2. An Order that the Applicant is not a contractual party to the Charterparty dated 10 June 2022 in respect of the [Vessel].

1. A Declaration that the dispute in the [Arbitration] is non-arbitrable as the dispute involves an issue regarding the public policy of Singapore.

2. A Declaration that the Charterparty contract dated 10 June 2022 with [the Respondent] as the Charterer for the [Vessel] for the carriage of a cargo of palm oil to Iran is unenforceable as it is against the public policy of Singapore.

Dear Capt [B],

Good day.

We are pleased to advise that charterers lifted all subjects within agreed time and [the Vessel] is fully clean fixed with charter party dated June 10, 2022. Please find below clean fixture recap with following terms and conditions mutually agreed between owners and charterers.

2. IN EVENT OF FREIGHT ASSIGNMENT TO OWNERS’ NOMINATED ACCOUNT, HEAD OWNERS TO PROVIDE IN WRITING WITH COMPANY LETTERHEAD THAT THE NOMINATED BENEFICIARY HAS THEIR AUTHORIZATION AND LEGAL COMPETENCE TO COLLECT THE FULL FREIGHT ON BEHALF UNDER THIS CHARTER PARTY, AND GUARANTEE THEIR PERFORMANCE OF THE VOYAGE TILL CARGOES FULLY DISCHARGED IN NOMINATED PORT(S).

3. OWNERS WARRANT, THAT DURING THE CURRENCY OF THIS CHARTER PARTY VESSEL SHALL NOT CHANGE OWNERSHIP OR CLASS. OWNERS CONFIRM THAT VESSEL’S Q88 QUESTIONNAIRE PROVIDED HERE IS UPDATED AT THE TIME OF CLEAN FIXTURE.

4. OWNERS CONFIRM A VALID CERTIFICATE OF FITNESS FOR THE CARRIAGE OF VEGETABLE OILS AS PER MARPOL ANNEX 2 REGULATION 4.1.3. IS AVAILABLE FOR TANKS IN WHICH THE VEGETABLE OILS WILL BE STOWED.

5. CHARTERER’S AGENTS BOTH ENDS, PROVIDED COMPETITIVE.

6. SANCTIONS CLAUSE: BY ENTERING INTO THIS CHARTER PARTY, OWNERS AND THEIR SUBSIDIARIES / AFFILIATES ARE AGREEING THAT THEY ARE IN NO WAY AFFILIATED WITH ANY ENTITIY AND/OR PERSON(S) KNOWN TO BE SANCTIONED BY THE UN/EU/US DEPARTMENT OF THE TREASURY (HTTP://WWW.TREASURY.GOV/). OWNERS, UPON WRITTEN REQUEST FROM CHARTERERS, SHALL PROVIDE PROOF OF OWNERSHIP TO ADDRESS ANY QUERIES THAT MAY ARISE. OWNERS CONFIRM THAT THEY AND THEIR COMPANY BANK ACCOUNT ARE NOT UNDER ANY UN/EU AND/OR US INCLUDING OFAC SANCTIONS. OWNERS WILL BE HELD RESPONSIBLE FOR ALL CONSEQUENCES INCASE OF ANY UN/EU AND/OR US INCLUDING OFAC SANCTIONS ON OWNERS, VESSEL, SUBSIDIARIES, AFFILIATES AND THEIR COMPANY BANK ACCOUNT, ETC.

7. VESSEL WILL ENDEAVOUR TO SAIL WITH MAX SAFE SPEED. WEATHER SAFE NAVIGATION PERMITTING.

8. INCLUSION OF L/C NUMBERING IN BILLS OF LADINGS SHALL NOT BE CONSIDERED TO BE REFERRING TO OR INDICATING CARGO VALUE AND IS STRICTLY FOR BANK’S LETTER(S) OF CREDIT PURPOSES ONLY, IN CASE THE L/C NUMBERING IS INSERTED INTO THE B/LS.

9. MASTER TO SEND DAILY NOON REPORT TO CHARTERERS AND BROKERS UPON FIXING.

12. CHTRS WILL HAVE AN OPTION TO PAY FREIGHT IN USD, EURO OR AED CURRENCY TO THE OWNERS’S NOMINATED BANK ACCOUNT BY TELEGRAPHIC TRANSFER (TT) OR OTHER SOURCES.

END RECAP

Trust above in line with our notes of negotiation, please reconfirm the same in written for sake of good order within 24hrs otherwise shall assume all in order.

Many thanks for your kind co-operation and understanding during entire negotiation.

Looking forward to having many more similar opportunities in near future.

Best regards

[A]

[X] Shipbrokers Pte Ltd

[Bolded underlining added]

Dear Capt [B],

Good day.

As discussed and agreed, please find below addendum-1 for additional load port for the subject vessel.

…

It is this day agreed between charterers and owners that:

1. Charterers will have an option for additional loadport Kuala Tanjung, Indonesia for loading cargo as per C/P. Vessel will call loadport Kuala Tanjung, Indonesia first (1st loadport), followed by Tanjungpura (Kijing), Indonesia (2nd loadport), if used.

2. Charterers will pay extra USD 4.00/pmt to owners on entire cargo quantity for additional loadport Kuala Tanjung, Indonesia, if used.

…

Singapore

June 17, 2022

End Addendum-01

++++++

Please confirm receipt.

Thank you.

