JSM International Arbitration newsletter: Fifth issue

AMP Resources Limited v Indagro SA [2026] HKCFI 784

6 February 2026

Summary: This case concerns an application by AMP Resources Limited (“AMP”), a Hong Kong company, to continue an ex parte injunction restraining Switzerland-incorporated Indagro SA (“Indagro”) from presenting a winding-up petition against AMP in Hong Kong based on an arbitral award debt.

Indagro obtained a CIETAC award which found that AMP was liable to pay Indagro approximately US$2.83 million for breach of a sales contract. AMP applied to Beijing No. 4 Intermediate People’s Court, the supervisory court of the arbitration, to set aside the award.

While the setting aside application was pending in Beijing, Indagro served a statutory demand on AMP based on the award debt. AMP then obtained an injunction, and sought to continue that injunction, to prevent Indagro from presenting a winding-up petition.

The Hong Kong Court had to determine whether there was a bona fide dispute over the arbitral debt on substantial grounds. AMP’s principal argument was that no valid arbitration agreement existed. AMP argued that under PRC law (being the governing law of the contract) – in particular Article 490 of the PRC Civil Code – where parties intend to conclude a contract in written form, the contract is only formed upon signature by both parties. AMP contended there was no valid arbitration agreement as it was never signed by AMP.

Recorder William Wong SC concluded there was a genuine dispute under PRC law and the issue required scrutiny of the competing expert evidence on PRC law, which is properly reserved for determination by the Beijing court.

The injunction was therefore continued, and indemnity costs were awarded against Indagro.

Takeaway: The Hong Kong court will grant a quia timet injunction to prevent presentation of a winding-up petition which it considers to be an abuse of process, such as when there is a bona fide dispute of the debt on substantial grounds. In deciding whether there is such a bona fide dispute, the court “has an independent duty to assess the nature and quality of the dispute being put forward as a defence to the awarded debt”; and when there involves competing expert evidence, it will readily “use its own legal training to scrutinize expert evidence, especially where the concepts involved are not very different from Hong Kong law” (§§ 40, 41).

Link to judgment

Re Jingrui Holdings Limited [2026] HKCFI 246

15 January 2026

Summary: China Citic Financial AMC International Holdings Limited (the “Petitioner”) petitioned to wind up Jingrui Holdings Limited (the “Company”), a Cayman-incorporated and Hong Kong-listed property developer for an unpaid debt of approximately US$160 million. The debt arose from loan facilities advanced to a subsidiary of the Company, which the Company had guaranteed under a guarantee and confirmation deed. The Company failed to repay the debt despite a statutory demand being served upon it.

The Company opposed the winding-up petition on two grounds: (i) the dispute over the debt should be arbitrated pursuant to the arbitration clause in the guarantee documents, and (ii) the “three core requirements” for a winding-up of a foreign company in Hong Kong were not satisfied.

On the first ground, Harris J referred to his judgment in Re a Debtor, Xu Peixin [2025] HKCFI 5846 (featured in our previous issue) and summarised the relevant principles. The court had to consider (i) whether the Company had a genuine intention to arbitrate, and (ii) if it has, whether the defence has been shown to be frivolous and if so, despite the presence of an arbitration clause, the court should proceed to determine the petition.

In this case, the court found the Company had no genuine intention to arbitrate. As at the hearing date of the petition, the Company had not commenced arbitration and only asserted to its intention to do so. No good reasons were advanced as to why no substantive steps had been taken.

The court further held the Company’s substantive defence – that the guarantee had not been properly executed – to be devoid of merit. Contemporaneous evidence showed the guarantee was intended to be binding and enforceable.

On the second ground, the court reaffirmed the “three core requirements” that must be satisfied before it will exercise jurisdiction to wind up a foreign company: (i) there is a sufficient connection between the Company and Hong Kong, (ii) there is a real possibility that the winding-up order will benefit those applying for it and (iii) the court is able to exercise jurisdiction over persons other than the Petitioner interested in the distribution of the Company’s assets.

The principal dispute concerned the second core requirement. It was not in dispute that the Company’s major assets were in the PRC. The Petitioner argued it can seek recognition and assistance in the PRC under the pilot scheme on mutual recognition of assistance to insolvency proceedings between the PRC and Hong Kong courts (“Pilot Scheme”) to potentially realise the Company’s assets. Harris J accepted that although there had not yet been a case where such recognition had been obtained for a Hong Kong liquidator appointed over a foreign company, the possibility of a benefit was real rather than merely theoretical. The prospect of accessing the assets in the PRC constituted sufficient benefit to creditors.

