In the recent case of Twarit Consultancy Services Pte Ltd and anor v GPE (India) ltd and ors [2021] SGHC(I) 17, the Singapore International Commercial Court dismissed an application to set aside an arbitral award made in consolidated arbitrations conducted under the rules of the Singapore International Arbitration Centre (the “Award”), reinforcing the Singapore Courts’ commitment toward upholding arbitral awards in the absence of any clear grounds to set them aside.
A team from Clasis LLC, led by Prakash Pillai and Junxiang Koh, and including Senior Associate Charis Toh, acted for the successful Respondents in the hearing before the Singapore International Commercial Court.
The facts
- Pursuant to 2 Share Subscription and Shareholders Agreements (“SSHAs”), governed by Indian law, by which the Respondents subscribed to shares in Haldia Coke and Chemicals Private Ltd (“Haldia”) in about 2010 – 2011. The 2nd Applicant was party to both SSHAs but not the 1st Applicant.
- Subsequently, when the Respondents wanted to exit their investment, the Applicants and Respondents entered into a set of Share Purchase Agreements (“SPAs”) for the sale of the Respondents’ shares in Haldia to the Applicants.
- At the same time, the parties entered into a “First Letter Agreement” which provided for certain outcomes in the event of a breach of the SPAs by the Applicants. Specifically, the First Letter Agreement provided that if the Applicants failed to make payment under the SPAs, certain of the Respondents’ rights under the SSHAs would be reinstated, and the Applicants would be liable to pay the Respondents sums computed in the manner provided for in the First Letter Agreement.
- The SPAs and First Letter Agreement were similarly governed by Indian law.
- The Applicants failed to make full payment to the Respondents under the SPAs, and the Respondents commenced SIAC arbitration proceedings, claiming damages under the SPAs and the First Letter Agreement (the “Arbitration”).
- At the conclusion of the Arbitration, the Tribunal found in favour of the Respondents.
The Setting Aside Application
Before the Singapore International Commercial Court, the Applicants applied to set aside the Award. In this regard, the Applicants argued that on a construction of the relevant contracts, upon breach of the SPAs, the Respondents’ rights under the SSHAs were “revived”, and therefore, the parties’ real dispute fell under the SSHAs and not the SPAs or First Letter Agreement (what the Court referred to as the “Revival Argument”). The Applicants further argued that the transactions under the relevant contracts were illegal under Indian law, and the arbitration agreements in the SPAs and First Letter Agreement were void.
Separately, the Applicants also argued that the Tribunal’s refusal of the Applicants’ applications for (a) an adjournment of the final evidentiary hearing of the arbitration; and (b) the exclusion of the evidence of the Respondents’ Indian law expert, were in breach of the rules of natural justice. The Applicants also argued that the Tribunal’s award of damages was in breach of the rules of natural justice, ostensibly on the basis that the point had not been argued before the Tribunal.
On the back of the above arguments, the Applicants sought to set aside the Award, originally relying on the following 5 grounds:
- That the Award dealt with a dispute not contemplated by or not falling within the terms of the submission to arbitration (Article 34(2)(a)(iii) of the UNCITRAL Model Law);
- That the composition of the tribunal and/or the arbitral procedure was not in accordance with the agreement of the parties (Article 34(2)(a)(iv) of the UNCITRAL Model Law);
- That the Applicants were unable to present their case (Article 34(2)(a)(ii) of the UNCITRAL Model Law);
- That there was a breach of the rules of natural justice by which the Applicants’ rights were prejudiced (S. 24(b) of the International Arbitration Act (“IAA”)); and
- That the Award was in conflict with the public policy of Singapore (Article 34(2)(b)(ii)) of the UNCITRAL Model Law).
In the course of submissions, the Applicants abandoned the public policy limb of their application, and introduced a new ground based on arbitrability of the dispute.
Applicants’ conduct of the setting aside application
1 week before the original date of the hearing, the Applicants’ then-solicitors applied to discharge themselves as solicitors for the Applicants, on the basis that their invoices had not been paid. The Applicants then applied for adjournment of the hearing, saying that they needed time to engage new solicitors. The Court granted a 4-week adjournment but cautioned that this were to be no further delays.
