FIC Properties Sdn Bhd v PT Rajawali Capital International and another and another matter [2024] SGHC(I) 33

Introduction

SIC/OA 14/2024 (“OA 14”) was an application by FIC Properties Sdn Bhd (“FIC”) for permission to enforce Singapore International Arbitration Centre Award No. 076 of 2024 (the “Second Award”) against PT Rajawali Capital International and PT Rajawali Corpora (respectively, “Rajawali Capital” and “Rajawali Corpora”; collectively, the “Rajawalis”) in Singapore. An order granting FIC permission to do so (the “Enforcement Order”) was made by the learned Deputy Registrar on 11 July 2024. SIC/OA 21/2024 (“OA 21”) and SIC/SUM 38/2024 (“SUM 38”) are respectively the Rajawalis’ cross-applications to set aside the Second Award and the Enforcement Order.

The Rajawalis raised three grounds in support of their applications, namely fraud, illegality and breach of natural justice. Having considered the evidence and parties’ submissions, we hold that none of the Rajawalis’ grounds for setting-aside the Second Award or the Enforcement Order have been made out. OA 21 and SUM 38 are therefore dismissed. These are our reasons.

Background

Rajawali Capital is an Indonesian company and a subsidiary of Rajawali Corpora. Both companies are part of the wider Indonesian conglomerate commonly referred to as the “Rajawali Group”.

FIC, on the other hand, is a Malaysian company that is wholly owned by the Federal Land Development Authority of Malaysia (“FELDA”). FIC is a corporate vehicle through which FELDA pursues its commercial dealings.

The relevant contractual arrangements

The parties’ underlying dispute arose out of a contract dated 23 December 2016 (the “SPA”) by which Rajawali Capital agreed to sell, and FIC agreed to purchase, shares (the “EHP Shares”) representing a 37% stake in PT Eagle High Plantations Tbk (“EHP”) for US$505,415,919.00. Rajawali Corpora was a party to the SPA as Rajawali Capital’s guarantor. The sale of the EHP Shares to FIC was duly completed and it is not the focus of these proceedings.

Central to the parties’ dispute is cl 7A of the SPA, which gave FIC a “Put Option”. This was essentially a contractual right on FIC’s part to sell the EHP Shares back to the Rajawalis at the original contract price plus interest:

The relevant conditions set out in Schedule 7 of the SPA (as referred to in cl 7A) may be summarised as follows.

The Put Option is stated as exercisable only during the “Option Period”, ie, the period following completion of the initial sale-and-purchase of the EHP Shares to FIC and up to the “Option End Date” (which, in the event, was 11 May 2022).

Before the Option End Date, FIC would only be at liberty to exercise the Put Option upon the occurrence of defined “Trigger Events”. On the Option End Date, however, the Put Option would be exercisable “at the sole and absolute discretion of [FIC] for any reason whatsoever”:

The Put Option was to be exercised by delivering a “Put Option Notice” to Rajawali Capital and/or Rajawali Corpora. That notice was to be in the form prescribed by Part C of Schedule 7. The operative words of the notice included the requirement that it be “irrevocable and unconditional”.

In the event the Put Option was validly exercised by FIC, the parties would “be bound to complete the sale and purchase of the [EHP Shares]” on timelines that varied depending on the basis for FIC’s exercise of the Put Option:

(a) If the Put Option was exercised on the Option End Date, then the resale of the EHP Shares was to be completed within 14 days after the Put Option Notice was served.

(b) If the Put Option was exercised upon the occurrence of a Trigger Event, then the resale was to be completed within either one day or 12 months after the Put Option Notice was served, depending on the Trigger Event in question.

The steps that parties had to undertake at “Option Completion” were set out in para 6 of Schedule 7 and is worth reproducing in full here:

The GovCo Pledge

Separately, FIC’s initial purchase of the EHP Shares was financed by a loan of RM2.5 billion from GovCo Holdings Bhd (“GovCo”). GovCo is another Malaysian state-owned entity. In this connection, the EHP Shares were pledged by FIC to GovCo in or around October 2017 as security for the financing extended pursuant to a Facility Agreement dated 23 December 2016. We will refer to this pledge as the “GovCo Pledge” and to the Facility Agreement as the “GovCo Facility”.

