Case Details
- Citation: [2021] SGCA 9
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 16 February 2021
- Case Number: Civil Appeal No 14 of 2020
- Coram: Sundaresh Menon CJ; Judith Prakash JCA; Woo Bih Li JAD
- Judgment Type: Appeal from High Court decision dismissing applications to set aside an arbitral award and resist enforcement
- High Court Reference: Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2020] SGHC 01
- Plaintiff/Applicant (Appellants): Bloomberry Resorts and Hotels Inc and another
- Defendant/Respondent (Respondents): Global Gaming Philippines LLC and another
- Parties (as reflected in metadata): Bloomberry Resorts and Hotels Inc — Sureste Properties Inc — Global Gaming Philippines LLC — GGAM Netherlands BV
- Legal Areas: Arbitration — Award; Arbitration — Enforcement; Recourse against award; Challenge to enforcement
- Key Arbitration Instrument: Management Services Agreement dated 9 September 2011
- Governing Law Clause (Management Agreement): Clause 19.3 (Philippines law)
- Arbitral Award: Dated 20 September 2016 (“the Award”)
- Tribunal’s Liability Determination: Award addressed liability only (liability and damages tranches were bifurcated)
- Core Allegation in Challenge: The making of the Award was induced or affected by fraud, contrary to Singapore public policy
- New Evidence Relied Upon: (a) 17 January 2017 Non-Prosecution Agreement between the US Department of Justice and Las Vegas Sands Corp (“DOJ Agreement”); (b) 7 April 2016 SEC order instituting cease-and-desist proceedings against Las Vegas Sands Corp (“SEC Order”); collectively “FCPA Findings”
- US Authorities: US Department of Justice (“DOJ”) and US Securities and Exchange Commission (“SEC”)
- Judicial Reasoning Theme: Whether the “fraud” alleged was established to the requisite standard and whether it was sufficiently connected to the making of the Award to engage public policy
- Counsel for Appellants: Yeo Khirn Hai Alvin SC, Leo Zhen Wei Lionel and Wong Zheng Hui Daryl (WongPartnership LLP)
- Counsel for Respondents: Bull Cavinder SC, Ong Chee Yeow and Kong Man Er (Drew & Napier LLC) (instructed); Lee Teck Chye Aaron, Marc Wenjie Malone and Chong Xue Er Cheryl (Allen & Gledhill LLP)
- Judgment Length: 25 pages; 15,379 words
- Statutes Referenced (as per metadata): Foreign Corrupt Practices Act; International Arbitration Act; Securities Exchange Act
- Cases Cited (as per metadata): [2019] SGHC 69; [2020] SGHC 01; [2020] SGHC 1; [2021] SGCA 9
Summary
Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] SGCA 9 concerned an application to set aside an arbitral award and to resist its enforcement on the ground that the award was induced or affected by fraud. The appellants, Bloomberry and Sureste Properties, had terminated a Management Services Agreement under which Global Gaming Philippines (GGAM) and its assignee, GGAM Netherlands BV, were to manage the development and operation of the Solaire Resort and Casino in Manila. The arbitral tribunal rejected the appellants’ claims that they were induced into the contract by “causal fraud” and found that the termination was not justified.
After the award was issued, the appellants sought to challenge it by relying on later US regulatory and prosecutorial materials connected to Las Vegas Sands Corp (LVS). Specifically, they relied on a DOJ non-prosecution agreement and an SEC cease-and-desist order (collectively, the “FCPA Findings”) to argue that fraud and/or corruption had been concealed during the arbitration and that the tribunal’s decision would have been materially different had the evidence been available. The Court of Appeal upheld the High Court’s dismissal of the setting-aside and enforcement-resistance applications, affirming that the fraud/public policy threshold is stringent and that the appellants had not met it on the evidence and linkage required.
What Were the Facts of This Case?
The dispute arose from a Management Services Agreement dated 9 September 2011 between the appellants and GGAM. Under the agreement, GGAM was to manage the development and operation of the Solaire Casino, an integrated resort and casino in Manila. The agreement contained a governing law clause providing that it was governed by the law of the Republic of the Philippines. GGAM later assigned and conveyed its rights and obligations to GGAM Netherlands BV, which was wholly owned by GGAM.