Best regards

[A]

[X] Shipbrokers Pte Ltd

[Underlining added]

This standard Charter Party Clauses of [RESPONDENT’S] RIDER CLAUSES (PALM OIL), as mentioned below are used in conjunction with VEGOILVOY Charter Party. It is understood that should there be any conflict between clauses, charterparty main terms shall always take precedence first before any other clauses, then charterer’s rider clauses which shall take precedence over Vegoilvoy proforma terms.

This Charter Party shall be governed by English law arbitrated at Singapore. All disputes arising out of or in connection this Charter Party, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (“SCMA Rules”) for the time being in force at the commencement of the arbitration. SCMA Rules are deemed to be incorporated by reference into this Clause

I am going to give permission in your written submissions to have a section on English law which can be written by Mr Cordara, and it is limited to drawing my attention to any relevant principles or cases which build upon the principles set out in the Americas and anything additional that you wish to draw my attention to, in order to assist in understanding the way the Americas work. What we will do at the outset of the hearing is decide whether it is necessary to have oral submissions from Mr Cordara.

18 During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds [1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900.

19 When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. In this connection, see Prenn, at pp 1384–1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen) [1976] 1 WLR 989, per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony JSC, at paras 21–30.

[Underlining added]

18 There is a dispute between the parties as to how the issues that arise should be determined. The claimant submits that ascertaining the identity of the parties to a contract is a question of fact to be determined by reference to all the relevant evidence even if it post-dates the contract in issue and even if it is not something known to both parties but only to one of them. The defendant submits that identification of a party to a contract is a matter of contractual construction, which may be supported by extrinsic evidence known to both parties at the time the contract was made. It submits that material coming into existence after that time is immaterial to the issue.

19 In my judgment the applicable principles in summary are as follows:

(i) Where the contract is contained in a document then the first question that arises is whether the document sufficiently unequivocally identifies the parties to the contract. If it does then the question is one to be determined by construction of the relevant document and is not a question of factual investigation and evaluation – see Hector v Lyons (1988) 58 P & CR 156 and Shogun Finance Ltd v Hudson [2004] 1 Lloyd’s Rep 532; [2004] 1 AC 919 per Lord Hobhouse at para 49 because: “… the rule that other evidence may not be adduced to contradict the provisions of a contract contained in a written document is fundamental to the mercantile law of this country; the bargain is the document; the certainty of the contract depends on it …”, and per Lord Phillips at para 161.

(ii) Where the contract is contained in or evidenced in writing but the document or documents containing or evidencing the agreement do not enable the parties to be ascertained, then recourse to extrinsic evidence is permitted of what the parties said to each other and what they did down to the point at which a contract was concluded for the purpose of determining who the parties to the agreement were intended to be – see Estor Ltd v Multifit (UK) Ltd [2010] CILL 2800 per Akenhead J at para 26 approved in Hamid v Francis Bradshaw Partnership [2013] BLR 447 per Jackson LJ at para 56 with whom the other members of the court agreed – see paras 74 and 75.

(iii) Where para (ii) applies in principle, the approach that should be adopted is objective not subjective so that the question the court must ask and answer is what a reasonable person furnished with the relevant information, would conclude – see Hamid v Francis Bradshaw Partnership (ibid) at para 57(ii) and Navig8 Inc v South Vigour Shipping Inc [2015] 1 Lloyd’s Rep 436 per Teare J at para 94.

[Underlining added]

23 Finally, it was submitted by the defendant and I accept that if: (i) the identity of the disponent owner is not apparent on the face of a document containing or evidencing the charterparty; and (ii) cannot be ascertained by reference to the extrinsic evidence available down to the point at which the relevant contract was concluded; but (iii) the relevant contract was entered into by an agent acting on behalf of two or more potential unidentified principals, the identity of the true principal can be ascertained by reference to the intention of the agent when entering the contract – see North Atlantic Insurance Co Ltd v Nationwide General Insurance Co Ltd [2003] 2 CLC 731 per Cooke J at para 28, where he held that: “… where it is necessary to ascertain the [identity] of a principal, with whom the other party knows it is dealing but who remains unidentified on the face of the contract, resort … must be had to the intention of the agent when making the contract, to ascertain on whose behalf he was then acting …”. The material that is admissible in order to resolve this issue includes “… any … admissible material showing what was subjectively intended by …” the agent – see National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd’s Rep 582 per Colman J at page 597 col 1 (para (3)). I accept that when this is the issue it is permissible to refer to post-contractual as well as pre-contractual evidence as long as the evidence is material to the subjective intent of the agent at the time when he contractually bound his principal.

[Underlining added]

On this basis, although the Tribunal proceeded first to analyse the wording of the Charterparty as it stood initially in the Fixture Recap before proceeding to the analysis of the wording added in the Addendum (see Award [109] et seq.), English law would regard the better approach as to go directly to a consideration of the meaning of the wording of the contract documentation viewed as a whole, applying the above principles. The fact that the overall wording was constructed in two stages, over 7 days, would not (per se) be regarded as of any ultimate significance.

Further, Judge Pelling, QC also cautioned against fact finding – see [19(i)] of the Americas case. Where the document is clear, a Court ought not to make any factual investigation or evaluation, where the identity of the party is already clearly spelt out.

The Tribunal made a leap in reasoning to say that this [the Addendum] is a contractual document which is part and parcel of the CP [Charterparty]. If the CP did not intend to make [the Applicant] a party, a subsequent document cannot create privity of contract if none existed in the first place. I submit that the Tribunal’s finding that the Addendum as an agreed contractual document that forms part of the CP is an unwarranted assumption that is wrong. The Addendum cannot be an agreed contractual document. It remains unsigned to this day.

