DPT and another v DPV and others [2025] SGHC(I) 29

Introduction

SIC/OA 10/2025 (“OA 10”) is an application brought by the applicants, DPT and DPU (collectively, “Applicants”), to set aside, in whole or in part, a Partial Award dated [redacted] (“Partial Award”) made in Singapore International Arbitration Centre Arbitration No. [redacted] (“Arbitration”).

The Applicants allege that:

(a) they were unable to present their case within the meaning of Article 34(2)(a)(ii) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), read with s 3 of the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”); and / or

(b) there was a breach of the rules of natural justice in connection with the making of the Partial Award by which the rights of the Applicants have been prejudiced, within the meaning of s 24(b) of the IAA.

We note from the outset that these two grounds may be considered together. While found in separate provisions, both grounds ultimately relate to the same fundamental complaint that the rules of natural justice have been breached: see ADG v ADI [2014] 3 SLR 481 at [118]; Government of the Republic of the Philippines v Philippine International Air Terminals Co, Inc [2007] 1 SLR(R) 278 at [18].

Following an exchange of written submissions, we heard oral arguments on 22 September 2025 (“Oral Hearing”).

For the reasons that follow, we dismiss OA 10.

Facts

Parties

DPX is a joint venture financial technology company at the centre of this dispute. Its “main product is … an e-wallet open-loop payment method”. It features as the third respondent in the Arbitration and the third respondent in OA 10, but it otherwise plays a nominal role – the main combatants are the shareholders of DPX.

DPT and DPU (ie, the applicants in OA 10 and the first and second respondents in the Arbitration) are sister companies both incorporated in [Country A]. Their parent company is [Company A]. DPU is primarily in the transportation business.

The first and second respondents in OA 10 are DPV and DPW (collectively, “Founders”). At the material time, DPV was the Group CEO of DPX, while DPW was the Head of Business Planning & Intelligence / Group Chief Strategy Officer albeit that he had been formally employed by a wholly-owned subsidiary of DPX based in [Country A] (referred to as “DPXA”). The Founders were the claimants in the Arbitration.

Background facts

Sometime in 2016, [Witness 1], the CEO of [Company A] (which was then known by a different name), discussed the possibility of developing a financial technology business with the Founders.

These discussions culminated in a proposal for DPX being presented to the Board of DPU via e-mail on 28 October 2016. On 4 November 2016, the Board of DPU passed a resolution to set up DPX.

DPX was incorporated on [redacted] 2017 and 900 shares were allotted as follows:

On 9 March 2017, DPV and DPW transferred their respective shareholdings to DPU “in anticipation of [DPU’s] investment in [DPX]”:

In March 2017, DPU, the Founders, and DPX entered into a shareholders’ agreement (“SHA”) and an investment agreement (“IA”) (collectively, “Agreements”), in order to “develop a pan-regional fintech business”. The IA provided for, amongst others, investments by DPU to take place in tranches, and the Founders’ shares “to be issued to them in two tranches and subject to vesting restrictions to be subsequently agreed”. These “vesting restrictions” were termed the “Founders’ Vesting Arrangements”.

On 5 April 2017, the DPU Board approved certain vesting conditions during a meeting. The Founders were not present at this meeting.

Following the receipt of equity funding by DPU, DPX issued a further 2850 shares to DPU on 17 April 2017, bringing DPU’s total shareholding to 3750 shares:

In April 2017, [DPXA] applied for approval from [Country A’s] central bank to issue a prepaid card (“DPX Card”), launch the “DPX Mobile App”, and conduct closed beta trials of the same.

On 27 February 2018 and following further equity funding by DPU, DPX issued an additional 3178 shares to DPU, bringing DPU’s total shareholding to 6928 shares:

On 14 August 2018, a DPX directors’ resolution was passed pursuant to which 572 shares would be issued to DPU, 600 shares would be issued to DPV, and 300 shares would be issued to DPW. The respective shareholdings as at 15 August 2018 were as follows:

On 15 August 2018 and 4 September 2018, DPX and DPU entered into two convertible loan notes (“CLNs”) for US$6,188,155 and US$8,474,576 respectively.

On 28 March 2019, DPU transferred its shareholding in DPX to DPT. DPT was formerly known by two different names, but for ease of reading we will use “DPT” to also refer to transactions it was previously involved in under its previous names. For present purposes it is immaterial under which name(s) DPT contracted at the material time . It is undisputed that DPT then became a party to the Agreements. The two CLNs identified above at [19] were also transferred from DPU to DPT.

Between May 2019 to August 2020, DPT and DPX entered into a further 10 CLNs. For convenience, the 12 CLNs entered into between August 2018 and August 2020 will be referred to collectively as the “DPT CLNs”, and individually as “CLN 1” to “CLN 12”. The total sum loaned to DPX via the DPT CLNs will be referred to as the “CLN Debt”. Save that CLN 1 does not contain a provision for early repayment, the DPT CLNs were structured in broadly identical terms and provided for certain circumstances pursuant to which DPX’s debts under the DPT CLNs would be converted into equity for DPT.

On 17 January 2020, DPX’s shares were split, resulting in the following shareholding:

The relationship between the Applicants and the Founders began to deteriorate sometime in early 2020, coinciding with the onset of the COVID-19 pandemic:

(a) DPX’s “closed loop transaction facility on [the Applicants’ website] was suspended” sometime in June 2020.

(b) In or around May to August 2020, the Founders and DPX’s management were alerted to the development of [DPT e-Wallet], an “e-wallet for digital payments” on the Applicants’ app. The Founders took the view that [DPT e-Wallet] was a “competitive business which caused damage to [DPX]”.

(c) Between August and November 2020, the Founders exchanged a series of Whatsapp messages which included statements regarding their intention to, amongst others, “burn the whole house down”, leak information, “strong [arm] a deal”, and force a buyout.

(d) Sometime in October 2020, the Founders drafted and transmitted an anonymous letter to a number of third parties (“Letter”) which, amongst others, alluded to “mismanagement”, “corruption and cronyism” in the Applicants.

(e) DPT issued calls on CLN 1 and CLN 2 on 27 October 2020. These calls were formally retracted on 1 November 2020, following legal advice received in relation to the implications of the 27 October 2020 calls.

(f) Following the issuance of the Letter, the Applicants commenced investigations and eventually placed DPV and DPW on gardening leave. DPW and DPV were terminated as employees on 9 December and 16 December 2020 respectively.

Termination notices were sent on 28 December 2020 and 27 January 2021 by DPT to the Founders purporting to terminate the Agreements.

On 10 February 2021, the Founders were removed as directors of DPX by way of an ordinary resolution; the Founders however remained as shareholders of DPX.

In April 2021, DPT launched [DPT Marketplace], a “digital financial marketplace … integrated on [the Applicants’ app]”.

On 12 May 2021, Mr [X], then CEO of DPX (up to around February 2023) prepared a board paper seeking approval to convert the DPT CLNs into ordinary shares “so as to ‘reduce the liabilities on [DPX’s] balance sheet’ in light of [DPX’s] bid to obtain ‘additional regulatory licenses’”.

On 21 May 2021, the DPT CLNs were converted into shares for DPT. Consequently, 197,309,509 shares in DPX were issued to DPT. This resulted in DPT becoming the 99.6% shareholder of DPX, and the Founders’ percentage shareholding being reduced from 10.71% to 0.4%. The propriety of the conversion of the DPT CLNs was a major point of contention in the Arbitration.

On [redacted] 2021, “DPXB”, another subsidiary of DPX, submitted an application to [Country A’s] central bank for a digital bank license.

On [redacted] 2021, it was announced that DPX had secured up to [redacted] in financing led by the [B Group] (“[B Group] Investment”), one of the largest conglomerates in [Country B]. The [B Group] would invest a sum of [B Group Sum].

On [redacted] 2022, [Country A’s] central bank rejected [DPXB’s] digital bank license application.

In June 2022, [DPT e-Wallet] was launched.

The Arbitration

In November 2021, the Founders filed their Notice of Arbitration against the Applicants and DPX.

Claims and reliefs sought

The Founders claimed against the Applicants and DPX for breaches of the Agreements, and claimed against the Applicants for minority oppression under s 216(1) of the Companies Act 1967 (2020 Rev Ed) (“Companies Act”). In their amended statement of claim (“SOC(A1)”), the Founders sought:

(a) a declaration that the Applicants and DPX had breached the Agreements;

(b) a declaration that the Applicants had conducted the affairs of DPX and / or caused the powers of their nominee directors to be exercised in a manner that oppresses, disregards the interests of, unfairly discriminates against or otherwise prejudices the Founders in contravention of s 216(1) of the Companies Act (ie, a declaration of minority oppression);

(c) an order that the issuance of 197,309,509 shares in DPX to DPT on 21 May 2021 be struck down and invalidated;

(d) an order for DPT to purchase the shares of the Founders pursuant to s 216(2)(d) of the Companies Act on such terms to be determined by the three-member arbitral panel (“Tribunal”) after considering submissions from the parties (ie, a buyout order);

(e) damages (to the extent that a buyout order was not granted or did not fully compensate the Founders); and

(f) interest, costs, and such further relief as the Tribunal deemed fit.

The Applicants in turn requested:

(a) a declaration that the Agreements had been validly terminated;

(b) a declaration that the Founders’ interest in the shares of DPX were as reflected in the Register of Members;

(c) an order for the Founders to pay damages (in an amount to be assessed) in respect of the Applicants’ counterclaim for malicious falsehood;

(d) an order for the Founders to pay the Applicants the costs of the Arbitration on a full indemnity basis; and

(e) such further relief as the Tribunal deemed fit.

Procedural history

The Tribunal was constituted on 14 June 2022 and notified to the parties on 15 June 2022. It is unnecessary (indeed, undesirable) for us to canvass the entire procedural history of the Arbitration, save to note a few material events which occurred.

The Applicants submitted their first round of witness statements on 14 June 2023, comprising:

(a) the 1st Witness Statement of [Witness 1];

(b) the 1st Witness Statement of [Witness 2];

(c) the 1st Witness Statement of [Witness 3];

(d) the 1st Witness Statement of [Witness 4];

(e) the 1st Witness Statement of [Witness 5];

(f) the 1st Witness Statement of [Witness 6];

(g) the 1st Witness Statement of [Witness 7];

(h) the 1st Witness Statement of [Witness 8];

(i) the 2nd Witness Statement of [Witness 9]; and

(j) the 1st Expert Report of [Expert A].

