Singapore International Commercial Court

1 This is an application to set aside the final awards in two Singapore seated arbitrations. In one award, the First Applicant was held liable to the Respondent as principal debtor under a margin financing facility agreement in a sum just short of HKD 80m, plus interest and costs.^[1]In the other award, the Second Applicant was held liable to the Respondent as guarantor for the same amount, plus interest and costs.^[2]

2 The application was filed in the General Division of the High Court on 19 June 2023,^[3]and was transferred to the Singapore International Commercial Court on 7 August 2023. At an early time, the learned Deputy Registrar made consent orders on the Respondent's application that the court file for this application be sealed and the identity of the parties to the proceedings not be identified in any hearing lists,^[4]hence the computer allocated title of this judgment. The learned Deputy Registrar reserved to the Judge hearing the application the Respondent's prayer for an order that the "[p]arties' identities on the case file be anonymised and any written judgments, orders, and/or grounds in the proceedings be duly amended so as not to reveal the identity of the parties to the proceedings".^[5]

3 The first part of that prayer has in practice been accommodated by the sealing of the court file and the allocated title. The Applicants did not oppose the second part of the prayer. The arbitral proceedings were subject to confidentiality, and on the materials before me no reason appears why the derivative interest in protecting their confidentiality (see The Republic of India v Deutsche Telecom AG [2023] SGCA(I) 4 at [23]) should not be recognised as an exception to the general principle of open justice. However, I am doubtful about an order effectively directed to myself, and an order is unnecessary. Avoiding the confusion of consonants in the names in the allocated title, I will refer to the First Applicant, a company, as "ACo" and to the Second Applicant, a natural person, as "A" (and to them together as the "Applicants"), and to the Respondent, a company, as "RCo"; and I will frame this judgment and any orders so as not to reveal the parties' identities (including gender neutrality as to A).

4 The relief claimed in the application was in the form that the Applicants applied to set aside the awards in both arbitrations; that is, that ACo applied to set aside the award against A (the "A award") as well as the award against itself (the "ACo award"), and vice versa.^[6]This was incorrect. The wrapped-up approach was carried through to the hearing of the application, albeit not entirely inappropriately when the grounds for setting aside and the submissions were generally directed to setting aside both awards without distinction according to the applicant and the award, although there were occasions when distinction was necessary. RCo noted the incorrect form of the application as "irregular",^[7]but no substantive point was taken and the matter need not be considered further.

5 The application was brought on the following grounds:

(a) that there was no valid arbitration agreement between ACo and RCo (see Art 34(2)( a)(i) of the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law") as given the force of law in Singapore by s 3 of the International Arbitration Act 1994 (2020 Rev Ed) (the "IAA")) ("Ground (a)");^[8]

(b) that the Applicants were not given proper notice of the arbitral proceedings (see Art 34(2)( a)(ii) of the Model Law and s 24( b) of the IAA) ("Ground (b)");^[9]and

(c) that the awards are contrary to the public policy of Singapore (see Art 34(2)( b)(ii) of the Model Law) ("Ground (c)").^[10]

6 The application was supported by two affidavits of A, one made on behalf of ACo^[11]and the other made on their own behalf adopting the contents of the first affidavit.^[12]The application was opposed through an affidavit of the CEO (and also a director) of RCo. All affidavits went beyond evidence to include a deal of argumentative material.

7 While the relevant sub-articles of Art 34(2) of the Model Law and the sub-sections of s 24 of the IAA underlying the grounds for setting aside can be inferred from the Applicants' affidavits (in which Ground (a) included that there was no valid arbitration agreement between A and RCo), they were not explicitly stated in the application or the affidavits. By O 48 r 2(4)( a) of the Rules of Court 2021 (the "Rules"), the affidavit in support of an application to set aside an award must "state the grounds in support of the application". Referring to BZW and another v BZV [2022] 1 SLR 1080 (" BZW") at [48], where in relation to the predecessor O 69A r 2(4A) of the Rules of Court (2014 Rev Ed) the Court of Appeal said that the rule would be satisfied by a brief statement of the sub-articles of Art 34(2) of the Model Law and s 24 of the IAA which were relied on to justify the setting aside application, RCo submitted that the application was again "irregular".^[13]It did not, however, submit that the application was defective, as had been the argument in BZW (at [39]-[44]) , and BZWdoes not prescribe that express reference to the relevant sub-articles is the only way of stating the grounds. Again, while RCo noted the matter it did not take a substantive point, and again the matter need not be considered further.

