CKG v CKH
Court | International Commercial Court (Singapore) |
Judge | Jeremy Lionel Cooke IJ |
Judgment Date | 18 June 2021 |
Neutral Citation | [2021] SGHC(I) 5 |
Citation | [2021] SGHC(I) 5 |
Plaintiff Counsel | Paul Tan (Cavenagh Law LLP) (instructed), Ong Tun Wei Danny, Yam Wern Jhien, Lai Tze Ren, Jonathan and Mark Teo Tzeh Hao (Rajah & Tann Singapore LLP) |
Defendant Counsel | Hee Theng Fong, Toh Wei Yi, Poon Pui Yee and Leong Shan Wei Jaclyn (Harry Elias Partnership LLP) |
Published date | 23 June 2021 |
Hearing Date | 08 June 2021 |
Docket Number | Originating Summons 3 of 2021 |
Subject Matter | Award,Setting aside,Remission,Arbitration,Recourse against award |
By an Originating Summons dated 25 November 2020, the plaintiff, which was the Respondent in the arbitration to which the Originating Summons relates (“the Arbitration”), sought the setting aside of paragraphs 491–492 and 519–524, together with the dispositive section (“the Dispositive Section”), or parts of it, of a Final Arbitral Award dated 21 August 2020, corrected by two Memoranda of Corrections to the Final Award dated 2 October 2020 and 5 November 2020 (“the Award”) in which the arbitral tribunal (“the Tribunal”) found that the plaintiff was liable to the defendant in damages amounting to US$8,512,789.88 and IDR15,126,969,785 whilst the defendant was liable in damages to the plaintiff in the lesser sum of IDR29,918,809,545.86. Interest was awarded on the sums in question and the plaintiff was ordered to pay the defendant’s costs and the defendant’s costs of the Arbitration. The application is made on the basis that the Tribunal failed to consider and take into account a debt owed by the defendant to the plaintiff in relation to freight and taxes for logs already supplied (“the Principal Debt”) which, it is said, when put into the equation constituted by the claims, set-offs and cross claims asserted by the parties, would have resulted in a net sum being owed by the defendant to the plaintiff, and which would then have impacted on the interest and costs figures set out in the paragraphs of the Award to which reference has been made. The plaintiff also submits that, not only did the Tribunal fail to determine the amount of the Principal Debt (“the Principal Debt Issue”) but it also failed to decide an issue as to the rate of interest to be awarded on the plaintiff’s counterclaim for freight due after 21 December 2011(“the Freight Interest Issue”).
The basis of the application for the setting aside of the Award is that the Tribunal failed to exercise the authority that the parties had granted to it pursuant to Article 34(2)(a)(iii) of the UNCITRAL Model Law on International Arbitration (“the Model Law”) read with section 3 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”) (which provides that the Model Law shall have the force of law in Singapore) and/or that a breach of natural justice occurred in connection with the making of the Award by which the rights of the plaintiff had been prejudiced, in breach of section 24(
The terms of Article 34 of the Model Law, so far as relevant, read thus:
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Section 24(
The defendant’s position is that the application is in substance a disguised appeal against the substantive findings of the Tribunal which the court should not countenance:
The parties referred to a number of authorities, but there was no real difference in the submissions as to the principles to be applied in an application of this kind, although there was a difference of emphasis, as might be expected.
The authorities are clear in saying that there is no room for the court to interfere with an award on the basis of mistakes made by the arbitrators, whether in determining issues of law or in their function as finders of fact. When parties agree to go to arbitration, they accept, for better or worse, the appointed tribunal and the limitations to the right of challenge that are imposed by the particular law or rules which govern the arbitration in question. The policy which the court adopts is one of minimal curial intervention, and an essentially pro-arbitration approach which reads awards without seeking to construe them as a statute or adopting an overly technical stance, with a view to according them the finality that an arbitration is intended to bring about: see
It is common ground that, where a party challenges an award on the ground of a breach of natural justice, four questions arise, namely: which rule of natural justice was breached; how that rule was breached; the connection between the breach and the making of the award; and how the breach prejudiced the challenging party’s rights:
Whereas Article 34(2)(a)(iii) of the Model Law refers to awards which deal with matters outside the scope of the arbitration, it is also common ground that a tribunal is bound to consider all the issues that are raised by the parties in the reference. To fail to consider an important issue that has been pleaded is a breach of natural justice because, in such a case, the arbitrator would not bring his or her mind to bear on an important aspect of the dispute before the tribunal (
The defendant emphasised the reference made by the Singapore Court of Appeal in
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