DNO v DNP [2025] SGHC(I) 24

Introduction

SIC/OA 4/2025 (“OA 4”) is an application brought by DNO seeking an order setting aside an arbitral award dated 25 July 2024 (the “Award”), in an arbitration administered by the Singapore International Arbitration Centre (the “SIAC”). The respondent to these proceedings is DNP.

DNP is a commodities trading company incorporated in Singapore; it was the claimant in the arbitration. The respondent in the arbitration was a partnership firm, which I shall refer to as the “Partnership”. The Partnership carried on the business of exporting and marketing cashew nuts. DNP and the Partnership were parties to agreements which were central to the dispute before the sole arbitrator in the arbitration (the “Tribunal” or the “Sole Arbitrator”). DNO (the applicant in the present proceedings) contends that the Partnership was converted into the company, DNO, on 30 March 2024, and that DNO has standing to challenge the Award in these proceedings. DNP contends that DNO bears the onus of establishing that it has standing and that it has failed to discharge that onus. DNP has adduced some evidence that, it contends, demonstrates the continued existence of the Partnership. I will address the issue of standing at the beginning of my consideration of the issues.

There are two grounds of challenge to the Award. First, DNO alleges that breaches of the rules of natural justice occurred in connection with the making of the Award, whereby its rights have been prejudiced: see s 24(b) of the International Arbitration Act 1994 (2020 Rev Ed) (the “IAA”). Secondly, DNO contends that the Award is in conflict with the public policy of Singapore: see First Schedule of the IAA, Art 34(2)(b)(ii) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”).

The Tribunal delivered lengthy reasons explaining in detail the basis upon which it made the Award. In the proceedings before this court, each party provided detailed written submissions; those submissions were supplemented by oral submissions. As I will explain, a number of DNO’s submissions seemed to proceed on the mistaken view that OA 4 involved an appeal on questions of fact and law.

The Tribunal awarded DNP damages of US$33,009.53 and INR22,432,076.68 plus simple interest. A counterclaim brought by the Partnership was dismissed. I reproduce below a table summarising the damages awarded to DNP:

One of the key documents in the dispute between the parties is a Memorandum of Understanding dated 24 July 2020 (the “MOU”). The parties to the MOU are DNP and the Partnership. The MOU contains the arbitration clause, which is to the effect that any disputes arising out of the MOU shall be governed under Singapore laws and be subject to arbitration in Singapore under the Singapore International Arbitration Centre Rules 2016 (the “SIAC Rules”).

The other participant in the relevant events should be mentioned at this stage – I will refer to this participant as “Company N”. DNP owns 99.998% of the shares in Company N, and the balance of the shares are owned by the chairman of DNP. Company N is effectively a subsidiary of DNP, and I will refer to it in this way.

The principal witnesses before the Tribunal and before this court in OA 4 were a director of DNO (“Mr A”) and a senior executive director of DNP (“Mr Z”).

The Facts

The Sales Contracts

The broad details of the Sales Contracts were set out in para 227 of the Award, reproduced below:

1

12.02.2020

015/RCNSG/2020-21 (“015 S&P”)

Ivory Coast

500

1,260.00

2

19.02.2020

022/RCNSG/2020-21 (“022 S&P”)

Ivory Coast

500

1,185.00

3

19.02.2020

023/RCNSG/2020-21 (“023 S&P”)

Burkina Faso

700

1,125.00

4

21.02.2020

024/RCNSG/2020-21 (“024 S&P”)

Ivory Coast

500

1,150.00

5

27.02.2020

034/RCNSG/2020-21 (“034 S&P”)

Burkina Faso

1,000

1,050.00

6

15.05.2020

083/RCNSG/2020-21 (“083 S&P”)

Ghana

500

950.00

7

15.05.2020

084/RCNSG/2020-21 (“084 S&P”)

Ivory Coast

500

950.00

8

15.05.2020

085/RCNSG/2020-21 (“085 S&P”)

Burkina Faso

500

900.00

Each Sales Contract comprised the details of the particular contract and DNP’s general terms and conditions for all sales contracts concerning the sale and purchase of raw cashew nuts. There are clauses in the Sales Contracts which are relevant to particular disputes between the parties, which I will set out in the relevant context.

As a result of a lockdown in India due to the COVID-19 pandemic, there were extensions of the delivery dates of the Cargo effected by addendums to the various Sales Contracts. It is not necessary for me to set out the details of these addendums.

From around 4 April 2020 to 30 June 2020, DNP shipped approximately 4,825.80mt of Cargo to the Mangalore port in India. As of 24 July 2020, approximately 1,850mt of the Cargo had arrived at the Mangalore port (the “Arrived Cargo”). The remaining cargo that had been shipped, but which had not yet arrived, consisted of approximately 2,975.80mt of Cargo (the “Remaining Cargo”).

The Partnership was required to pay monies under the Sales Contracts, consisting of advances in some cases, and the purchase price. It had not done so, and this led to correspondence between the parties.

The MOU

On 24 July 2020, DNP and the Partnership entered into the MOU. It is an important document, which I set out in full below. It may seem that some of the phrasing in the MOU is less than perfect, but that was not an issue before the Tribunal or before this court.

The preamble in this document identifies some of the important events which led to the execution of the MOU.

Clause 6 of the MOU required the Partnership to make a deposit payment amounting to 10% of arrived cargo value to Company N, within 30 days from the date of the MOU (the “10% Deposit”). The Partnership was also required to pay an advance amounting to 10% of the already arrived and cleared cargo value to DNP within the same timeframe (the “10% Advance”). The Tribunal referred to these payments together as the “MOU Advances”, a convenient description which I adopt in these reasons.

The effect of cl 6 was to require that the Partnership pay the MOU Advances by 23 August 2020. The Tribunal found that the value of the Arrived Cargo, as of 24 July 2020, was approximately US$2,174,824.41. Therefore, cl 6 required the payment of approximately US$217,482.44 for the 10% Deposit and the same amount for the 10% Advance.

Before the Tribunal, DNP contended that the last batch of Cargo was cleared on or about 6 August 2020 and that therefore, the due date for payment of the Clearing Charges was no later than 21 August 2020. DNP also contended that the Clearing Charges amounted to INR38,874,020.89 as at 19 August 2020 and US$529,192.14 as at 30 September 2020.

In addition to the obligations with respect to MOU Advances, cl 6 of the MOU required the Partnership to “clear all goods against payment within 90 days” (ie, by 22 October 2020). On this analysis, and bearing in mind the effect of cl 1 of the MOU, the amount payable by the Partnership by 22 October 2020 would have been the total of (a) the balance 80% of the purchase price of the Arrived Cargo; (b) the purchase price of the Remaining Cargo; and (c) the further Clearing Charges incurred by Company N on DNP’s behalf. The Partnership was to take delivery of all of the Cargo by 22 October 2020.

A particular point about the third Sales Contract dated 19 February 2020 (the 023 S&P, or the “third Sales Contract”) should be noted at this stage. The subject of that contract was Cargo originating from Burkina Faso, West Africa (the “Burkina Faso 023 Cargo”). The Burkina Faso 023 Cargo was cleared on 1 August 2020, but did not meet the quality specifications (known as “outturn rates”) in the 023 S&P. The outturn rates of the Burkina Faso 023 Cargo were between 43.48lb per 80kg to 45.70lb per 80kg, whereas the contract provided for a rate of about 48lb per 80kg.

The parties had discussions about the matter. While the contract provided for a penalty, the Partnership sought a discount in addition to the penalty. There were discussions between the parties about a possible discount, but the Tribunal found that nothing was agreed. DNO complains about this conclusion, and I will consider that complaint later in these reasons.

By 23 August 2020, the Partnership had paid INR6,000,000 (equivalent to US$80,145.52), which was less than one-fifth of the MOU Advances and the Clearing Charges. Those Advances and Charges were already due under the MOU. DNP became increasingly concerned that the Partnership had not paid amounts that had fallen due.

In early September 2020, the Partnership made a payment of US$50,000 against the 10% Advance. Further correspondence passed between the parties concerning the Partnership’s request for a discount in relation to the Burkina Faso 023 Cargo delivered under the third Sales Contract, and DNP indicated to the Partnership that it wanted to take back that cargo.

The Tribunal found that towards the end of September 2020, DNP and the Partnership agreed that the Partnership would pay the MOU Advances and the Clearing Charges by 30 September 2020 and that if it did not do so, DNP would be able to terminate the MOU and sell the Cargo to third parties. The balance of the amounts which were due or would become due was to be paid within 90 days, that is, by 22 October 2020.

The Partnership made a payment of US$112,776.45 towards the 10% Deposit on 9 September 2020, and payments totalling INR15,200,000 towards the Clearing Charges from 17 August 2020 to 16 September 2020. However, it was not disputed by the Partnership that the bulk of the MOU Advances and Clearing Charges had not been paid by 30 September 2020.

Termination of the MOU

On 1 October 2020, DNP gave notice to the Partnership that it considered that the MOU was at an end, and that it was free to sell the Cargo to third parties. It sold the goods to third parties in the second half of October 2020.

DNP’s claim for damages in the arbitration comprised (a) an amount representing the difference between the contract price and the amount received by DNP on resale of the Cargo to third parties; and (b) amounts for the various items which I have described as the Clearing Charges. It was not in dispute that payments made by the Partnership were to be deducted from these amounts.

The Partnership’s counterclaim for damages (the “Counterclaim”) was based on the allegation that it had lawfully terminated the MOU on 22 October 2020. The Tribunal found that the Partnership’s purported termination had no legal effect, having regard to its eventual finding that DNP was entitled to, and did terminate, the MOU on 1 October 2020.

The Indian Court Proceedings

The Partnership provided eight post-dated cheques to Company N in respect of Clearing Charges. The Partnership alleged that due to concerns about the quality of supplied cashews and a suspicion that DNP was selling the Cargo to third parties, it issued stop-payment instructions to its bank for these cheques, on the basis that the sums reflected in the cheques were neither due nor payable by the Partnership. Five of the cheques which the Partnership gave to Company N were not honoured.

