CUG & 3 Ors v CUH

"The crucial issue before this Court is whether a legally binding arbitration agreement came into existence between, in particular, CUG and CUH." — Per Sir Henry Bernard Eder IJ, Para 5

Case Information

• Citation: [2022] SGHC(I) 16 (Para 0)
• Court: Singapore International Commercial Court, Originating Summons No 10 of 2022 (Para 0)
• Date: 7 July 2022; 2 December 2022 (Para 0)
• Coram: Sir Henry Bernard Eder IJ (Para 0)
• Case Number: Originating Summons No 10 of 2022; SIC/OS 10/2022 (Para 0)
• Area of Law: Arbitration — Arbitral Tribunal — Jurisdiction; Contract — Formation (Para 0)
• Counsel for CUG and the other Applicants: Not answerable from the supplied extraction (NOT ANSWERABLE)
• Counsel for CUH: Not answerable from the supplied extraction (NOT ANSWERABLE)
• Judgment Length: The supplied extraction indicates the judgment runs to at least 63 paragraphs, but the full text is not supplied here (Para 0)

Summary

This application was brought under s 10(3) of the International Arbitration Act as a challenge to a tribunal’s ruling on jurisdiction. The tribunal had issued a Partial Final Award on Jurisdiction, and the court was asked to decide whether CUH was bound by the Agreements and, in particular, by the arbitration agreements contained in them. The court emphasised at the outset that the “crucial issue” was whether a legally binding arbitration agreement had come into existence between CUG and CUH. (Para 1) (Para 5)

The dispute arose out of a joint venture project and later arrangements under which CUG was engaged to assist in recovering outstanding payments. CUH never signed the Agreements, and the central controversy was whether its later conduct nevertheless amounted to objective acceptance of those Agreements. The court therefore examined the parties’ negotiations, CUH’s refusal to sign because of objections to the fee structure, the later authorisation of payments, and the surrounding dealings, all against the background of English law’s objective theory of contract formation. (Para 10) (Para 13) (Para 26) (Para 40) (Para 85)

The court also made clear that a jurisdiction challenge under s 10(3) is reviewed de novo, and that the tribunal’s views and findings have no binding legal or evidential value on the curial court. The analysis therefore proceeded independently of the tribunal’s reasoning, with the court focusing on whether the objective evidence showed that CUH had accepted the Agreements by conduct, and whether the waiver and estoppel arguments could matter if acceptance was not established. (Para 82) (Para 79) (Para 80)

How did the dispute arise out of the joint venture and the later recovery arrangements?

The factual matrix began with a joint venture formed in November 2013. CTM, CTN, CTO and CUH entered into a joint venture agreement to form an unincorporated joint venture, and the project concerned a refinery in Osteria. The court recorded that the project was awarded in 2014, which formed the commercial backdrop to the later dispute over outstanding payments. (Para 10) (Para 11)

"On 19 November 2013, CTM, CTN, CTO and CUH … entered into a joint venture agreement (the “JV Agreement”) to form an unincorporated joint venture (the “JV”)." — Per Sir Henry Bernard Eder IJ, Para 10

By 2017, the JV and CUG were negotiating a separate arrangement under which CUG would provide services to assist the JV in securing outstanding payments. The court described these as the “Outstanding OSC Payments” and noted that the negotiations concerned, among other things, the provision of those services. This was the commercial setting in which the Agreements later came to be drafted and circulated. (Para 13)

"Sometime in 2017, the JV and CUG entered into negotiations involving, inter alia, the provision of services by CUG in assisting the JV to secure the Outstanding OSC Payments (the “Services”)." — Per Sir Henry Bernard Eder IJ, Para 13

The court also referred to the JV Agreement’s internal governance mechanism. Clause 4.7.15 provided that where unanimity could not be reached on a matter, the matter would be provisionally resolved by the JV Leader, notwithstanding the provisions of the preceding clause and without prejudice to the parties’ rights under another article. That clause mattered because the later payment authorisations and internal approvals were part of the factual narrative relied upon by the Applicants to show that CUH had, in substance, participated in the arrangements. (Para 15)

"Notwithstanding the provisions of Article 4. 7.14 hereinabove and without prejudice to the rights of the [JV Parties] pursuant to Article 13 herein, in the event that the necessary unanimity cannot be reached on any matter, then the matter in question shall be provisionally resolved by the [JV Leader]." — Per Sir Henry Bernard Eder IJ, Para 15

Why was CUH’s refusal to sign the Agreements so important?