The First Arbitration

On 11 January 2019, FIC purported to exercise the Put Option on the basis that a Trigger Event had occurred. We will refer to this as the “2019 Exercise”.

Rajawali Capital disputed the validity of the 2019 Exercise and therefore commenced an arbitration (the “First Arbitration”) against FIC on 30 January 2019 seeking inter alia a declaration as to the invalidity of the 2019 Exercise. This arbitration was presided over by a tribunal comprising Prof Bernard Hanotiau, Mr Alan Thambiayah, and Mr Nahendran Navaratnam (the “First Tribunal”).

The First Tribunal found for Rajawali Capital in its award dated 11 August 2022 (the “First Award”), essentially on grounds that FIC had acted unreasonably in denying the Rajawalis an extension of time which, if granted, would have precluded the relevant Trigger Event from occurring. The First Tribunal took the view that FIC could not rely on a Trigger Event precipitated by its own unreasonable conduct and, on that basis, declared the 2019 Exercise invalid.

The Second Arbitration

Before the First Award was issued, the Option End Date (ie, 11 May 2022) came and FIC purported to exercise the Put Option for a second time on that date, pursuant to para 3.1.2 of Schedule 7. We will refer to this as the “2022 Exercise”.

The Rajawalis again disputed the validity of the 2022 Exercise. Faced with this, FIC commenced a second arbitration against the Rajawalis on 17 January 2023 (the “Second Arbitration”) seeking inter alia a declaration that the 2022 Exercise was valid. The Second Arbitration was presided over by a tribunal comprising Prof Dr Klaus Sachs, Ms Judith Gill KC, and Mr Stuart Isaacs KC (the “Second Tribunal”). By the time the Second Arbitration was commenced, the First Award had already been issued some five months prior.

Two defences were raised by the Rajawalis in the Second Arbitration:

(a) The Rajawalis’ first defence was that under the SPA, FIC was not entitled to “exercise the same Put Option more than once and concurrently”. Having exercised the Put Option in 2019, the contractual right was spent and so the 2022 Exercise could be of no effect.

(b) The second was that the 2022 Exercise had been expressed as made without prejudice to the validity of the 2019 Exercise (given that the validity of the latter was still under consideration by the First Tribunal at the time of the former). To that extent, the second exercise was conditional in nature and therefore invalid because under the SPA, FIC’s exercise of the Put Option had to be “irrevocable and unconditional”.

The Second Tribunal rejected these defences and found for FIC. More will be said about the tribunal’s reasons shortly. In the result, the Second Tribunal inter alia declared that the 2022 Exercise was valid and ordered the Rajawalis to specifically perform their obligations arising therefrom:

The procedural history

On 9 July 2024, FIC applied by OA 14 for permission to enforce the Second Award as a judgment of the Singapore Court. As mentioned at [1] above, that application was allowed and the Enforcement Order was made by the learned Deputy Registrar on 11 July 2024. The Enforcement Order was then served on the Rajawalis on 18 July 2024.

On 19 July 2024, FIC applied by SIC/SUM 31/2024 for an injunction freezing S$903,096.995 worth of the Rajawalis’ assets in Singapore. An urgent ex parte hearing was convened on 23 July 2024 and the application was allowed on the same day.

On 13 August 2024, the Rajawalis applied by SIC/SUM 35/2024 for an extension of time to apply to set aside the Enforcement Order. The deadline for doing so was two days away (ie, 15 August 2024) and although the reasons for the Rajawalis’ delay were not altogether clear, they were granted an extension of time until 5.00pm on 23 August 2024 to file their application. Even then, the application (ie, SUM 38) was eventually filed at 5.28pm on 23 August 2024, which was 28 minutes out of time. We were, however, prepared to look past that irregularity and the filing of SUM 38 was accepted.

The Rajawalis then applied on 13 September 2024 by OA 21 for the Second Award to be set aside. This was followed by an application from the Rajawalis for orders requiring the production by FIC of certain documents relating to the GovCo Pledge. We allowed the Rajawalis’ application on 24 October 2024.

Given the overlap in subject matter, SUM 38 and OA 21 were jointly heard on 4 November 2024.

