Preamble
Pursuant to Section 37(1)(a)(vi) of the Arbitration Act 2005 the arbitral procedure was not in accordance with the agreement of the parties, in that the Appeal Board inter alia: i) failed and or neglected to make a finding and or provide reasons and or make a reasoned award on all the issues submitted before the Appeal Board; and ii) failed to treat each party equally. [28] Premised on the aforesaid, Olam Global filed Enclosure 104 on the ground that the Discovery Documents are material, relevant and necessary for its application to set aside the Final Appeal Award under the Originating Summons. Court’s Consideration [29] At the hearing of Enclosure 104, the issue relating to the Court’s jurisdiction to grant discovery orders in a Section 37 Arbitration Act 2005 setting aside application was not disputed. Both parties proceeded on the basis that this Court did indeed have the requisite jurisdiction to make such orders. [30] Accordingly, this Court needed to only determine if the essential ingredients for a discovery order to be made as enumerated in Yakambaran s/o Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 681 (“Yakambaran”) in the passage below were satisfied: “The essential elements for an order for discovery are threefold; namely, first, there must be a "document", secondly, the document must be "relevant" and thirdly, the document must be or have been in the "possession, custody or power" of the party against whom the order for discovery is sought.” [31] On the element of “relevance”, the Court in Yekambaran stated that: "As to "relevance", our Rules of the High Court limit discovery to documents which are "relevant to" or "relate" to the factual issues in dispute. More particularly, the discovery obligation applies to documents 'relating to matters in question in the action' or 'relating to any matter in question in the cause or matter'..." [32] The discovery application should also satisfy the requirement under Order 24 rule 13 of the Rules of Court 2012 [See: para [28] of Iskandar Regional Development Authority v SJIC Bina Sdn Bhd [2020] CLJU 357 (“Iskandar”), that the order for discovery must be necessary either for disposing fairly of the cause or matter or for saving costs. [33] Additionally, when an application for discovery is made within an application to set aside an arbitral award, the applicant has to satisfy the requirements for fresh evidence as laid out in Westacre Investments Inc v. Jugoimport SDRP Holding Company Limited and 4 Ors [1998] 3 WLR 770 and Ladd v. Marshall [1954] All ER 745 [See: para [24] and [25] of Iskandar] as follows: a) that the evidence could not have been obtained with reasonable diligence for use at the trial; b) the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and c) the evidence is such as is presumably to be believed. (collectively referred as the “Ladd v Marshall Requirements”.) Whether Discovery Documents Relevant and Necessary [34] Specifically, for this case, the only issue that needed to be determined by this Court was whether the Discovery Documents were relevant and necessary for the issues relating to Olam Global’s application under the Originating Summons to set aside the Final Appeal Award. [35] According to Olam Global, the production of the Discovery Documents would allow fair disposal of Olam Global’s setting aside application under the Originating Summons and or would save time and costs of this Court. [36] Olam Global’s expert, one Kelly Ann Rigby, pursuant to Order 40A of the Rules of Court 2012 (“Olam’s Expert”), had stated in her report that with regards to the Cargo Readiness Declarations, she did not have “sufficient information to be able to determine whether they were issued, as submitted by AAStar, by each supplier in June and July 2022.” To make this determination, she would request for, inter alia, “the original emails and/or proof of the documents being delivered to AAStar.” [37] Olam’s Expert had similarly observed there are “a number of issues that raise concerns as to the veracity of the Cargo Readiness Declarations.”. [38] Once Olam’s Expert has had the opportunity to examine the Discovery Documents, Olam’s Expert would be in a position to make determination on the authenticity of the Cargo Readiness Declarations. It was contended that Olam’s Expert’s opinion and findings would assist this Court to determine whether the Final Appeal Award was induced and or affected by fraud and if any breach of natural justice had occurred. With knowledge of the actual factual circumstances surrounding the creation and or production of the Cargo Readiness Declarations in the arbitration, this Court would be able to dispose of Olam Global’s setting aside application expediently, saving time and costs. [39] Olam Global further contended that the order for discovery of the Discovery Documents would not lead to any re-litigation of merits or issues of facts. The Cargo