The court treated CUH’s non-signature as the starting point for the legal analysis. On 19 November 2017, CUG and the Original Parties signed the Agreements, but CUH did not sign because it maintained objections to the fee structure proposed by CUG. That fact was central because the Applicants’ case depended on showing that, despite the absence of signature, CUH later accepted the Agreements by conduct. (Para 26)

"On 19 November 2017, CUG and the Original Parties signed the Agreements. However, CUH did not sign the Agreements as it maintained its objections in relation to the fee structure proposed by CUG." — Per Sir Henry Bernard Eder IJ, Para 26

The court’s later reasoning shows that this refusal to sign was not treated as a mere formality. Instead, it framed the burden of proof and the question whether the Applicants could establish objective acceptance. CUH’s position was that it had never signed, had never clearly and unequivocally accepted the Agreements, and that the Applicants therefore had to prove that it was bound notwithstanding the absence of signature. (Para 75)

"The starting position is that CUH did not sign the Agreements. Accordingly, CUH submits that the legal burden of proof is on the Applicants to demonstrate that CUH was a party to the Agreements" — Per Sir Henry Bernard Eder IJ, Para 75

That issue was not merely formal. The court later explained that the central question was whether CUH’s conduct, viewed objectively, showed acceptance of the Agreements and the arbitration clauses within them. If not, the application would fail regardless of any separate waiver argument. (Para 76) (Para 79)

What conduct did the Applicants rely on to say CUH accepted the Agreements?

The Applicants relied on a course of conduct that they said was inconsistent with CUH’s continued refusal to be bound. The court recorded that between 19 February 2018 and 27 October 2018, ten payments totalling approximately USD 28.6 million were made from the JV Bank Account against separate invoices issued by CUG. The Applicants said these payments corresponded to the 2.2% rate stated in the Agreements and therefore showed performance under the contractual framework. (Para 40)

"Between 19 February 2018 and 27 October 2018, a total of ten payments totalling approximately USD 28.6m equivalent to the 2.2% rate stated in the Agreements, were made by the JV out of the JV Bank Account against separate invoices issued by CUG" — Per Sir Henry Bernard Eder IJ, Para 40

The court also noted that CUH authorised a total of approximately USD 49.2 million in payments to CUG across 12 separate transactions from February 2018 to March 2020. That factual finding was relied upon by the Applicants as evidence that CUH had not merely acquiesced in the payments but had actively authorised them, thereby allegedly accepting the contractual arrangement. (Para 65)

"CUH authorised a total of approximately USD 49.2m in payments to CUG across 12 separate transactions from February 2018 to March 2020." — Per Sir Henry Bernard Eder IJ, Para 65

The Applicants also pointed to later dealings, including CUH’s participation in negotiations and the eventual settlement of the first arbitration before the present ICC arbitration was commenced. The court recorded that CUG commenced the ICC Arbitration on 6 July 2020 claiming payment of USD 12.8 million allegedly due under the Agreements, which shows that the dispute had by then crystallised into a jurisdictional contest over whether the Agreements, and their arbitration clauses, bound CUH. (Para 67)

"On 6 July 2020, CUG commenced the ICC Arbitration against CUH and the Original Parties by filing its Request for Arbitration and claiming payment of USD 12.8m allegedly due under the Agreements." — Per Sir Henry Bernard Eder IJ, Para 67

How did the court frame the central legal issues?

