Blackstone Asia Real Estate Partners Limited (In Liquidation) & 2 Ors v Standard Chartered Bank (Singapore) Limited

Facts

Blackstone Asia Real Estate Partners Ltd and Brazen Sky Ltd are British Virgin Islands companies in insolvent liquidation there. Their liquidators, Angela Barkhouse and Toni Shukla, say the companies were shells used to move money misappropriated from 1MDB and SRC International Sdn Bhd. Blackstone held an account with Standard Chartered Bank (Singapore) Ltd, used between December 2010 and February 2013, and Brazen Sky an account with BSI Bank Ltd, used between September 2012 and November 2014. The liquidators were recognised in Singapore as foreign representatives under the UNCITRAL Model Law on Cross-Border Insolvency as enacted in the Third Schedule to the Insolvency, Restructuring and Dissolution Act 2018 (IRDA).

They applied in the High Court for orders giving them standing to sue the banks and several former BSI bankers for fraudulent and wrongful trading under ss 238 and 239 of the IRDA and the equivalent provisions of the old Companies Act, relying on the court's general power to grant relief under Art 21(1)(g). The judge dismissed the applications, holding that Art 23(9) barred such claims for transactions entered into before the Model Law came into force. The companies and liquidators appealed in Civil Appeals No 43 and No 44 of 2025, heard by Sundaresh Menon CJ, Ang Cheng Hock JCA and Kannan Ramesh JAD.

Issues

1. Whether Art 23(9) of the Singapore Model Law bars the grant of standing to a foreign representative to bring fraudulent and wrongful trading claims based on transactions entered into before the Model Law came into force
2. Whether the court's general power to grant relief under Art 21(1) can be used to grant such standing despite Art 23(9)

Holding

The Court of Appeal dismissed both appeals, holding that Art 23(9) is an absolute bar to a foreign representative bringing claims under the avoidance and misconduct provisions for pre-Model Law transactions, and that Art 21(1) cannot be used to get around it. The judge's costs orders stood, and the appellants were ordered to pay the banks $25,000 (all-in) each and reduced sums to most of the bankers.

Reasoning

Applying the purposive approach in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 and Attorney-General v Ting Choon Meng [2017] 1 SLR 373, the court found that Art 23 is a self-contained regime governing a foreign representative's standing to invoke the avoidance and misconduct provisions, with detailed conditions and limits. Reading Art 21(1) as an alternative gateway would make nearly all of Art 23 pointless, offending the presumption that Parliament does not legislate in vain, and would let a general provision override a specific one. Relief under Art 21 and standing under Art 23 are different concepts. That Parliament deliberately added Art 23(9) to the model text strengthened the point.

On purpose, the court rejected reliance on the Model Law's broad aim of efficient cross-border insolvency as pitched at too high a level of generality, since Art 23(9) exists to qualify that aim. Its purpose is to prevent retrospective unfairness, as in Li Shengwu v Attorney-General [2019] 1 SLR 1081. Before the Model Law, a foreign company's liquidator either could not bring such claims at all or could do so only through a Singapore winding up. Parties dealing with these companies could not have foreseen this exposure. English consultation papers on the equivalent UK provision confirmed this reading. Using IRDA provisions, in force only from 30 July 2020, would be doubly retrospective, and s 239 would expose the banks and bankers to wrongful trading liability that did not exist when they acted.

On costs, the point was novel but the answer was clear from the text, so costs followed the event. Separate representation was reasonable given the appellants' merits-based argument, but the bankers' thin submissions justified heavy discounts.

From the judgment