Over 14 and 15 August 2023, the Applicants and the Founders exchanged their second round of witness statements (“2nd Round Witness Statements”). The Applicants’ 2nd Round Witness Statements comprised:

(a) 2nd Witness Statement of [Witness 1];

(b) 2nd Witness Statement of [Witness 2];

(c) 2nd Witness Statement of [Witness 3];

(d) 1st Witness Statement of [Witness 10];

(e) 2nd Witness Statement of [Witness 7];

(f) 2nd Witness Statement of [Witness 8]; and

(g) Reply Witness Statement of [Witness 5].

(1) Mr [X] and Ms [Y] Answers

On 31 August 2023, the Founders’ counsel informed the Tribunal that subpoenas had been granted by the Singapore High Court and served on Mr [X] and Ms [Y], requiring them to give evidence in the Arbitration. As previously stated (see [27] above), Mr [X] was the former CEO of DPX. Ms [Y] was the former Head of Finance of [DPXA] and had worked in [DPXA] from September 2018 to May 2023.

Additionally, in the case of Mr [X], he had also been subpoenaed to provide documents (“Mr [X] Documents”), which were the subject of a previous application for disclosure made by the Founders on 10 August 2023. The Mr [X] Documents also consisted of secret recordings of various conversations which Mr [X] had obtained and disclosed to the Founders (“Mr [X] Recordings”). The Applicants had resisted the disclosure application on the grounds that the Mr [X] Documents contained privileged material and / or were not responsive to the production orders. The Founders informed the Tribunal that they were withdrawing their disclosure application as they had already obtained the Mr [X] Documents by way of the subpoena.

On 14 September 2023, the Tribunal directed that, inter alia:

(a) Mr [X] and Ms [Y] were to provide their answers in writing to questions provided by the Founders;

(b) the Applicants / DPX were at liberty to file responsive evidence to these answers;

(c) the Applicants / DPX would be permitted to cross-examine Mr [X] and Ms [Y], and the Founders would then be permitted to re-examine them; and

(d) the Founders were to disclose all exchanges and communications they had with Mr [X] and / or Ms [Y] and / or their solicitors in connection with the Arbitration.

Mr [X] and Ms [Y] furnished their answers to the Founders’ questions on 23 September 2023 (“Mr [X] Answers” and “Ms [Y] Answers”). On 27 September 2023, the Tribunal granted the Founders’ request made the previous day for them to tender additional questions to Mr [X] and Ms [Y].

(2) Responsive Evidence

On 2 October 2023, the Applicants submitted responsive witness statements to the Mr [X] Answers and Ms [Y] Answers (“Responsive Evidence”). The Responsive Evidence comprised ten witness statements:

(a) the 3rd Witness Statement of [Witness 1];

(b) the 3rd Witness Statement of [Witness 2];

(c) the 3rd Witness Statement of [Witness 3];

(d) the 3rd Witness Statement of [Witness 5];

(e) the 3rd Witness Statement of [Witness 7];

(f) the 3rd Witness Statement of [Witness 8];

(g) the 3rd Witness Statement of [Witness 9];

(h) the 1st Witness Statement of [Witness 11];

(i) the 1st Witness Statement of [Witness 12]; and

(j) the 1st Witness Statement of [Witness 13].

On 10 October 2023, the Founders informed the Tribunal that in light of “the Tribunal’s indications that parties should focus only on the core evidence”, they would be dispensing with the cross-examination of the following witnesses:

(a) [Witness 11];

(b) [Witness 12];

(c) [Witness 13];

(d) [Witness 10]; and

(e) [Witness 6].

Notably, [Witness 11], [Witness 12], and [Witness 13] were three witnesses who provided statements for the first time as part of the Responsive Evidence (see above at [44]).

On 12 October 2023, the Founders also dispensed with cross-examination of [Witness 5]. For context, [Witness 5] was, amongst others, the former Head of Legal and current Chief Legal & Compliance Officer at DPX. The Founders took the view that [Witness 5’s] witness statements “[did] not speak to matters within her personal knowledge and [were] therefore of limited assistance”.

(3) Valuation Document and Dropdown Model

The oral hearing for the Arbitration was heard over the course of ten days in October 2023 (“Arbitration Hearing”). We note in particular that on 11 October 2023 (Day 8 of the Arbitration Hearing), the Tribunal circulated a document titled “Valuation Issues 10.10.2023.docx” (“Valuation Document”) to seek clarifications from the parties as to their respective positions on the valuation exercise in the event a buyout order was made. The relevance of this document will become apparent later in this judgment.

Closing and reply closing submissions were exchanged over the course of November 2023.

On 15 December 2023, the Applicants’ counsel provided a “Dropdown Model” used by their expert, [Expert A], to assist with computing the value of the Founders’ shares in DPX. The Dropdown Model was in the form of a Microsoft Excel spreadsheet.

The Founders replied on 20 December 2023 indicating their surprise at receiving the Dropdown Model for the first time on 15 December 2023, without being given any prior opportunity to comment on the same. The Founders alleged, amongst others, that the Dropdown Model was of limited assistance to the Tribunal and would be prejudicial to their case.

On 9 February 2024, after being given some time to confer, counsel for the Founders informed the Tribunal that the parties were as yet unable to agree on a joint model but that they would submit a Microsoft Excel spreadsheet containing both their models for the Tribunal’s consideration.

The Tribunal responded on 16 February 2024, indicating its view that:

Both the Founders and the Applicants expressed their substantive agreement with this approach.

On 11 December 2024, the Tribunal closed the proceedings in relation to matters dealt with in the Partial Award.

Partial Award

The Tribunal issued the Partial Award in December 2024.

Main findings

With regard to the alleged breaches of the Agreements:

(a) The Tribunal unanimously determined that:

(i) the purported termination of the Agreements by DPT was not valid and was in breach of the Agreements;

(ii) DPT and / or DPX had variously breached the SHA and / or IA by:

(A) “denying [the Founders] the opportunity to appoint new directors”;

(B) “refusing to provide material information to the [Founders] that they were entitled to”;

(C) “proceeding to allot/issue shares without the prior approval of the shareholders”;

(D) “failing to obtain [the Founders’] approval for the [B Group] Investment”; and

(E) “launching and operating [DPT e-Wallet] and [DPT Marketplace]”.

(b) A majority of the Tribunal (“Majority”) found that:

(i) DPT and DPX had breached the IA by “failing to accurately reflect [the Founders’] shareholding percentage at 12.28% of [DPX’s] shares”; and

(ii) DPT and DPX had breached the SHA by “rendering [DPX’s] Board inquorate and continuing to transact business”.

On the issue of minority oppression:

(a) The Tribunal unanimously found that the following acts and breaches were “oppressive both individually and cumulatively” [emphasis added]:

(i) invalidly terminating the Agreements;

(ii) refusing to reflect the Founders’ true shareholding;

(iii) denying the Founders rights to remain as directors and appoint new directors;

(iv) refusing and / or failing to provide requested information;

(v) the dilution of the Founders’ shareholding; and

(vi) the launch of [DPT e-Wallet] and [DPT Marketplace].

(b) The Majority also found that rendering DPX’s Board inquorate and unable to transact business was oppressive.

On the whole, DPT was found to have acted in a manner oppressive to the Founders as the minority, in contravention of s 216(1) of the Companies Act.

The Majority also declared the issuance of shares to DPT on 21 May 2021 (pursuant to the conversion of the DPT CLNs) “null and void” as regards the Founders. This declaration was made based on the Majority’s finding that the conversion had been performed without giving due notice to the Founders, thereby “depriving [the Founders] not only of the ability to vote and represent themselves with regard to the board resolution but also of the opportunity to seek legal remedies”. It is pertinent to note that the declaration was premised on DPT having acted in breach of cl 5 of the SHA, and was made irrespective of the finding that the issuance of shares was itself an independent act of oppression.

The Majority further ordered the Applicants to buy out the Founders’ shares for a sum of US$14,736,000, comprising US$9,824,000 for DPV and US$4,912,000 for DPW.

Lastly, the Applicants’ counterclaim for malicious falsehood was dismissed.

Calculation of the buyout price

For reasons that will become apparent, it is useful to set out in some detail the Majority’s reasoning underpinning the terms of the buyout order that it made.

It was undisputed that the date of valuation should be 31 December 2021.

The Majority took the view that the [B Group] Investment was “the most reliable starting point” because it was an arm’s length transaction between two sophisticated parties with due diligence having been conducted. The [B Group] Investment was made on the basis of an implied valuation of DPX at US$120m. However, the Majority took the view that this nonetheless appeared to be an undervaluation because [Witness 1] himself had previously informed the [B Group] in January 2021 that he believed DPX’s value to be around US$150m. Thus, US$120m formed the “lower bound” of DPX’s value in the Majority’s deliberation.

The Majority then went on to consider whether several deductions should be made to the value of DPX. The Applicants / DPX had argued for deductions to take into account the:

(a) [B Group] guarantee (a reference to a guarantee by DPT and [Company A] in respect of the [B Group] Investment);

(b) [B Group] Investment; and

(c) a top-up by the Founders in order to maintain their shareholding.

The Majority found that the Founders did not have to make a notional top-up. Its reasoning may be briefly summarised as follows.

First, the Founders were entitled to 12.28% of the issued capital of DPX, “irrespective of how many shares [were] issued to [DPT]”.

Second, at paragraph 512 of the Partial Award, the Majority found that the DPT CLNs were “worthless as debt”. It is useful to reproduce its reasoning in full on this point, found at paragraph 558 of the Partial Award:

Additionally, the Majority took into consideration the Founders’ case that “if they did not agree with the dilution or to top-up, they would have exited by seeking a buyout at the material time … [which] further lends force to their contention there should not be a deduction for a notional top up”.

The Majority took the view that the buyout should be ordered on the basis that the new shares had not been issued pursuant to the improper conversion of the DPT CLNs, and it noted that the Tribunal had an “unfettered discretion” under Singapore law to arrive at a valuation that was just and equitable.

