PRAYUDH MAHAGITSIRI v NESTLE S.A.

Facts

Mr Prayudh Mahagitsiri, a Thai businessman, and Nestle S.A. were 50:50 partners in Quality Coffee Products Ltd (QCP) under a joint venture agreement dated 1 January 1990 (the JVA). On 9 December 2022 Nestle gave notice terminating the JVA with effect from 31 December 2024. The parties disagreed on the validity of the termination and on Nestle's obligations, in particular under cl 10.3 (assistance in preparing for QCP's operations after termination) and cl 8.4 (a first option for any entry by Nestle into the regular coffee business in Thailand).

Nestle began ICC Arbitration Case No. 27529/HTG/YMK, seated in Singapore, and Mr Mahagitsiri counterclaimed. After a nine-day hearing in London, the tribunal issued a Final Award on liability on 20 December 2024, largely in Nestle's favour. Mr Mahagitsiri applied in HC/OA 198/2025 to set aside the award, and in HC/SUM 1653/2025 to set aside HC/ORC 2800/2025, which had granted Nestle permission to enforce it. The parties agreed that the outcome of OA 198 would decide SUM 1653.

Issues

1. Whether the tribunal failed to consider the applicant's legal authorities, expert evidence and Roland Berger proposals on the Clause 10.3 Issue.
2. Whether the tribunal breached the fair hearing rule by relying on the parties' reputation and experience in interpreting cl 8.4.
3. Whether the tribunal's reference to Excelsior Group, a case not cited by either party, denied the applicant a fair hearing.
4. Whether the tribunal ignored later submissions and 2024 events or prejudged the dispute.

Holding

The High Court dismissed both OA 198 and SUM 1653, finding no breach of natural justice under s 24(b) of the International Arbitration Act 1994 and no inability to present the case under Art 34(2)(a)(ii) of the Model Law. The court said it would hear the parties on costs.

Reasoning

The court applied the Soh Beng Tee requirements and noted that a tribunal need only deal with essential issues; any inference that it wholly failed to consider a point must be clear and virtually inescapable, and silence in an award is inherently ambiguous.

On cl 10.3, the tribunal held that Nestle's obligation was secondary, to assist the other parties in their taking of all reasonable measures. Authorities on the meaning of all reasonable measures were therefore superfluous. The expert evidence on the Toll Manufacturing Proposal went to a point that was not on the agreed list of issues, and the Hofbauer Report did not concern that proposal at all. The tribunal had asked questions about the Roland Berger proposals at the hearing, and its remark that no developed proposal was submitted more likely reflected its view of those proposals than a failure to consider them.

On cl 8.4, the factual matrix at the time of contracting was a recognised interpretive factor, and the applicant himself had relied on the parties' unequal bargaining power, so a reasonable litigant could foresee the tribunal's reasoning. In any event the factor was one of several, and the result would have been the same. The passage from Excelsior Group was largely reproduced in Globe Motors, which the applicant had cited, so the reasoning was neither unforeseeable nor lacking nexus to the arguments.

The complaint about later submissions and 2024 events was put in a blunderbuss way without identifying what was ignored, and the award referred to 2024 events. With the other complaints rejected, the claim of prejudgment had no foundation.

From the judgment