Cna v Cnb

• Jurisdiction: Singapore
• Judge: Ang Cheng Hock J
• Judgment Date: 13 August 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1293 of 2020 (Summons No 288 of 2021) and Originating Summons No 1306 of 2020 (Summons No 289 of 2021)

CNA

and

CNB and another and another matter

[2021] SGHC 192

Ang Cheng Hock J

Originating Summons No 1293 of 2020 (Summons No 288 of 2021) and Originating Summons No 1306 of 2020 (Summons No 289 of 2021)

General Division of the High Court

Arbitration — Award — Recourse against award — Setting aside — Time bar for setting aside — Party filing setting-aside application more than three months after receipt of award but within three months of arbitral tribunal's disposition of party's request — Whether party's request had effect of extending three-month time limit for filing setting-aside application — Articles 33(1)(a) and 34(3) UNCITRAL Model Law on International Commercial Arbitration

Arbitration — Award — Time bar for setting aside — Party filing setting-aside application more than three months after receipt of award but within three months of arbitral tribunal's disposition of party's request — Whether party's request had effect of extending three-month time limit for filing setting-aside application — Articles 33(1)(a) and 34(3) UNCITRAL Model Law on International Commercial Arbitration

Civil Procedure — Striking out — Application to strike out application for setting aside of arbitral award — Time bar for setting aside — Party filing setting-aside application more than three months after receipt of award but within three months of arbitral tribunal's disposition of party's request — Whether party's request had effect of extending three-month time limit for filing setting-aside application — Articles 33(1)(a) and 34(3) UNCITRAL Model Law on International Commercial Arbitration

Held, dismissing the applications:

(1) There were two essential issues to be decided: first, whether the two requests in CNA's Application were in substance requests that came within Art 33 of the Model Law; and second, whether CNA's Application extended the time for CND and CNE to make their setting-aside application. In addition, CNB and CNC had raised the preliminary issue of whether the arbitral tribunal's decision on CNA's Application was a procedural order, such that the court should defer to it: at [35] and [37].

(2) In relation to the preliminary issue, the arbitral tribunal's decision on CNA's Application was not procedural in nature. The essence of a procedural order was that it was one which the tribunal could revisit. However, a decision on a request for the interpretation or correction of an arbitral award was not one that the tribunal could revisit, as it would by then be functus officio, save for the limited exception stipulated in Art 33 of the Model Law. Further, the rules of the arbitration were clear that any decision to correct or interpret the Partial Award had to take the form of an addendum to the Partial Award, and would constitute part of the Partial Award. Finally, the approach of deference suggested by CNB and CNC would lead to the unwarranted result that arbitral tribunals would have the ability to insulate their awards from any court review by dismissing requests for interpretation and/or correction three months after the issuance of their awards: at [39] to [42].

(3) On the first essential issue, CNA's request for the interpretation of the declaratory relief was not one that in substance fell within Art 33(1) of the Model Law. The issue in relation to which the declaratory order was sought was one that was squarely contested by the parties in the arbitration. CNA itself had dealt with this declaration being sought against it. The declaration clearly and logically applied to CNA as well, not just CND and CNE only. There was no reasonable basis for CNA to have been confused as to whether the declaration would apply to it. The request for interpretation was therefore not in substance a request to remove any ambiguities or uncertainties: at [46], [47], [49] and [50].

(4) However, there was a proper basis under Art 33 of the Model Law for CNA's request for the correction of the order for an account of profits. Throughout the arbitral proceedings, the position taken by CNB and CNC as to whether they were seeking an account of profits against CNA could be fairly described as unclear. Indeed, the final position of CNB and CNC, indicated through certain representations by their counsel, was that they were not pursuing an order for an account of profits against CNA. Further, there was nothing in the Partial Award explaining why an account of profits had been ordered against CNA. It would therefore have appeared to CNA that the tribunal had mistakenly included in the Partial Award the abandoned remedy of an account of profits against CNA: at [55] and [56].

(5) As for CNB's and CNC's argument that any such mistake was nonetheless not a correctable error under Art 33(1)(a) of the Model Law, which only allowed requests for correction of “any errors in computation, any clerical or typographical errors or any errors of similar nature”, the starting point in analysing Art 33(1)(a) had to be the language used therein, and not cases on the “slip rule”, which was a rule of common law dealing with court proceedings that allowed clerical rectifications of accidental slips or omissions: at [57] and [58].

