Jiangsu Overseas Group v. Concord Energy: Setting Aside Arbitral Awards for Lack of Jurisdiction in Green Petroleum Coke Contracts

The Singapore High Court heard applications by Jiangsu Overseas Group Co., Ltd to set aside two arbitral awards in favor of Concord Energy Pte Ltd, concerning disputes over contracts for green petroleum coke shipments. Jiangsu argued the arbitral tribunal lacked jurisdiction due to the absence of concluded contracts and valid arbitration agreements. Justice Steven Chong dismissed the applications, finding that valid Spot and Term contracts existed, thus affirming the tribunal's jurisdiction. The court ordered Jiangsu to pay costs.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Applications dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court dismisses Jiangsu Overseas Group's application to set aside arbitral awards, affirming the tribunal's jurisdiction in disputes over green petroleum coke contracts.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Jiangsu Overseas Group Co., LtdPlaintiffCorporationApplication dismissed with costsLostSee Tow Soo Ling, Chia Shengyou, Edwin
Concord Energy Pte LtdDefendantCorporationApplication dismissed with costsWonPancharatnam Jeya Putra, Thuolase d/o Vengadashalapathy

3. Judges

Judge NameTitleDelivered Judgment
Steven ChongJudgeYes

4. Counsels

Counsel NameOrganization
See Tow Soo LingColin Ng & Partners
Chia Shengyou, EdwinColin Ng & Partners
Pancharatnam Jeya PutraAsiaLegal LLC
Thuolase d/o VengadashalapathyAsiaLegal LLC

4. Facts

  1. Jiangsu and Concord negotiated for the sale of six shipments of green petroleum coke.
  2. Concord sent Jiangsu a revised contract for six shipments on 6 June 2013.
  3. Jiangsu requested the six shipments be split into a Spot contract and a Term contract on 15 July 2013.
  4. Jiangsu accepted two shipments of petroleum coke in September and November 2013.
  5. Concord commenced arbitration proceedings against Jiangsu for breach of contract.
  6. Jiangsu challenged the tribunal's jurisdiction, claiming no concluded contracts existed.
  7. The tribunal found that valid Spot and Term contracts existed.

5. Formal Citations

  1. Jiangsu Overseas Group Co Ltd v Concord Energy Pte Ltd and another matter, , [2016] SGHC 153

6. Timeline

DateEvent
Negotiations began for six shipments of green petroleum coke.
Concord stated Jiangsu confirmed a deal of 3 cargoes.
Concord sent an email to Jiangsu enclosing a contract for three shipments.
Concord sent an email to Jiangsu enclosing a revised contract for all six shipments.
Malinda replied that Liu would provide an answer on 13 June 2013.
Malinda wrote to Concord to advise on the laycan dates for the first two shipments.
Jiangsu advised Concord that the delivery date for the second shipment would be after 15 July 2013.
Concord sent three email reminders for Jiangsu to return the 6 June contract.
Concord sent Liu an email setting out the shipping schedule for the six shipments.
Liu accepted the nomination of the vessel Ken Zui for the shipment to Rizhao.
Liu sent Concord a draft letter of credit for this shipment.
Concord sent two draft contracts to Liu.
Liu sent another draft LC.
Concord's solicitors sent a letter asserting that Jiangsu had breached the Spot contract.
Meeting between Jiangsu and Concord in Jiangsu’s office in Nanjing, China.
Concord’s solicitors sent its first letter of demand calling upon Jiangsu to open the LC under the Spot contract.
Liu replied that Jiangsu “didn’t sign an official contract” with Concord.
Concord gave notice to Jiangsu of its termination of the Spot contract.
Concord invoiced Jiangsu for the difference between the price in the Spot contract and the resale price.
Second meeting took place between Jiangsu’s and Concord’s representatives.
Liu informed Herlene that Jiangsu had found a buyer for one shipment.
September shipment of petroleum coke.
Jiangsu informed Concord that it was “preparing to take delivery of the 2nd shipment of Petroleum Coke”.
Jiangsu asked Concord for a fresh contract for its signature.
Concord sent a signed version of “1306/PDT/TERM/T144771A-2/5” to Jiangsu which omitted the preamble.
Jiangsu informed Concord that the LC would be opened that same day.
November shipment of petroleum coke.
Concord wrote to Jiangsu in relation to the 3rd and 4th shipments.
Reminders sent to nominate the discharge port and/or to open the LC.
Reminders sent to nominate the discharge port and/or to open the LC.
Concord notified Jiangsu that it would be claiming damages for Jiangsu’s failure to accept the remaining three shipments under the Term contract.
Letter of demand from Concord’s solicitors giving notice of Concord’s termination of the Term contract, and claiming damages under the Spot and Term contracts.
Concord commenced two arbitration proceedings before the Singapore International Arbitration Centre.
Jiangsu’s Chinese lawyers confirmed receipt of the documents.
Jiangsu’s legal audit department sent a letter to the tribunal to challenge its jurisdiction in Arbitration No 54.
Jiangsu instructed Singapore lawyers, who informed the tribunal of their appointment.
Jiangsu informed the tribunal through an email from its legal audit department that it would not be able to attend the hearing on 31 October 2014.
Jiangsu discharged its Singapore lawyers that same day.
The tribunal declared the proceedings closed.
The tribunal issued two final awards: Award Nos 38 and 39 in respect of Arbitration Nos 54 and 55 respectively.
Jiangsu filed Originating Summonses 730 and 731 to set aside Award Nos 38 and 39.
Jiangsu applied in Summonses 6054 and 6056 of 2015 for OS 730 and OS 731 to be heard partly on oral evidence.
Hearing date.
Judgment reserved.

