DMF v DMG and another matter [2025] SGHC(I) 12

Introduction

This judgment relates to two originating applications (“OAs”) both of which were originally filed in the General Division of the High Court (“GDHC”) on 10 September 2025 as HC/OA 919/2024 and HC/OA 921/2024. These applications were transferred to the Singapore International Commercial Court (“SICC”) on 4 December 2024 as SIC/OA 26/2024 (“OA 26”) and SIC/OA 27/2024 (“OA 27”) respectively.

The relief sought in both OAs arise out of an arbitration before the Singapore Chamber of Maritime Arbitration (“SCMA”) commenced on 10 August 2022 by the respondents to both OAs, [DMG] (the “Respondent”), against the applicants, [DMF] (the “Applicant”). The arbitration (Case No 2022/33) (the “Arbitration”) related to an alleged breach by the Applicant of a charterparty dated 10 June 2022 (the “Charterparty” or “Agreement”) together with an addendum dated 17 June 2022 (the “Addendum”).

The Applicant challenged the jurisdiction of the arbitral tribunal (the “Tribunal”) which, following submissions, resulted in a decision in which the majority of the arbitrators held that the Applicant was a party to the Charterparty and that accordingly, the Tribunal had jurisdiction over it.

OA 26 seeks to reverse that decision. The relief sought is set out in paragraph 2 of the OA and is as follows:

OA 27 is a freestanding application which does not relate to matters previously canvassed before the Tribunal and seeks declarations that the arbitration is either non-arbitrable or unenforceable. The relief sought is set out in paragraphs 1 and 2 of the OA and is as follows:

Since both OAs relate to the same Arbitration and to the charterparty underlying it, directions were given for the two to proceed to a single hearing which took place on 12 and 13 March 2025. However, the relief sought in OA 27 is inconsistent with that in OA 26, since the latter contends that the Applicant is not a party to the charterparty and hence the Arbitration, whereas the former accepts that it is a party but that the Arbitration is non-arbitrable and/or unenforceable against it.

I shall therefore consider the two separately.

OA 26

Background facts

The background facts are not materially in dispute. Whilst it will be necessary to consider the facts in relation to some events in more detail below, the basic facts can be stated as follows.

The Respondent is a Singapore company carrying on business in the food and agriculture field. It is a subsidiary of a company listed on the Singapore stock exchange.

The Applicant is a Hong Kong company which was at the material time the demise charterer/owner of a vessel (the “Vessel”).

On 10 June 2022, a charterparty was entered into for the Vessel to carry a cargo of palm oil from the port of Tanjung Pura in Indonesia to a port in Iran. Whilst there is no signed document, evidence of its terms is contained in an email dated 10 June 2022 (the “Recap”) from Mr [A] of [X] Shipbrokers Pte Ltd to Captain [B] of [Y] Ship Management Limited. It reads as follows:

In the Recap, the Applicant is recorded as being the “Registered Owners” (whereas it was in fact the demise charterer); [Z] Service Limited is stated to be the “Disponent Owners”; and [Y] Ship Management Limited is recorded as being the “Commercial Operator”. The reference to “Vessel” refers to the name of the Vessel and states, “Q.88 attached”, the first page of which is reproduced below, and which identifies those companies as working from a common office in Guangzhou in the People’s Republic of China, with the Applicant and [Y] Ship Management Limited sharing an email address.

All the negotiations leading up to the agreement on 10 June 2022 were carried out between Mr [A] of [X] Shipbrokers Pte Ltd and Captain [B] of [Y] Ship Management Limited.

Thereafter on 16 and 17 June 2022, emails were exchanged between Mr [A] and Captain [B] implementing the terms of the charterparty from which it is apparent that [Y] Ship Management Limited were also acting on behalf of [Z] Service Limited, using [Y] Ship Management Limited’s email address.

Also on 17 June 2022, following a discussion between them, Mr [A] sent the following email to Captain [B], setting out the terms of an Addendum to the charterparty which provided for the option of an additional load port at Kuala Tanjung, Indonesia with an additional payment if the option was exercised.

Although there was provision in the draft for the signatures of the Applicant, the Respondent, and [Z] Service Limited to be affixed, no signed document has been produced in court. However, the terms of the Addendum as set out in the email were implemented. On 2 July 2022, a Notice of Readiness of the Vessel at the port of Kuala Tanjung was issued by the shipmaster under the stamp of the Applicant.

It was following the arrival of the vessel at Kuala Tanjung that the events which led to the alleged breaches of the charterparty occurred. These are matters which will have to be fully ventilated in the Arbitration. It is sufficient for present purposes to record that the cargo was not loaded by 7 July 2022 when the Vessel left the port. The emails record that [Y] Ship Management Limited was contending that there was a failure by [X] Shipbrokers Pte Ltd to obtain the necessary export permits which would have allowed the Vessel to load the cargo and sail and that [X] Shipbrokers Pte Ltd was contending that all necessary documents had been obtained by 7 July 2022 such that leaving the port without loading was a breach of the charterparty.

As appears from an email from Mr [A] to Captain [B] dated 7 July 2022, the Respondent was aware that the Vessel was sailing to the Malaysian port of Pasir Gudang, and on 8 July 2022, the Respondent applied to the High Court of Malaya at Kuala Lumpur for a warrant of arrest (the “Warrant”) in respect of the Vessel. The Warrant was granted. It was served on 10 July 2022. The writ in rem (the “Writ”) named the defendants in the suit as being the “Owners and/or Demise Charterers of the [Vessel] of the port of Hong Kong”.

On 20 September 2022, [X] Shipbrokers Pte Ltd became aware that on 15 or 16 September 2022, the Vessel had broken arrest, left Malaysian waters and had changed her name. This led to successful contempt proceedings against the shipmaster, Captain [B], and the director of the Applicant.

The Charterparty and the Arbitration

Before turning to the issues, it is necessary to consider the terms of the Charterparty in a little more detail. The relevant passages have been emphasised at [11] above.

First, it is to be noted that both the Applicant and [Z] Service Limited are each named as “Owners” in the plural and the body of the document continues by referring to “Owners” without distinguishing between them save in respect of (a) the “Owners Bank Details” where [Z] Service Limited is named as the beneficiary, and (b) in paragraph 2 of the Terms, where reference is made to “Head Owners” in relation to any freight assignment.

Secondly, Term 1 applies the Vegoilvoy Charterparty and the Respondent’s rider clauses. The introductory passage states:

Clause 41 is the arbitration clause, which reads as follows:

Pursuant to Clause 41, on 10 August 2022, the Respondent gave Notice of Arbitration, naming the Applicant as respondent in the Arbitration. In its Defence served on 8 November 2022, the Applicant raised a number of defences, the primary one of which was that it did not contract with the Respondent, the sole contracting party being [Z] Service Limited.

On 13 January 2023, the Applicant sought to challenge the jurisdiction of the Tribunal on the basis that it was not a party to the Charterparty. On 25 May 2023, the Tribunal directed that the challenge to jurisdiction should proceed first, and a hearing took place in Singapore on 23 and 24 September 2023.

Following further written submissions, the Tribunal gave its Partial Award on Jurisdiction on 13 August 2024. This was based on the reasoning of the majority, with a “Dissent Award” also being issued by the Presiding Arbitrator.

All members of the Tribunal agreed that [Z] Service Limited was a party to the Charterparty but differed in respect of the Applicant. It is now not in dispute that [Z] Service Limited is a party to the Charterparty. The question is whether the Applicant is also a party.

