singapore in DKT v DKU [2025] SGCA 23.

This prevents award debtors from misusing natural justice claims as a way to relitigate factual and evidentiary disputes. Essentially, it is upholding the principle of minimal curial intervention in arbitration proceedings.

To clarify and deter future unmeritorious challenges, the court had established a structured framework for dealing with infra petita challenges. It set out four conditions to be met:

First, for a point to be validly raised before a tribunal, the party must have properly brought it up during the arbitration. A party cannot challenge the tribunal’s decision on a point it failed to raise or if it chose not to participate in the arbitration. Similarly, a party cannot challenge the tribunal for not considering a case it wished it had presented, instead of the case it actually ran. Complaints of procedural defects or breaches of natural justice are not admissible unless the party had fairly intimated these issues to the tribunal during the arbitral process. Essentially, a tribunal cannot be criticized for not considering points that were not put to it. [Para. 8(a)]

Second, the tribunal is required to address only essential points necessary for resolving the dispute, not every issue raised. In negligence claims, if no duty of care exists, there is no need to address breach or damages. Moot issues need not be pursued by the tribunal (standard of care or claim for damages). [Para. 8(b)]

Third, a tribunal’s failure to consider an essential point must be clear and virtually inescapable. Courts adopt a generous approach and resolve doubts in favor of upholding the award. The focus is on whether the tribunal considered the point at all, not how well it understood it. Failure to comprehend an argument is not a breach of natural justice. It is not sufficient for the applicant to merely show that the tribunal’s consideration was inadequate; they must demonstrate that the tribunal entirely failed to consider a crucial issue. The focus is on the existence of the tribunal’s analysis, not its adequacy. In exceptional cases, if the tribunal’s analysis is so incomplete that it clearly failed to consider the issue, it could be grounds for setting aside the award. The threshold for this is high, as errors of law or fact cannot be used to challenge an award under the guise of a natural justice claim. [Para. 8(c)]

Fourth, even if the tribunal fails to consider an essential point, there must be real or actual prejudice caused by the breach of natural justice. If the overlooked argument is fundamentally flawed, the tribunal’s failure to address it may not cause any prejudice. This was exemplified in DEM v DEL [2025] 1 SLR 29. [Para. 8(d)]

Cambodian courts, to reinforce its stance as pro-arbitration, should seriously consider adopting this approach when dealing with setting aside of arbitral award utilizing infra petita grounds to strengthen the principle of minimal judicial intervention in arbitration proceedings. By adopting the above framework, it prevents award debtors from misusing natural justice claims as a way to relitigate factual and evidentiary disputes. It also increases legal certainty for arbitration parties when entering arbitration agreements and discourage frivolous challenges (indemnity cost order). Finally, it bolsters the arbitral tribunal authority, for instance, on how it evaluates expert reports and assess evidence. This cements the credibility and finality of arbitration awards.

by : Mosseny