Bloomberry Resorts and Hotels Inc. v Global Gaming Philippines LLC

JurisdictionSingapore
JudgeBelinda Ang Saw Ean J
Judgment Date03 January 2020
Docket NumberOriginating Summons No 1432 of 2017
Year2020
CourtHigh Court (Singapore)
Bloomberry Resorts and Hotels Inc and another
and
Global Gaming Philippines LLC and another

Belinda Ang Saw Ean J

Originating Summons No 1432 of 2017

High Court

Arbitration — Award — Recourse against award — Setting aside — Whether award contrary to public policy — Whether making of award was induced or affected by fraud or corruption — Section 24(a) International Arbitration Act (Cap 143A, 2002 Rev Ed) — Article 34(2)(b)(ii) First Schedule International Arbitration Act (Cap 143A, 2002 Rev Ed)

Arbitration — Award — Recourse against award — Setting aside — Whether breach of natural justice established — Section 24(b) International Arbitration Act (Cap 143A, 2002 Rev Ed) — Article 34(2)(a)(ii) First Schedule International Arbitration Act (Cap 143A, 2002 Rev Ed)

Arbitration — Enforcement — Singapore award — Resisting enforcement of award — Whether award contrary to public policy — Article 36(1)(b)(ii) First Schedule to International Arbitration Act (Cap 143A, 2002 Rev Ed)

Arbitration — Enforcement — Singapore award — Resisting enforcement of award — Whether breach of natural justice established — Article 36(1)(a)(ii) First Schedule International Arbitration Act (Cap 143A, 2002 Rev Ed)

Civil Procedure — Extension of time — Whether extension of time should be granted to set aside award — Whether time limit in Art 34(3) First Schedule International Arbitration Act (Cap 143A, 2002 Rev Ed) applied to s 24 International Arbitration Act — Section 24 International Arbitration Act (Cap 143A, 2002 Rev Ed) — Article 34(3) First Schedule International Arbitration Act (Cap 143A, 2002 Rev Ed)

Civil Procedure — Extension of time — Whether extension of time should be granted to set aside enforcement order — Order 3 r 4(1) Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Held, dismissing the application:

(1) The time limit of three months stipulated in Art 34(3) of the Model Law was an absolute one which recognised the need for finality and legal certainty. As a matter of construction, the same time limit of three months equally applied to applications brought under ss 24(a) and 24(b) of the IAA. The plaintiffs' applications to set aside the Partial Award pursuant to s 24 of the IAA and Art 34(2) of the Model Law were filed out of time and they were consequently dismissed with costs: at [21] to [46].

(2) The court allowed the plaintiffs a time extension to apply to set aside ORC 6609 despite the lateness of the application. The factors the court took into consideration included the fact that new evidence was discovered only after the Partial Award had been issued and only shortly before the deadline to set aside ORC 6609 expired. The plaintiffs were allowed to make their allegations of fraud as put forward in the application for time extension without reference to their likelihood of success at the substantive hearing. Such an approach coupled with the minimal prejudice caused to the defendants, was in the overall interest of justice: at [47] to [54].

(3) Fraud (whether substantive or procedural), corruption and bribery would generally fall within the definition of being “contrary to public policy”, which was a ground for resisting enforcement of an award pursuant to Art 36(1)(b)(ii) of the Model Law. To prove a violation of public policy based on the ground of fraud, the plaintiffs' allegation of fraud had to be proved, failing which the application to resist enforcement would fail. Thus, strong and cogent evidence had to be adduced where fraud was alleged. Perjury and the deliberate suppression or withholding of documents in an arbitration could in a proper case amount to obtaining an award by fraud. The same principles would generally apply to the concealment of information (whether contained in documents or otherwise). To establish concealment of information or perjury, false information had to be given in a legal proceeding which was intended to cause the tribunal, or any party in that proceeding, to form an erroneous opinion that touched on any point material to the result of such proceeding: at [56], [95] to [109] and [126].

(4) The Partial Award was not contrary to public policy. There was insufficient evidence to show that the defendants, Mr Weidner (the chairman of the defendants), and/or Mr Hastings (the defendants' counsel) had committed procedural fraud: at [125], [129], [132] and [136].

(5) In any case, not every case of fraud would impugn a judgment or award. Even where fraud was proven, there had to be a sufficient degree of connection between the fraud and the award that was being enforced in order to engage the ground of public policy under Art 36(1)(b)(ii) of the Model Law. On the facts, there was no sufficient degree of connection between the alleged procedural fraud and the Partial Award. Further, the FCPA Findings did not constitute material information that would have substantially impacted the making of the Partial Award. They were exclusively concerned with the activities of LVS and concerned a different time frame. They also did not disclose bribery or corruption in the defendants' management of LVS, much less Solaire. Thus, it could not be said that the Tribunal's decision would have been different, or that the arbitration would have proceeded on an entirely different basis, as argued by the plaintiffs: at [133], [158], [159], [201] and [219].

(6) The plaintiffs were also not unable to present their case pursuant to Art 36(1)(a)(ii) of the Model Law. The present case was a marked departure from the typical factual scenarios that engaged the audi alteram partem rule. The core of the plaintiffs' argument was that they were deprived of an opportunity to present a different case, rather than being unable to present per se the case that was before the Tribunal. Further, there was no basis to support the plaintiffs' allegations that the defendants' counsel had unfairly interfered with the hearings before the Tribunal: at [223] to [229].

