Wan Sern and the Documents-Only Dilemma: Can low-cost arbitration be delivered without cutting procedural corners?
Geoff Farnsworth FCIArb
Partner, Holding Redlich
President, Ciarb Australia Branch
*This paper was delivered by Geoff Farnsworth at the International Congress of Maritime Arbitrators XXIII in Singapore (22 – 27 March 2026)
Introduction
‘Documents-Only’ is a ‘fast and low cost’ (FALC) arbitration process, sometimes written into institutional arbitration rules, whereby the parties provide written submissions (which may include witness statements and/or relevant documents by way of evidence) to an arbitral Tribunal (often a sole arbitrator) which then reaches a determination and publishes an award based on those submissions alone – ideally with no, or minimal, further interaction between the parties and the Tribunal.[1]
The process is generally intended to be lower cost, and suited to lower value and/or less complex disputes, perhaps suitable to be managed by the parties themselves, without separate legal representation.
In opting for a Documents-Only process, can the parties be understood (expressly, or implicitly) to be exercising party autonomy to make a compromise, prioritising speed, cost and informality over due-process? Is there a limit to such autonomy? Will the courts respect such a compromise? And if the Courts do respect that compromise, will they (and can they?) apply a different, presumably lower standard of due-process to Documents-Only arbitration?
The decision of the Singapore Court of Appeal in Wan Sern Metal Industries Pte Ltd v Hua Tian Engineering Pte Ltd [2025] SGCA 5 (Wan Sern) answers some of these questions and provides guidance to arbitrators and institutions on the conduct of Documents-Only and FALC arbitration processes.
The Facts
Wan Sern and Hua Tian were parties to a works contract; Wan Sern was head-contractor and Hua Tian was sub-contractor.
Wan Sern terminated the contract before completion of the works, alleging that performance defaults by Hua Tian were repudiatory.
Hua Tian denied that its conduct was repudiatory, and the dispute was referred to arbitration under the SIAC Rules, with each party making claims against the other.
The arbitration was subject to the Singapore Arbitration Act (SAA) and, under the Singapore International Arbitration Centre (SIAC) Rules, was conducted on an expedited basis, Documents-Alone, before a sole arbitrator.
Within 3-months the parties exchanged pleadings, witness statements, reply witness statements, written submissions and reply written submissions. There was no oral hearing and within a further 2 months the arbitrator had issued the award.
The initial claim lodged by Hua Tian claimed (among other heads of damage) payment for works undertaken pre-termination. It did not refer to claims for post-termination damages, though the written submissions subsequently exchanged did include claims for post-termination damages calculated on the basis of income foregone, not just profit.
Collectively the value of the claims and cross-claims exceeded S$2,000,000.
In the event, the arbitrator found in favour of Hua Tian and awarded (among other compensation) post-termination damages on the basis of loss of income, not just loss of profit.
Wan Sern commenced proceedings to set the Award aside on the basis that the arbitrator had:
- exceeded the scope of the submission to arbitration under section 48(1)(a)(iv) of the SAA;
- acted in breach of the agreed arbitral procedure under section 48(1)(a)(v) of the SAA; and
- acted in breach of natural justice under section 48(1)(a)(vii) of the SAA.
The judge at first instance rejected the challenge, because the issue of post-termination damages, while ‘unpleaded’, was addressed in submissions, without objection, and the arbitrator had clearly considered the issue – even if the arbitrator’s decision was erroneous as a matter of law, in awarding unpleaded damages.
The judgment was appealed.
Case on appeal in Wan Sern
The Court of Appeal allowed the appeal and set-aside the part of the award relating to post-termination damages.
In doing so, the Court of Appeal highlighted the distinction between an erroneous finding of fact or law, which is not actionable, and an erroneous process conducted by an arbitrator which may in turn have caused or contributed to the erroneous finding as it found it did in this case.
The Court was particularly concerned about the fact that Hua Tian had not pleaded a case for post-termination damages. In the Court’s view, had Hua Tian wished to run such a case, it should have amended its pleadings. Such an amendment would have been procedurally expedient as it would have clearly articulated the claim, and focused the minds of both the arbitrator and Wan Sern with the result that the award would have presumably dealt with the issue more coherently than it did.
