DMF v DMG

Facts

DMF v DMG and another matter concerned Originating Application Nos 26 and 27 of 2024, transferred from the General Division of the High Court to the Singapore International Commercial Court on 4 December 2024. Both arose from an SCMA arbitration begun on 10 August 2022 by DMG, a Singapore food and agriculture company, against DMF, a Hong Kong company that was demise charterer of a tanker.

A charterparty of 10 June 2022, evidenced by a broker's recap email, was for carriage of palm oil from Indonesia to Iran. The recap named DMG as charterer, DMF as "Registered Owners" and another company as "Disponent Owners", and an addendum of 17 June 2022 described the charter as between DMG, DMF and that company. The recap's clause 13 let the charterer have the word Iran omitted from bills of lading and another discharge port named. After the vessel left the load port without cargo, DMG arrested her in Malaysia. DMF's manager swore affidavits there describing the charterparty as made between DMG and DMF, and DMF's application to set aside the arrest was dismissed on 12 September 2022. The vessel then broke arrest.

In the arbitration a majority of the tribunal held DMF was a party to the charterparty. By OA 26 DMF sought a court ruling that it was not a contractual party. By OA 27, inconsistently, it sought declarations that the dispute was non-arbitrable and the charterparty unenforceable as contrary to Singapore public policy, relying on clause 13.

Issues

1. Whether, construed under English law, DMF was a party to the charterparty and its arbitration clause
2. Whether DMF's conduct in the Malaysian proceedings would in any event bar it from denying it was a party
3. Whether the court should declare the dispute non-arbitrable or the charterparty contrary to public policy
4. What O 16 r 8 of the SICC Rules allows foreign law submitters to address

Holding

The court dismissed both OA 26 and OA 27, holding DMF a party to the charterparty and bound by the arbitration clause, and leaving illegality and public policy to the tribunal. It directed the parties to file costs schedules within 14 days, separating costs by stage and issue, followed by written submissions on costs.

Reasoning

Hearing the jurisdiction question afresh and applying the English approach in Marley v Rawlings [2015] AC 129, the court rejected DMF's claim of a trade custom that only the disponent owner is party to a charterparty; the textbooks and cases cited did not show one. Reading the recap through the eyes of an informed reader, the listing of both companies under the heading of owners, the undifferentiated use of "Owners" throughout, and the shared office and email shown in the vessel questionnaire meant DMF was named as a party, not for information. The addendum, though it could not create party status by itself, expressly named DMF and would have resolved any ambiguity.

The court also considered the alternative estoppel grounds in case of appeal and for costs. Issue estoppel failed because the Malaysian order refusing to set aside the arrest was not final and did not need to decide who the parties were. Under the extended Henderson v Henderson doctrine the real failure was not reserving the point, and barring it would be unjust since there was no collateral attack or repeated litigation. Approbation and reprobation needed a benefit, and DMF gained none, as DMG had itself planned to arbitrate. DMG's argument that DMF could not resile from its affidavit admissions turned on the same discretion and failed for the same reasons.

On OA 27, whether clause 13 incited illegality or was, as DMG said, a mechanism for sanctions compliance was a dispute within the arbitration clause, and DMF had already pleaded it in the arbitration. Following Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd [2019] 1 SLR 732 and LW Infrastructure, the court would not use its general declaratory power to pre-empt the tribunal where the Model Law provides for setting aside under Art 34.

Finally, O 16 r 8 lets foreign law be determined on submissions instead of proof, but does not let a foreign law submitter argue the substance of the case.

From the judgment