8 Apart from contesting the merits of the grounds, RCo contended that the application had been brought out of time, being outside the period of three months from the date of receipt of the awards stipulated in Art 34(3) of the Model Law and O 48 r 2(3) of the Rules.^[14]

9 ACo is an investment holding company incorporated in the British Virgin Islands (the "BVI").^[15]A is its sole director and beneficial shareholder.^[16]RCo is incorporated in Singapore, and carries on the business of brokering stocks and futures.^[17]

10 In December 2017, RCo provided to ACo a margin financing facility (the "Facility") for its investment activities. A Margin Facility Letter (the "Letter") dated 17 December 2017 offered the opening and operation of a Margin Financing Account (the "Account") with a limit of HKD 200m on the terms set out therein, and was signed by A as the authorised signatory of ACo by way of acceptance.^[18]Relevantly to the application, the Letter included in cll 1.1 and 1.3 that the Account would be subject to "the provisions of all relevant Rules of Singapore Exchange Securities Trading Limited", that is, the Singapore Stock Exchange, and to RCo's Terms and Conditions for Trading Accounts (the "Terms").^[19]The acceptance of the Letter included that ACo had read and understood the Terms,^[20]and I will return more fully to the document in these respects. The Letter also included that A would guarantee the Account, and A signed a separate Deed of Guarantee and Indemnity (the "Guarantee").^[21]The copies in evidence were undated.

11 The Letter and the Guarantee were in English, as were the Terms. Each of the Terms and the Guarantee contained an arbitration clause, in cl 34 and cl 33 respectively, these being the clauses on which RCo brought the arbitral proceedings.^[22]Again relevantly to the application, the arbitration clause in cl 34 of the Terms provided that submission of a dispute to arbitration was "[a]t the sole option of [RCo] and at its absolute discretion", that is, it was a unilateral arbitration clause; and that the arbitration would be "in accordance with the UNCITRAL Arbitration Rules", meaning the Arbitration Rules of the United Nations Commission on International Trade Law (the "UNCITRAL Rules"). The arbitration clause in cl 33 of the Guarantee provided that the arbitral proceedings would be "in accordance with the Arbitration Rules of the Singapore International Arbitration Centre" (the "SIAC Rules"). Both the Terms and the Guarantee provided for Singapore law as the governing law.

12 An Account Opening Form dated 13 December 2017 was also signed by A on behalf of ACo.^[23]It recorded ACo's request to open and maintain a securities and a securities margin trading account on the terms and conditions in the Securities Trading Account Terms and Conditions (that is, the Terms) and the Securities Margin Trading Account Terms and Conditions.^[24]The signed document was also in English, and included that A acknowledged and confirmed receipt of the Terms, the Securities Margin Trading Account Terms and Conditions, a fee schedule, and a risk disclosure statement.^[25]

13 A also signed a Client Information Statement dated 13 December 2017 as the authorised signatory of ACo.^[26]Relevantly to the application, ACo gave an address in the BVI as its "Registered Address" (the "BVI address"), an address in Hong Kong as its "Correspondence Address" (the "ACo Hong Kong address"), an email address xxx@163.com as its email address (the "163 email address"), and a Hong Kong number as its telephone number.^[27]The form asked for the identity of the ultimate beneficial owner of the Account, and was completed with the name of A and a different Hong Kong address (the "A Hong Kong address") as well as the same Hong Kong number as their telephone number. It also asked for the identity of the persons ultimately responsible for giving instructions in relation to transactions to be conducted through the Account, and was completed with the name of A and some particulars including the same Hong Kong number, as well as the name and some particulars of a second person, who is in fact A's son and whom I will call "X".

14 In the Guarantee which they signed, A was said to be "of" the ACo Hong Kong address.^[28]In their affidavit made on behalf of ACo in support of the application, under "Registered Address", they were said to be "Care Of" the BVI address.^[29]

15 No evidence explained the different dates of 13 and 17 December 2017, save perhaps for an obscure reference in ACo's affidavit to ACo having submitted the Account Opening Form to an associated company of RCo in Hong Kong, which I will call "RCoHK", "when making its request to open and maintain a margin securities trading account with the company".^[30]As later discussed, there was a dearth of evidence explaining the circumstances in which the Facility was provided.