The court framed the dispute in a way that made acceptance the primary issue. It stated that the central issue was whether CUH was bound by the Agreements, and therefore by the arbitration agreements contained within them. It then identified the specific question as whether CUH, by its conduct, accepted the Agreements notwithstanding its refusal to sign them, and if so, when that acceptance occurred. (Para 76)

"Against that background, I turn to consider the central issue in this application, viz, whether CUH is bound by the Agreements, and therefore the Arbitration Agreements contained within." — Per Sir Henry Bernard Eder IJ, Para 76

"Did CUH, by its conduct, accept the Agreements notwithstanding its refusal to sign them? If so, at which period throughout the parties’ transaction did the acceptance take place (the “Acceptance Issue”)?" — Per Sir Henry Bernard Eder IJ, Para 76

The court also identified a separate “Waiver Issue”, but it made clear that the waiver question would not matter if acceptance failed. The judgment expressly stated that if the Applicants succeeded on waiver but failed on acceptance, the application would still fail. That meant the court could resolve the case by deciding the acceptance issue alone, without needing to determine waiver. (Para 79)

"If the Applicants are successful on the Waiver Issue, but fail on the Acceptance Issue, then their application in the present case will still fail." — Per Sir Henry Bernard Eder IJ, Para 79

The court further noted the relationship between acceptance and estoppel. It observed that the estoppel issue and the acceptance issue “stand and fall together,” which meant that the estoppel argument did not provide an independent route to binding CUH if the objective evidence did not establish acceptance. This framing narrowed the analysis to the objective contractual question. (Para 80)

"The estoppel issue and the Acceptance Issue stand and fall together." — Per Sir Henry Bernard Eder IJ, Para 80

What did each side argue about CUH’s conduct and the burden of proof?

The Applicants argued that CUH had performed the Agreements through its authorisation of payments out of the JV Bank Account and by paying its 37.5% share of the fees to CUG pursuant to the Agreements. Their case was that these acts were not merely administrative or facilitative, but were conduct from which acceptance of the contractual package should be inferred. (Para 73)

"CUH had performed the Agreements, by its authorisation of the payments out of the JV Bank Account and by its payment of its 37.5% share of the fees to CUG pursuant to the terms of the Agreements." — Per Sir Henry Bernard Eder IJ, Para 73

CUH’s response was that the legal burden lay on the Applicants to prove that it was a party to the Agreements. It emphasised that it had not signed the Agreements and that the Applicants therefore had to show, by objective evidence, that CUH had accepted them. The court recorded this submission as the starting position of CUH’s case. (Para 75)

"The starting position is that CUH did not sign the Agreements. Accordingly, CUH submits that the legal burden of proof is on the Applicants to demonstrate that CUH was a party to the Agreements" — Per Sir Henry Bernard Eder IJ, Para 75

The court’s treatment of these competing positions shows that the dispute was not about subjective intention. Rather, it was about whether the external manifestations of conduct, viewed objectively, were sufficient to create a binding contract. That is why the court later turned to English law’s objective theory of contract formation and the possibility that contracts may arise through performance. (Para 85)

"English law generally adopts an objective theory of contract formation, ignoring the parties’ subjective expectations and unexpressed mental reservations." — Per Sir Henry Bernard Eder IJ, Para 85

What legal principles did the court apply to determine whether a contract came into existence by conduct?

The court stated the governing principle in objective terms. It quoted the proposition that whether there is a binding contract depends not on subjective state of mind, but on what was communicated by words or conduct and whether that objectively shows an intention to create legal relations and agreement on all essential terms. This was the core legal test applied to the Acceptance Issue. (Para 85)

"Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations" — Per Sir Henry Bernard Eder IJ, Para 85

The court also noted that English law generally adopts an objective theory of contract formation and that contracts may come into existence not only through offer and acceptance but also during and as a result of performance. That principle was important because the Applicants’ case depended on conduct after the Agreements were circulated and signed by others, rather than on a signed acceptance by CUH. (Para 85)

"Contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance." — Per Sir Henry Bernard Eder IJ, Para 85

In addition, the court made clear that the tribunal’s views and findings were not binding on the court in a s 10(3) challenge. The court cited authority for the proposition that the tribunal’s reasoning has no legal or evidential value, though it may at best be persuasive. This mattered because the court was conducting its own independent review of jurisdiction. (Para 82)

"the tribunal’s views and findings have no legal or evidential value and are not binding on the curial court" — Per Sir Henry Bernard Eder IJ, Para 82

"At best, the tribunal’s reasonings may be of persuasive value to the court" — Per Sir Henry Bernard Eder IJ, Para 82

How did the court approach the jurisdiction challenge under s 10(3) of the International Arbitration Act?