Between 22 January 2021 and 9 April 2021, Company N commenced five proceedings in the Indian courts, seeking to recover INR30,300,000 in respect of the Clearing Charges (the “Indian Court Proceedings”). Company N alleged that as custodian of the Cargo, it had provided services to the Partnership and was entitled to recover that amount. A claim for that amount in respect of Clearing Charges was also made by DNP in the arbitration.

A Brief Overview of the Issues

I set out below the issues before this court:

(a) Does DNO have standing to pursue its claim for an order setting aside the Award?

(b) Did the Tribunal’s refusal of the Partnership’s application to amend its Defence and Counterclaim in the arbitration (the “Amendment Application”) involve a breach of the rules of natural justice in connection with the making of the Award, whereby the rights of the Partnership/DNO have been prejudiced?

(c) With respect to four particular matters in the Award, did the Tribunal’s findings and conclusions as to those matters or any one of them involve a breach of the rules of natural justice in connection with the making of the Award, whereby the rights of the Partnership/DNO have been prejudiced?

(d) Does certain conduct of DNP, which I identify, mean that the Award is in conflict with the public policy of Singapore?

A recurring claim in DNO’s submissions is that if any party was entitled to recover the amounts claimed by DNP in the arbitration (a claim which DNO denied), it was Company N and not DNP. Alternatively, DNO claimed that DNP did not establish that it was entitled to claim the amounts. I address this matter at [201]–[206] below.

The Standing Issue

DNO is the applicant in these proceedings. The Partnership was the respondent in the arbitration. DNO is a company, whereas the Partnership was a registered partnership. Generally speaking, the onus is on the applicant in the proceedings to establish that it has standing to bring the action (Phoa Eugene v Oey Liang (alias Henry Kasenda) [2024] 4 SLR 1108 at [43]). In some circumstances, there might be an evidential onus on the party asserting that the other party does not have standing. However, I do not need to consider that issue, because I have reached the conclusion that DNO has established standing to bring this action.

It is important to identify the area of dispute at the outset. In view of the documents before the court, I am prepared to accept that the relevant authorities in India had the power to register as a company limited by shares an entity that was previously a registered partnership. DNP has not asserted otherwise. Instead, the point that DNP makes is that DNO has not established that the Partnership is no longer in existence; DNP has produced some evidence that suggests that it does. The onus is on DNO to persuade the court that on the whole of the evidence, a conversion of the registered partnership to a company had taken place.

The Relevant Legal Principles

In the circumstances of this case, the legal principles relevant to standing are as follows.

First, the law of the place of incorporation of a foreign corporation governs issues relating to the incorporation, including whether an entity exists as a matter of law and has a separate legal existence, and whether a corporation has been dissolved (JX Holdings Inc and another v Singapore Airlines Ltd [2016] 5 SLR 988 at [21]; Dicey, Morris and Collins on The Conflict of Laws vol 1 (Lord Collins of Mapesbury and Professor Jonathan Harris gen ed) (Sweet & Maxwell, 16th Ed, 2022) at paras 30-010–30-012). In this case, the court must look to the law of India.

Secondly, the legal test which DNO must satisfy in order to establish standing has been expressed as whether the legal personality of the Partnership merged into and was assumed by DNO such that they are, for all intents and purposes, the same entity (National Oilwell Varco Norway AS (formerly known as Hydralift AS) v Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd) [2022] 2 SLR 115 at [24]–[25]). This is the test I will apply.

Thirdly, the content and effect of foreign law is a matter of fact and is to be proved in the same way as any other matter of fact (EFT Holdings, Inc and another v Marinteknik Shipbuilders (S) Pte Ltd and another [2014] 1 SLR(R) 860 at [54]; Pacific Recreation Pte Ltd v SY Technology Inc and another appeal [2008] 2 SLR(R) 491 (“Pacific Recreation”) at [54]). Ordinarily, proof of the content and effect of foreign law will come from an expert in the foreign law in issue. There is authority that “raw sources” of foreign law may be admissible pursuant to s 59 (1)(b) of the Evidence Act 1893 (2020 Rev Ed) (Pacific Recreation at [55]–[60]). However, the court is not obliged to accord evidentiary weight to raw sources. In Pacific Recreation (at [60]), the Court of Appeal identified matters relevant to whether the court will accord evidentiary weight to raw sources. An example of a case where the evidence adduced by a party was not sufficient to establish the content and effect of foreign law is Abdul Rashid bin Abdul Manaf v Hii Yii Ann [2014] 4 SLR 1042 (“Abdul Rashid”). In that case, the High Court held that a party who had adduced several English cases as to English law had not discharged the burden of establishing to the court’s satisfaction, the content and effect of English law (Abdul Rashid at [30]–[32]).

Fourthly, the Singapore International Commercial Court Rules 2021 (the “SICC Rules”) contain rules dealing with the adducing of expert evidence (see O 14 of the SICC Rules). The permission of the court is required to adduce expert evidence. The SICC Rules specify the matters which are to be included in an expert’s report; these include the expert’s sources, the facts (assumed or otherwise) relied on by the expert, and the reasons for the expert’s opinion. There is another avenue in the SICC Rules which is available to a party who wishes to put before the court material as to the content and effect of foreign law. This may be done by following the procedure in O 16 of the SICC Rules. If that is done, the court may order that the question of foreign law be determined on the basis of submissions instead of proof. In this case, DNO did not pursue either avenue for the purpose of establishing Indian law. In fact, on more than one occasion during the pre-trial hearings, counsel for DNO said that DNO would not be adducing expert evidence on Indian law and did not consider it necessary to do so.

The Relevant Facts

I turn now to the facts.

In Mr A’s first affidavit, he makes one statement relevant to the standing of DNO, and that is that the Partnership was converted into the company, DNO, on 31 March 2024. In Mr Z’s affidavit in response, he addresses the matters which form the basis of DNP’s submissions on DNO’s standing to challenge the Award. Some of the matters in his affidavit are submissions rather than evidence of facts; such submissions are to be ignored for the purposes of determining the facts.

The GST Returns

Mr Z states that DNP had conducted a search of the relevant records in India, and that he had formed the opinion that the Partnership and DNO “appeared to be 2 separate entities and [the Partnership] continues to exist as an ‘active entity’”. The records to which he refers are Goods and Services Taxation Returns (“GST Returns”). According to Mr Z, the Partnership continued to file GST Returns for itself after the incorporation of DNO on 30 March 2024, and did so as recently as October 2024. Mr Z’s affidavit was affirmed on 5 November 2024.

Mr Z refers to the information to be included in the GST Returns as indicated in the forms themselves, including details of the outward supplies of goods and services and the purpose of the GST Returns, namely, “for taxpayers to declare their summary GST liabilities for a particular tax period and discharge these liabilities”. Mr Z produces the GST Returns, which also refer to Mr A as a registered partner of the Partnership.

DNO’s Certificate of Incorporation

Mr A filed an affidavit dealing with the question of standing in response to Mr Z’s affidavit. Like Mr Z, he makes a number of submissions in the affidavit. Those submissions are to be ignored.

Mr A begins by referring to DNO’s Certificate of Incorporation, which he exhibits in his affidavit. The certificate establishes that DNO was incorporated on 30 March 2024 pursuant to the Companies Act, 2013 (India) (the “Indian Companies Act”) and the Companies (Incorporation) Rules, 2014 (India).

Application under Section 366 of the Indian Companies Act

Mr A exhibits documents pertaining to an application made under s 366 of the Indian Companies Act. I will return to this provision when considering DNO’s reliance on various legislative provisions. At this juncture, it suffices to note that, as DNO asserts, s 366 of the Indian Companies Act deals with the power of a partnership firm to register as, among other alternatives, a company limited by shares.

Mr A produces part of a form titled “Form No. URC-1” (the “Form”). On the face of the Form, it is an application by the Partnership under s 366 of the Indian Companies Act. The Partnership is named as the “existing entity”, a partnership firm. DNO is listed as the “proposed company”, a company limited by shares. Mr A completed the Form as a proposed director of DNO on 29 March 2024.

In his affidavit, Mr A exhibits the documents which accompanied the application. I summarise the pertinent documents below:

Mr A also refers to the steps DNO undertook in order to be able to commence business. In the course of his description, he refers to the relevant sections of the Indian Companies Act and the relevant rules.

Document Signed by DNO’s Chartered Accountant

In addition to the aforementioned documents, DNO sought to rely on a document signed by its chartered accountant, dated 21 May 2020. This document refers to the conversion of the Partnership to DNO. DNP submits that the court should not place any reliance on this document. I did not hear detailed argument on the point. It seems to me that DNP is right, because the basis upon which the chartered accountant was able to make the statement is quite unclear.

DNO’s Evidence on the GST Returns

I turn now to Mr A’s evidence with respect to the fact that the Partnership was filing GST Returns after the incorporation of DNO. Mr A gave the following evidence:

Mr A’s evidence does not explain why the Partnership continued to file GST Returns after the incorporation of DNO, and is only now in the process of de-registering its GST registration.

Applicable Provisions of Indian Law

Section 366 of the Indian Companies Act, as relied upon by DNO, is in the following terms:

I am prepared to place weight on s 366 of the Indian Companies Act, but only to a limited extent. The section, together with the documents previously referred to at [48]–[50] above, establishes that there is power for a registered partnership to register as a company limited by shares in India. I should say that proposition is supported by the documents alone.

DNO also set out in its written submissions ss 10A and 370 of the Indian Companies Act, which are provisions concerning, respectively, the commencement of business and the continuation of pending legal proceedings. It is not necessary for me to set out those provisions, as it is not entirely clear what reliance DNO is asking the court to place on these sections. Insofar as DNO submits that it “relies on Indian law only to […] address the [DNP’s] misunderstandings [that the Partnership and DNO are two different entities under Indian law]”, I consider this purpose to be irrelevant.

Conclusion

I have given the question of standing anxious consideration. Having regard to the whole of the evidence, I am satisfied that on or about 30 March 2024, the legal personality of the Partnership was merged into and assumed by DNO, such that they are, for all intents and purposes, the same entity. In my opinion, the application, the documents accompanying the application, and the fact that the Certificate of Incorporation for DNO was issued almost immediately after the date of the application, provide strong support for that conclusion.