Just 1 day before the adjourned hearing was due to take place, the Applicants’ new solicitors filed a notice of appointment, and indicated that they would be applying for a further adjournment of the hearing. The Court refused the further adjournment, finding that there was deliberate delay on the part of the Applicants. The hearing therefore proceeded, with the Applicants being given leave to submit limited written replies after the hearing.
Decision of the Singapore International Commercial Court
The Singapore International Commercial Court dismissed the Applicants’ setting aside application in its entirety. Its reasons are briefly summarised below.
Excess of Jurisdiction & Composition of the Tribunal / arbitral procedure not as agreed
As set out above, the Applicants had relied on the “Revival Argument” to argue that the dispute was outside the scope of the SPAs and First Letter Agreement.[1] This was rejected by the Court. After considering the terms of the various contracts, the Court found that the Respondents’ claim for damages for breach of the SPAs, which was disputed by the Applicants, plainly fell within the scope of the arbitration clauses in the SPAs and the First Letter Agreement.
The Court also took into account the fact that the Applicants’ arguments on “scope” had all been run before in the context of the arbitration below, and that the Applicants were simply attempting a back-door appeal on the merits.
Non-arbitrability of the Respondents’ claims
Briefly, the concept of “arbitrability” concerns whether a particular type of dispute can be settled by arbitration, or should be left to the domestic courts. An example of a non-arbitrable dispute in Singapore would be clawback claims brought by the liquidators of an insolvent company.
In the setting aside application, the Applicants argued that because Haldia was in insolvency proceedings in India, the outcome of the dispute would affect the interests of third parties beyond the immediate parties e.g. the creditors of Haldia. However, this argument was rejected by the Court, which took into account the fact that Haldia was not a party to the arbitration, and found that its insolvency was irrelevant to the issues in dispute.
The Applicants had also argued that the arbitration concerned issues of illegality under Indian law, which the Applicants argued were not arbitrable in Singapore. This argument was rejected by the Court, which held that such disputes, insofar as they related to the contractual liability of parties under a civil contract, were capable of arbitration and were routinely subject to arbitration.
Inability to present case and breach of the rules of natural justice
As summarised above, the Applicants had complained of various procedural decisions made by the Tribunal in the arbitration e.g. its refusal to adjourn the final hearing below, arguing that the rules of natural justice had been breached. In its decision, the Court noted that the threshold for a finding of breach of natural justice is a high one, and it is only in “exceptional cases” that a court will find that threshold crossed. It held that on the facts, what the tribunal did fell “within the range of what a reasonable and fair-minded tribunal in those circumstances might have done”. Amongst other things, the Court found that:
- The Applicants’ application for an adjournment of the final arbitral hearing was made at the eleventh-hour, in circumstances where the hearing dates had been fixed some 3-4 months prior, and the Tribunal’s decision to refuse the adjourn was well within its discretion and consistent with the fair conduct of the arbitral proceedings. Further, on the facts, the Applicants suffered no prejudice by the refusal of the adjournment, as their counsel had ample time to prepare for and conduct the final hearing.
- The Tribunal’s dismissal of the Applicants’ application to exclude the evidence of the Respondents’ Indian law expert was similarly within the Tribunal’s discretion and there was no prejudice to the Applicants in the conduct of their case.
With respect to the Applicants’ argument in relation to the Tribunal’s award of damages, this argument was unequivocally dismissed by the Court, which found that the issue was part of the pleadings, evidence and submissions. The Court held that Tribunal had considered and determined the claim as presented to him, and whether or not he was correct in that determination is not in issue in the setting aside application.
Conclusion
The Singapore International Commercial Court’s decision underscores Singapore’s commitment to the policy of minimal curial intervention and respect for the arbitral process. Arguments on scope, arbitrability and natural justice will be carefully scrutinised against the background of vigilance against disappointed parties attempting a “back-door” appeal. In line with Singapore’s reputation for judicial efficiency, the Court will also not allow its processes to be abused in a manner such as to delay or drag-out setting aside proceedings.
[1] In a parallel argument, the Applicants argued that because the Tribunal had been constituted under the SPAs and First Letter Agreement, it was not in accordance with the “correct’ arbitration agreement (being, on the Applicants’ case, the SSHAs).