Both the Applicant and the Respondent accept that the hearing before me is a de novo hearing and that accordingly I should not show any deference to the views of the majority or take into account the fact that this was a split decision (see Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536 at [40]–[44]).

The Issues

Clause 41 of the Agreement provides that English law governs the Charterparty. The Applicant’s case is that, on a true interpretation of the Charterparty, it is not a party to the Charterparty as agreed on 10 June 2022 (ie, the Agreement of 10 June 2022). It contends that the correct legal approach is to consider the Agreement separately from the Addendum of 17 June 2022 on the basis that if it was not a party at that date, it could not become one subsequently by reason of the wording of the Addendum.

For its part, the Respondent contends that the proper approach under English law is to interpret the Agreement together with the Addendum as being a composite agreement made on 17 June 2022 and that on this basis the Applicant is a party to the Charterparty. If, however, this is a wrong approach in law, then it contends that even without reference to the Addendum, on its proper construction, the Applicant is a party to the Agreement.

If it is wrong on both bases, the Respondent contends that the Applicant’s conduct and statements in the Malaysian proceedings were such as to make it inequitable for it now to deny that it was a party to the Charterparty on a number of grounds, namely, res judicata, issue estoppel, estoppel on the extended grounds set out in Henderson v Henderson (1843) 3 Hare 100 (“Henderson”), approbation and reprobation, and finally, abuse of process.

It is convenient first to consider the issues of interpretation and then to turn to the effects of the Applicant’s actions and conduct in the Malaysian proceedings.

Interpretation of the Charterparty

The issues of interpretation can be defined as follows:

(a) First, what are the applicable principles governing the interpretation of contracts under English law?

(b) Second, is it appropriate under English law to construe the Agreement of 10 June 2022 and the Addendum of 17 June 2022 separately or together?

(c) Third, are there any customs or accepted practices in relation to the interpretation of charterparties?

(d) Fourth, drawing the threads together, what is the proper interpretation of the Charterparty in the present case?

What are the applicable principles of contractual interpretation?

The parties were agreed that guidance could be obtained from the reasoning of His Honour Judge Pelling QC in Americas Bulk Transport Ltd v Cosco Bulk Carrier Ltd (The “Grand Fortune”) [2020] 2 Lloyd’s Rep 105 (“Americas”).

Beyond that, counsel for the Applicant, Mr Raymond Ong (“Mr Ong”), contented that there was no difference between English and Singapore law. Ms Corina Song (“Ms Song”) for the Respondent contended that there were certain nuances of English law which she would like to draw to my attention. At an early stage, I was requested by both parties to permit submissions so far as necessary on foreign law, both English and Malaysian, pursuant to O 16 r 8 of the Singapore International Commercial Court Rules 2021 (the “SICC Rules”) instead of proof by way of expert evidence.

So far as concerns English law, Ms Song sought leave to adduce written evidence from Mr Roderick Cordara KC (“Mr Cordara”) and at a case management conference (“CMC”) on 25 February 2025, I gave the following directions:

I also indicated that at that time I did not foresee the need for oral submissions in addition to those written submissions. The Respondent’s written submissions therefore incorporated English law input from Mr Cordara. At the outset of the hearing, Ms Song made an application to permit Mr Cordara to make oral submissions in addition to his written submissions, which was opposed by Mr Ong. I remained of the view that little extra benefit would be obtained from oral submissions but since Mr Cordara was in court, I concluded that the best course would be to receive his submissions de bene esse. I am grateful to Mr Cordara for his assistance.

At the end of this judgment (at [196]–[209] below), I shall consider in more detail the question of expert evidence in the form of submissions in the light of the experiences in this case.

In its written submissions, the Respondent referred to the principles of construction of a contract set out by Lord Neuberger in Marley v Rawlings [2015] AC 129 (“Marley”) at [18]–[19]:

This objective approach involves ascertaining what a reasonable person would have understood the parties to have meant and the relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract (the “informed reader”): see eg, Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [14], referred to by Lord Neuberger in Marley at [18].

The Americas was a case about a charterparty. The oddity about the case was that whereas there was no dispute that an agreement had been reached, there was a dispute as to which of two companies was the counterparty under the charterparty. The facts are complex and it is not necessary to go into them in any great detail in order to place the observations on the law into context.

The Defendant in that case claimed damages from the Claimant under a Recap Time Charter dated 16 May 2008 contained in or evidenced by an email of that date which contained an arbitration clause. The Claimant, the respondent in an arbitration brought by the Defendant, asserted in its response that the Tribunal did not have jurisdiction over the Defendant. The arbitrators, by a majority, held that it did have jurisdiction.

In 2007, the Defendant had sub-chartered the vessel to a company named Brittania Bulkers A/S (“Bulkers”) whose obligations under the charterparty were guaranteed by Brittania Bulk Plc (“Bulk”). Bulkers was a wholly owned subsidiary of Bulk. The Defendant’s claim was based upon its standing as assignee of the rights of Bulkers. The Claimant claimed that Bulk, not Bulkers, was the counterparty to the charterparty and that therefore Bulkers had no standing to make a claim in the arbitration. It was common ground that Bulkers was the disponent owner of the vessel under a sub-charter from the Defendant but the charterparty had been drawn up in Bulk’s office and did not name the counterparty.

The case thus proceeded on the basis that it was necessary to decide which of two parties was the counterparty, the disponent owner (Bulkers) or the party negotiating the charterparty (Bulk). The decision of the majority proceeded on the basis that there “was a presumed concern and hence intention, in the absence of evidence to the contrary, of charterers engaged in negotiations to contract with the disponent owners of the vessel …” (at [14]).

At [18] and [19] the Judge stated the applicable legal principles as follows:

The Judge then rejected a submission that post-contractual evidence was admissible to determine the parties to an agreement but did accept that it might be in reaching a conclusion as to identifying an unidentified principal, as a last resort. In [23] he said this:

The observations of Lord Neuberger in Marley are of general application to all forms of contact. The language of HHJ Pelling is specific to charterparties. But, subject to any underlying customs or accepted presumptions specific to such contracts, charterparties are but a form of contract to which the general principles apply. This is apparent from the reasoning in [19] of Marley.

The underlying issue in the Americas was very different to that in the present proceedings. There the investigation was to identify who, in fact, was the unnamed counterparty. In this case there is now no dispute that [Z] Service Limited is a party, the question is whether the Applicant is also a party.

Care must be taken when considering reasoning developed to meet the facts of one case to a case where the facts are different. It may provide a useful structured approach but should not be elevated into a statutorily mandated task as I apprehended both parties were tempted to do. In particular, I consider that the approach set out in [23] of the Americas concerning the admissibility of post-contractual evidence was intended to be limited to the ascertainment of the identity of unidentified parties acting through agents, which is not the case here.

On the facts of this case, I consider that the correct approach is to apply the principles set out by Lord Neuberger in Marley which is also the approach adopted by HHJ Pelling in [19(i)]–[19(ii)] of the Americas.

Is it appropriate under English law to construe the Agreement of 10 June 2022 and the Addendum of 17 June 2022 separately or together?

Mr Cordara contended in written submissions that the two should be read together:

He cited no authorities in support of his submissions.