The existence of the GST Returns must be taken into account, but to my mind, it is significant that they recorded nil taxable supplies inward and outward, and Mr A gave evidence that DNO was in the process of cancelling the Partnership’s GST registration. In other words, I am prepared to infer that it was open for the Partnership’s GST registration to be cancelled at or about the time of DNO’s incorporation.

For these reasons, I have reached the conclusion that DNO has standing to challenge the Award and apply to have it set aside. In the following sections of the judgment, I use the terms “DNO” and the “Partnership” interchangeably; they should be taken as referring to the same entity for present purposes.

The Natural Justice Issue

DNO contends that breaches of natural justice occurred in connection with the making of the Award, whereby its rights have been prejudiced. For convenience, I will refer to this ground as the “breach of natural justice ground”; I do not overlook the fact that there are two other elements in the ground, namely that (a) the breach must have occurred in connection with the making of the Award; and (b) the breach must have caused prejudice to DNO’s rights.

DNO has alleged two separate breaches of natural justice in relation to (a) the Tribunal’s denial of the Amendment Application; (b) purportedly “inconsistent and/or defective” reasoning on the part of the Tribunal in the Award. I will address the breaches in turn.

The Amendment Application

DNO contends that there was a breach of natural justice in connection with the Tribunal’s refusal of an application by the Partnership to amend its Defence and Counterclaim before the evidentiary hearing (the Amendment Application). It is important to note at the outset that DNO does not contend that it was prevented in any way from putting to the Tribunal on the hearing of the Amendment Application all the submissions it wished to put. Nor did DNO contend that the Tribunal’s summary of its submissions on the Amendment Application was in any way deficient.

It was not always clear from the submissions, precisely what acts in connection with the Amendment Application, DNO contends gave rise to the breach of natural justice. The mere refusal of the Amendment Application by the Tribunal does not constitute a breach of natural justice.

Furthermore, it is not entirely clear whether DNO was advancing an argument that the Tribunal committed a breach of natural justice in refusing the Amendment Application because it erred in the way it carried out the balancing exercise required in deciding whether to allow the application. The relevant considerations in this case were (a) delay in making the application; (b) disruption in progressing the arbitration to a substantive hearing; (c) prejudice to DNP if the application was allowed; and (d) prejudice to the Partnership if the application was not allowed. The last matter came down to a consideration of the prospects of success of the matters raised by proposed amendments. To the extent DNO relies on no more than an error in the balancing exercise (assuming an error is made out), such an error cannot amount to a breach of natural justice. Among other reasons which I will identify, the decision whether to allow an application to amend pleadings is a case management decision and a discretionary decision par excellence.

As I understand DNO’s submissions, the substance of the argument which it puts in relation to the Amendment Application is as follows: The Tribunal addressed the four considerations to which I have previously referred (at [65] above); the fourth consideration being the prospects of success of the matters raised by the proposed amendments. DNO’s submission is that the Tribunal committed a breach of natural justice in relation to this matter. It follows, so the argument goes, that the Tribunal should have allowed the Amendment Application and had it done so, the outcome of the arbitration, “would have been different”. I should mention that DNO did advance some minor criticisms of the Tribunal’s reasons with respect to the other three relevant considerations. None of those criticisms are justified.

The Procedural Timeline

The Tribunal set out its reasons for its refusal of the Amendment Application in a procedural order dated 23 August 2023 (“Procedural Order 4” or “PO4”). It began by setting out a comprehensive summary of the procedural steps taken in the arbitration from 2 May 2022 to 21 August 2023. I will identify some of the earlier steps and then reproduce many (not all) of the steps set out by the Tribunal.

The following summary is taken from PO4:

The Proposed Amendments

The Tribunal then set out the Partnership’s summary of the effect of its proposed amendments. The summary is as follows:

The Tribunal proceeded on the basis that this summary of the proposed amendments was correct, as did DNP. The Tribunal then set out, in considerable detail, a summary of the submissions made by the respective parties. As I have said, the DNO did not suggest that the Tribunal’s summary of its submissions was in any way deficient. In other words, it did not point to any submission it made to the Tribunal which was not included in the summary, or which was misstated.

The Tribunal’s Reasons

I turn now to summarise the Tribunal’s reasons for refusing the Amendment Application.

The Tribunal began by referring to r 20.5 of the SIAC Rules, which provides that a party may “amend its claim, counterclaim or other submissions unless the Tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances”. The Tribunal also referred to r 19.1 of the SIAC Rules, which requires the Tribunal to ensure “the fair, expeditious, economical and final resolution of the dispute”. The Tribunal referred to the commentary on the SIAC Rules and observed, by reference to the commentary, that the right to be heard was not an unlimited right, but a reasonable one. The Tribunal also referred to three paragraphs in a procedural order issued on 2 May 2022 (Procedural Order No 1). It is not necessary for me to refer to those paragraphs.

The Tribunal identified four considerations as being relevant to the question of whether the Amendment Application should be allowed (see [65] above); these are ordinarily considered in an application to amend pleadings, and DNO did not suggest that there was any other consideration or matter which the Tribunal should have addressed.

The first consideration was delay by the Partnership in making the application. The Tribunal said that the application was made belatedly, and at a late stage of the proceedings. The Indian Court Proceedings brought by Company N against the Partnership were commenced between 22 January and 9 April 2021, which was at least five months before DNP filed the Notice of Arbitration with the SIAC. The Partnership had known about the Indian Court Proceedings for approximately 28 months before it made the Amendment Application. The Tribunal rejected a submission made by the Partnership to the effect that weight should be placed on the fact that the Amendment Application was made within a reasonable time after new counsel were made aware of the Indian Court Proceedings. The Tribunal observed that the Partnership was represented by counsel of its choice from the commencement of the arbitration.

The second consideration was the disruption and undue delay in the arbitration which would or may result from allowing the Partnership’s Amendment Application. The Tribunal outlined the interlocutory steps that would need to be carried out should the Amendment Application be allowed. The Tribunal rejected the Partnership’s submission that allowing the Amendment Application would not unduly delay the timetables and that the scheduled dates for the evidentiary hearing would be maintained, finding that allowing the amendments “would necessarily result in delaying the Hearing dates and the proceedings for several months”.

The fourth consideration was the prejudice to the Partnership if the proposed amendments were not allowed. This, in turn, raised the issue of the prospects of success of the matters raised by the proposed amendments. As I have said, this was the focus of DNO’s challenge to the Tribunal’s decision to refuse its Amendment Application, in the present proceedings before this court.

The Tribunal said that it did not consider that the proposed amendments, if allowed, would directly affect the claim in question or the quantum of the claim sum. The Tribunal said the following:

DNO’s Criticism of the Tribunal’s Reasons

I mentioned earlier that DNO advanced some minor criticisms of the Tribunal’s treatment of the first three considerations. None of those criticisms are justified. I turn to address those matters.

(a) First, DNO criticises the Tribunal’s treatment of delay, and submits that there was no delay, as its new legal counsel and representatives took no more than a reasonable time after they had been instructed to bring the Amendment Application. That may be accepted. The difficulty for DNO is that, as the Tribunal pointed out, there was substantial delay in making any application before its new legal representatives were appointed. During the course of oral submissions, I asked counsel for DNO whether this delay was or could be explained in some way. He said that he was unable to comment. Therefore, the substantial delay identified by the Tribunal remains unexplained. In those circumstances, the Tribunal did not err in its approach to the issue of delay.

(b) Secondly, DNO criticises the Tribunal’s treatment of the issue of prejudice to each party. It submits that there was very little prejudice to DNP if the Amendment Application was allowed.

(i) Insofar as the Tribunal relied on the fact that witness statements had been filed before the Amendment Application was determined, DNO’s submission was that the Tribunal erred because it should have suspended the orders for the filing of witness statements until after the Amendment Application had been determined. In my opinion, the Tribunal did not err in taking the course it did. A late application to amend was made, and in those circumstances, the Tribunal was perfectly entitled to leave the existing orders in place to facilitate the hearing of the matter on the dates which had been fixed.

(ii) DNO submits in the alternative, that even if the Tribunal was justified in leaving the existing orders in place, it erred in failing to recognise that supplementary witness statements could have been filed without a great deal of further delay. This submission must be rejected. The Tribunal did not overlook this possibility. DNO’s submission approaches the matter of further delay from the wrong starting point. The Tribunal approached the issue by a consideration of the consequences of allowing the proposed amendments; one consequence was that it could lead to further witness statements. It is immaterial to that issue whether witness evidence was adduced by way of witness statements or supplementary witness statements.

(iii) Allied to these points above is a submission by DNO that allowing the amendments would not have resulted in the vacation of the hearing dates. That submission was made in writing, but it did not seem to be pursued in oral submissions. There is nothing in this point. The Tribunal said that allowing the amendments “would necessarily result in delaying the Hearing dates and the proceedings for several months”. That was a conclusion that the Tribunal was perfectly entitled to reach.

(iv) DNO criticised the Tribunal for taking into account the expenses DNP would incur if the amendments were allowed, and failing to take into account the Tribunal’s power to make an order for costs against it, in favour of DNP. DNO referred to the Tribunal’s power to compensate DNP by an order for costs in its submissions, and this is recorded in PO4. The Tribunal did not expressly refer to this matter in its treatment of prejudice to DNP if the amendments were allowed. It is hard to think that it overlooked this matter, but, in any event, it is a very minor matter and if there be error, it falls well short of a breach of the rules of natural justice.

I cannot leave this section of my reasons without making the following observation. As I was working my way through DNO’s criticisms with respect to the first three considerations, it became increasingly apparent to me how far they are removed from a breach of natural justice, even if they are accepted.

I examine the relevant authorities below. There are authorities which identify the general principles, and I will refer to those authorities to the extent it is necessary. There are also authorities which address the application of one or more of the sub-principles of the rules of natural justice: see Singapore Civil Procedure 2025 vol II (Cavinder Bull SC gen ed) (Sweet & Maxwell, 2025) (“Singapore Civil Procedure”) at pp 873–878. I do not need to examine the authorities which address sub-principles which are not relevant. In order to identify the sub-principles which are relevant in this case, I turn to DNO’s submissions and how it puts its case that there has been a breach of natural justice.