It concluded by observing that “as the conversion scheme for the [DPT] CLNs has been declared to be invalid as against [the Founders], axiomatically the requirement for a top up simply does not arise” [internal citations omitted].

In the circumstances, the Majority ordered that the Founders were entitled to 12.28% of DPX’s shareholding, at a valuation of US$120m, and with no deductions to be made to DPX’s value. DPT was ordered to buy out the Founders for the sum of US$14,736,000.

Dissent

The dissenting arbitrator (“Minority”) disagreed with various aspects of the Majority’s decision.

In particular, in relation to the conversion of the DPT CLNs, the Minority was of the view that to value the Founders’ shares in such a way as to put them in a position as if the improper conversion had not taken place required either one of two possible courses to be taken:

The Minority took the view that “either the [CLN Debt] must be taken into account in the valuation of the [Founders’] shares or if that debt is not to be taken into account, it must be assumed that the [Founders] had contributed the amount required to maintain their percentage interest in [DPX] enhanced by the removal of [the CLN Debt]”. To adopt the Majority’s approach would be to disregard DPX’s CLN Debt to DPT, thereby awarding the Founders a windfall via an enhanced value of DPX when “the only way that could have occurred is if the [Founders’] had exercised the right conferred upon them by the SHA to subscribe for the shares necessary to maintain their percentage interests on the same terms, pari passu, as the shares were issued to [DPT]”.

Additionally, the Minority disagreed with the Majority’s conclusions (see above at [70]) that DPT’s debt in DPX via the DPT CLNs was essentially “worthless”. The Minority indicated that it was “not aware of any evidence which would sustain these conclusions”; instead, the evidence suggested that the debt arose due to cash advances made by DPT to fund DPX’s operations. It was of the view that the CLN Debt was “real” and repayable to DPT if it was not converted to equity, and that the evidence suggested that “[B Group] would not have invested [B Group Sum] into [DPX] unless [DPT’s] debt had been converted into equity”. For this reason, the debt had to be taken into account when valuing the Founders’ shares in DPX. As a result, the value of DPX used for the valuation had to be reduced by the amount of the CLN Debt.

Parties’ arguments

Due to the highly factual nature of the dispute, the parties’ arguments are set out here very briefly and will be expanded upon in more detail at the appropriate juncture of our analysis.

The Applicants argue that the Tribunal committed a breach of natural justice in two ways:

(a) first, that the Tribunal had, in determining the buyout price for the Founders’ shares, gone down a path which was not open to it and had done so without giving the parties an opportunity to be heard (“Buyout Issue”); and

(b) second, in accepting the evidence of Mr [X] without considering the Responsive Evidence (“Responsive Evidence Issue”).

The Founders, unsurprisingly, disagree with the Applicants’ contentions.

Issues

There are two broad issues for us to decide:

(a) whether the Buyout Issue has been established; and

(b) whether the Responsive Evidence Issue has been established.

Applicable law

The applicable law relating to breaches of natural justice in arbitration proceedings is not contentious.

To set aside an award for a breach of natural justice, an applicant needs to “(a) identify the rule of natural justice which was breached; (b) establish how the rule was breached; (c) establish the way the breach was connected to the making of the award; and (d) show that the breach prejudiced the rights of the party”: BTN v BTP [2021] 1 SLR 276 (“BTN (CA)”) at [43], citing Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) at [29].

Natural justice is generally understood as comprising two pillars. First, that an adjudicator must be independent and unbiased; and second, that all parties must be given adequate notice and an opportunity to be heard (generally referred to as the “fair hearing rule”): Soh Beng Tee at [43], citing Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 at 396.

In this case, both the Buyout Issue and the Responsive Evidence Issue relate to alleged breaches of the fair hearing rule.

In respect of the Buyout Issue, it is well-established that there can be a breach of the fair hearing rule if there is a defect in the tribunal’s chain of reasoning. The applicable principles have been summarised in BZW v BZV [2022] 1 SLR 1080 (“BZW (CA)”) at [60(b)]:

In respect of the Responsive Evidence Issue, the alleged breach is of the infra petita variety, which means that “the essential complaint [is] that the tribunal had not carried out its mandate by considering all the material issues that were raised in the arbitral proceedings”: DKT v DKU [2025] 1 SLR 806 (“DKT”) at [7].

The principles applicable to an infra petita challenge (which were not disputed by the parties) have been comprehensively summarised by the Court of Appeal in DKT, which explained that an infra petita challenge will only succeed if all of the four following conditions are satisfied:

(a) First, “the point must have been properly brought before the tribunal for its determination”; a party is not entitled to raise an infra petita challenge in respect of points it could have but failed to raise in the arbitration: DKT at [8(a)].

(b) Second, “the point must have been essential to the resolution of the dispute” [emphasis in original]: DKT at [8(b)]. In this regard, a tribunal is only under a duty to address “essential” issues; it “does not have the duty to deal with every issue raised”, particularly where the issue is rendered moot due to certain findings of the tribunal: DKT at [8(b)].

(c) Third, “the tribunal must have completely failed to consider the point”. This is a matter of inference, which to be drawn requires showing that the inference is “clear and virtually inescapable” [emphasis added]: DKT at [8(c)]. A “generous approach” is adopted, “avoiding a hypercritical or excessively syntactical analysis of the award”, with any doubt “resolved in favour of upholding the award”: DKT at [8(c)]. The court’s focus is “not directed at the adequacy of the tribunal’s analysis, but with the existence and fact of such analysis” [emphasis in original], and it would only “be in the truly exceptional circumstance where the tribunal’s purported analysis is so woefully incomplete and cursory that it leads to the clear and virtually inescapable inference that the tribunal had in fact completely failed to consider the issue” [emphasis added]: DKT at [8(c)].

(d) Finally, “even if the tribunal failed to consider an essential point placed before it, there must have been real or actual prejudice occasioned by this breach of natural justice”: DKT at [8(d)]. The test is whether the breach “was merely technical and inconsequential or whether as a result of the breach, the arbitrator was denied the benefit of arguments or evidence that had a real as opposed to a fanciful chance of making a difference to his deliberations”, such that “the material could reasonably have made a difference to the arbitrator” [emphasis in original]: L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd [2013] 1 SLR 125 (“L W Infrastructure”) at [54], cited in DKT at [8(d)].

In our view, the need for a “clear and virtually inescapable inference” also applies in relation to a failure to consider material evidence (as opposed to material issues). This is because the evidence on record forms part of the overall material which a tribunal needs to consider in its determination of the issues before it – we note that in their written submissions and oral arguments before us, neither party contended otherwise.

In ASG v ASH [2016] 5 SLR 54, Coomaraswamy J also appeared to treat the “clear and virtually inescapable inference” requirement as being similarly applicable to the tribunal’s consideration of the evidence when he observed at [86]:

Also relevant are Ramsey IJ’s remarks in DFI v DFJ [2024] SGHC(I) 4 (at [73]), which we find to be consistent with our observations above:

Having set out the applicable principles, we now turn to consider how they apply to each of the issues before us.

The Buyout Issue

Overview of parties’ arguments

The Applicants submit that the Founders had taken the position in their opening statement that there were two ways of calculating the amount to be paid under a buyout order:

(a) a buyout would be ordered on the basis that the DPT CLNs were not converted (“First Scenario”); or

(b) a buyout would be ordered on the basis that the DPT CLNs were converted with a top-up (“Second Scenario”).

Between these two possibilities, the Founders had ostensibly opted for the Second Scenario, and had confirmed the same via their submissions and / or exchanges which their counsel, Mr Calvin Liang (“Mr Liang”), had with the Tribunal. It was only in their closing submissions that the Founders raised for the first time a “Third Scenario” where they requested the Tribunal to order a buyout based on a post-conversion valuation without a top-up. As is apparent from the summary of the Partial Award provided above (at [63]–[74]) however, it was precisely this Third Scenario that the Majority used as the basis for ordering the buyout.

Additionally, to justify adopting this Third Scenario, the Majority had adopted a chain of reasoning which was allegedly unforeseeable and which the parties did not have reasonable notice of. In particular, the Applicants seek to impugn two findings made by the Majority (see above at [70]):

(a) that the DPT CLNs were “worthless as debt”; and

(b) consequently, that DPX’s pre-conversion value would have been the same as its post-conversion value.

Flowing from this overview, the Applicants’ complaints can be categorised into three categories:

(a) that the Majority had ordered a buyout on the basis of the Third Scenario, which the Founders had confirmed they would not be running as part of their case; and

(b) that the Majority had justified their approach by relying on two factual findings which themselves bore no reasonable nexus to the parties’ cases, these being the findings:

(i) that the DPT CLNs were “worthless”; and

(ii) that DPX’s pre-conversion value was the same as DPX’s post-conversion value.

Additionally, these breach(es) were connected to the making of the Partial Award and had caused the Applicants prejudice.

The Founders raise a preliminary objection that the Applicants are attempting to belatedly raise new grounds for setting aside the Partial Award and that these grounds are now time-barred. Substantively, with regard to the Buyout Issue, they argue that the Third Scenario had always been their primary case. Even if the Third Scenario had not been before the Tribunal, it was open to the Tribunal to adopt it in the exercise of its discretion. Finally, the Applicants did not suffer any prejudice because they failed to give “fair intimation” to the Tribunal of the alleged breach in accordance with the guidance set out by the Court of Appeal in China Machine New Energy Corp v Jaguar Energy Guatemala LLC [2020] 1 SLR 695 (“China Machine”).

Analysis

Time-bar objection

The Founders’ preliminary objection is that the Applicants have taken inconsistent positions in their supporting affidavit and in their written submissions:

(a) the Applicants’ supporting affidavit had complained that the Majority had adopted a pre-conversion valuation without allowing the Applicants to lead any evidence as to DPX’s pre-conversion value;

(b) in contrast, the Applicants’ written submissions complain that they had not been given the opportunity to submit on whether a top-up was required in a post-conversion scenario.

