CKH v CKG

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 August 2022
• Neutral Citation: [2022] SGCA(I) 6
• Court: Court of Appeal (Singapore)
• Hearing Date: 04 May 2022
• Docket Number: Civil Appeal No 1 of 2022
• Plaintiff Counsel: Hee Theng Fong, Toh Wei Yi, Poon Pui Yee and Leong Shan Wei Jaclyn (Harry Elias Partnership LLP)
• Defendant Counsel: Tan Beng Hwee Paul and Victor Yao Lida (Cavenagh Law LLP)
• Subject Matter: Arbitration,Arbitral tribunal,Jurisdiction,Award,Recourse against award,Remission
• Published date: 02 September 2022

Jonathan Hugh Mance IJ (delivering the judgment of the court):

This is an appeal under Order 21 rule 20 of the Singapore International Commercial Court Rules 2021 against an order of the International Judge (“the Judge”) hearing an application in proceedings in the court below. It has in substance two aspects: first, whether and how far a party may, on a remission under Article 34(4) of the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”) scheduled to the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“the IAA”), go outside the scope of the order for remission; and, second, whether and how far the Judge was correct in his analysis that the appellant was seeking, but should not be permitted, to do this. Both aspects were clearly, comprehensively and, in this court’s view, correctly addressed by the Judge’s judgment from which this appeal is brought and to which reference can be made. Essentially the same submissions as were made below have been repeated by the appellant before this court, and have again been fully answered by the respondent in its submissions. The court does not, in these circumstances, consider it necessary to hear oral arguments on the appeal, or to repeat all that the Judge has said. It proposes to summarise the reasons for dismissing the appeal quite briefly.

The case arises from a strongly contested arbitration, leading to a Final Arbitral Award dated 21 August 2020, corrected by two later Memoranda of Corrections dated 2 October and 5 November 2020 (“the Award”) made by the arbitral tribunal (“the Tribunal”). In previous proceedings to set aside the Award which reached this court in CKH v CKG and another matter [2022] SGCA(I) 4 (“CKH v CKG”), this court upheld, with one presently irrelevant variation, the Judge’s decision that the Award as corrected failed to take into account the existence and quantum of a debt (“the Principal Debt”) and interest owing by the present appellant to the present respondent as at 20 December 2011 in relation to freight and taxes for logs supplied.

Under Article 34(4) of the Model Law, the court had in these circumstances the power to suspend proceedings to set aside the Award “to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside”. The Judge exercised that power and in the Order of Court giving effect to his judgment ordered that “[t]he Remitted Matters shall be remitted to the Tribunal on the Terms of Reference set out in Annex A”. The “Remitted Matters” were debated between the parties and were carefully formulated and defined by the Judge. The recitals in Annex A (“the Recitals”) started by identifying the background to remission as follows:

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C. The Judgment found that there are grounds for setting aside the Affected Portions of the Final Award insofar as the Tribunal did not take into account any sums owed by [CKH] to [CKG] in respect of taxes and freight charges for logs supplied until December 2011 (the “Principal Debt”) along with 2% monthly compound interest on said debt (see [67]), which was common ground between the parties (see [59]), when awarding damages to [CKH] (see [55]). This would affect the sums owing between the parties and could affect the incidence of liability for costs of the Arbitration in consequence (see [60]). D. … E. The Judgment found that, although [CKH] had disputed the exact quantum of and evidence for the Principal Debt in its Reply to the Defence and Counterclaim (see [44]), it did not dispute the existence of, and its liability for, the Principal Debt in its pleadings (see [44]), and conceded its liability for the Principal Debt and its quantum of IDR 53 billion (as calculated by the experts) in its oral opening and closing statements (see [49]-[50]). F. The Judgment found that the Tribunal had made findings that (i) the Principal Debt, of the order of IDR 50 billion as of April 2011, was owed by [CKH] to [CKG], as was common ground between the parties (see [53], [55]); (ii) no payments were made at all after November 2011 to repay this debt (see [53]); and (iii) [CKG] had a remedy for...