16 The Facility was initially for a period of 12 months.^[31]It was later agreed that it would be extended to a date in June 2019, with a reduced limit of HKD 190m.^[32]At this time another person, whom I will call "Z", also signed a guarantee of ACo's payment obligations to RCo, with a limit of HKD 100m.^[33]

17 ACo utilised the facility for trading, with all trading on the Hong Kong Stock Exchange. There was no evidence of how the actual trading was conducted, but the Terms provided at cl 3.2 that transactions could be effected by RCo if authorised to deal on the relevant Exchange or at its option, "indirectly through any other broker or agent, which [it] may ... decide to appoint",^[34]and it is likely that it was done through RCoHK which was appropriately licenced in Hong Kong.^[35]A letter dated 28 January 2019 about the suspension of ACo's account pending annual review was sent from RCoHK,^[36]and it was not suggested in the Applicants' case that the trading was done by RCo itself. Monthly statements and at least some daily statements, in the period from December 2017 to May 2023, recording the portfolio and the state of the Account were sent by RCo to ACo at the ACo Hong Kong address, marked for the attention of A, and were also emailed to the 163 email address.^[37]As recorded by the arbitrator in both awards, ACo used the 163 email address when corresponding with RCo,^[38]and the evidence included an email sent from that email address dated 27 May 2020 in relation to RCo's liquidation of securities as next mentioned.^[39]

18 ACo asked to renew the facility beyond June 2019, but RCo declined.^[40]The Account was substantially in debit. Some partial payments in reduction of debit balance in the Account were made, and RCo liquidated some securities which it held in further reduction of the Account.^[41]In the arbitrations, RCo claimed the outstanding balance of the Account.^[42]

19 As noted above, there were two arbitrations. The arbitrations were before the same sole arbitrator (the "Tribunal").^[43]As recorded by the Tribunal, the arbitral proceedings against ACo were initiated by RCo pursuant to the arbitration clause in the Terms, incorporated by reference into the Letter, while the arbitral proceedings against A were initiated by it pursuant to the arbitration clause in the Guarantee.^[44]The arbitral proceedings against A were later consolidated with separate arbitral proceedings brought against Z, and the award in that arbitration was for their joint and several liability to RCo.^[45]Z has not applied to set aside the award.

20 The two arbitral proceedings against ACo and A respectively were commenced on the same day, and they together with the subsequently consolidated proceedings against Z were conducted essentially jointly and on the same timetabling. They came to a merits hearing in the claim against ACo on one day, and in the claims against A and Z on the next day,^[46]and after post-hearing submissions at the Tribunal's request,^[47]awards dated the same day were issued.^[48]

21 Neither ACo nor A (nor Z) participated in the arbitrations in any way.^[49]As recorded by the Tribunal, they did not respond to the Notices of Arbitration, attend any procedural meetings, respond to any communication from RCo or the Tribunal, or attend either merits hearing.^[50]

22 In both awards, the Tribunal recorded that RCo had made efforts via both email and hard copy to provide notice of the proceedings to the relevant respondent.^[51]In both arbitral proceedings, the Tribunal directed RCo to keep a detailed record of all attempts to provide notice,^[52]and annexed the service log maintained by RCo to the awards.^[53]The emails were sent to the 163 email address,^[54]and the Tribunal noted in the ACo award that delivery failure messages had not been received by it in response to its emails sent to ACo.^[55]Referring to notice provisions in the Letter and the Terms in the case of ACo, and in the Guarantee in the case of A, as well as to notice provisions in the Model Law and the UNCITRAL Rules in the case of ACo, and in the Model Law and the SIAC Rules in the case of A, the Tribunal recorded in both awards that "reasonable and sufficient effort" had been made to provide due notice to the relevant respondent and to provide them with a fair opportunity to be heard and participate in the relevant arbitral proceedings.^[56]

23 The Tribunal issued awards dated 18 February 2023 in both arbitrations. In the ACo award, it was ordered that ACo pay to RCo HKD 79,978,911.10, plus interest and an amount for costs, subject to reduction in the event of payment by one of the guarantors A or Z or further realisation of securities.^[57]In the A award, it was ordered that A and Z were jointly and severally liable to RCo for the same amount, plus interest and an amount for costs, subject to a similar reduction and in the case of Z to a cap of HKD 100m.^[58]

24 The Tribunal subsequently issued corrections to both awards on its own initiative. What occurred in this respect is material to whether the application was brought out of time.

