AKN and another v ALC and others and other appeals

Sundaresh Menon CJ (delivering the judgment of the court):

[2] Shortly after the Main Judgment was issued on 31 March 2015, we issued the following direction on 1 April 2015:

[3] Each party duly filed a set of written submissions on 16 April 2015. The Purchasers sought the following consequential orders:

(a) An order identifying the specific paragraphs of the Award that had been set aside by us pursuant to the Main Judgment.

(b) A declaration that where specific parts of the Award had been set aside on the grounds of a breach of natural justice, that:

(i) the issues or claims in relation thereto remain to be determined between the parties in the arbitration given that by reason of that part of the award having been set aside, there was no longer a valid and binding determination or award under s 19B of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”); and

(ii) the Tribunal accordingly retained jurisdiction to make a fresh determination or award in respect of such matters.

(c) Alternatively:

(i) that the issues in question be remitted by this Court to the Tribunal for its consideration; or

(ii) that a consequential order under s 8(2) of the IAA be made (although it subsequently became apparent that it was an order under s 8A(2) that the Purchasers were seeking, in effect to extend any applicable limitation period by the time that had elapsed between the commencement of the arbitration and the Main Judgment).

(a) An order specifying the portions of the Award that had been set aside as a result of the Main Judgment; and

(b) A clarification that certain orders made by the Judge (on 17 November 2014 in OS No [L]) remained in force.

[7] We wrote to the parties on 25 May 2015 indicating our determination in respect of some of the matters. The relevant part of our letter reads:

[8] In the same letter, we also directed that the parties, save the Funds, file further submissions on four particular points. These points arose out of the application made by the Purchasers for the declarations or orders that we have summarised at [3] above. The relevant portion of the letter reads:

[9] The parties, except for the Funds which were no longer directly involved in the proceedings, duly complied with this and filed written submissions on 24 June 2015. The parties appeared before us for a further hearing on 12 August 2015, at the conclusion of which we reserved judgment, which we now deliver.

[10] Of the various questions posed, only one received a common answer. This was the third, namely whether the court, after having set aside an arbitral award, has the power to refer matters to arbitration before a new tribunal. All the parties agreed that the court has no such power, citing BLC and others v BLB and another [2014] 4 SLR 79 (“BLC”) at [119] where this court noted as follows:

[11] In the light of the settled position we say no more about this, save to note that it was not suggested by parties, nor is it our view, that the court has some power, beyond or aside from Art 34(4) of the Model Law, to remit matters to a tribunal in cases governed by the IAA or the Model Law. Hence, any issue of remitting an award to a tribunal must be situated within the context of that provision.

[12] In most other respects, the parties (with the Purchasers on one side and the Secured Creditors and Liquidator on the other) took opposed positions. These differences pertained to (a) the effect of setting aside the Award and (b) the question of remission to the Tribunal.

[13] In respect of the former, at some risk of oversimplifying the submissions, the Purchasers take the view that once a court has set aside an award, it ceases to exist. From this, the Purchasers develop their case by contending that arising from the fact that the award no longer exists, it should be treated as though the award had never been made and therefore, the jurisdiction of the tribunal revives, whether on the direction of the court or otherwise. On this basis, they contend that in such circumstances, the parties may canvass again the matters that had been the subject of the award before the same tribunal. As a result, the Purchasers’ primary “prayer” was for a declaration that various issues, notably those which were the subject of those parts of the Award that we had set aside, remain outstanding and unresolved and therefore that the Tribunal retains the jurisdiction to deal with these issues. Their secondary “prayer” was for an order for remission. As against this, the Liquidator and the Secured Creditors argue that when an arbitral award has been set aside, although the award no longer has any legal effect, the tribunal’s mandate, having been exhausted upon the making of the award, does not revive by operation of law save possibly in the limited circumstances provided for in the IAA (read with the Model Law) in the context of remission and so the tribunal remains functus officio. They contend that the fact that the award is invalidated upon its being set aside is a separate matter altogether from what consequences should flow from the fact that proceedings have in fact been held and did in fact result in an award, even if that award has since been set aside.