This latter ground, which the Founders say is new and belatedly raised in the Applicants’ written submissions, is time-barred because it was not raised within three months of the date on which the Applicants received the Partial Award (presumably referring to O 23 r 7(3)(a) of the Singapore International Commercial Court Rules 2021). To support these arguments, counsel for the Founders, Mr Liang, also tendered a two-page note to the court at the Oral Hearing setting out his arguments on this point. The Founders assert that the Applicants’ original supporting affidavit did not “reasonably contain all the facts, evidence and grounds relied upon”: BTN v BTP [2022] 4 SLR 683 (“BTN (HC)”) at [62]. This is because in their supporting affidavit, the Applicants’ initial ground as to why the Partial Award should be set aside was premised on the Majority having adopted a pre-conversion valuation of DPX. In contrast, the ground for setting aside raised in the Applicants’ written submissions (ie, whether a top-up should have been applied) is “based on a diametrically opposite factual premise” – that of the Majority having adopted a post-conversion valuation of DPX.

On the morning of the Oral Hearing, the Applicants informed the court by letter that they would potentially be relying on the additional authority of DLS v DLT [2025] SGHC 61 (“DLS”) during the Oral Hearing. The stated relevance of DLS was for the proposition that:

The parties were however content not to address us in oral argument on the time-bar point. Counsel for the Applicants, Mr Kelvin Poon SC (“Mr Poon SC”), indicated that his submissions were “conditional on what the respondents would say”. For his part, Mr Liang was content to rest his submissions on this issue on the written note he had tendered to us (see above at [101]). In the circumstances, the Applicants ultimately ended up not addressing us on the time-bar point.

It appears to us that there is some force to the Founders’ complaint that the ground raised by the Applicants in their written submissions that they were not given the opportunity to address the issue of a top-up is a new ground which had not been raised in their supporting affidavit. The relevant paragraphs of the Applicants’ supporting affidavit read:

While the Applicants did reference the fact that the Majority had decided the Founders “were not required to top up to maintain their percentage shareholding”, paragraphs 215.2–215.3, 215.6, and 216–217 make clear that the gravamen of the Applicants’ complaint was that the Tribunal had considered DPX’s pre-conversion valuation to determine the buyout price. Nowhere in their supporting affidavit do the Applicants specifically take issue with the Founders not having to pay a top-up, which is a different complaint altogether.

As the point was not in fact addressed by the Applicants at the Oral Hearing, we are unsure what arguments the Applicants would have made had they addressed the issue. Nor do we know what point the Applicants seek to make by referring us to DLS. Nonetheless, we have considered the authority and we do not think that it assists the Applicants’ case. In DLS, the court cited (at [90]) BZW (CA) for the proposition that it is only the setting-aside application (that “briefly states the provisions of the IAA or Model Law that are relied upon”) which needs to be filed within the three-month time period; in BZW (CA), the application was not filed out of time because only the supporting affidavit had been filed after the three-month period.

While we accept that pursuant to BZW (CA), a supporting affidavit may be filed after the three-month time period, this is not inconsistent with the rule in BTN (HC) that when the supporting affidavit is eventually filed, it (together with the originating application) should set out the entirety of the applicant’s case for setting aside. Indeed, this was precisely the issue in DLS (at [91]):

In our view, there was no basis for the Applicants to raise a new ground in their written submissions when the same “could and should have been raised at first instance” in their supporting affidavit: BTN (HC) at [63].

For this reason, we would reject the Applicants’ arguments on the issue of whether the Majority was entitled to determine that no top-up was required, as that complaint should have been raised in their supporting affidavit and is now made out of time.

In any case, on the assumption that the Applicants were not prevented from raising this new ground, we have in any event gone on to consider the substantive grounds raised by the Applicants and even then, it remains our unanimous decision that the Applicants cannot succeed on the Buyout Issue. It is to the substantive merits of the Buyout Issue that we now turn our attention.

Whether the Founders had agreed not to run the Third Scenario

We begin with the Applicants’ first complaint (as identified above at [97(a)]. The Applicants rely on various submissions made in the Arbitration and / or exchanges between counsel and the Tribunal to support their contention that the Founders had effectively agreed to raise only the Second Scenario in the Arbitration. We canvass some of the evidence below. However, considering the many points taken by the parties, it would not be practical to set out every single argument and reference to the arbitral record put forth.

(1) Founders’ opening statement

The Applicants first referred us to the following paragraphs from the Founders’ opening statement:

In the Applicants’ view, the effect of the above paragraphs of the Founders’ opening statement was to indicate that the Founders were adopting the Second Scenario. Presumably, the focus is on the portion that has been italicised – that the Founders assumed that they would have to subscribe to additional shares in order to retain their percentage shareholding.

In turn, the Founders argue that paragraph 59 of their opening statement had captured their primary case that the “buyout order should be fixed at a price that excludes the illegitimate dilution by assuming that the new conversion shares issued to [DPT] [following the conversion of the CLNs] were not issued” [second interpolation in original]. Their valuation expert, [Expert B], had provided a valuation based on the Founders having to top-up to maintain their shareholding but this was an “assum[ption]” made in the alternative – hence the reference to “Nonetheless” at the start of paragraph 60 of their opening statement.

(2) Expert reports

Next, the Applicants submit that the Founders’ primary position based on the Second Scenario is supported by the Founders instructing [Expert B] to exclude the dilutive effects of the conversion by “assuming that [the Founders] were allowed to subscribe pari passu to maintain their percentage shareholding in [DPX] (i.e., top up)”.

In [Expert B’s] first expert report, [Expert B] indicated that amongst the instructions he had received:

In a joint expert report filed on 13 August 2023, [Expert B] provided the following response to issue number 6.3, titled “Estimation of required capital injection by the [Founders] to maintain shareholding”:

This, the Applicants say, was [Expert B] confirming that “he was instructed to assume that the [DPT] CLNs were converted on 21 May 2021 and to determine how much [the Founders] would have had to pay to maintain their percentage shareholding”. Reference was also made to footnote 145 of [Expert B’s] first expert report, which reads:

Similarly, in [Expert B’s] second expert report, [Expert B] stated that he would “rely on the same assumptions as in [his first expert report]”, that “while the [DPT] CLNs were converted prematurely and inappropriately, the [Founders] would also have had the right to subscribe to additional shares at the same valuation used for the conversion”.

The Founders’ position is that the parties’ expert reports had indeed addressed the Third Scenario. In his first expert report, [Expert B] states that he was instructed to assume that the “value of [the Founders’] Shares in [DPX] should be assessed at 16.67%” (ie, without a top-up). The opportunity for the Founders to subscribe to additional shares in DPX was “in the alternative” and “if at all necessary”. The Founders further refer to summary tables in [Expert A’s] first and second expert reports, reproduced below:

In each of his expert reports, [Expert A’s] own summary table of the Founders’ possible shareholding value did not provide for the Founders having to top up to maintain their shareholding – the Founders say this shows that the Third Scenario was a live issue as between the experts.

(3) Exchanges with the Tribunal

Particular emphasis was placed by the Applicants on certain exchanges between the Founders’ counsel, Mr Liang, and the Tribunal, which the Applicants argue amount to concessions and / or undertakings which had the effect of confirming that the Founders would not be pursuing the Third Scenario (ie, post-conversion valuation with no top-up) as the basis for the valuation exercise.

On 11 October 2023 (Day 8 of the Arbitration Hearing), the Tribunal circulated the Valuation Document (see above at [48]) and sought clarifications from the parties as to the conversion of the DPT CLNs:

The parties responded:

The Applicants say that Mr Liang did not deny the Applicants’ understanding of the Founders’ position that the conversion was subject to a notional top-up, but instead confirmed it.

The Founders explained that Mr Liang’s comments relating to their “primary position on the top-up” meant that this was their primary case “assuming there was a top up at all”. Their primary position on the Third Scenario had already been set out in their statement of claim and opening statement, and this was an impromptu exchange meant to address specific queries from the Tribunal.

On 12 October 2023 (Day 9 of the Arbitration Hearing), the Tribunal asked parties to confirm their positions in relation to the Valuation Document which the Tribunal had previously circulated. The pertinent section of the Valuation Document reads:

The Applicants place emphasis on the following exchange with the Tribunal:

This, they say, was the Founders’ confirmation that it was “common ground that the valuation of [the Founders’] shareholding should be conducted on the basis that the [DPT] CLNs were converted” [emphasis in original]. For this reason, no evidence was led on Issues 4 and 5 in the Valuation Document (see [127] above).

On Issue 6 in the Valuation Document (see [127] above), counsel for the Applicants, Mr Avinash Vinayak Pradhan (“Mr Pradhan”), also apparently obtained Mr Liang’s confirmation that the Founders’ case “assume[s] the top-up”:

From the Applicants’ perspective, these exchanges confirmed that the valuation of the buyout (if one were to be ordered) would be based on (a) the DPT CLNs being converted, and (b) the Founders having to top up a certain sum to maintain their percentage shareholding, and this resulted in no evidence being led as to DPX’s pre-conversion value. The only issue was the extent of the Founders’ top-up, not whether the Founders had to top up in the first place.

The Founders explain that these conversations took place within a specific “counterfactual” of “(i) the Founders not acquiring the shares necessary to maintain their percentage shareholding after the conversion; and (ii) the Founders acquiring the necessary additional shares to maintain their percentage shareholding”. In their view, the Tribunal’s question had only been directed at clarifying what the amount of top-up would be if it was assumed that a top-up would be required in the first place.

(4) Founders’ closing submissions

Turning to the Founders’ closing submissions, the prospect of a conversion without a top-up was, according to the Applicants, raised for the first time in the Founders’ closing submissions, the material portion of which reads:

As a result of the Founders’ allegedly belated and unpleaded argument, the Applicants “did not have reasonable notice” of the same.

(5) Our decision

Preliminarily, we disagree that the so-called Third Scenario had not been sufficiently pleaded by the Founders. The relevant portion of SOC(A1) pleaded:

In substance, the Applicants’ complaint appears to be that the SOC(A1) did not explicitly mention that there was no need for the Founders to top-up pari passu to maintain their shareholding percentage.

We disagree that the Founders needed to specifically mention that no top-up was required. While there was no specific pleading that a top-up was or should not be required in the sense that those words or words to similar effect were not used, the Founders had stated quite plainly that “the purchase price of the Founders’ shares should be calculated based on the Founders having a 16.67% shareholding in [DPX]”. This line should be read at face value – in the absence of any further qualification, it was wide enough to encompass a case where no top-up should be assumed.

