COT v COU: Setting Aside Arbitral Award for Lack of Jurisdiction and Breach of Natural Justice

The Singapore Court of Appeal heard appeals by COT, COV, and COW against COU, challenging an arbitral award. The appellants sought to set aside the award, arguing the arbitral tribunal lacked jurisdiction due to the absence of a valid arbitration agreement, exceeded its jurisdiction, and breached natural justice. The court dismissed the appeals, finding a valid arbitration agreement existed and the tribunal did not exceed its jurisdiction or breach natural justice. The court emphasized the policy of minimal curial intervention in arbitral proceedings.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeals dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal addresses setting aside an arbitral award due to jurisdictional challenges and breach of natural justice, emphasizing minimal curial intervention.

1.7 Decision Date

10 October 2023

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
COT	Appellant, Defendant, Plaintiff	Corporation	Appeal Dismissed	Lost	Koh Swee Yen of WongPartnership LLP Claire Lim of WongPartnership LLP Hannah Lee Ming Shan of WongPartnership LLP
COU	Respondent, Plaintiff, Defendant	Corporation	Successful Defense of Appeal	Won	Thng Huilin Melissa of Dentons Rodyk & Davidson LLP Teh Kee Wee Lawrence of Dentons Rodyk & Davidson LLP Kavitha Ganesan of Dentons Rodyk & Davidson LLP
COV	Appellant, Defendant, Plaintiff	Corporation	Appeal Dismissed	Lost	Tan Ly-Ru Dawn of ADTLaw LLC Teo Wei Jian Tristan of ADTLaw LLC Cheyenne Valenza Low of ADTLaw LLC
COW	Appellant, Defendant, Plaintiff	Corporation	Appeal Dismissed	Lost	Lok Vi Ming of LVM Law Chambers LLC Tan Kah Wai of LVM Law Chambers LLC Law May Ning of LVM Law Chambers LLC Joshua Ho Jun Ling of LVM Law Chambers LLC

3. Judges

Judge Name	Title	Delivered Judgment
Judith Prakash	Justice of the Court of Appeal	No
Tay Yong Kwang	Justice of the Court of Appeal	No
Steven Chong	Justice of the Court of Appeal	Yes

4. Counsels

Counsel Name	Organization
Koh Swee Yen	WongPartnership LLP
Claire Lim	WongPartnership LLP
Hannah Lee Ming Shan	WongPartnership LLP
Thng Huilin Melissa	Dentons Rodyk & Davidson LLP
Teh Kee Wee Lawrence	Dentons Rodyk & Davidson LLP
Kavitha Ganesan	Dentons Rodyk & Davidson LLP
Tan Ly-Ru Dawn	ADTLaw LLC
Teo Wei Jian Tristan	ADTLaw LLC
Cheyenne Valenza Low	ADTLaw LLC
Lok Vi Ming	LVM Law Chambers LLC
Tan Kah Wai	LVM Law Chambers LLC
Law May Ning	LVM Law Chambers LLC
Joshua Ho Jun Ling	LVM Law Chambers LLC

4. Facts

Claimant was unwilling to deliver remaining Modules due to outstanding invoices.
Project Company was ultimately responsible for payment of invoices.
Project Company required Modules to complete Project and receive payment.
Negotiations occurred to address outstanding invoices and release Modules.
Non-Disposal Undertaking (NDU) was drafted to provide security for payment.
Claimant released Modules after negotiations and agreement on NDU.
EPC Company made part payment of invoices after negotiations.

5. Formal Citations

COT v COU and others and other appeals, , [2023] SGCA 31
COT v COU, Civil Appeal No 12 of 2022, Civil Appeal No 12 of 2022
COT v COU, Originating Summons No 482 of 2021, Originating Summons No 482 of 2021
COV v COU, Civil Appeal No 13 of 2022, Civil Appeal No 13 of 2022
COV v COU, Originating Summons No 489 of 2021, Originating Summons No 489 of 2021
COW v COU, Civil Appeal No 15 of 2022, Civil Appeal No 15 of 2022
COW v COU, Originating Summons No 492 of 2021, Originating Summons No 492 of 2021

6. Timeline

Date	Event
2015-08-01	Module Supply Agreement concluded between Claimant and Procurement Company.
2016-03-01	Equipment and material supply contract entered into between EPC Company and Project Company.
2016-03-13	Claimant indicated it would suspend further deliveries of Modules.
2016-03-15	Negotiations commenced between Claimant and Rohan Group.
2016-03-18	Claimant released remaining Modules.
2016-03-22	EPC Company paid ₴5.06m to Procurement Company.
2016-03-25	Procurement Company paid ₴5.06m to Claimant.
2017-01-01	Claimant commenced arbitration against appellants.
2023-08-11	Judgment reserved.
2023-10-11	Judgment delivered.