[14] In respect of remitting the matter back to the Tribunal, which, as mentioned, was framed as an alternative submission, the Purchasers argue that we could and should remit matters to the Tribunal even after having set aside portions of the Award. The Liquidator and the Secured Creditors, on the other hand, argued that we have no power to do so, and further, even if we did, this was not an appropriate case for remission.

[15] We propose to deal with the issues that remain to be determined as follows:

(a) First, can the court remit any matter, which is the subject of an award that has been set aside (in whole or in part), to the same tribunal that made the award?

[16] Although we have framed the issues in broad terms, we consider them in the context of the matters before us and by reference to the submissions of the parties. Furthermore, although we refer generally to “remission” and “setting aside”, our analysis in this judgment is confined to cases governed by the IAA and the Model Law.

[17] By “remission”, we mean the court referring certain matters arising from an arbitral award back to the very same arbitral tribunal which made the award. The relevant provision in the IAA – or specifically in the Model Law – which enables this is Art 34(4), which reads:

[18] It is common ground that this is the only express provision in the Model Law or the IAA that permits the court to remit an award and it is to the very same tribunal which made that award. The effect of remission is to confer further jurisdiction on that tribunal, enabling it to consider the matters remitted (see, eg, David Sutton, Judith Gill and Matthew Gearing, Russell on Arbitration (Sweet & Maxwell, 23rd Ed, 2007) at para 8–175). Such conferment is necessary because in the ordinary course of events, upon having issued a final and binding award in respect of any given matter, a tribunal would have exhausted its mandate in respect of those matters and would no longer be able to vary, review or amend its award. This much is made clear in s 19B of the IAA, which reads:

[19] This position is also reflected in Art 32 of the Model Law at least insofar as the final award terminating the arbitration is concerned. That provides:

[20] As is evident from s 19B(2) of the IAA and Art 32 of the Model Law, Art 34(4) is the only avenue by which the court may direct the tribunal to review its award. Art 33, which is also referred to in s 19B(2), pertains generally to the correction of typographical or computational errors. If there was any lingering doubt as to whether there might be some form of residual power vested in the courts beyond Art 34(4) to remit matters to the same tribunal in relation to matters governed by the IAA or the Model Law, such doubt cannot survive Art 5, which expressly limits the extent of the court’s power to intervene in an arbitration as follows:

[21] The effect of Art 5, as noted by us in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal [2013] 1 SLR 125 at [36] (citing with approval Howard M Holtzmann & Joseph E Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Kluwer Law and Taxation Publishers, 1989) (“Holtzmann & Neuhaus”) at p 216), is to “confine the power of the court to intervene in an arbitration to those instances which are provided for in the Model Law and to ‘exclude any general or residual powers’ arising from sources other than the Model Law” (see also NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 2 SLR(R) 565 at [22]–[23]). Article 5 has also been explained as guaranteeing the “reader and user that he will find all instances of possible court intervention in [the Model Law], except for matters not regulated by it” (see UNCITRAL Model Law on International Commercial Arbitration: note by the Secretariat (UN Doc A/CN.9/309), which was issued following the adoption of the Model Law by the UNCITRAL on 21 June 1985, at para 16).

[22] As to the ambit of the court’s power to remit matters to the same tribunal, two things are clear. First, as we have noted at [18] above, the only express source of such power is found in Art 34(4). Second, Art 34(4), on its face, confers a limited power. In particular, Art 34(4) on its terms does not empower the court to remit any matter after setting aside an award.

[23] Counsel for the Purchasers, Mr Andre Yeap SC (“Mr Yeap”), in his written submissions, contended that Art 34(4) “implicitly recognises” the court’s power to remit matters even after it has set aside the award. He elaborated on this during the oral arguments by stating that there are no legal limits to the court’s power to remit pursuant to Art 34(4); rather, all questions of remission, whether before or after setting aside, are matters that fall within the general discretion of the court.

[24] He raised three main points in support of his argument:

(a) First, the history of Art 34(4) was said to confirm this approach.

(b) Second, the express language of Art 34(4) which “is an enabling provision rather than a limiting provision” was said to confirm this approach.

(c) Third, it was said that vesting a more expansive power to remit in the courts “furthers the policy [of] minimum curial intervention by leaving matters as far as possible to the [tribunal]”.