Accordingly, the court made the usual winding-up order against the Company.

Takeaway: This case reaffirms that a debtor seeking to rely on an arbitration clause must demonstrate a genuine intention to arbitrate; merely invoking arbitration after the presentation of a winding-up petition, without taking further substantive steps, will not defeat a petition. It also highlights how the Pilot Scheme can assist creditors in satisfying the core requirements for winding-up of a foreign debtor company in Hong Kong where the debtor’s assets are located in the PRC.

Link to judgment

LT v RV [2026] HKCFI 1280

3 March 2026

Summary: In this case, LT sought to set aside a settlement agreement (“Settlement Agreement”) and a Procedural Order No. 7 (PO7) issued by an HKIAC tribunal terminating the arbitration. The arbitration concerned cross-claims between LT, a Seychelles company formerly operating a cryptocurrency trading platform, and RV, an investor/customer.

LT entered into a Scheme of Arrangement approved by the Seychelles Court under which, among others, decisions concerning settlement of the arbitration claims required approval of the creditor-appointed directors.

ML, the former sole director of LT, signed the Settlement Agreement with RV on behalf of LT. The creditors of LT were unaware of the Settlement Agreement at the time of signing. Pursuant to the Settlement Agreement, the tribunal issued the PO7 terminating the arbitration. LT sought to set aside the Settlement Agreement and the PO7 on the basis that ML did not have authority to settle the arbitration on LT’s behalf.

Mimmie Chan J held that neither the PO7 nor the Settlement Agreement was an arbitral award capable of being set aside under Section 81 of the Arbitration Ordinance (Cap. 609) (the “Ordinance”). The PO7 merely terminated the arbitration and did not determine the validity of the Settlement Agreement nor the merits of the claims. The Settlement Agreement was only treated as an award under Section 66(2) of the Ordinance for enforcement purposes and not for the purpose of a set-aside application under Section 81.

Nonetheless, the court exercised its jurisdiction to determine the Settlement Agreement’s validity by reason of its supervisory jurisdiction over the Hong Kong-seated arbitration and the express provisions under the Settlement Agreement conferring the court exclusive jurisdiction.

The court declared the Settlement Agreement null and void and not binding on LT. Applying Seychelles law, and relying on the ruling of the Seychelles Court, the court found that ML had no authority (whether actual or apparent) to settle on LT’s behalf.

Takeaway: This case illustrates that a procedural order terminating arbitral proceedings may not be set aside under Section 81 of the Ordinance unless it determines the substantive claims or records the settlement as an award on agreed terms. However, the court is prepared, in appropriate cases, to exercise its supervisory jurisdiction over the arbitration to make findings on a settlement agreement and a procedural order which terminate the arbitration even if such documents are not awards for setting aside under Section 81 of the Ordinance.

Link to judgment

AT and Another v QC and Another [2026] HKCFI 1437

11 March 2026

Summary: The High Court of Hong Kong dismissed an application by the plaintiffs to set aside two HKIAC awards made in favour of the defendants arising from a dispute over a share purchase agreement and subsequent supplemental agreements.

The defendants invested the equivalent of US$110 million by making RMB payments in the PRC pending regulatory approval for overseas direct investment (“ODI Approval”); and sought to exit the investment and recover their returns from the plaintiffs after they failed to obtain the ODI Approval. The tribunal ruled in favour of the defendants.

The plaintiffs sought to set aside the awards on the grounds of inability to present their case on PRC illegality issue relating to the ODI Approval and that the awards were contrary to public policy.

In rejecting the plaintiffs’ arguments, the court reiterated it is not the function of the court to comb an award to look for errors. The tribunal’s refusal to admit PRC law expert evidence was a case management decision within the discretion of the tribunal, with which the court will not interfere unless serious denial of justice can be shown.

On the public policy challenge, the court emphasised that “public policy” means Hong Kong public policy, not PRC public policy, and the court would not review the correctness of the tribunal’s findings on legality and whether there was a contravention of PRC regulations.

The awards were upheld and indemnity costs were ordered against the plaintiffs.

Takeaway: This case underscores the Hong Kong Courts’ established pro-arbitration approach, including their reluctance to interfere with arbitral tribunal findings and their narrow application of public policy as a ground for setting aside arbitral awards.

Link to judgment

SIC v WI and Another [2026] HKCFI 1795

25 March 2026

Summary: This case concerned an application by SIC for security in connection with WI’s challenge to the enforcement in Hong Kong of a 2021 ICC arbitral award rendered in Paris. The tribunal found that WI had wrongfully terminated a distribution agreement and together with the 2nd defendant was ordered to pay approximately US$19 million in damages and approximately US$5 million costs (the “Award”).