7. Legal Issues

Jurisdiction of Arbitral Tribunal
- Outcome: The court found that the arbitral tribunal had jurisdiction because a valid arbitration agreement existed.
- Category: Jurisdictional
- Sub-Issues:
  - Absence of valid arbitration agreement
  - Authority to bind parties to contract
- Related Cases:
  - [2014] 4 SLR 79
  - [2007] 3 SLR(R) 86
  - [2015] 3 SLR 488
  - [2016] 4 SLR 1336
  - [2022] 5 SLR 22
  - [2015] 2 SLR 972
  - [2018] 1 All ER (Comm) 691
Breach of Natural Justice
- Outcome: The court found that there was no breach of natural justice.
- Category: Procedural
- Sub-Issues:
  - Denial of opportunity to present case
  - Failure to decide on matters submitted
- Related Cases:
  - [2011] 4 SLR 305
Scope of Arbitral Submission
- Outcome: The court found that the tribunal did not exceed the scope of its jurisdiction.
- Category: Procedural
- Sub-Issues:
  - Tribunal exceeding scope of jurisdiction
  - Tribunal dealing with dispute not contemplated by submission
- Related Cases:
  - [2011] 4 SLR 305
  - [2021] 2 SLR 1279
  - [2021] 2 SLR 235
  - [2022] 2 SLR 1
Contract Formation
- Outcome: The court found that a binding contract was concluded between the parties.
- Category: Substantive
- Sub-Issues:
  - Consensus ad idem
  - Intention to create legal relations
- Related Cases:
  - [2015] 1 SLR 521
  - [2009] 2 SLR(R) 332
  - [2000] 2 SLR(R) 407
  - [2020] 5 SLR 514
  - [2020] 2 SLR 984