As I have already said, DNO identifies the fourth consideration in the Tribunal’s reasons as involving a breach of natural justice:

(a) First, DNO submits that the issue of double recovery “was real and was left unconsidered by the Tribunal”.

(b) Secondly, DNO submits that the issue of whether DNP could pursue the claim for the Clearing Charges in the arbitration in circumstances where Company N was also seeking to recover those charges in the Indian Court Proceedings was a key issue which the Tribunal “brushed aside”.

(c) Thirdly, DNO submits that the Tribunal’s reasoning with respect to the issue of whether DNP had the right to recover the Clearing Charges “was devoid of any analysis on the rights and obligations of [Company N] under the [MOU]”.

(d) Fourthly, DNO submits that the Tribunal did not take into account that the Amendment Application was “critical” to DNP’s entitlement to claim the Clearing Charges.

(e) Finally, DNO submits that the Partnership’s right to a fair hearing was breached by the Tribunal, “because key pleadings regarding [DNP’s] standing to pursue claims that [Company N] had standing for was not considered, which deprived [the Partnership] of the opportunity to rely on an important and essential issue”.

The authors of Singapore Civil Procedure identify four duties (referred to as “sub-principles”), wherein a failure by the tribunal to comply with the relevant duty will or may constitute a breach of natural justice (Singapore Civil Procedure at para F/24/14). The authors acknowledge that the list of duties is not exhaustive. Nevertheless, in my opinion, they provide a useful guide as to the type of breaches which will or may constitute a breach of natural justice.

Doing the best I can by reference to DNO’s submissions, it seems that DNO is alleging that with respect to the fourth consideration, the Tribunal failed to deal with essential issues and failed to attempt to consider and comprehend the parties’ submissions.

The Relevant Authorities

I turn now to the authorities.

The rationale for the principle of minimal curial intervention in arbitral proceedings, the prohibition on interference with the merits of a decision, and the need to assess the real nature of a complaint of a breach of natural justice were discussed by the Court of Appeal in AKN and another v ALC and others and other appeals [2015] 3 SLR 488 (“AKN v ALC”). The passage is a lengthy one, but it bears repetition because of the importance of the matters discussed by the court. Sundaresh Menon CJ, on behalf of the court, said the following (AKN v ALC at [37]–[39]):

The court in AKN v ALC also made the point (at [46]) that a failure by a tribunal to consider an important issue that has been pleaded in an arbitration is a breach of natural justice because in such a case, the arbitrator will not have brought his mind to bear on an important aspect of the dispute before him. It will ordinarily be a matter of inference as to whether that has occurred, and for the inference to be drawn, it must be shown to be clear and virtually inescapable. The court went on to say the following (AKN v ALC at [46]):

There was a further discussion of these matters by the Court of Appeal in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2020] 1 SLR 695 (“China Machine”) (at [86]–[104]). One important point made by the court was that in order to establish a breach of natural justice, an applicant must establish the following:

(China Machine at [86]; see also Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 at [29]).

A further manifestation of the principle of minimal interference with an arbitral award is that it is not a breach of natural justice for a tribunal simply to have made an error of fact or law or mixed fact and law.

In CDX and another v CDZ and another [2021] 5 SLR 405 (“CDX v CDZ”) (at [34]), the High Court set out the legal principles as to what might be a breach of natural justice and what is not a breach of natural justice. I highlight two points. First, one of the obligations of natural justice is that a tribunal must make “some attempt bona fide to understand, engage with and apply its mind” to a party’s case on issues in respect of which the opposing party must give reasonable and fair notice and any other issues in respect of which the tribunal must give reasonable and fair notice (CDX v CDZ at [34(d)(iii)] and [34(h)(iv)]). Secondly, the court addressed the applicable test where the alleged breach of natural justice relates to the manner in which the tribunal exercised a discretion in its procedural management of the arbitration. The court said the following (CDX v CDZ at [34(f)]):

(See also Gokul Patnaik v Nine Rivers Capital Ltd [2021] 3 SLR 22 (“Gokul Patnaik”) at [118]–[127]).

DNP submits that regardless of whether the Tribunal’s decision was incoherent, incoherence is not, in and of itself, a breach of the rules of natural justice. There is certainly authority to the effect that the inexplicability of a tribunal’s decision is not, in and of itself, a breach of natural justice: see BZV v BZW [2021] SGHC 60 (“BZV v BZW”) at [52(g)]. I do not need to examine this matter further because I find that the Tribunal’s decision in this case is neither incoherent nor inexplicable.

DNO relies on certain observations of the High Court in BZV v BZW. In that case, the court found that there had been a breach of natural justice and explained its reason for so concluding as follows (at [226]):

BZV v BZW is a helpful case in that it contains a clear statement of the applicable principles (see BZV v BZW at [52]). However, I am not sure how DNO seeks to deploy the case. The principles referred to in BZV v BZW (at [226]) do not go beyond the principles articulated in the authorities discussed above. The case was referred to in the context of a discussion about the significance of inconsistencies in a tribunal’s reasoning – the presence of inconsistencies in a tribunal’s reasoning is certainly a relevant factor, but it is not enough by itself. The court in BZV v BZW identified inconsistencies in the tribunal’s reasoning (see, for example, BZV v BZW at [162]–[163]), but that was in the context of the court working its way to the conclusions expressed in [226]. In any event, in this case, there are no inconsistencies in the Tribunal’s reasoning with respect to the Amendment Application.

Whether a Breach of Natural Justice was Established in Respect of the Amendment Application

I turn now to consider whether DNO has established that the Tribunal’s refusal of its Amendment Application involved a breach of the rules of natural justice.

Leaving to one side for the moment DNO’s challenge to the Tribunal’s reasoning with respect to the fourth consideration, there is simply no basis to conclude that the Tribunal acted in breach of the rules of natural justice. The Tribunal considered the submissions of the respective parties; the case was one that involved the exercise of a discretion with respect to a matter of case management; and the Tribunal’s decision was well within the range of decisions a reasonable and fair-minded tribunal in the circumstance might make.

DNO’s challenge to the Tribunal’s treatment of the fourth consideration requires an examination of para 97 of PO4; that paragraph is set out above at [78].

I had a debate with counsel during oral submissions, as to the test to be applied on an amendment application when considering the prospects of success of the matters raised by the proposed amendments. The debate was as to whether the test was a probability of success or a possibility of success. I do not consider that either formulation is correct. Instead, the test is whether the matters raised by the proposed amendments are reasonably arguable. Although the Tribunal did not use the phrase “reasonably arguable”, it reached the conclusion that the matters raised by the proposed amendments had no prospects of success or, at least, insufficient prospects to justify granting leave to amend. That conclusion necessarily encompasses a conclusion that the matters were not reasonably arguable.

DNO’s submission is that by the proposed amendments, it sought to raise two matters which, if successful at trial, would constitute a defence to DNP’s claim for recovery of the Clearing Charges. Both matters rely on the fact that Company N had brought the Indian Court Proceedings, and that those proceedings were pending. Those two matters are addressed in the next paragraph. It is important to note that the matters raised by the proposed amendments relate to the Clearing Charges and not the other amounts awarded to DNP, and that the basis of DNO’s argument was the Indian Court Proceedings. I mention those matters because there is another argument raised by DNO as to DNP’s entitlement to recover all amounts other than the 10% Advance, on grounds other than the Indian Court Proceedings. That argument arises in connection with the Award itself, and I deal with it at [128]–[171] below.

First, DNO submits that in the circumstances, there is real issue as to whether DNP is entitled to recover the Clearing Charges. The Tribunal said that the proposed amendments did not directly affect the claim for the Clearing Charges or the quantum of that claim; it noted that Company N’s claim in the Indian Court Proceedings was based on the cheques which had been dishonoured. The Tribunal accepted the Partnership’s submission that Company N was not a party to the MOU (which meant that Company N was not a party to the arbitration agreement between DNP and the Partnership). I pause to emphasise that the Tribunal was dealing directly with a submission made by the Partnership, that Company N “[was] not a party to the arbitration agreement and therefore the decisions by the Tribunal would not have any effect on the Indian Court Proceedings”. The Tribunal said that the Partnership, in making the above submission, had indirectly accepted the conclusion that the Indian Court Proceedings did not affect the claim or quantum in the arbitration. In the arbitration, DNP was claiming the loss that it, and not Company N, had allegedly suffered. It follows from what I have said that it cannot be said that the Tribunal had “brushed aside” the issue as alleged by DNO.

Secondly, the Tribunal addressed the issue of double recovery. It said that the issue would only arise in the event that Company N succeeded in obtaining a judgment against the Partnership. The fact was that Company N had not yet obtained a judgment against the Partnership, nor had it been compensated based on such judgment. The Tribunal directly addressed the issue of double recovery and there is no substance at all in DNO’s submission that the issue was “left unconsidered by the Tribunal”.

I remind myself that the authorities are to the effect that a mere error of fact or law (or mixed fact and law) does not amount to a breach of natural justice. The Tribunal complied with its duty to deal with the essential issues. It complied with its duty to consider and comprehend the parties’ submissions. Even if the Tribunal had reached the wrong conclusion, it certainly attempted to consider and comprehend the parties’ submissions. As I have said, even if the Tribunal erred in fact or law, that is not sufficient to establish a breach of natural justice.

Despite the fact that it had refused the Amendment Application, the Tribunal considered (at paras 606–613 of the Award) the matters raised by the proposed amendments and concluded that they should be rejected for the same reasons it gave on the Amendment Application. It referred to para 97 of PO4.

For these reasons, I reject DNO’s submission that the Tribunal’s refusal of the Amendment Application involved a breach of natural justice.

Whether DNO is Precluded from Relying on the Breach

DNP submits that there are two other reasons why DNO’s case that there was a breach of natural justice in connection with the Amendment Application should be rejected. Each reason, if established, is sufficient in itself to lead to rejection of DNO’s case.

