Case Details
- Citation: [2021] SGHC 192
- Title: CAN v CNB and another and another matter
- Court: High Court of the Republic of Singapore (General Division)
- Decision Date: 13 August 2021
- Judge: Ang Cheng Hock J
- Case Number: Originating Summons No 1293 of 2020 (Summons No 288 of 2021) and Originating Summons No 1306 of 2020 (Summons No 289 of 2021)
- Parties: CAN (plaintiff/applicant); CNB and another and another matter (defendants/respondents)
- Legal Areas: Civil Procedure — Striking out; Arbitration — Award; Recourse against award — setting aside
- Procedural Posture: Applications to set aside an international arbitral award; defendants applied to strike out on the basis that the setting-aside applications were filed out of time
- Key Issue on this Decision: Whether time for applying to set aside the arbitral award was extended by a request for interpretation/correction under the ICC framework, in light of the Court of Appeal’s approach in BRS v BRQ
- Counsel (OS 1293/2020): Bull Cavinder SC, Tan Yuan Kheng, Lea Woon Yee, Jasdeep Singh Gill and Sim Hong (Drew & Napier LLC) for the plaintiff; Yeo Khirn Hai Alvin SC, Chan Hock Keng, Chen Chi and Liang Fang Ling Elisabeth (WongPartnership LLP) for the defendants
- Counsel (OS 1306/2020): Toby Landau QC (instructed), Rachel Low (Rachel Low LLC) and Zhuo Jiaxiang (Providence Law Asia LLC) for the plaintiffs; Yeo Khirn Hai Alvin SC, Chan Hock Keng, Chen Chi and Liang Fang Ling Elisabeth (WongPartnership LLP) for the defendants
- Statutes Referenced: International Arbitration Act (Cap 143A); Model Law on International Commercial Arbitration (as given force of law in Singapore); ICC Arbitration Rules (procedural framework)
- Cases Cited: [2019] SGHC 260; [2021] SGCA 50; [2021] SGHC 192 (this case)
- Judgment Length: 19 pages, 9,686 words
Summary
CAN v CNB and another and another matter [2021] SGHC 192 concerns two related applications in the Singapore High Court to set aside an international arbitral award. The arbitral tribunal had issued a partial award on liability in June 2020. The applicants (CAN and related parties) filed their setting-aside applications almost six months after receiving the award. The defendants succeeded on a preliminary point: the High Court struck out the setting-aside applications as time-barred.
The central question was whether the applicants’ time limit under Article 34(3) of the UNCITRAL Model Law was extended by making a request to the arbitral tribunal for interpretation and/or correction of the award under the ICC Arbitration Rules. The applicants argued that they acted within time because one of the applicants made such requests and the setting-aside applications were filed within three months of the tribunal’s disposal of those requests. The court rejected this, applying the Court of Appeal’s approach in BRS v BRQ (and another appeal) [2021] SGCA 50, and held that the applicants had not made a valid request capable of extending time. As a result, the setting-aside applications were filed out of time and were struck out.
What Were the Facts of This Case?
The dispute arose out of a long-running commercial and licensing relationship connected to the development and exploitation of an online game series known as “X” and its sequel “X2”. CAN (the developer of the game) and CNB (a company formed by a key developer who left CAN) co-owned and cooperatively developed the software. In early 2000, the parties agreed that the departing developer and his team would leave CAN to set up CNB, with CAN holding 40% and the developer holding 60% of CNB. The parties entered into multiple agreements in 2000 and 2001 to govern their cooperation and the overseas markets for the game.
Under the “Overseas Agreement”, CAN was responsible for development and management of overseas markets and would pay CNB a substantial proportion of overseas sales revenue. Pursuant to authority granted under this arrangement, CAN entered into a software licensing agreement (the “SLA”) in June 2001 on behalf of itself and CNB. The SLA granted exclusive licensing rights to B Ltd and C Corp for the Chinese-language version of the sequel X2 in China. A supplementary agreement in July 2002 further detailed CNB’s obligation to resolve technical problems affecting servicing and normal operation of the Chinese-language version in China.
As the relationship evolved, disputes emerged between CAN and CNB, leading to mutual proceedings. In April 2004, the parties settled. One key term was that CAN would have the right to renew the existing agreements with B Ltd, but would need to consult CNB when renewing. Over time, the SLA was amended, extended, and assigned. By 2009, CND became the licensee of X2 under the SLA, and CNE became a guarantor of CND’s obligations to CAN. The parties’ corporate structures also changed: CNE acquired a controlling stake in CAN, and CNB later transferred its software-related business divisions to CNC.
By 2017, the SLA had been extended twice (in 2005 and 2008). After the 2008 extension, the SLA was due to expire on 28 September 2015, with an automatic extension to 28 September 2017 if no new disputes arose regarding the X2 license between CAN and CNE. CNB communicated in January 2017 that it would not agree to any extension, alleging copyright infringements and breaches by CND and CNE. CAN took the position that it had authority to review and decide whether to renew the SLA; CNB/CNC disputed this, and the parties reached an impasse.
What Were the Key Legal Issues?
The immediate legal issue for this decision was procedural rather than substantive: whether the applicants’ applications to set aside the arbitral award were filed within the time limit prescribed by Article 34(3) of the Model Law. The High Court had to determine whether the time limit was extended by a request for interpretation and/or correction of the award under the ICC Arbitration Rules.