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
BLC and others v BLB and another	Court of Appeal	Yes	[2014] 4 SLR 79	Singapore	Cited for the policy of minimal curial intervention in arbitral proceedings.
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd	Court of Appeal	Yes	[2007] 3 SLR(R) 86	Singapore	Cited for the principle of respecting and preserving the autonomy of the arbitral process.
AKN and another v ALC and others and other appeals	Court of Appeal	Yes	[2015] 3 SLR 488	Singapore	Cited for the principle that parties are bound by the decisions of their chosen arbitrators.
Tjong Very Sumito and others v Antig Investments Pte Ltd	Court of Appeal	Yes	[2009] 4 SLR(R) 732	Singapore	Cited for the desire to support, and not to displace, the arbitral process.
Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others	Court of Appeal	Yes	[2013] 1 SLR 636	Singapore	Cited for upholding the finality of the arbitration process.
ASG v ASH	Court of Appeal	Yes	[2016] 5 SLR 54	Singapore	Cited for the principle that parties must accept the consequences of choosing arbitration.
CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK	Court of Appeal	Yes	[2011] 4 SLR 305	Singapore	Cited in relation to the scope of jurisdiction under Art 34(2)(a)(iii) of the Model Law.
Fiona Trust & Holding Corporation v Privalov	English Court of Appeal	No	[2007] 2 Lloyd’s Rep 267	England and Wales	Cited for the separability principle, but distinguished as not applicable to contractual formation.
Fiona Trust & Holding Corporation and others v Privalov and others	House of Lords	No	[2008] 1 Lloyd’s Rep 254	United Kingdom	Cited for the separability principle, but distinguished as not applicable to contractual formation.
BCY v BCZ	Court of Appeal	Yes	[2017] 3 SLR 357	Singapore	Cited for the principle that the separability principle only applies to questions of contractual validity and not to contractual formation.
DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd	English Court	Yes	[2023] 3 All ER 580	England and Wales	Cited for affirming that the separability principle does not apply to the question of contractual formation.
Jiangsu Overseas Group Co Ltd v Concord Energy Pte Ltd and another matter	High Court	Yes	[2016] 4 SLR 1336	Singapore	Cited for the standard of review in setting aside applications based on the absence of a concluded contract.
CUG and others v CUH	Singapore International Commercial Court	Yes	[2022] 5 SLR 22	Singapore	Cited for following Jiangsu Overseas Group in conducting a de novo review of the tribunal’s ruling on jurisdiction.
AQZ v ARA	High Court	Yes	[2015] 2 SLR 972	Singapore	Cited for a jurisdictional challenge mounted on the basis that no contract was concluded between the parties on account of a “subject to contract” provision.
Hyundai Merchant Marine Company Limited v Americas Bulk Transport Ltd	High Court	No	[2013] 2 All ER (Comm) 649	England and Wales	Cited for the principle that whether there was a binding fixture and/or a binding arbitration agreement stood or fell together.
Erdenet Mining Corporation LLC v ICBC Standard Bank plc and others	High Court	Yes	[2018] 1 All ER (Comm) 691	England and Wales	Cited for the question of where the seat court’s de novo inquiry should end.
PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal	Court of Appeal	Yes	[2014] 1 SLR 372	Singapore	Cited for the principle that an application to set aside an award on the basis that no valid arbitration agreement was formed can be brought under Art 34(2)(a)(i) of the Model Law.
R1 International Pte Ltd v Lonstroff AG	Court of Appeal	Yes	[2015] 1 SLR 521	Singapore	Cited for the principle that the court adopts an objective approach towards the question of contractual formation.
Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal	Court of Appeal	Yes	[2009] 2 SLR(R) 332	Singapore	Cited for the principle that once the parties have outwardly agreed in the same terms on the same subject matter, then neither can, generally, rely on some unexpressed qualification or reservation to show that he had not in fact agreed to the terms to which he had appeared to have agreed.
Aircharter World Pte Ltd v Kontena Nasional Bhd	Court of Appeal	Yes	[1999] 2 SLR(R) 440	Singapore	Cited for the principle that once the parties have outwardly agreed in the same terms on the same subject matter, then neither can, generally, rely on some unexpressed qualification or reservation to show that he had not in fact agreed to the terms to which he had appeared to have agreed.
Chia Ee Lin Evelyn v Teh Guek Ngor Engelin née Tan and others	Court of Appeal	Yes	[2004] 4 SLR(R) 330	Singapore	Cited for the principle that the intention which courts will attribute to a person is always that which that person’s conduct and words amount to when reasonably construed by a person in the position of the offeree, and not necessarily that which was present in the offeror’s mind.
Tribune Investment Trust Inc v Soosan Trading Co Ltd	Court of Appeal	Yes	[2000] 2 SLR(R) 407	Singapore	Cited for the principle that when inferring parties’ assent in circumstances of protracted negotiations, the court must ensure that the reasonable expectations of honest men are not disappointed.
Day, Ashley Francis v Yeo Chin Huat Anthony and others	Court of Appeal	Yes	[2020] 5 SLR 514	Singapore	Cited for the principle that the court will consider the entire course of negotiations to determine whether there was a single point in time when the requisite consensus ad idem was reached.
China Coal Solution (Singapore) Pte Ltd v Avra Commodities Pte Ltd	Court of Appeal	Yes	[2020] 2 SLR 984	Singapore	Cited for the principle that the whole course of the parties’ negotiations, both before and after the alleged date of contracting, must be considered when determining whether a contract was formed.
Simpson Marine (SEA) Pte Ltd v Jiacipto Jiaravanon	Court of Appeal	Yes	[2019] 1 SLR 696	Singapore	Cited for the principle that evidence of subsequent conduct has traditionally been regarded as admissible and relevant to determine whether a contract has been formed.
TTMI Sarl v Statoil ASA (The Sibohelle)	High Court	Yes	[2011] 2 All ER (Comm) 647	England and Wales	Cited for the principle that the facts that services were rendered, work undertaken, or payment made are relevant factors in deciding whether a binding contract was concluded.
RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG	Supreme Court	Yes	[2010] 1 WLR 753	United Kingdom	Cited for the principle that the facts that services were rendered, work undertaken, or payment made are relevant factors in deciding whether a binding contract was concluded.
Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another	Court of Appeal	Yes	[2021] 2 SLR 1279	Singapore	Cited for the two-stage enquiry that applies when determining a challenge brought under Art 34(2)(a)(iii) of the Model Law.
CDM and another v CDP	Court of Appeal	Yes	[2021] 2 SLR 235	Singapore	Cited for the principle that the scope of the submission is determined with reference to five sources: the parties’ pleadings, agreed list of issues, opening statements, evidence adduced, and closing submissions.
CKH v CKG and another matter	Court of Appeal	Yes	[2022] 2 SLR 1	Singapore	Cited for the principle that the exercise of determining whether a matter falls or has come within the scope of the agreed reference is a holistic one.
Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v MatlinPatterson Global Opportunities Partners (Cayman) II LP and others	High Court	Yes	[2022] 2 All ER (Comm) 841	England and Wales	Cited for the principle that terms of reference must be given a liberal construction in keeping with the purpose of arbitration to provide a flexible and effective means of resolving disputes and providing redress.
COT v COU and others and other matters	High Court	Yes	[2023] SGHC 69	Singapore	The decision below being appealed.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
International Arbitration Act 1994	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Arbitral Award
Setting Aside
Jurisdictional Challenge
Curial Intervention
Arbitration Agreement
Non-Disposal Undertaking
Modules Delivery Agreement
Consensus ad idem
Back-to-back contracts
Ultra petita
Infra petita
Natural justice

15.2 Keywords

arbitration
contract
jurisdiction
setting aside
natural justice

17. Areas of Law

Area Name	Relevance Score
Arbitration	95
Contract Law	80
Breach of Contract	70
Jurisdiction	60
Natural justice	50
Recourse against award	40
Setting aside	40

16. Subjects

Arbitration
Contract Law
Civil Procedure