First, DNP submits that even if a breach of natural justice is established in connection with the making of the Award, DNO has not established that the Partnership’s rights were prejudiced as a result. On DNO’s case, the refusal of the Amendment Application meant that the Partnership was precluded from raising the two issues previously identified. The Partnership was precluded from raising in the arbitration an issue of double recovery, that is, that DNP was seeking to recover the Clearing Charges while its subsidiary, Company N, was seeking to recover the Clearing Charges in the Indian Court Proceedings. The Partnership was precluded from raising an issue to the effect that, if any entity was entitled to recover the Clearing Charges, it was Company N and not DNP.

Secondly, DNP submits that in relation to the refusal of its Amendment Application, the Partnership has hedged against an adverse result and the authorities indicate that a party is not permitted to do that. If the Partnership has hedged against an adverse result, then its challenge based on a breach of natural justice will be rejected on that ground.

(1) Whether there was an absence of prejudice

I start with the absence of prejudice.

The Indian Court Proceedings are not yet resolved, and Company N does not have a judgment in its favour, nor has it received any compensation in respect of the Clearing Charges.

It is not clear to me precisely what DNO contends was the proper course for the Tribunal to take, had it found that there was a prospect of double recovery and that some action was required. Was it suggested that the arbitration should have been stayed until the outcome of the Indian Court Proceedings was known? Was it suggested that the Tribunal should have taken some action with respect to the Indian Court Proceedings and, if so, what action would prevent double recovery of the Clearing Charges? The lack of obvious answers to these questions suggests to me that the real point DNO was seeking to raise by the proposed amendments was that the Indian Court Proceedings were an item of evidence which supported the conclusion that DNP was not entitled to recover the Clearing Charges, or at least, that DNP had not established that it was entitled to recover the Clearing Charges. Even if I am wrong about that, the Tribunal was clearly correct in how it dealt with the issue of double recovery in its reasons in PO4. As I have said, in the Award, the Tribunal reiterated and confirmed the conclusions it had reached in the Amendment Application.

The broader issue, and in my view, the more significant issue raised by the proposed amendments, is whether DNP or Company N was the proper party to seek the recovery of the Clearing Charges. In my opinion, there is no prejudice resulting from the refusal of the Amendment Application, because the Tribunal answered that question in the Award.

In the Partnership’s Post-Hearing Brief in the arbitration, DNO raised what the Tribunal described as a new allegation. The allegation was that the claims in the arbitration were not made by the proper claimant. This allegation was raised in the case of all the claims, except for the claim in respect of the 10% Advance. In essence, the Partnership alleged that the proper claimant was Company N, not DNP. That allegation was based largely on the identification of the party to whom payments were to be made by the Partnership, as set out in the MOU. The following payments were to be made to Company N: (a) the 10% Deposit; (b) the Clearing Charges; and (c) the contract price for the Arrived Cargo and the Remaining Cargo. In addition to those matters, the Partnership asserted, contrary to the position it took in the Amendment Application (see [99] above), that Company N was a party to the MOU, and therefore, the arbitration agreement. The Partnership further asserted that title to the Cargo had been transferred to Company N. The Partnership submitted that, by reason of those matters, it was Company N which was owed various obligations by the Partnership to make payments, and it was Company N which suffered loss and damage when those payments were not made.

The Tribunal rejected the Partnership’s argument that Company N was the only proper party to seek the recovery of the amounts due under the MOU, other than the 10% Advance. The Tribunal said that there were four reasons for rejecting the Partnership’s argument:

For these reasons, it can be seen that in the Award the Tribunal addressed the very argument the Partnership sought to raise by the Amendment Application. It dealt with the issue, and I do not consider that it can be argued that the Tribunal did not comprehend and consider the submissions of the respective parties.

In my opinion, DNO has not established real or actual prejudice by the assumed breach of natural justice in relation to the Amendment Application in the sense required by the authorities; that is, the outcome of the arbitration would or could reasonably be different had the assumed breach of natural justice not occurred.

(2) Whether the Partnership/DNO hedged against an adverse result

I turn now to DNP’s submission that the Partnership had hedged against an adverse result. A further reason DNO’s challenge to the Tribunal’s decision to refuse the Amendment Application on the ground of a breach of natural justice must be rejected is that a party who has such a complaint is not permitted to hedge against an adverse result or, put another way, a party cannot warehouse a complaint of a breach of natural justice until that party knows the outcome of the arbitration.

There are two reasons for this principle. First, fairness in the conduct of an arbitration involves fairness not only to the complaining party, but also to the other party and the tribunal itself. To allow the complaining party to hedge against an adverse result would be unfair to the process itself, the other party, and the tribunal. Secondly, to allow a party to reserve to itself a complaint of a breach of natural justice, which it will say, if the result goes against it, is a ground for setting aside an award, while at the same time indicating that it is ready and willing to proceed with the arbitration is inimical to the process itself. Such an approach deprives the tribunal and the other party of the opportunity to consider the position.

In China Machine (at [170]), Menon CJ, delivering the judgment of the court, said:

In this case, the Partnership had ample opportunity to advise the Tribunal and the other party that it considered that there had been a breach of natural justice in connection with the refusal of its Amendment Application.

In its written submissions, DNP identified various examples of the Partnership’s conduct between August 2023 to April 2024 which, it claims, “shows that [the Partnership] was ready, able and willing to see the Arbitration through to the end”:

DNO submits that it had not waived the breach of natural justice or hedged against an adverse result. It submits that China Machine was distinguishable from the facts in this case, and in developing that submission, it referred to the decision in CAJ and another v CAI and another appeal [2022] 1 SLR 505 (“CAJ v CAI”).

At the outset, it is important to keep in mind that whether a party has waived a breach of natural justice or hedged against an adverse result will depend on the facts and circumstances of the particular case. The facts and circumstances are likely to be different in every case and what may be significant in one case may not be significant, or as significant, in another case.

In CAJ v CAI, the respondent to an arbitration sought to raise a new defence for the first time in its closing submissions. The claimant in the arbitration objected to the respondent raising a new defence. The tribunal allowed the respondent to raise the new defence, and it was successful. The claimant appealed to the High Court seeking an order that the award be set aside in part. One of the grounds of its application was that the award had been made in breach of natural justice. The claimant was successful.

The respondent in the arbitration then appealed to the Court of Appeal and one of its grounds was that the claimant had waived its right to complain of a breach of natural justice. The Court of Appeal rejected that ground. The court said that the claimant had done enough to rebut the argument of waiver by including in its closing submissions in the arbitration an “unequivocal and fair intimation” to the Tribunal of its objection to the raising of the new defence and it was sufficient and appropriate that in its closing submissions the claimant had clearly set out the reasons why it objected to the Tribunal’s consideration of the defence. It was sufficient for the claimant to set out the substance of its objection and it was not necessary for it to have specifically intimated to the Tribunal that it intended to commence setting-aside proceedings if its objection was ignored.

It is clear that the present case is quite different from CAJ v CAI. In this case, the act which is said to be a breach of natural justice is the refusal of the Partnership’s Amendment Application. That occurred at an interlocutory stage of the arbitration process and sometime before the evidentiary hearing. Thereafter, the Partnership proceeded on the basis that it was ready, willing, and able to participate in the arbitration, which it subsequently did. It did not complain about the alleged breach of natural justice until after the Tribunal issued the Award.

It is true that the court in CAJ v CAI reached a different conclusion from the conclusion reached in China Machine, but that was because the facts were different. In fact, the distinguishing features between CAJ v CAI and China Machine as identified by the court in the former case are also those which are present in this case. The Court of Appeal in CAJ v CAI said the following (at [66]–[67]):

In my opinion, having regard to the matters I have identified, DNP’s submission is correct. At no point in the events described did DNO/the Partnership raise any objections regarding the Tribunal’s decision on its Amendment Application, or any concerns regarding a potential breach of natural justice. Thus, as DNP submits, DNO/the Partnership had “consistently expressed its intention and acted in a manner that [was] consistent with wanting to see the Arbitration through to its conclusion, notwithstanding PO4”.

Conclusion

In conclusion, I reject DNO’s arguments that the Tribunal’s refusal of the Amendment Application gave rise to a breach of the rules of natural justice. In any event, I found that DNO would have been unable to rely on any said breach, given the absence of prejudice and its hedging against an adverse result.

Four Separate Matters addressed by the Tribunal in the Award and said by DNO to involve Inconsistent and/or Defective Reasoning

DNO contends that there had been a breach of natural justice in connection with the making of the Award, concerning four separate matters addressed by the Tribunal in the Award. In its submissions before this court, DNO dealt with these matters as a group, under the heading of “Inconsistent and/or Defective Reasoning”.

(a) The first matter arose in the following way. The Burkina Faso 023 Cargo, which was the subject of the third Sales Contract (023 S&P), did not meet the specifications in the contract. DNP did not dispute that fact in the arbitration. The contract provided for a penalty in circumstances where the Cargo did not meet the specifications in the contract. The Tribunal found that the penalty was not relevant. DNO contends that had the Tribunal found that the penalty was relevant, that would have led to the calculation of a reduced amount for the contract price of the Arrived Cargo and thus the calculation of the 10% Deposit and 10% Advance. As already stated (at [5] above), the first item of damages claimed by DNP was the difference between the contract price and the resale price – the penalty and the discount were relevant to the calculation of the contract price. As I will explain, I have concluded that there is no error in the Tribunal’s treatment of this matter, let alone a breach of natural justice.

(b) The second matter also relates to the Burkina Faso 023 Cargo. The Partnership argued before the Tribunal that the Partnership and DNP had reached an agreement that, in addition to the penalty, DNP would provide a discount to the contract price for that cargo. The Tribunal found that there was no agreement about the discount. DNO contends that, had the Tribunal found that there was an agreement about the discount, then, as with the penalty, that would have led to the calculation of a reduced amount for the Arrived Cargo and thus the calculation of the 10% Deposit and 10% Advance and to a reduced amount for the contract price. Again, as I will explain, I have concluded that there is no error in the Tribunal’s treatment of this matter, let alone a breach of natural justice.