The Rajawalis’ grounds for setting-aside

In these proceedings, the Rajawalis advance three grounds for setting aside the Second Award and the Enforcement Order. The first of those grounds is that the making of the Second Award had been induced or affected by fraud (the “Fraud Ground”). The Second Award was therefore liable to be set aside pursuant to s 24(a) of the International Arbitration Act 1994 (2020 Rev Ed) (the “IAA”), and the enforcement of the Second Award (having allegedly been procured by fraud) should be refused for being contrary to Singapore’ public policy (pursuant to s 31(4)(b) of the IAA). The Rajawalis’ arguments on the Fraud Ground changed significantly in the course of these proceedings. More will be said about this shortly.

The second ground, which we will refer to as the “Illegality Ground”, posits that performance of the Second Award would be unlawful under Indonesian law. To that extent, it is said that the award itself and its enforcement would be contrary to Singapore public policy.

The third is the “Natural Justice Ground”. In this regard, the Rajawalis contend that the Second Tribunal erred in:

(a) rendering a decision that was inconsistent with common ground that FIC and the Rajawalis had allegedly reached in the First Arbitration; and

(b) failing to properly consider an argument raised by the Rajawalis in the Second Arbitration, ie, that FIC “was not being deprived of its entitlement to exit its investment because it was the author of its own supposed misfortune”.

Ground 1: The Fraud Ground

The Rajawalis’ submissions

Beginning with the Fraud Ground, the argument – as originally framed in the Rajawalis’ supporting affidavits – centres on the allegation that FIC had “deliberately failed to disclose” the existence of the GovCo Pledge in the Second Arbitration.

This argument begins with the contention that the existence of the GovCo Pledge was a matter of significance to the Rajawalis’ defence in the Second Arbitration. This was because the existence of the pledge at the time of the 2022 Exercise meant that the exercise of the Put Option was invalid under the terms of the SPA (as interpreted in accordance with Indonesian law).

This then feeds into the argument that FIC had “intentionally and wrongfully failed to notify” the Rajawalis and the Second Tribunal that the EHP Shares were subject to the GovCo Pledge at the time of the 2022 Exercise. In doing so, FIC deprived the Rajawalis of the opportunity to raise defences premised on the existence of the GovCo Pledge which, according to the Rajawalis, would have likely (if not certainly) led the Second Tribunal to decide differently. We will refer to this as the “Non-Disclosure Argument”.

The Fraud Ground then took on an entirely different complexion in the Rajawalis’ written and oral submissions before us. Although not having abandoned the Non-Disclosure Argument, the focus shifted to how FIC had allegedly “misrepresented to the [Rajawalis] and the Second Tribunal that it was ready, and able to perform the Second Put Option and transfer unencumbered title of the [EHP Shares] back to the [Rajawalis]” despite FIC having been in no position to do so by reason of the GovCo Pledge. The failure to disclose the existence of the GovCo Pledge in the Second Arbitration was merely a step in perpetrating this fraudulent misrepresentation. We will refer to this as the “Misrepresentation Argument”.

We should state at the outset that it is not open to the Rajawalis to recast their arguments in this way. The Misrepresentation Argument was only raised for the first time in the Rajawalis’ written submissions, and nothing to that effect was said in any of the witness statements filed in OA 21 and SUM 38. FIC’s witnesses were therefore given no opportunity to respond to these new allegations. Where a party seeks to set aside an award, it should put forward its material allegations of fact on which its challenge is based in its initial supporting witness statement. This is all the more important where allegations of fraud are in play, because the court must be careful not to find fraud unless it is distinctly pleaded and proved: Ching Chew Weng Paul, deceased, and others v Ching Pui Sim and others [2011] 3 SLR 869 at [26], citing Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712. The Rajawalis’ failure to raise the Misrepresentation Argument prior to their written submissions would suffice as grounds for us to disregard it altogether. Be that as it may, we are of the view that neither the Non-Disclosure Argument nor the Misrepresentation Argument succeeds on its merits, and we deal with both of them in the sections that follow.

The Non-Disclosure Argument

We begin with the Non-Disclosure Argument. In our judgment, two aspects of the evidence are material.

First, the existence of the GovCo Pledge was a matter of public information. As deposed to by Mr Mahadzir Mustafa (who is one of FIC’s directors), the GovCo Pledge was first disclosed in FIC’s financial statement for the financial year ending 31 December 2017. The pledge has also been noted in FIC’s subsequent financial statements. Mr Rizki Indra Kusuma (who is a director of both Rajawali Capital and Rajawali Corpora), has himself acknowledged that those financial statements were publicly accessible. His only explanation was that he had never reviewed those statements for himself at the time of the 2022 Exercise or in the course of the Second Arbitration.