Mr Ong responded as follows in his written submissions:

Mr Ong amplified upon this in oral submissions:

I disagree that the Addendum is not a contractual document. Although unsigned, it was acted upon by the parties and if not a contract in itself is evidence of a contract in those terms. Mr Ong asserts that it merely serves to alter the terms of the contract to give the Respondent the right to nominate two ports and pay additional freight if it did. In all other respects, as the Addendum expressly states: “All other terms and conditions remain unaltered”.

The Addendum is thus altering the terms of the Charterparty. Thereafter the Applicant could not insist on the cargo being loaded at only one port nor could the Respondent seek to pay freight at the lower rate if the option was exercised. These considerations lead to the conclusion that it is correct to read the documents together as Mr Cordara suggests. But this does not mean that the wording of the Addendum can override “the other terms and conditions”.

I therefore accept Mr Ong’s submission that the wording of the Addendum cannot serve to make the Applicant a party if it was not already a party to the Agreement. This will involve considering the Agreement on its own to determine whether, taken alone, it is clear that the Applicant was not intended to be a party. If it is, then the Addendum must be read in the light of this conclusion such that the informed reader of both documents would conclude that the introductory words to the Addendum were erroneous.

If however the informed reader would consider that the Agreement, taken on its own was ambiguous, then I agree with Mr Cordara that recourse could properly be had to the Addendum to resolve the ambiguity. Of course, if it is clear from the Agreement that the Applicant was intended to be a party, that is the end of the matter and the Addendum is merely confirmatory of this.

Are there any customs or accepted practices in relation to the interpretation of charterparties?

The informed reader would be aware of any custom or accepted practice in the field of charterparties and would take them into account when forming a view on the meaning of words in a contract.

The Applicant contended that there was a custom in relation to charterparties that the disponent owner, and only the disponent owner, would be the counterpart to a charterparty.

Paragraphs 33, 62 and 63 of its written submissions read as follows:

The Applicant relies on extracts from three textbooks for the definition of “disponent owner” and on an analogy with the facts in the Americas, Navig8 Inc v South Vigour Shipping Inc [2015] 1 Lloyd’s Rep 436 (“Navig8”); O/Y Wasa S.S. Co Ltd and another v Newspapers Pulp & Wood Export Ltd [1949] 82 Lloyd’s List Rep 936 (“Wasa”) and Asty Maritime Co Ltd and another v Rocco Guiseppe & Figli and others (The “Astyanax”) [1985] 2 Lloyd’s Rep 109 (“Asty Maritime”).

The textbook citations are from David Foxton et al, Scrutton on Charterparties and Bills of Lading (Sweet & Maxwell, 24th Ed, 2020) (“Scrutton”) at para 2-057, Stephen Girvin, Carriage of Goods by Sea (Oxford University Press, 3rd Ed, 2022) at para 1.45 and Carver on Charterparties (Sweet & Maxwell, 2nd Ed) (Howard Bennett, gen ed) at para 2-003.

The extract from Scrutton states that charterparties:

I accept this proposition but the evidential onus will be on the person asserting that there is a known usage in the trade to prove it. The other two extracts do not seek to give a precise meaning to the word “Disponent Owner” and accept that whilst the expression may generally be a reference to the person who controls the commercial operations of the vessel, the precise meaning has to be determined by reference to the contract’s surrounding circumstances. Neither provides support for the proposition that there is a custom in the trade that only the disponent owner, whoever it may be, will be the sole party to the charterparty.

The four cases equally provide no support for the proposition. In the Americas, the assumption was that the disponent owner would be the counterpart to the Charterparty, the task of the court was to identify who that was. The issue of additional parties did not arise.

The issue in Navig8 was whether the commercial manager of the vessel (“SMMC”) which was described as “Disponent Owners Signatory in Contract”, was the counterparty or whether the registered owner was the counterparty with SMMC acting on their behalf. The Judge concluded, on the facts, that the contract was signed by SMMC as disponent owner in the sense of being the manager of the vessel and that the owners were not a party (at [97]–[98]). There was no suggestion that both were parties or that there was a custom in the trade that there would only be one party to the charterparty. A similar exercise was carried out by the Judge in Wasa to determine the ambit of the expression “Disponent Owner” and again there was no discussion of any custom in the trade (at pp 953–954).

In Asty Maritime, the Judge at first instance had concluded that the parties to the charterparty were the 1st Defendant as charterers with the counterparties being the 1st Plaintiff as registered owner and the 2nd Plaintiff as disponent owner. On appeal the English Court of Appeal held on the facts that the 1st Plaintiff was not a party to the charterparty so could not enforce the charterparty with the charterers (at p 113 col 1). It was not contended that the appeal should be allowed on the basis that there was a custom in the trade that only the disponent owner could be a party.

The submissions and documents relied upon by the Applicant therefore do not satisfy me that there is a custom in the trade that only the disponent owner, whoever that may be on the facts of a given case, will be the sole counterparty to the charterparty. Whilst it may be that the notional reader might expect that there would only be a single counterparty, this does not mean that the reader would work on the basis that there must only be one counterparty.

Each case turns on its own facts. The approach to the interpretation of a charterparty is no different from any other contract. Whilst I accept that the informed reader would be someone familiar with charterparties, they would not approach the issue of construction on the understanding that there must only be one party contracting as the owner of the vessel.

What is the proper interpretation of the Charterparty in the present case?

I turn now to interpret the Charterparty in the light of the above observations. I should make it clear that the sole question before me is whether the Applicant is a party to the Charterparty and hence a party to the arbitration agreement contained in Clause 41. It was not suggested that if it were held to be a party to the Charterparty it was not also subject to the arbitration clause.

If I conclude that the Applicant is a party I am not deciding what the rights and obligations of the Applicant and [Z] Service Limited are inter se or vis-à-vis the Respondent. That would be a matter to be decided by the Tribunal.

The structured approach of Lord Neuberger in Marley mandates that one should consider five factors when seeking to ascertain the intention of the parties but should do so without taking account of any evidence relating to the subjective intention of the parties themselves. One has to do this by reading the documents through the eyes of the informed reader.

I shall start by considering the Agreement of 10 June 2022 alone, without also taking into account the wording in the Addendum of 17 June 2022. The object is to ascertain whether (a) it is plain that the Applicant was not intended to be a party or (b) it is plain that the Applicant was intended to be a party or (c) it is ambiguous as to this.

The objective is to determine the meaning of the relevant wording in the context of the document as a whole. The five factors identified by Lord Neuberger need not be considered on a step-by-step basis but are considerations to be taken into account when reaching an overall conclusion. The weight to be attached to each consideration will depend upon the facts of each case.

The question is whether the reference to the Applicant as Registered Owners in the Recap (set out in opening words of the email from Mr [A] to Captain [B] of 10 June 2022) (reproduced at [11] above) serves to make the Applicant a party to the Charterparty or whether the reference is properly to be interpreted as identifying the Registered Owners for information purposes only without rendering them a party. The surrounding wording is as follows:

The following points should be noted:

(a) The document does not begin in a conventional contractual way by including wording such as “This agreement is made between A on the one part and B and C on the other”. It is thus not manifest from the wording actually used that the Applicant was intended to be a party.

(b) The informed reader familiar with charterparties would regard the presence of the name of the Registered Owner in addition to that of the Disponent Owner as being unusual and would wish to understand why it was included.

(c) In the introductory wording the text of the last sentence states “Please find below clean fixture recap with the following terms and conditions mutually agreed between owners and charterers” (Emphasis added).