(c) The third matter relates to the Tribunal’s finding that DNP was entitled to terminate the MOU on 1 October 2020. The Tribunal found that DNP was entitled to terminate the MOU on 1 October 2020 because the Partnership and DNP had reached an agreement prior to that date that DNP would give the Partnership until 30 September 2020 to pay the MOU Advances and the accrued Clearing Charges, and that should the Partnership fail to pay those amounts by that date, DNP would declare the Partnership’s default under the MOU and sell the Cargo to third parties. The Tribunal found that those amounts were not paid by the Partnership by 30 September 2020, and that DNP had lawfully terminated the MOU on 1 October 2020. DNO challenges the Tribunal’s finding that there was an agreement giving DNP a right to terminate if payments were not made by 30 September 2020. As I will explain, I have concluded that there is no error in the Tribunal’s treatment of this matter, let alone a breach of natural justice.

(d) The fourth matter also relates to DNP’s right to terminate the MOU. The Tribunal found that DNP was entitled to terminate the MOU on 1 October 2020 on grounds separate and distinct from the agreement between the parties to which I have previously referred (at (c) above). The Tribunal’s decision in respect of those grounds involved the construction of clauses in the Sales Contracts and clauses in the MOU in the factual circumstances of this case; some of the construction issues were not without difficulty. As I will explain, I have concluded that there is no error in the Tribunal’s treatment of this matter. Even if I am wrong, there is no error which can be characterised as a breach of natural justice.

One further matter should be noted. DNO submits that the Tribunal’s reasoning in determining that there was no agreement as to the payment of a discount (ie, the second matter) was inconsistent with the reasoning it applied in determining that there was an agreement that DNP could declare a default under the MOU and sell the goods if the Partnership did not pay the MOU Advances and Clearing Charges by 30 September 2020 (ie, the third matter). DNO described the inconsistency as a failure to apply the same “rationale” to the latter issue as it did to the former, especially in relation to the existence of “consensus ad idem”; and further described the Tribunal’s reasoning as “arbitrary and prejudicial”. I address this submission when dealing with the third matter (see [164] below).

The Contractual Penalty and Discount Issues

The Tribunal dealt with the first and second matters together, and I will do the same. I begin with some observations on DNO’s submissions with respect to the first and second matters.

(1) Brief observations on DNO’s submissions

I found DNO’s written submissions with respect to the first and second matters very confusing. DNO did not make any oral submissions in support of its case with respect to the first matter, and only one submission relating to both the second and third matters.

As I have said, the four matters appear under the heading of “Inconsistent and/or Defective Reasoning”. There is then a paragraph that states that, in addition to the argument that the Tribunal was in breach of natural justice in relation to the refusal of the Amendment Application, the Tribunal was also in breach of natural justice, for having adopted an inconsistent chain of reasoning in the Award. The inconsistent chain of reasoning appears to relate only to the second matter (the finding of no agreement between the parties) and the third matter (the finding of an agreement between the parties). That view is confirmed by the fact that in relation to the other alleged errors of fact or law set out in this section, DNO did not indicate how the alleged errors gave rise to a breach of natural justice.

The written submissions then have a section under the heading of “Contractual Penalty” in which both the first and second matters are dealt with. This section has twelve paragraphs, and the following table identifies the subject matter of each paragraph:

I am able to deal with the issue identified in para 160 and part of para 161 briefly. In the arbitration, the Partnership submitted that the contractual penalty applied not only to the Cargo which was the subject of the 023 S&P, but also to other goods in the Arrived Cargo which were the subject of other Sales Contracts. This submission was rejected by the Tribunal, which gave clear reasons for doing so. It is not clear to me that DNO is challenging that conclusion. If it is, the argument must be rejected. The argument was not developed in the proceedings before this court, and the Tribunal’s conclusions with respect to this matter involved findings of fact.

(2) Whether a breach of natural justice was established in respect of the contractual penalty issue

The issue of the contractual penalty arose in respect of the Cargo which was the subject of the 023 S&P (ie, the Burkina Faso 023 Cargo). The 023 S&P provided for the supply of 700mt (+/-10%) of raw cashew nuts originating from Burkina Faso. The contract contained a quality requirement to the following effect: “Outturn Abt. 48Lbs. per 80 kgs”. It was not in dispute before the Tribunal that the Burkina Faso 023 Cargo did not meet this quality requirement. There was a contractual penalty for Cargo failing to meet the contractually specified outturn rate. Clause 2 (VII) of the S&P 023 stated as follows:

Before the hearing, the parties adopted the usual procedure of agreeing on the issues which needed to be determined by the Tribunal. Those issues were characterised by the parties as either issues of fact or issues of law, and contained in a List of Issues. This List of Issues also identified issues which one of the parties said needed to be determined by the Tribunal, and the other disagreed. One of the agreed issues which was characterised by the parties as an issue of fact was as follows:

The Tribunal addressed these questions in the Award. The Tribunal reached the following conclusion with respect to sub-issue (a):

With respect to sub-issue (b), The Tribunal reached the following conclusion:

With respect to sub-issue (c), the Tribunal reached the following conclusion:

The issue of the application of the penalty arose again in the Tribunal’s consideration of the contract price. The Tribunal referred to what it had said earlier concerning the application of the penalty, and provided a further reason for its conclusion. Clause 2(VII) of the Sales Contracts provided that “[i]n case cargo is cleared after 15 days of arrival at destination, seller is not liable for any quality claim whatsoever” (see [135] above). The Tribunal said DNP was not liable for the contractual penalty on the 023 S&P, as the Partnership did not take delivery or clear this Cargo at all. Accordingly, the Tribunal found that the contractual penalty on the Burkina Faso 023 Cargo could not be taken into account in the determination of the relevant contract price.

Before this court, DNO submits that the Tribunal had failed to consider the applicable contractual penalty on the price of the Cargo that was below the contractual specifications; accordingly, DNP had been placed in a better position than it would have been had the Partnership taken delivery of the Cargo, and the Tribunal’s conclusion had severely prejudiced DNO. Further, DNO submits that in relying on cl 2(VII) of the Sales Contracts, the Tribunal failed to appreciate that it was not possible to clear the Cargo during the COVID-19 period, and that the primary purpose of the MOU was to address this situation. DNO also submits that the Tribunal had failed to appreciate that DNP had agreed to apply the penalty/discount in its email of 2 September 2020. As to this last submission, to the extent the Tribunal did not address this submission, that is unsurprising, because, as will become clear, the focus in the arbitration was on the email dated 14 September 2020.

As I said earlier, DNO did not identify how any of the matters it raised in relation to the penalty constituted a breach of natural justice. That is for good reason. None of the matters do, in fact, give rise to a breach of natural justice. I am not to be taken as saying the Tribunal did err, but even if it did, the errors are errors of fact or law which do not constitute a breach of natural justice.

(3) Whether a breach of natural justice was established in respect of the discount issue

I turn now to consider the issue of the discount. The issue of a discount was relevant in the same way as the issue concerning the penalty. The parties set out the following in the agreed list of issues:

The issue is raised again in the Tribunal’s consideration of the agreed legal issues; the important matter to note in the formulation of the issues is the date of 14 September 2020. The issue was identified as follows:

Furthermore, the Tribunal said this in the Award:

DNO changed tact in this court and asserted that the Tribunal erred in not finding that the agreement as to the discount was reached on 2 September 2020. DNO contended that, in addition to the contractual penalty, it was agreed that DNP would provide to the Partnership a discount of US$50 per metric tonne in relation to Cargo which did not meet the contractual specifications, namely, the Burkina Faso 023 Cargo.

The List of Issues prepared by the parties identified three issues in relation to the discount, and they were as follows:

Unsurprisingly, in view of how the parties had defined the issue with respect to the discount, the Tribunal focused on whether there was an agreement reached on 14 September 2020, and began its consideration of that issue by referring to an email from Mr Z to Mr A dated 4 September 2020. The relevant part of the email is as follows:

Mr A responded by email on 9 September 2020. He requested a further discount, but did not mention the date of clearing the Cargo. The relevant part of his email is as follows:

On 9 September 2020, Mr Z wrote a WhatsApp message to Mr A via the broker, proposing to take back the Burkina Faso 023 Cargo. On 14 September 2020, Mr Z wrote to Mr A again, once more proposing to take back the Burkina Faso 023 Cargo. On the same date, Mr A replied by stating “[k]indly arrange the discount on Burkina as per our previous discussions”.

The Tribunal rejected the Partnership’s submission that an agreement as to a discount was reached on 14 September 2020. The essence of the Tribunal’s reasoning is as follows:

The Tribunal also observed that in subsequent emails on 21 September 2020, the parties were still negotiating regarding the Burkina Faso 023 Cargo.

The argument that DNO put to this court was that there was an agreement reached on 2 September 2020 whereby a discount of US$50 per metric tonne would be applied, in addition to the 1:1 contractual penalty. The email from Mr Z dated 2 September 2020 was in the following terms:

DNO places emphasis on the instructions given to “Sunit” to perform the necessary calculations.

The argument advanced by DNO in this court must be rejected. First, DNO does not identify the communication or correspondence which constituted the acceptance by the Partnership of the proposal in the email dated 2 September 2020. In other words, it is of no assistance to point to the offer without pointing to the acceptance. If it is said to be the Partnership’s communication dated 14 September 2020, then the same difficulties identified by the Tribunal stand in the way of acceptance of that argument. Second, it is clear that there were a series of proposals and counter-proposals; and the Partnership has failed to identify a point at which both parties reached an agreement. A party cannot identify an agreement in circumstances where an offer has made, but thereafter proposals are put involving conditions which are not accepted, and at that point retreat and claim that it accepted an earlier offer.

Furthermore, this discussion is beside the point because on any view, there has not been a breach of the rules of natural justice. Even if a failure to consider a submission constituted a breach of the rules of natural justice, that criticism cannot be levelled at the Tribunal. The Tribunal considered the submissions which were put to it. The suggestion that the Tribunal “completely ignored” the fact that an agreement was reached on 2 September 2020 is unfair in view of the case put to it. In addition, it is not correct to say that the Tribunal ignored the email dated 2 September 2020. It referred to the email in a footnote to para 245 of the Award:

DNP’s Right to Terminate the MOU on 1 October 2020

I turn to address the third and fourth matters, which pertain to the Tribunal’s finding that DNP had a right to terminate the MOU on 1 October 2020, on various grounds.