[25] We deal briefly with the latter two points first. In relation to the second point, although Art 34(4) might be enabling or permissive (presumably with particular emphasis on the word “may” contained in Art 34(4)) in that it enables the court to remit matters in certain circumstances, we cannot see how this advances Mr Yeap’s position. The extent to which it enables the remission must be as prescribed by the words of the section. In this regard, it is evident that to avail itself of this power, the court must be satisfied that it is appropriate to suspend the setting aside proceedings in order to give the tribunal an opportunity to take such steps as may be required to eliminate the grounds for setting aside. This is plainly a curative provision which enables the court, faced with the fact there has been some defect which could result in the award being set aside, to take a course that might forestall that consequence. Though this is discretionary, we see no basis for concluding just from the use of the word “may” that there are no limits to the power to remit that is conferred by the provision.

[26] As to the third point, the argument that an expansive reading is cognisant with the policy of minimal curial intervention is, with respect, misplaced. First, a policy of minimal curial intervention nonetheless calls for such intervention whenever it is warranted; and where it is warranted, there is no basis for suggesting that the court should seek somehow to negate or mitigate the effects of its intervention by referring the matter back to the same tribunal. Aside from this, the argument seems to us to be internally inconsistent. An expansive reading of Art 34(4) would mean more intervention – not less – for the simple reason that the court would be able to confer further jurisdiction on tribunals in more cases and this would almost necessarily be contrary to the legitimate expectations of at least one of the parties, namely the one with a grievance that has been found to be valid. Finally, in our judgment, the expansive interpretation that Mr Yeap urged upon us was simply incapable of being applied without doing violence to the language used in Art 34(4) and indeed, as we shall momentarily see, without breaking faith with the intent of the drafters of the Model Law.

[27] We turn now to the history of Art 34(4). In support of his contention that the history of Art 34(4) spoke in favour of an expansive approach, Mr Yeap placed particular emphasis on an excerpt from the work of Mr Chan Leng Sun SC which, according to Mr Yeap, suggests that the travaux préparatoires of the Model Law indicate that Art 34(4) “was intended to preserve the national courts’ option to remit an award where it was deemed appropriate”: see Chan Leng Sun SC, Singapore Law on Arbitral Awards (Academy Publishing, 2011) at para 6.219. The full paragraph from the work in question reads:

[28] The portion of the quote that we have highlighted in bold was emphasised by Mr Yeap in his written submissions. However, later in the same paragraph, which, to be fair, was also excerpted in Mr Yeap’s written submissions, it becomes clear from the portions in bold italics that the “explicit intent” of Art 34(4) was that remission was conceived as an alternative to setting aside (see the UNCITRAL Analytical Commentary extracted in the previous paragraph).

[29] Turning to the history of Art 34(4), it is equally difficult to find support for Mr Yeap’s proposition. In one of the earlier drafts, the equivalent provision, which, at the time, was numbered Art 41(4), read (excerpted in Holtzmann & Neuhaus at p 933):

[30] When this draft was reviewed by the UNCITRAL Working Group on International Contract Practices (“the Working Group”) in its fifth session, the following was noted (Report of the Working Group on International Contract Practices on the Work of its Fifth Session, UN Doc A/CN.9/233 at paras 190–193, excerpted in Holtzmann & Neuhaus at pp 936–937):

[31] The later draft (excerpted in Holtzmann & Neuhaus at p 938) read:

[32] This, in turn, was reviewed by the Working Group which noted the following in its sixth session (Report of the Working Group on International Contract Practices on the Work of its Sixth Session, UN Doc A/CN.9/245 at paras 154–155, excerpted in Holtzmann & Neuhaus at p 940):

[33] Based on this brief venture into the history of Art 34(4), not only can it be said that there is no support for the expansive approach proffered by Mr Yeap, it is apparent that the power to remit was conceived of as an alternative to setting aside. This is also supported by the views of certain commentators, to which we refer below (at [37]).