25 Each of the awards issued on 18 February 2023 included, when dealing with costs, a table which included figures for the Tribunal's and SIAC's fees and expenses as part of a figure for the total costs of the arbitration.^[59]SIAC's fees and expenses had three components: (a) an administration fee; (b) SIAC expenses; and (c) GST. In the ACo award, the total costs of the arbitration were $122,868.14,^[60]and in the A award, the total costs of the arbitration were $123,282.14. The amounts awarded for RCo's costs included those total costs.

26 The Tribunal then issued in each case, by way of email on 20 March 2023,^[61]a document dated 19 March 2023 entitled "Correction to final award of 18 February 2023".^[62]Each document recorded that the Tribunal had "[become] aware of a miscalculation of the costs of the arbitration, specifically as to the rate of the Goods and Services Tax ("GST") applied to the Fees and Expenses of the SIAC. The Final Award imposed a rate of 7% whereas the correct rate for the year 2023 is 8%".^[63]

27 The correction to the ACo award continued:^[64]

28 The corresponding paragraphs in the correction to the A award were similar, save that the reference to the power to correct errors was to r 33.2 of the SIAC Rules, and it was said that by r 33.1 of those Rules, any correction "shall constitute part of the Award".^[65]

29 In each new table, there were new figures for the three components of SIAC's fees and expenses, but they added up to the same subtotal for SIAC's fees and expenses as in the corresponding original table. In consequence, the figures for the total costs of the arbitration of $122,868.14 or $123,282.14 remained the same, and the amounts awarded for RCo's costs remained the same. The oddity is that SIAC's administration fee, expenses, and GST all changed, but the sub-totals for SIAC's fees and expenses and hence the total costs of arbitration remained the same; further, the new figures do not seem to reflect a recalculation with a different GST rate. Counsel could not explain this, or how the application of the GST rate of 8% rather than 7% was found in the figures.^[66]

30 In the result, the amounts of the awards against ACo and A (and Z) respectively did not change; the changes were only in the three component figures for SIAC's fees and expenses, but not in the total amounts for those fees and expenses, or in the amounts for the total costs of the arbitrations or the amounts awarded for RCo's costs.

31 Article 34 of the Model Law relevantly provides:

32 O 48 r 2(3) of the Rules is to the same effect. The three-month time period may not be enlarged by the Court: ABC Co v XYZ Co Ltd [2003] 3 SLR(R) 546 at [9]; BXS v BXT [2019] 4 SLR 390 at [37]- [41]; BRS v BRQ and another and another appeal [2021] 1 SLR 390 (" BRS v BRQ") at [81].

33 It will be necessary to refer to Art 33 of the Model Law, but it was common ground that the qualification of a request made under that Article did not apply in this case as the corrections were made on the Tribunal's own initiative.^[67]The question was when the Applicants "had received the award" as referred to in Art 34(3). RCo said that the Applicants had received the award when they received the awards dated 18 February 2023, which it said was no later than 6 March 2023, and that the subsequent corrections did not affect the commencement of the three-month time period.^[68]The application was filed on 19 June 2023, and if that be right it was brought out of time.^[69]The Applicants said that the three-month time period commenced when they received the corrections, that this was necessarily on or after 19 March 2023 which was the date of the corrections, and that the application was therefore brought within time.^[70]

34 A gave no evidence, and the Applicants made no concession, as to receipt of the awards dated 18 February 2023. Mr Alfonso Ang, lead counsel for the Applicants, was carefully non-committal on the dates of receipt of those awards and of the corrections.^[71]On his case, it was sufficient that the date of receipt of the corrections was the material date, and it must have been on or after 19 March 2023.^[72]It is nonetheless necessary to find when the awards dated 18 February 2023 were received by the Applicants, as the basis for RCo's contention that the application was brought out of time. The discussion which follows will have some bearing on Ground (b) in the application, in relation to the Applicants' submission that they did not receive notice of the arbitral proceedings.