Looking back at the email, this email was to talk about additional load ports and increased freight prices. The focus of the email and the Addendum was to increase the freight because of the increase in load ports. … The subject matter of this email was not so much as to who was the contracting party; rather it was purely more freight for a second load port. … A subsequent document cannot create privity if [the Applicant] was not a party to the first CP. … I submit that Addendum is nothing more than reflection of prices to be paid for the second load port.

[Underlining added]

33. Being a professional ship broker, [X] Shipbrokers Pte Ltd must have known the effect of expressly naming [Z] Service Limited as “Disponent Owner” in a CP. The objective inference must be, that [Z] Service Limited was [the Respondent’s] counterparty and not Applicant. If the intent was to have only Applicant as the counterparty, then the CP would have simply named Applicant as disponent owner.

…

62. With respect, the latter argument [that [Z] Service Limited could be a contractual party, or was jointly liable, so long as the Applicant was also a contractual party] meant that [the Respondent] made a contract with 2 carriers. A result that is not only unusual, but an anomaly in shipping. If one refers to the standard BIMCO charterparty forms, there is only 1 box to be filled in for 1 owner, and 1 box for 1 charterer, just like [DMG]’s Rider Clauses mentioned above.

63. A normal commercial person does not engage 2 carriers in a contract of carriage, or provide for 1 carrier to be jointly liable with another. It is also noticeable that the words “jointly” or “severally” are absent from the CP which, if it was intended for both Applicant and [Z] Service Limited to be counterparties, such wording would have been used, especially if the intent was to create joint liability.

… are to be construed according to their sense and meaning as collected in the first place from the terms used understood in their plain, ordinary and popular sense unless they have generally in respect of the subject matter, as by the known usage of the trade or the like, acquired a particular sense, distinct from their popular sense distinct from their popular sense; or unless the context evidently shows that they must in the particular instance, and in order to effectuate the immediate intention of the parties, be understood in some other special and peculiar sense.

[Underlining added]

Dear Capt [B]

Good day.

We are pleased to advise that charterers lifted all subjects within agreed time and [the Vessel] is fully clean fixed with charter party dated June 10, 2022. Please find below clean fixture recap with following terms and conditions mutually agreed between owners and charterers.

5 The Plaintiff, [DMG] is at all material times the voyage charterers of the [Vessel] from the Defendant, demise charterers [DMF] under a charterparty dated 10.6.2022 …. The Charterparty, as amended, provides for the loading and carriage of 27,500mt (+/- 5%) of crude / refined palm oil in bulk (“Cargo”), from Kuala Tanjung Port and Tanjung Pura Port, Indonesia (“Load Port”), to 1 or 2 safe ports, Bandar Abbas and/or Bandar Imam Khomeni, Iran.

17 This action is brought by the Plaintiff pursuant to Section 24(b) of the Courts of Judicature Act 1964 (“CJA”), which confers upon the High Court of Malaya the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Senior Courts Act 1981.

18 The Plaintiff’s action falls within the provisions of Section 20(2)(h) and Section 21(4) of the Senior Courts Act 1981, which applies to claims arising out of an agreement relating to carriage of goods in a ship. It enables the Plaintiff to enforce its claim by an action in rem against the [Vessel].

19 The property to be arrested is the [Vessel] and she is the Vessel in connection with which the claim in this action arose.

20 The Defendant in this action, [DMF], was at the material time when the cause of action arose, and also at the date of the issue of the Writ in this action, the Demise Charterer of the Vessel, and is the party who would be liable to the Plaintiff under the Charterparty on the claim in action in personam.

[Underlining added]

25 I am instructed that the Charterparty incorporates an arbitration agreement for all disputes arising thereunder to be resolved by arbitration in Singapore in accordance with English law. …

26 I am instructed that the Plaintiff has not yet commenced arbitration on its claim against the Defendant.

27 I respectfully say that the Arbitration Agreement does not prevent the Plaintiff from commencing admiralty in rem proceedings against the Vessel in enforcement and/or as security for its claim in arbitration in Singapore. An arrest as security for any claim in a foreign arbitration is permissible. This Honourable Court has the power to issue a Warrant of Arrest by way of interim remedy to secure the Plaintiff’s claim by the Vessel’s arrest under Section 11(1)(c) of the Arbitration Act 2005.

…

32 Further, if so advised, the Plaintiff shall reserve its rights to apply to stay proceedings in Malaysia under Section 10 of the Arbitration Act 2005 to have its claim against the Defendant resolved by arbitration in Singapore.

4 I affirm this Affidavit in support of the Defendant’s Notice of Application filed herein. This application is made without prejudice to the Defendant’s rights to require that this dispute be referred to arbitration in accordance with the arbitration agreement at clause 41 of the [Respondent’s] Rider Clauses (Palm Oil) which forms part of the charterparty entered into between the Plaintiff and the Defendant.

…

27 I also state that Clause 13 of the “Recap” (“Clause 13”) of the Charterparty states as follows:-

“13 Due to banking sanctions, owners agree for the following items on B/Ls and other documents-

(C) Discharge port may be mentioned “Middle East (Port)” or “Jebel Ali” or “Hamriya” or somewhere else instead of Bandar Abbas and BIK as per chtrs instructions.”

28 The above clause was inserted in the Charterparty on the requirement of the Plaintiff. I state that it is apparent from the above clause that the Plaintiff intended to mislead the relevant authorities and financial institutions on the true destination of the Cargo to Iran by deceptively requiring that it be replaced with a false destination on the Bills of Lading and other documents. I am advised that Clause 13 makes the Charterparty unenforceable due to illegality and/or being against public policy under Malaysian law. This fact and material consideration was not highlighted to this Honourable Court in the Arrest Affidavit by the Plaintiff.

