CUG v CUH: Challenge to Arbitral Tribunal's Jurisdiction on Contract Formation

CUG, CTM, CTN, and CTO applied to the Singapore International Commercial Court to challenge an arbitral tribunal's decision that it lacked jurisdiction over CUH in an ICC Arbitration. The Applicants argued that CUH was bound by an arbitration agreement through its conduct, despite not signing the agreement. Sir Henry Bernard Eder IJ dismissed the applications, finding that CUH's conduct did not demonstrate a clear and unequivocal intention to be bound by the agreement.

1. Case Overview

1.1 Court

Singapore International Commercial Court

1.2 Outcome

Applications dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Challenge to arbitral tribunal's decision on jurisdiction. The court found CUH not bound by the arbitration agreement due to lack of clear conduct.

1.7 Decision Date

1 December 2022

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
CUG	Applicant	Corporation	Application Dismissed	Lost	Toh Wei Yi of Harry Elias Partnership LLP Jaclyn Leong Shan Wei of Harry Elias Partnership LLP
CTM	Applicant	Corporation	Application Dismissed	Lost	Abraham Vergis SC of Providence Law Asia LLC Zhuo Jiaxiang of Providence Law Asia LLC Vanathi Eliora Ray of Providence Law Asia LLC
CTN	Applicant	Corporation	Application Dismissed	Lost	Abraham Vergis SC of Providence Law Asia LLC Zhuo Jiaxiang of Providence Law Asia LLC Vanathi Eliora Ray of Providence Law Asia LLC
CTO	Applicant	Corporation	Application Dismissed	Lost	Abraham Vergis SC of Providence Law Asia LLC Zhuo Jiaxiang of Providence Law Asia LLC Vanathi Eliora Ray of Providence Law Asia LLC
CUH	Respondent	Corporation	Application Dismissed	Won	Prakash Pillai of CLASIS LLC Koh Junxiang of CLASIS LLC Charis Toh Si Ying of CLASIS LLC

3. Judges

Judge Name	Title	Delivered Judgment
Sir Henry Bernard Eder	International Judge	Yes

4. Counsels

Counsel Name	Organization
Toh Wei Yi	Harry Elias Partnership LLP
Jaclyn Leong Shan Wei	Harry Elias Partnership LLP
Abraham Vergis SC	Providence Law Asia LLC
Zhuo Jiaxiang	Providence Law Asia LLC
Vanathi Eliora Ray	Providence Law Asia LLC
Prakash Pillai	CLASIS LLC
Koh Junxiang	CLASIS LLC
Charis Toh Si Ying	CLASIS LLC

4. Facts

CTM, CTN, CTO, and CUH entered into a joint venture agreement in 2013.
The JV was formed to act as joint contractors for a refinery construction project.
CUG was engaged to assist the JV in securing outstanding payments.
CUH did not sign the Subcontract Agreement and Services Agreement.
CUH authorized payments to CUG from the JV bank account.
Disputes arose between CUG and the JV over the quality of CUG’s services.
CUG commenced ICC Arbitration against CUH and the Original Parties.