Quite apart from FIC’s public disclosures of the GovCo Pledge, there is also evidence that FIC had apprised the Rajawalis – or persons affiliated with the Rajawalis – of its intention to create the GovCo Pledge and, later, the creation of the GovCo Pledge itself.

We refer firstly to an email dated 16 December 2016, which was sent by one Vik Tang of Hiswara Bunjamin & Tandjung (“HBT”, who were FIC’s solicitors) in the course of negotiations over the SPA’s wording. That email was addressed to the “Rajawali team” and among its recipients were Mr Kusuma, along with three of his colleagues. It was explicitly mentioned in this email that FIC was expecting a loan from GovCo and that the EHP Shares would consequently be pledged to GovCo as security for the loan:

Next, there is an email dated 18 January 2017 and sent by one Delwyn Wono of HBT to (among others) Mr Kusuma and four of his colleagues. Attached to that email was a revised “Loan, Funding and Completion Steps Plan”, which the Rajawalis were invited to review and comment on:

Relevant for present purposes is item 25 of that document, ie, “Pledge Over Shares (of the 37% EHP shares in favour of Financier) to be perfected within 6 months”. GovCo was identified as the “Financier” a little below in the document:

Lastly, we refer to FIC’s formal notice to EHP of the GovCo Pledge dated 6 October 2017 (the “Pledge Notice”). This notice was addressed to EHP’s Board of Directors and was eventually signed by Mr Nicolaas Bernadus Tirtadinata as President Director of EHP. At the time, Mr Tirtadinata was also a Commissioner of Rajawali Capital and President Commissioner of Rajawali Corpora. A scanned copy of the Pledge Notice was sent to Mr Kusuma, amongst others. It should also be noted that Mr Kusuma’s assistance was sought from FIC’s solicitors in procuring documents preparatory to the issuance of the Pledge Notice by emails providing a draft of the Pledge Notice. This was not denied by Mr Kusuma.

The Rajawalis say that none of this is fatal to the Non-Disclosure Argument because FIC was still positively obliged to disclose the fact of the subsisting GovCo Pledge and its terms in the Second Arbitration. This obligation is said to arise from FIC’s duty to act in good faith under Indonesian law, and Indonesian law was relevant because it was the law governing the arbitration agreement. FIC and the Rajawalis, so the argument goes, had to “perform the arbitration agreement in accordance with the Indonesian law duty of good faith”.

These are surprising submissions. The law governing an arbitration agreement is chiefly concerned with the existence and validity of the arbitration agreement in question. It also governs the subject-matter arbitrability of a dispute at the pre-award stage (following Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 349 at [55]). What it certainly does not govern is the manner in which the arbitration should be conducted and parties’ obligations in that regard; those are plainly issues that fall to be considered by reference to the law of the seat (or the lex arbitri). In this case, whether FIC had acted fraudulently in omitting to notify the Rajawalis and the Second Tribunal of the GovCo Pledge’s existence and its terms is plainly a question of Singapore law.

Under Singapore law, “fraud” within the meaning of s 24(a) of the IAA includes “procedural fraud”, that is, when a party commits perjury, conceals material information and/or suppresses evidence that would have substantial effect on the making of the award: Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 1 SLR 1045 (“Bloomberry (CA)”) at [41].

Importantly, any conduct said to constitute procedural fraud must have been aimed at deceiving the arbitral tribunal. The touchstone, therefore, is an intention to deceive and unless such an intention can be demonstrated to the court’s satisfaction, an award will not be set aside (nor its enforcement refused) on grounds of the alleged procedural fraud (Bloomberry (CA) at [41] and [71]):