(d) Thereafter, throughout the Recap reference is made to “Owners” simpliciter without any distinction being drawn between the Registered and Disponent Owners with the following exceptions:

(i) Under “Owners Bank Details” reference is made to [Z] Service Limited’s bank details

(ii) Clause 2 of the Terms refers to “Head Owners” when making provision for freight assignment.

(e) Under the heading “Vessel” reference is made to the Q.88 (see [12] above) which identifies the Applicant, [Z] Service Limited and [Y] Ship Management Limited as trading from the same address with a single email address.

(f) Clause 1 of the Terms incorporates the Vegoilvoy and the Respondent’s rider clauses “with logical amendments as attached to apply as mutually agreed between the Charterers and Owners”. (Emphasis added)

(g) The email is sent by Mr [A] of [X] Shipbrokers Pte Ltd and begins “We are pleased to advise that charterers lifted all subjects within agreed time…”. It would thus be plain that [X] Shipbrokers Pte Ltd was acting as the agent of the charterer. It was sent to Captain [B] at charter@[Y]-sg.com, the email address given in the Q.88 for both [Y] Ship Management Limited and the Applicant. It would thus equally be plain that Captain [B] was acting as agent for the Applicant. The use of agents having authority to bind their principals is commonplace.

(h) The email ends “Trust above in line with our notes of negotiation, please reaffirm the same in written for the sake of good order within 24hrs otherwise shall assume all in order”. No response was received.

The Applicant contends that the informed reader, knowing that the usual practice was for the Disponent Owner alone to be a party to a Charterparty, would assume that it alone would be the contracting party and that this was consistent with the fact that freight was payable to [Z] Service Limited. It relied upon the observation of HHJ Pelling in [41] and [62] that the identity of the payee of freight was a significant factor. The reference to the Applicant as Registered Owner would thus be understood as being for information purposes only.

In paragraph 14 of its written submissions, the Applicant accepted that one need only look at the Charterparty to decide the question of jurisdiction but did draw attention to the fact that no mention was made of the Applicant when the bill of lading was discussed in an email exchange of 4 July 2022. This exchange however took place after the date of the Agreement and the Addendum and therefore cannot be taken into account unless it can be said that it formed part of an assumption “by the parties at the date the document was executed” (per Lord Neuberger in Marley at [19]). This is however no more than another way of submitting that there would be no need for the Applicant to be a party to the Charterparty. It does not help to determine whether in the circumstances it was nonetheless a contracting party.

Whilst the Respondent’s primary assertion was that any ambiguity in the Agreement was resolved by the wording of the Addendum of 17 June 2022, it also contended that on a proper application of the principles in Marley, there was no ambiguity and that it was plain that it was intended that the Applicant should be a party. It accepted that it was usual for the Disponent Owner to be the sole counterparty to a Charterparty but relied on this as illustrating that the informed reader would identify the naming of the Registered Owners as being an exception to that. Hence the reader’s attention would be drawn to the naming of the Applicant in conjunction with [Z] Service Limited and would wish to decide why it was included.

With this background, I turn to apply the principles in Marley to the circumstances of this case. Following on from [57]–[58]and [74] above, the exercise is to determine (a) whether it is clear that the reference to the Applicant was not intended to include it as a party to the Agreement or (b) whether it is ambiguous or (c) whether it is clear that it was intended to include it as a party.

First, whilst the wording does not use the customary form of “this agreement is made between A and B”, the way in which the names of the companies involved are set out is suggestive that each Owner had a part to play. This is reinforced by the details contained in the Q.88 which demonstrate that the three entities, the Applicant, [Z] Service Limited and [Y] Ship Management Limited traded from the same address using, in the Applicant and [Y] Ship Management Limited’s case, the same email. This would serve to identify that [Y] Ship Management Limited was acting as agent (as its title as Commercial Operator would suggest) acting on behalf of the two principals with authority to bind both.

Faced with this, the informed reader would either accept that, for whatever reason, the Applicant was intended to be a party to the Agreement or, if they were uncertain, would look at the Agreement as a whole to resolve that uncertainty. I do not consider that their primary assumption would be that the Applicant was named for information purposes only.

The Applicant and [Z] Service Limited are both named as “Owners” in the plural and thus no weight should be attached to the use of the plural in the rest of the document but significant weight would be attached to the use of the word “Owners” simpliciter with no distinction being drawn between the Registered Owners and the Disponent Owners. Nowhere in the rest of the document is either prefix used. I do not regard use of [Z] Service Limited’s bank details under the heading “Owners Bank Details” as being indicative that it was the sole party. It is indicative of the usual practice of the Disponent Owner being the payee but it does not serve to answer the question of whether the Applicant was also a party.

Equally I consider that no weight would be placed on the use of the words “Head Owners” in Clause 2 of the Terms. The term is not defined or otherwise used in the Agreement and its inclusion is suggestive of “copy and paste” from a precedent.

In conclusion therefore, in my judgment, the informed reader would start with the impression that the Applicant was named in the agreement as a party and that this impression would be confirmed by reading the document as a whole. I doubt it would cross their mind that that it was named merely to provide information and, if it did, they would readily conclude that this was unnecessary having regard to the Q.88 which fulfils this purpose.

Accordingly, considering the Agreement on its own without recourse to the Addendum I am not satisfied that it is clear that the Applicant was not intended to be a party, nor that there is any ambiguity taking the Agreement as a whole.

Applying the principles set out by Lord Neuberger in Marley and the first principle set out by HHJ Pelling in the Americas leads to the conclusion that the informed reader would inevitably perceive on reading the Agreement as a whole that the Applicant was intended to be a party. Hence it would also be a party to the arbitration agreement contained in Clause 41 so that any dispute as to the rights and liabilities of the Applicant would fall to be resolved in the Arbitration.

It is therefore not necessary to have regard to the second and third principles set out by HHJ Pelling in the Americas.

It is also not necessary to have regard to the wording of the Addendum although, for the reasons given, I consider that it would be proper to do so had I concluded that wording of the Agreement was ambiguous. The wording of the Addendum, set out in [15] above, is unequivocal in that it expressly states that the Applicant is a party which would have served to resolve any ambiguity.

Effect of the Malaysian proceedings

Background to the Malaysian proceedings

In order to address the issues raised by the Respondent, it is necessary to consider the facts surrounding the arrest of the Vessel and the subsequent applications to the High Court of Malaya at Kuala Lumpur in more detail.

On 8 July 2022, the Respondent applied for and obtained the Warrant which was served on 10 July 2022. On the same day the Writ in rem was issued naming the defendants to the application as being the “owners and/or demise charterers of the Vessel” (see [18] above). The affidavit supporting the application for the Warrant was sworn by Mr Matthew Van Huizen (“Mr Van Huizen”), a solicitor of Joseph & Partners acting for the Respondent. Paragraph 5 of that affidavit reads as follows:

The deponent thus relies on the Agreement and the Addendum and identifies the Defendant as being the Applicant. He continues by asserting in paragraph 10 that there was a breach of the Charterparty by leaving the load port without loading the cargo and in paragraphs 17–20 sets out the legal basis for the application:

Finally, Mr Van Huizen refers to the Arbitration Agreement in Clause 41 of the Charterparty and asserts in paragraphs 25–27 and 32:

On 18 July 2022 the Applicant entered an appearance and on 22 July 2022 applied to set aside the Warrant (see [19] above) (the “Set Aside application”). This application was supported by the 1st Affidavit of Captain [B]. Captain [B] states that he was a manager at the Applicant and was authorised to affirm the affidavit on its behalf. The following paragraphs are material:

In these paragraphs Captain [B] expressly asserts that the Applicant was a party to the Charterparty and its rights to implement the arbitration clause. Further he asserts that the Charterparty was unenforceable for illegality and thus contrary to public policy under Malaysian law, which is the same allegation as is made in OA 27 under Singaporean law. However, he does not make any assertion to the effect that the Applicant was not a party to the Charterparty.

