Non-disclosure in international commercial arbitration: the High Court of Singapore offers guidance

In the decision in BVU v BVX [2019] SGHC 69, the Republic of Singapore High Court dismissed an application to set aside an international arbitral award because of a non-disclosure by a party to the arbitration.

In its decision, the Court canvassed the applicable principles in Singapore and the United Kingdom - providing an insight into the approach an Australian court would be likely to take in a similar case. The decision brings into sharp relief the different disclosure obligations applying to arbitration and litigation.

The story

BVX is a state-owned company in the Republic of Korea. It was tasked with securing a long term stable food supply for the country. BVX engaged BVU to supply the Republic of Korea with food products. The supply agreement contained a term that BVU would be BVX's 'preferred supplier' and included a 'forecast range' for product purchases. In fact, BVX purchased significantly less than the forecast range, and began a tender process for the remaining products set out in the forecast range.

On 25 July 2013, BVU commenced International Chamber of Commerce (ICC) arbitration proceedings against BVX, claiming damages for breach of contract.

The arbitration

BVX provided disclosure of documents on which it proposed to rely and responded to requests for production by BVU. During the arbitration, BVU asked the ICC Tribunal to order employees of BVX to attend and give evidence that BVU maintained was relevant to the dispute. The Tribunal declined to compel the witnesses' attendance, because it was not persuaded that the proposed evidence was material to the issues in dispute.

On 10 December 2015, the ICC Tribunal issued the final award in favour of BVX.

BVU subsequently contacted employees from BVX who had not given evidence in the proceedings. BVU hoped that the BVX employees might give evidence that would assist BVU in an application to set aside the award. One of the employees agreed to give evidence in support of BVU.

The High Court action

On 10 March 2016, BVU commenced an action in the Singapore High Court to set aside the award. BVU also subpoenaed the BVX employee, to compel the employee to produce documents it maintained were relevant but which had not been disclosed in the arbitration.

BVX applied to the Court to set aside the subpoena. Judicial Commissioner Ang Cheng Hock heard BVU's application to set aside the award and the application for a subpoena.

The non-disclosure

BVU claimed that BVX's failure to call its...