At the material time, the respondents’ senior executives (“GGAM principals”) included: (a) Mr William P Weidner (Chairman and CEO); (b) Mr Bradley Stone (President); (c) Mr Garry W Saunders (Executive Vice President); and (d) Mr Eric Chiu (President for Asia). Before GGAM’s formation, Mr Weidner had been President and Chief Operating Officer of LVS and resigned in March 2009 in acrimonious circumstances. Mr Chiu had been a director of LVS during Mr Weidner’s tenure. The appellants’ case was that these individuals’ prior involvement in LVS transactions later investigated by US authorities was relevant to the integrity of the representations made in the course of contracting for the Solaire Casino.
When the appellants became aware of the investigations into LVS, they wrote to Mr Saunders on 14 August 2012 seeking clarification on the status of the investigation and its impact on the GGAM principals and GGAM. Mr Weidner responded with statements that the appellants later characterised as misleading. In particular, the appellants referred to what the Court of Appeal described neutrally as the “2012 Statements”, which included an assertion that Mr Weidner had not been complicit in wrongdoing regarding the referenced transactions and that he was not involved in the transfer or accounting of funds related to those transactions. The appellants argued that these statements were false and that they concealed relevant facts about the principals’ involvement in transactions that were later the subject of US enforcement action.
The Solaire Casino began operations in mid-March 2013. On 12 July 2013, the appellants alleged that the respondents had failed to comply with their obligations to provide “prudent management services”, including failing to bring in foreign VIPs or junket operators during the initial months of operations. The appellants invoked their contractual right to terminate for material breach. On 12 September 2013, they issued a formal Notice of Termination on the basis that GGAM had committed a material breach that was either incapable of remedy or not remedied within the contractual cure period. The appellants’ termination was, as they described it, largely due to perceived non-performance relating to delivering junket operators and foreign VIPs.
What Were the Key Legal Issues?
The primary legal issues were whether the arbitral award should be set aside and whether enforcement should be resisted on the basis that the award was “induced or affected by fraud” and therefore contrary to Singapore public policy. This required the Court of Appeal to consider the standard and structure of proof for fraud in the context of arbitration, including whether later-discovered evidence could justify reopening a tribunal’s findings.
A second issue was evidential and causal: whether the “FCPA Findings” relied upon by the appellants were sufficiently connected to the alleged fraud that the tribunal had rejected. The Court of Appeal had to assess whether the later US materials established that the respondents had concealed fraud during the arbitration in a manner that could have materially affected the tribunal’s decision on liability.
How Did the Court Analyse the Issues?
The Court of Appeal began by framing the appeal as one arising from the High Court’s dismissal of the appellants’ applications to set aside the award and resist enforcement. The High Court had accepted that the appellants’ case depended on the proposition that the making of the award was contrary to Singapore public policy because it was induced or affected by fraud. The Court of Appeal therefore focused on whether the appellants had met the demanding threshold for such a public policy challenge.
At the arbitration stage, the tribunal had addressed two central questions relevant to the liability award: first, whether the respondents had perpetrated “causal fraud” by making false representations that induced the appellants to enter the Management Agreement; and second, whether the appellants’ termination was justified. Under Philippine law (as applied by the tribunal), causal fraud could justify rescission where the fraud was serious, present at the time of contract formation, and proved by evidence that was “full, clear and convincing”. The tribunal rejected the appellants’ misrepresentation and causal fraud claims. It found, among other things, that there was no evidence supporting the allegation that the respondents had represented they were the same entity as LVS. It also found that the GGAM principals had access to “high rollers” given their standing in the industry, and that the parties had planned not to seek high rollers until the casino could provide a suitable experience—yet the appellants terminated before that point.
In addition, the tribunal rejected the appellants’ contention that the respondents had represented that operating policies, procedures, and systems were ready to be implemented. The tribunal’s reasoning was that the respondents were contractually obliged to formulate written policies and procedures through and in collaboration with the Solaire Casino, and that any representation about such policies would not have been serious enough to induce the appellants to enter the agreement. On termination, the tribunal found no material breaches by the respondents and concluded that the termination was not justified, particularly in light of the appellants’ approach to performance and access to information.
Against that background, the Court of Appeal considered the appellants’ post-award strategy. The appellants relied on evidence that they said was not discoverable until after the award: the DOJ Agreement (dated 17 January 2017) and the SEC Order (dated 7 April 2016). The Court of Appeal treated these as the “FCPA Findings” and the US authorities as the “US Authorities”. The appellants’ argument was essentially that the respondents’ concealment of fraud (in connection with LVS-related conduct investigated by US authorities) had affected the tribunal’s assessment of the alleged misrepresentations and the overall liability outcome.
