DNZ v DOA & Anor

Facts

DNZ, an EU Member State, applied in the Singapore International Commercial Court (Originating Application No 2 of 2025) to set aside the Final Award issued under the Energy Charter Treaty in PCA Case No 2021-06, seated in Singapore. The defendants, DOA and DOB, are two UK companies; DOB owned 72% of a company that undertook an energy project in the State, and both were part of a group ultimately owned by companies from a non-EU "State X". The State X holding company brought a separate arbitration under a bilateral investment treaty, and the UK companies began the ECT arbitration the next day before the same tribunal.

The tribunal found the State liable for breaching Arts 10 and 13 of the ECT and awarded damages equal to 72% of the bilateral treaty award, with payment of that award extinguishing liability under the ECT award. The State raised five objections: that intra-EU arbitration under Art 26 of the ECT was invalid, relying on the CJEU's rulings in Achmea and Komstroy and the UK's status during the Brexit transition period; that the UK companies had no protected investment; that a fork-in-the-road clause barred the claim because of the earlier treaty arbitration; that upholding the award offended public policy; and that it was denied natural justice in the tribunal's calculation of damages.

Issues

1. Whether the intra-EU objection deprived the tribunal of jurisdiction under Art 26 of the Energy Charter Treaty
2. Whether the UK companies held a protected investment and whether the fork-in-the-road provision barred the ECT arbitration
3. Whether upholding the award would be contrary to Singapore public policy
4. Whether the tribunal's damages methodology breached natural justice

Holding

The court dismissed the State's application to set aside the ECT award, rejecting all five objections. The parties were directed to file costs submissions by 30 January 2026 unless costs were agreed.

Reasoning

On the intra-EU objection, both sides accepted that international law governed the arbitration agreement under the framework in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 349. The court held that the primacy of EU law operates within the EU legal order, not on the wider international plane before a court of a third State, and treated Art 26 as a multilateral obligation owed to all parties, not a bilateral one that two States could disapply. Art 16 of the ECT, the lack of a disconnection clause, and the fact that the 2019 and 2024 Declarations were not agreed by all parties meant Art 26 had not been modified or superseded under the Vienna Convention. Even if consent had been defective when the arbitration began, the defect was cured once EU law ceased to apply in the UK, applying the Mavrommatis doctrine.

On investment, shares owned directly or indirectly fell within the ECT definition, so the Salini criteria were not needed, consistent with Swissbourgh Diamond Mines (Pty) Ltd v Kingdom of Lesotho [2019] 1 SLR 263; further evidence admitted showed the shares were paid for, and funding from a related company did not matter. On the fork in the road, Art 26 refers to "the Investor", meaning the same investor, and the State X company was a different party bringing a different treaty claim.

On public policy, applying PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597, an award contrary to EU law does not shock the conscience in Singapore, and any conflicting obligations flowed from treaties the State chose to join.

On natural justice, applying Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86, the State had itself supplied the sensitivity spreadsheet the tribunal used, its own submissions highlighted evidence that the model could be adjusted, and it never updated the spreadsheet or said it could not be used. Errors in calculation are not grounds to set aside where a party had a full opportunity to present its case.

From the judgment