7. Legal Issues

  1. Jurisdiction of Arbitral Tribunal
    • Outcome: The court held that the arbitral tribunal had jurisdiction because valid Spot and Term contracts existed between the parties.
    • Category: Jurisdictional
    • Sub-Issues:
      • Validity of arbitration agreement
      • Existence of concluded contract
    • Related Cases:
      • [2015] 2 SLR 972
      • [2014] 1 SLR 814
      • [2014] 1 SLR 372
  2. Validity of Contract
    • Outcome: The court found that the Spot and Term contracts were validly concluded between Jiangsu and Concord.
    • Category: Substantive
    • Sub-Issues:
      • Intention to create legal relations
      • Authority to contract
      • Compliance with internal regulations
    • Related Cases:
      • [2000] 2 SLR(R) 407
      • [2015] 1 SLR 521
      • [1999] 2 SLR(R) 440
      • [2013] 4 SLR 150
      • [2001] 1 SLR(R) 798
      • [2013] 4 SLR 1023
      • [2004] 4 SLR(R) 258
      • [1994] 1 SLR(R) 736

8. Remedies Sought

  1. Setting aside of arbitral awards

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Commercial Litigation
  • Arbitration

11. Industries

  • Energy
  • Commodities Trading

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
AQZ v ARAHigh CourtYes[2015] 2 SLR 972SingaporeCited for the principle that the court is fully competent to sift through the transcripts of oral evidence before the tribunal in deciding whether to set aside an arbitral award.
Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte LtdHigh CourtYes[2014] 1 SLR 814SingaporeCited for the principle that findings of fact by the tribunal are generally indisputable and, consequently, cross-examination is generally not resorted to in applications under O 69A of the ROC.
PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appealCourt of AppealYes[2014] 1 SLR 372SingaporeCited for the principle that the question of the existence of an arbitration agreement can be subsumed within the issue of the validity of an arbitration agreement.
Government of the Lao People’s Democratic Republic v Sanum Investments LtdHigh CourtYes[2015] 2 SLR 322SingaporeDiscussed in relation to the admissibility of new evidence in a challenge to an arbitral tribunal’s jurisdiction.
Ladd v MarshallNot specifiedYes[1954] 1 WLR 1489England and WalesDiscussed in relation to the admissibility of new evidence, specifically the conditions of admissibility.
Central Trading & Exports Ltd v Fioralba Shipping CompanyHigh CourtYes[2014] EWHC 2397England and WalesDiscussed in relation to the challenge to the jurisdiction of an arbitral tribunal under s 67 of the Arbitration Act 1996 (c 23) (UK).
Hyundai Merchant Marine Co. Ltd v Americas Bulk Transport LtdHigh CourtYes[2013] EWHC 470 (Comm)England and WalesCited for the principle that if the arbitration agreement is contained in the contract itself, and the validity of the arbitration agreement is challenged on the basis that no binding contract had been concluded, the validity of the arbitration agreement and the existence of a binding contract “stand or fall together” and the court can determine both issues on the basis of a full rehearing.
CIMB Bank Bhd v Dresdner KleinwortCourt of AppealYes[2008] 4 SLR(R) 543SingaporeCited for the principle that where parties are in dispute as to the existence or validity of a contract, the dispute is to be construed in accordance with the law of the putative contract – the law of the contract as if it were valid.