On 10 August 2022, the Respondent gave Notice of Arbitration.

Following submissions and a (remote) hearing, the Applicant’s application to set aside the Warrant was dismissed on 12 September 2022 by way of an order of court (the “Order”) issued in the High Court of Malaya at Kuala Lumpur the substantive terms of which were in the following terms:

No reasons were given for this conclusion but it is common ground that the question of whether or not the Applicant was a party to the Charterparty was not raised. This is not surprising in the light of the contents of Captain [B]’s affidavit. The Respondent and, no doubt, the court, proceeded on the basis that it was.

Following the failure of its attempt to have the Warrant set aside, the Applicant issued a further application on 12 September 2022, seeking release of the vessel on the provision of appropriate security. Paragraph 1 of the grounds for the application states:

This was supported by Captain [B]’s 2nd Affidavit. In paragraph 6 he repeats the reservation of rights and in paragraph 8.1 states:

On 15 September 2022 the Vessel broke arrest and thus the Application fell away and was subsequently dismissed.

The parties’ contentions

(1) The Respondent’s contentions

On the basis of these facts the Respondent contends that even if, on a proper interpretation of the Charterparty, the Applicant is not a party to the Charterparty, it is precluded by its conduct during the Malaysian proceedings from denying that it is a party. It relies on four grounds:

(a) Res judicata on the grounds of issue estoppel on the basis that the issue of whether the Applicant was a party to the Charterparty had been decided in the Set Aside application.

(b) Res judicata on the basis of the extended doctrine of res judicata identified in Henderson that if that issue had not been decided in the Set Aside application then it could and should have been raised and that to do so subsequently in the Arbitration proceedings and in OA 26 would be an abuse of process.

(c) Approbation and reprobation on the basis that having maintained the position that it was a party to the Charterparty so as to have standing to make the applications in the Malaysian proceedings, it could not thereafter adopt a different position in the Arbitration and in OA 26.

(d) On general principles of abuse of process having regard to the Applicant seeking to resile from the admissions made in Captain [B]’s affidavits.

Although the Respondent relied on seven different incidents in its oral submissions, they are all repetitions of the fundamental admission made in evidence by Captain [B] in his affidavits that the Applicant was a party to the Charterparty. Throughout the Malaysian proceedings it was never suggested to the contrary. In particular, there was no application to set aside the Writ in rem on the basis that, although the Applicant was the demise charterer of the Vessel, [Z] Service Limited and not the Applicant was the sole party to the Charterparty nor was there any express reservation of rights to raise that matter in the arbitration.

As is plain from the 2nd Affidavit of Mr [C], filed on 2 September 2024 in these proceedings on behalf of the Applicant, at all times until October 2022, the Applicant’s commercial manager for the Vessel was [Y] Ship Management Limited and up until that time the Applicant had entrusted the Vessel and all legal proceedings to Captain [B].

Since I am satisfied on the basis of all the documentation relied upon by the Respondent that Captain [B] was of the view that the Applicant was a party to the Charterparty and that the Respondent and the Malaysian court acted on that basis there is no need to consider all the incidents relied upon.

(2) The Applicant’s contentions

Whilst the Applicant does not dispute that Captain [B] made the representations relied on and accepts that no suggestion was made that it was not a party, it asserts that there is no abuse in raising it for the first time in the Arbitration, this being the appropriate tribunal to determine whether or not it has jurisdiction over the Applicant.

More specifically it contends that the doctrine of issue estoppel is inapplicable because the issue did not arise for determination in the Set Aside application and/or that the Order of 12 September 2022 was not a final order. So far as concerns the case based on Henderson and general principles of abuse of process are concerned, it contends that there was no abuse. Even if the issue could have been raised in the Malaysian proceedings there was no good reason why it should have been.

On approbation and reprobation, the Applicant contends that the statements made by Captain [B] constitute evidentiary admissions which were rebuttable and did not have the same standing as admissions in pleadings. The former were not conclusive and could be shown to be wrong. Hence, whilst the burden would be on the Applicant to prove that the admissions were wrong, the Arbitration was the appropriate forum in which to do so such that there was no impermissible reprobation in adopting that course. Further, in any event, it was a requirement of the doctrine of approbation and reprobation that the person against whom the doctrine was invoked had received an actual benefit as a result of the inconsistent positions being taken and that on the facts of this case there was no such benefit.

The applicable law

(1) Singapore law

It is common ground that the resolution of the issues is a matter of Singapore law.

The Court of Appeal decision in Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102 (“Merck Sharp”) considers the applicable legal principles on abuse of process and approbation and reprobation as well as issue estoppel in circumstances when the issues arise out of prior foreign proceedings.

Sundaresh Menon CJ, giving the judgment of the court said this (at [1]):

The learned Chief Justice first considered the issues of abuse of process and approbation and reprobation (at [20]–[22]):

On abuse of process, the relevant paragraphs from BWG v BWF [2020] 1 SLR 1296 (“BWG”), also a judgment delivered by Menon CJ, are as follows:

The doctrine of approbation and reprobation was considered in BWG at [102]–[118].

At [102], the court endorsed Belinda Ang J’s (as she then was) description of the doctrine in Treasure Valley Group Ltd v Saputra Teddy and another (Ultramarine Holdings Ltd, Intervener) [2006] 1 SLR(R) 358 at [31]:

That decision goes on to consider various authorities and concludes in [118]:

Turning then to consider issue estoppel, the underlying requirements under Singapore law are well-known and not in dispute.

They are set out in the leading textbook by Patrick Keane, Spencer Bower and Handley: Res Judicata (LexisNexis, 6th Ed, 2024) (at para 1.02):

Where however the issue in question arises out of foreign proceedings regard must also be had to the principles of law as developed in the foreign state. Merck Sharp concludes at [43]:

The test for issue estoppel in the context of transnational cases was considered further in The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 at [64] and [69]

(2) Malaysian law

It is thus necessary for this court to be instructed in Malaysian law unless the parties are agreed that it does not differ from the law of Singapore. Both parties sought leave to adduce evidence of Malaysian law by way of submissions pursuant to O 16 r 8 of the SICC Rules.

This was granted but the parties were unable to agree on the issues to be addressed. Following submissions the court identified the following issues:

Detailed written submission were provided on behalf of the Applicant by Ms Nik Azila Shuhada, a solicitor and partner in the firm of Messrs Shearn Delamore & Co and on behalf of the Respondent by Mr Arun Krishnalingam, a solicitor and partner in the firm of Messrs Sativale Mathew Arun. These were supplemented by brief oral submissions. I am grateful to both lawyers for the detail and clarity of their submissions which revealed a significant measure of agreement as to the applicable law, the disagreement being in the main on how that law should be applied to the facts of this case.