Having regard to the facts as set out at [35]–[40] above, we find it impossible to say that FIC intentionally concealed the existence of the GovCo Pledge in the Second Arbitration with a view to deceiving the Second Tribunal or the Rajawalis. The existence of the pledge was a matter of public information and had for all intents and purposes been specifically communicated to persons who were employed by (or otherwise associated with) the Rajawalis. The Rajawalis have advanced sophisticated arguments on how the knowledge acquired by those persons was incomplete or not imputable to the Rajawalis, but these are not answers to the basic hurdle standing in the Rajawalis’ way: there is simply no evidence whatsoever of FIC having omitted to disclose the existence of the GovCo Pledge in the Second Arbitration with the intention of deceiving anyone. It could not reasonably be concluded that FIC had any intention to deceive when it had disclosed the pledge in earlier communications with the Rajawalis and the pledge remained a matter of public record. Further, it has not been established that the issues as they were framed in the Second Arbitration gave rise to any obligation to disclose the pledge or its terms. The Rajawalis did not seek in the Second Arbitration any disclosure or production of documents concerning whether or on what terms the EHP Shares might be encumbered. In our judgment, these features of the case are fatal to the Rajawalis’ Non-Disclosure Argument.

The Misrepresentation Argument

As we observed at [33] above, the Misrepresentation Argument was raised too late in the day and that would suffice as reason for us to dismiss it. For completeness, however, we shall explain why we would have rejected the Misrepresentation Argument even if it had been properly advanced in these proceedings.

The pith of the Misrepresentation Argument is that in seeking an order from the Second Tribunal requiring the Rajawalis to “specifically perform their obligations in paragraphs 5 and 6 of Part A Schedule 7 of the SPA”, FIC represented to the Second Tribunal – if not expressly, then impliedly – that it was ready, able and willing to perform its end of the bargain despite the GovCo Pledge having presented an insuperable obstacle to the timely completion of the transaction. In support, the Rajawalis rely on Facade Solution Pte Ltd v Mero Asia Pacific Pte Ltd [2020] 2 SLR 1125 (“Facade Solution”) where an adjudication determination was set aside on the ground that the claimant had falsely represented that it was in a position to deliver certain window panels stored off-site despite knowing that it was not in control of them. We discuss this case at [58] below.

We accept that in commencing an arbitration with a view to obtaining specific performance of the Rajawalis’ obligations under Schedule 7 of the SPA, FIC impliedly represented to the Second Tribunal that it was ready, able, and willing to likewise perform its reciprocal obligations to the Rajawalis. Under Schedule 7, however, FIC’s only real obligation was to procure the transfer of the EHP Shares to the Rajawalis on “Option Completion”. Pursuant to the orders made in the Second Award (see [20] above), “Option Completion” was to occur within 14 days from the date of the award. That was what FIC requested in its prayers to the Second Tribunal:

Seen in that light, the implied representation made by FIC was that it was ready, able and willing to transfer the EHP Shares to the Rajawalis within 14 days of the Second Award in accordance with the mechanism in para 6 of Schedule 7 of the SPA. To the extent that the Rajawalis go further in asserting a representation from FIC that it was prepared to complete the transaction immediately (with the implication that it had unencumbered control over the EHP Shares), this extension is not substantiated in the arbitral record and we would therefore reject it.

Nonetheless, we accept that FIC’s apparent readiness to proceed with and complete the resale of the EHP Shares was something that the Second Tribunal was cognisant of in reaching its decision to order specific performance against the Rajawalis:

In the premises, the Misrepresentation Argument turns on a single question of fact: did FIC commence the Second Arbitration without any genuine belief in its ability to transfer the EHP Shares to the Rajawalis in accordance with the mechanism in para 6 of Schedule 7 of the SPA within 14 days of specific performance being ordered against the latter?

The Rajawalis say that the answer to that question must be ‘yes’. They submit that FIC was in no financial position to independently discharge the GovCo Pledge; instead, it was FIC’s intention that it would discharge the pledge using monies received from the Rajawalis on Option Completion before executing a transfer of the EHP Shares to the latter. For this arrangement to work, however, FIC would have had to (a) receive the Rajawalis’ monies; (b) transfer those monies to GovCo and procure a release of the GovCo Pledge; (c) have GovCo release its block on transfers of the EHP Shares on the Indonesian Central Securities Depository; and (d) execute a transfer of the EHP Shares to the Rajawalis, all within a single working day or less. The Rajawalis submit that there was no realistic prospect of FIC achieving this, and that FIC knew that. As a variant of the argument, they submit that because of a clawback provision in the GovCo Pledge, FIC was not in a position “to provide a free and unencumbered transfer of the shares”. In other words, FIC commenced the Second Arbitration on false pretences concerning its ability to transfer the EHP Shares to the Rajawalis on the date fixed for Option Completion.