Bathurst IJ took the view in Hii Yii Ann v Tiong Thai King [2024] 6 SLR 96 that in respect of damages, it would be “sufficient for a party to plead heads of damage without descending to precise quantification” (at [34]). We consider that a similarly flexible approach should be adopted in the context of a valuation exercise particularly in the context of a buyout order sought in a minority oppression claim. The Applicants’ position amounts to requiring the Founders to plead a negative and pre-empt arguments from the Applicants. We do not think that the rules of pleadings, even in an arbitration, extend so far as to require a claimant to plead which possible deductions do not apply. These are, if at all, matters for the defendant to raise.

The Applicants’ counsel, Mr Poon SC, also appeared to acknowledge that the Founders’ pleadings might be “broad enough to encapsulate [the Third Scenario] as a legal argument”, notwithstanding the Applicants’ general position that the Third Scenario was not pleaded. As mentioned above at [137], we are of the view that the pleading was broad enough to include the Third Scenario.

Turning to the issue proper, we find that the Third Scenario (ie, post-conversion valuation with no top-up) remained a live issue during the Arbitration and there was no agreement and / or understanding between the parties that this would not be the Founders’ case.

The parties’ respective arguments have already been set out in some detail above. These arguments, particularly those by the Applicants, essentially constitute running through the arbitral record with a fine-tooth comb to put forth differing interpretations of what each party said or meant. This approach did not strike us as being particularly productive. In DKT, the Court of Appeal cautioned against undertaking an overly detailed examination of the arbitral record as this “risks encouraging recalcitrant award debtors to burden the courts with needlessly excessive and convoluted references to the arbitral record”: DKT at [2]. These observations similarly apply to the parties and their counsel who, in the first place, should properly assess whether such heavy reference to the arbitral record is indeed required.

Having regard to the notes of evidence of the Arbitration including the excerpts canvassed above and others contained in the parties’ submissions, we find that the Applicants have not provided sufficiently cogent evidence to persuade us that some form of agreement or understanding had been reached between the parties that the Third Scenario was not in issue in the Arbitration.

It is not seriously disputed that the Founders’ case has always been that the valuation should exclude the effects of the illegitimate dilution – the real question is whether this itself implies that a top-up is required or was envisaged by the Founders. Granted, some of the excerpts the Applicants brought us to indicated that the parties were alive to the possibility of a top-up being considered. However, we do not think that by merely considering the possibility of a top-up, or addressing the Tribunal’s questions on a top-up scenario, the inference can be drawn that the no top-up scenario had therefore been abandoned by the Founders.

A perusal of the notes of evidence would reveal – as the Founders have sought to argue – that most of the exchanges with the Tribunal were made in the context of “assumed” hypotheticals. We accept that at some points Mr Liang’s comments appeared to verge on a concession – in particular when he confirmed that the Founders were “assum[ing] the top up” (see above at [130]). However, we are also mindful of the observations in Shiraz Abidally Husain v Husain Safdar Abidally [2007] 2 SLR(R) 719 that (at [18]):

We are unpersuaded that Mr Liang’s exchanges were so clear and unequivocal as to amount to a concession that the Third Scenario was not (or no longer) part of the Founders’ case. No evidence was brought to our attention that showed Mr Liang being directly asked whether the Founders were dropping or abandoning the Third Scenario. We accept that the exchanges between counsel and the Tribunal were in the context of impromptu questions posed by the Tribunal in the midst of the Arbitration Hearing – they were not, for example, carefully deliberated statements made in written closing submissions.

Additionally, we are mindful that this alleged concession took place in the context of a valuation exercise in a claim for minority oppression. The Tribunal observed, in the Partial Award, that it is “trite that Singapore law confers unfettered discretion on the Tribunal in assessing an appropriate valuation to ensure a just and equitable outcome”. This was not seriously disputed by either party and the availability of “discretionary adjustments … to arrive at a fair and just valuation” was a point expressly made by the Applicants in their closing submissions. In view of this broad discretion exercisable by the Tribunal, cogent evidence would be required in order to persuade us that a party had given its consent to the Tribunal’s discretion being restricted in a manner which prevented that party from arguing, or the Tribunal from adopting, a position which was more advantageous to that party.

Even if our conclusions above are wrong and the Applicants are right that the Founders had raised a new argument belatedly in their closing submissions, the Founders argue that the Applicants cannot now complain in any event because they did not give “fair intimation” to the Tribunal at the time in accordance with the rule in China Machine (see above at [99]).

In China Machine, the Court of Appeal held that a party who believes there has been a “fatal failure in the process of arbitration” must give “fair intimation to the tribunal that the complaining party intends to take that point at the appropriate time if the tribunal insists on proceeding”, and this would ordinarily require the complaining party to “at the very least, seek to suspend the proceedings until the breach has been satisfactorily remedied (if indeed the breach is capable of remedy) so that the tribunal and the non-complaining party has the opportunity to consider the position”; a party who fails to do so and instead presents themselves as “ready, able and willing to carry on to the award … does so at its own peril” because the “courts must not allow parties to hedge against an adverse result in the arbitration in this way” (at [170]).

The Founders point out that rather than ask the Tribunal to discard the allegedly new and unpleaded argument, the Applicants chose to (a) file their reply closing submissions to substantively respond to that argument; (b) “[adduce] new expert evidence (without leave) by way of a dropdown model to calculate the buyout price”; and (c) did not object to the Tribunal’s question as to whether further evidence should be adduced on the respective dropdown models (both of which allowed for the buyout price to be calculated based on the Third Scenario).

The Applicants argue that simply because they managed to provide a response, did not therefore mean that they had a “reasonable opportunity to be heard”. The Applicants refer to CAJ v CAI [2022] 1 SLR 505 (“CAJ (CA)”) as a qualification of the China Machine rule. In CAJ (CA), the appellant raised a new, fact-sensitive defence for the first time in its written closing submissions. Notwithstanding that the respondent provided a substantive response to that new defence in its written closing submissions, both the High Court and the Court of Appeal remained of the view that the respondent did not have a reasonable opportunity to respond as the fact-sensitive nature of the new unpleaded defence required the respondent to be given, amongst others, the opportunity to seek leave to adduce fresh evidence before the tribunal.

The Applicants contend that those observations apply with equal force here – they argue that the issue surrounding the top-up is a fact-sensitive one which they could not have responded to without the aid of further evidence, which they did not have the opportunity to adduce. The Applicants seek to draw a parallel to the objection raised by the respondent in CAJ (CA), who had in its written closing submissions raised the following objections (CAJ (CA) at [65]):

The Applicants submit that similarly, their reply closing submissions read:

We disagree with the Applicants that they sit in an analogous position to the respondent in CAJ (CA). The respondent in CAJ (CA) took two crucial steps which materially distinguishes it from the Applicants in this case. Before the arbitral tribunal, the respondent in CAJ (CA) (a) expressly identified the very same due process complaint which it raised in its setting aside application (that the appellant had raised an unpleaded defence without any amendment application having been made); and (b) more importantly, had specifically requested the tribunal to disregard the unpleaded defence due to the procedural unfairness that had engendered: CAI v CAJ [2021] 5 SLR 1031 (“CAJ (HC)”) at [130]. We find it material that the complaint raised at the setting aside application in CAJ (HC) had similarly been raised before the tribunal as a procedural objection.

The Applicants’ “objections” in their reply submissions on the other hand were not quite the same as their current grounds for setting aside the Partial Award. For one, and as we pointed out to Mr Poon SC at the Oral Hearing, the Applicants failed to make the obvious point to the Tribunal – if they truly believed and understood that the Founders had agreed not to rely on the Third Scenario as the basis for the buyout order and / or had dropped that case, the objection made to the Tribunal should have been to the effect that the Founders were acting in breach of an agreement and / or undertaking previously given to the Tribunal. The failure to do so pointed towards the real possibility that the Applicants themselves did not believe at the time that there was any such agreement or undertaking. In response to these observations, Mr Poon SC sought to highlight that the “thrust of [paragraph 57 of the Applicants’ reply submissions] is that there is an absence of evidence that supports the point”. That may well have been the case, but a re-reading of paragraph 57 reveals that the “absence of evidence” really formed part of the Applicants’ substantive argument that there was no evidence to support a finding that there should be no top-up; the Applicants went further in engaging the Founders’ argument and contended that the Founders’ submissions were commercially absurd, would result in them enjoying a windfall, and was an avaricious argument. The lack of evidence did not form part of a procedural objection that the Applicants had not been given the opportunity to adduce evidence relating to the propriety of awarding a top-up but was simply an argument pertaining to the lack of evidence overall, as a submission intended to buttress the substantive arguments advanced by the Applicants. This was far removed from what the respondent had done in CAJ (CA).

While we acknowledge that the Applicants did make the point in their reply closing submissions that the Third Scenario was contrary to the Founders’ “previous written arguments and [Expert B’s] concession”, we do not think that this somewhat tepid response suffices to support the stronger point it now seeks to make that the Third Scenario was unpleaded, that there had been an express agreement or undertaking by the Founders not to raise the Third Scenario, and that the Applicants did raise an appropriate objection with the Tribunal. Despite some probing, the Applicants were also not able to clearly identify for us what exactly “[Expert B’s] concession” was.

Additionally, the Applicants’ conduct following the exchange of written submissions was telling. First, the Applicants provided the aforementioned Dropdown Model (see above at [50]). The Founders have pointed out that the Applicants’ model in fact allowed the Tribunal to “input a value of zero for the conversion/ top up price of the CLNs” – thereby effectively reaching the same substantive result as a no top-up scenario. Second, in its e-mail dated 16 February 2024, the Tribunal sought the parties’ input as to whether it should “determine the disputes having regard only to the evidence received up to the conclusion of the evidentiary hearing”. The Applicants replied that they had “no objections” to this approach.

Taking the Applicants’ case at its highest, even if the Founders were raising a new argument belatedly and in contravention of an alleged express agreement or undertaking not to, the Applicants failed to take the opportunity to raise the objection in clear and unequivocal terms, and / or request for the chance to adduce further evidence. In our view, it is incongruent for the Applicants to have (a) provided their confirmation to the Tribunal that they were prepared for the Tribunal to adjudicate the matter based on the evidence already on record on the one hand; and (b) on the other, to now say that they were deprived of a chance to provide additional evidence in respect of the Third Scenario. The record suggests that the Applicants did not have any serious procedural or due process objections at the material time, and was instead “ready, able and willing to carry on to the award”– they cannot now be permitted to resile from that position.