Having heard full submissions I am satisfied that, whilst an understanding of Malaysian law in relation to the first four questions is necessary in order to approach issue estoppel under the law of Singapore, the answer to Question 5 plays no part in this. Equally, I am satisfied that Malaysian law plays no part in reaching a decision on the other issues: Henderson, approbation and reprobation and abuse of process. Accordingly, it is not necessary to consider the fifth question further although it does appear that the Malaysian law approach differs little from that which would be applicable in Singapore.

Decision

(1) Issue estoppel

The Writ in rem was issued pursuant to s 24(b) of the Malaysian Courts of Judicature Act 1964 (as amended) which confers on the High Court of Malaya “the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981”.

Section 20 of the Supreme Court Act 1981 (c 54) (UK) (the “UK Act”) provides (so far as relevant):

Section 21(4) provides:

The action in rem was thus brought against the Vessel on the basis that there was a claim arising out of an agreement relating to carriage of goods on the Vessel and that the “relevant person” was the Applicant.

The Applicant then entered an unconditional appearance to the Writ in its capacity as Demise Charterer which it was entitled to do without leave as, in that capacity, it was a Defendant to the action pursuant to O 70 r 16 of the Malaysian Rules of Court 2012. As a result, the action became a hybrid action, in rem against the Vessel and in personam against the Applicant. This put the Applicant in a position either to seek to set aside the Warrant or to seek the release of the Vessel.

This it did and the ruling on the application to set aside the Warrant was in the form of the Order of 12 September 2022 (see [99] above). This is an order of court rather than a reasoned judgment but nonetheless the Respondent contends that it was final in the sense required for issue estoppel and that the other requirements of issue estoppel are met.

The Applicant contends that it was not a final decision and that the issue of whether or not the Applicant was a party to the Charterparty was not in issue and therefore was not a necessary part of the decision.

The starting point is to note that both experts accept that the decision on the application to set aside was interlocutory in the sense that it did not finally decide whether or not there had been a breach of the Charterparty. In order to obtain the Warrant, the Respondent had to raise a prima facie case of breach and the court in refusing to set aside the Warrant was not required to reach any conclusions on the merits of the case.

However, the Respondent submits that issue estoppel can operate on an interlocutory decision in respect of findings which are binding on the court, but it does appear from the cases cited that this relates to preliminary findings which are of a substantive nature in that they are finally decisive of an issue in the litigation. The Order relied upon is not decisive of anything save that the Warrant will not be set aside. It proceeds on the basis that the Respondent has made out a prima facie case that there has been a breach of the Charterparty (s 20(2) of the UK Act) and that the person who would be liable on the claim for breach was the owner or charterer of the Vessel (s 21(4) of the UK Act). It is thus not final as to the issue of whether the Applicant was liable on the claim. Indeed, the Applicant expressly reserved its right to have such matters resolved in the arbitration which is inconsistent with any decision on the Set Aside application being a final resolution.

The fact that the Order contains no reasons was not suggested to be a bar to it acting as a decision for the purposes of res judicata but is indicative that nothing was finally being decided on the application other than a refusal by the Judge to exercise his discretion to decline to set aside the Warrant.

I am thus satisfied that the Respondent’s case on issue estoppel fails at the first hurdle. The Order was not a final decision under Malaysian (or for that matter Singapore) law.

Equally it fails on the second aspect because it was not necessary for the purposes of the application to decide whether the Applicant was a party to the Charterparty. The Respondent had raised the necessary prima facie case and the issue was not raised by the Applicant. Had it done so, I have no doubt that the court would have declined to consider the question other than on a prima facie basis, leaving the substantive issue to be decided either in the arbitration or, following pleadings, in the courts of Malaysia.

(2) Henderson v Henderson

The Doctrine is based on the well-known words of Vice-Chancellor Wigram in Henderson:

It has been frequently applied in the courts of Singapore and the approach has recently been considered by the Court of Appeal in a judgment delivered by Steven Chong JCA in CIX v DGN [2025] 1 SLR 272 (“CIX v DGN”) where, having cited the wording of Wigram VC, he went on at [57]–[61]:

The substance and reality of the Writ in rem in Malaysia was that it was a preliminary step in an action for breach of contract which both parties anticipated would be resolved by way of arbitration. This can be seen from Captain [B]’s 1st Affidavit in which he reserved the Applicant’s right to refer the matter to arbitration was dated 21 July 2022, and from the Respondent’s Notice of Arbitration which was given on 10 August 2022.

What the Applicant did not do was expressly to reserve its right to challenge the jurisdiction of the Tribunal on the basis that it was not a party to the Charterparty. Instead, it allowed the Set Aside application to proceed on the acceptance that it was a party. Undoubtedly it could have made such an express reservation and it is plain on the facts of the case that it did not do so because Captain [B], whom it is accepted had been entrusted with the legal proceedings at that time, considered that the Applicant was a party.

However, had he viewed matters differently and had expressly reserved the right to challenge jurisdiction, no objection could thereafter have been taken to the question being raised in the Arbitration. There would have been no need to raise the matter for consideration in the Set Aside application if this had been done.

Viewed in this light I consider that the correct question is not whether the Applicant ought to have raised the issue for decision in the Set Aside application but whether it ought to have reserved its position expressly. The Respondent suggested that the correct course would have been for the Applicant to seek to strike out the Malaysian proceedings on the basis that it was not a party to the Charterparty. Whilst I accept that such an application was possible, since both parties accepted that that any dispute under the Charterparty fell to be resolved by way of arbitration, I do not see that it is a realistic suggestion.

In truth, if the Applicant had raised it as a consideration for the Judge to take into account in the exercise of his discretion whether or not to set aside the Warrant in the Applicant’s favour, the Judge might have done so (at least on a prima facie basis). The fact that it was not, if anything, therefore works in the Respondent’s favour.

In this case therefore, the Respondent is not being vexed twice in the sense that, had the issue been raised in the Set Aside application it would have been decided once and for all at the hearing that led up to the Order of 12 September 2022. Its complaint is that having not reserved its right to raise the issue in the (by then existing) arbitration proceedings, it should be barred from raising them later before the Tribunal. This is not a case of repeated litigation. There is no collateral attack on the earlier decision underlying the Order of 12 September 2022.

Looking at all the circumstances, I have concluded that the Applicant’s failure to reserve its right to challenge jurisdiction in the Arbitration during the Set Aside application is not such as to deny it the right later to do so. I consider that such a decision would be unfair on the Applicant and would not be in the interests of justice.

(3) Approbation and reprobation

The Respondent put its case in the course of oral submissions as follows:

The difficulty with this argument is that the right to arbitrate was first raised by Mr Van Huizen in paragraphs 25–27 and 32 of his affidavit of 8 July 2022 (see [95] above). In those passages he seeks to justify the granting of the Warrant as being security for its claim in the arbitration which had not been issued and reserved the Respondent’s right to do so. This was an acceptance that the claim underlying the application was a breach of the Charterparty to which Clause 41 applied. Clause 41, which Mr Van Huizen sets out in paragraph 25 of his affidavit, is in standard form as requiring any dispute including a dispute as to jurisdiction to be resolved by arbitration.

In order to obtain the benefit from the arrest of the Vessel, the Respondent would have to prove that there was a breach and, as recognised by Mr Van Huisen, the only way to do this was by way of arbitration. I therefore cannot accept that Captain [B]’s statement in paragraph 4 of his 1st affidavit (see [96] above) that the Applicant reserved its right to require that the dispute be referred to arbitration on the basis that the Charterparty “was entered into between the Plaintiff and Defendant” played any part in the Respondent’s decision to commence the Arbitration.

