DMZ v DNA

Facts

The defendant, DNA, sold oil products to the claimant, DMZ, under four contracts that provided for SIAC arbitration under the 2016 SIAC Rules, and the parties later signed an agreement extending a payment deadline under one of them. On 24 June 2024 DNA filed a notice of arbitration. After SIAC asked which arbitration agreements it was invoking, the Registrar of the SIAC decided on 9 July 2024 that the arbitrations had commenced on 3 July 2024.

DMZ then argued that DNA's claims were time-barred because the arbitrations started more than six years after the sums fell due. DNA asked the Registrar to correct the date, and after submissions from both sides the Registrar revised it to 24 June 2024 on 30 July 2024. More than two months later DMZ filed HC/OA 1050/2024 against DNA and the SIAC, seeking declarations that the 30 July decision was unlawful and that the arbitrations began on 3 July 2024.

DNA was in insolvency proceedings in Hong Kong that had been recognised in Singapore, so DMZ needed the court's permission to proceed. It applied for permission in Originating Application No 1222 of 2024.

Issues

1. Whether permission should be granted to proceed with OA 1050 against a company whose foreign insolvency had been recognised
2. Whether the court had power to review the SIAC Registrar's decision on the commencement date
3. Whether the Registrar could reconsider and revise his own decision on the commencement date

Holding

Hri Kumar Nair J dismissed the application for permission and ordered DMZ to pay costs on an indemnity basis, holding that OA 1050 was legally unsustainable and an abuse of process.

Reasoning

The judge accepted that there had been no delay and no real prejudice to creditors, so the application turned on whether OA 1050 could succeed. Since the facts were undisputed and the issues were questions of law, permission should be refused if the proposed claim would clearly fail.

The relationship between the parties and the SIAC was contractual, but Rule 40.2 of the SIAC Rules expressly waived any right of appeal or review of the Registrar's decisions to any court, subject to exceptions that did not apply. The court's power to grant declarations did not extend to overriding that provision, and the International Arbitration Act did not allow review of such decisions. OA 1050, though framed as declarations, was in substance a back-door appeal and was itself brought in breach of the SIAC Rules. A party who thinks the Registrar acted wrongly may instead challenge the eventual award under Art 34(2)(a)(iv) of the Model Law as an arbitral procedure not in accordance with the parties' agreement.

In any event, OA 1050 lacked merit. Rule 40.1 makes the Registrar's decisions conclusive and binding on the parties and the tribunal, but does not stop the Registrar from reconsidering them. Fixing a commencement date is an administrative decision, and such decisions may be revisited, particularly where the first one was made without hearing the parties. Allowing reconsideration fits the duty to ensure a fair, expeditious and economical arbitration, and it made no difference that DNA had asked for it. The complaint that the 30 July decision was arbitrary was simply an attempt to argue it was wrong on the merits, which Rule 40.2 barred.

From the judgment