(6) The potential mistake by the tribunal in including an order for CNA to account for profits was not computational, typographical or clerical. However, it did fall into the category of “any errors of similar nature”, which had to be construed using the ejusdem generis rule. What characterised the more specific errors – computational, clerical and typographical – was that these were all errors in the nature of inadvertent acts or omissions by the arbitral tribunal, which if corrected would not affect the substance of what the tribunal intended to decide. The potential mistake by the tribunal was an error of this nature, and so CNA's request for clarification did fall within Art 33(1)(a) of the Model Law: at [59] to [62].

(7) As for the second essential issue, CNA's Application had extended the time for CND and CNE to make their setting-aside application. Article 34(3) allowed for the three-month window for a setting-aside application to be dated from the date of disposal of “a request [which] had been made under Article 33”. The use of the words “a request”, without specifying which party made that request, indicated that a request by any party to the arbitration would extend the time for all parties to make their application to set aside the award. Further, if CNB and CNC were right in arguing that CNA's Application could not extend the time for CND and CNE to make their setting-aside application, that would entail the possibility of different timelines and different applications to set aside different versions of the arbitral award. This would provide an unnecessary complexity to the process of setting aside, which was unprincipled, impractical and undesirable: at [65] and [66].

(8) Accordingly, CNA, CND and CNE were not time-barred from making their applications to set aside the Partial Award: at [69].

Case(s) referred to

BRQ v BRS [2019] SGHC 260 (refd)

BRS v BRQ [2021] 1 SLR 390, CA (folld)

PP v Lam Leng Hung [2018] 1 SLR 659 (folld)

Republic of India v Vedanta Resources plc [2021] 2 SLR 354 (refd)

Tay Eng Chuan v United Overseas Insurance Ltd [2009] 4 SLR(R) 1043; [2009] 4 SLR 1043 (refd)

Facts

In arbitral proceedings under the Arbitration Rules of the International Chamber of Commerce (the “ICC”), “CNA”, “CND” and “CNE” were found liable to “CNB” and “CNC”. The original hard copy of the arbitral tribunal's partial award on liability (the “Partial Award”) was received by CNA, CND and CNE on 26 June 2020.

On 24 July 2020, CNA made an application to the Secretariat of the ICC containing two requests (“CNA's Application”). First, CNA sought an interpretation of a declaratory relief contained in the Partial Award, through clarification of whether the declaratory relief applied only to CND and CNE, or to CNA as well. Second, CNA sought a correction in respect of an order against it for an account for profits set out in the Partial Award; it argued that this order had to have been framed mistakenly by the tribunal because CNB and CNC had never sought an accounting of profits from CNA. CNA's Application was dismissed by the arbitral tribunal on 25 September 2020.

On 18 December 2020, CNA filed an originating summons to set aside the Partial Award. CND and CNE followed suit on 23 December 2020 with a separate originating summons seeking the same.

In turn, CNB and CNC filed the present applications to strike out the originating summonses on the basis that they were filed out of time. Article 34(3) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) provided that an application for setting aside had to be made within three months of receiving an award, or, if a request had been made under Art 33 of the Model Law (which included requests for correction and/or interpretation), within three months of the disposal of that request. CNB and CNC argued that CNA's Application was not in substance a request for correction or interpretation under Art 33 of the Model Law. Accordingly, the extension of the three-month window contemplated in Art 34(3) of the Model Law could not apply. CNA, CND and CNE had to file their setting-aside applications within three months of receiving the original hard copy of the Partial Award (on 26 June 2020), which they had failed to do. In any event, CND and CNE could not “piggy back” on CNA's Application for an extension of time.

In response, CNA, CND and CNE argued that CNA's Application did in fact fall under Art 33 of the Model Law. Therefore, per Art 34(3) of the Model Law, the three-month window was to run from the arbitral tribunal's dismissal of CNA's Application (25 September 2020). The setting-aside applications were made within that three-month window, and were thus not time-barred.

Legislation referred to

International Arbitration Act (Cap 143A...