35 The awards dated 18 February 2023 were first distributed by SIAC.^[73]

36 On 21 February 2023, SIAC emailed the awards to ACo and A respectively, both at an email address xxx@136.com: to be noted, due to a transposition error not at the 163 email address given in the Client Information Statement.^[74]The covering letters stated that "[t]he original copy will be sent to you by courier".^[75]On 28 February 2023, SIAC couriered the ACo award to ACo at the ACo Hong Kong address, and then on 7 March 2023, instructed the courier to redirect shipment to ACo at the BVI address.^[76]Also on 28 February 2023, SIAC couriered the A award to A at the ACo Hong Kong address.^[77]The SIAC delivery log recorded an undeliverable message for the emails of 21 February 2023,^[78]but recorded the courier delivery at the BVI address on 14 March 2023;^[79]it was, however, silent as to the courier delivery to A at the ACo Hong Kong address, save that from recording failure in the same courier engagement in delivery to Z on 6 March 2023, it could be inferred that that delivery to A was also successful.^[80]

37 RCo's lawyers realised that SIAC's emails of 21 February 2023 had been sent to a wrong email address.^[81]On 6 March 2023, they transmitted both SIAC emails of 21 February 2023, including the covering letters and the awards, to the 163 email address, under cover of a letter addressed to A and stating that "by way of further notice to you, [ACo] and [Z], we attach for your attention copies of the SIAC's emails with the Awards".^[82]RCo's lawyers also arranged the couriering of hard copies of both SIAC emails of 21 February 2023, including the covering letters and awards, to ACo at the BVI address and to the Hong Kong address of X, A's son, as stated in the Client Information Statement.^[83]From the notifications from the courier, both sets of documents were delivered on 10 March 2023.^[84]

38 There is point in turning also to the receipt of the corrections.

39  On 20 March 2023, SIAC emailed the corrections to ACo and A respectively, both at the 163 email address.^[85]RCo's lawyers arranged the couriering of hard copies of the corrections to ACo at the BVI address and to the Hong Kong address of X, with deliveries on 24 and 22 March 2023 respectively.^[86]On 15 May 2023, SIAC sent the A award and the corresponding correction by registered post to A at the ACo Hong Kong address,^[87]and it also couriered hard copies of the ACo correction to ACo at the BVI address with delivery on 22 May 2023.^[88]

40 In a letter dated 19 June 2023 to RCo's lawyers enquiring as to acceptance of service, the Applicants' lawyers said that they had filed an application to set aside "the [ACo award] dated 18 February 2023 (as subsequently corrected on 19 March 2023), and [the A award] dated 18 February 2023 (as subsequently corrected on 19 March 2023 ... received by the 1st and 2nd Applicants on 20 March 2023".^[89]From this, SIAC's emails of 20 March 2023 to the 163 email address brought receipt by both ACo and A of the corrections. And since those emails sent only the corrections, ACo and A were already aware, at the very least, of the awards dated 18 February 2023; since the 163 email address had been the successful vehicle in the case of the corrections, the likelihood is that they were aware of the awards dated 18 February 2023 because of the 6 March 2023 communications from RCo's lawyers to that email address.

41 Ms Monica Chong, lead counsel for RCo, invited a finding that the awards dated 18 February 2023 were received by the Applicants on 6 March 2023.^[90]Mr Ang made no submission against that finding.^[91]The 163 email address was listed as ACo's email address in the Client Information Statement,^[92]and as recorded by the Tribunal^[93]and shown by the email of 27 May 2020,^[94]was used in correspondence with RCo; it was thus plainly a functioning email address. It cannot reasonably be thought that the emails should not be regarded as received by A as well as ACo. A is the sole director of and beneficial shareholder in ACo, as well as one of the persons giving instructions in relation to transactions to be conducted through the Account and whose surname can be seen in the 163 email address. In their affidavits, A did not deny or mention at all the receipt of the awards dated 18 February 2023 or the corrections. I am satisfied on the evidence that the awards dated 18 February 2023 were received by the Applicants on 6 March 2023.

42 Article 33 of the Model Law provides:

43 As noted above, it was common ground that the corrections were not made at the request of a party (see [33]); they were corrections made on the Tribunal's own initiative, as referred to in Art 33(2). By Art 34(3), if there is a request by a party for correction of an award, the date of commencement of the three-month period becomes the date on which the request is disposed of by the arbitral tribunal, in place of the date on which the award was received by the requesting party, so that the commencement of the three-month period is postponed to that later date. The Applicants submitted that the result is the same for a correction on the arbitral tribunal's own initiative pursuant to Art 33(2): in that event, they said, the date of receipt of the award is the date of receipt of the correction, and the commencement of the three-month period is postponed to the later date.^[95]