Readiness Declarations and issues in respect of any reliance on the same were submitted to the Appeal Board, including submissions for the Appeal Board to investigate the authenticity of the same. Olam Global contended that the majority of the Appeal Board did not consider the authenticity of the Cargo Readiness declarations because they were under the erroneous assumption that they did not have the jurisdiction to rule on issues of fraud and had therefore failed to decide on the authenticity of the Cargo Readiness Declarations. This constituted a breach of natural justice in the decision-making process of the Appeal Board. [40] It was further submitted that no prejudice would be caused by way of the production of the Discovery Documents. This was because the original Cargo Readiness Declarations sought by Olam Global before this Court were submitted by AAStar themselves as copies during the Rejoinder stage of the Appeal Arbitration. In this application, Olam Global was merely seeking discovery of the original sets of the same – including all correspondence and or emails which have enclosed the same. Though the contents of the Cargo Readiness Declarations should logically be the same (if indeed, the Cargo Readiness Declarations exist), Olam Global would also receive the most direct evidence that the Final Appeal Award was in conflict of public policy and breach of natural justice. [41] As such, it was contended that if the Discovery Documents were not produced, Olam Global would be seriously prejudiced as Olam Global would be deprived of the most direct evidence. [42] Although AAStar had maintained throughout the Appeal Arbitration and these proceedings that Olam Global bore the burden to prove fraud, the original Cargo Readiness Declarations and or their related correspondence were at all times in the exclusive possession of AAStar. Despite numerous requests from Olam at multiple stages including before the Appeal Board and in these proceedings for the production of the Discovery Documents, nothing had been forthcoming from AAStar. Olam Global contended that the deliberate suppression of these documents gravely deprived and impaired Olam Global’s the opportunity to prove the fraudulent conduct it alleged, particularly when AAStar is and or was in an absolute position to conveniently reveal (or conceal) the truth behind the creation of such documents to the Appeal Board and or this Court. [43] Olam Global contended that there were good reasons to conclude that the Cargo Readiness Declarations were forged and or backdated and or were created for the purposes of the Appeal Arbitration: a) the Cargo Readiness Declarations were contradicted by Cotecna’s (independent cargo surveyors) contemporaneous messages to Olam Global on 6.7.2022 and 7.7.2022, reporting that the cargo from the suppliers were still not ready; b) the Cargo Readiness Declarations were all in the same font, format and contained essentially the same wording; c) the Cargo Readiness Declarations all referred to the carrying vessel (and vessel voyage number), in circumstances where it was highly unlikely that a domestic supplier would be aware of the intended vessel; d) all contained the same typographical error, as the vessel was misspelt (“Yuan Dong” instead of “Yuandong”); e) the Cargo Readiness Declarations were all in English, despite allegedly being sent between two Indonesian entities; and f) the Cargo Readiness Declarations were not produced at any time during the First Tier Arbitration (this despite being purportedly dated much earlier), and were only produced during the Rejoinder stage of the Appeal Arbitration before the Appeal Board. [44] Further, sometime around 12.2.2024, Olam Global had obtained a letter from PT Prima Tangki Indonesia, confirming that on 2.7.2022 and throughout July 2022, the Kuala Tanjung terminal did not receive any shipping instructions to load the empty vessel. [45] In addition, Olam had also obtained evidence from third parties that the Cargo Readiness Declarations were in fact forged and or backdated: a) Nakul Rastogi, the director of PT Pacific Palmindo Industri (“PT PPI”) (one of the suppliers who purportedly issued the Cargo Readiness Declarations) told Olam Global’s employee, Joost van der Steen, that it appeared that he did not sign the Cargo Readiness Declarations issued by PT PPI and PT PPI did not have dealings with AAStar; b) Ken Yeoh from Sinaran informed Olam Global’s employee, Rix Hufman, that Gama / EUP / AAStar had requested PT LTS (another supplier who purportedly issue the Cargo Readiness Declarations) to issue a “letter” falsely verifying the authenticity of the Cargo Readiness Declarations. Gama is a group of companies based in Indonesia, founded by the ultimate beneficial owner of AAStar. Gama Corp and EUP are companies related to AAStar; c) Yeoh Oon Chye, the Chief Executive Officer of Sinaran (“Mr Yeoh”) had confirmed to Joost van der