Both parties had reserved the right to commence arbitration proceedings because any dispute as to whether there had been a breach would fall to be determined by arbitration, it was therefore a question of which party commenced the arbitration. Had the Applicant reserved its right to contest jurisdiction, the position would have been no different. This would have had to be resolved in the arbitration, the option of unilaterally requiring the Malaysian court to do so did not exist.

Since benefit is a necessary ingredient of a successful claim based on approbation and reprobation, on the facts of this case, any such claim would fail.

(4) Abuse of process

The focus of the Respondent’s case on abuse of process was on the acceptance by Captain [B] in his affidavits that the Applicant was a party to the Charterparty. Such affidavits are sworn documents which are evidence of the truth of the facts alleged in them (see Clarkson v Future Resources FZE [2022] EWCA Civ 230 at [47]). The Respondent contends that it is thus not easy to resile from the contents of such statements and in the circumstances of this case it would be an abuse of process for the Applicant to be permitted to resile from its position as averred by Captain [B].

In the Respondent’s written submissions, this issue was considered last of the four and briefly. In oral submissions it was elevated to a primary submission. In response to a question from the court as to whether the Respondent could succeed on issue estoppel if the Respondent lost on abuse of process or approbation and reprobation Ms Song said this:

Henderson prevents a party, in an appropriate case, from raising in a subsequent case an issue that could and should have been brought in the previous litigation on the basis that it would be an abuse of process to permit this to be done. The relevant considerations focus on whether in all the circumstances it would be just to debar the party in question from raising the issue subsequently. The balance is between the public interest in the finality of litigation and the interests of justice. As Chong JCA put it in CIX v DGN (see [141] above) it is:

An admission made in an affidavit relied upon in litigation stands in my view in no different position to an admission made in a pleading. A party will not lightly be allowed to resile from it. The Respondent drew my attention to the case of Recovery Vehicles Pte Ltd v Industries Chimiques du Senegal [2021] 1 SLR 342 in which the Court of Appeal at [111] aligned itself with the observations of Buckley LJ in the English Court of Appeal in Bryanston Finance Ltd v De Vries [1976] 1 Ch 63 at 77. This was a case in which the appellants sought to resile from a concession made before the first instance judge. Buckley LJ observed:

In a Henderson situation the later court is assessing whether or not justice requires that the issue in question should be entertained. In the case of seeking to resile from a previous admission or concession, again the question is whether the interests of justice should allow this to be done in the circumstances. In neither case will the discretion lightly be exercised in favour of the party seeking the indulgence of the court.

In the former case the question is whether the issue should have been raised and in the latter there is, in addition, an explanation as to why it was not raised. I do not see that the principles which should guide the exercise of discretion should be any different in a case such as the present where allowing the issue to be ventilated in the subsequent proceedings necessarily involves permitting a party to resile from an admission made in the previous litigation. The two go hand-in-hand.

Accordingly, by parity of reasoning for the rejection of the Respondent’s case based on Henderson likewise would fail.

Conclusion on OA 26

For the reasons given, I am satisfied that the Applicant is a party to the Charterparty and hence is bound by the arbitration clause (ie, Clause 41). Had it not been, none of the grounds for contending that it should nonetheless be bound by its conduct from denying that it was a party would have succeeded.

OA 27

The relief sought in OA 27 is set out at [5] above but for convenience I shall repeat it here:

The Applicant contends that the purpose of Clause 13 of the Charterparty was to avoid or circumvent banking sanctions through the use of the bills of lading and other documents with inaccurate details so as to avoid naming Iran or the Iranian ports of Bandar Abbas and Bandar Imam Khomeni in such documents. These documents were intended to be presented to banks or other financial institutions for payment of freight or negotiation of letters of credit through the Singapore or international banking system.

Hence it is said that the performance of the Charterparty would involve the parties generating important mercantile documents so as to hide, conceal or misrepresent the true facts to any bank. This would render the Charterparty non-arbitrable under the established heads of common law illegality and thus be contrary to the public policy of Singapore.

Clause 13 of the Charterparty reads as follows:

In the Amended Statement of Respondent’s Defence in the Arbitration the Applicant raised a plea of illegality and also contended that the Charterparty was void and unenforceable on the grounds of illegality such that the Charterparty was unenforceable as being against the public policy of Singapore.

However, no application has been made to the Tribunal for a preliminary ruling on whether the dispute is arbitrable. But for this application, having been raised in the pleadings in the Arbitration, the matter would fall to be decided by the Tribunal as part of its final award. The Applicant however contends that this would be an inappropriate course to take and that by virtue of s 11 of the International Arbitration Act 1994 (2020 Rev Ed) (the “IAA”) it is appropriate for this Court rather than the Tribunal to rule on issues of public policy. Section 11 provides:

The Respondent disputes that the Applicant is entitled to the relief sought on three primary grounds:

(a) That this Court lacks the jurisdiction or power to grant the declarations sought. The power to determine whether or not a given arbitral tribunal has jurisdiction is vested in the tribunal by ss 10(2) and 10(3) of the IAA which provides:

(b) That the subject matter of the issue is plainly arbitrable as it is a dispute as to breach of the Charterparty which falls within the wide ambit of the Clause 41 and does not cease to be arbitrable because an allegation of illegality or public policy is involved.

(c) That the issues of whether the Charterparty is unenforceable for alleged illegality or public policy is a substantive issue which goes to the merits of the underlying dispute which is for the Tribunal to rule upon.

I find it convenient to consider the third ground first.

The third issue – illegality

The foundation of the relief sought that the Charterparty is non-arbitrable or unenforceable on the grounds of public policy lies in the assertion that the terms of Clause 13 of the Charterparty render the Charterparty void and unenforceable.

The Applicant alleges that this is plain on the face of the clause. The Respondent disagrees. It contends that read in context, particularly in the light of Clause 11, there is no illegality.

Mr [D], the Respondent’s Trade Operations Manager swore an affidavit in reply on this application dated 18 October 2024. In paragraphs 59–64, he deposes as follows:

There is thus a dispute as to whether Clause 13 is inciting an illegal act or whether it is in context part of a matrix of clauses designed to avoid an illegal act.

I accept the Respondent’s contention that this is plainly a dispute “arising out of or in connection with this Charter Party, including any questions as to its existence, validity or termination” which “shall be referred to and finally resolved by arbitration”.

Accordingly, the Applicant was both entitled and correct to plead the issues of illegality and public policy in its Defence in the Arbitration as it did in the Amended Defence cited above.

Were the Tribunal to resolve the dispute, it would have to construe the relevant clauses of the Charterparty to determine whether or not the clauses are invalid, which may well require the admission of expert evidence as to customs in the trade. It would then have to decide whether or not such illegality rendered the Charterparty as a whole void and, if so, whether this also applied to the arbitration agreement encapsulated in Clause 41. Finally, it would have to decide whether the illegality involved rendered the Charterparty non-arbitrable and/or contrary to public policy.

The decisions made by the Tribunal would be encapsulated in an award which could then be subject to a review by the Singapore courts on the grounds set out in Art 34 of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), which is given force of law in Singapore by s 3 of the IAA. Article 34, so far as relevant provides:

It can thus be seen that what the Applicant is seeking to do by virtue of this application is to have the court perform the role of the primary decider of issues of fact and law, rather than being the appellate tribunal with powers limited by Art 34 following an award by the Tribunal.