(1) Whether a breach of natural justice was established in respect of the Tribunal’s finding that DNP had a right to terminate the MOU by reason of an agreement between the parties

The Tribunal found that there was an express right to terminate the MOU by reason of an agreement between DNO and DNP reached on 21 September 2020. DNO challenges that conclusion.

In this context, the Tribunal was required to consider email exchanges and a telephone conversation between Mr Z and Mr A on 21 September 2020. Mr Z sent an email to Mr A on 21 September 2020 in the following terms:

Following this email, Mr Z and Mr A had a telephone conversation. The parties did not agree on the content of this conversation. DNP’s case was that Mr A requested time until 30 September 2020 to make the relevant payments and the parties agreed that DNP would give the Partnership until 30 September 2020 to pay the MOU Advances (including the 10% Deposit) and Clearing Charges on the basis that if the Partnership failed to make full payment of those sums by then, DNP would be entitled to terminate the MOU and sell the Cargo. The Partnership denied that such an agreement was reached.

On the same day, Mr A sent an email to Mr Z in response to Mr Z’s earlier email. Mr A’s email was in the following terms:

There was a dispute between the parties as to what was meant by the expression, “Rest all OK”. Mr A gave evidence on this topic. The Tribunal found that Mr A gave three different explanations as to what he meant by the expression. It is not necessary for me to set out that evidence. The Tribunal found that Mr A’s explanations were contradictory and unreliable. It also found that his explanations did not make sense when read with his email of 21 September 2020. The Tribunal found that the expression, “Rest all OK” could only mean that Mr A agreed to “10 per cent payment advance and 90 per cent payment within 90 days, or mixing of the cargo”, as these issues were already specifically mentioned in his email. The Tribunal found that the effect of the email was that the topics of the Burkina Faso 023 Cargo and the extended payment deadline were specifically dealt with, and that by the expression, “Rest All OK”, Mr A agreed with the other matters in Mr Z’s email, including DNP’s right to terminate, should payment not be made by 30 September 2020.

DNO referred to emails dated 14, 21 and 25 September 2020 respectively, to mount an argument that Mr A had said that the Partnership would meet its obligations under the MOU by 22 October 2020. The Tribunal rejected this argument, finding that Mr A’s statements related to the Partnership’s obligations, other than the obligation to pay the MOU Advances and the Clearing Charges by 30 September 2020. The Tribunal found that there was an agreement between the parties that the Partnership would pay the MOU Advances and the Clearing Charges by 30 September 2020.

Before this court, DNO mounts one challenge to this conclusion. It argues that the Tribunal’s reasoning in relation to this matter was inconsistent with its reasoning with respect to the issue of whether there was an agreement between the parties that DNP would provide a discount in relation to the Burkina Faso 023 Cargo. The inconsistency is said to be that the Tribunal had regard to subsequent emails to find that there was no agreement as to the provision of a discount, whereas the Tribunal found that there was an agreement as to the termination of the MOU despite subsequent emails. This argument was not developed beyond an assertion that the Tribunal overlooked the subsequent emails dated 14, 21 and 25 September respectively. Plainly, this is not right. The Tribunal referred to those emails in the Award. In addition, in the ordinary case, a party would be hard-pressed to sustain such an argument where there are two different alleged agreements arising in two different factual circumstances.

The Tribunal did not err, let alone err in a way which would constitute a breach of natural justice.

(2) Whether a breach of natural justice was established in respect of the Tribunal’s finding that DNP had a right to terminate the MOU on two other grounds

The Tribunal held that there were two other grounds upon which DNP was entitled to rely to justify its termination of the MOU on 1 October 2020. Strictly, in view of my conclusion that DNO’s challenge to the Tribunal’s finding that there was a right to terminate by reason of an agreement must be rejected, it is not necessary to deal with the other rights to terminate. In those circumstances, I will deal with the grounds briefly.

First, the Tribunal held that there was an express right to terminate the MOU by reason of a combination of cll 4 and 6 of that document itself, and cll 2(XVII) and 2(XI) in the Sales Contracts. The steps in the Tribunal’s reasoning are as follows:

(a) First, cl 4 of the MOU (set out above at [15]) required the payment of the items referred to in the clause within 10–15 days of clearing of the Cargo from port. The Tribunal found that the relevant date was 21 August 2020. Clause 6 of the MOU (also set out above at [15]) required payment of the items referred to in the clause within 30 days from the date of the MOU (ie, 23 August 2020).

(b) Next, the Tribunal made a finding that the payments required by those clauses were not made, and therefore, there was a breach of the clauses. The right to terminate the MOU for breach of cll 4 and 6 of the MOU was contained in cll 2 (XVII) and (XI) of the Sales Contracts. Those clauses are as follows:

(c) Finally, the Tribunal concluded that the clauses in the Sales Contracts were not superseded or replaced by the MOU because:

(i) Clause 8 of the MOU provided that “all terms of the Sales Contracts remain unchanged”; and

(ii) Clause 1(a) of the MOU had not superseded the relevant clauses in the Sales Contracts or become the only source of a right to terminate the MOU. Clause 1(a) of the MOU provided that the payments referred to therein must be made within 90 days and, if they are not, then DNP may terminate the MOU. To this end, the Tribunal found that cl 1(a) was not the only source of a right to terminate; it was an additional right to terminate.

The submissions made by DNO in support of its contentions were sparse. There were submissions that the Tribunal erred in reaching conclusions, but they do not advance DNO’s argument.

First, DNO submits that the Tribunal erred in holding that cl 1(a) of the MOU was only an additional right to terminate; instead, the Tribunal should have found that there was an inconsistency between cl 1(a) of the MOU and the clauses in the Sales Contracts, and that cl 1(a) prevailed. However, I note that the Tribunal had addressed the effect of cl 1(a) and rejected the Partnership’s submissions to the same effect. Before this court, DNO submits that the Tribunal’s construction of cl 1(a) renders the clause meaningless, and made no commercial sense. However, I note that the Tribunal addressed which of the possible constructions of cl 1(a) was commercially reasonable, and decided against the construction advanced by the Partnership (see paras 464–469 of the Award).

Secondly, DNO challenges the Tribunal’s conclusion that cll 4 and 6 were conditions of the MOU. The Tribunal decided that cll 4 and 6 of the MOU were conditions; they were breached, and this was an additional ground upon which DNP was entitled to terminate. Other than asserting in two paragraphs of its written submissions that the clauses were not conditions, the only argument advanced by DNO was that the Tribunal erred in concluding that the clauses were “vital” provisions, and that the Tribunal should have taken into account the fact that Mr Z had drafted the MOU and could have made the importance of the clauses clear. There is nothing in this argument. The Tribunal dealt with the arguments clearly and comprehensively.

Conclusion

In sum, I reject DNO’s arguments that, with respect to the four matters it identified, the Tribunal’s reasoning was inconsistent and/or defective such as to give rise to a breach of the rules of natural justice. DNO’s challenges to the Tribunal’s reasoning were no more than attacks on the merits of the Tribunal’s conclusions.

The Public Policy Issue

An award may be set aside where the court is satisfied that it is in conflict with the public policy of Singapore (Art 34(2)(b)(iii) of the Model Law). DNO relies on this ground and submits that the Award, insofar as it deals with the Remaining Cargo, is in conflict with the public policy of Singapore, and should be set aside. I summarise DNO’s arguments below.

Summary of DNO’s arguments

It is relevant to note at the outset the following: There was no suggestion before the Tribunal that there was any illegality associated with the Sales Contracts or the MOU. None of the List of Issues, DNO’s Post-Hearing Brief or the Award contain reference to an allegation of that nature. The Award does no more than enforce obligations under the Sales Contracts and MOU. Nor was there any suggestion before the Tribunal that the Import General Manifests filed by DNP (see [174] below) gave rise to an offence under Indian law.

The IGMs

DNP had filed Import General Manifests (“IGMs”) for the Remaining Cargo with the customs authorities in India (the “Indian customs authorities”). The IGMs contained declarations or statements that Company N was the owner of the Remaining Cargo. DNO submits that if, as DNP asserted and the Tribunal found, DNP was the owner of the Remaining Cargo, it followed that the declarations or statements to the effect that Company N was the owner of the Remaining Cargo were false. The provision of false declarations or statements is an offence under s 132 of the Customs Act, 1962 (India) (the “Indian Customs Act”). The Award contained an allowance for damages in respect of the Remaining Cargo. Accordingly, DNO submits that the Award should be set aside, at least as to the Remaining Cargo.

In the alternative, assuming that the declarations or statements in the IGMs are correct, DNO submits that Company N is the owner of the Remaining Cargo and is the party entitled (all other matters being proved) to seek damages; DNP was not entitled to seek and recover damages. It is not entirely clear to me whether DNO claims that if that be the correct interpretation of the facts, then awarding damages to DNP means that the Award is in conflict with the public policy of Singapore. If that submission is made, it is plainly untenable having regard to the limited scope of the public policy ground (see below at [181]). I need say no more about it.

In addition to the above, DNO submits that the Tribunal did not consider its submission that as DNP was not the owner of the Remaining Cargo, DNP could not recover damages with respect to that cargo. DNO described this submission as “critical”, and argues that the Tribunal’s failure to consider the submission was a breach of natural justice. The way in which DNO put the submission in its written submissions is as follows:

The Invoices

DNO also made submissions with respect to invoices issued by DNP to Company N for the Remaining Cargo (the “Invoices”). The Invoices were dated between 25 May and 5 July 2020, before the parties reached the agreement embodied in the MOU dated 24 July 2020. They were included in the documents which were given to the Indian custom authorities. DNP’s case before the Tribunal was that the Invoices were relevant because they were evidence of the contract price of the goods, which was an element of the calculation of the difference between the contract price of the goods and the resale price.

DNO submits the following:

(a) The Invoices were backdated and fabricated; the Tribunal had erred in admitting the invoices into evidence despite the Partnership’s objection that they were not authentic.

(b) The provision of backdated invoices to the Indian customs authorities was an act which meant that the Award is in conflict with the public policy of Singapore.

(c) Furthermore, the Tribunal should not have entertained claims based on backdated and fabricated invoices, especially without addressing the issue of the transfer of title to Company N.