[Observation: In order to adduce new evidence, the evidence had to meet the requirement of “non availability”, ie, it had to not have been obtainable with reasonable diligence at the time of the arbitration. The cases of Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Pvt Ltd[2010] 1 SLR 573, Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH[2008] 3 SLR(R) 871 and BVU v BVX[2019] SGHC 69 suggested that this requirement was not attenuated even if there were allegations of fraud. However, the court in Ching Chew Weng Paul, deceased v Ching Pui Sim[2011] 3 SLR 869, which dealt with the setting aside of judgments in cases of fraud, appeared to have taken a more relaxed position, stating that the requirement of non-availability ought not to be rigidly imposed where the fresh evidence uncovered fraud committed by the other party and to do so would cause injustice. The UK case of Takhar v Gracefield Developments Ltd[2019] UKSC 13 appeared to go even further and held that where a judgment had been procured by fraud and no allegation of fraud had been raised at the trial, there was no requirement of non-availability in order to set aside the judgment. The apparent divergence in the cases between the principles governing the setting aside of judgments and resisting enforcement of arbitral awards was best left to another occasion: at [220] to [222].]

Case(s) referred to

ABC Co v XYZ Co Ltd [2003] 3 SLR(R) 546; [2003] 3 SLR 546 (folld)

AD v AE [2004] 2 SLR(R) 505; [2004] 2 SLR 505 (folld)

AJU v AJT [2011] 4 SLR 739 (folld)

Astro Nusantara International BV v PT Ayunda Prima Mitra [2013] 1 SLR 636 (folld)

Astro Nusantara International BV v PT First Media TBK [2018] HKCFA 12 (refd)

Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte Ltd [2014] 1 SLR 814 (folld)

Boardman v DPP [1975] AC 421 (refd)

BVU v BVX [2019] SGHC 69 (folld)

BXS v BXT [2019] 4 SLR 390 (refd)

BXY v BXX [2019] 4 SLR 413 (refd)

Ching Chew Weng Paul, deceased v Ching Pui Sim [2011] 3 SLR 869 (refd)

DDT Trucks of North America Ltd v DDT Holdings Ltd [2007] 2 Lloyd's Rep 213 (refd)

Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] 3 SLR(R) 871; [2008] 3 SLR 871 (folld)

Elektrim SA v Vivendi Universal SA [2007] 1 Lloyd's Rep 693 (folld)

Falmac Ltd v Cheng Ji Lai Charlie [2014] 4 SLR 202 (folld)

Koh Pee Huat v PP [1996] 2 SLR(R) 816; [1996] 3 SLR 235 (folld)

Lim Tjoen Kong v A-B Chew Investments Pte Ltd [1991] 2 SLR(R) 168; [1991] SLR 188 (folld)

Ng Chee Weng v Lim Jit Ming Bryan [2010] SGHC 35 (folld)

PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597; [2007] 1 SLR 597 (folld)

PT First Media TBK v Astro Nusantara International BV [2014] 1 SLR 372 (refd)

PT Pukuafu Indah v Newmont Indonesia Ltd [2012] 4 SLR 1157 (folld)

Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 4 SLR 995, HC (refd)

Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131, CA (refd)

Sinocore International Co Ltd v RBRG Trading (UK) Ltd [2019] 1 All ER (Comm) 810 (refd)

Soleimany v Soleimany [1999] QB 785; [1999] 3 All ER 847 (refd)

Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 (folld)

Sun Tian Gang v Hong Kong & China Gas (Jilin) Ltd [2016] HKCFI 1611 (not folld)

Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Pvt Ltd [2010] 1 SLR 573 (folld)

Takhar v Gracefield Developments Ltd [2019] UKSC 13 (refd)

Tan Swee Wan v Johnny Lian Tian Yong [2018] SGHC 169 (folld)

Thyssen Canada Ltd v Mariana Maritime SA [2005] 1 Lloyd's Rep 640 (refd)

Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd [2000] QB 288; [1999] 2 Lloyd's Rep 65 (refd)

Facts

The plaintiffs entered into a management services agreement (“MSA”) with the first defendant on 9 September 2011. Pursuant to the MSA, the first defendant was to provide services for the development and management of Solaire, a casino owned by the plaintiffs. The first defendant subsequently assigned all...

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2 cases
  • Png Hock Leng v AXA Insurance Pte Ltd
    • Singapore
    • High Court Appellate Division (Singapore)
    • 9 Marzo 2022
    ...143A, 2002 Rev Ed) (“IAA”). Subsequently, in Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 3 SLR 725 at [40], I reconsidered my obiter view expressed in Astro (HC) and was persuaded by new arguments by counsel to come to the opposite conclu......
  • Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another
    • Singapore
    • High Court (Singapore)
    • 29 Mayo 2020
    ...The High Court’s decision can be found in Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2020] SGHC 1 (the “2020 Judgment”). Notwithstanding the High Court’s decision in the 2020 Judgment, Bloomberry argues that there are additional grounds for se......
1 books & journal articles
  • Arbitration
    • Singapore
    • Singapore Academy of Law Annual Review No. 2020, December 2020
    • 1 Diciembre 2020
    ...s 29(g). 28 BTN v BTP [2021] 1 SLR 276 at [19]. 29 [2007] 1 SLR(R) 597. 30 [2020] 4 SLR 1. 31 1 March 2017. 32 [2020] SGHC 113. 33 [2021] 3 SLR 725. 34 See para 4.80 below. 35 [2011] 4 SLR 305. 36 Bloomberry Resorts and Hotels Inc v Global Gaming Philippines LLC [2020] SGHC 113 at [6]. 37 S......

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