DSV and another v DSU

In 2022 DSU and DSV entered into a transaction documented under the 2002 ISDA Master Agreement and a confirmation governed by English law. Though an option in form, it was in substance a loan of about $192m to help DSV buy shares in a business in a country the court called Ruritania. DSW personally guaranteed DSV's obligations. A bankruptcy event of default arose if insolvency proceedings were instituted against a named associated entity, unless they were dismissed, discharged, stayed or restrained within 30 days.

On 22 January 2024 that entity's lenders applied to the Ruritanian insolvency tribunal to start an insolvency process. DSU treated this as an event of default, terminated the transaction, demanded the early termination amount, and began a Singapore-seated arbitration, obtaining a worldwide freezing order from an emergency arbitrator. Before the emergency arbitrator, the claimants argued that the filing was not institution of proceedings and that the application had effectively been stayed within 30 days. At their request the tribunal proceeded on pleadings, and they did not oppose DSU's application for early determination. At the hearing the tribunal ruled that the stay point had not been pleaded, then issued a partial final award dated 14 July 2025 ordering payment of about $300m with interest and reserving its jurisdiction over continued freezing relief. DSV and DSW applied in Originating Application No 1153 of 2025 to set the award aside. Vinodh Coomaraswamy J heard the application.

1. Whether the tribunal breached natural justice by excluding the unpleaded stay issue.
2. Whether the tribunal departed from the agreed arbitral procedure, including by fixing the quantum at the hearing.
3. Whether the tribunal exceeded its powers by reserving jurisdiction over post-award freezing relief.
4. Whether complaints raised only in the supporting affidavit were before the court, and what costs should follow.

The question was not whether the tribunal was right but whether its process was fair. Having dropped reliance on Art 34(2)(a)(iii) of the Model Law, the claimants could not have the finding that the stay issue was unpleaded reviewed afresh. The tribunal reached that finding after hearing both sides, and its reading of the defence, which pleaded only the institution point and a separate argument about the impracticality of the 30-day period, was open to a reasonable and fair-minded tribunal. Submissions to an emergency arbitrator are not pleadings and do not define the issues in the substantive arbitration. The claimants never applied to amend, and they produced no evidence to show the stay point could have changed the result, so no prejudice was shown.

The agreed procedure was a pleadings-based reference that the claimants themselves sought, and the tribunal applied it; having obtained it, they could not approbate and reprobate. Quantum fell within a hearing meant to dispose of the whole claim and was a question of construction on which submissions were allowed. On the freezing relief, the tribunal exercised no jurisdiction: it deferred the question for further submissions, and the emergency arbitrator's order continued of its own force.

Complaints made only in the affidavit were not before the court, were not argued, and in any event amounted to an appeal on the merits. The judge also criticised the evidence: no affidavit from DSW was filed despite assurances, and the one filed on the morning of the hearing was affirmed by an attorney, which cannot make evidence admissible. The application was in substance a disguised appeal, warranting indemnity costs.

The court dismissed the application on every ground and ordered the claimants to pay DSU's costs on the indemnity basis, fixed at $65,000 including disbursements. The claimants have appealed against the whole decision, and the judge issued these grounds in that context.