On the assumption that the foregoing submissions are accepted, DNO submits that the court should conclude that the Award “is in breach of public policy and the most basic notions of morality and justice”, given that (a) the Tribunal did not provide “adequate reasoning” for holding that the losses could be recovered by DNP; and (b) the Tribunal turned a “blind eye” to the rightful owner of the Remaining Cargo “and/or the fraud and/or misrepresentations committed by [DNP] and [Company N] on the customs authority of India”.

Two Important Matters

Two important matters should be noted at this stage:

(a) First, the losses allegedly suffered by DNP with respect to the Remaining Cargo were relevant to the assessment of damages in the Award. I have already mentioned that they were relevant to the determination of the difference between the contract price and the resale price. In addition to this item of damage, the Tribunal awarded other damages in respect of the Remaining Cargo – the most significant in monetary terms was an award for Clearing Charges in respect of the Remaining Cargo.

(b) Secondly, I have already mentioned in the section of these reasons dealing with the allegation of a breach of natural justice that in the Partnership’s Post-Hearing Brief, the Partnership raised what the Tribunal described as a new allegation. The allegation was that the claims in the arbitration were not brought by the proper claimant. The proper claimant was Company N and not DNP. The Partnership provided particulars of that allegation, and the Tribunal gave its reasons for rejecting it. I refer to paragraphs above (at [111]–[112]).

The Relevant Authorities

The starting point is to describe the scope of the public policy ground in the Model Law (Art 34(2)(b)(iii)). It is well established that it is a narrow ground. In PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597, the Court of Appeal said at [59]:

The fact that there is illegality of some kind under foreign law is not sufficient to warrant the setting-aside of an arbitral award. As Roger Giles IJ said in DBX and another v DBZ [2023] SGHC(I) 18 (“DBX v DBZ”) at [133], it must be assessed “for the offence to the public policy of Singapore of enforcement nonetheless, with the very high threshold to which the authorities refer”.

In Gokul Patnaik (at [205]–[206]), Sir Vivian Ramsey IJ made the point that international comity did not mean that a contract illegal by the law of the country of performance would always not be enforced, or set aside, as a matter of Singapore public policy. His Honour said the following (at [206]):

In Reliance Infrastructure Ltd v Shanghai Electric Group Co Ltd [2025] 1 SLR 1 (at [74]), the court made it clear that the public policy ground was not engaged by a party seeking to undermine an award on grounds that the party disavowed before the tribunal, or where the party raises an issue that the tribunal considers and rejects.

In Sacofa Sdn Bhd v Super Sea Cable Networks Pte Ltd and another [2025] 3 SLR 209, the court was not prepared to make a finding of a breach of a law of a foreign jurisdiction in the absence of expert evidence. The court said (at [52]–[53]):

As DNP submitted, the decision in DBX v DBZ is instructive. In that case, an unlicensed party was involved in the provision of margin financing. Under the law of Hong Kong, that party was required to be licensed. Giles IJ found that the law of Hong Kong did not invalidate the provision of margin financing by an unlicensed provider. His Honour went on to say that even if the law of Hong Kong had been to the effect that the provision of the facility in that case was illegal, he would not have set aside the award on the ground of conflict with the public policy of Singapore (DBX v DBZ at [133]):

Finally, it is to be noted that the function of the expert witness on foreign law is well-established. Again, I turn to the judgment of Giles IJ in DBX v DBZ. His Honour said the following (at [105]–[106]):

Whether the IGMs Gave Rise to Conflict between the Award and the Public Policy of Singapore

As I have said, DNO submits that DNP committed an offence under s 132 of the Indian Customs Act by the provision of IGMs which contained false declarations or statements. The IGMs were provided to the customs authorities in India. Section 132 of the Indian Customs Act provides as follows:

DNO submits that the IGMs contained a false declaration or statement that Company N was the owner or the Remaining Cargo, whereas DNP was the actual owner of the Remaining Cargo.

The IGMs state that Company N is the declarant and that it is the importer of the goods. In a separate section of IGMs, Company N is identified as the buyer and DNP is identified as the supplier. The provider of the document is unclear. There is a reference to ETA Logistics in a section of the document for the “Authorised Signatory”.

All DNO did was to identify s 132 of the Indian Customs Act and tender the IGMs. DNO did not call any evidence as to the content of Indian law. DNO did not seek the court’s permission for the use of expert evidence under O 14 r 2 of the SICC Rules. As I have already explained, the SICC Rules contain extensive provisions as to what must be included in an expert’s report, including the expert’s qualifications showing that the expert has the requisite knowledge in relation to the issues referred to the expert. Nor did DNO make an application to the court under O 16 r 8 of the SICC Rules for an order that a question of foreign law be determined on the basis of submissions instead of proof. The court may require evidence of the suitability and competence of the person making submissions, including evidence of good standing and of “qualifications and experience in relation to the relevant area of foreign law”. In fact, DNO made it clear before this court that it would not be calling expert evidence on Indian law.

In effect, DNO relies on the plain meaning of s 132 and of the IGMs. Such an approach is insufficient. For example, there is certainly an arguable issue as to whether the concept of “importer” includes ownership – it may or may not. As DNP pointed out, the Partnership was described as the importer in the IGMs for the Arrived Cargo in circumstances where it was clear that the Partnership was not the owner. The description of Company N as the buyer may be somewhat closer to the concept of ownership, but even in that case, there may be an issue as to whether title has passed. There is no expert evidence as to the scope of s 132 either by way of case law or reference to other sections in the Indian Customs Act.

In my opinion, in the absence of expert evidence supporting DNO’s submission, a finding cannot be made that DNP committed an offence under s 132 of the Indian Customs Act, in relation to the IGMs for the Remaining Cargo.

Even if, contrary to my conclusion, DNP did commit an offence under s 132 of the Indian Customs Act, there are two other grounds for rejecting DNO’s submission.

First, DNO must show a sufficient nexus between the illegality and the Award. DNO has not done that. DNP was enforcing rights derived from the Sales Contracts and the MOU, and it proved breaches of those rights in the arbitration. There is no illegality in that conduct. In other words, it cannot be said that DNP’s claim is based on any illegality on its part. DNP’s claim is based on rights and obligations in agreements between it and the Partnership.

Secondly, a breach of foreign law is not sufficient by itself to establish that an award is in conflict with the public policy of Singapore. DNO puts its case on the basis that the conduct by DNP, said to constitute an offence under s 132 of the Indian Customs Act, is contrary to the public policy of India. There is no evidence of that. Even if that matter is to be inferred, in my opinion, the upholding of an award which is based on the enforcement of lawful contracts found to have been breached (by way of damages) cannot be characterised as an act which would “shock the conscience” or “violate the forum’s most basic notion of morality and justice”, or is “clearly injurious to the public good” or “wholly offensive to the ordinary reasonable and fully informed member of the public”.

Whether the Invoices Gave Rise to Conflict between the Award and the Public Policy of Singapore

The starting point with the Invoices is DNO’s assertion that the Invoices were backdated and fabricated. Before the Tribunal, the Partnership submitted that the Invoices should not have been admitted into evidence because the documents were not authentic. The Tribunal considered and rejected that argument. It is very difficult to see how the Tribunal’s ruling on the admissibility of evidence of that nature could amount to a breach of natural justice or bring the Award into conflict with public policy.

In any event, the Tribunal found that the Invoices were not fabricated nor backdated with a view to mislead. The Tribunal rejected the allegation that the Invoices had been fabricated as to the prices shown in the Invoices. It noted that Mr A confirmed the amount put forward by DNP. With respect to the allegation that the Invoices had been backdated, the Tribunal found that there was nothing sinister in the dating of the Invoices. The Tribunal accepted the evidence of Mr Z. The Tribunal said:

Having regard to that finding, I reject DNO’s submission that the provision of backdated invoices to the customs authorities means that the Award is in conflict with the public policy of Singapore.

Conclusion

For these reasons, I reject DNO’s submission that the Award is in conflict with the public policy of Singapore.

A Further Issue of Natural Justice

Before this court, DNO made a further submission that DNP was not the proper party to claim the damages sought in the arbitration – if any party was entitled to those damages, it was Company N. There seemed to be two threads to that submission.

First, a general submission was made that the Tribunal had failed to consider the issue of the proper claimant for all of the claims made by the Partnership in the arbitration. As part of that submission, particular emphasis was given to the question of the party to whom the obligations in the MOU were owed and the party which had title to the Cargo.

This is an argument of a breach of natural justice, which must be firmly rejected. The Tribunal did consider these issues. I have already referred to the matters raised by the Partnership in the Post-Hearing Brief and the Tribunal’s reasons for rejecting the Partnership’s submissions, which included a particular that “title to the cargo was transferred to [Company N]”. The Tribunal found, that in accordance with the MOU, Company N was only the custodian of the Cargo and acted as a representative of DNP as unpaid seller. The Tribunal comprehended the issue, considered it, and addressed it in the Award.

Secondly, although it was not entirely clear, I took DNO to be making a more limited submission that the Tribunal, in addressing the issue of title, did not take into account the IGMs or the Invoices. There are two answers to this submission. First, the Tribunal did address the issue of title, and it was not required to address every item of evidence relied on by the party who seeks a particular finding. As long as the issue is addressed, that is sufficient. Secondly, even if there was a breach of natural justice, there was no prejudice to DNO.

DNO made a third submission that seemed to go further: that, in circumstances where Company N was the owner of the Cargo (or at least, the Remaining Cargo), only Company N could bring an action for loss and damage in relation to the Cargo. DNP did not have the necessary title in the goods in order to make the claims it did in the arbitration, and could not bring an action for loss and damage because it had not suffered loss and damage. On the face of it, this is not an argument of a breach of natural justice, but an argument going to the merits of the Tribunal’s decision. I reject the argument. As the other party to the MOU, it was only DNP that could terminate the MOU on the basis that DNO had not performed its obligations as to payment under it. Even if I am wrong about that, the error would be an error of law, and not a breach of natural justice.

DNP raised a further response to the above submission by reference to the decision of Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR(R) 782. I do not need to address this submission which, in any event, required more development than it received in oral submissions.

Conclusion