The court expressly stated that it conducts a de novo review when reviewing a tribunal’s ruling on jurisdiction under s 10(3) of the Act. That meant the court was not confined to the tribunal’s reasoning or conclusions, and instead had to decide the jurisdictional question for itself on the material before it. (Para 82)

"the court conducts a de novo review when reviewing the tribunal’s ruling on jurisdiction under s 10(3) of the Act." — Per Sir Henry Bernard Eder IJ, Para 82

The statutory basis for the challenge was s 10(3), which allows a party to apply to the General Division of the High Court within 30 days after receiving notice of a tribunal ruling on jurisdiction. The judgment reproduced the statutory language and relied on it as the procedural foundation for the present application. (Para 81)

"Appeal on ruling of jurisdiction 10.— … (3) If the arbitral tribunal rules – (a) on a plea as a preliminary question that it has jurisdiction; or (b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction, any party may, within 30 days after having received notice of that ruling, apply to the General Division of the High Court to decide the matter." — Per Sir Henry Bernard Eder IJ, Para 81

Because the review was de novo, the court’s task was to determine independently whether CUH was bound by the Agreements and the arbitration clauses. The court therefore focused on the objective evidence of conduct, the contractual documents, and the legal principles governing formation, rather than treating the tribunal’s award as determinative. (Para 82) (Para 85)

What role did the evidence play, and why was the absence of oral evidence significant?

The court noted that the evidence consisted of affidavits together with selected contemporaneous exhibits. That is significant because the court was deciding a jurisdictional challenge on a paper record rather than after oral testimony. The court therefore had to assess the documentary trail and the affidavit evidence to determine whether CUH’s conduct objectively amounted to acceptance. (Para 5)

"The only evidence consisted of a number of affidavits (together with a selection of contemporaneous exhibited thereto)" — Per Sir Henry Bernard Eder IJ, Para 5

The court also remarked that there was no written record of the Westalis Meeting and that the evidence about what supposedly happened or was said there was “scanty in the extreme.” This observation is important because the Applicants appear to have relied on that meeting as part of the factual narrative supporting acceptance, but the court was cautious about drawing strong conclusions from such thin evidence. (Para 37)

"there is no written record of that meeting; and the evidence on what supposedly happened or what was said during the Westalis Meeting is scanty in the extreme." — Per Sir Henry Bernard Eder IJ, Para 37

The documentary evidence also included the payment history. The court recorded the ten payments totalling approximately USD 28.6 million and later the broader figure of approximately USD 49.2 million authorised by CUH. Those figures were central to the Applicants’ argument that CUH had acted consistently with the Agreements, but the court’s legal task was to decide whether those acts, viewed objectively, were enough to establish contractual acceptance. (Para 40) (Para 65)

How did the court treat the relationship between acceptance, waiver, and estoppel?

The court treated acceptance as the gateway issue. It said that if the Applicants failed to establish acceptance, the application would fail even if they succeeded on waiver. That sequencing shows that waiver was not an independent substitute for proving that CUH had become bound by the Agreements in the first place. (Para 79)

"If the Applicants are successful on the Waiver Issue, but fail on the Acceptance Issue, then their application in the present case will still fail." — Per Sir Henry Bernard Eder IJ, Para 79

The court also linked estoppel to acceptance by stating that the estoppel issue and the Acceptance Issue “stand and fall together.” In practical terms, that meant the court did not treat estoppel as a separate doctrinal route that could rescue the Applicants if the objective evidence did not show acceptance. The legal analysis therefore remained anchored in contract formation. (Para 80)

"The estoppel issue and the Acceptance Issue stand and fall together." — Per Sir Henry Bernard Eder IJ, Para 80

This approach is consistent with the court’s overall methodology. Rather than deciding every possible doctrinal pathway in the abstract, the court identified the dispositive issue and then asked whether the evidence satisfied the objective test for contract formation. If not, the arbitration agreement could not be enforced against CUH on the basis advanced by the Applicants. (Para 76) (Para 85)

What was the significance of the court’s discussion of English law on contract formation?