44 The thrust of the Applicants' submissions was that when Art 34(3) referred to the date on which the party making the setting aside application had received the award, "the award" meant the award as corrected.^[96]They said that, as noted by the Tribunal in the corrections, the UNCITRAL Rules and the SIAC Rules applicable to the respective arbitrations (if, contrary to the Applicants' submissions under Ground (a), there was indeed a valid arbitration agreement with ACo) provided that any correction shall form part of the award, and that by its references to the rules, the Tribunal itself was saying that the corrections formed part of its awards.^[97]If RCo sought to enforce the awards, they said, the awards it would enforce were the awards as corrected - and correction of an error in computation could have a significant effect on the bottom line of the amount awarded, although I note that in these cases it did not.^[98]They submitted that it would be "absurd" if receipt of an award without the subsequent corrections satisfied Art 34 (3) of the Model Law, because that would "defeat the express reservations of the Tribunal`s powers to correct the award".^[99]And, it was also submitted, it would be "incongruous" if there was an extension of the three-month period where a request for correction was made but the request was eventually dismissed, as was held in BRS v BRQat [66], but it was not extended even though a correction was in fact made by the arbitral tribunal on its own initiative.^[100]A correction initiated by the arbitral tribunal under Art 33(2), it was said, should have the same effect as a correction made under Art 33(1).^[101]

45 There is superficial attraction in the proposition that when the arbitral tribunal corrects an error in an award, the award as corrected becomes the award and so receipt of the award means receipt of the corrected award. The award as corrected is thenceforward the award. But that does not mean that "the award" in Art 34(3) is the award as corrected, or that the date of receipt of the award in Art 34(3) is the date of receipt of the corrected award.

46 This result is not mandated by any definition of an award: the Model Law does not have a definition, and the definition in s 2(1) of the IAA refers simply to "a decision of the arbitral tribunal on the substance of the dispute". Nor, contrary to the Applicants' submissions, is it mandated by the Tribunal's references in the corrections to the corrections forming part of the awards. They do, but the statements to that effect to which the Tribunal referred, found also in the closing words of Art 33(1) in relation to an interpretation of an award, serve a different purpose and do not make the award as corrected the award for all purposes.

47 An arbitral tribunal's authority generally expires on the issue of a final award, when it becomes functus officio: see AKN and another v ALC and others and another appeal [2016] 1 SLR 966 at [44]-[49]. In David Caron and Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary(Oxford University Press, 2nd Ed, 2013), it is said in the commentary to Art 38 that the purpose is to "extend the arbitral tribunal's authority beyond the date of the award", and that "the ultimate status of a correction to an award will depend on the terms of the applicable national arbitration law". This reflects the Report of Working Group II (Arbitration and Conciliation) on the work of its fifty-first session (Vienna, 14-18 September 2009)(UNCITRAL, 2009) at para 111, in its consideration of Art 36, which became Art 38, where it was said in response to the suggestion that stating that a correction would form part of the award would create difficulties "in particular with deadlines for recourse, depending on what the date of the corrected award was determined to be", that the national arbitration law would govern the matter. In Chong et al, A Guide to the SIAC Arbitration Rules(Oxford University Press, 2nd Ed, 2013) at paras 14.55-14.56, the commentary on r 33 also treats the statement as providing an exception to the principle that the arbitral tribunal is functus officioafter entering an award. That is, the statements that a correction forms part of the award give or confirm the arbitral tribunal's authority, and do not further prescribe the effect of the correction.

48 The effect of the correction must be determined from the Model Law as part of Singapore law, as repeated in O 48 r 2(3). The statement that a correction pursuant to either Art 33(1)( a) or Art 33(2) forms part of the award is not found in Art 33 of the Model Law, which conspicuously says that only as to an interpretation of the award.

49 What is meant by "the award" in Art 34(3), and the answer to the question, is a matter of construction of the Article, together with Art 33, in its place in the Model Law. It was submitted on behalf of RCo that Art 34(3) provides for postponement of the commencement of the three-month period only in the case of a request for correction, so that without more, there was no postponement in the case of a correction on the arbitral tribunal's own initiative.^[102]It referred to the observation in Banteaks et al, UNCITRAL Model Law on International Commercial Arbitration(Cambridge University Press, 2020) at pp 896 -897:^[103]

50 Ms Chong referred also to Daewoo Shipbuilding & Marine Engineering Co Ltd v Songa Offshore Equinox Ltd and another [2019] 1 All ER 161 (" Daewoo"),^[104]where it was held that under the Arbitration Act 1996 (c 23) (UK), the time for challenging an award was not automatically delayed by an application for correction, specifically in regard to the rejection by Bryan J of the submission that the date of the award when there was any correction was the date of the correction (at [56] -[62]). His Lordship said (at [56]):