Whether the Majority’s finding that the DPT CLNs were “worthless as debt” bore no reasonable nexus to the parties’ cases

To reiterate, the Applicants challenge two findings by the Majority as not bearing any reasonable nexus to the parties’ cases. These findings were reproduced at [70] above. The relevant findings were:

(a) that the DPT CLNs were “worthless as debt”; and

(b) that DPX’s pre-conversion value was the same as DPX’s post-conversion value.

At the Oral Hearing, Mr Poon SC contextualised these arguments as being a form of “fallback position” for the Applicants in the event we disagreed with their primary case that there had been an agreement not to rely on the Third Scenario.

With respect to the Majority’s finding that the DPT CLNs were “worthless as debt”, the Applicants’ position is that “[t]here was simply no evidence before the Tribunal on these points”. In this regard, Mr Poon SC clarified at the Oral Hearing that the Applicants’ position was largely aligned with the Minority’s decision. The relevant portion of the Minority’s decision is reproduced here:

The core of the Applicants’ argument was that by making a finding completely unsupported by any evidence, the Tribunal (specifically, the Majority) had adopted a defective chain of reasoning.

For a chain of reasoning to be defective due to a poor evidential basis, the Tribunal’s decision must be “wholly at odds with the established evidence” (BZV v BZW [2022] 3 SLR 447 (“BZV”) at [52(l)], affirmed on appeal in BZW (CA)) such that the Tribunal has acted in an irrational and capricious manner (see above at [87]). In our view, this high bar has not been met.

The impugned section where the Majority explains its finding that the DPT CLNs were “worthless as debt” (as it described them at paragraph 512) is found at paragraph 558 of the Partial Award. It is worth reproducing paragraph 558 here again:

The paragraph contains a footnote (numbered 738 and emphasised in bold in the excerpt above), which reads:

In our view, this suffices to insulate the Partial Award from challenge on this point. The evidence cited at footnote 738 is not so irrelevant such that it would be irrational for the Majority to have regard to it. It contains statements from key witnesses as to the nature of the debt represented by the DPT CLNs. In so far as it contains references to Mr [X]’s evidence, we consider this in greater detail under the Responsive Evidence Issue. For present purposes, it suffices to say that we are unable to conclude that the Majority’s finding arising from this evidence is “wholly at odds with the established evidence” [emphasis added]. Additionally, we consider it material to note that neither the Applicants nor the Minority (whose dissent the Applicants rely on) referred to any contrary evidence to positively refute the Majority’s finding – the complaint has instead largely comprised a bare assertion that there is insufficient evidence to support the Majority’s finding. In these circumstances, there is limited (if any) evidence which the Majority’s decision can be said to be “at odds” with.

Alternatively, in so far as the Majority’s finding was an inference from the available evidence, it cannot also be said that the inference was unreasonable or unsupported by the evidence. We would go further – even if the inference could not be supported by any direct evidence or was impermissibly drawn, we would view any such error as a mere error of fact or law. It is trite law that such an error cannot form the subject matter of a natural justice challenge. Once the wheat is separated from the chaff, it appears to us that the Applicants’ complaint is in substance directed more to the merits of the Majority’s decision – it is, however, hornbook law that a challenge to the merits (however well-disguised) is also beyond this court’s remit. We therefore dismiss the Applicants’ complaint on this issue.

Additionally, while the point was not raised, we note that the Applicants’ arguments are in substance a recast of the “no evidence rule” which has already been rejected in Singapore by the Court of Appeal: CEF v CEH [2022] 2 SLR 918 (“CEF”) at [101]–[102]. The “no evidence rule”, which has been applied in certain jurisdictions like Australia and New Zealand, provides that “an award which contains findings of fact made with no evidential basis at all is liable to be set aside for breach of natural justice”: CEF at [101].

The Court of Appeal in CEF held (at [102]) that the rule had no place in Singapore law:

We therefore reject the Applicants’ submission that the Majority’s finding that the DPT CLNs were “worthless as debt” bore no reasonable nexus to the parties’ cases.

Whether the Majority’s finding that DPX’s pre-conversion value was the same as its post-conversion value bore no reasonable nexus to the parties’ cases

The relevant finding by the Majority reads:

In the Applicants’ view, notwithstanding that the Majority had ostensibly applied a post-conversion valuation with no top-up analysis, by treating DPX’s post-conversion value as the same as DPX’s pre-conversion value, the Majority had effectively put DPX’s pre-conversion value into issue.

The Applicants’ objection flows from their earlier case that the Founders had confirmed to the Tribunal that they would be seeking a buyout based on a post-conversion scenario with a top-up. Because of this alleged “common ground” [emphasis in original omitted], the parties “did not argue that the valuation of [the Founders’] shareholding should be on a pre-conversion basis”. Reference is made to the exchange between the Tribunal and Mr Liang, reproduced from above at [128]:

Arising from this exchange, the Applicants say the Founders had “argued the opposite basis for the valuation” (ie, a post-conversion scenario). If the Tribunal wished to depart from the agreed position of the parties, and make findings on issues that were not in play, it needed to “refer these issues to the parties for their submission”.

Moreover, if they were given the opportunity to, the Applicants would have led evidence on DPX’s pre-conversion value. In this regard, in their supporting affidavit, the Applicants had exhibited a further affidavit dated 26 March 2025 prepared by [Expert A] in which he provides a summary of “what [his] evidence would have been” had the Tribunal sought his evidence on the pre-conversion value of DPX. [Expert A] opined that “if the [DPT] CLNs were not converted to equity, the risk of failure to obtain the digital bank license would have been significantly higher”, and this might have led to a different basis of valuing DPX. Additionally, DPX’s equity value would also have been lower by virtue of the debt represented by the DPT CLNs remaining on its books.

We pause here to note our reservations about exhibiting [Expert A’s] affidavit within the Applicants’ supporting affidavit for OA 10. It struck us as an attempt by the Applicants to circumvent the need to obtain leave to file a further affidavit. Going forward, we do not think such a practice should be countenanced.

Reverting to the issue at hand, in response, the Founders reiterate the broad and unfettered discretion of the Tribunal to reach a fair and equitable result in the valuation exercise. Even apart from that general proposition, Mr Liang argues that the pre-conversion valuation of DPX had always been in issue. He explained at the Oral Hearing that the very nature of a valuation exercise means that both the pre- and post-conversion valuations would be in evidence before the Tribunal. Pre-conversion valuations of DPX had in fact been before the Tribunal, in the form of an October 2019 valuation and a 13 August 2020 valuation by two other companies.

We disagree that the Majority had unduly taken into account the pre-conversion value of DPX for two reasons.

First, it is not entirely accurate to say that the Majority had valued the Founders’ shareholding using DPX’s pre-conversion value. The Majority’s approach towards valuation proceeded in three, and in our view logical, steps as outlined in the Partial Award:

(a) first, calculate the shareholding that the Founders are entitled to;

(b) second, determine the value of DPX at the agreed valuation date of 31 December 2021; and

(c) third, consider whether any deductions need to be made to DPX’s value.

Even if we assume that the Founders had agreed not to use the pre-conversion valuation to value DPX and that the valuation of DPX should be a post-conversion value, that was precisely what the Majority did when it determined that DPX should be valued at US$120m, based on DPX’s post-conversion value as at the agreed valuation date of 31 December 2021. It is thus not strictly speaking correct to say that the Tribunal had valued DPX on a pre-conversion valuation basis. The analysis at paragraphs 558 to 562 of the Partial Award (concerning the relevance of DPX’s pre-conversion valuation) which the Applicants take issue with, takes place within the third step of the Tribunal’s analysis (see [178(c)] above) justifying why a top-up (ie, a deduction) was not required.

Thus, even assuming that the Founders had confirmed that they were not relying on a pre-conversion valuation to value DPX, we do not think that any such confirmation extends to precluding the Tribunal from considering the pre-conversion valuation of DPX at the third stage of determining whether any appropriate deductions ought to be made. This is especially so considering the Tribunal’s broad and flexible discretion to balance the equities between the parties.

Second, a close reading of paragraph 558 (read with paragraph 562) of the Partial Award reveals that the Majority’s reference to DPX’s pre-conversion value flowed from its finding that there “was no change to the [fair market value] of [DPX] whether or not the [DPT] CLNs were converted”. In other words, notwithstanding that the Majority was assessing DPX’s post-conversion value, it needed to consider DPX’s pre-conversion value because it had taken the view that the conversion of the DPT CLNs did not have any effect on DPX’s value.

Further, it is plain to us that the Tribunal’s approach at the third step of its analysis was to agree with and adopt the Founders’ submission that in exercising its broad and unfettered discretion, the Tribunal could exclude completely the dilutive effect of the conversion of the DPT CLNs. Indeed, in the Partial Award, the Tribunal reproduced three paragraphs from the Founders’ closing submissions which set out the applicable principles and cases under Singapore law on the point.

By stripping out the dilutive effect of the conversion of the DPT CLNs, which the Tribunal found to be unlawful and illegitimate, and in deciding that no top-up should be required, the Tribunal was applying the principles and cases cited to it by the Founders. Thus, in substance, by deciding that no top-up was required and that the dilutive effect of the conversion of the DPT CLNs was to be ignored, the buyout order would necessarily be on the basis of DPX’s pre-conversion value and with no top-up. This is evident from the Partial Award:

More to the point, as we have found (at [135]–[146] above), the Founders’ case (as pleaded in the SOC(A1)) was broad enough to encompass the Third Scenario, and the Third Scenario remained a live issue throughout the Arbitration. We agree with the Founders’ observation that evidence on DPX’s pre-conversion value had been put on record (see above at [176], as well as [65]). Thus, even if we were to countenance the Applicants’ complaint that they had no opportunity to present evidence on DPX’s pre-conversion value, that is an outcome that was entirely of the Applicants’ own doing. Either the Applicants misunderstood what the Founders’ primary case was, or they took a calculated gamble not to put in evidence of DPX’s pre-conversion value but instead, sought to press a case (if oppression was found and a buyout ordered) of a post-conversion valuation with a top-up. Whatever the real reason, it is clear to us that there is no basis for the Applicants to now cry foul or for us to rescue them from the consequences of a game plan that, with hindsight, they wished they had executed differently. The caselaw is clear – that is not our role in an application of this nature and the chips must lay where they fall.