[Underlining added].

UPON THE APPLICATION by the Defendant abovenamed AND UPON READING the Notice of Application dated 22 June 2022 and all the Affidavits and Written Submissions filed herein AND UPON HEARING Jeremy M. Joseph (Matthew Jerome van Huizen with him), counsel for the Plaintiff, and Siva Kumar Kanagasabai (Dhanyaa Shreeya Sukumar and Melissa Malthew with him), counsel for the Defendant IT IS HEREBY ORDERED ON THIS DAY that :-

(i) The Notice of Application in Enclosure 20 is dismissed; and

(ii) The Defendant do pay costs of RM20,000.00 to the Plaintiff, subject to allocatur.

(1) The instant application is made without admission of liability and without prejudice to:-

(a) The Defendant’s rights to require that the instant dispute be referred to arbitration in accordance with the arbitration agreement at clause 41 of the [Respondent’s] Rider Clauses (Palm Oil) which forms part of the Charterparty entered into between the Plaintiff and Defendant;

(b) The Defendant’s application to set aside the Warrant of Arrest issued by this Honourable Court on 8.7.2022; and

(c) The Defendant’s position that it has not committed any breach of the Charterparty to give rise to the Plaintiff’s claim.

8.1.  The Plaintiff was the voyage charterer of the Vessel under a charterparty entered into between the Plaintiff and Defendant on 10.6.2022.

[Underlining added]

1 Issue estoppel, cause of action estoppel and the doctrine of abuse of process are all principles that are part of the armoury of tools availing a court confronted with the need to act so as to prevent litigants from being twice vexed in the same matter or in respect of the same or sufficiently similar issues. At the same time, these doctrines also promote the public interest in upholding the finality of litigation. Where issue estoppel is said to arise out of a prior local decision (“domestic issue estoppel”), it is these twin rationales of protecting defendants from unfair vexation and upholding finality in litigation that principally animate the court’s formulation of the applicable legal rules. Where, however, issue estoppel is said to arise from a prior foreign decision (“transnational issue estoppel”), additional considerations come into play in shaping how the interests of justice may be best served.

20 A party’s adoption of inconsistent positions in the same or related proceedings may potentially amount to an abuse of process, or offend the doctrine of approbation and reprobation: BWG v BWF [2020] 1 SLR 1296 (“BWG”) at [52]–[56] and [102]. We were satisfied, however, that this was not the case here, having regard to the stance adopted by the Appellant in mounting this appeal.

21 As to abuse of process, we considered that the Appellant was indeed taking inconsistent positions in its conduct of this appeal in so far as it argued that the Judge had erred in finding, in relation to the Interpretation Preliminary Determination, that there was identity of parties to found an estoppel in respect of the ECA’s interpretation of cl 7 of the 1970 Agreement, whilst declining to take issue with his finding, in relation to the Governing Law Preliminary Determination, that the English Preliminary Decision … likewise gave rise to an estoppel, even though the latter finding shared the same foundation of identity of parties. That said, in BWG (at [57]), we held that the court should adopt a “granular approach” and view each defence mounted by a party separately in order to determine whether there was in fact any abuse of process. In that light, we were satisfied that the inconsistency we have just noted warranted at most that we disregard the Appellant’s arguments on the lack of identity of parties in relation to the interpretation of cl 7. In any case, these arguments were unpersuasive for the reasons given by the Judge, which we affirmed. None of this affected the Appellant’s other arguments, including those concerning identity of issues, given that the Governing Law Preliminary Determination and the Interpretation Preliminary Determination concerned quite distinct issues.

22 As to the doctrine of approbation and reprobation, in BWG, we held (at [118]) that this doctrine extended to the assertion of inconsistent positions against different parties in different proceedings, so long as the party against whom the doctrine was invoked had received an actual benefit arising from an earlier inconsistent position. In the present case, we did not think that the Appellant had received any such benefit as a result of the inconsistent positions it had taken. The Respondent also did not explain how any benefit to the Appellant had arisen beyond generally asserting that there was a benefit “in terms of costs consequences”.

[Underlining added]

52 In Jtrust Asia Pte Ltd v Group Lease Holdings Pte Ltd and others [2018] 2 SLR 159, this court cited with approval Lord Sumption’s statement in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 at [25], that “abuse of process is a concept which informs the exercise of the court’s procedural powers”. This court further explained that abuse of process is a concept by which the court ascertains whether the proceedings in question constitute an “improper use of its machinery” (at [99]). In Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [22] (albeit in the context of O 18 r 19(1)(d) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”)), this court also observed that abuse of process imports considerations of public policy and the interests of justice, and signifies that the process of the court must be used bona fide.

53 We also highlight that abuse of process is ultimately exercised at the court’s discretion, which depends on all the interests and circumstances of the case. As this court observed in Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal [2017] 2 SLR 760 at [38] and [44] (albeit in the context of a particular type of abuse of process known as the “Henderson rule”, ie, that a litigant may not make a case in litigation which might have been, but was not, made in previous litigation, as doing so may amount to an abuse of process):

[T]he court will exercise its discretion in such a way as to strike a balance between allowing a litigant with a genuine claim to have his day in court on the one hand and ensuring that the litigation process would not be unduly oppressive to the defendant on the other. The court will also be mindful of the considerations which led a claimant to act as he did … [emphasis in italics in original, underlining added]

54 The learned authors of Singapore Civil Procedure 2020, vol 1 (Chua Lee Ming gen ed) (Sweet & Maxwell, 10th Ed, 2020) made an observation at para 18/19/14 (in the context of O 18 r 19(1)(d) of the ROC), “The categories of conduct rendering a claim … an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material”. In sum, the doctrine of abuse of process has been developed to permit the courts to police their own processes and guard against abuse. This may entail balancing considerations of public policy and the interests of justice.