51 Other than for its highlighting the importance of speed and finality in arbitration, Daewoois of little assistance to RCo. The context was an application to correct an award, not a correction made by an arbitral tribunal on its own initiative (at [9]). It was held that it was necessary that the correction be material, meaning that it was necessary to enable the party to know whether he had grounds to challenge the award (at [61] -[62]), and so it was recognised that where there was an application for a material correction, the date of the correction did become the date from which the time for challenging the award ran (at [60] and [62]). In Xstrata Coal Queensland Pty Ltd and others v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd [2020] Bus LR 954 at [30]-[32], as cited by the Applicants,^[105]a similar observation was made that where there is a material application for a correction and a correction is indeed then made, time runs from the date of the award as corrected. But in the similar context of a request to correct an award, in that case as referred to in Art 33, in BRQ and another v BRS and another and another matter [2019] SGHC 260, Vinodh Coomaraswamy J rejected the need for materiality, pointing out in particular at [53] that the English legislative provision was not only not based on the Model Law, but also adopted "a diametrically different scheme for time limits for challenging an award from that adopted in the Model Law". On appeal, in BRS v BR Qat [69]-[72], it was held that it was necessary that the substance of a request under Art 33 must come within the scope of Art 33 for it to have the effect of extending the initial time limit under Art 34(3), so that a mere request did not automatically bring postponement but the request could be examined for its substance to determine if time should be extended; however, the Court of Appeal arrived at this finding without reference to Daewoo. Daewoois a very different case, and gives no support for treating the date of a correction pursuant to Art 33(2) as the date of the award, or the award as corrected as the award, for the purposes of Art 34(3).

52 It is not as simple as Art 34(3) providing for postponement only in the case of a request for correction, and Ms Chong submitted also to the effect that a correction on the arbitral tribunal's own initiative would be minor (referring in particular to the court in BRS v BR Qlikening a request under Art 33(1)( a) to what is often referred to in court proceedings as the slip rule (at [70])), and had to be within thirty days, so that there was no need for postponement of the commencement of the three-month period.^[106]However, the matter can be taken further.

53  Article 34(3) postpones the commencement of the three-month period not by providing that the receipt of the award becomes the receipt of the corrected award, or of a response declining correction. That is, the date on which the party making the application "had received the award", prior to the making of any request (which necessarily means receipt of the original award), remains the date on which the original award was received. But in the case of a request for correction, a differently ascertained date, namely the date on which the request had been disposed of by the arbitral tribunal, is substituted as the commencement of the three-month period. Postponement in that way is no doubt adopted because there are three different kinds of request, and it is also necessary to accommodate when a request for correction, interpretation or an additional award is declined by the arbitral tribunal, so that there is no award as corrected, interpreted or supplemented. But it means that the determinant of the date of the receipt of the award is unchanged from the receipt of the original award itself: in Art 34(3), it remains the original award.

54 The same determinant is also used in Arts 33(1) and (3) in stipulating the period of thirty days from receipt of the award within which a request for correction, interpretation or an additional award must be made. In those sub-articles, "the award" cannot mean the award as corrected, interpreted or supplemented, otherwise there would be a reopening of the period of thirty days if the arbitral tribunal acceded to the request and corrected, interpreted or supplemented the award. Similarly, in Art 33(2), "the award" in the stipulation of thirty days from the date of the award must mean the original award: the thirty days do not start to run again upon the arbitral tribunal making a correction on its own initiative simply because the award as corrected becomes the award.

55 In Art 34(3), then, as in its appearances in Art 33, "the award" in the phrase "the date on which the party making that application had received the award" means the original award, which is in the present case the awards dated 18 February 2023. If postponement of the date of receipt of that award is to come from a correction on the arbitral tribunal's initiative, it must be found elsewhere in the same manner that postponement in the case of a request for correction is found in the latter part of the sub-article. It is, however, not to be found.

