Akn and Another v Alc and Others and Other Appeals
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 27 November 2015 |
Neutral Citation | [2015] SGCA 63 |
Published date | 03 December 2015 |
Date | 27 November 2015 |
Year | 2015 |
Hearing Date | 12 August 2015 |
Plaintiff Counsel | Andre Yeap Poh Leong SC, Adrian Wong Soon Peng, Ang Leong Hao (Rajah & Tann Singapore LLP) (instructed) and Ng Lip Chih (NLC Law Asia LLC) |
Citation | [2015] SGCA 63 |
Defendant Counsel | Davinder Singh SC, Zhuo Jiaxiang and David Fong (Drew & Napier LLC),Evans Ng Hian Pheng (Rodyk & Davidson LLP),Alvin Yeo SC, Chan Hock Keng, Lin Wei Qi Wendy and Chong Wan Yee Monica (WongPartnership LLP) |
Court | Court of Appeal (Singapore) |
Docket Number | Civil Appeals Nos [P], [Q] and [R] |
Following the delivery of our judgment on 31 March 2015 in
Shortly after the Main Judgment was issued on 31 March 2015, we issued the following direction on 1 April 2015:
We refer to [139] of the judgment of the Court of Appeal dated 31 March 2015 ([2015] SGCA 18).
Each party duly filed a set of written submissions on 16 April 2015. The Purchasers sought the following consequential orders:
The Purchasers also submitted that each party should bear its own costs of both the appeal and the hearing below. The Judge had awarded the costs of the hearing below to the Respondents. Oddly, the Purchasers’ “alternative” submission on costs was that they should be awarded 50% of their costs of both the appeals and the hearing below.
The Secured Creditors submitted that they should be awarded costs of the appeal (in CA No [Q]) and the proceedings before the Judge (in OS No [M]) and that there should be no order as to remission. The Liquidator submitted he should be awarded costs of the appeal (in CA No [R]) and the proceedings before the Judge (in OS No [L]) “with (at most) a reduction of up to 20% to reflect the partial success of [CA No [R]] vis-à-vis the Tribunal’s findings on issues of liability”. The Liquidator also sought the following:
The Funds submitted that they should be awarded costs of the appeal (in CA No [P]). They also sought an order to the effect that references to the Funds at Annex A of the Award should be deleted.
We wrote to the parties on 25 May 2015 indicating our determination in respect of some of the matters. The relevant part of our letter reads:
a. The costs orders made by [the Judge] in relation to the matters below are to remain.
b. In CA No [P], the appellants are to pay the respondents’ costs. Such costs are to be taxed if not agreed.
c. In CA No [Q] and CA No [R], each party is to bear its own costs.
In the same letter, we also directed that the parties, save the Funds, file further submissions on four particular points. These points arose out of the application made by the Purchasers for the declarations or orders that we have summarised at [3] above. The relevant portion of the letter reads:
a. What is the effect of parts of the award being set aside in relation to (i) the arbitral proceedings, (ii) the Tribunal’s jurisdiction and (iii) the possibility of those parts being remitted to arbitration?
b. After setting aside an award, does the court have the power to remit matters to the Tribunal or is the Tribunal
functus officio ? If there is such power, what are the considerations that should direct the court as to whether or not it should exercise it? In particular, might there be justifiable doubts as to the Tribunal’s ability to consider afresh and impartially the matters remitted to it having regard to the fact that it has already ruled on these matters once albeit that this has since been set aside?c. Does the court have the power to remit such matters to a new tribunal?
d. Are the appellants precluded by the application of
res judicata , or any related doctrine, from seeking to remit and re-arbitrate these matters?
The parties, except for the Funds which were no longer directly involved in the proceedings, duly complied with this and filed written submissions on 24 June 2015. The parties appeared before us for a further hearing on 12 August 2015, at the conclusion of which we reserved judgment, which we now deliver.
The parties’ arguments Of the various questions posed, only one received a common answer. This was the third, namely whether the court, after having set aside an arbitral award, has the power to refer matters to arbitration before a
In our view, even assuming that the case was an appropriate one for remission because it concerned a stand-alone issue,
the clear language of Art 34(4) does not, with respect, permit the remission of the award (without more) to a newly constituted tribunal . It has been observed in Blackabyet al ,Redfern and Hunter on International Arbitration (OUP, 5th Ed, 2009) (at para 10.34) that Art 34(4) is in fact “an equivalent provision to that of remitting the award to the tribunal forreconsideration ” [emphasis added]. That the matter must be remitted to the same tribunal is also supported by Art 32(3) of the Model Law which provides that the mandate of an arbitral tribunal terminates,inter alia , on the issuance of the final award, subject only to the provisions of Art 33and Art 34(4) . [emphasis in original; emphasis added in bold italics]
In the light of the settled position we say no more about this, save to note that it was not suggested by parties, nor is it our view, that the court has some power, beyond or aside from Art 34(4) of the Model Law, to
In most other respects, the parties (with the Purchasers on one side and the Secured Creditors and Liquidator on the other) took opposed positions. These differences pertained to (a) the effect of setting aside the Award and (b) the question of remission to the Tribunal.
In respect of the former, at some risk of oversimplifying the submissions, the Purchasers take the view that once a court has set aside an award, it ceases to exist. From this, the Purchasers develop their case by contending that arising from the fact that
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