We were presented with no direct evidence of FIC having contemplated these apparent difficulties in procuring a timeous transfer of the EHP Shares to the Rajawalis. There was no direct evidence that FIC positively knew that it would be unable to transfer the EHP Shares. We have instead been called on to infer that knowledge based on circumstances which, in our judgment, could equally indicate that FIC simply assumed that there would be no difficulty in procuring release of the GovCo Pledge in time for the EHP Shares to be transferred.

We observe that after the Second Award was issued, FIC’s solicitors sent a letter to the Rajawalis’ solicitors enclosing a draft sale-and-purchase agreement. In that letter, FIC’s solicitors sought details on how and to whom the EHP Shares should be transferred on completion:

This letter and the enclosed draft are in fact evidence that FIC believed that it could carry out the award by transferring the EHP Shares in return for the receipt of the Rajawalis’ monies. There is nothing in FIC’s conduct or the contemporaneous documents warranting our drawing the inference that FIC never genuinely believed it could transfer the EHP Shares to the Rajawalis on completion of the resale. This evidential gap is, in our view, dispositive of the Misrepresentation Argument.

It is also worth noting that the Rajawalis’ contention rests on the idea that FIC sought to obtain the Rajawalis’ monies, not transfer the EHP Shares, and then rely on its own insolvency to block the Rajawalis from recovering the monies they had transferred. Not only did the evidence not establish any such fraudulent intention or scheme, it was not proved that receipt of the monies, release of the pledge and transfer of the shares could not take place within one day or otherwise in a manner that protected the respective interests of the parties. Indeed, when an order for specific performance has been made, parties would be expected to cooperate in carrying out that order in a sensible manner. As for the Rajawalis’ argument relying on the presence of the clawback provision in the GovCo Pledge, FIC’s counsel took the position at the hearing that FIC would enter into necessary arrangements with GovCo to ensure that the exchange would take place within one day. This could include agreeing with GovCo the release of any clawback rights. The evidence adduced before us supported FIC’s expression through counsel of its intention to perform its obligations under the SPA and to do so with GovCo’s consent. An example of such evidence was FIC’s seeking and obtaining the consent of GovCo to the 2022 Exercise in accordance with cl 9(c) of the GovCo Facility.

Before leaving the present discussion, we note that there is a dispute concerning whether the Fraud Ground can be relied upon in circumstances where the Rajawalis could have discovered the existence of the GovCo Pledge and its terms had they exercised greater diligence in the Second Arbitration. This inquiry assumes, of course, that the Rajawalis had no such knowledge at the material time.

FIC has urged us to answer that question in the negative. Emphasis was placed on the apparently settled proposition that “when new evidence is being introduced to demonstrate fraud at the setting aside stage, the applicant would have to demonstrate why, at the time of the arbitration, the new evidence was not available or could not have been obtained with reasonable diligence”: BVU v BVX [2019] SGHC 69 (“BVU”) at [106]; CLX v CLY and another and another matter [2023] 4 SLR 241 at [59(d)] (“CLX”).

As we have mentioned at [47] above, the Rajawalis rely on Facade Solution. This was a case arising out of an adjudication determination made under the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed). The Court of Appeal considered the UK Supreme Court’s decision in Takhar v Gracefield Developments Ltd and others [2019] 2 WLR 984 and ultimately took the view (at [33]) that:

In this case, nothing of substance turns on whether the Rajawalis could have discovered the facts now said to be material had they been more diligent in the Second Arbitration. Their arguments under the Fraud Ground have been dismissed for other reasons, and it is therefore unnecessary for us to express a view on whether the position stated in BVU and CLX has been overtaken by Facade Solution.

Ground 2: The Illegality Ground

Turning to the Illegality Ground, the argument advanced by the Rajawalis is that the Second Award itself and its enforcement would be contrary to the public policy of Singapore because it “could involve the parties having to perform acts that are potentially illegal in Indonesia”. The illegal act, so the Rajawalis submit, would be the transfer of shares subject to a pledge.