The Court observed that:
Although it was the parties’ choice to conduct the arbitration in this way, the expedited manner in which the arbitration proceeded resulted in a lack of clarity as to the parties’ positions, which the arbitrator failed to appreciate and so to resolve. This formed the pillar of the appellant’s complaint that the award should be set aside. In our view, the arbitrator could and should have recognised this lack of clarity and acted to resolve it.
The Court was also strongly of the view that pleadings are an important safeguard against misconduct, particularly in the case of Documents-Only arbitration – viewed in this way, their accuracy is key to a procedurally fair arbitration.
The Court continued, explaining that:
“[I]n arbitral proceedings generally, pleadings are not necessarily determinative in the same way or to the extent that they might be in court litigation; the consensual nature of arbitration means that the parties may agree to an unpleaded issue being dealt with in the arbitration (see Phoenixfin Pte Ltd and others v Convexity Ltd [2022] 2 SLR 23 (“Phoenixfin”) at [50]). For this reason, recourse may be had to various sources to determine the scope of submission to arbitration including: (a) the pleadings; (b) the agreed list of issues; (c) the opening statements; (d) the evidence adduced in the arbitration; and (e) the closing submissions…
In the ordinary course of an arbitration, these sources serve as convenient touchpoints from which the tribunal can best appreciate the parties’ contentions…
[However] [t]his will typically not be the case where a documents-only arbitration is concerned. While this is a choice that parties are entitled to make, the tribunal and the parties should appreciate the somewhat different context in which such a hearing would be conducted…
In such a context, where the arbitral process is expedited and to be determined based on documents alone, pleadings can provide a crucial anchor in ensuring that the tribunal is fully cognisant of the parties’ cases. In our judgment, where the procedure in a case provides for pleadings, these play a significant role in expedited arbitrations, including documents-only arbitrations… We have observed previously that pleadings can and do serve the valuable function of defining the parameters of the issues which the parties have to address, and thus, they help avoid a situation where a party is faced
with an issue it may not have had the opportunity to address… The likelihood of this happening is greater in a documents-only arbitration where the interactions between the parties will not be as iterative as would be the case with the usual process. Hence, the pleadings will generally assume a more significant role in defining the issues and assessing what natural justice demands must be afforded to a party faced with an unexpected claim”.
Choosing between Documents-Only arbitration and arbitration hearings
Given that parties will often incorporate into contracts a referral of all disputes to a particular set of rules or arbitral institution, and given that disputes may arise in respect of small and large claims, it is important that institutional rules and processes can accommodate a range of claims, including ‘fast and low-cost’ arbitration options.
A documents-only procedure is intended to encourage a speedy resolution of the issues and to reduce costs for the parties. The absence of oral submissions and oral evidence especially reduces costs associated with a whole day/several days hearing, travel and accommodation, and scheduling for parties, their legal representatives and the arbitrator(s).
A Documents-Only process may also attempt to cap arbitration fees relative to the amount in dispute, which may also directly or indirectly constrain the time an arbitrator can spend dealing with a matter.
The Chartered Institute of Arbitrators (CIArb) Guidelines
While note referenced in the judgments, CIArb has ‘Documents-Only Arbitration Procedures’ guidelines to assist arbitrators in determining when to adopt a Documents-Only procedure for an arbitration and what the procedure for a Documents-Only arbitration should be.
The guidelines provide that Documents-Only arbitration may be suitable where:
- the evidence is limited and/or contained in contemporaneous documents;
- there are limited areas of factual and/or technical issues in dispute;
- the issues can be decided without oral testimony from factual and/or expert witnesses; and
- the issues do not involve complex and/or technical matters that merit a hearing;
- the issues are limited to interpreting a document or documents.
The CIArb guidelines also provide that arbitrators should:
- consider whether the documents-only procedure can provide an effective and efficient way to deal with issues, given factors such as the issues in dispute, the amount at stake, the evidence to be adduced (and by whom), and the need to save time and money;
- ensure that it has agreement from all the parties regarding the procedure that is to be adopted. If so, the agreement should be recorded in a procedural order noting that the parties have waived their right to a hearing in respect of a set of issues or specific issues in the arbitration;
- notwithstanding the absence of a hearing, ensure that each party is given a fair opportunity to present its case in relation to the issues; and
- give clear directions regarding the steps that the parties need to follow.