The Applicant contends that the court has power to exercise its discretionary powers to grant the declarations sought so as to declare the dispute non-arbitrable and thus deprive the Tribunal of the power to rule upon the matter and that this is an appropriate case for it to do so.

This leads back to the first and second issues.

The first issue – the power to grant the declarations

It is trite law that an arbitral tribunal will not have jurisdiction over disputes that are non-arbitrable: Arbitration in Singapore: A Practical Guide (Sundaresh Menon ed-in-chief) (Sweet & Maxwell, 2nd Edn, 2018) at para 10.017. Further s 10(2) of the IAA provides that a properly constituted tribunal itself has the power to determine whether or not it lacks jurisdiction. That this extends to questions of lack of jurisdiction on the grounds of non-arbitrability and potential conflicts with public policy is apparent from the potential for an award on these matters to be set aside under Art 34(2)(b) of the Model Law as set out above.

The Applicant relies on s 11 of the IAA as giving the court the right also to grant a declaration that the dispute is non-arbitrable and/or contrary to public policy.

This question was considered by the Court of Appeal in Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732 (“Sun Travels”) where at [131]–[135] Chong JCA, giving the judgment of the court said this:

Sun Travels thus upholds the policy of minimal curial intervention in arbitral proceedings as was observed by Hri Kumar Nair J in DMZ v DNA [2025] SGHC 31 at [24]–[25]:

LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd (“LW Infrastructure”) [2013] 1 SLR 125 was an appeal to the Court of Appeal involving an award made under the Arbitration Act 2001 (the “AA”), the domestic arbitration act. Section 48 of the AA setting out the powers of the court to set aside an arbitral award is in the same terms as Art 34 of the Model Law and the court drew upon the Model Law in seeking guidance for the interpretation of the domestic AA (at [34]).

At [35], Sundaresh Menon JA (as he then was), giving the judgment of the court relied upon Art 5 of the Model Law and went on to say (at [36]–[38]):

On the basis of these cases I am satisfied that whilst this court has a wide power to grant declarations, this power will not be exercised in circumstances where the legislation has made provision for seeking relief by way of a set aside application. In those circumstances there is no residual or concurrent jurisdiction for a court to make a declaration which pre-empts an arbitral tribunal’s decision on a matter expressly governed by the Model Law.

The second issue – is the dispute arbitrable?

This issue seeks to suggest that because the dispute involves a consideration of the public policy of Singapore it should not be susceptible to resolution by the Tribunal and that it is therefore appropriate to be resolved by direct intervention in the Court.

I do not agree. The assertion that the Charterparty is unenforceable because it is against the public policy of Singapore is (said to be) a consequence of the alleged illegality which renders the Charterparty void. Resolution of the allegation of illegality is something that the Tribunal is empowered to do pursuant to Clause 41 as indicated in [176]–[177] above. This is accepted by the Applicant by the fact that it has pleaded the issue in its Amended Statement of Respondent’s Defence.

The issue of illegality is thus arbitrable and would involve the Tribunal addressing the issues considered in [168]. Following the Tribunal’s award, the national court has the power granted by Art 34 to consider whether to set that award aside on either of the grounds set out in Art 34(2)(b) if it is satisfied that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State.

Conclusion on OA 27

Drawing this together, the court’s power to grant declarations will not be exercised in circumstances where the legislation has made provision for seeking relief by way of a set aside application under Art 34 of the Model Law. This extends to decisions by an arbitral tribunal in a given case that the subject matter of the dispute is non-arbitrable or in conflict with public policy.

The dispute in this case is whether or not, because of the alleged illegality, the subject matter of the Charterparty is non-arbitrable or contrary to public policy. This has been raised before and should be decided in the first instance by the Tribunal and not by this court in the exercise of its discretionary powers.

OA 27 will therefore be dismissed.

Submissions on foreign law

In [36]–[39] above, I referred to a previous CMC on 19 February 2025 at which I had given permission for expert evidence on foreign law to be given by way of submissions pursuant to O 16 r 8 of the SICC Rules. At that CMC an issue arose as to the scope of O 16 r 8 as is illustrated by the following interchange between Ms Song and the Court:

I then gave the directions set out in [37] above from which it will be clear that I did not accept Ms Song’s submissions on O 16 r 8. I indicated that I would give my reasons for doing so in this judgment.

O 16 r 8 provides:

The reference to “proof” of a question of foreign law is to the underlying common law principle that foreign law is deemed to be a question of fact which means that the court must determine it based on the evidence presented (Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R) 491 at [54]).

As with any question of fact, it must be pleaded with adequate particulars and in a responsive pleading admissions can be made or rival contentions as to the correct foreign law can be pleaded, again with proper particulars. This enables the disputed issues to be identifiable and affidavits or witness statements from experts in the foreign law to be adduced which can then, if necessary, be the subject of cross-examination. This allows the judge to determine on the balance of probabilities what the foreign law in issue is and to apply it to the facts of the case.

Lord Neuberger, in Actavis UK Limited and others v Eli Lilly & Co [2017] UKSC 48 at [93], observed that the notion that findings of foreign law are findings of fact is “somewhat artificial” and it can be seen that the process by which it is to be approached as set out above is somewhat cumbersome. Similar sentiments have also been expressed by the Court of Appeal in EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR 860 at [57]. But it does provide a structured approach to identifying the aspects of foreign law that are in dispute and permits the evidence to be focused on those.

The SICC was instituted following the publication of the Report of the Singapore International Commercial Court Committee (29 November 2013) (Co-chairmen: Indranee Rajah and V K Rajah) (“SICC Committee Report”). In paragraph 34 it stated:

The SICC Committee Report went on to consider the appearance by foreign counsel in cases before the SICC in paragraphs 36 and 37:

These proposals were adopted in O 110 r 25 of the Rules of Court (2014 Rev Ed) (the predecessor provision to O 16 r 8 of the SICC Rules) which provides:

In relation to the definition of an offshore case, O 3 r 3 of the SICC Rules expressly provides that:

Hence these applications cannot be considered to fall within the ambit of the offshore case provisions which do provide for foreign counsel to represent a party in a case before the Singapore courts (see O 3 r 1 of the SICC Rules).

It is with this background that the scope of O 16 r 8 of the SICC Rules falls to be assessed. It relates to the determination of a question of foreign law on the basis of submissions instead of proof by a specific person who may make submissions on that question. Read in context and, particularly having regard to the wider provisions relating to representation in offshore cases, O 16 r 8 goes no further than permitting submissions as a substitute for proof in the manner required in the GDHC (see [199]–[200] above). Hence, there is no requirement for the matter to be the subject of pleadings, the written submissions will take the place of written expert reports and any oral submissions will replace cross-examination.

For these reasons, I was unable to accept Ms Song’s submission that foreign counsel could make submissions on the substance of the case rather than solely addressing the question of foreign law and gave the limited direction for further submissions set out in [37] above (see [196]–[197] above).

Since there will be no requirement that there be pleadings, a degree of robust case management will be necessary in order to ensure that any questions of foreign law are identified and focused down to areas that are truly in dispute at any early stage so as to avoid wide ranging submissions on questions of foreign law that are not in dispute. Such a course will, hopefully, also limit the need to incur the time and expense of oral submissions. With the benefit of hindsight, I fear that the directions given in this case were insufficiently robust.

Conclusion

In sum, both OA 26 and OA 27 are dismissed.

Costs