Steen that EUP had asked PT LTS to sign a letter falsely confirming the Cargo Readiness Declarations issued by PT LTS were authentic. [46] It was therefore submitted that: a) whether AAStar had cargo ready was a material issue in the PORAM Arbitration proceedings; b) in turn, the authenticity of the Cargo Readiness Declarations, which were produced by AAStar only belatedly in the Appeal Arbitration (after the First Tier Appeal Arbitration concluded), was an essential issue that required determination of the Appeal Board; c) however, in reaching the conclusion that AAStar’s cargo was ready, the Appeal Board: i) had failed to make a determination on the authenticity of the Cargo Readiness Declarations; ii) had accepted the Cargo Readiness Declarations as genuine because the Appeal Board decided that it could not investigate issues of fraud; d) the authenticity of the Cargo Readiness Declarations remained a material issue in Olam Global’s application to set aside and or suspend the Final Appeal Award; and e) there were various indications which would lead one to believe that the Cargo Readiness Declarations were forged and or backdated and or created for the purpose of the PORAM Arbitration proceeding, as had been put before both the Appeal Board and this Court. [47] It was further submitted that the Discovery Documents relate to the essential issue of whether the Cargo Readiness Declarations were genuine and would corroborate Olam Global’s position that the Cargo Readiness Declarations were forged and or backdated and the majority of the Appeal Board should not have overlooked Olam Global’s submissions that the Cargo Readiness Declarations were fictitious documents: a) the original copies of the Cargo Readiness Declarations, as the most direct evidence of the authenticity (or falsity) of the Cargo Readiness Declarations, would allow Olam to prove that the Cargo Readiness Declarations were forged and or backdated and or created for the purpose of the Appeal Arbitration; b) the correspondence, emails or other forms of communication (in original format and condition) enclosing the Cargo Readiness Declarations would reveal how and when the Cargo Readiness Declarations came into the possession of AAStar, particularly when the Cargo Readiness Declarations, being an important evidence to show cargo readiness at the load port, were not produced during the First Tier Arbitration, and the contents of the Cargo Readiness Declarations appeared to be contrary to multiple sources of information; c) the correspondence, emails or other forms of communication (in original format and condition) to request the creation and or delivery of the Cargo Readiness Declarations would reveal the surrounding (including the individuals involved) leading up to the creation of the Cargo Readiness Declarations, i.e. whether they were genuinely created in the normal course of business or whether they were falsified for purpose of the PORAM Arbitration proceedings; and d) if the Discovery Orders are granted and AAStar fails to produce the Discovery Documents, it further lends credence to Olam’s position that the Cargo Readiness Declarations were in fact fictitious documents that were created for the purpose of the Appeal Arbitration. [48] As can be seen from the aforesaid, the thrust of Olam Global’s contentions was that the Appeal Board had been induced by the Cargo Readiness Declarations in arriving at its majority decision to allow AAStar’s claims. Underlying the application for a discovery order for the Discovery Documents was that the Appeal Board would have come to an entirely different decision if Olam Global were given the opportunity to establish that these Cargo Readiness Declarations were in fact forged documents. In other words, if the Cargo Readiness Declarations were established to be fraudulent documents, AAStar’s claims would have been rejected as AAStar had not shown that it was ready to deliver the cargo on 7.7.2022. Discovery not relevant and or necessary [49] However what Olam Global had failed to appreciate was that the Appeal Board in fact did not arrive at its decision premised on a finding that the Cargo Readiness Declarations were authentic and valid documents. On the contrary, the majority of the Appeal Board had proceeded on the basis that AAStar was unable to confirm cargo readiness on 7.7.2022. That this was so could be seen from paras [12.7] and [12.11] of the Final Appeal Award which are reproduced below: “12.7 Respondents were not able to confirm cargo readiness when the nominated Vessel arrived at the first load-port, Kuala Tanjung and tendered cargo readiness on 2nd July 2022. Respondents confirmed cargo readiness on 7th July 2022 with the Respondents presenting sufficient purchase contracts and export permits for the cargo while the Appellants disputed the accuracy of this confirmation as they believed that only off-specification 2,000 MT was available. …