[34] We therefore disagree with Mr Yeap on this point. In our judgment, the court has no power to remit an award after it has been set aside. Not only is this founded on the plain words of Art 34(4), but it also accords with good sense. Remission is a curative option that is available to the court in certain circumstances where it considers that it may be possible to avoid setting aside the award. For that reason, remission, in the correct sense, will always be to the same tribunal that made the award that is under the consideration of the court. For completeness, we briefly consider two decisions of the High Court that might be thought to stand for a different understanding and in particular to support the existence of a power to remit an award after it has been set aside.

[35] First, in Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010] SGHC 80 (“Front Row”), the High Court set aside part of an award and thereafter “ordered that the part of the [a]ward so set aside be tried afresh by a newly appointed arbitrator” (at [54]). In our judgment, this was not so much an order to remit to a new arbitrator as it was a consequential order to the parties to commence fresh arbitration (see also, Sundaresh Menon (ed), Arbitration in Singapore: A Practical Guide (Sweet & Maxwell, 2014) at para 14.094). It should be noted that in Front Row, it was clear that the arbitrator had wholly failed to consider an issue because he thought it had been abandoned. It was therefore the case that that part of the dispute had never in fact been determined on the merits. Moreover, the matter was not being referred back to the same tribunal and hence it was not an issue of remitting the award at all.

[36] Second, in Kempinski Hotels SA v PT Prima International Development [2011] 4 SLR 633, the court set aside certain portions of an award and thereafter purported to remit certain matters to the same tribunal that had made the award. However, the parties in that case were agreed that the arbitrator was not functus officio (at [115]). The court also noted (at [117]) as follows:

[37] In the paragraph that preceded this extract (namely, [116] of the judgment), the court cited a quote from Robert Merkin and Johanna Hjalmarsson, Singapore Arbitration Legislation: Annotated (Informa, 2009) at p 118 as follows:

The court, having cited this passage, did not express any disagreement with the view – which we have emphasised – that remission is an alternative to setting aside.

[38] It is difficult to discern the exact basis of the decision to “remit” the matter. Perhaps, it proceeded on the basis that there was no reason to constitute a new tribunal, and that the matter could be heard by the same arbitrator (see [115]–[117] of the judgment). Further, the point that remission could not be ordered after setting aside might have been missed because, as we have noted, the parties had agreed that the arbitrator in that case was not functus officio. In any event, if the judgment is understood as standing for the proposition that remission may be ordered after setting aside, then it is incorrect and should be regarded as overruled at this point.

[39] We accordingly hold on the first issue, that remission is a carefully defined concept in the IAA (and Model Law), and that it operates as an alternative to setting aside in the manner we have described at [25] above. In this case, as we have already upheld the setting aside of certain portions of the Award, the question of remission does not and, for that matter, cannot arise. On this basis, at least the alternative relief sought by Mr Yeap, which we have summarised at [3(c)(i)] above, is not available. We deal with the limitation period point (summarised above at [3(c)(ii)]) below (at [64]–[67]).

[40] There remains Mr Yeap’s primary prayer, which is for the declaration at [3(b)] above, and which seeks, in effect, to establish that because the Award has been set aside, at least in part, there remains an obligation upon the parties, pursuant to their arbitration agreement, to submit the affected matters in dispute to arbitration before the Tribunal. It seems to us that this raises the question as to what the various effects are, of a court’s decision to set aside an award, upon:

(a) the award itself;

(b) the arbitration agreement; and

(c) the mandate of the tribunal which made that award.

[41] The immediate effect of setting aside an award is generally undisputed – the award ceases to have legal effect at least in so far as its status in this jurisdiction is concerned. The Purchasers contend that beyond this, the arbitration revives at the point immediately before the award was made. On this basis, would the parties be able to return to the same tribunal to “reopen” and “reargue” the portions of the award that had been set aside? If that were the case, there would seemingly be no need for an order remitting the matter to the tribunal for reconsideration in the circumstances we have outlined at [25] above. Perhaps, this was why Mr Yeap sought remission as an alternative to his primary position.

(a) Does this mean that following any successful setting aside application, the parties may return (or be compelled to return) to arbitration? And if so, is it simply a matter of the jurisdiction and mandate of the tribunal, whose award has been set aside, reviving whether by operation of law or otherwise?

(b) Further, what is the relevance of finality in such proceedings (whether as a matter of res judicata or abuse of process)?

In this section, we focus on the former; the latter we discuss in the next section.