More specifically, the court had to assess whether the applicants had made a “valid” request that fell within the ICC framework for interpretation/correction such that the tribunal’s handling of that request could suspend or extend the Article 34(3) time period. The defendants relied on the Court of Appeal’s recent guidance in BRS v BRQ, arguing that the applicants’ communications did not amount to a proper request capable of extending time. The applicants contended that they acted within time because they filed their setting-aside applications within three months of the tribunal’s disposal of their interpretation/correction requests.
How Did the Court Analyse the Issues?
The High Court began by situating the procedural framework. The arbitral award in question was a partial award on liability issued by the ICC tribunal on 8 June 2020. The applicants received the original hard copy on 26 June 2020. Under Article 34(3) of the Model Law (which has force of law in Singapore via section 3 of the International Arbitration Act), an application to set aside an arbitral award must be made within three months of receipt of the award. On the face of it, the three-month period ran from 26 June 2020, meaning the setting-aside applications should have been filed by late September 2020.
The applicants’ setting-aside applications were filed almost six months after receipt of the award. Accordingly, unless time was extended, the applications were prima facie time-barred. The applicants therefore relied on the ICC Arbitration Rules mechanism. On 24 July 2020, CAN made an application to the ICC Secretariat under Article 36(2) of the ICC Arbitration Rules for correction and/or interpretation of the award. The applicants’ position was that they filed their setting-aside applications within three months of the tribunal’s disposal of those requests, and therefore complied with the extended time period.
The defendants’ response was that the applicants had not made a valid request for interpretation or correction. They argued that, following the Court of Appeal’s approach in BRS v BRQ, only requests that properly engage the ICC’s interpretation/correction procedure can extend time. If the request was not validly made—whether because it did not meet the procedural requirements or because it was not truly a request for interpretation/correction but rather a disguised attempt to re-argue the merits—then the Article 34(3) clock would not be extended.
In analysing this, Ang Cheng Hock J applied the Court of Appeal’s reasoning in BRS v BRQ. Although the judgment extract provided here is truncated, the key takeaway from the High Court’s approach is clear: the court scrutinised whether the applicants’ submissions to the ICC Secretariat were genuinely within the scope of Article 36(2) (interpretation of an award) and/or Article 36(1) (correction of clerical, computational, typographical or similar errors), and whether they were made in a manner that the ICC rules contemplate. The court was not prepared to treat any post-award correspondence as automatically extending time. Instead, it required compliance with the legal character of the request.
On the applicants’ evidence, the court found that no valid request had been made for interpretation or correction capable of extending the time for setting aside. The consequence was that the Article 34(3) time limit remained anchored to the receipt date of the award. Because the setting-aside applications were filed well beyond the three-month period, they were time-barred. The striking out applications therefore succeeded, and the court did not proceed to hear the merits of the setting-aside applications.
What Was the Outcome?
The High Court struck out both Originating Summonses seeking to set aside the arbitral award. The practical effect was that the applicants lost the opportunity to challenge the partial award in the Singapore courts, at least in relation to the liability findings contained in the partial award.
Because the setting-aside applications were dismissed on limitation grounds, the court did not determine the substantive grounds that the applicants might have raised under Article 34 (such as jurisdictional error, procedural irregularity, or other Model Law grounds). The decision therefore underscores that procedural compliance—especially time limits for recourse against awards—is decisive.
Why Does This Case Matter?
CAN v CNB is significant for practitioners because it reinforces a strict and principled approach to time limits for setting aside arbitral awards in Singapore. Article 34(3) of the Model Law is designed to provide finality to arbitral awards. While the ICC rules provide a route for correction or interpretation, the High Court’s decision makes clear that parties cannot rely on loosely framed or substantively merit-based post-award requests to extend the statutory time period.
For lawyers advising clients on arbitration strategy, the case highlights the importance of distinguishing between (i) a genuine request for interpretation or correction of an award within the ICC rules and (ii) an attempt to reopen the merits or to obtain a de facto reconsideration. The court’s reliance on BRS v BRQ signals that Singapore courts will examine the nature and validity of the request, not merely its label. This has direct implications for drafting and timing: parties must ensure that any Article 36 request is properly made to the ICC Secretariat within the required timeframe and is confined to the scope of interpretation/correction contemplated by the rules.
From a litigation management perspective, the decision also serves as a cautionary tale about calendaring and procedural discipline. Even where parties intend to pursue setting aside, they must treat the Article 34(3) deadline as the default unless they can confidently establish that a valid interpretation/correction request has been made. Otherwise, the setting-aside application may be struck out without any substantive review of the arbitral award.
Legislation Referenced
- International Arbitration Act (Cap 143A), s 3
- UNCITRAL Model Law on International Commercial Arbitration, Article 34(3)
- ICC Arbitration Rules, Article 36(1) and Article 36(2) (as applied procedurally in the case)
Cases Cited
- [2019] SGHC 260
- [2021] SGCA 50 (BRS v BRQ and another and another appeal)
- [2021] SGHC 192 (CAN v CNB and another and another matter)
Source Documents
This article analyses [2021] SGHC 192 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.