WI’s application to the Paris Court of Appeal to set aside the Award was dismissed and it appealed to the French Supreme Court. Meanwhile, SIC obtained leave to enforce the Award in Hong Kong.

WI sought to set aside the Hong Kong enforcement order arguing that the Award was obtained by procedural fraud (“Enforcement Application”). The alleged fraud related to SIC’s misrepresentations in document production and dishonest concealment of material documents, which were only discovered after the Award was rendered.

SIC applied for security (up to the amount of the Award and costs), failing which dismissal of WI’s setting aside application. The key issue in this case was whether, and to what extent, security should be ordered.

Applying the principles in Soleh Boneh v Government of Uganda [1993] 2 Lloyd’s Rep 208, the CFI had to determine “whether the award is manifestly valid or invalid, as perceived on a brief consideration”. If the award is manifestly valid, the court will either order immediate enforcement or substantial security. If manifestly invalid, there should be an adjournment and no order for security.

The court emphasised that, at this interlocutory stage, it was not deciding whether fraud had in fact occurred. The court considered that the newly discovered documents appeared sufficiently material to warrant further examination of WI’s fraud allegations. However, it could not be readily concluded that the Award was either manifestly invalid for fraud, or manifestly valid to justify immediate enforcement or an order of substantial security.

On security, the court balanced several factors, including WI’s delay in making payment of costs in the French proceedings, which suggested either a likelihood of it not honouring its payment obligations under any award or order against it, or its financial inability to do so. The court also considered SIC’s own delay in seeking enforcement of the Award in Hong Kong; the absence of evidence of asset dissipation by WI; and the possibility of further delay while French courts considered the appeal.

Rather than ordering security for the full Award amount, the CFI ordered US$600,000 security for costs to partly cover the reasonable legal costs incurred and to be incurred by SIC in opposing the application to set aside the enforcement order, as a condition for adjourning the Enforcement Application until conclusion of the French appeal.

Takeaway: When enforcement of an award is challenged, the court will assess whether the award appears “manifestly valid” or “manifestly invalid” before deciding whether enforcement and security for costs should be ordered. Where the award is neither manifestly invalid nor manifestly valid, the court may order limited security for costs, having considered all the circumstances and weighing potential injustice to the parties.

Link to judgment

RusChemAlliance LLC v Linde GmbH and Another [2026] HKCA 763

27 April 2026

Summary: The Hong Kong Court of Appeal refused to grant leave for RusChemAlliance LLC (“RCA”) to appeal against a Hadkinson Order which prevented its application to set aside a HKIAC partial award from being substantively heard unless RCA took reasonable and practical steps to comply with an earlier Hong Kong anti-suit injunction.

The parties entered into an engineering, procurement and construction (EPC) contract for a Russian gas processing project. The contract and related guarantee were governed by English law and contained Hong Kong-seated HKIAC arbitration agreements. Following EU sanctions on Russia, Linde suspended works. RCA treated this as a repudiatory breach, terminated the contract and commenced Russian court proceedings notwithstanding the arbitration agreements.

Linde obtained an anti-suit injunction (“ASI”) from the Hong Kong Court of First Instance requiring RCA to withdraw or set aside relief obtained in Russia. Despite the injunction, RCA obtained judgment in Russia and continued to benefit from Russian freezing and enforcement measures. Meanwhile, the HKIAC tribunal issued a partial award declaring that RCA had breached the arbitration agreements by commencing Russian proceedings (“Partial Award”).

RCA applied to set aside the Partial Award on public policy grounds, alleging apparent bias after the HKIAC upheld its challenge concerning the impartiality of the presiding arbitrator. Linde applied for and obtained a Hadkinson Order. In making the Hadkinson Order, the court found that RCA was in deliberate and continuing contempt of court.

RCA sought leave from the Court of Appeal to appeal against the Hadkinson Order, arguing principally that the court was under a positive duty under Article 34 of the Model Law to hear and determine a public policy challenge to an award allegedly tainted by bias, and that there was insufficient nexus between its contempt of the ASI and the course of justice which was allegedly impeded by the contempt.

The Court of Appeal rejected these arguments. It held that Article 34 gives the court permissive not mandatory power to set aside an award; nor does it override the court’s case management power to make a Hadkinson Order. It found there was sufficient connection between RCA’s contempt and its setting aside application, as both concerned the same subject matter or were closely related to the dispute addressed by the ASI and the Partial Award.