Wan Sern illustrates that the truncated nature of Documents-Only arbitration can sometimes lead to a lack of clarity in the parties’ positions. The arbitrator may miss or ‘gloss-over’ nuances that could be better explained through oral arguments and so fail to adequately address the issues.
In contrast to adopting a Documents-Only procedure, arbitration hearings allow the parties a full opportunity to present their cases, and arbitrators gain a deeper understanding of the issues through direct interaction with the parties. This can help clarify complex arguments and evidence.
The hearing also provides an opportunity for real-time clarification and adaptation of arguments. Parties can, more flexibly, respond to questions from the arbitrator and address any misunderstandings immediately. This flexibility can be particularly beneficial in cases involving complex or technical issues where written submissions alone may not suffice, or there are issues which are discovered or understood only in final submissions. The interactive nature of an oral arbitration hearing can enhance procedural fairness by ensuring that parties have a full opportunity to present their case and respond to the other party’s arguments.
But, as a result, arbitration hearings are generally more time-consuming and costly. They also require schedule coordination and so can prolong the arbitration process.
Wan Sern is not the first time these issues have been given attention. Other courts have warned arbitrators of the “temptation to arrive at a conclusion which might not have been envisaged by either party by reference to matters upon which the parties have not had the opportunity of adducing further evidence” – a ‘temptation’ which is especially exacerbated in documents-only arbitration (see the judgment of Colman J of the UK Commercial Court in Pacol Ltd v Joint Stock Co Rossakhar [2000] 1 Lloyd’s Rep 109).
Of course, courts have also been mindful that parties in Documents-Only arbitration “are often concerned to keep costs to a minimum because the amount in dispute is modest”, which may mean that arbitrators avoid issuing “anxious” questions to the parties regarding their case pleaded (see ED&F Man Sugar Ltd v Belmont Shipping Ltd (The Amplify) [2011] EWHC 2992)).
And so based on the above, and the decision in Wan Sern, an arbitration hearing may be suitable if:
- one party is insisting on a hearing;
- there is a complex dispute involving intricate facts or legal issues that benefit from oral explanations;
- a thorough examination of the issues is preferred over time delays and costs; and/or
- there are issues relating to the credibility of evidence or the evidence otherwise needs to be tested, so requires oral testimony and cross-examination to resolve the issues.
As set out in the CIArb guidelines, if a party has already agreed to undertake a Documents-Only arbitration but then changes its mind and requests a hearing, the arbitrator should undertake a hearing if all the parties agree to a hearing. Otherwise, the arbitrator should consider whether it would be preferable to hold a hearing given the submissions made and the evidence submitted.
As noted, the election between Documents-Only arbitration and oral hearings depends on various factors, including the complexity of the case and the need for efficiency.
Documents-Only process
A. SIAC
The arbitration in Wan Sern appears to have been conducted under the SIAC Rules (6th Edition, 1 August 2016), pursuant to the Expedited Procedure at Rule 5.
Under that Expedited Procedure, the case is referred to a sole arbitrator who is to decide if the dispute will be decided on documentary evidence only or if a hearing is required. Pursuant to Rule 5.2(e), the Tribunal may state the reasons upon which the final award is based in summary form, unless the parties have agreed that no reasons are to be given.
The SIAC Rules also contemplate (at 3.1 and 20.2) that the claimant will prepare a Statement of Claim setting out “in full detail”
- a statement of facts supporting the claim;
- the legal grounds or arguments supporting the claim and
- the relief claimed together with the amounts of all quantifiable claims.
Rule 20.5 expressly contemplates amendments to the Statement of Claim “unless the Tribunal considers it inappropriate.”
The current SIAC Rules (2025) contain a revised Expedited Procedure at Rule 14 and Schedule 3 (for claims between S$1,000,000 – S$10,000,000), as well as a Streamlined Procedure under Rule 13 and Schedule 2 (for claims under S$1,000,000).
Both appear to proceed on Documents-Alone with a sole arbitrator who has discretion in relation to the appropriate procedure.
B. London Maritime Arbitrators Association (LMAA)
The LMAA Terms 2021 have two expedited procedures, the Intermediate Claims Procedure, and the Small Claims Procedure.
Under the Intermediate Claims Terms, the default is a panel of 3 arbitrators. Under Rule 11(a), “there is no automatic right to an oral hearing and only exceptionally will one be held.”