[Underlining added]

“The doctrine of approbation and reprobation precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he has exercised. It entails, for instance, that a person ‘having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit’: see Evans v Bartlam [1937] AC 473 at 483 and Halsbury’s Laws of Australia vol 12 (Butterworths, 1995) at para 190-35 where the doctrine of approbation and reprobation is conveniently summarised as follows:

A person may not “approbate and reprobate”, meaning that a person, having a choice between two inconsistent courses of conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course.

[Emphasis in original, underlining added]

118 Based on our survey of the above authorities, it is clear that the operation of the doctrine of approbation and reprobation does extend to inconsistent positions asserted against different parties in different proceedings, as long as the party has received an actual benefit as a result of an earlier inconsistent position. This is illustrated by cases such as Express Newspapers and First National Bank, where the doctrine was applied because the parties who sought to advance inconsistent positions had already secured actual benefits from their prior positions.

[Underlining added]

(a) the decision, whether domestic or foreign, was judicial in the relevant sense;

(b) it was in fact pronounced;

(c) the tribunal had jurisdiction over the parties and the subject matter;

(d) the decision was final on the merits;

(e) it determined a question raised in the later litigation; and

(f) the parties are the same or their privies, or the earlier decision was.

43 … in order for a foreign judgment to give rise to issue estoppel, not only the foreign judgment as a whole, but also the decision on the specific issue that is said to be the subject matter of the estoppel must be final and conclusive under the law of the foreign judgment’s originating jurisdiction. This must follow from the awareness that in certain jurisdictions, binding effect might be accorded to the result arrived at in a judgment, but not to the reasons, intermediate steps or other elements that led to that result even if they are stated in the judgment, such that even an essential part of the reasons in judgments from those jurisdictions might not be binding and therefore should be incapable of giving rise to issue estoppel. As noted in Civil Jurisdiction and Judgments at para 7.82, “the court may have recited the considerations on which its judgment was formally based, but without intending them to have the status of decisions on the particular points”. … All this underscores the need to be alive to inter-jurisdictional differences, and to consider the expert evidence, if available, on what precisely the position is under the law of the foreign jurisdiction in question.

[Underlining added]

64 The test for transnational issue estoppel has been formulated as follows (Merck Sharp at [35]–[40]):

(a) the foreign judgment must be capable of being recognised in this jurisdiction, where issue estoppel is being invoked. Under the common law, this means that the foreign judgment must:

(i) be a final and conclusive decision on the merits;

(ii) originate from a court of competent jurisdiction that has transnational jurisdiction over the party sought to be bound; and

iii) not be subject to any defences to recognition;

(b) there must be commonality of the parties to the prior proceedings and to the proceedings in which the estoppel is raised; and

(c) the subject matter of the estoppel must be the same as what has been decided in the prior judgment.

…

69 We also acknowledge the helpful identification by the Court of Appeal of England and Wales in Good Challenger Navegante SA v Metalexportimport SA [2004] 1 Lloyd’s Rep 67 (“The Good Challenger”) (at [54]), of four important considerations that should guide the court in this context:

(a) It is irrelevant that the court invoking transnational issue estoppel may form the view that the decision of the foreign court was wrong either on the facts or on the law.

(b) The court must be cautious before concluding that the foreign court had made a final decision on the relevant issue because the procedures of the latter may be different and it may not be easy to determine the precise issues that were decided.

(c) The determination of the issue must be a necessary part of the foreign court’s decision.

(d) The application of issue estoppel is subject to the overriding consideration that it must work justice and not injustice (see also, PAO Tatneft v Ukraine [2021] 1 WLR 1123 (“PAO Tatneft”) at [34]). Thus, the correct approach is to apply the principles identified unless there are special circumstances such that it would be unjust to do so. Whether there are such special circumstances would of course depend on the facts of the case (The Good Challenger at [79]).

1. Whether the Order of the Court dated 12 September 2022, issued by the Honourable Judicial Commissioner Azlan Bin Sulaiman of the High Court of Malaya at Kuala Lumpur in WA-27NCC-32-07/2022 (“The Order”) constitutes a final order on the merits or were the proceedings to which the Order relates interlocutory proceedings?

2. If it was a final order, whether the specific issue as to the correct identity of the parties to the Charterparty dated 10 June 2022 necessarily arose for decision in those proceedings?

3. If it was a final order and the specific issue did arise, whether the Order was final was conclusive as to the identity of the Applicant as being a party to the Charterparty?

4. If it was a final order but the specific issue did not arise, whether the reference in the Order to the Applicant as being a party to the proceedings was necessarily conclusive in the particular circumstances of those proceedings as to the identity of the Applicant as being a party to the Charterparty?

5. To what extent, if at all, is a statement sworn on behalf of a company identifying the capacity in which that company is purporting to act conclusive?

(1)  The Admiralty jurisdiction of the High Court shall be as follows, that is to say —

(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);

…

(2)  The questions and claims referred to in subsection (1)(a) are —

…

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

…

(4)  In the case of any such claim as is mentioned in section 20(2)(e) to (r), where

(a)  the claim arises in connection with a ship; and

(b)  the person who would be liable on the claim in an action in personam ("the relevant person") was, when, the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,

an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—

(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.

… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter[s] which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

[Underlining added]

57 The policy behind the extended doctrine (as with the broader doctrine of res judicata) is that litigants should not be twice vexed in the same matter, and that the public interest requires finality in litigation: see The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 (“TT International”) at [98].

58 Drawing from these policy objectives, the essence of the extended doctrine thus concerns a collateral attack against prior decisions. In this regard, it is crucial to identify the relevant prior decision which is the subject matter of the collateral attack.

59 To the same end, in examining the extended doctrine, it is crucial to determine the nature of the claim and the essential issues in the earlier proceedings (whether in court or arbitration). In that regard, it will not be helpful to claim that the present action deals with claims which were not dealt with in the earlier proceedings. For the extended doctrine to apply, there is no requirement that the claims in the earlier proceedings should be the same as those pursued in court. In fact, the doctrine is extended precisely to apply to situations of claims and/or issues which were not raised earlier but which could and ought to have been raised in the previous action.

60 …

61 When undertaking an inquiry as to whether the extended doctrine applies, the court has a higher degree of flexibility as compared to situations of cause of action or issue estoppel. Lord Bingham of Cornhill, in the House of Lords decision of Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (“Johnson”) at 31D, saw the question of whether a litigant should be estopped from taking a point that could have been raised in earlier proceedings between the same parties not as a “dogmatic” inquiry, but rather, as a “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case”: TT International at [104]. To this end, the High Court in Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 (“Goh Nellie”) stated at [53] (as endorsed by this court in TT International at [104] and in Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal [2017] 2 SLR 760 at [38]):

“To put it shortly, a court should determine whether there is an abuse of process by looking at all the circumstances of the case, including whether the later proceedings in substance is nothing more than a collateral attack upon the previous decision; whether there is fresh evidence that might warrant re-litigation; whether there are bona fide reasons why an issue that ought to have been raised in the earlier action was not; and whether there are some other special circumstances that might justify allowing the case to proceed. The absence or existence of these enumerated factors (which are not intended to be exhaustive) is not decisive. In determining whether the ambient circumstances of the case give rise to an abuse of process, the court should not adopt an inflexible or unyielding attitude but should remain guided by the balance to be found in the tension between the demands of ensuring that a litigant who has a genuine claim is allowed to press his case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant. In the context of cases such as the present, the inquiry is directed not at the theoretical possibility that the issue raised in the later proceedings could conceivably have been taken in the earlier but rather at whether, having regard to the substance and reality of the earlier action, it reasonably ought to have been. …”

[Underlining added]

Song:  The benefit in this case is the affidavit filed, indicating willingness to arbitrate. Having relied on those statements, [the Respondent] has commenced arbitration proceedings. It is too late for you to take a diametrically different approach now.

Court:  What exactly is the benefit they gained from saying they were a party to the arbitration?

Song:  The matter has been stayed.

Court:  The benefit is obtaining the stay of Malaysian proceedings rather than to have to go through Malaysian courts to determine what? Whether there was a breach of the CP?.

Song:  Everyone was on the same page that there was an arbitration agreement and that this was a security arrest. In essence, what happens in in rem proceedings, the ship will be sold and proceeds paid into court. When the arbitration is completed and the award published, the successful party would have to go back to Malaysia to get paid from the proceeds of sale.

Court:  So let’s try to encapsulate the benefit you say that they have received.

Song:  The benefit that they have obtained is that they have managed to, in a way, get my client to start the arbitration, which was in accordance with your belief. Having taken that benefit, they have now decided they want to stop the arbitration.

No. Abuse of process and resiling from sworn statements is widest and easiest in terms of attacking the other side’s evidence and position. Approbation and reprobation is equally strong except that Your Honour has concern over the benefit point. Henderson, subject to what we find on “should”, is equally strong. It can stand on its own. There are overlaps between abuse of process and Henderson, but I was zooming in more on the inconsistent statements under abuse of process.

… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case.

The primary function of the appellate court is to decide whether the judge at first instance has reached the right conclusion on the material before him. This material must include any concession made before him. If the appellate court were to be satisfied that the concession was made as the result of some misunderstanding or for some other reason justice required that the party should be allowed to withdraw it, [i]t might allow the withdrawal of the concession. Otherwise the concession must hold.

[Underlining added]

1. A Declaration that the dispute in the [Arbitration] is non-arbitrable as the dispute involves an issue regarding the public policy of Singapore.

2. A Declaration that the Charterparty contract dated 10 June 2022 with [the Respondent] as the Charterer for the [Vessel] for the carriage of a cargo of palm oil to Iran is unenforceable as it is against the public policy of Singapore.

13. DUE TO BANKING SANCTIONS, OWNERS AGREE FOR THE FOLLOWING ITEMS ON B/LS AND OTHER DOCUMENTS –

A) THE WORD “IRAN”; IF REQUESTED BY CHTRS, SHALL BE OMITTED FROM B/LS AND OTHER DOCUMENTS AND NOT TO BE SHOWN ANYWHERE.

B) THE SHIPPERS, BUYERS AND OTHER DETAILS TO BE INSERTED AS PER CHTRS’S REQUEST.

C) DISCHARGE PORT MAY BE MENTIONED “MIDDLE EAST (PORT)” OR “JEBEL ALI” OR “HAMRIYA” OR SOMEWHERE ELSE INSTEAD OF BANDAR ABBAS AND BIK AS PER CHTRS INSTRUCTIONS.