The court therefore refused leave to appeal and refused a stay of execution of the Hadkinson Order.

Takeaway: A party in continuing breach of a Hong Kong anti-suit injunction may be barred from pursuing a challenge to an arbitral award unless it first purges its contempt. This case confirms that Article 34 of the Model Law does not create an overriding right to have a set-side application heard, where the applicant’s own contempt obstructs the administration of justice and undermines the arbitration agreement.

Link to judgment

W v GH [2026] HKCFI 2966

21 May 2026

Summary: The Court of First Instance granted leave to W to enforce an interim award on emergency measures (“Emergency Award”) made by an emergency arbitrator in an HKIAC arbitration under Section 22B of the Arbitration Ordinance (the “Ordinance”) (“Enforcement Order”). The Emergency Award required GH to comply with and refrain from breaching a framework agreement including, among others, soliciting W’s customers and to maintain the status quo pending determination of the underlying arbitration.

GH applied to set aside the Enforcement Order (“Setting Aside Application”), alleging that the arbitration agreement was invalid on grounds including want of authority, self-dealing, improper purposes, abuse of process, lack of jurisdiction, inability to present its case and that the Emergency Award was contrary to public policy as it affected third parties and enforced an unlawful restraint of trade.

GH also sought a stay of the enforcement proceedings pending the tribunal’s determination of GH’s application to discharge the Emergency Award (“Discharge Application”).

The court held that Sections 81, 86 and 89 of the Ordinance concern challenges to or enforcement of arbitral awards, whereas an emergency arbitrator’s order under Section 22B is an interim measure, not a final award which finally determines substantive rights. As such, the usual grounds of inability to present a case and public policy objections applicable to an arbitral award were not available.

The court accepted that in principle an enforcement order for emergency relief could be refused where it is clear there is no prima facie arbitration agreement. That is not a high threshold and the court generally leaves jurisdictional questions to the arbitral tribunal.

In this case, there was a clear prima facie arbitration agreement, and GH’s challenges raised matters for determination in arbitration rather than at the enforcement stage.

GH subsequently withdrew its Setting Aside Application. The court exercised its inherent case management powers to stay the enforcement of the Emergency Award pending the tribunal’s determination of the Discharge Application. The stay was granted to avoid potential injustice and procedural duplication.

GH was ordered to pay W’s costs, including indemnity costs for the withdrawn Setting Aside Application.

Takeaway: The court clarified that an emergency arbitrator’s interim relief, whether labelled as an “award” or otherwise, is not an “award” for the purposes of the Ordinance – and the usual grounds to set aside or challenge an arbitral award do not apply. Challenges to enforcement of such emergency relief must instead be brought under Section 22B of the Ordinance.

Link to judgment

A Company v The Bank [2026] HKCFI 3169

3 June 2026

Summary: This case concerned the enforcement in Hong Kong of an award rendered by the London Court of International Arbitration requiring a Canadian bank (the “Bank”) to pay approximately EUR30 million plus interest under three bank guarantees issued in connection with a Russian industrial project. The Bank resisted enforcement on the basis that payment would expose it and its employees to potential criminal liability under Canadian sanctions legislation.

The Bank’s primary defence in the arbitration was that payment under the guarantees would contravene Canada’s sanctions regime. The tribunal rejected that defence, concluding the Bank had failed to establish that the beneficiary of the payment was a sanctioned entity or that payment was prohibited by Canadian law. The tribunal therefore ordered payment under the guarantees (the “Award”).

After the Award, Global Affairs Canada (GAC), the foreign ministry responsible for enforcing sanctions, refused to grant a permit for the transfer of funds as it considered the applicant (“A Company”) was deemed to be owned or controlled by a sanctioned individual.

Relying on GAC’s position, the Bank argued before the Hong Kong court that enforcement of the Award would expose it to a real risk of criminal prosecution in Canada – and was therefore contrary to Hong Kong public policy.

The court rejected the challenge, emphasising that an enforcement court cannot revisit the tribunal’s findings on foreign law or illegality under the guise of public policy.

The court further held that the Bank had not established a real risk of prosecution, noting GAC’s letter only represents an administrative view rather than judicial determination. If the enforcement is by garnishee proceedings against Hong Kong bank accounts maintained with the Bank, without active assistance from the Bank, it was unclear why the Bank’s compliance with a garnishee order would give rise to criminal liability in Canada.

Importantly, the court emphasised that the relevant public policy is that of Hong Kong, not Canada. Hong Kong public policy should not be dictated by the foreign policy of a particular foreign state.

