[2024] SGHC(I) 31, DKB v DKC - Judgment, Outcome & Holding

Key facts

Court	Singapore International Commercial Court
Decided	25 October 2024
Judge	Thomas Bathurst
Charges / claim	Civil Procedure
Outcome	Application dismissed
Counsel	A.Ang, Seah & Hoe, Allen & Gledhill LLP, Ang Cheng Ann Alfonso, Chong Yee Leong, James Ch'ng Chin Leong, KarLuis Quek, Liew Pei Jun Annette, Ng Ying Ning Theodora

Source: [2024] SGHC(I) 31, Singapore International Commercial Court, decided 25 October 2024 — eLitigation. Updated 25 June 2026.

Catchwords

Civil Procedure — Foreign law — Whether question of foreign law to be determined by submissions or proof

Practice Areas

Civil Procedure

Judges (1)

Thomas Bathurst Delivered

Counsel (8)

A.Ang, Seah & Hoe Firm Allen & Gledhill LLP Firm Ang Cheng Ann Alfonso Counsel Claimant Chong Yee Leong Counsel Defendant James Ch'ng Chin Leong Counsel Claimant KarLuis Quek Counsel Defendant Liew Pei Jun Annette Counsel Defendant Ng Ying Ning Theodora Counsel Defendant

Parties (2)

DKB Claimant DKC Defendant

Summary

SUPREME COURT OF SINGAPORE

11 November 2024

Case summary

Singapore International Commercial Court – Originating Application No 10 of 2024

(Summons No 46 of 2024)

DKB v DKC [2024] SGHC(I) 31

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Grounds of decision of the Singapore International Commercial Court (delivered by International Judge Thomas Bathurst):

Outcome: The Singapore International Commercial Court dismissed an application for foreign counsel to make submissions to the Court on English law in SIC/OA 10/2024.

Background

1 A Swiss-seated arbitration between “B” and “DKC” resulted in a Final Award being issued in favour of B (the “B Award”) on 9 October 2023. “DKB” is the Assignee of the Final Award. A Settlement Deed was entered into between DKB, DKC, “C” and “D”, whereby it was agreed that D would transfer its shares in another company to C, in consideration of certain sums being paid from C to D. On payment of those sums, DKC would be released from its obligations under the B Award. Importantly, cl 6.2 of the Settlement Deed provided that any dispute arising thereunder would be settled by way of arbitration.

2 DKB initially applied for, and was granted, leave to enforce the B Award in Singapore. In response, DKC applied for two orders: first, that all further proceedings in the action brought by DKB be stayed (HC/SUM 1177/2024) (the “Stay Application”); and second, that the order granting leave for DKB to enforce the B Award be set aside (HC/SUM 1133/2024).

3 DKB claimed that that the Stay Application should be dismissed as the payments required under the Settlement Deed had not been made, constituting a breach of the same. On the other hand, DKC contended that there was no breach because any payments would constitute a breach of United States sanctions, rendering it legally impossible to make the required payments. More pertinently, DKC contended that there was a dispute under the Settlement Deed which had to be resolved in accordance with the arbitration provision therein, and that any enforcement of the B Award had to await the resolution of that arbitration.

4 Against this backdrop, DKB sought leave to file two affidavits to adduce expert evidence on United States and English law (SIC/SUM 25/2024). It sought to adduce an expert opinion on English law which set out why, in circumstances relating to US sanctions, there was no dispute under the Settlement Deed. It also sought to adduce expert opinion to prove that, under English law, not every dispute under the Settlement Deed would require arbitration. On 2 August 2024, Bathurst IJ granted leave to DKB to file evidence of English law on the two matters above. Pursuant to those directions, DKB filed an expert opinion by Mr Andrew Lomas whilst DKC in response filed a report by Mr Ng Jern-Fei KC.

5 After the reports were filed and exchanged, DKB then applied, in SIC/SUM 46/2024 (“SUM 46”), for an order that Mr Roderick Cordara KC be entitled to appear before the Court to make submissions on behalf of DKB on English law. It justified its application on two grounds: first, that English law would be relevant to the determination of the Stay Application; and second, that there were issues of English law that could not be sufficiently addressed by the written materials that had been furnished up to that point. DKC opposed SUM 46.

The court’s decision

6 The application in SUM 46 was dismissed on 18 October 2024 (with grounds of decision issued on 25 October 2024).

7 Order 16 r 8(1) of the Singapore International Commercial Court Rules 2021 provides an alternative method of determining a question of foreign law on the basis of submissions instead of by proof, thus obviating the need and correlative expense for experts to give evidence. The rule plainly was not intended to provide for evidence by way of experts’ reports on the issue of foreign law together with submissions by separate counsel or a foreign law expert on the relevant question: at [30].

8 Regardless of the reasons why it may have been desirable for the question of foreign law to be dealt with by way of submissions, DKB had chosen the alternative course, Bathurst IJ had given leave for expert evidence to be led on the question, and both parties had filed experts’ reports dealing with the issue. Since this was the case, it would be inappropriate to order submissions to be made by separate counsel on the same question, with the consequent cost and disruption to DKC: at [31].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

What was DKB v DKC [2024] SGHC(I) 31 about?

DKB, assignee of a US$315,913,822.32 Swiss-seated arbitration award (the B Award), had obtained leave under section 29 of the International Arbitration Act to enforce it. DKC applied to stay proceedings under section 6 and to set aside that order, relying on a 2017 Settlement Deed.

What procedural question did DKB v DKC [2024] SGHC(I) 31 raise?

Per its catchwords, the Singapore International Commercial Court case, decided by Thomas Bathurst IJ on 25 October 2024, raised the civil-procedure question of whether a question of foreign law is to be determined by submissions or by proof.