5. Formal Citations

CUG and others v CUH, Originating Summons No 10 of 2022, [2022] SGHC(I) 16

6. Timeline

Date	Event
2013-11-19	JV Parties entered into a joint venture agreement
2014-02-01	JV Project awarded by OSC to the JV
2017-01-01	CUG to be entitled to fees on a commission basis
2017-11-16	CTM issued a provisional resolution on behalf of the JV
2017-11-19	CUG and the Original Parties signed the Agreements
2017-11-20	CTM emailed CUG to submit invoices
2017-11-20	CUH sent a letter to CTM protesting the unilateral execution of an agreement
2017-11-23	CTM responded by letter to CUH
2017-11-25	CUG issued two separate invoices
2017-11-29	CTM issued an official letter to CUH to cure CUH’s material breach
2017-12-02	Phone call between Mr M of CUG and Mr W of CTM
2017-12-18	CUH wrote to the Original Parties
2018-01-05	Mr H met Mr G in Westalis to discuss the terms of the Agreements
2018-01-30	CUG extended an invitation to CUH’s Chairman for a meeting with the Osteria Minister
2018-01-31	Mr H replied to CUG
2018-02-15	The JV learned through a SWIFT message that OSC had wired a progress payment of USD 131.6m to the JV Bank Account
2018-02-19	CUH signed off and authorised the JV to make payment amounting to USD 8,104,659 to CUG
2018-10-27	A total of ten payments totalling approximately USD 28.6m were made by the JV out of the JV Bank Account against separate invoices issued by CUG
2018-11-01	Disputes arose between CUG and the JV over the quality and scope of CUG’s services
2019-05-02	CUG sent an email to all the JV Parties demanding payment of its outstanding fees
2019-05-11	The response came back from the Project Director of the JV Project
2019-05-22	CUG sent an email notifying both CUH and the other JV Parties that unless the Supplemental Agreement was signed by 24 May 2022, “we will stay in our original contract and will be proceeding for arbitration immediately”
2019-06-30	CUG instructed their lawyers, Eversheds LLP – Westalis
2019-07-11	Eversheds Westalis wrote to all the JV Parties making a formal complaint of the JV’s failure to make payment of the then outstanding amounts
2019-07-16	CTM invoked its power as the JV Leader under clause 4.7.15 of the JV Agreement to issue a second provisional resolution for the JV to pay CUG’s fees
2019-09-19	CUG filed a Request for Arbitration against the JV Parties
2019-09-23	Meeting took place between the JV Parties
2019-11-01	The JV Parties agreed to resolve the First Arbitration amicably
2019-11-02	The JV Parties signing a settlement agreement
2019-11-06	The Settlement Sum was paid out of the JV Bank Account to CUG
2019-11-07	CUG withdrew the First Arbitration
2019-12-01	The JV Parties met CUG in Ruritania
2020-01-22	CUG highlighted to the JV Parties that the JV should expedite all DVN requests
2020-01-23	Mr H responded with details of the DVNs
2020-01-27	CUG sent an email
2020-02-13	CTM responded declining to give any letter of commitment
2020-02-15	CUG responded requesting that its outstanding invoices be paid before 17 February 2020
2020-02-17	CTM proposed to meet CUG
2020-02-22	CTM sent an email to CUG proposing to release the pending payment of USD 10.12 million to CUG
2020-03-01	CUH and the Original Parties met CUG at the JV Project site in Osteria
2020-03-18	The JV made payment of USD 5.06m to CUG
2020-03-25	CTM emailed CUG
2020-05-21	CUG terminated the Agreements
2020-07-06	CUG commenced the ICC Arbitration against CUH and the Original Parties
2020-09-16	The Original Parties’ Answer and Counterclaim
2020-09-16	CUH raised its jurisdictional objection
2021-01-21	The Tribunal was constituted
2021-03-16	CUH filed its Statement of Objections to Jurisdiction
2021-09-15	The Tribunal proceeded to hear the jurisdictional challenge
2021-12-20	The Tribunal delivered its ruling in the Partial Final Award
2022-07-07	Judgment reserved
2022-12-02	Judgment reserved

7. Legal Issues

Jurisdiction of Arbitral Tribunal
- Outcome: The court held that the arbitral tribunal lacked jurisdiction over CUH because CUH did not, by its conduct, become bound by the Agreements or the Arbitration Agreements contained therein.
- Category: Jurisdictional
- Sub-Issues:
  - Formation of Arbitration Agreement
  - Acceptance by Conduct
  - Waiver of Signature Requirement
  - Estoppel by Convention
Contract Formation
- Outcome: The court found that CUH's conduct did not demonstrate a clear and unequivocal intention to be bound by the Agreements.
- Category: Substantive
- Sub-Issues:
  - Offer and Acceptance
  - Intention to Create Legal Relations
  - Objective Theory of Contract Formation