The court therefore dismissed the application to set aside the Enforcement Order and for an indefinite stay with indemnity costs.

Takeaway: A party cannot resist enforcement by inviting the court to revisit a tribunal’s findings on foreign sanctions law under the guise of public policy challenge. The court reiterates the relevant public policy is that of Hong Kong, and that foreign sanction regimes, regulatory objections or conflicting foreign policy considerations will rarely justify refusal of enforcement of a New York Convention award.

Link to judgment

Summary: Hong Kong continues cementing its status as a premier venue for international dispute resolution through two significant developments: the planned establishment of the Hong Kong International Commercial Court (HKICC) and another year of record-breaking growth at the Hong Kong International Arbitration Centre (HKIAC).

The judiciary has announced that the HKICC, a specialist division of the High Court dedicated to complex cross-border commercial disputes, is expected to commence operation within the coming year.

The HKICC will provide parties with access to specialist judges experienced in commercial law, while distinguished overseas common law judges and practitioners may also be invited to sit on cases where appropriate.

Importantly, litigants will benefit from the certainty of court judgments capable of recognition and enforcement in the Chinese Mainland under existing reciprocal enforcement arrangements.

Regarded as an important enhancement to Hong Kong’s dispute resolution landscape, the initiative has received broad support from the government and legal profession. By offering a specialist forum applying Hong Kong common law principles, the HKICC is expected to complement rather than compete with arbitration and mediation, while further reinforcing Hong Kong’s standing as an international legal and financial centre.

At the same time, the HKIAC has reported another record year. In 2025, it received 582 new cases, including 388 arbitrations involving 1,233 parties from 61 jurisdictions. The total amount in dispute reached HK$126.2 billion (US$16.2 billion), of which HK$117.7 billion (US$15.1 billion) arose from administered arbitrations.

The average dispute size increased to HK$418.8 million (US$53.7 million), reflecting the growing value and complexity of disputes referred to Hong Kong. The international nature of HKIAC’s caseload remains striking: approximately 85% of all arbitrations and 93% of administered arbitrations involved at least one non-Hong Kong party. The statistics also reveal increasing use of multi-party and multi-contract proceedings, together with expedited procedures and emergency or interim relief mechanisms.

Taken together, the launch of the HKICC and continued growth of HKIAC highlight Hong Kong’s dual strengths in both international litigation and arbitration, providing commercial parties with a sophisticated and globally recognised dispute resolution forum.

Link to HKIAC announcement

Link to HKIAC 2025 statistics

18 March 2026

Summary: The China International Economic and Trade Arbitration Commission (CIETAC) formally established a Digital Economy Arbitration Center (the “Center”) on 18 March 2026, signalling a strategic institutional response to the growing volume and complexity of disputes arising from the digital economy, including data trading, platform governance and artificial intelligence (AI).

Nie Wenhui, Vice President of the China Council for the Promotion of International Trade, said it will anchor the digital China strategy, supported by in-depth research into legal issues and disputes arising from the digital economy, with a view to refining relevant rules and mechanisms.

CIETAC also released China’s first systematic study – titled “Research on the Rule of Law Protection and Dispute Resolution in the Digital Economy” – covering areas on digital economy arbitration. Developed from a national governance perspective and aligned with emerging developments in digital rule of law, the report addresses practical legal needs in the digital sector, anticipates industry trends and provides forward looking, practical theoretical support for resolving digital economy disputes.

Link to Update:【重要新闻】贸仲数字经济仲裁中心正式成立 数智赋能护航数字经济高质量发展-中国国际经济贸易仲裁委员会

Summary: The 2026 ICC Arbitration Rules (“2026 rules”), which came into force on 1 June 2026, introduce a suite of reforms aimed at modernising arbitral procedure, improving efficiency and strengthening confidence in the arbitral process. Collectively, the amendments reflect the International Chamber of Commerce’s response to evolving user expectations for faster, more flexible and technology-driven dispute resolution.