11.—(1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so.

(2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration does not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration.

(2) An arbitral tribunal may rule on a plea that it has no jurisdiction at any stage of the arbitral proceedings.

(3) If the arbitral tribunal rules —

(a) on a plea as a preliminary question that it has jurisdiction; or

(b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction,

any party may, within 30 days after having received notice of that ruling, apply to the General Division of the High Court to decide the matter.

59. There is nothing nefarious with Clause 13 of the Fixture Recap contrary to what [the Applicant] seeks to suggest. Clause 13 simply provides that (1st [C], p 14):

60. The purpose of Clause 13 was in fact to ensure that [the Respondent] complies with all relevant sanctions and national laws.

61. [The Respondent] undertakes a significant volume in Iran. At all material times, the supply of food products to Iran has been exempt from any sanctions laws applicable to [the Respondent] and other major agricultural trading companies. As [the Applicant is] well aware, [the Respondent] is involved, amongst others, in the international trading of palm oil and its products. The subject voyage was in fact for the carriage of crude / refined palm oil products and [the Applicant] had expressly agreed to carry the cargo to Iran. The Iran trade however inevitably contains risks since the geopolitics in the Middle East / Gulf region are extremely volatile and are susceptible to swift and sudden changes. One such risk is if the United States were to change its position or tighten restrictions on commodity trade with Iran, including the palm oil trade, while cargoes are afloat enroute to Iran.

62. To ensure that it is able to comply with the relevant sanctions regimes, to cater for changes, and to maintain flexibility in its shipments, [the Respondent] expressly put in place a mechanism in the form of Clause 13 (and Clause 11) in the Fixture Recap, to allow [the Respondent] to direct the cargo to be shipped to the Middle East or elsewhere, if necessary. As the cargo approaches the Persian Gulf, [the Respondent] conducts continual monitoring to assess the prevailing geopolitical situation and determine whether the cargo can continue to be legally shipped to Iran. If there are perceived risks, the cargo can instead be discharged in the UAE with the mutual agreement of [the Applicant] in order to safeguard the cargo and the Vessel.

63. In this regard, what is material is not only Clause 13, which cannot be plucked out in isolation, but also Clause 11, which provides that: “CHTRS WILL HAVE AN OPTION FOR SWITCHING B/LS AT LOADPORT, SINGAPORE, INDIA, UAE, AND ANY OTHER PORT. B/L SWITCH PROCEDURES AND PROCESS IS FULLY ACCEPTABLE BY OWNERS …” as well as the discharge port clause, which provides that the discharge ports are “IN CHTRS OPTION”.

64. These clauses are the mechanism by which [the Respondent] ensures that it is able to comply with all applicable laws whilst maintaining commercial flexibility. There is nothing nefarious about Clause 13.

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this Article.

(2) An arbitral award may be set aside by the court specified in Article 6 only if:

…

(i) the subject matter of the dispute is not capable of settlement by arbitration under the law of this State; or

(ii) the award is in conflict with the public policy of this State.

…

[Underlining added]

131 Although the parties have not focused their attention on the source of the court’s power to grant declaratory relief in the arbitration context, we think it is important to first establish the source of the power, which is the first precondition to granting declaratory relief.

132 Certain areas of declaratory relief in the context of arbitration are statutorily provided for. This includes a declaration that an arbitral tribunal has or does not have jurisdiction, upon an application by a party to the arbitration pursuant to s 10(3) of the IAA or Art 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”) (see International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2014] 1 SLR 130 at [11] and [63]; BCY v BCZ [2017] 3 SLR 357 at [35] and [97]). But apart from these specific statutory provisions, our courts also have wide-ranging powers to grant declaratory relief in respect of a Singapore-seated arbitration. For instance, this court in AKN and another v ALC and others and other appeals [2016] 1 SLR 966 granted a declaration that the claims and any relevant defences arising from the setting aside of a specific part of an arbitral award remained to be determined between the relevant parties (at [68]). This is not a form of declaratory relief explicitly mentioned in the IAA or the Model Law.

133 In our judgment, this wide-ranging power to grant declaratory relief is derived from s 18 of the SCJA, read with para 14 of the First Schedule to the SCJA; both provisions, read together, confer on the court the “[p]ower to grant all relief and remedies at law and in equity”. In addition, O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) clarifies that it is possible to seek only a mere declaratory judgment or order from the court. The power to grant declaratory relief applies in all cases, including proceedings in the context of arbitration.

134 This, however, is not an unfettered power. In the context of arbitration, Article 5 of the Model Law provides that “[i]n matters governed by [the Model Law], no court shall intervene except where so provided in [the Model Law]”. The raison d’être of this rule is not to promote hostility towards judicial intervention but to satisfy the need for certainty as to when court action is permissible: LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal [2013] 1 SLR 125 (“LW Infrastructure”) at [36]. This court in LW Infrastructure found that certain provisions, such as s 47 of the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Act”) should be read consistently with Art 5. The upshot of this is that in situations that are expressly regulated by the Act, the courts should only intervene where so provided in the Act (at [39]) (this position should similarly apply in the IAA context). In LW Infrastructure, this court upheld the High Court’s decision not to declare that an arbitral award was deemed a nullity, because the Act already makes provisions for seeking relief in such circumstances, ie, to set aside the award under s 48(1)(a)(v) of the Act. This court then concluded that where relief has been provided in the Act, there is simply no basis for finding that there is any residual or concurrent jurisdiction for the court to make a declaration as to the validity of the award (at [42]).