Lastly, in light of our finding above that the Majority was entitled, whether rightly or wrongly, to determine that the DPT CLNs were “worthless as debt”, we also hold that the Majority was entitled to come to the view that the pre-conversion value of DPX was relevant to its assessment of DPX’s post-conversion value, and by extension, to have regard to the available evidence in support of this. In this regard, we agree with the Founders that the pre-conversion value of DPX was necessarily something that the Tribunal could and should have been alive to in order to determine the post-conversion value of DPX.

Conclusion on the Buyout Issue

For these reasons, we dismiss the Buyout Issue. There was no breach of natural justice occasioned by the Tribunal adopting the Third Scenario as the basis for its valuation of the buyout price.

The Responsive Evidence Issue

Parties’ arguments

We turn to consider the Responsive Evidence Issue. The arguments here are highly factual as well. Accordingly, we adopt the same approach as for the Buyout Issue, and deal with the evidence in detail at the relevant portions of our analysis.

The Applicants’ general complaint is that the Tribunal had failed to consider the Responsive Evidence, which the Applicants say can be broadly categorised into: (a) evidence contradicting Mr [X]’s and Ms [Y]’s account of events relevant to the issues in the Arbitration (“Substantive Evidence”); and (b) evidence going to the credibility of Mr [X] and / or Ms [Y] (“Credibility Evidence”).

The Applicants’ submission, broadly speaking, is that the Tribunal had committed a breach of natural justice as it wholly failed to refer to the Responsive Evidence in the Partial Award, and the corresponding inference to be drawn is that the Tribunal had “failed to consider the Responsive Evidence”.

This breach was connected to the making of the Partial Award because by accepting Mr [X]’s evidence “without qualification”, the Tribunal was led to making two consequential findings:

(a) that the Applicants’ cumulative conduct constituted minority oppression within the meaning of s 216(1) of the Companies Act; and

(b) that because the Tribunal had found the conversion of the DPT CLNs to be an oppressive act, the buyout order was calibrated in a manner which would “exclude the dilutive effects of the conversion”.

The Applicants submit that they have suffered prejudice because if the Credibility Evidence had been considered, there was a real chance of the Tribunal considering Mr [X]’s evidence “with greater circumspection”. In respect of the Substantive Evidence, this would also have “affected the Tribunal’s assessment of the credibility of Mr [X]’s evidence and thus the Tribunal’s consequent finding that the conversion of the [DPT] CLNs was for the dominant purpose of diluting [the Founders’] shareholding”.

In response, the Founders point to various comments by the Tribunal over the course of the Arbitration Hearing to the effect that it had “read [Witness 5’s] statement”, and / or otherwise considered the Responsive Evidence filed. Additionally, the Tribunal had in substance, addressed the Substantive Evidence. In any case, there would also have been no prejudice because there was “an abundance of contemporaneous evidence which independently demonstrated [DPT’s] motive to dilute the Founders by conversion of the CLNs” [emphasis in original omitted], and Mr [X]’s evidence was “simply one more nail in the coffin”.

Analysis

The Applicants point to the following facts which they say cumulatively lead to the “clear and virtually inescapable” inference that the Tribunal did not consider the Responsive Evidence: DKT at [8(c)], citing AKN v ALC [2015] 3 SLR 488 at [46] and BZW (CA) at [60(a)].

The Applicants’ first broad argument is that the Responsive Evidence was not referred to anywhere in the Partial Award:

(a) In the “Procedural History” section of the Partial Award, the Tribunal “identified, named, and listed each witness statement that was filed in the [first] two rounds of witness statement exchanges” but did not do so for the third round of witness statements containing the Responsive Evidence.

(b) In the “Witnesses” section of the Partial Award, the Tribunal “omitted three of [the Applicants’] fact witnesses who filed witness statements on 2 October 2023: (i) [Witness 11]; (ii) [Witness 12]; and (iii) [Witness 13]”. This was a “positive indication in the award that the evidence ha[d] not been considered”.

At the outset, we first address a point raised by the Founders, which is that in the Partial Award the Tribunal had stated that it had “considered all the pleaded cases, evidence and submissions of the Parties”. We however accept the Applicants’ submission that a general paragraph of this nature cannot operate, in itself, to “immunise an award against an allegation that the tribunal has breached the fair hearing rule”: BZV at [128]. The Founders seek to distinguish the applicability of BZV on the basis that the Tribunal had previously obtained the parties’ confirmation that there was no “need to state every correspondence and [no] need to summarise every argument because we have read all your submissions”. We disagree that these observations from BZV do not apply simply because the Tribunal had previously confirmed with the parties that there is no need to reproduce every argument. It is already well-established that “the tribunal should not have to deal with every argument canvassed under each of the essential issues”: CZT v CZU [2024] 3 SLR 169 at [35]. All this is to say that the general references to the evidence (or lack thereof) in the Partial Award were not determinative – we thus go on to consider the other arguments raised by the parties.

Having regard to the apparent failures to refer to the Responsive Evidence (referenced above at [194]), we do not agree that these features, on their own, are relevant (much less definitive) considerations. We find the following observations by the Court of Appeal in Glaziers Engineering Pte Ltd v WCS Engineering Construction Pte Ltd [2018] 2 SLR 1311 (“Glaziers”) to be apposite (at [36]):

While the observation in Glaziers pertains to an alleged failure to consider a pleaded issue, it is our view that it is equally applicable to an alleged failure by a tribunal to consider evidence adduced by a party in an arbitration. We thus do not consider the mere fact that the Tribunal omitted to specifically refer to the Responsive Evidence in the Partial Award as being particularly material to our assessment.

In relation to the three factual witnesses who had been omitted from the “Witnesses” section of the Partial Award (see above at [194(b)]), we would add that it is equally possible that the Tribunal had omitted to refer to them as their evidence consisted only of Credibility Evidence (relating to the circumstances of Mr [X]’s and Ms [Y]’s departure from DPX) and was thus not seen by the Tribunal as being particularly material to the resolution of the underlying dispute and the essential issues submitted to it for determination. Directions had in fact been given by the Tribunal for the parties to avoid cross-examination on such matters which had only arisen after the commencement of the Arbitration (this is discussed in greater detail below at [207]–[209]), and arising from this, the Tribunal had also reproduced in the Partial Award an excerpt of an e-mail from the Founders indicating that they would be dispensing with the cross-examination of, inter alia, the three “omitted” factual witnesses.

In any case, it is our view that the Tribunal did refer to the Responsive Evidence, or at least had referred to it sufficiently. Accordingly, we disagree that a clear and virtually inescapable inference may be drawn that the Tribunal had completely failed to consider the said evidence.

In the “Procedural History” section of the Partial Award, the Tribunal had referred to the Responsive Evidence in the following manner:

While a mere reference to the receipt of the Responsive Evidence in the “Procedural History” section of the Partial Award is certainly not dispositive, the point remains that this is an additional factor pointing away from us drawing the requisite clear and virtually inescapable inference.

Additionally, we note that at paragraph 510 of the Partial Award – in considering Mr [X]’s evidence on a different issue, viz, who was responsible for procuring the depressed valuation of DPX from [Company C] (a valuation firm) – at footnote 680, the Tribunal referred to paragraph 128 of the Applicants’ closing submissions where the Applicants had (albeit in a footnote) referred to some of the Responsive Evidence – in particular, the third witness statements of [Witness 1], [Witness 2], [Witness 3] and [Witness 5] .

Paragraph 510 of the Partial Award (with footnote 680 emphasised in bold) reads:

Paragraph 128 of the Applicants’ closing submissions reads:

As we alluded to above, footnote 264 contains citations to the third witness statements of [Witness 1], [Witness 2], [Witness 3] and [Witness 5] (ie, parts of the Responsive Evidence).

While this reference may be somewhat tangential, it also points away from a clear and virtually inescapable inference that the Tribunal completely failed to consider any of the Responsive Evidence.

The Applicants’ second broad argument is that the Tribunal had “made a series of comments which in retrospect suggests that it had no interest in [the Applicants’] responsive evidence despite not having fully considered the evidence”. In particular, the Applicants brought our attention to the following comments made by the Tribunal over the course of the Arbitration:

(a) On 3 October 2023 (Day 2 of the Arbitration Hearing):

(b) On 3 October 2023, the Tribunal directed via e-mail:

(c) On 5 October 2023 (Day 4 of the Arbitration Hearing):

For context, these directions were given because the Tribunal was of the view that matters arising after the beginning of the Arbitration went to credibility and were not as material. Accordingly, the Tribunal requested parties to refrain from conducting cross-examination on these matters which arose after the Arbitration commenced.

We agree with the Founders that the Applicants’ submissions on this point are without merit. For one, a tribunal is entitled to direct the flow of cross-examination away from non-essential issues in the interests of efficiency. This is simply a feature of good case management. More importantly, the Tribunal did not force these directions onto the parties. After the Tribunal’s observations on 5 October 2023 (ie, Day 4 of the Arbitration Hearing, reproduced above at [207(c)]), the Applicants’ counsel did not raise any objections or concerns. The Applicants were evidently content to proceed in the proposed manner at the material time – it is, as submitted by the Founders, “uncharitable” for the Applicants to now “in retrospect” view the Tribunal’s attempt at effective case management with cynicism.

We turn to the Applicants’ third and final set of submissions on the Responsive Evidence Issue. The Applicants contend that for many of the Tribunal’s findings including its finding that Mr [X]’s evidence was credible, the Tribunal had only referred to or engaged with Mr [X]’s and / or Ms [Y]’s evidence, but had failed to consider the Responsive Evidence.

Regarding the failure to consider the Substantive Evidence, the following are some examples of the Applicants’ complaints:

(a) In relation to the Tribunal’s finding “that [DPT] and [DPX] were intent on diluting the [Founders’] shareholding and the timing of the documentation for [the digital bank license] application was coordinated to create a paper trial for the conversion of the [DPT] CLNs”, the Applicants contend that the Tribunal only referred to Mr [X]’s and Ms [Y]’s evidence but failed to engage with [Witness 5’s] evidence to the effect that DPX had sought legal advice to reduce the risk of a dispute between the Applicants and the Founders and that there was no advice to create paper trails.