One of the most significant changes concerns arbitrator disclosure and transparency. Newly-introduced Article 12(5) requires parties to provide the ICC Secretariat with a list of persons and entities that prospective arbitrators should consider when assessing potential conflicts and disclosure obligations at the time of filing their respective Request, Answer, Request for Joinder, Answer to a Request for Joinder or request for an extension of time for submitting an Answer under Article 6(2). This introduces a more collaborative and structured disclosure process, enabling potential issues to be identified earlier and reducing the risk of later challenges to arbitrator independence or impartiality. Link to the update: Unveiling the 2026 ICC Arbitration Rules, part 1: arbitrator disclosure

The 2026 Rules also move away from traditional reliance on Terms of Reference. Historically, Terms of Reference played a central role in defining the scope of the dispute and recording procedural arrangements. Under the new 2026 Rules, they are no longer mandatory, although tribunals retain discretion to prepare them when they consider appropriate. Instead, the initial Case Management Conference (CMC) and procedural timetable established at the initial CMC become the primary tools for structuring the proceedings. Correspondingly, the timeline for rendering awards is now linked to the procedural timetable rather than the former six-month deadline tied to the Terms of Reference. Link to the update: Unveiling the 2026 ICC Arbitration Rules, part 2: Moving beyond mandatory Terms of Reference

The ICC has further strengthened its expedited and emergency arbitration mechanisms. For claims brought under arbitration agreements concluded on or after 1 June 2026, the monetary threshold for the automatic application of Expedited Procedure Provisions has increased to US$4 million, expanding accessibility to streamlined proceedings. The higher threshold reflects the rising value of international commercial disputes.

Emergency arbitration has also been enhanced, with emergency interim or conservatory relief potentially available against parties prior to the constitution of the arbitral tribunal. The 2026 Rules additionally introduce preliminary orders, allowing a party to request a preliminary order directing another party not to frustrate the purpose of the application at any stage of the emergency arbitration. If the preliminary order is granted, the emergency arbitrator must immediately afford all other parties a reasonable opportunity to present their case, reinforcing due process protections. Link to the update: Unveiling the 2026 ICC Arbitration Rules, part 3: Expedited Procedure Provisions and Emergency Arbitration

A notable innovation is creation of the Highly Expedited Arbitration Provisions (HEAP). This new opt-in regime is designed for straightforward disputes requiring rapid resolution and aims to deliver a final award within three months of the initial case management conference. Proceedings are conducted before a sole arbitrator and may, if the parties agree, result in an award issued without reasons. Parties should expect tighter limits on further submissions and written witness evidence, possible exclusion of document production and determination of a dispute without a hearing. Link to update: Unveiling the 2026 ICC Arbitration Rules, part 4: Highly Expedited Arbitration Provisions

Finally, the 2026 Rules continue the ICC’s digitalisation efforts. Key submissions must generally be filed electronically through the ICC Case Connect platform, while new Article 12(8) imposes express confidentiality obligations on arbitrators. Article 34 now provides the president can fix and extend the time limit for rendering an award based on the procedural timetable of the case, or upon the request of the arbitral tribunal. These changes promote efficient case administration while enhancing procedural integrity. Link to the update: Unveiling the 2026 ICC Arbitration Rules, part 6: Written communications, time limits for awards and confidentiality

Taken as a whole, the 2026 ICC Arbitration Rules represent a significant evolution of the ICC framework. By emphasising early case management, expedited procedures, digitalisation, enhanced arbitrator disclosure and greater procedural flexibility, the revisions reinforce the ICC’s position as a leading institution for the resolution of complex international commercial disputes.

DRL v DRK [2026] SGHC 32

9 February 2026

Summary: This decision of the Singapore High Court concerns an application by DRL (the “Claimant”) in an arbitration to set aside an arbitral award which terminated a Singapore‑seated arbitration under Article 32(2)(c) of the UNCITRAL Model Law (“Model Law”), on the basis that continuation of the proceedings had become “impossible”.

The Claimant commenced SIAC arbitration in 2020 against DRK (the “Respondent”) seeking recovery of a substantial contractual debt pursuant to an arbitration agreement. In 2022, the Claimant became subject to international sanctions, resulting in its assets being frozen, exclusion from SWIFT and inability to make or receive international payments. As a result, the Claimant could not pay further SIAC deposits, comply with an order to provide security for the Respondent’s costs, pay its lawyers, or satisfy any adverse award. The arbitration stalled for a prolonged period.

The Claimant sought a stay to allow time to obtain third‑party funding. The Respondent instead applied for termination under Article 32(2)(c) of the Model Law.

The tribunal dismissed the stay application and terminated the arbitration by award in March 2025. The tribunal found that the sanctions, coupled with the Claimant’s continuing inability to fund or progress the proceedings and the absence of any realistic improvement, rendered continuation of the arbitration impossible.

The Claimant applied to set aside the award under Section 24(b) of Singapore’s International Arbitration Act and Article 34(2)(a)(ii) of the Model Law, arguing that it had been deprived of a fundamental right to determination on merits and was denied natural justice. The challenge was significant because the limitation period had expired, preventing the Claimant from commencing a fresh arbitration.

