AASTAR TRADING PTE LTD v OLAM GLOBAL AGRI PTE LTD

Facts

Aastar Trading Pte Ltd agreed in two contracts to sell Indonesian palm olein to Olam Global Agri Pte Ltd on PORAM standard terms, with arbitration seated in Malaysia. In July 2022 the vessel Olam had chartered left the load port before loading; Aastar said its cargo was ready, while Olam's case was that it was not. Olam later told Aastar it could not perform, and Aastar treated this as repudiation. The first-tier PORAM tribunal awarded Aastar US$18,588,750. On Olam's appeal, Aastar produced for the first time four letters from its suppliers said to show cargo readiness; Olam alleged they were not authentic and asked the Appeal Board to order production of the original e-mails. A majority of the Appeal Board found for Aastar and recalculated damages at US$17,421,750 in the Final Appeal Award of 8 August 2024, without ruling on Olam's request or the authenticity issue; a dissenting arbitrator would have allowed Olam's appeal in full.

Aastar obtained permission in Singapore to enforce the award in HC/OA 901/2024. Olam applied to the Malaysian High Court to set the award aside and, by HC/SUM 2764/2024, asked the Singapore court to adjourn enforcement under s 31(5) of the International Arbitration Act 1994.

Issues

1. Whether Olam's setting aside application in Malaysia was brought in good faith rather than to delay enforcement.
2. How strong the setting aside application appeared on a preliminary view.
3. Whether an adjournment would make enforcement harder or cause undue delay to Aastar.
4. Whether comity with the seat court favoured an adjournment.

Holding

The High Court granted Olam's application and ordered the Singapore enforcement proceedings adjourned pending the final determination of the Malaysian setting aside application, holding the rest of the summons in abeyance and reserving costs.

Reasoning

Applying the multi-factorial approach in Man Diesel Turbo SE v IM Skaugen Marine Services Pte Ltd [2019] 4 SLR 537, the court weighed the relevant factors to reach the most just outcome.

Olam had filed in Malaysia within seven weeks of the award, well inside the 90-day limit, and its voluminous papers showed preparation had begun before Aastar served the enforcement order, so the application was bona fide.

On a brief consideration, Olam had a properly arguable case that the majority breached the fair hearing rule by not deciding whether the letters were authentic: the issue was arguably essential to cargo readiness, the findings were silent on it, the request for e-mails was never ruled on, and the dissent treated it as decisive. The award was therefore neither manifestly valid nor manifestly invalid; the court expressed no view on Olam's other grounds.

Olam was a solvent subsidiary of a listed group, there was no evidence of dissipation, and Aastar had not sought security, so enforcement would not become harder. The estimated six to nine months before the Malaysian hearing was not unduly long.

Comity also weighed in favour: the Singapore and Malaysian grounds overlapped, risking inconsistent decisions; production and subpoena applications were pending in Malaysia; and the arbitration arose under a Malaysian trade association's rules, enhancing deference to the seat court.

From the judgment