The court’s discussion of English law was central because the Agreements were governed by English law, and the court therefore applied English principles of objective contract formation. The court quoted the proposition that the inquiry depends on what was communicated by words or conduct, not on subjective state of mind. That principle governed the assessment of whether CUH’s conduct amounted to acceptance. (Para 85)

"Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations" — Per Sir Henry Bernard Eder IJ, Para 85

The court also relied on the proposition that contracts may come into existence during and as a result of performance. That is especially important in commercial disputes where parties may proceed without a signed document but nonetheless act in a way that may evidence a concluded bargain. The Applicants’ case depended heavily on this idea because CUH had not signed the Agreements but had allegedly participated in performance. (Para 85)

"Contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance." — Per Sir Henry Bernard Eder IJ, Para 85

At the same time, the court did not treat performance as automatically conclusive. The objective question remained whether the conduct, in context, showed an intention to create legal relations and agreement on the essential terms. The court’s reasoning therefore preserved the distinction between mere commercial cooperation and legally binding acceptance. (Para 85)

Which authorities did the court refer to, and how were they used?

The court referred to Jiangsu Overseas Group Co Ltd v Concord Energy Pte Ltd and another matter for the proposition that a tribunal’s views and findings have no legal or evidential value and are not binding on the curial court in a jurisdiction challenge. That authority supported the court’s de novo approach under s 10(3). (Para 82)

"the tribunal’s views and findings have no legal or evidential value and are not binding on the curial court" — Per Sir Henry Bernard Eder IJ, Para 82

The court also referred to Sanum Investments Ltd v Government of the Lao People’s Democratic Republic for the proposition that the tribunal’s reasoning may at best be of persuasive value. This reinforced the point that the court was not bound by the tribunal’s analysis, even though it could consider it if helpful. (Para 82)

"At best, the tribunal’s reasonings may be of persuasive value to the court" — Per Sir Henry Bernard Eder IJ, Para 82

On the contract-formation question, the court referred to RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Company KG (UK Production) and, within that discussion, G Percy Trentham Ltd v Archital Luxfer Ltd. These authorities were used to support the objective theory of contract formation and the proposition that commercial contracts may arise through performance and the reasonable expectations of honest sensible businesspeople. (Para 85)

"English law generally adopts an objective theory of contract formation, ignoring the parties’ subjective expectations and unexpressed mental reservations." — Per Sir Henry Bernard Eder IJ, Para 85

"the reasonable expectations of honest sensible businessmen" — Per Sir Henry Bernard Eder IJ, Para 85

The court also referred to Tinkler v Revenue and Customs Commissioners in connection with the estoppel/common assumption discussion. The extracted material indicates that the case was cited for the proposition that the estoppel issue and the Acceptance Issue “stand and fall together.” (Para 80)

"stand and fall together" — Per Sir Henry Bernard Eder IJ, Para 80

Why does this case matter for arbitration jurisdiction and contract formation?

This case matters because it illustrates how a court will approach a challenge to arbitral jurisdiction where the alleged arbitration agreement was never signed by one of the parties. The court’s focus was not on formal signature alone, but on whether the objective evidence showed that the non-signing party accepted the agreement by conduct. That is a recurring issue in commercial arbitration, especially where parties proceed with performance before disputes arise. (Para 26) (Para 76) (Para 85)

It also matters because the court reaffirmed that a jurisdiction challenge under s 10(3) is reviewed de novo. Practitioners should note that the tribunal’s ruling is not treated as binding on the court, and the court will independently assess whether jurisdiction exists. That has obvious strategic significance for parties considering whether to challenge or defend a tribunal’s jurisdictional ruling. (Para 81) (Para 82)

Finally, the case is a reminder that conduct such as authorising payments, participating in negotiations, and later commercial dealings may be relied upon as evidence of acceptance, but those facts must still satisfy the objective legal test. The judgment therefore sits at the intersection of arbitration law and contract formation, and it underscores that the existence of an arbitration agreement depends on orthodox contractual principles, not merely on the practical reality that the parties did business together. (Para 40) (Para 65) (Para 85)

Cases Referred To

Legislation Referenced

• International Arbitration Act (Cap 143A, 2002 Rev Ed), s 10(3) (Para 81) [CDN] [SSO]

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2022] SGHCI 16 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.