8. Remedies Sought

Monetary Damages

9. Cause of Actions

Breach of Contract

10. Practice Areas

Arbitration
Commercial Litigation

11. Industries

Construction

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Jiangsu Overseas Group Co Ltd v Concord Energy Pte Ltd	High Court	Yes	[2016] 4 SLR 1336	Singapore	Cited for the principle that the court conducts a de novo review when reviewing the tribunal’s ruling on jurisdiction under s 10(3) of the Act.
Sanum Investments Ltd v Government of the Lao People’s Democratic Republic	Court of Appeal	No	[2016] 5 SLR 536	Singapore	Cited for the principle that the tribunal’s reasonings may be of persuasive value to the court.
RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Company KG (UK Production)	UK Supreme Court	Yes	[2010] UKSC 14	United Kingdom	Cited for principles relating to contractual formation under English law.
G Percy Trentham Ltd v Archital Luxfer Ltd	Court of Appeal	Yes	[1993] 1 Lloyd’s Rep 25	United Kingdom	Cited for the objective theory of contract formation.
Brogden v Metropolitan Railway	House of Lords	Yes	(1877) 2 App Cas 666	United Kingdom	Cited for the principle that contracts may come into existence during and as a result of performance.
Picardi (t/a Picardi Architects) v Cuniberti	High Court	No	[2002] EWHC 2923 (TCC)	England and Wales	Cited as showing that performance will not, of itself, necessarily mean acceptance of a binding contract on terms of an unsigned draft contract.
Arkley Homes North West Ltd v Cosgrave	Unknown	No	[2016] 4 WLUK 277	United Kingdom	Cited as showing that performance will not, of itself, necessarily mean acceptance of a binding contract on terms of an unsigned draft contract.
Allied Marine Transport Ltd v Vale do Rio Doce Navegacao SA (The Leonidas D)	Court of Appeal	No	[1985] 1 WLR 925	United Kingdom	Cited for the principle that the court should be slow to infer that a party has, by his conduct, accepted a contract.
Front Carriers Ltd v Atlantic and Orient Shipping Corp (The Double Happiness)	Unknown	No	[2007] All ER (D) 137 (Mar)	Unknown	Cited for the principle that the court should be slow to infer that a party has, by his conduct, accepted a contract.
Reveille Independent LLV v Anotech International (UK) Ltd	England and Wales Court of Appeal (Civil Division)	Yes	[2016] EWCA Civ 443	England and Wales	Cited for the principle that a draft agreement can have contractual force if essentially all the terms have been agreed upon, and their subsequent conduct indicates this.
Oceanografia SA de CV v DSND Subsea AS (The Botnica)	High Court	Yes	[2006] EWHC 1360	England and Wales	Cited for the principle that if a party has a right to sign a contract before being bound, it is open to it by clear and unequivocal words or conduct to waive the requirement and to conclude the contract without insisting on its signature.
Covington Marine Corp v Xiamen Shipbuilding Industry Co Ltd	High Court	No	[2005] EWHC 2912 (Comm)	England and Wales	Cited for the principle that an offeree would not be bound if the offeror had actual knowledge of the offeree’s intention.
Tinkler v Revenue and Customs Commissioners	UK Supreme Court	No	[2021] UKSC 39	United Kingdom	Cited regarding assent to a common assumption between the parties.
Midlink Development Pte Ltd v The Stansfield Group Pte Ltd	High Court	No	[2004] 4 SLR(R) 258	Singapore	Cited in support of the submission that CUH cannot have it “both ways” or “have its cake and eat it”.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
International Arbitration Act (Cap 143A, 2002 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Arbitration Agreement
Joint Venture
Outstanding OSC Payments
Subcontract Agreement
Services Agreement
JV Bank Account
Partial Award
ICC Arbitration
Settlement Agreement

15.2 Keywords

arbitration
contract formation
jurisdiction
singapore
international commercial court

17. Areas of Law

Area Name	Relevance Score
Arbitration	90
Contract Law	90
International Commercial Arbitration	80
Jurisdiction	70
Breach of Contract	50
Estoppel	30

16. Subjects

Arbitration
Contract Law
Jurisdiction