(b) In relation to its finding that the DPT CLNs had been converted in order to dilute the Founders’ shareholding, the Tribunal referred only to Mr [X]’s evidence but there was no reference to [Witness 5’s] “contradictory” and “unchallenged” evidence.

(c) In relation to its finding that Mr [X] had been instructed to dilute the Founders’ shareholding, the Tribunal failed to consider [Witness 5’s] evidence that no such instructions had been given.

As might be apparent, particular emphasis was placed on the evidence of [Witness 5]. The Applicants explained at the Oral Hearing that considering the materiality of the issues which [Witness 5’s] evidence challenged, it was surprising that “nowhere in the award is it explained why [Witness 5’s] evidence was disbelieved, notwithstanding that she was not cross-examined, and notwithstanding that her evidence directly contradicted Mr [X]’s”.

Pertaining to the Credibility Evidence, the Applicants take issue with the Tribunal’s finding that it “accepts [Mr [X]’s] testimony on [Witness 1’s] and [DPT’s] improper intentions regarding the dilution of [the Founders’] shareholding”. The Applicants say this finding was made without reference to the Credibility Evidence as to the circumstances surrounding Mr [X]’s departure from DPX which impugned his credibility.

Having carefully considered the competing arguments, we are unable to draw a clear and virtually inescapable inference that the Tribunal had completely failed to consider the Responsive Evidence – be it the Substantive Evidence or the Credibility Evidence. We explain below.

First, on the Substantive Evidence, we have noted above that most of the Applicants’ objections pertain to the Tribunal’s failure to consider [Witness 5’s] third witness statement. However, we note that the Tribunal did in fact refer to [Witness 5’s] third witness statement in order to rule that the Mr [X] Recordings were inadmissible. We accept the Founders’ submission that it is unlikely that the Tribunal referred to only one aspect of [Witness 5’s] witness statement to decide whether the Mr [X] Recordings were admissible, but ignored or failed to apply its mind to the rest of her witness statement in respect of other issues. We also repeat our observations above on [Witness 5’s] evidence (at [202]).

Second, in respect of the various extracts referred to above at [207], the Founders take the contrasting position to the Applicants that these comments actually suggest that the Tribunal had considered the Responsive Evidence. In Prayudh Mahagitsiri v Nestle SA [2025] SGHC 181, the court similarly took into account the fact that the tribunal had asked questions about certain proposals during the parties’ closing presentations and the general record of the arbitration hearing to find that the tribunal was “well-aware of the existence of [said] Proposals” (at [64]). We are inclined to agree. It would not be possible for the Tribunal to observe that “a lot of the responsive evidentiary material deals with the circumstances in which Mr [X] and Ms [Y] left the company” (see above at [207(a)]) without having first canvassed and applied its mind to the Responsive Evidence (including the Substantive Evidence) in some detail.

For completeness, in Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532 (“Bintai”), the Court of Appeal appeared to suggest that an adjudicator’s oral musings during a hearing could not be used to demonstrate that he had considered an issue (at [54]):

We do not think that this passage from Bintai detracts from our analysis. In our opinion, the Tribunal’s comments here were made for the purpose of giving directions, which puts them on quite a different footing from the “musings” of the adjudicator in Bintai. Furthermore, we do not think that the Court of Appeal was intending to lay down any conclusive rule as to the weight that should be accorded to remarks made during evidential hearings – at the very least, the court had left open the possibility of considering material outside the four corners of the decision or award (“in the absence of exceptional grounds”): Bintai at [54].

Lastly, we address the Applicants’ arguments on the Credibility Evidence (as outlined above at [213]). In accepting Mr [X]’s evidence, it could be the case that implicitly, the Tribunal was rejecting the Credibility Evidence or at least, we cannot rule that out as a possibility. We raise this additional point simply to demonstrate the high threshold that the Applicants need to cross to persuade us that the Tribunal had completely failed to consider the Credibility Evidence.

For the above reasons, we are of the view that the Applicants have failed to establish that a “clear and virtually inescapable inference” can and should be drawn in this case that the Tribunal failed to consider the Responsive Evidence and that a breach of natural justice had thereby been occasioned.

Prejudice

Having found that there was no breach of natural justice in respect of either the Buyout Issue or the Responsive Evidence Issue, that would be a sufficient basis for us to dismiss the application, without any need for us to consider whether the breach was connected to the making of the award or the issue of prejudice (see above at [84]). Nonetheless, we make two observations on prejudice – one relating specifically to the Responsive Evidence Issue, and the other relating to both the Buyout Issue and the Responsive Evidence Issue.

First, even if our conclusions on the Responsive Evidence Issue are incorrect, we would have difficulty finding any prejudice suffered by the Applicants as a result of the Tribunal’s failure to consider the Responsive Evidence. In respect of the Credibility Evidence, the Tribunal had requested counsel not to “cross-examine the witnesses on issues relating to their credibility” because such evidence was not particularly material to the dispute, given that it largely related to events occurring after the commencement of the Arbitration. As to the Substantive Evidence, a closer perusal of the third round of witness statements would reveal certain factors which suggest that the Substantive Evidence was not likely to have made a “real” difference to the Tribunal’s analysis:

(a) Across the board, it appears to us that much of the Substantive Evidence contained in the third round of witness statements consisted of repeated evidence that had already been adduced in the earlier witness statements. The third round witness statements contain phrases such as “I reiterate my evidence”, “[a]s I explained before”, and “as I have explained at … of my first witness statement”.

(b) Many of the third round witness statements contained bare denials or qualifications as to the extent of the witness’ knowledge. For example, in respect of a key event such as the conversion of the DPT CLNs, [Witness 1’s] evidence was that “[e]xcept for Mr [X]’s updates from time to time, I was not involved in the process for the conversion of the CLNs”.

On the whole, the Responsive Evidence simply did not strike us as being particularly cogent. In any event, we share the Founders’ view that many of the Tribunal’s findings were largely founded upon contemporaneous documentary evidence, such as the messages between [Witness 1] and Mr [X]. The Tribunal also emphasised that “[m]ost importantly, [Mr [X]’s] evidence was consistent with [the] documentary evidence and did not reveal any material inconsistencies”. In the round, even if the Responsive Evidence had not been considered by the Tribunal at all, it is our view that it would not have had a “real as opposed to a fanciful chance of making a difference to [the Tribunal’s] deliberations”: L W Infrastructure at [54].

The second and final observation applies to both the Buyout Issue and the Responsive Evidence Issue, and it pertains to our difficulty in identifying exactly what the prejudice suffered by the Applicants would have been. The Tribunal found (whether by a majority or unanimously) that a whole slew of acts, individually and cumulatively, amounted to oppression. Thus, even if we accept that the Tribunal had completely failed to consider the Responsive Evidence, and that it would have potentially resulted in a different finding as to whether the conversion of the DPT CLNs was an act of oppression, this would not have made any difference to the overall outcome – the Applicants would still be found to have acted oppressively. Indeed, the Applicants’ counsel candidly agreed that this was the position and that the Applicants were not challenging the Tribunal’s conclusions on the other acts of oppression.

For completeness, we would observe here that the Responsive Evidence only targeted the motivations behind the conversion of the DPT CLNs. Thus, to the extent that the Applicants also seek to strike out paragraphs of the Partial Award (see below at [228]) where the Tribunal found that the conversion of the DPT CLNs had been undertaken in breach of the provisions of the SHA, none of the Responsive Evidence could have possibly had any effect on those findings or the conclusion that in converting the DPT CLNs, the Applicants had acted in breach of the SHA. Flowing from this, even if the Applicants could successfully challenge the finding that the conversion of the DPT CLNs was an act of oppression, the Tribunal had (as summarised above at [60]) independently found the conversion of the DPT CLNs to be in breach of the SHA. All of this means that the Tribunal would still have been perfectly entitled to declare the issuance of the shares to the Applicants on 21 May 2021 null and void and to order the buyout pursuant to the other oppressive acts, even if the conversion was not found to be an act of oppression.

In response, the Applicants submit that there was nonetheless a real possibility that the buyout order would have been calibrated differently if the balance of equities had been different. That was, in reality, the Applicants’ real grievance with the Partial Award, ie, the terms of the buyout order. However, a calibrated adjustment to the buyout order also did not sit well with the Applicants’ request in OA 10 for the Partial Award to be set aside in full – if the breach is “only in respect of an isolated or standalone issue, it may not be appropriate to set aside the entire award”: DJP v DJO [2025] 1 SLR 576 at [86].

Even in respect of their alternative request for the Partial Award to be set aside in part, our reservations regarding what the prejudice to the Applicants was and the appropriate reliefs they were seeking were only strengthened by the events which transpired at the end of the Oral Hearing – in response to our request to the Applicants’ counsel to identify which particular paragraphs or portions of the Tribunal’s decision in the Partial Award the Applicants were seeking to set aside (on the assumption that we found in their favour), co-counsel for the Applicants, Mr Pradhan, had significant difficulties identifying for us with clarity exactly what relief the Applicants required from the court in circumstances where setting aside the Partial Award entirely was plainly a non-starter.

Ultimately, counsel informed us that the Applicants were seeking to have the following paragraphs “set aside” or struck out from the Partial Award: paragraphs 396–399, 420–432, 463(a)(iv), 466(d)(iii), 476(f), 482–513, 518, 522, 523(b), 558, 560–566, 582, 583(c), 585–587, 592(a)(iv), 593(a)(v), 595 and 598(d)(ii), (f) and (g).

Needless to say, we do not think that this was a reasonable position to take. The Applicants’ request could only be interpreted as (a) a request to vary the Partial Award (a power the court does not have: CAJ (HC) at [244]); (b) a request to reverse the findings in the Partial Award that the conversion of the DPT CLNs was illegitimate and in breach of the SHA – which in effect was a disguised challenge against the merits of the case; or (c) a request in substance to set aside the Partial Award in its entirety, which would not be appropriate for the reasons we have given above. We note further that no request for remission has been made in this case: Art 34(4) of the Model Law. At the close of the Oral Hearing, it remained lost on us what relief, if any, would be appropriate for the Applicants even in the event that they had satisfied us that there was a due process failure connected to the making of the Partial Award.

Conclusion

For all the foregoing reasons, we dismiss OA 10 in its entirety.