The High Court dismissed the application in full. The court held that the challenge was, in substance, an impermissible appeal against the tribunal’s finding of impossibility. Article 32(2)(c) of the Model Law expressly contemplates that some arbitrations may terminate without any determination on the merits. Once a tribunal finds, as a matter of fact, that continuation of the arbitration has become impossible, it is obliged – and not merely entitled – to terminate the proceedings. The tribunal was not required to consider prejudice to the applicant, expiry of limitation, or causes of the impossibility, including the fact that the impossibility arose from external sanctions.

The court further found that the Claimant had been given a fair opportunity to address the termination issue and there was no breach of natural justice.

Takeaway: Article 32(2)(c) of the Model Law is mandatory: once a tribunal finds that continuation of an arbitration has become impossible, it must terminate proceedings, even if doing so prevents a claimant from ever obtaining a determination on merits due to limitation. The decision highlights the importance of monitoring limitation periods closely and considering contingency measures relating to funding to ensure smooth continuation of an arbitral proceeding.

Link to judgment

K1 v B (No. 2) [2026] EWCA Civ 261

13 March 2026

Summary: This Court of Appeal decision concerns the limits on appeals arising from challenges to arbitral awards under the English Arbitration Act 1996 (the “Act”). K1 (the “Applicant”) sought permission to appeal against the High Court decision to refuse its application to amend its existing challenge to add an out-of-time challenge under Section 68(2)(g) of the Act, which permits an award to be challenged where the award – or way in which it was procured – is contrary to public policy. We reported on the High Court decision in our last issue (see here).

The High Court refused the amendment, holding that Section 68(2)(g) is directed at fraud or public policy concerns affecting procurement of the award or conduct of the arbitration, not allegations that the underlying contract itself was illegal or unenforceable. The proposed amendment was therefore not arguable.

The Court of Appeal dismissed the appeal, holding that it had no jurisdiction to grant permission to appeal. On the proper construction of Section 68(4) of the Act, only a first-instance judge may grant leave for any appeal from a decision made under Section 68. It held the High Court’s determination that Section 68(2)(g) was not engaged was part of the substantive decision-making process under Section 68, not a separate jurisdictional ruling. Accepting the Applicant’s arguments would undermine the one-tier permission regime and the finality which section 68(4) of the Act is designed to secure.

The Court of Appeal emphasised that it would only interfere with a first-instance decision in narrowly defined and exceptional circumstances which may permit appellate intervention. For instance, where the first-instance court acted without jurisdiction, where the purported decision was not a decision at all, or where the hearing infringed the Applicant’s right to a fair trial.

Takeaway: This case may be of relevance to arbitration practitioners in Hong Kong as sections 4(2)(g) and 4(6) of Schedule 2 to the Arbitration Ordinance (Cap. 609) (if opted in under the relevant arbitration agreement) similarly provide that an award may be challenged on the grounds that it is obtained by fraud and that leave is required for any appeal from a decision under that section.

This decision underscores that where those opt‑in provisions apply, the requirement for leave is intended to operate as a one‑tier gateway and only the Court of First Instance can grant leave. Parties cannot get a second bite at the cherry by renewing the leave application at appellate level, by re-labelling a merits determination as “jurisdictional” to circumvent the statutory permission regime.

Link to judgment

Link to JSM update on the High Court decision

Singapore Commodities Group Co., Pte. Ltd. v Founder Group (Hong Kong) Limited (In Liquidation) [2026] SGCA 24

8 May 2026

Summary: This Singapore Court of Appeal decision concerns a successful appeal by Singapore Commodities Group Co., Pte. Ltd. (the “Defendant”) against a winding-up order obtained by Founder Group (Hong Kong) Limited (in liquidation) (the “Claimant”).

The Claimant sought to wind up the Defendant based on an alleged unpaid debt of approximately US$14.1 million arising from a copper cathodes sale contract (“Purchase Contract”). The Defendant disputed the debt on the basis that the Purchase Contract was a sham and that no copper had in fact been delivered. The dispute was referred to CIETAC arbitration pursuant to the arbitration clause in the Purchase Contract.

The tribunal rejected the Defendant’s application for a declaration that it did not owe the alleged debt but equally found that the Claimant had failed to prove that the debt existed. The arbitration ended without any finding whether the alleged debt was owing.

The Claimant commenced winding-up proceedings in Singapore on both insolvency and just and equitable grounds. The Defendant resisted the application by relying on the arbitration agreement and paid the disputed sum into court as security pending the determination of the arbitration and the winding-up proceedings.