56 The scheme makes good sense, in line with the attributes of speed and finality. The correction of an error in computation or a clerical or typographical error, or an error of similar nature, which the arbitral tribunal considers it can make on its own initiative, is unlikely to be contentious - and that is so even if the error in computation has an effect on the bottom line of the award, because it can readily be corrected once recognised. In a decision of the Iran-US Claims Tribunal, to which RCo referred,^[107] Harold Birnbaum and Islamic Republic of Iran,DEC 124-967-2 (14 December 1995), such a correction was described as "a restoration of the award's proper contents" (at [10]). That can be seen as the reason the Model Law does not include the statement that a correction, whether pursuant to the request of a party or on the arbitral tribunal's own initiative and as distinct from an interpretation, shall form part of the award: it is regarded as already part of the award, and by the correction is simply recognised and made apparent.

57 A party dissatisfied with an award has three months to examine it for a ground or grounds to challenge it, and its examination and decision on whether to challenge the award is unlikely to be impeded or altered by a correction made by the arbitral tribunal on its own initiative. And in any event, the correction must be made within the thirty days: the party still has two months to come to its decision. The time can therefore continue to run from the receipt of the original award, in the interests of speed and finality, without injustice to a potential challenger. In comparison, if a request is made under Art 33 it is more likely to be substantive and contentious in the case of interpretation or an additional award, or contentious even in the case of a computation, clerical, typographical or similar error where a request to the arbitral tribunal is considered necessary. The decision on the request may not be known until close to the expiry of the three-month period or until it has expired, as the tribunal may extend if necessary the period of time within which it shall made a correction, interpretation or an additional award under Art 33(4), and this may affect the party's decision on whether to challenge the award. Therefore, there is a provision for the postponement of the commencement of the three-month period. In gist, needless passage of time in the case of a correction on the arbitral tribunal's own initiative is avoided, but an appropriate passage of time is allowed in the case of a request for correction.

58 Contrary to the Applicants' submissions, this does not mean an absurd defeating of the arbitral tribunal's power to correct an award. Any correction on the arbitral tribunal's own initiative must be within 30 days of the award, well within the three-month period, and the correction is still effective: the award which is enforced, and also the award which is challenged, is the award as corrected. Nor is there incongruity by contrast with postponement of the three-month period in the case of a request for correction, but rather there is a sensible scheme as outlined in the preceding paragraph.

59 The Applicants "had received the award" on 6 March 2023. The three-month time period commenced with the Applicants' receipt of the awards dated 18 February 2023 on 6 March 2023, the corrections did not affect that commencement, and the application was thus brought out of time.

60 This is sufficient for dismissal of the application. I nonetheless go on to consider the grounds on which it was brought.

61 Article 34(2)( a)(i) of the Model Law provides:

62 From A's affidavits in support of the application, and in the Applicants' written submissions in advance of the hearing, it was the Applicants' principal case that there were no valid arbitration agreements either between ACo and RCo or between A and RCo, because the arbitration clause in the Terms had not been incorporated into the Letter.^[108]In RCo's submissions it was pointed out that, as the Tribunal had recorded, the arbitral proceedings against A were initiated by RCo pursuant to the arbitration clause in the Guarantee.^[109]At the hearing, Mr Ang accepted that his case was confined to a challenge by ACo to an arbitration agreement with RCo.^[110]In his submissions, the ground was supported by reasons additional to failure in incorporation of the arbitration clause, to which I will come.

63 A's evidence material to this ground was limited and in part contradictory. They said that they were not given a copy of the Letter in Chinese although RCo knew that their "preferred language" was Chinese,^[111]which in itself suggested that they had some facility in English. They also said that they were not given a copy of the Terms and were "deprived of the opportunity to truly read and accept" them, which in itself suggests that they were at least aware of the Terms.^[112]But at other points, they said that they were not informed of the existence of the Terms or provided with a copy, although RCo knew that they did not read, speak or write English.^[113]They said directly that they did not read, speak, or write English.^[114]They said that they "did not understand the implications of" the Letter,^[115]that RCo did not draw to their attention the applicability of all the clauses in the Terms, such as choice of Singapore law, choice of English for arbitration, and ACo being deprived of the right to choose the form of dispute,^[116]and that they were not informed of the existence of the arbitration clause.^[117]Had they known that the arbitration clause gave RCo the "sole option" and "sole and absolute discretion" to refer disputes to arbitration (that is, that it was a unilateral arbitration clause), they would not have agreed to it.^[118]).They said also that a clause of the Letter (cl 1.3, as set out below) said that the Terms could be revised from time to time, and that had they been informed of the clause, they would not have agreed to it in view of the uncertainty surrounding the terms and conditions in the Terms.^[119]).