Under Rule 7, submissions shall comprise opening submissions which must “identify and set out the position of the parties in respect of the issues that have arisen between them as clearly, concisely and comprehensively as possible.”
Under the Small Claims Procedure, the default is to a sole arbitrator. Under Rule 5(k) there shall be no hearing unless the arbitrator so requires, in exceptional circumstances.
Under Rule 5, the claimant must deliver to the respondent a ‘letter of claim’ which must ‘identify and set out the position of the parties in respect of the issues that have arisen between them as clearly, concisely and comprehensively as possible.”
It is worth noting that the LMAA Questionnaire (which is not mandatory under the Intermediate and Small Claims Procedure) requires disclosure (at paragraph 5) of any amendments to the submissions.
C. Singapore Chamber of Maritime Arbitration (SCMA)
Rule 44 of the SCMA Rules (4th Edition, January 2022) contains an Expedited Procedure where the aggregate amount of the claim and any counterclaim is equal to or less that US$300,000.
The matter will be referred to a sole arbitrator who is to make directions for determination of the matters in issue summarily. There will be no hearing unless required by the Tribunal and any hearing will be limited to arguments only.
An award is to be produced within 21 days (of close of submissions or any hearing) and only ‘brief reasons’ will be given.
Under Rule 6.1(g) on commencement a party is required to provide “a brief statement describing the nature of the claim and where possible, an indication of the amount of the claim.”
Under Rule 18 the parties are to exchange ‘Case Statements’ which, under Rule 19.1 shall contain;
- The full facts and contentions of the law relied on and
- All relief or other remedies sought.
The Rules also contain provision for a Questionnaire at Schedule A. One element of the Questionnaire (at paragraph 5) is disclosure of “any application for amendments to the claim, defence or counterclaim.”
Due process is not negotiable
While the Court in Wan Sern observed that the precise requirements of natural justice may differ according to the context of a particular case, the decision makes clear that due process (including a right to be heard) is an “essential element” of natural justice which won’t be compromised in the guise of a FALC process.
The Court noted that there are at least two situations in which the fair hearing rule is breached. First, where the Tribunal fails to apply its mind to the essential issues arising from the parties’ arguments, and secondly where the Tribunal adopts a defecting chain of reasoning.
In respect of the former, if a breach is to be established by inference, the inference to be drawn must be clear and inescapable.
The Court then proceeded to conduct a detailed textual analysis of the award and arrived at the clear and inescapable conclusion that the arbitrator had failed to turn her mind to essential issues.
Use of Pleadings in Arbitration
One of the more controversial matters considered in Wan Sern may be the use of pleadings in arbitration.
Perhaps the starting point for consideration is the importance of clarity as to the issues in dispute in the proceedings and particularly the dispositive issues. The use of a system of ‘pleadings’ may go some way towards providing the arbitrator with an agreed ‘road-map’ of the issues he or she may be required to determine.
An alterative may be a requirement (as part of a procedural order or arbitration rules) for the parties to agree on a list of issues, perhaps after the submissions and evidence have been exchanged.
A self-represented party may find the use of pleadings or even an issues-list challenging. In such a case the arbitrator may have to intervene to assist the parties to refine and articulate the issues in dispute. While this may result in additional costs for the parties (particularly the unsuccessful party) it is better than an unenforceable award.
Conclusions
The decision in Wan Sern illustrates the potential risks of documents-only arbitration in terms of procedural fairness – the arbitrator’s failure to appreciate the appellant’s objections regarding the unpleaded claim for expectation damages was deemed a breach of natural justice.
While arbitrators and institutions should respect and attempt to accommodate parties’ needs for low-cost arbitration options, the delivery of an enforceable award must always remain paramount.
Wan Sern demonstrates that the right to heard is an essential element of natural justice which cannot be compromised. Arbitrators must be mindful of their role as arbiters of due process, as well as the merits of the parties’ cases.
While Documents-Only arbitration offers significant advantages in terms of cost and efficiency, parties must ensure that their pleadings are clear and comprehensive to avoid misunderstandings and ensure a fair process. Conversely, oral hearings provide a more interactive and flexible forum for resolving disputes, which can be crucial in complex cases. Ultimately, the choice should be guided by the specific circumstances of each case and the parties’ priorities.
[1] Though some Rules will provide a Tribunal with authority to call for additional evidence and/or submissions and require a hearing.