In an earlier appeal between the same parties, the Singapore Court of Appeal set aside an order for payment out of that sum to the Claimant, holding that the Claimant had not established the existence of the debt in the arbitration, and remitted the winding-up application to the judge.

On remittal, the judge ordered the Defendant to be wound up, finding that the Defendant had abused the court’s process by resiling from previous admissions of the debt, including audit confirmations and accounting records. The Defendant appealed.

The Court of Appeal allowed the appeal, holding that the judge had erred in finding an abuse of process merely because the Defendant sought to challenge the debt notwithstanding earlier accounting records. The tribunal had itself concluded the audit confirmation letters did not prove the existence of the debt and had made no positive determination that the debt was owed.

The Court of Appeal emphasised that where a debt is disputed and subject to arbitration, the creditor generally lacks standing to pursue winding-up proceedings unless the debt has first been established through arbitration or the debtor’s conduct amounts to a genuine abuse of process. Since neither was present, the Claimant had no standing to seek a winding up order. The court therefore set aside the winding-up order, dismissed the winding-up petition, and ordered consequential relief, including the return of monies paid into court.

Takeaway: Where a disputed debt is subject to a valid arbitration agreement, a creditor must first establish the debt through arbitration before it can pursue winding-up proceedings. The abuse of process exception remains narrow: it will not be enough for the creditor to point to alleged admissions or accounting records unless there is a clear and unequivocal admission of both liability and quantum, and no clear and convincing reason for the debtor to resile from it.

Link to judgment

DTH & Anor v DTF & Ors [2026] SGHC(I) 5

2 June 2026

Summary: This Singapore International Commercial Court decision concerns whether a successful arbitral claimant can recover third-party funding costs (“TPF costs”) from the losing party and whether an arbitral tribunal’s refusal to award such costs can be set aside as being contrary to Singapore public policy.

DTH and DTI (the “Applicants”) succeeded in the underlying arbitration against DTF and DTG (the “Respondents”) and obtained a buyout order award of approximately US$14.7 million. The Applicants had funded the arbitration through a litigation funding agreement, under which the funder claimed approximately US$14.6 million in TPF costs as part of their costs recovery. The tribunal awarded legal costs but declined to award the TPF costs. The majority reasoned, among other things, that Singapore’s legislative amendments legalising third-party funding in prescribed proceedings did not confer a right on a successful party to recover the funder’s return from the losing party.

The Applicants sought to set aside the costs award under Article 34(2)(b)(ii) and Article 34(2)(a)(iv) of the UNCITRAL Model Law (“Model Law”), arguing the tribunal’s refusal to award TPF costs was contrary to Singapore public policy of promoting access to justice and that the tribunal had failed to follow the parties’ agreed arbitral procedure under SIAC Rules.

The court dismissed the application in its entirety. On public policy, the court held that the Applicants’ formulation of the relevant policy was too narrow and specific to constitute “public policy” in the legal sense contemplated by Article 34(2)(b)(ii) of the Model Law. At most, it reflected a matter of social policy, not a fundamental principle of Singapore public policy. The Court held that Singapore’s policy of facilitating justice through third-party funding does not necessarily require that funding costs be recoverable from the losing party.

On the arbitral procedure ground, the court held that Rule 37 of the SIAC Rules was not “procedural” for the purposes of Article 34(2)(a)(iv) of the Model Law. Rule 37 concerns the tribunal’s substantive disposition of costs, not the arbitral procedure by which the tribunal reaches that disposition. Accordingly, even if the tribunal majority had misconstrued Rule 37, that would concern the substance of the award and not a departure from the parties’ agreed arbitral procedure.

The court added that, even if Rule 37 were treated as procedural, it was for the tribunal to determine the scope and effect of that rule. These matters are not generally reviewable by the supervisory court. Importantly, the court noted that the tribunal’s finding that the particular funding agreement fell outside the statutory framework governing permitted third-party funding contracts. This finding alone would have justified refusing the TPF costs claim. The setting-aside application was dismissed.

Takeaway: This decision confirms the narrow scope of Article 34 of the Model Law challenges to arbitral costs awards. A tribunal’s refusal to award TPF costs, even if arguably wrong as a matter of law, will not readily amount to a breach of public policy or a failure to follow the parties’ agreed arbitral procedure. The decision also suggests that, under Singapore law, parties seeking recovery of TPF costs face significant hurdles unless the applicable arbitration rules, arbitration agreement or procedural directions clearly confer such a power.

Link to judgment