[44] In our judgment, the starting point of our analysis on the former question takes us back to what we have said in the context of the power to remit. As noted at [18] above, where the power to remit is exercised by the court, its effect is to confer jurisdiction on the tribunal to consider the matter afresh to the extent permitted by the remitting order. But for such conferment, the tribunal would have no jurisdiction to do so because once it has rendered an award, it has no further jurisdiction, power or mandate to deal with the matters addressed in the award. This is also the effect of s 19B(2) of the IAA and Art 32(3) of the Model Law.

[45] This point was also carefully considered by Belinda Ang Saw Ean J in L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd [2014] 1 SLR 1221 (“L W Infrastructure (HC)”) where she referred to the decisions of the Supreme Court of Western Australia in Alvaro v Temple [2009] WASC 205, of the English Court of Appeal in Interbulk Ltd v Aiden Shipping Co Ltd (The Vimeira) (No 1) [1985] 2 Lloyd’s Rep 410, and of the Supreme Court of New South Wales in Mark Blake Builders Pty Ltd v Davis (NSW 9403294) (“Mark Blake”). She referred to an extract at p 19 of Mark Blake (at [41]), the extract of which reads as follows:

[46] She then continued at [42]:

[47] In our judgment, this is correct and it is entirely consistent with the views we have taken of the power to remit at [25], [34] and [39] above. Because the tribunal is conferred fresh or further jurisdiction by the court to reconsider matters that it might have already dealt with, the extent of such jurisdiction depends on the terms of the court’s order. We note in passing that, at least in the context of the Arbitration Act (Cap 10, 2002 Rev Ed), this was also the view taken in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 at [27], where this court noted as follows:

[48] If this is the position where the court determines, in the context of an application to set aside an award, that there is some remediable defect in the award which is capable of being cured by an order to remit the award in lieu of having to set it aside (see the extract from the UNCITRAL Analytical Commentary quoted at [27] above), then does the analysis change where the defect is not “remediable” but is more serious so much so that the award is not amenable to an order of remission for reconsideration but must instead be set aside? Mr Yeap’s submission is that such indeed is the case, so that where the defect is sufficiently serious, the mandate of the tribunal is wholly restored and revived, without the need for any order of the court and without any limit or constraint. In short, if the defect is sufficiently serious, then framing Mr Yeap’s submission in the words of Belinda Ang J (see [46] above), there would be a “general entitlement on the part of the tribunal to revisit issues and decisions carte blanche”.

[49] This is plainly counter-intuitive and we agree with Belinda Ang J who observed in L W Infrastructure (HC) at [42] that this “would appear rather odd”. In our judgment, Mr Yeap is wrong in his submission that the effect of setting aside an award is to wholly restore and revive the tribunal’s jurisdiction. It is true that the effect of setting aside an award is that the award ceases to have any legal effect, at least in the jurisdiction of the seat court. But the fact that the award is annulled or ceases to have legal effect or even existence is a different matter from the question of the tribunal’s mandate and also from the status of the arbitration agreement. The tribunal’s mandate, as noted above, ends with the making of its award unless it is restored pursuant to an order remitting the award for the further consideration of the tribunal.

[50] Where a final award is made, this consequence is expressly provided for in Art 32(3) of the Model Law, subject only to the exceptions that have been expressly mentioned there. This is what is meant by the expression that the tribunal is functus officio. This too was explained by Belinda Ang J in L W Infrastructure (HC) at [28]–[29]. And where a final award is made in respect of some matters only, then the effect is the same in relation to those matters by virtue of s 19B(2) of the IAA. This was described as “partial functus officio” in L W Infrastructure (HC) at [32].

[51] There is simply nothing to warrant the conclusion that where an award has been set aside, the tribunal which made that award would somehow resume the ability and mandate to determine afresh the matters that had been dealt with in the award. But, as alluded to above, this goes to the mandate of that particular tribunal. The fact that the award has been set aside would not, in and of itself, affect the continued validity and force of the arbitration agreement between the parties, save in the situation where the award was set aside on the ground that there was no arbitration agreement between the parties. In L W Infrastructure (HC), Belinda Ang J described this as “Situation 2” and observed as follows (at [48]):

[52] We agree with this analysis. But save in this situation, the arbitration agreement will generally survive the setting aside of an award. On this basis, it may be open, subject to certain other limitations, to which we will briefly turn, for a party which has successfully obtained an award in the arbitration and then seen that set aside by the court, to start a fresh arbitration. This follows given that:

(a) The dispute has not yet been resolved since the award has been set aside; and

(b) The arbitration agreement remains binding on the parties as to how they will resolve their disputes.