There is no merit to this contention. FIC and the Rajawalis were ordered by the Second Award to perform their respective obligations arising from a valid exercise of the Put Option. So far as FIC was concerned, that meant transferring the EHP Shares to the Rajawalis on Option Completion. There is nothing inherently unlawful about the Second Tribunal’s orders or the outcomes envisaged by them. The Illegality Ground therefore resolves itself into the argument that the Second Award should be set aside because FIC may conceivably perform its obligation to transfer the EHP Shares in a manner that is illegal under Indonesian law. This is plainly not a basis for setting aside the Second Award or refusing its enforcement.

We would observe for completeness that the Rajawalis’ argument on how FIC may potentially transfer the EHP Shares in breach of Indonesian law is undercut by their own expert’s view that shares held in the Indonesian Central Securities Depository that are subject to a pledge will be “frozen” and cannot be dealt with without the pledgee’s consent:

The suggestion that FIC may potentially procure a transfer of the EHP Shares in breach of Indonesian law is, therefore, dubious.

Ground 3: The Natural Justice Ground

It remains for us to consider the Natural Justice Ground. As mentioned at [28] above, two arguments were put forth by the Rajawalis in this connection.

The Second Tribunal’s alleged failure to acknowledge parties’ common ground in the First Arbitration

The Rajawalis first contend it was common ground between them and FIC in the First Arbitration that “the Put Option Clause should be read disjunctively, such that it only allowed [FIC] to exercise one Put Option at any given time”. In FIC’s Response to the Notice of Arbitration in the First Arbitration (the “RNOA”), the word “or” had been inserted in between paras 3.1.1 and 3.1.2 of Schedule 7 of the SPA. The Rajawalis say that this common ground was acknowledged by the First Tribunal when it:

This is a mischaracterisation of both para 3 and the First Tribunal’s observations. Firstly, there is in fact no disjunctive “or” between cll 3.1.1 and 3.1.2 (see [9] above). Secondly, what the First Tribunal in fact stated at paragraph 176 of the First Award was that:

The First Tribunal was therefore listing the circumstances in which the Put Option could be validly exercised by FIC, which was what FIC had done in its Response. Nothing in FIC’s RNOA conceded or asserted that cll 3.1.1 and 3.1.2 operated disjunctively in a way that only allowed FIC one attempt at exercising the Put Option. The same applies to the rest of the First Award: there was no finding that cll 3.1.1 and 3.1.2 operated disjunctively, nor does it record this position as common ground. This is entirely unsurprising because the First Arbitration was only concerned with the validity of the 2019 Exercise (that having been the only exercise of the Put Option in play in the First Arbitration).

The question of whether FIC was contractually permitted to invoke the Put Option more than once only arose in the Second Arbitration, because that was one of two grounds upon which the Rajawalis challenged the validity of the 2022 Exercise (see [19] above). FIC disagreed with the Rajawalis’ arguments and the Second Tribunal eventually held in favour of FIC on the point:

It is therefore clear to us that the Second Tribunal in fact addressed its mind to the Rajawalis’ suggestion that FIC had previously conceded the point and rejected it. In the premises, this first limb of Rajawalis’ Natural Justice Ground is unarguable.

The Second Tribunal’s alleged failure to consider an argument raised by the Rajawalis in the Second Arbitration

The Rajawalis further submit that the Second Tribunal had failed to consider their argument that FIC was “the architect of its own misfortune” by not having conceded in the First Arbitration that the 2019 Exercise was invalid:

There is no merit to this submission. As mentioned at [19] above, the question that the Second Tribunal had to decide was whether the 2022 Exercise was invalid by reason of (a) FIC having already purported to exercise the Put Option once in 2019; and (b) the 2022 Exercise having been expressed as being without prejudice to the validity of the 2019 Exercise. Those were the defences raised by the Rajawalis and whether they would have had a weaker case had FIC conceded the invalidity of the 2019 Exercise does not go toward any question of natural justice concerning how those defences were considered by the Second Tribunal.

Moreover, the Second Tribunal in its final award considered fully the different permutations involved in there having been two exercises of the Put Option, as shown by the following observations:

Given these observations, it is clear to us that the Second Tribunal was either alive to the Rajawalis’ argument (that FIC should have conceded the invalidity of the 2019 Exercise) and in fact rejected it, or would have rejected the argument in any event. On either view, the Rajawalis’ submission that the Second Tribunal failed to consider the argument in breach of natural justice lacks merit.

Conclusion