Tribune Investment Trust Inc v Soosan Trading Co LtdNot specifiedYes[2000] 2 SLR(R) 407SingaporeCited for the principle that an objective test is to be applied in deciding whether the parties have reached an agreement.
R1 International Pte Ltd v Lonstroff AGCourt of AppealYes[2015] 1 SLR 521SingaporeCited for the principle that the objective intention of the parties can be gleaned from their correspondence and relevant background.
Aircharter World Pte Ltd v Kontena Nasional BhdNot specifiedYes[1999] 2 SLR(R) 440SingaporeCited for the principle that the subjective reservations of one party as to whether it is contractually bound cannot prevent the formation of a contract if, to outward appearances, parties have reached an agreement.
Lim Koon Park and another v Yap Jin Meng Bryan and anotherNot specifiedYes[2013] 4 SLR 150SingaporeCited for the principle that the subjective reservations of one party as to whether it is contractually bound cannot prevent the formation of a contract if, to outward appearances, parties have reached an agreement.
Projection Pte Ltd v The Tai Ping Insurance Co LtdNot specifiedYes[2001] 1 SLR(R) 798SingaporeCited for the principle that if parties are involved in continuing negotiations, it may be less useful to analyse the existence of the agreement in terms of whether an offer was made and accepted.
Port Sudan Cotton Co v Govindaswamy Chettiar & SonsNot specifiedYes[1977] 2 Lloyd’s Rep 5England and WalesCited for the principle that if parties are involved in continuing negotiations, it may be less useful to analyse the existence of the agreement in terms of whether an offer was made and accepted.
Rudhra Minerals Pte Ltd v MRI Trading Pte Ltd (formerly known as CWT Integrated Services Pte Ltd)Not specifiedYes[2013] 4 SLR 1023SingaporeCited for the principle that as long as there is “a set of essential terms which the parties may be bound by as a matter of law and on the basis of which they may act”, a contract may be formed even if parties are still negotiating some of the terms in the contract.
Midlink Development Pte Ltd v The Stansfield Group Pte LtdNot specifiedYes[2004] 4 SLR(R) 258SingaporeCited for the principle that the non-signing of the contracts cannot in itself be a bar to the formation of contract, for “the sterile formality of a signature is not always necessary in law to breathe life into contractual undertakings”.
Banque Bruxelles Lambert and others v Puvaria Packaging Industries (Pte) Ltd (in liquidation)Not specifiedYes[1994] 1 SLR(R) 736SingaporeCited for the principle that under Singapore law, even if Liu had acted outside his scope of authority, Jiangsu would still be bound by the contracts unless Concord had notice of Liu’s lack of authority.

13. Applicable Rules

Rule Name
Order 69A of the Rules of Court (Cap 322, 2014 Rev Ed)
O 28 r 4(3) of the Rules of Court (Cap 322, R5, 2014 Rev Ed)
O 28 r 4(4) of the Rules of Court (Cap 322, R5, 2014 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Section 24 of the International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore
Section 2A(3) of the International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Arbitral award
  • Jurisdiction
  • Spot contract
  • Term contract
  • Green petroleum coke
  • Letter of credit
  • UNCITRAL Model Law
  • Singapore International Arbitration Centre
  • De novo review

15.2 Keywords

  • arbitration
  • contract
  • jurisdiction
  • petroleum coke
  • Singapore

16. Subjects

  • Arbitration
  • Contract Law
  • International Trade

17. Areas of Law

  • Arbitration Law
  • Contract Law
  • International Commercial Arbitration