[53] This much is also reflected in the views of the academic commentaries insofar as they have dealt with the subject at all. We mention here just some of them:

(a) Nigel Blackaby, Constantine Partasides, et al, Redfern and Hunter on International Arbitration (Oxford University Press, 2009) state at 618–619:

(b) Julian Lew, Loukas A Mistelis and Stefan Michael Kröll, Comparative International Arbitration (Kluwer, 2003) state as follows at Chapter 25:

(c) Gary B Born, International Commercial Arbitration Vol III (Wolters Kluwer, 2nd Ed, 2014) (“Born”) states as follows at p 3392:

(a) It is possible that a limitations defence might have accrued by the time the fresh set of proceedings is commenced. This possibility also has been alluded to in some of the academic commentaries that we have referred to above. We note that it is possible for this to be addressed in appropriate circumstances pursuant to s 8A(2) of the IAA, which empowers the court in the exercise of its discretion to extend time for the commencement of proceedings by excluding from consideration the period between the commencement of the arbitration and the setting aside of the award. We comment further on s 8A(2) below (at [64]–[67]).

(b) We have said that the arbitration agreement will generally survive the setting aside of the award. This would entail, however, the recommencement of fresh arbitration proceedings and in general, one would expect a new tribunal to be constituted. It is of course possible for both parties to agree to reconstitute the previous tribunal as the new one. But in the absence of such agreement, there remains the possibility that objections might yet be taken by one of the parties to any attempt by the other to re-appoint a member of the previous tribunal, on the grounds that there exist justifiable doubts as to the impartiality of the prospective appointee by reason of his or her prior involvement in the matter and in the award that has been set aside. This will plainly be a fact-sensitive inquiry and we say no more about this.

(c) We think it is inevitable that in attempting to commence a fresh arbitration, consideration will have to be given to the issue of res judictata. We deal with this in the next section of this judgment.

[55] We recently had the occasion to deal with the doctrine of res judicata and abuse of process in The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] SGCA 50 (“TT International”). We noted there that the underlying policy is that “litigants should not be twice vexed in the same matter, and that the public interest requires finality in litigation” (at [98]). We also dealt with the three “res judicata principles” – cause of action estoppel, issue estoppel and the “extended” doctrine of res judicata – against the backdrop of the decision of the UK Supreme Court decision in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 (“Virgin Atlantic”) (TT International at [99]–[103]). In particular, and of relevance to this matter, we explained the “extended” doctrine of res judicata as follows (TT International at [101]):

[56] The “extended” doctrine of res judicata, which derives from Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 (see TT International at [101]), has been acknowledged in Singapore to be part of the doctrine of the abuse of process (see Ching Mun Fong (executrix of the estate of Tan Geok Tee, deceased) v Liu Cho Chit and another appeal [2000] 1 SLR(R) 53 at [22]–[23]; Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 at [51]–[53]; Zhang Run Zi v Koh Kim Seng and another [2015] SGHC 175 at [59]–[60]; and Tan Bee Hoon (executrix for the estate of Quek Cher Choi, deceased) and another v Quek Hung Heong and others [2015] SGHC 229 at [18]–[23]).

[57] Just as finality is of significance to the courts, so too is it of importance to arbitration. Thus, the courts will typically not rehear matters that have already been determined in arbitration (see, eg, Econ Piling Pte Ltd and another (both formerly trading as Econ-NCC Joint Venture) v Shanghai Tunnel Engineering Co Ltd [2011] 1 SLR 246 at [37]; s 19B of the IAA as analysed in PT First Media TBK (formerly known as PT Broadband Multimedia TBK v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 at [137]–[142]; see also an elaboration of what “matters that have already been determined” refer to in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364 at [45]–[53]).