The Court of Appeal’s analysis emphasised that fraud challenges to arbitral awards are not lightly granted. The public policy ground requires more than a showing that wrongdoing exists somewhere in the background; it requires proof that the award was induced or affected by fraud in a way that undermines the integrity of the arbitral process and the tribunal’s decision-making. In this case, the Court of Appeal scrutinised whether the FCPA Findings established the specific fraud alleged in the arbitration and whether they demonstrated that the respondents had concealed evidence relevant to the tribunal’s rejected claims.
Although the judgment extract provided does not include the full reasoning text, the Court of Appeal’s approach can be understood from the structure of the dispute and the High Court’s dismissal. The Court of Appeal would have assessed (i) whether the FCPA Findings were capable of demonstrating that the respondents’ 2012 Statements or other representations were fraudulent in the sense required for causal fraud; (ii) whether the FCPA Findings related to the same subject matter and factual matrix that the tribunal considered; and (iii) whether the new evidence would likely have led to a materially different outcome on liability, given the tribunal’s findings about access to high rollers, the timing of termination, and the contractual nature of policy development.
In particular, the tribunal had already found that there was no evidence that the respondents had represented they were the same entity as LVS. The appellants’ fraud theory therefore needed to overcome that finding by showing that the respondents’ alleged concealment went to the heart of the tribunal’s reasoning on inducement and seriousness of fraud. The Court of Appeal would also have considered whether the FCPA Findings, being regulatory and prosecutorial documents concerning LVS, were sufficient to establish fraud by the respondents or their principals in the arbitration context, rather than merely indicating that LVS had been subject to US enforcement action.
Further, the Court of Appeal would have considered the procedural fairness dimension inherent in the public policy ground. The appellants’ case depended on the proposition that the arbitration would have proceeded on a wholly different basis had the respondents not concealed evidence. The Court of Appeal’s rejection indicates that the evidential linkage was not strong enough: either the FCPA Findings did not establish the fraud alleged to the required standard, or they did not show that the respondents’ conduct in the arbitration was fraudulent in a way that affected the making of the award.
What Was the Outcome?
The Court of Appeal dismissed the appellants’ appeal. In effect, it upheld the High Court’s decision to dismiss the applications to set aside the arbitral award and to resist its enforcement. The practical effect is that the liability award remained enforceable, and the appellants could not rely on the FCPA Findings to reopen the tribunal’s liability determination on the fraud/public policy ground.
More broadly, the decision confirms that post-award evidence—especially evidence originating from foreign regulatory proceedings—will not automatically justify setting aside or resisting enforcement. A party must demonstrate, with sufficient specificity and evidential strength, that the award was induced or affected by fraud in a manner that engages Singapore’s public policy threshold.
Why Does This Case Matter?
This case matters because it reinforces Singapore’s pro-enforcement and pro-finality approach to arbitration. While Singapore law recognises that an arbitral award may be set aside or enforcement resisted if it is contrary to public policy due to fraud, the threshold is intentionally high. The Court of Appeal’s decision illustrates that courts will not treat later foreign enforcement materials as a substitute for the rigorous proof required to show fraud that affects the making of the award.
For practitioners, the case is a reminder that fraud-based challenges must be carefully pleaded and supported by evidence that directly addresses the alleged fraudulent conduct and its causal impact on the arbitral outcome. Where the alleged fraud concerns representations made during contracting or the arbitration, the challenger must show how the new evidence demonstrates falsity, seriousness, and inducement (or the relevant legal elements) in a way that undermines the tribunal’s reasoning rather than merely suggesting that related entities elsewhere were investigated or sanctioned.
The decision also has practical implications for how parties manage disclosure and evidential strategy in arbitration. If a party believes that crucial evidence may exist in foreign jurisdictions, it should consider early steps for obtaining it, including targeted requests, document preservation, and procedural applications within the arbitration framework. Waiting until after the award to rely on later regulatory documents may be insufficient unless the challenger can establish the precise evidential and causal connection required for a public policy fraud challenge.
Legislation Referenced
- Foreign Corrupt Practices Act (US)
- International Arbitration Act (Singapore)
- Securities Exchange Act (US)
Cases Cited
- [2019] SGHC 69
- [2020] SGHC 01
- [2020] SGHC 1
- [2021] SGCA 9
Source Documents
This article analyses [2021] SGCA 9 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.