135 However, in the present case, unlike LW Infrastructure, there is no specific provision in the IAA or the Model Law which addresses the specific declarations granted by the Judge. Hence, nothing in the IAA and the Model Law circumscribes the court’s power to grant the declaratory relief sought by Hilton under s 18 of the SCJA, read with para 14 of the First Schedule to the SCJA.

[Underlining added]

24 The claimant submitted, on the strength of Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732 (“Sun Travels”) (at [132]), that this court had “wide-ranging powers [under the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”)] to grant declaratory relief in respect of a Singapore-seated arbitration”. This did not assist the claimant.

25 First, Sun Travels does not support the proposition that the court may grant declarations in breach of express provisions of the SIAC Rules. On the contrary, Sun Travels upholds the policy of minimal curial intervention, as summarised by the Court of Appeal in COT v COU and others and other appeals [2023] SGCA 31 (at [1]):

The policy of minimal curial intervention in arbitral proceedings is well settled in our arbitration jurisprudence … This policy is engendered by considerations of party autonomy and the finality of the arbitral process, dictating that the courts should act with a view to “respecting and preserving the autonomy of the arbitral process” … Thus, curial intervention is warranted only on limited grounds.

36 The effect of Art 5 of the Model Law is to confine the power of the court to intervene in an arbitration to those instances which are provided for in the Model Law and to “exclude any general or residual powers” arising from sources other than the Model Law (see H M Holtzmann & J E Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Kluwer Law and Taxation Publishers, 1989) (“Holtzmann & Neuhaus”) at p 216). The raison d’être of Art 5 of the Model Law is not to promote hostility towards judicial intervention but to “satisfy the need for certainty as to when court action is permissible” (ibid).

37 Article 5 of the Model Law has been described as “being comparable” with s 47 of the Act (see Chan Leng Sun SC, Singapore Law on Arbitral Awards (Academy Publishing, 2011) (“Singapore Law on Arbitral Awards”) at para 4.13). Section 47 of the Act provides:

38 In our view, having regard to the need for a broadly consistent approach to the interpretation of the Act and the Model Law, s 47 of the Act should be construed in a manner that is consistent with the intent underlying Art 5 of the Model Law. Section 47 of the Act states that the court shall not have jurisdiction to interfere with an arbitral award except where so provided in the Act. The certainty which is sought to be achieved by this provision would be significantly undermined if the courts retained a concurrent “supervisory jurisdiction” over arbitral proceedings or awards that could be exercised by the grant of declaratory orders not expressly provided for in the Act.

[Underlining added]

Ms Song:  I was looking at provisions, O 16 r 8(1) – [reads]. I think the phrase there is “who may submit on questions of foreign law” as opposed to just in a traditional method where one would be putting in principles of foreign law in an expert report.

Court: You’re saying that the correct interpretation of O 16 r 8(1) goes wider than allowing the expert to instruct the court on what the applicable principles are, and instead allows the expert to make submissions on how to apply those principles to the facts of the case?

Ms Song:  Yes, Your Honour, because we were just discussing earlier on as to the limits to impose on English counsel appearing before Your Honour. Looking at O 16 r 8(1), it seems to suggest that the expert may make submissions before Your Honour, as opposed to an expert in the traditional scenario.

8.—(1)  The Court may, on the application of a party, order that a question of foreign law be determined on the basis of submissions instead of proof, specifying one or more persons who may submit on the question of foreign law, and such further orders and directions as may be appropriate with regard to such determination.

[Underlining added]

34.  In line with the international character of the SICC, foreign law need not be pleaded and proved as fact in proceedings before the SICC, as the Judges can take judicial notice of foreign law with the assistance of oral and written legal submissions, supported by relevant authorities. The SICC would then apply foreign law to determine the issues in dispute. This would facilitate buy-in from foreign counsel to bring their disputes to the SICC and, at the same time, aligns SICC procedure with the practice in international arbitration. Notwithstanding the position on the applicable conflict of laws rules, consideration should be given to the extent to which Singapore’s public policy would be applicable in each case, and if so, the relevant implications it might have on the resolution of SICC disputes.

[Underlining added]

36  As a division of the Singapore High Court, proceedings before the SICC will be governed by the LPA [Legal Profession Act 1966]. Presently, parties can only be represented by members of the Singapore Bar, subject to the discretion of the court to admit Queen’s Counsel or foreign lawyers of equivalent distinction on an ad hoc basis in certain cases. This position will also apply to cases transferred from the Singapore High Court to the SICC.

37  It is intended that special rules apply for cases which have no substantial connection to Singapore. What constitutes the absence of substantial connection will be further refined in consultation with stakeholders, but will include cases in which either (i) Singapore law is not the governing law; or (ii) the choice of Singapore law is the sole connection to Singapore; foreign counsel may appear before the SICC in such cases if they are registered with the SICC. Provision should be made under the SICC Rules to allow any party to apply to the court to disallow foreign counsel if they can show sufficient cause that (i) or (ii) does not apply in the case at hand.

[Underlining added]

25.—(1)  The Court may, on the application of a party, order that any question of foreign law be determined on the basis of submissions (which may be oral or written or both) instead of proof.

(2) Before making an order under paragraph (1), the Court must be satisfied that each party is or will be represented by a counsel, restricted registration foreign lawyer or registered law expert who is suitable and competent to submit on the relevant question of foreign law.

[Underlining added]

3.—(1)  “Offshore case” means an action that has no substantial connection with Singapore, but does not include the following:

(a) Any proceedings under the International Arbitration Act that are commenced by way of any originating process.

…