[58] Further, the court may disallow a party to raise certain points in court which it could and should have raised in arbitration (see, eg, Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd) [2011] 4 SLR 997 at [30]–[46] and Dallal v Bank Mellat [1986] 1 QB 441 (in particular at 462–463)).

[59] Whether as a function of substantive or procedural law, there is strong support for the view that barring special circumstances, the “extended” doctrine of res judicata operates to preclude the reopening of matters that (a) are covered by an arbitration agreement, (b) are arbitrable, and (c) could and should have been raised by one of the parties in an earlier set of proceedings that had already been concluded (see David Williams QC, “The Application of the Henderson v Henderson Rule in International Arbitration” (2014) 26 SAcLJ 1036 at para 11; see also Born at pp 3745–3746 and 3764 and Filip De Ly and Audrey Sheppard, “ILA Recommendations on Lis Pendens and Res Judicata and Arbitration” (2009) 25(1) Arbitration International 83 at 85).

[60] Turning to the facts at hand, we had set aside the portions of the Award relating to (a) the loss of profits claim; and (b) the Lost Land Claims. The question is: what is the effect of this?

[62] In these circumstances, the fact that the Tribunal had, on its own initiative, gone on to find for the Purchasers on an alternative ground, which we have set aside, cannot in our judgment, give rise to any possibility of the Purchasers reviving this claim by a fresh set of proceedings. To do so, would in our judgment, constitute a blatant abuse of process. To put it another way, this dispute insofar as it was raised has been dealt with by the Tribunal in its finding that there was no actual loss. Accordingly, there is simply no basis on which a fresh reference to arbitration could take place on this issue.

[64] It follows that the Purchasers may, if they wish, commence fresh arbitration proceedings before a new tribunal on the Lost Land Claims. Here, we return to the Purchasers’ (alternative) prayer for an order under s 8A(2) of the IAA, to the effect that the period between the commencement of the arbitration and the date on which the relevant part of the Award had been set aside should be excluded for the purpose of computing the applicable time pertaining to limitation periods. As against this, the Secured Creditors oppose this on the ground that the Purchasers have failed to show that any such order is either necessary or appropriate in the circumstances, while the Liquidator contends that the Purchasers, in not having made an application before the High Court, are precluded from doing so now. The Liquidator’s argument proceeds as follows:

(a) First, s 8A(2) expressly states that “[t]he High Court may order” [emphasis added]. This court therefore has no power to make an order under s 8A(2).

(b) Second, and as an alternative, even if this court had the power to make an order under s 8A(2), such power should only be exercised (again by virtue of the wording of s 8A(2)), when an application had first been made to the High Court.

[65] We should note that the Liquidator’s primary interest was in the loss of profits claim but the points he has raised in his arguments are nonetheless relevant to the issue before us even in relation to the Lost Land Claims. In our judgment, there is some force in what he has said. We note that the use of the words “High Court” in s 8A(2) stands in distinction to other provisions of the IAA (eg, ss 6 and 7) where the more general word “court” is used. In fact, in s 6(5), “court” is explicitly defined (for the purposes of ss 7 and 11A) to refer to any court in which proceedings are instituted. In s 10, the High Court and the Court of Appeal are mentioned specifically and distinctly.

[66] Unfortunately, the application under s 8A(2), and for that matter, the Liquidator’s rebuttals, were not addressed in detail by the Purchasers in their written submissions. During oral submissions, Mr Yeap, when asked if the Purchasers would face any difficulty should the court choose not to exercise its power under s 8A(2) (assuming such power was conferred by s 8A(2)), said that he thought his clients would not be prejudiced. We asked that he reconsider his position on the matter and restate his position during his reply. When it came to his reply, Mr Yeap asked, “for the sake of caution”, that we make an order (under s 8A(2)).

[67] In our judgment, s 8A(2) avails only where an application has been made to the High Court. Of course, where that is declined, the matter can be pursued in an appeal brought before the Court of Appeal. This is not unlike the position where an application is brought to set aside an award. This obviously could not be brought directly to the Court of Appeal. In the present context, as no application was made to the Judge = pursuant to s 8A(2), we consider that to be the end of the matter.

[68] For these reasons, we make only the following declaration: