(2020) 1 SLR 0695

[2020] 1 SLR 0695.
fm Page 695 Friday, May 15, 2020 1:31 PM
[2020] 1 SLR SINGAPORE LAW REPORTS 695
China Machine New Energy Corp

v
Jaguar Energy Guatemala LLC and another
[2020] SGCA 12
Court of Appeal — Civil Appeal No 94 of 2018

Sundaresh Menon CJ, Tay Yong Kwang JA and Quentin Loh J
5 July, 10 September 2019; 28 February 2020
Arbitration — Award — Recourse against award — Setting aside — Rules of natural
justice — Arbitral tribunal making “attorneys’ eyes only” order for production of
sensitive documents — Whether “attorneys’ eyes only” order justified in
circumstances — Article 18 UNCITRAL Model Law on International Commercial
Arbitration
justice — Whether breach of natural justice occasioned where complaining party
failed to inform arbitral tribunal of alleged breach of natural justice — Article 18
UNCITRAL Model Law on International Commercial Arbitration
justice — Whether “full opportunity” of presenting one’s case impliedly limited by
considerations of fairness and reasonableness — Article 18 UNCITRAL Model Law
on International Commercial Arbitration
Facts
The parties went to arbitration over disputes relating to the construction of a
power generation plant in Guatemala (“the Plant”). The appellant, China
Machine New Energy Corporation (“CMNC”), was the contractor, and the
respondents, Jaguar Energy Guatemala LLC and AEI Guatemala Jaguar Ltd
(collectively, “Jaguar”), were the owners of the Plant. The parties’ relationship
was governed by an engineering, procurement and construction contract (“the
EPC Contract”), under which CMNC was to construct the Plant for an
approximate sum of US$450m. In December 2013, after the works fell into
delay, Jaguar terminated the EPC Contract, and engaged other contractors to
complete the works.
In January 2014, Jaguar commenced arbitral proceedings against CMNC (“the
Arbitration”) under the EPC Contract, and claimed, amongst other reliefs, the
cost of completing the Plant (“the ETC Claim”). The substantive dispute
between the parties centred on the quantum of the ETC Claim, and the parties’
preparations for the Arbitration focused on the production of contracts, invoices
and other supporting documents evidencing the costs of completion, as well as
the preparation of expert reports on the issue of quantum.
Broadly speaking, the procedural issues raised in relation to the production of
documents fell into three categories. The first concerned restrictions placed on
the disclosure of sensitive documents, which, CMNC submitted, had severely
hindered its ability to assess and therefore address Jaguar’s case on the quantum
[2020] 1 SLR 0695.fm Page 696 Friday, May 15, 2020 1:31 PM
696 SINGAPORE LAW REPORTS [2020] 1 SLR
of Jaguar’s ETC Claim. In this regard, Jaguar had sought to withhold disclosure
of documents containing information identifying its post-termination
contractors on the basis that CMNC might misuse that information to interfere
with the ongoing work to complete the Plant. In September 2014, the tribunal
(“the Tribunal”) ordered that the sensitive documents be produced on an
“attorneys’ eyes only” basis (“the AEO Order”), meaning that sensitive
documents would only be disclosed to CMNC’s external counsel and expert
witnesses, and not to its employees (subject to CMNC’s right to apply for
disclosure). This was superseded less than a month later by a redaction ruling,
under which Jaguar would disclose the sensitive documents to CMNC’s
employees, albeit with any information identifying Jaguar’s contractors redacted
(“the Redaction Ruling”). The Redaction Ruling was itself subsequently
modified by a procedural order relieving Jaguar of the obligation to redact and
disclose (to CMNC’s employees) documents pertaining to claims with a value of
less than US$100,000. These restrictions (the AEO Order, as modified by the
Redaction Ruling and the subsequent procedural order) were subsequently lifted
in March 2015; sensitive documents were thereafter disclosed to CMNC’s
employees without restriction.
The second issue concerned CMNC’s access to project documents documenting
the work CMNC had completed before Jaguar’s termination of the EPC
Contract (“the Construction Documents”), which was necessary so that CMNC
might value the completed work, and thereby assess and challenge CMNC’s
claim for the cost of completing the work that remained uncompleted.
According to CMNC, it lost access to these documents after it was forced to
leave the work site following the termination of the EPC Contract.
The third concerned Jaguar’s rolling production of documents evidencing the
cost of completion (“the Costs Documents”). Over the course of the Arbitration,
Jaguar produced four tranches of documents corresponding to four updates to
the quantum of its ETC Claim. The first tranche of documents was produced in
February 2015, and the fourth and final tranche was produced on 5 June 2015. In
the present proceedings, CMNC challenged both the propriety of allowing
Jaguar to continually produce the documents, as well as the manner in which
they were produced. On the former point, CMNC contended that the Tribunal’s
failure to put an earlier stop to the continual updates to the quantum of Jaguar’s
ETC Claim resulted in CMNC not having sufficient time to prepare its response.
On the latter point, CMNC argued that its difficulties were compounded by the
disorganised and haphazard manner in which the documents were produced.
According to CMNC, the Tribunal’s mismanagement of the Arbitration (in the
three aforementioned aspects) made it impossible for it to promptly prepare and
file critical lay and expert evidence addressing the quantum of the ETC Claim. In
particular, these difficulties meant that a key responsive expert report prepared
by CMNC’s quantum expert (“the Gurnham Responsive Report”) was filed out
of time, and was therefore not properly considered by the Tribunal, in breach of
CMNC’s right to be heard under Art 18 of the UNCITRAL Model Law on
International Commercial Arbitration (“the Model Law”), rendering the award
liable to be set aside under, amongst others, Art 34(2)(a)(ii) of the Model Law
and s 24(b) of the International Arbitration Act (Cap 143A, 2002 Rev Ed)
(“IAA”).
China Machine New Energy Corp v

[2020] 1 SLR Jaguar Energy Guatemala LLC 697
The High Court judge (“the Judge”) dismissed CMNC’s application to set aside
the award. The Judge rejected CMNC’s submission that the Tribunal’s
management of the process of document disclosure was a breach of CMNC’s
right to be heard, and held, in any case, that CMNC did not suffer any prejudice
that justified setting aside the award.
Held, dismissing the appeal:
(1) The right to be heard – which referred to each party’s right to present its
case and respond to the case against it – was a fundamental rule of natural
justice. The parties’ right to be heard found expression in Art 18 of the Model
Law. However, the Art 18 right to a “full opportunity” of presenting one’s case
was not an unlimited one, and was impliedly limited by considerations of
reasonableness and fairness: at [87], [88] and [97].
(2) What constituted a “full opportunity” was a contextual inquiry to be
undertaken within the specific context of the particular facts and circumstances
of each case. The proper approach was for the court to ask itself if what the
tribunal did (or decided not to do) fell within the range of what a reasonable and
fair-minded tribunal in those circumstances might have done. In undertaking
this exercise, the court had to put itself in the shoes of the tribunal, and this
meant that (a) the tribunal’s decisions could only be assessed by reference to
what was known to or had been brought to the tribunal’s attention at the
material time, and (b) the court would accord a margin of deference to the
tribunal in matters of procedure and would not intervene simply because it
might have done things differently: at [98], [99] and [103].
(3) The imposition of the AEO Order was not without basis. On the evidence
that had been placed before it, the Tribunal’s conclusion that the possibility of
misuse of the sensitive documents gave rise to “serious concern” was an entirely
reasonable one. The Tribunal’s approach could, in some respects, be analogised
to how a court would approach an application for an interim injunction made
on the basis of contested facts, at a time when final findings on those contested
facts simply could not be made, and where the overarching focus was to
minimise injustice by balancing the competing interests as best it could: at [111].
(4) The fact that the AEO Order adversely affected CMNC’s ability to prepare
its case was not fatal to its legality – the AEO Order was intended to strike a
balance between Jaguar’s interest in confidentiality and CMNC’s interest in
access for the preparation of its case, and necessarily represented a compromise
between those interests. In any case, any unfairness occasioned by the AEO
Order was substantially mitigated following the Redaction Ruling, under which
redacted versions of the sensitive documents were disclosed to CMNC’s
employees: at [113] and [116].
(5) CMNC’s submission that it had been prejudiced by the Tribunal’s failure
to order Jaguar to disclose the Construction Documents was entirely without
basis. First, CMNC never requested the production of the Construction
Documents for the purpose of preparing its case. Second, CMNC’s own filings in
the Arbitration suggested that it had been perfectly able to assess the value of its
pre-termination work with reasonable accuracy: at [124] and [125].
(6) There was no basis to impeach the Tribunal’s decision to allow Jaguar to
continue producing the Costs Documents until 5 June 2015; the Tribunal had
accounted for CMNC’s interest in addressing those documents by granting it an
extension of the time for the filing of the Gurnham Responsive Report to 18 June
2015 in the exact terms sought by CMNC in its request for relief. In deciding to
grant the extension and impose a later cut-off date, the Tribunal sought to
balance between Jaguar’s interest in presenting material relevant to its claim, and
CMNC’s interest in having a reasonable opportunity to meet Jaguar’s case. The
course which the Tribunal chose was entirely reasonable in the circumstances:
at [131] and [132].
(7) The Tribunal’s decision not to grant CMNC a second extension of the
deadline for the filing of the Gurnham Responsive Report was not unreasonable
or unfair. CMNC’s request for the second extension had been premised on its
contention that the final tranche of documents produced on 5 June 2015 was
unusually voluminous. However, there was nothing to suggest that the final
tranche of documents produced was unusually large when compared to the
second and third tranches. Even if it were, CMNC would have known of this
immediately after the documents were produced on 5 June 2015, but did not
request the extension until some 12 days later, on the eve of the deadline:
at [134], [140] and [141].
(8) The Tribunal’s direction that Jaguar need not address the material
belatedly filed by CMNC had to be distinguished from a direction that Jaguar
ought not do so. The former direction was not a de facto exclusion of the
evidence as it left it open to Jaguar to deal with the material to the extent it was
able, and left it open to the Tribunal, in that light, to consider the material and
give it such weight as it deemed appropriate. In any case, even if the Tribunal’s
direction could be read as a de facto exclusion of the material belatedly filed by
CMNC, such an exclusion was well within the competence of the Tribunal to
order, and was not unfair or unreasonable in the circumstances: at [148], [149]
and [151].
(9) CMNC’s complaint that the Tribunal had failed to consider the allegedly
disorganised and haphazard production of the Costs Documents in its
management of the Arbitration was without basis. In assessing whether the
Tribunal had acted unfairly, it was of crucial importance that the court examine
what exactly the Tribunal had been told about the alleged difficulties that the
complaining party faced. In this regard, CMNC did not mention Jaguar’s
allegedly disorganised and haphazard production of documents in its requests to
the Tribunal for extensions of time for the filing of the Gurnham Responsive
Report. It was not until after the extended deadlines had lapsed that CMNC
informed the Tribunal of these alleged difficulties in its application to belatedly
admit the Gurnham Responsive Report: at [159].
(10) While CMNC had, at various junctures in the Arbitration, raised
objections to the Tribunal’s management of the procedure for document
production, it never stated what it stated in the setting-aside proceedings – that
the cumulative effect of the issues raised earlier was such that the prospects of a
fair arbitration had been irretrievably lost as a result of the Tribunal’s
mismanagement of its procedure (or alternatively, that the scheduled
evidentiary hearings could not proceed). On the contrary, CMNC had, by its

continued engagement as a party in the Arbitration, consistently expressed its

intention to forge ahead with the main evidentiary hearing. In short, CMNC’s
conduct at the material time was entirely at odds with its contention that the
arbitration was irretrievably lost and doomed: at [164] to [166].
(11) The inconsistency between CMNC’s conduct during the Arbitration and
its case in the appeal was important for two reasons. First, the Tribunal could not
be criticised for failing to consider points that had never been put to it. Here, the
contention that the proceedings could not, in fairness to CMNC, continue as
scheduled simply was not put to the Tribunal. Second, an assertion that the
Tribunal had acted in material breach of natural justice was a very serious
charge, not just for the imputation that such an allegation makes as to the bona
fides and professionalism of the Tribunal, but also for the grave consequence it
might have for the validity of the award. For this reason, there could be no room
for equivocality in such matters. The courts would not allow a party to hedge
against an adverse result in the arbitration by complaining after the fact that its
hopes for a fair trial had been irretrievably dashed by the acts of the tribunal,
having conducted itself before that tribunal “in real time” on the footing that it
remained content to proceed with the arbitration and obtain an award, only to
challenge it after realising that the award had been made against it. Such tactics
would not be countenanced. If indeed CMNC had believed that proceeding with
the hearing in July 2015 was impossible, it was incumbent on CMNC to bring
home its concern that proceeding with the main evidentiary hearing would be
futile because it would be done on terms that denied it a fair and reasonable
opportunity of preparing its case. Not only was this not done, CMNC persisted
in maintaining that it wished to press on with the July 2015 hearing, and carry
on to the award: at [167] to [172].
Case(s) referred to
ABB AG v Hochtief Airport GmbH [2006] 2 Lloyd’s Rep 1 (refd)
ASM Shipping Ltd of India v TTMI Ltd of England [2005] EWHC 2238 (Comm)
(refd)
LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd [2013] 1 SLR 125
(refd)
On Call Internet Services Ltd v Telus Communications Co [2013] BCAA 366
(refd)
PT Reasuransi Umum Indonesia v Evanston Insurance Co 23 December 1992,
[1992] WL 400733 (SDNY, 1992) (refd)
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd
[2007] 3 SLR(R) 86; [2007] 3 SLR 86 (folld)
Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2015] 1 SLR 114 (refd)
Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452 (refd)
Legislation referred to
International Arbitration Act (Cap 143A, 2002 Rev Ed) s 24(b) (consd);
s 24(a)
Arbitration Act 1996 (c 23) (UK) s 33
Toby Landau QC (Essex Court Chambers Duxton (Singapore Group Practice))

(instructed), Tan Beng Hwee Paul, Pang Yi Ching Alessa, Ching Meng Hang, Koh
Wei-Jen Aaron and Rachel Low Tze-Lynn (Rajah & Tann Singapore LLP) for the
appellant;
Michael Hwang SC, Rachel Ong Yue Qing and Chong Kin Yeong Ryan (Michael
Hwang Chambers LLC) (instructed), Chia Yijuan Germaine, Chong Xiu Bing Denise
and Tan Yi Lei (Virtus Law LLP) for the respondents.
[Editorial note: This was an appeal from the decision of the High Court in
[2018] SGHC 101.]
28 February 2020 Judgment reserved.
Sundaresh Menon CJ (delivering the judgment of the court):
Introduction
1 The concept of due process encompasses a basic guarantee of

procedural fairness in legal proceedings. It requires that each party be
given, amongst other things, appropriate notice of the proceedings and of
the case it has to meet, as well as a fair opportunity to prepare and present
its case before a neutral and unbiased decision-maker. These are basic
procedural safeguards which are applied in order to ensure the fairness of
the proceedings by which the parties’ substantive rights are disposed of. In
short, due process is concerned with ensuring fair process, and this is a
matter of critical importance because the fairness of the process is integral
to its legitimacy in the eyes of the parties who submit themselves to it.
2 These procedural safeguards can assume an enhanced significance in

international arbitration because an alleged violation of a party’s due
process rights offers one of a limited number of grounds on the basis of
which an award may be set aside or denied enforcement. In arbitration, the
tribunal is ordinarily the master of its own procedure, but the requirement
of due process is an essential limitation on the wide autonomy that the
parties and the tribunal otherwise have with respect to procedure.
3 While due process serves to protect the legitimacy of the process,

some have warned of the need to scrutinise due process arguments so as to
guard against their being wielded cynically and improperly to attack the
award (see Lucy Reed, “Ab(use) of Due Process: Sword vs Shield” (2017)
33 Arbitration International 361 at 376). It has been suggested that such
misuse of due process complaints can lead to defensive procedural
decision-making on the part of the tribunal in an effort to safeguard its
award. This can be problematic not only because the parties are exposed to
delays and increased costs as a consequence, but, more importantly,
because it undermines and cheapens the real importance of due process in
international arbitration, and over time, this can erode the legitimacy of

arbitration as a whole and its critical role as a mode of binding dispute

resolution.
4 Many of the complaints that are presented as due process violations
typically concern the management of the particular arbitration, involving
questions such as extensions of time, the ability to introduce additional
evidence, or even the way in which documents are to be described and
disclosed to the other parties. These typically and almost inevitably are
matters that fall within the discretion of the tribunal, which, after all, is
primarily charged with deciding the matter fairly. When this is
subsequently challenged in court, it is essential that the court steers a course
which holds two potentially competing interests in balance: first, the need
to robustly uphold what may properly be regarded as the parties’ due
process rights; and second, the importance of preserving the proper limits
of the tribunal’s discretion in dealing with the procedural details of the case
it must decide. This appeal presents us with the opportunity to clarify this
important area of arbitration law, so that tribunals may be guided as to the
sorts of concerns that may undermine their awards. In our judgment, this
should ultimately reduce the opportunity for those attempting to abuse the
doctrine of due process.
Background facts
Background to the dispute

5 The present parties went to arbitration over disputes relating to the
construction of a power generation plant in Guatemala (“the Plant” and
“the Project”). The appellant, China Machine New Energy Corporation
(“CMNC”), was the contractor, and the respondents, Jaguar Energy
Guatemala LLC (“Jaguar Energy”) and AEI Guatemala Jaguar Ltd
(“AEI Guatemala”) (collectively referred to as “Jaguar”), were the owners of
the Plant.
6 The substantive contractual dispute between the parties concerned
two key agreements. The first was the Engineering, Procurement and
Construction Contract (“the EPC Contract”) entered into in March 2008
between CMNC and Jaguar Energy. The EPC Contract provided for the
construction of the Plant for an approximate sum of US$450m, to be paid
by Jaguar Energy to CMNC in instalments upon the completion of certain
milestones. The second was the Deferred Payment Security Agreement
(“DPSA”), entered into sometime in November 2009. Under the DPSA,
CMNC agreed to finance the Project by allowing Jaguar Energy the option
of issuing debit notes in its favour instead of making the relevant milestone
payments. These debit notes were secured by interests in Jaguar Energy’s
assets, including its rights under the EPC Contract.
7 Work on the Project’s two phases commenced in March 2010, and
was expected to be completed in March and June 2013 respectively.
Sometime in November 2010, Jaguar Energy exercised its option under the
DPSA to issue debit notes in lieu of making cash payments. In all, Jaguar
Energy issued a total of 61 debit notes with a total value of approximately
US$129m.
8 Signs of trouble first appeared in 2013, when CMNC failed to meet
the scheduled take-over dates for both phases of the works. In October and
November 2013, Jaguar Energy issued notices of breach, and reserved its
right to terminate the EPC Contract. In response, on 28 November 2013,
CMNC purported to exercise its “step-in rights” as secured lender under
the DPSA to take over Jaguar Energy’s rights under the EPC Contract. On
the next day, 29 November 2013, Jaguar Energy notified CMNC of its
intention to terminate the EPC Contract, and requested that CMNC vacate
the work site (“the Site”) within 15 days.
9 The Site comprised two separate areas: the “Construction Area” and
the “Living Quarters”. On 11 December 2013, Jaguar Energy fenced off the
Construction Area and prevented CMNC’s employees from entering
CMNC’s site office, which contained documents related to the construction
of the Plant. At that stage, CMNC retained access to the Living Quarters
and therefore to project documents that were stored in laptops and
computers that had been kept in the Living Quarters.
10 On 14 December 2013 (upon the expiry of the 15-day notice period),
Jaguar Energy informed CMNC of the termination of the EPC Contract
with immediate effect, and asserted that the DPSA was also therefore
automatically terminated by its own terms. On the same day, Jaguar Energy
terminated CMNC’s access to Project Solve, which was a shared online
document platform which contained communications and construction
documentation relating to the Project.
11 CMNC’s staff continued to reside in the Living Quarters until 20 June
2014, when CMNC’s employees were, by an order of the Guatemalan
courts, sent to an immigration shelter. According to CMNC, Jaguar then
seized two desktop computers and hard drives containing documents
concerning the Project from the Living Quarters. CMNC’s employees were
subsequently released from the immigration shelter on 28 July 2014.
The arbitration
12 On 28 January 2014, Jaguar commenced arbitral proceedings (“the
Arbitration”) against CMNC under cl 20.2 of the EPC Contract. Clause 20.2
provided for disputes to be referred to a Singapore-seated arbitration
conducted under the 1998 Rules of Arbitration of the International
Chamber of Commerce. Notably, cl 20.2 provided for an expedited
arbitration: it required that the award be issued within 90 days of the
selection of the third arbitrator; or, if the majority of the arbitrators agreed,
within a further 90 days.

13 In gist, Jaguar’s case in the Arbitration was that it had validly

terminated the EPC Contract for CMNC’s breach, and that it was entitled
to, amongst other reliefs, the aggregate cost of completing the Project (“the
Estimate to Complete Claim”, or “the ETC Claim”). CMNC denied Jaguar’s
claims, and made counterclaims asserting Jaguar’s breach of the DPSA. The
ETC Claim, which was allowed, almost in its entirety, by the arbitral
tribunal (“the Tribunal”), is central to these proceedings because the nub of
CMNC’s complaint is that it was not allowed a full opportunity to respond
to that claim.
14 According to CMNC, its response to the ETC claim required it to

undertake two strands of analyses:
(a) The Interrogation Analysis: This involved interrogating the

quantum of the ETC Claim by reference to Jaguar’s supporting
documents. This entailed checking whether Jaguar’s post-termination
contractors (being those engaged to complete the remaining works
after CMNC’s termination) had been procured competitively;
whether invoices issued were adequately supported by contracts or
purchase orders, and were consistent with Jaguar’s construction
records; and assessing whether the work done and equipment
purchased were within the scope of the EPC Contract. On the last
aspect, CMNC’s point was that the cost of any work done that was
over and above the contractual specification would constitute
betterment and would not be claimable.
(b) The Comparison Analysis: This involved ascertaining the

quantities of work that CMNC left incomplete by reference to the
quantities of work that CMNC did complete (“the Completed Work
Quantities”), and comparing that against the quantities of work
procured by Jaguar from the post-termination contractors. According
to CMNC, the Comparison Analysis was critical because the
reasonableness of the quantum of Jaguar’s ETC Claim was inherently
suspect given that it exceeded the remaining value under the EPC
Contract by more than 300%. In other words, according to CMNC,
Jaguar spent more than three times what it would have cost had
CMNC been allowed to complete the remaining works.
15 To carry out the Interrogation and Comparison Analyses, CMNC

claimed that it needed access to the following categories of documents:
(a) The Construction Documents: This comprised pre-termination

documentary records of the works that were necessary for the
determination of the completed work quantities (and were therefore
essential to the Comparison Analysis). According to CMNC, it was
deprived of the Construction Documents by Jaguar’s seizure of the
Site before the EPC Contract was terminated (see [9] above).
(b) The Bid Documents: This comprised documents related to the

bid and tender process leading to the engagement of the post-
termination contractors by Jaguar to complete the Project after
CMNC’s departure, and these were required in order to assess
whether Jaguar’s ETC Claim was unreasonable and excessive as a
result of its failure to conduct a competitive bid process. This was a
part of the Interrogation Analysis.
(c) The Costs Documents: This comprised invoices, contracts and

purchase orders relating to Jaguar’s post-termination construction
expenditure. The Costs Documents were necessary for CMNC’s
assessment of the costs incurred by Jaguar (both actual and
committed) in completing the works, and were therefore essential to
the Comparison Analysis. The production of the Costs Documents
was complicated by the fact that the Project completion works and the
Arbitration were running in parallel. This meant that new Costs
Documents were being generated (and produced to the Tribunal) on
a rolling basis, and that accordingly, the quantum of the ETC Claim
(which comprised both estimated and actual costs of completion) had
to be continually updated as previously “estimated” costs became
“actual” costs upon their being incurred in the course of the works.
Ultimately, work on the Project was only completed after the
conclusion of the main evidentiary hearing (see [72] below).
16 We return to the procedural history of the arbitral proceedings. The

last member of the three-man Tribunal was appointed on 27 March 2014.
This meant that the 90-day period prescribed under cl 20.2 of the EPC
Contract for the completion of the arbitration would have expired on
25 June 2014, or, if extended a further 90 days, on 23 September 2014.
17 On 1 May 2014, the parties agreed to amend this timeline. The agreed
timelines were set out in Procedural Order No 2 (“PO 2”) dated 7 May
2014. PO 2 provided for the exchange of the parties’ experts’ reports on
19 December 2014, and fixed the main evidentiary hearing for January and
February 2015. We note that these hearing dates fell well after even the
extended 180-day deadline for the issue of the Tribunal’s award stipulated
in cl 20.2.
18 Notably, notwithstanding that parties had agreed on the timelines in

PO 2 on 1 May 2014, CMNC requested, on 6 May 2014, that the main
evidentiary hearing be brought forward to October 2014. Jaguar opposed
CMNC’s request on the basis that the proposed revised timelines were not
realistic given the state of the parties’ preparations. On 14 May 2014, the
Tribunal rejected CMNC’s request to bring forward the main evidentiary
hearing, reasoning that the extended timelines already represented the most
expeditious process having regard to the demands of due process and the
need to ensure a fair hearing.

The AEO regime

19 Thereafter, the parties continued with the process of document
disclosure. In its statement of case filed on 13 August 2014, Jaguar stated
that it was withholding production of 13 of the 375 documentary exhibits
referenced in its statement of case (“the 13 Exhibits”). According to Jaguar,
there were real concerns that CMNC would misuse the information
contained therein (in particular, information identifying Jaguar’s post-
termination contractors) to interfere with the Project. In this regard, Jaguar
alleged that CMNC had already engaged in a series of “threatening actions”
against it and its contractors, including bribing contractors away from
working with Jaguar and physically intimidating contractors, suppliers and
employees. For this reason, Jaguar indicated that it would only be willing to
disclose the 13 Exhibits to CMNC on an Attorneys’ Eyes Only (“AEO”)
basis, so that the documents would only be made available to CMNC’s
external counsel and expert witnesses but not to CMNC’s employees.
Jaguar took the same position in respect of certain documents (other than
the 13 Exhibits) in response to several of CMNC’s requests to produce, on
the basis that these too implicated similar confidentiality concerns.
20 CMNC denied the allegations, and insisted that Jaguar produce,
without restriction, the 13 Exhibits, which comprised contracts and
purchase orders issued to post-termination contractors, post-termination
completion schedules and daily reports. According to CMNC, these
documents were necessary for it to evaluate the reasonableness of the ETC
Claim, and prohibiting disclosure of these documents to CMNC’s
employees by imposing an AEO regime would handicap CMNC’s ability to
assess and instruct counsel on those documents. Further correspondence
was exchanged by the parties in an attempt to agree upon a disclosure
regime that would meet Jaguar’s concerns over confidentiality, but to no
avail.
21 On 22 September 2014, Jaguar applied to the Tribunal for an order
permitting it to produce the 13 Exhibits (as well as certain other documents
requested by CMNC) on an AEO basis (“AEO Order”). These documents
fell within three broad categories: (a) post-termination contracts, project
schedules and reports containing information identifying Jaguar’s post-
termination contractors; (b) high-level corporate information pertaining to
Jaguar Energy’s parent company, AEI Ltd; and (c) bid documents
containing information about the corporate structure of AEI Ltd. Jaguar
submitted that there were real concerns that this information might be
misused by CMNC to “interfere in the Project or otherwise interfere with
[AEI Ltd] and its shareholders”.
22 CMNC objected to Jaguar’s request for the AEO Order on four
grounds. First, an AEO Order that prohibited CMNC’s employees from
accessing the documents in question would be procedurally unfair because
CMNC’s employees would be best placed to comment and give instructions
on them, and if the order was made, these employees would not be able
properly to instruct counsel. Second, CMNC would not in fact misuse the
information. Third, Jaguar’s request was tantamount to an invitation to the
Tribunal to pre-judge fiercely disputed matters concerning CMNC’s
conduct. Fourth, the concept of AEO disclosure was a feature of domestic
dispute resolution in the US and should not be imported into international
arbitration.
23 On 25 September 2014, the Tribunal ruled in favour of Jaguar, and
permitted its disclosure of the 13 Exhibits and the other documents on an
AEO basis. On CMNC’s point that the use of AEO orders was a peculiarity
of domestic dispute resolution in the US, the Tribunal noted that such
orders have in fact been employed in international arbitrations to preserve
the confidentiality of disclosed documents. The real question was whether
such an order was required in the present, and in determining that issue the
Tribunal weighed and balanced the competing interests of both parties as
follows (at [17]–[19]):
17. The Tribunal views with serious concern the possibility that disclosed
documents could be used for the ulterior and quite improper purposes which
[Jaguar] assert[s] may be undertaken by [CMNC]. On an application such as
this it is not possible to reach any concluded view of the risk that [CMNC]
may undertake such improper use of disclosed documents. Indeed the
Tribunal wishes to make very clear that it has not done so and although
noting the competing contentions of the Parties it will not be subsequently
influenced by these contentions which, if ultimately relevant, will be decided
by the Tribunal after a full evidentiary hearing. …
18. It is noted that tensions between the Parties in relation to this dispute are
running high and therefore it is appropriate that the Tribunal adopt an
approach to this issue which is likely to minimise these tensions and provide
assurance to both Parties that, to the extent possible, the sensitive documents
disclosed will not have a chance of being used other than for the purposes of this
dispute.
19. Also to be taken into account is the need for both Parties to have an
adequate opportunity of presenting their cases.
[emphasis added in italics and bold italics]
24 While the Tribunal did not reach any concluded view on Jaguar’s
allegations that CMNC would misuse the relevant documents, it
nevertheless considered the possibility of misuse to be a “serious concern”
which needed to be addressed. Having regard to both CMNC’s interest in
access for the purpose of preparing its case, and Jaguar’s concerns over
confidentiality, the Tribunal crafted an AEO regime (“the AEO Regime”)
which in its view struck an appropriate balance between these competing
considerations.
25 This balance was achieved by the establishment of a two-stage process
by which documents subject to the AEO Regime would be disclosed. At the

first stage, and as a default position, any material designated “AEO” would
be disclosed to CMNC’s external counsel (and, as was subsequently
clarified, to expert witnesses as well), but not to CMNC’s employees. This
addressed Jaguar’s concern for confidentiality. However, at the second
stage, CMNC was expressly entitled to apply to the Tribunal for its
employees to be given access to AEO-designated documents for the
purposes of giving instructions to counsel, on the basis that the specified
individuals to whom access was to be granted be identified, the necessity of
their having access established, and an undertaking as to confidentiality be
furnished.
26 On 26 September 2014, CMNC requested that the Tribunal
reconsider its decision to allow Jaguar to disclose documents under the
AEO Regime, relying on, amongst other things, the concern that such
disclosure would hinder the preparation of its defence. On 30 September
2014, in Tribunal Communication (“TC”) No 51, the Tribunal upheld its
decision, noting that CMNC’s concerns relating to the preparation of its
defence were adequately addressed by its right to apply for employee access
to the documents under the second stage of the AEO Regime (at [35]–[36]):
35. In adopting the [AEO Regime], the Tribunal was conscious of the
general principle that full disclosure of documents relied on by a Party must
be made to the other Parties to an arbitration. …
36. The Tribunal is confident that once [CMNC’s] external counsel and
expert witnesses have had the opportunity of inspecting the documents in
question, they will be able to make an assessment of whether it is necessary for
[CMNC] for those documents to be disclosed to employees of [CMNC]. Once
such an assessment is made, it will be open to [CMNC] to make application to
the Tribunal for disclosure of those documents to its employees, as provided for
by the Tribunal. …
[emphasis added]
27 Despite the Tribunal’s express reference to CMNC’s right to apply for

disclosure under the second stage, it is undisputed that CMNC never made
any such application to the Tribunal.
28 On 2 October 2014, pursuant to the AEO Order, Jaguar disclosed the
13 Exhibits to CMNC’s external counsel and expert witnesses. This was
seven days after the AEO Order had been made.
The Redaction Ruling and reset of procedural timelines

29 Just ten days after the creation of the AEO Regime, CMNC sought, by
Respondent’s Communication (“RC”) No 43 dated 5 October 2014, to have
the AEO Regime lifted and replaced by a disclosure regime under which
documents would be produced to CMNC’s employees, albeit with sensitive
information pertaining to Jaguar’s contractors’ names redacted. The parties
subsequently managed to reach an agreement regarding the production of
one of the 13 Exhibits, and CMNC requested that the Tribunal lift the AEO
Regime in respect of the remaining 12 exhibits which the parties could not
agree on.
30 Besides the disclosure of documents, a second procedural issue which
required resolution concerned the timelines leading to the main evidentiary
hearing. By RC No 48 dated 15 October 2014, CMNC sought a reset of the
timelines previously agreed and recorded in PO 2 on the basis that its
preparations had been delayed by the dispute over the AEO Regime, which
had “imposed severe practical limitations on effective defence preparation”.
Jaguar objected to CMNC’s request.
31 On 17 October 2014, a teleconference involving the Tribunal and the
parties was convened to address both the redaction issue raised in RC
No 43 and the timelines issue raised in RC No 48.
(a) On the redaction issue, CMNC submitted that redaction of the
names and identifying information of Jaguar’s post-termination
contractors would adequately address Jaguar’s concern as to
maintaining the confidentiality of that information, and that the AEO
Regime was therefore no longer necessary and should be lifted. Jaguar
did not contest CMNC’s point that redaction was in principle an
adequate substitute for AEO-designation, but sought permission to
redact an additional category of information – information relating to
the dates of key construction activities and dates of deliveries – on the
basis that that information might also be misused by CMNC to
interfere with the Project works.
(b) On the issue of timelines, CMNC informed the Tribunal that its
preparations were behind schedule; in particular, its experts would
not be able to file their reports as planned in December 2014, and
would instead require an additional two or three months, thus
necessitating an adjournment of the main evidentiary hearing
previously fixed for January and February 2015. For the same reasons,
it was submitted that a hearing which had been fixed
on 6–7 November 2014 in Toronto (“the Toronto Hearing”) for the
experts to discuss draft outlines of their opinions would likely be
unfruitful. The Tribunal requested that CMNC provide it a written
update on the status of its experts’ preparation, and indicated that it
was minded to proceed with the Toronto Hearing for the parties to
discuss case management, amongst other things.
32 On 19 October 2014, the Tribunal ruled in favour of CMNC on the
redaction issue and lifted the AEO Regime. The 12 disputed exhibits
(see [29] above) were to be disclosed to CMNC (including to its employees)
albeit with information identifying Jaguar’s contractors redacted (“the
Redaction Ruling”). As regards Jaguar’s request that information pertaining
to the dates of key construction activities also be redacted, the Tribunal

rejected this and concluded that “the redactions which [CMNC] …

proposed adequately represents an appropriate balance of the interests of
the Parties”.
33 It bears noting that the Redaction Ruling came less than a month after
the AEO Order was made (in other words, the AEO Regime was lifted after
less than a month of operation) and more than eight months before the
main evidentiary hearing (which was eventually postponed to July 2015).
34 On 25 October 2014, six days after the Redaction Ruling, Jaguar
began to disclose the relevant redacted documents to CMNC. This involved
two parallel tracks of disclosure: redacted copies of the documents were
furnished to CMNC’s employees, and sister sets of unredacted documents
were furnished to CMNC’s external counsel and experts. According to
CMNC, the way in which the sister sets were produced made them difficult
to review. In particular, the sets were not indexed or numbered uniformly,
making it difficult to correlate documents in the redacted and unredacted
sets. It was also undisputed that there were discrepancies in the redacted
and unredacted sets initially produced, in that Jaguar did not provide
redacted versions of every document initially. Redacted versions of these
documents were eventually provided to CMNC by 15 November 2014.
35 On 6–7 November 2014, at the Toronto Hearing, the Tribunal
addressed CMNC’s request for an adjournment of the dates for the main
evidentiary hearing. The following transpired at the hearing:
(a) It was decided that it was no longer possible to hold the main
evidentiary hearing in January and February 2015 given the state of
CMNC’s preparations. CMNC claimed that the delay in its
preparations was caused by its lack of access to the Construction
Documents (following its eviction from the Site) as well as the
imposition of the AEO Regime.
(b) It was also decided that the main evidentiary hearing would be
postponed to July 2015. Adjusted timelines based on the new hearing
dates were to be discussed and agreed between the parties, and
subsequently recorded in a new procedural order to be issued by the
Tribunal.
(c) It was agreed that a virtual data room would be set up to
facilitate the sharing of documents amongst the parties’ experts.
36 Pursuant to what had been discussed at the Toronto Hearing, the
parties subsequently worked together on drafting a new procedural order.
Three aspects of the draft procedural order are pertinent. The first related
to the procedural timelines leading to the main evidentiary hearing
(including, for example, timelines for the filing of the parties’ cases and
expert reports). The second pertained to the provision made for the rolling
production of Jaguar’s Costs Documents due to the ongoing completion of
the Project works (see [15(c)] above). Both of these points were agreed
between the parties.
37 The third point, which the parties were unable to agree on, pertained
to Jaguar’s request that it be relieved of its obligation to provide redacted
copies of contracts and purchase orders with a value of less than
US$100,000, leaving such documents to be produced on an AEO basis
(meaning that they would be produced only to CMNC’s external counsel
and experts). It appeared that CMNC was initially amenable to this
arrangement; it had, by way of an e-mail dated 28 October 2014 (just nine
days after the Redaction Ruling), indicated that it was agreeable “for now”
to relieve Jaguar of its obligation to produce redacted copies of contracts
and purchase orders involving sums of $100,000 or less. In fact, when this
matter was first raised in initial discussions on the draft PO 3, CMNC’s
counsel agreed to a similar concession. It was only subsequently, after
Jaguar proposed the insertion of language formalising the concession in the
draft procedural order, that CMNC resiled from its position, stating that,
after “further consideration”, CMNC “did not see any reason for inclusion
of this language” and concluded that it “does need access to such
documents” to be afforded to its employees for the purposes of preparing its
defence against the ETC Claim.
38 These three points were then addressed by the Tribunal in Procedural
Order No 3 dated 18 December 2014 (“PO 3”).
(a) A new procedural timetable was set pursuant to CMNC’s
request for an adjournment of the main evidentiary hearing to July
2015. As mentioned, these timelines had been agreed between the
parties.
(b) Provision was made for Jaguar to “continue to supplement their
production of documents … (to the extent such documents exist or
come into existence) due to the ongoing nature of the Project
completion effort”. This too had been agreed between the parties.
(c) On Jaguar’s obligations under the Redaction Ruling, which the
parties had been unable to agree, the Tribunal granted Jaguar’s
request for the modification of the Redaction Ruling. Under this
modified regime, the status quo under the Redaction Ruling was to
remain in relation to documents already redacted and disclosed.
However, in relation to any further documents to be disclosed by
Jaguar (whether in response to CMNC’s requests to produce, or as
part of the material which its experts would seek to rely on), only
contracts, purchase orders or invoices with a value of US$100,000 or
more needed to be redacted and disclosed; documents with a value
below that threshold could simply be produced on an AEO basis
(meaning only to CMNC’s external counsel and experts), albeit
subject to CMNC’s right to apply for production of such documents.

39 The effect of PO 3 on the parties’ preparation of their respective cases

was significant in three respects. First, PO 3 modified the application of the
Redaction Ruling to any further contracts, purchase orders and invoices to
be disclosed by reinstating the AEO Regime in relation to documents
pertaining to claims with a value of less than US$100,000. The practical
effect that this modification had on the parties’ preparation may be assessed
both in terms of the absolute number of documents affected as well as the
monetary value they represented. On CMNC’s estimate, there were
143 documents each concerned with a value exceeding US$100,000 (worth
a total of US$188,790,048.92), against about 2,900 documents each
concerned with a value at or below that threshold (worth a total of
US$14,521,839.56). Therefore, while the majority of documents (by
number) were now no longer subject to the Redaction Ruling, the total
value of the claim represented by documents still subject to the Redaction
Ruling was far higher than the total value represented by those which were
not.
40 Second, PO 3 postponed the date of the main evidentiary hearing and

reset all ancillary procedural timelines to take into account the concerns
and considerations of the parties. It must be emphasised that these new
timelines were agreed between the parties, and, critically, agreed in the
context of all that had transpired up to then, such as the imposition of the
AEO Regime and its subsequent lifting by the Redaction Ruling, and all the
difficulties which CMNC claims it suffered as a result of these orders. While
the Tribunal did modify the Redaction Ruling by PO 3 (see [38(c)] and
[39] above), CMNC did not, at the time PO 3 was issued, request a further
adjustment of the agreed procedural timelines on account of that.
41 Third, PO 3 recorded the parties’ agreement that Jaguar be permitted

to produce contracts, purchase orders and invoices pertaining to the
completion of the Project on a rolling basis as the works progressed. These
documents evidenced Jaguar’s costs of completion, which, as mentioned,
formed the basis of its ETC Claim, and therefore enabled Jaguar to
continually update the quantum of its ETC Claim (see [15(c)] above). Over
the course of the Arbitration, Jaguar produced a total of four updates to the
initial ETC Claim quantum first stated in Jaguar’s Statement of Case. The
ETC Claim quantum included both (a) costs actually incurred, and
(b) estimates of costs expected to be incurred. Primarily, the updates to the
ETC Claim reflected complementary changes in (a) and (b), as estimated
costs were actually incurred in the course of the Project works. Notably,
however, the updates also reflected overall increases in the total sum
claimed. Each tranche of the documents supporting each update was
accompanied by a “transaction log”, which was a list of transactions
corresponding to the documents uploaded. For convenience, we refer to
each tranche of documents by the exhibit number of the transaction log
accompanying it, as follows:
S/N Transaction Date of Date of invoice Quantum of

log exhibit transaction uploads ETC Claim
number log (US$)
1 C-295 13 August - 279,923,290
(statement of 2014
case)
2 C-699 22 December 10–11 February 288,160,259
2014 2015
3 C-773 27 February 27 March; 287,290,399
2015 2 April 2015
4 C-840 24 April 2015 22 May 2015 308,850,719
5 C-900 5 June 2015 5 June 2015 317,235,142
Changes in CMNC’s legal team of external counsel and experts

42 Even as PO 3 was an attempt to resolve a number of the key case
management issues, other developments were taking place. In January and
February 2015, some six months or so prior to the main evidentiary
hearing, CMNC made extensive changes to its team of external counsel and
expert witnesses. On 15 January 2015, CMNC informed the Tribunal that
its counsel for the expert issues of design, scheduling and quantum, Reed
Smith LLP, would be replaced by MinterEllison. Three days later, CMNC
announced that its counsel for all remaining matters, Herbert Smith
Freehills LLP, would be replaced by King & Wood Mallesons (“KWM”). On
27 May 2015, at the doorstep of the main evidentiary hearing, CMNC
replaced MinterEllison with counsel from State Chambers.
43 Over the course of January and February 2015, CMNC also replaced
its experts on quantum, scheduling and Guatemala law. The most
significant change, for present purposes, concerns the replacement of
CMNC’s quantum expert, Mr Iain Wishart, with Mr Charles Gurnham
(“Mr Gurnham”) on 24 January 2015. The expert evidence on quantum lies
at the heart of the present proceedings because the main thrust of CMNC’s
case is that it was not given a full opportunity to respond to Jaguar’s case on
the quantum of the ETC Claim. We return to this at [127] below.
Jaguar’s rolling production of Costs Documents

44 Another developing issue concerned the rolling production of Costs
Documents. Over the course of the Arbitration, Jaguar produced a total of
four tranches of Costs Documents supporting four corresponding updates
to the quantum of its ETC Claim (see [41] above). The first tranche of
documents was uploaded on 10 February 2015 upon the establishment of
the experts’ shared data room (see [35(c)] above). This was followed by a
protracted exchange of correspondence (beginning in February 2015 and
ending only in June 2015) between the parties’ counsel in relation to alleged

irregularities and discrepancies in the documents uploaded by Jaguar’s

counsel, Varela, Lee, Metz & Guarino LLP (“VLMG”).
45 KWM’s chief complaint pertained to VLMG’s failure to provide an

index to the documents uploaded in the data room, which, KWM said, had
significantly slowed its review because the documents had not been
classified or grouped according to their nature, and their file names were
non-descript and not in the least illuminative. This was compounded by the
fact that there were discrepancies between the entries in the transaction logs
and the supporting invoices uploaded to the data room, and that Jaguar, in
uploading each new batch of invoices, had simply replaced the existing
invoice folder rather than placing new invoices in a separate folder, with the
result that CMNC had to go through every invoice in the replacement
folder to determine whether or not it had been provided before.
46 In relation to KWM’s request for an index, VLMG explained that the

transaction logs accompanying each upload themselves served as indices to
the documents uploaded. Over the course of several e-mail exchanges,
VLMG (a) provided step-by-step instructions to KWM as to how specific
documents in the data room could be located by reference to the entries
listed in the transaction logs, (b) offered to walk KWM through the
documents uploaded through teleconferences between counsel and/or the
parties’ quantum experts, and (c) uploaded documents listed in the
transaction logs which it had omitted to upload.
47 Ultimately, the parties remained unable to resolve the matter; KWM’s

final e-mail to VLMG on this subject (dated 28 May 2015) noted that there
remained discrepancies between the invoices listed in the C-699 transaction
logs and the invoices uploaded to the data room. Notably, CMNC did not
raise these concerns to the Tribunal over the course of the entire four-
month exchange, despite Jaguar’s position (repeated over the course of that
exchange) that it would proceed as directed by the Tribunal should CMNC
decide to bring its complaints to the Tribunal’s attention.
The supplemental order
48 Separately, on 17 February 2015, CMNC applied to the Tribunal for

the AEO Regime to be lifted altogether on the basis that the Project was due
to be completed by May 2015, and further that the names of Jaguar’s
contractors were, by then, public knowledge. It was submitted that in these
circumstances, there could be no real risk of impropriety by CMNC that
could affect the completion of the Project.
49 The parties then entered into discussions, and, on 17 March 2015,

informed the Tribunal that they had agreed that Jaguar would disclose all
material (both that previously disclosed, as well as any further material to
be disclosed) in unredacted form to 28 specified CMNC employees. This
agreement was then recorded in a supplemental order issued by the

Tribunal dated 18 March 2015.
50 In other words, on 18 March 2015, some three and a half months
before the main evidentiary hearing in July 2015, the AEO Regime was
completely lifted; all documents was thenceforth to be produced in
unredacted form to CMNC’s (specified) employees.
51 CMNC did not make any application at this stage to postpone the
main evidentiary hearing. On the contrary, CMNC had, in the weeks before
the AEO Regime was lifted, applied (successfully) to amend its case, and in
doing so contended that acceptance of its proposed amendments “would
not impact the July 2015 Main Evidentiary Hearing dates”, stating
“expressly that its intention is to proceed with the hearing dates as they
stand”.
CMNC’s late filing of the Gurnham Responsive Report

52 By Procedural Order No 4 (“PO 4”) dated 18 March 2015, the
Tribunal issued timelines for the remainder of the Arbitration. Most
pertinently for present purposes, this included the timeline for the
submission of Mr Gurnham’s report (“the Gurnham Responsive Report”)
in response to the report prepared by Jaguar’s quantum expert, Mr Patrick
McGeehin (“Mr McGeehin”), which was due for submission on 15 May
2015, and was eventually filed late by CMNC (see [65] below). We set out
the key timelines that were stipulated in PO 4 in the table below:
Submission deadlines Date

Submission of Mr McGeehin’s finalised outline 3 April 2015
opinion
Submission of Mr Gurnham’s finalised expert 1 May 2015
report
Submission of the Gurnham Responsive Report 15 May 2015
Submission of Mr McGeehin’s report responsive to 5 June 2015
Mr Gurnham’s finalised expert report
Submission of the parties’ pre-hearing submissions 26 June 2015
Main evidentiary hearing 6–21 July 2015
53 As late as 14 April 2015, Mr Gurnham confirmed in a teleconference
with the Tribunal that he would be able to meet the 15 May 2015 deadline
for the Gurnham Responsive Report:
Mr Gurnham: … that will lead me in an obvious way to my main

report which is due on the 1st of May, and then two
weeks after the responses report which is due 15th of
May. Now, all in all I’ve been quite a busy bee and I
continue to be so until the 15th of May.

Chairman: So, the dates which have been specified for your
reports and the uploading of the database are likely to
be met?
Mr Gurnham: It will be met.
54 Mr Gurnham’s assurances notwithstanding, on 8 May 2015, the
parties agreed an extension of time for CMNC’s submission of the
Gurnham Responsive Report to 5 June 2015 (instead of 15 May 2015).
55 On 22 May 2015, Jaguar uploaded a third tranche of supporting
documents corresponding to the C-840 update (see [41] above).
56 On 29 May 2015, CMNC sought by RC No 217 a short extension of
time for the submission of the Gurnham Responsive Report to 10 June 2015
(from 5 June 2015) on the basis that it was “not possible or reasonable for
Mr Gurnham to have had a proper opportunity to analyse the large number
of documents relied upon by [Mr McGeehin]” which had been uploaded to
the data room since February 2015, including the aforementioned 22 May
2015 disclosure corresponding to the C-840 update (see [55] above).
57 Before the Tribunal could rule on CMNC’s request dated 29 May
2015 for an extension of time for the filing of the Gurnham Responsive
Report to 10 June 2015, CMNC requested (by RC No 219) on the very next
day, 30 May 2015, that (a) a cut-off date of 3 April 2015 be imposed on
documents to be relied upon by Mr McGeehin; or, (b) in the event the
Tribunal was minded to allow Jaguar to rely on documents produced after
3 April 2015, that, in the alternative, Mr Gurnham be granted an extension
of time for the filing of the Gurnham Responsive Report, to 18 June 2015.
RC No 219 stated, in material part, as follows:
Relief Sought:
12. Therefore, we submit that:
a) there should be a deadline imposed on documents to be relied
upon by [Jaguar’s] quantum expert and that date should be 3 April
2015 as committed to by both Mr McGeehin and Mr Sieracki at the
Hong Kong Hearing.
b) If the Tribunal is minded to allow any documents produced by
[Jaguar] after 3 April 2015, Mr Gurnham should be granted an
extension to submit his responsive report … We submit to 18 June.
Failing to impose such deadline or to grant such requested extension will
cause severe unfairness to [CMNC] and Mr Gurnham. It is entirely not
possible for Mr Gurnham to complete his responsive report even with the
5 days extension sought in [RC No 217] without any cut off date.
58 Notably, CMNC still did not request a postponement of the July 2015
main evidentiary hearing. Nor was any explanation given as to what had
transpired overnight such that the request made the previous day was no
longer sufficient.
59 In TC No 208 dated 2 June 2015, the Tribunal ordered as follows:

(a) a cut-off date was to be imposed for the production of documents and
particulars relating to Jaguar’s costs to complete, though not of 3 April
2015, but of 5 June 2015 instead; and (b) CMNC’s request for an extension
of the deadline for the filing of the Gurnham Responsive Report to 18 June
2015 was granted. In other words, the Tribunal granted CMNC the relief it
sought in terms of para 12(b) of its request dated 30 May 2015.
60 In deciding not to impose a cut-off date of 3 April 2015 (and thereby
exclude from its consideration documents produced after that date), the
Tribunal was clearly conscious of the need to allow each party an
opportunity to present its case, and to respond to the case against it, a task
complicated by the very short timelines remaining available in the lead-up
to the main evidentiary hearing in July 2015:
There is a difficult balance to be struck between allowing each Party to
present material in support of each of their cases and affording the other
Party a reasonable opportunity to meet those cases.
…
… The circumstances under which the Tribunal finds itself are, however,
driven by the Parties’ agreement to arbitrate complex disputes to finality
within a very short period of time, an agreement which must be respected by
the Tribunal.
61 We note that CMNC did not thereafter object to or challenge the
Tribunal’s decision to allow Jaguar’s continued production of documents
up till 5 June 2015.
62 On 5 June 2015, the last day for the production of documents
pertaining to Jaguar’s costs to complete, Jaguar uploaded the final tranche
of Costs Documents to the data room (see [41] above).
63 On 17 June 2015, one day before the Gurnham Responsive Report
was due for submission, CMNC sought yet another extension to 25 June
2015. According to CMNC, the volume of material disclosed on 5 June
2015 was of “extraordinary size”, and this, coupled with Jaguar’s recent
production of documents relating to Exhibits C-699, C-773 and C-840,
meant that Mr Gurnham required more time to properly review the
material in preparing his responsive report. Jaguar opposed CMNC’s
request, noting that it would have to consider Mr Gurnham’s report in the
submission of its pre-hearing brief, which was due to the Tribunal on
26 June 2015.
64 On 18 June 2015, the Tribunal rejected CMNC’s request for an
extension. In its reasons for that decision, the Tribunal noted the following:
(a) The material to be provided by Jaguar to CMNC on 5 June 2015
had already been taken into account in the Tribunal’s extension of the
deadline to 18 June 2015.

(b) The Tribunal had repeatedly reminded the parties that

applications for extensions of time should be made adequately in
advance of, and not on the eve of the expiry of the deadline.
(c) The request had been made in “very close proximity to the Main
Evidentiary Hearing”.
Given these circumstances, the Tribunal held that CMNC had not “made
out a case for disturbing the balance which the Tribunal struck in
[TC No 208]”.
65 On 22 June 2015, CMNC filed the Gurnham Responsive Report out of
time. Upon reviewing that document, Jaguar discovered that it referred to a
further report by CMNC’s design expert, Mr Adam Aspinall (“Mr Aspinall”
and “the Aspinall Report”). The Aspinall Report had not hitherto been
mentioned by CMNC, and no leave had been sought for its submission.
Nor had it been filed at that stage. On the same day, Jaguar objected to any
belated filing of the Gurnham Responsive Report, and drew the Tribunal’s
attention to the references therein to the Aspinall Report.
66 On 25 June 2015, one day before the parties’ pre-hearing submissions
were due for filing, CMNC filed the Aspinall Report, along with six witness
statements which it said were responsive to the material produced by Jaguar
on 5 June 2015 (and for the submission of which too no leave had been
granted). As to how Jaguar could be expected to respond to these new
filings given the short notice, CMNC’s position was simply that “[s]hould
[Jaguar] wish to respond or make further submissions, they can either raise
them now or respond at the main hearing”. Again, CMNC did not suggest
that the evidentiary hearing could not proceed as scheduled.
67 On 27 June 2015, by RC No 245, CMNC formally applied to admit the
Gurnham Responsive Report, the Aspinall Report, as well as the six witness
statements. CMNC submitted that these reports and statements were
necessary in order that CMNC might “properly present its case”. In support
of its application, CMNC submitted that the Tribunal’s imposition of the
AEO Regime and its decision to allow Jaguar to produce copious
documents on an ongoing basis and to update its ETC Claim significantly
impacted CMNC’s ability to properly respond to the factual issues raised by
Jaguar’s expert and lay witnesses. CMNC referred to the Tribunal’s duty
under Art 18 of the UNCITRAL Model Law on International Commercial
Arbitration (“the Model Law”) to treat the parties equally and ensure that
each is given a full opportunity to present its case, and submitted that its
reports and statements should be admitted, as “[Jaguar], despite [its]
strident protestations, have sufficient opportunity to review this
supplemental evidence, and deal with it [at the main evidentiary hearing] in
Dublin”.
68 On 29 June 2015, the Tribunal reserved the issue of whether to
exclude the evidence referred to in RC No 245 for consideration at the
“appropriate time”. The Tribunal clarified shortly thereafter that “[n]o

rulings have been made as to the capacity of [CMNC] to rely, or the extent
of any reliance, upon the objected material”.
69 On the same day, Jaguar formally filed its objection to CMNC’s
application. Jaguar noted that CMNC had not given it or the Tribunal any
forewarning of its intention to file the witness statements, notwithstanding
that the filing of those statements was purportedly done in response to
Jaguar’s 5 June 2015 disclosure, and therefore would have been within
CMNC’s contemplation shortly after that date. Jaguar noted the “extreme
and irreparable” prejudice it would suffer if CMNC were permitted to
introduce this “voluminous” new evidence on the eve of the main
evidentiary hearing.
70 By TC No 230 dated 3 July 2015, the Tribunal declined to grant
CMNC leave to rely upon the Aspinall Report:
… [T]he Tribunal considers that there can be a judgement made now
regarding the expert report of Mr Aspinall. No leave was sought for such
expert evidence to be adduced despite this being a requirement for all expert
evidence in this Arbitration. It came without notice. Its provision is contrary
to the Tribunal’s directions not just as to time, but also as to substance. In the
interests of fairness the Tribunal believes that it is appropriate and necessary
to indicate that leave should not be granted for it to be relied upon.
71 In TC No 230, the Tribunal did not make any ruling in relation to the
admissibility of the witness statements and the Gurnham Responsive
Report. The Tribunal considered it premature to make any ruling in
relation to the admissibility of the witness statements and the Gurnham
Responsive Report. However, in respect of the latter two categories of
evidence, the Tribunal’s stance should be set out in full:
The Tribunal has previously observed that one of the criteria to be taken into
account in considering whether to place any reliance upon the materials
provided, to which objection is taken, is that a judgement needs to be made as
to whether a party has the capacity to respond to the material. It must be
noted that the later in time and closer to the hearing that material is provided,
the less realistic the possibility there is for a response. For this reason, the
Tribunal wishes to make it clear that it does not require [Jaguar] to attempt to
respond to material, which on any view has been provided too late for any
meaningful response to be formulated. Accordingly, the Parties should be
aware that the Tribunal does not expect [Jaguar] to undertake what can be
fairly regarded as a futile exercise, and that judgements as to the reliance if
any to which the Tribunal will have on such material will be made by the
Tribunal in this context. No assumptions can be made at this stage as to
whether any of the Disputed Material (other than the expert statement of
Mr Adam Aspinall) will be admitted.

72 The main evidentiary hearing of the Arbitration was held in Dublin

from 6 July 2015 to 21 July 2015. Meanwhile, the Project works were
completed on 26 July 2015.
73 On 25 November 2015, the Tribunal rendered its award (“the
Award”), in which it unanimously found that Jaguar Energy had validly
terminated the EPC Contract for default by CMNC. The Tribunal
substantially allowed Jaguar’s claims, pertinently, the ETC Claim.
74 On 25 February 2016, CMNC commenced Originating Summons
No 185 of 2016, seeking to set aside the Award on three grounds:
(a) The Due Process Ground: The Award was obtained in breach of
Art 34(2)(a)(ii) of the Model Law and s 24(b) of the International
Arbitration Act (Cap 143A, 2002 Rev Ed) (“the IAA”), because (i) the
AEO Regime deprived CMNC of a reasonable opportunity to present
its case, and (ii) the Tribunal failed to consider CMNC’s arguments in
relation to the DPSA.
(b) Defective Arbitral Procedure Ground: The Award was obtained
in breach of Art 34(2)(a)(iv) of the Model Law and the parties’
agreement to arbitrate, because (i) the Tribunal breached Art 18 of
the Model Law in failing to treat the parties equally and to ensure that
CMNC was given a full opportunity of presenting its case; and/or
(ii) Jaguar breached its obligation to arbitrate in good faith, and the
Tribunal failed to restrain Jaguar from doing so.
(c) Public Policy and Corruption Ground: The Award was liable to
be set aside as being contrary to public policy under
(i) Art 34(2)(b)(ii) of the Model Law on the basis that Jaguar had
engaged in “guerrilla tactics” in the Arbitration, such as, for example,
Jaguar’s seizure of CMNC’s documents by securing the eviction of
CMNC’s employees from the site (see [11] above), and/or
(ii) Art 34(2)(b)(ii) of the Model Law and s 24(a) of the IAA, because
the Tribunal failed to investigate allegations of corruption and fraud,
and/or the Award was induced or affected by corruption.
Decision below
75 The judge below (“the Judge”) dismissed CMNC’s application to set
aside the Award, rejecting all three grounds put forward by CMNC (see
China Machine New Energy Corp v Jaguar Energy Guatemala LLC and
another [2018] SGHC 101 (“GD”)). We set out the Judge’s reasons to the
extent that they are relevant to the issues raised on appeal.
76 We begin with the Due Process Ground, which, as we shall shortly
explain, is the only ground pursued in the appeal. The Judge rejected
CMNC’s submission that the imposition of the AEO Regime had deprived
it of a reasonable opportunity to present its case. It was undisputed that the
Tribunal had the power to grant the AEO order; the only question was
whether the order was made in an inappropriate and indiscriminate way
(GD at [133]). The Judge held that it was not, for three reasons:
(a) First, the Tribunal did make a determination that there were
compelling grounds to impose the AEO Regime, and there was no
reason to disturb that determination (GD at [139]–[147]).
(b) Second, the Judge rejected CMNC’s submission that the AEO
Regime had unjustifiably shifted the burden of proof onto CMNC to
justify its request for disclosure of each AEO-designated document.
He held that the burden of proof was never moved to CMNC – it
remained on Jaguar to establish that for each document or class of
documents, an AEO order was warranted (GD at [150]–[152]).
(c) Third, the Tribunal did carefully weigh the potential prejudice
to CMNC in making the AEO Order. First, CMNC retained the
option of applying for access under the second stage of the AEO
Regime, but never availed itself of this avenue of access. There was no
basis for thinking that the application process would be “onerous and
impractical”; the Judge thought the process would likely have entailed
“a relatively straightforward exercise” (GD at [156]–[157]). Second,
the Redaction Ruling (which was made less than a month after the
imposition of the AEO Regime) would have cured any prejudice
caused by the application of the AEO Regime (GD at [158]). Third,
the Tribunal reset the procedural timetable for the Arbitration
pursuant to CMNC’s request by issuing PO 3, which reflected
timelines that CMNC itself had agreed to in the context of the AEO
Regime and the Redaction Ruling (GD at [159]). Fourth, after the
timelines were agreed, CMNC’s counsel gave multiple assurances that
they (and CMNC’s experts) were aware of the compressed timelines
and that they would be able to meet them (GD at [160]).
77 The Judge also rejected CMNC’s contentions that the AEO Regime
had significantly undermined its opportunity to present its case. In
particular:
(a) The Judge rejected CMNC’s submission that its counsel and
experts could not effectively analyse the Costs Documents due to the
AEO Regime, noting that CMNC could have but chose not to apply
for access to the documents for its employees (GD at [163]).
(b) The Judge rejected CMNC’s submission that the Redaction
Ruling did little to mitigate the prejudice caused to it by the AEO
Regime. While the Tribunal subsequently ordered that the AEO
Regime be reinstated in relation to documents with a value of less
than US$100,000 (see [39] above), the Judge noted that the total value
of claims affected by documents subject to the AEO Regime
(approximately US$14.5m) was far less than the total value of claims

affected by documents that Jaguar had to disclose under the

Redaction Ruling (approximately US$188.7m). Moreover, CMNC
could have applied for production of the documents withheld from its
employees (albeit with information identifying Jaguar’s contractors
redacted), but no such application was made (see [38(c)] above)
(GD at [164(a)–164(b)]). As for CMNC’s complaints that Jaguar’s
disclosures of the redacted and unredacted sets without an index
caused it difficulties, the Judge thought these were largely over-stated,
as were its complaints about certain documents with unauthorised
redactions (GD at [164(c)–164(d)]).
(c) The Judge rejected CMNC’s submission that it had, by the time
the AEO Regime was finally lifted by the Supplemental Order,
suffered “irreversible prejudice”. CMNC had itself agreed to the
timelines set out in PO 3, and the timelines had been agreed in the
context of the AEO Regime and the Redaction Ruling. Although
Jaguar continued to disclose new Costs Documents until 5 June 2015,
as the Project works progressed, that was done in accordance with
PO 3, and CMNC did not apply for those procedural timelines to be
postponed (GD at [165]).
78 The Judge further held that CMNC did not, in any case, suffer
prejudice that justified setting aside the Award. The thrust of CMNC’s
complaint was that it did not have sufficient time to review the documents
supporting the ETC Claim, but it appeared that this was at least partly due
to CMNC’s own choices and failings such as, for example, its decision to
change parts of its legal team on multiple occasions (GD at [167]).
79 Turning next to the Defective Arbitral Procedure Ground, the Judge
rejected CMNC’s submission that the Tribunal had failed to treat the
parties equally (in accordance with Art 18 of the Model Law) by applying an
“asymmetrical AEO Restriction” and in its (unequal) policing of the AEO
Regime (GD at [187]–[189]). The Judge also rejected CMNC’s contentions
that the Tribunal did not afford CMNC a reasonable opportunity to present
its case by insisting that CMNC adhere to the procedural timelines, since
these were timelines agreed to by CMNC (GD at [190]).
80 The Judge also dealt with the Public Policy and Corruption Ground,
but we need not deal with this as CMNC does not pursue this ground on
appeal.
The parties’ cases
Appellant’s case
81 CMNC’s case on appeal is much narrower than its case before the
Judge, and now focuses exclusively on the Due Process Ground. In essence,
CMNC’s case is that it was not accorded reasonable and equal due process
due to the cumulative effect of three operative factors: (a) the effect of the
AEO Order (amongst others) on CMNC’s review of the documents
produced by Jaguar; (b) CMNC’s lack of access to its own Construction
Documents which had been seized by Jaguar; and (c) the Tribunal’s failure
to apply a cut-off date to Jaguar’s rolling production of large quantities of
documents in support of its ETC Claim very close to the main evidentiary
hearing.
82 These three factors did not just cause CMNC to lose preparation time
for the main evidentiary hearing; they disabled CMNC from being able to
meaningfully interrogate the evidence in time, with the result that three key
documents were filed out of time: (a) the Aspinall Report; (b) the Gurnham
Responsive Report; and (c) the second witness statement of Chai Jisheng
(“Chai’s 2nd Witness Statement”), one of CMNC’s employees, whose
evidence was key to CMNC’s response to the material produced by Jaguar
on 5 June 2015. Of these, the Tribunal formally excluded the first, and
effectively precluded itself from giving any weight to the latter two by its
direction that Jaguar was not required to respond to those filings
(see [71] above).
83 The Judge, in holding that there was no breach of CMNC’s due
process rights, erred in the following respects:
(a) The Judge failed to assess the cumulative impact of the three
factors by analysing each in isolation.
(b) The Judge erred in characterising the Redaction Ruling and the
reset of hearing dates following PO 3 as having ameliorated or
removed the prejudice caused, and had thereby overstated the efficacy
of these orders and underestimated CMNC’s handicap.
(c) The Judge proceeded on the erroneous premise that the only
prejudice CMNC was complaining of was the lack of time; while time
was an issue, the Judge severely underestimated the irreparable
prejudice suffered by CMNC, in that he:
(i) wrongly dismissed CMNC’s very real difficulties in
reviewing Jaguar’s documents as mere “logistical difficulties”;
and
(ii) failed to appreciate the irremediable consequences that
followed when CMNC submitted witness statements and expert
reports that could not be prepared earlier due to the
dysfunctional arbitration process;
all of which resulted in CMNC’s inability to properly investigate and
challenge the reasonableness of Jaguar’s ETC Claim.
(d) The Judge erred in calibrating the balance between due process
and what he wrongly perceived as an agreement for an expedited

arbitral process, when parties had in fact waived strict compliance

with the expedited arbitration deadlines in cl 20.2 of the EPC
Contract.
(e) The Judge applied the wrong legal standard in analysing
CMNC’s procedural choices; the question was whether CMNC had
waived its due process rights by those choices, and it had not.
Respondents’ case
84 Jaguar’s position is that neither it nor the Tribunal, whether by their
action or inaction, had done anything to compromise CMNC’s right to be
heard. In response to the three factual bases upon which CMNC’s case on
natural justice rests (see [81] above), Jaguar submits that (a) the Tribunal
afforded adequate regard to due process in allowing Jaguar to refine its ETC
Claim; (b) the Tribunal adequately considered the parties’ competing
interests and properly granted the AEO Order; and (c) CMNC’s purported
lack of access to the Construction Documents is not corroborated by the
arbitration record.
85 In any case, CMNC suffered no prejudice from the points complained
of above. CMNC’s delayed filing of the Aspinall Report, the Gurnham
Responsive Report and Chai’s 2nd Witness Statement is solely attributable
to its own deficient preparation, and not to any alleged lack of proper
disclosure on Jaguar’s part. The arbitration record is replete with examples
of CMNC’s own defective case management (such as in appointing its
experts late, and effecting disruptive changes to its team of external counsel
and experts) and its failure to comply with the Tribunal’s timelines –
timelines which, as often was the case, CMNC had itself agreed to. What the
record shows is that the Tribunal had treated both parties fairly without any
failure of due process, and had in fact indulged many of CMNC’s requests
for extensions of time.
The applicable legal principles

86 The general principles regarding the setting aside of an arbitral award
for breach of natural justice under s 24(b) of the IAA are well-established.
The applicant must establish (a) which rule of natural justice was breached;
(b) how it was breached; (c) in what way the breach was connected to the
making of the award; and (d) how the breach did or could prejudice its
rights: Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007]
3 SLR(R) 86 (“Soh Beng Tee”) at [29]; L W Infrastructure Pte Ltd v Lim Chin
San Contractors Pte Ltd and another appeal [2013] 1 SLR 125 at [48].
87 The authorities make clear that the right to be heard – a party’s right
to present its case and respond to the case against it – is a fundamental rule
of natural justice: Soh Beng Tee at [42]. They also make clear that the
threshold for a finding of breach of natural justice is a high one, and that it
is only in exceptional cases that a court will find that threshold crossed: Soh
Beng Tee at [54].
88 The parties’ right to be heard finds expression in Art 18 of the Model

Law, which provides: “The parties shall be treated with equality and each
party shall be given a full opportunity of presenting his case.”
89 This basic procedural guarantee finds teeth in Art 34(2)(a)(ii) of the

Model Law and s 24(b) of the IAA, which provide, respectively, that the
supervisory court may annul an award if the party against whom the award
is invoked was “unable to present his case”, or where that party’s rights are
prejudiced because a “breach of the rules of natural justice occurred in
connection with the making of the award”. These provisions permit, in
certain circumstances, the setting aside of an award where the procedural
protections in Art 18 of the Model Law have not been duly accorded to the
award-debtor: Gary Born, International Commercial Arbitration (Wolters
Kluwer, 2nd Ed, 2014) (“Born”) at p 2166.
90 Article 18 of the Model Law provides that the parties shall be treated
equally and that each shall be given a full opportunity of presenting its case.
These requirements are, in essence, an embodiment of basic notions of
fairness and fair process which underpin the legitimacy of all forms of
binding dispute resolution. Thus, in the Analytical Commentary on Draft
Text of a Model Law on International Commercial Arbitration
(A/CN.9/264, 25 March 1985) (“Analytical Commentary”) on (what is now)
Art 18 of the Model Law, it is stated as follows (Art 19 at para 7):
Paragraph (3) [ie, the due process requirements in what is now Art 18 of the
Model Law] adopts basic notions of fairness in requiring that the parties be
treated with equality and each party be given a full opportunity of presenting
his case. [emphasis added in italics and bold italics]
91 And, as this court has previously observed in Soh Beng Tee

([86] supra, at [42]):
… At the outset, it must be acknowledged that it is an indispensable, one
might even say universal, requirement in every arbitration that the parties
should have an opportunity to present their respective cases as well as to
respond to the case against them. … It can be confidently stated that all
established legal systems require parties to be treated fairly, although
different terminology may be employed. Fairness includes the opportunity to
be heard and the equality of treatment.
92 While the right to be heard is a fundamental rule of natural justice

which can be found in almost every mode of binding adjudication, it is of
particular importance in the context of international commercial
arbitration, where it serves as an essential check on the wide powers of the
tribunal in managing the arbitral process (Analytical Commentary, Art 19
at para 7).

93 Returning to Art 18, that provides that “each party shall be given a full
opportunity of presenting his case”. The present appeal raises interesting
questions as to what exactly that entails and, in particular, how the word
“full” should be interpreted. While a plain reading of the word “full” may at
first blush appear to suggest an expansive and uncurtailed right, the weight
of authority and opinion suggests otherwise.
94 The starting point of the analysis is the travaux preparatoires of Art 18
of the Model Law. The travaux show that the drafters of Art 18 were, in fact,
primarily concerned with placing limits on the right to be heard so as to
prevent its abuse by unscrupulous parties who might otherwise seek
extension after extension of any applicable timeline on the basis that each
would be necessary to ensure that party’s “full” opportunity of presenting
its case.
(a) While initial drafts of the due process provision provided that
“at any stage of the proceedings each party [should be] given a full
opportunity of presenting his case”, it was decided that the phrase “at
any stage of the proceedings” should be deleted as “[i]t was felt that
the words ‘at any stage’ … might be relied upon by a party who
wished to prolong the proceedings or to make unnecessary
submissions” (Report of the Working Group on International Contract
Practices on the Work of its Fourth Session (A/CN.9/232,
10 November 1982) at para 104; Report of the Working Group on
International Contract Practices on the Work of its Sixth Session
(A/CN.9/245, 22 September 1983) at para 73).
(b) In the course of discussions on Art 19 of the draft Model Law
(the present Art 18), one member expressed concern that “the
provision may also be a basis for delaying tactics”, and proposed that
the word “full” be replaced by the word “adequate” (Analytical
Compilation of comments by Governments and international
organizations on the draft text of a model law on international
commercial arbitration (A/CN.9/263, 19 March 1985) (“Analytical
Compilation”), Art 19(3) at para 7).
(c) In a similar vein, the International Bar Association proposed
replacing the word “full” with the phrase “full and proper”, as the
word “full”, on its own, was “relatively imprecise” and “might be
capable of being interpreted in an unduly restrictive sense”
(Analytical Compilation, Art 19(3) at para 8).
95 While the latter two proposals were not eventually implemented (and
the word “full” was retained), that was only because the Working Group
ultimately considered it sufficiently clear that concerns of due process must
be balanced against concerns for the efficiency and expediency, and so this
would not entitle a party to obstruct or delay the proceedings (Analytical
Commentary, Art 19 at para 8):
… Other provisions, such as articles 16(2) [requiring that jurisdictional

objections be raised no later than in the statement of defence], 23(2)
[permitting a tribunal to refuse requests to amend a claim or defence] and
25(c) [permitting the tribunal to issue an award in default], present certain
refinements or restrictions in specific procedural contexts in order to ensure
efficient and expedient proceedings. These latter provisions, which like all
other provisions of the model law are in harmony with the principles laid down
in article 19(3) [the present Art 18], make it clear that ‘full opportunity of
presenting one’s case’ does not entitle a party to obstruct the proceedings by
dilatory tactics and, for example, present any objections, amendments, or
evidence only on the eve of the award. [emphasis added in italics and bold
italics]
96 The point that the travaux make tolerably clear is that the word “full”
in Art 18 of the Model Law was not intended to create a right of unlimited
scope. On the contrary, and as mentioned, the drafters were clearly
conscious of the need to limit the scope of Art 18, so that it would not be
abused by parties seeking to delay and prolong proceedings.
97 In this regard, it has been suggested – rightly, in our view – that the
parties’ right to be heard is impliedly limited by considerations of
reasonableness and fairness. This has especial relevance in cases such as the
present one, where the complaint is that the failure to grant some sort of
procedural accommodation to a party adversely impacted that party’s due
process rights.
(a) As was explained by this court in Soh Beng Tee ([86] supra,
at [65(a)]), while the parties have, in general, a right to be heard
effectively on every relevant issue, the ‘overriding concern… is
fairness’, and the ‘best rule of thumb to adopt is to treat the parties
equally and allow them reasonable opportunities to present their cases
as well as to respond’ [emphasis added].
(b) In a similar vein, the Singapore High Court in Triulzi Cesare
SRL v Xinyi Group (Glass) Co Ltd [2015] 1 SLR 114 (“Triulzi Cesare”)
observed (at [151]) that “the right of each party to be heard does not
mean that the Tribunal must ‘sacrifice all efficiency in order to
accommodate unreasonable procedural demands by a party’”.
(c) The same view holds in non-Model Law jurisdictions. In
England, s 33 of the English Arbitration Act 1996 expresses the right
to be heard as a requirement that parties be given a “reasonable”
opportunity of presenting their case. In ASM Shipping Ltd of India v
TTMI Ltd of England [2005] EWHC 2238 (Comm) (“ASM Shipping”),
one of the bases on which the applicant sought to set aside the arbitral
award was the tribunal’s refusal of an adjournment of the proceedings
requested after the requesting party’s lead counsel had become
unavailable for personal reasons. In refusing to set aside the award,
the English High Court held that the test was whether the decision to

refuse an adjournment was “so far removed from what could

reasonably be expected of the arbitral process that it must be rectified”
[emphasis added] (at [38]). The judge noted that although the choice
between adjourning the case causing inconvenience and giving the
applicant a chance to find another Queen’s Counsel was not an easy
one, he saw nothing wrong with the tribunal’s decision to refuse the
adjournment (at [45]).
(d) The tribunal’s refusal to grant an adjournment was also a
ground for the challenge of the award in PT Reasuransi Umum
Indonesia v Evanston Insurance Company, Utica Mutual Insurance
Company and AMP United, 23 December 1992, [1992] WL 400733
(SDNY, 1992). In assessing whether the arbitrators were guilty of
“misconduct”, the test applied by the court focused on the
reasonableness of the tribunal’s decisions (at 2): “[w]here there is a
reasonable basis for the arbitrator’s decision not to grant a
postponement, courts are reluctant to interfere with the arbitration
award” [emphasis added].
(e) This view has also received the endorsement of leading
academic commentators on the law and practice of arbitration.
Prof Gary Born too has suggested that a “full” opportunity to be heard
is impliedly limited by considerations of reasonableness and fairness
(Born at p 2175):
… a number of statutes provide more specifically that parties shall be
given a ‘reasonable’ or ‘fair’ opportunity to be heard. These
formulations do not differ materially from guarantees of an
‘opportunity to be heard,’ which is impliedly limited by considerations
of reasonableness and fairness.
(f) Professor Jeffrey Waincymer has expressed a similar view in

Procedure and Evidence in International Arbitration (Wolters Kluwer,
2012) (“Waincymer”) at p 751:
While some commentators have raised concerns as to the difference in
terminology between a ‘full’ opportunity to present a case and
expressions such as a ‘reasonable opportunity’, nothing should turn on
this as the key word is ‘opportunity’. A full opportunity is not an open-
ended one.
(g) In a similar vein, the learned authors of Redfern and Hunter on

International Arbitration (Oxford University Press, 6th Ed, 2015)
observe as follows (at para 6.14):
At first sight, the word ‘full’ can be misleading: it conjures visions of a
party having an entitlement to present as much argument and evidence
as it sees fit. But, in this context, the word ‘full’ must be given a sensible
meaning, and in practice it seems unlikely that a national court would
set aside an award where the tribunal took a clearly reasonable and
proportionate approach to limiting the scope of the evidence that a

party wished to present. Confirming this, most sets of modern
arbitration rules now expressly provide that a party need be given only
a ‘reasonable opportunity to present its case’, which should encourage
arbitral tribunals to balance opportunity with efficiency in determining
appropriate arbitral procedures. [emphasis in original]
98 In our judgment, in determining whether a party had been denied his

right to a fair hearing by the tribunal’s conduct of the proceedings, the
proper approach a court should take is to ask itself if what the tribunal did
(or decided not to do) falls within the range of what a reasonable and fair-
minded tribunal in those circumstances might have done. This inquiry will
necessarily be a fact-sensitive one, and much will depend on the precise
circumstances of each case (Triulzi Cesare at [65]). This has two
consequences.
99 First, the tribunal’s conduct and decisions should only be assessed by
reference to what was known to the tribunal at the material time. A tribunal
cannot be criticised as having acted unfairly for failing to consider or
address considerations or concerns which the parties never brought to its
attention.
100 Thus, in Triulzi Cesare, the applicant, Triulzi Cesare SRL (“Triulzi”)
sought to set aside an arbitral award on grounds of a breach of natural
justice. Triulzi alleged that it had been denied the opportunity to present its
case arising from, amongst other things, the tribunal’s refusal to adjourn to
enable it to file an expert’s report. Triulzi contended that it was not given
the opportunity to present crucial expert evidence because the tribunal
failed to grant it a meaningful extension of time that would have enabled its
experts to inspect and report on certain aspects of the respondent’s facility.
Crucially, however, Triulzi had not informed the tribunal that it wanted its
expert to inspect the facility; all it had said was that its expert needed to
inspect two machines. In dismissing Triulzi’s contention that the tribunal
had acted unfairly in granting only a short extension, the High Court held
that Triulzi could not criticise the tribunal for failing to consider something
that Triulzi itself had not put before the tribunal for its consideration
(Triulzi Cesare at [148]):
Again, Triulzi’s complaint that the Tribunal’s time extension was not
meaningful and it was not given an opportunity to present its own expert
evidence that covered other matters is again symptomatic of Triulzi’s
approach throughout the entire Arbitration. Triulzi seeks to criticise the
Tribunal’s conduct for something that Triulzi itself had not seen fit to put
before the Tribunal for consideration. There is no explanation as to why the
Tribunal was not told on 16 April 2013 that Triulzi wanted its expert to inspect
the environmental conditions of Xinyi’s facility, Xinyi’s maintenance regime,
or for the expert report to deal with the interpretation of technical terms.
Triulzi’s stated position in April 2013 was that it wanted its expert to inspect
the two machines only and to file an expert statement on this, a position that

is very different from the one it is taking in OS 1114/2013. It plainly now

wants to have a ‘second bite at the cherry’ having seen the Tribunal’s findings
and reasoning in the Award. [emphasis added in italics and bold italics]
101 This is a material point because it guards against the danger of the
court conducting an analysis after the fact without due appreciation of just
what the tribunal was confronted with. The nature of the arbitral process is
inevitably a dynamic one. Timelines may be short; arrangements may need
to be made well ahead of time to accommodate multiple schedules; and
each party has an interest in a reasonably expeditious process. In these
circumstances, the contours of what constitutes fair and proper procedure
cannot be found in any one rulebook, but will be shaped by the grunts of
assent and the cries of protestation from the parties during the course of the
proceedings. The fairness of that procedure can only be judged against what
the parties themselves may be taken as having agreed to and expected, by
what they contemporaneously communicated to the tribunal.
102 In practical terms, what this means is that the alleged unfairness upon
which the complaining party seeks to found its claim of breach of natural
justice must have been brought to the attention of the tribunal. While this
analysis might appear at first blush to shade into the doctrine of waiver
under Art 4 of the Model Law, the two are, in our judgment, analytically
and conceptually distinct. The doctrine of waiver only becomes relevant
after the relevant non-compliance has been established; the question then is
whether the complainant has waived its right to complain about the non-
compliance. The point being made here, however, goes to the anterior
question of breach. The fundamental point is that, in the context of a
challenge directed at the exercise of a tribunal’s procedural discretion, there
can be no non-compliance to speak of if the complaining party had not
informed the tribunal of what, in its view, such compliance required.
103 Second, the court should accord a margin of deference to the tribunal
in its exercise of procedural discretion. Deference is accorded in
recognition of the fact that (a) the tribunal possesses a wide discretion to
determine the arbitral procedure, and (b) that discretion is exercised within
a highly specific and fact-intensive contextual milieu, the finer points of
which the court may not be privy to. It has therefore been said that the
court ought not to micromanage the tribunal’s procedural decision-
making, and will instead give “substantial deference” to procedural
decisions of the tribunal (On Call Internet Services Ltd v Telus
Communications Co [2013] BCAA 366 at [18]). This means that the court
will not intervene simply because it might have done things differently
(Soh Beng Tee ([86] supra) at [58], citing ABB AG v Hochtief Airport GmbH
[2006] 2 Lloyd’s Rep 1 at [67]). Overall, the threshold for intervention is a
relatively high one: there must be a real basis for alleging that the tribunal
has conducted the arbitral process “either irrationally or capriciously” (Soh
Beng Tee at [65(d)]), or where the tribunal’s conduct of the proceedings is
“so far removed from what could reasonably be expected of the arbitral
process that it must be rectified” (ASM Shipping ([97(c)] supra) at [38]).
104 The foregoing discussion of the applicable principles may be
summarised as follows:
(a) The parties’ right to be heard in arbitral proceedings finds
expression in Art 18 of the Model Law, which provides that each party
shall have a “full opportunity” of presenting its case. An award
obtained in proceedings conducted in breach of Art 18 is susceptible
to annulment under Art 34(2)(a)(ii) of the Model Law and/or s 24(b)
of the IAA.
(b) The Art 18 right to a “full opportunity” of presenting one’s case
is not an unlimited one. It is impliedly limited by considerations of
reasonableness and fairness.
(c) What constitutes a “full opportunity” is a contextual inquiry
that can only be meaningfully answered within the specific context of
the particular facts and circumstances of each case. The overarching
inquiry is whether the proceedings were conducted in a manner
which was fair, and the proper approach a court should take is to ask
itself if what the tribunal did (or decided not to do) falls within the
range of what a reasonable and fair-minded tribunal in those
circumstances might have done.
(d) In undertaking this exercise, the court must put itself in the
shoes of the tribunal. This means that (i) the tribunal’s decisions can
only be assessed by reference to what was known to the tribunal at the
time, and it follows from this that the alleged breach of natural justice
must have been brought to the attention of the tribunal at the material
time; and (ii) the court will accord a margin of deference to the
tribunal in matters of procedure and will not intervene simply
because it might have done things differently.
Breach of the rules of natural justice

105 CMNC’s case is that it was deprived of a full opportunity of
responding to Jaguar’s ETC Claim by the Tribunal’s procedural
mismanagement of the proceedings in three respects:
(a) the Tribunal’s management of the disclosure of sensitive
documents (including its imposition of the AEO Order);
(b) the Tribunal’s failure to account for the handicap faced by
CMNC due to its lack of access to its own Construction Documents;
and
(c) the Tribunal’s failure to properly manage and restrict Jaguar’s
haphazard and rolling production of the Costs Documents.

106 Bearing the legal principles summarised at [104] above in mind, we

discuss each in turn, and then in the round.
Disclosure of sensitive documents

107 As outlined at [23], [32], [38(c)] and [50] above, there are four key
watersheds in the Tribunal’s management of the disclosure process for
sensitive documents.
(a) On 25 September 2014, the AEO Regime was instituted. AEO-
designated documents could only be disclosed to CMNC’s external
counsel and experts, but not its employees (subject to CMNC’s right
to apply for disclosure to its employees).
(b) Less than a month later, on 19 October 2014, the Redaction
Ruling was made. Pursuant to the Redaction Ruling, AEO-designated
documents were to be disclosed to CMNC’s employees, albeit in
redacted form.
(c) On 18 December 2014, by PO 3, the AEO Regime was reinstated
for documents relating to claims with a value below US$100,000.
However, the documents affected by this partial reinstatement of the
AEO Regime account for only a fraction of the value of the ETC
Claim.
(d) Finally, by 18 March 2015, the AEO Regime was lifted entirely.
From this point onwards, documents were disclosed to 28 of CMNC’s
employees even without redaction.
108 CMNC’s case proceeds in two steps.
(a) First, the Tribunal’s management of the disclosure process for
sensitive documents was unfair, and amounted to a breach of natural
justice. In particular, CMNC submits that (i) the imposition of the
AEO Order was unjustified and operated unfairly against CMNC; and
(ii) that the subsequent modifications to the AEO Regime (ie, the
Redaction Ruling and PO 3: see [107(b)]–[107(c)] above) did little to
ameliorate the unfairness.
(b) Second, CMNC suffered prejudice in that its ability to prepare
its response to Jaguar’s ETC Claim was severely hindered.
We address each step in turn.
Breach of natural justice

109 We begin with CMNC’s contentions in relation to the imposition of
the AEO Order, which was, by all accounts, the most restrictive form of
disclosure (in that CMNC’s employees were, at least presumptively, denied
access to the documents altogether). In this regard, CMNC does not dispute
that the Tribunal had the power to make AEO orders, generally. Its case is
that the AEO Order in this case was improperly made for the following
reasons:
(a) First, the AEO Order was not made on any justifiable basis,
because it rested on a preliminary and inconclusive assessment of the
risk that CMNC would use those documents to interfere with the
completion of the Project.
(b) Second, the AEO Order operated unfairly against CMNC
because it was unlimited in scope:
(i) The AEO Order conferred blanket authority on Jaguar to
withhold documents at will.
(ii) The effect of the second stage of the AEO Regime was to
improperly shift the burden of applying for discovery onto
CMNC by forcing CMNC to apply for access to individual
documents.
110 CMNC’s first point – that there was no justifiable basis for the
Tribunal to have made the AEO Order because it did not come to any
conclusive view on Jaguar’s allegations that CMNC would misuse the
documents – ignores the fact that the proceedings were, at that time, still at
an early stage. In those circumstances, the Tribunal could not have been
expected to make a conclusive finding as to Jaguar’s allegations. Indeed, had
the Tribunal done so, that might have exposed it to accusations that it had
pre-judged issues that ought to be reserved to the main evidentiary
hearing – a point CMNC itself made when resisting the imposition of the
AEO Order (see [22] above).
111 For the purposes of determining Jaguar’s application for an AEO
Order, the Tribunal had to be satisfied that there was a sufficient basis for
the making of such an order. In this regard, Jaguar had provided sworn
testimony that, both immediately prior to and subsequent to the
termination of the EPC Contract, CMNC had engaged in conduct
calculated to interfere with Jaguar’s completion of the Project, such as
(a) offering payments to contractors and suppliers in exchange for their
refusing to work with Jaguar; (b) physical intimidation of Jaguar’s
contractors and suppliers and their employees; and (c) vexatious litigation
and threats of litigation against Jaguar’s contractors and suppliers should
they continue to work on the Project. CMNC denied these allegations,
stating that “CMNC’s actions post-termination were lawfully taken to
protect CMNC’s own legitimate interests following the unlawful
termination”. Having considered the parties’ respective positions, the
Tribunal explained, in fairly detailed written grounds, that while it had not
reached any concluded view on the allegations of misuse, it nevertheless
considered the possibility of misuse to be of “serious concern” which needed
to be addressed prophylactically (see [23]–[24] above). In our judgment,
this was a reasonable view for the Tribunal to have taken. In some respects,

the Tribunal’s approach could be analogised to how a court or other forum

would approach an application for an interim injunction made on the basis
of contested facts, at a time when final findings on those contested facts
simply cannot be made, and where the overarching focus is to minimise
injustice by balancing the competing interests as best it can. It seems to us
that this, in essence, was what the Tribunal did and we are therefore unable
to accept CMNC’s submission that the AEO Order had been made without
any basis.
112 CMNC’s second point pertains to the effect of the AEO Regime on its
preparations; in particular, that it operated asymmetrically and unfairly by
shifting the burden of obtaining disclosure of documents on to CMNC.
With respect, this submission misses the point. The question is not whether
the AEO Order had adversely impacted CMNC’s preparation of its case – it
almost certainly did, to some extent. The question is whether the balance
struck by the Tribunal in making the AEO Order as a whole – between
Jaguar’s interest in safeguarding the confidentiality of the documents in
order to prevent harm, and CMNC’s interest in being able to prepare its
case unhindered in any way – is one which was so unfair or unreasonable as
to fall outside the range of what a reasonable and fair-minded tribunal
might have done in the circumstances.
113 In respect of the latter question, and having reviewed the AEO Order
and the circumstances under which it was made, we do not see any basis on
which to impeach the Tribunal’s decision. In establishing the AEO Regime,
the Tribunal was clearly conscious of the need to strike a balance between
the competing interests of the parties. The Tribunal’s chosen approach was
to craft a two-stage process, with the first stage satisfying Jaguar’s concern
for confidentiality by restricting CMNC’s access to these documents by
confining such access to CMNC’s counsel and experts; and the second
acting as a safeguard of CMNC’s interest in direct access by expressly
providing that CMNC could apply to the Tribunal for this (see [25] above).
That the AEO Order would, to some extent, adversely affect CMNC is not
fatal to its legality, because the AEO Order necessarily represented a
compromise between Jaguar’s and CMNC’s interests. The point is that the
Tribunal had, in imposing the AEO Order, weighed the adverse effect that
such an Order would have on CMNC’s ability to prepare its case against
(a) Jaguar’s “serious concern” as to the risk of CMNC misusing the
documents; and (b) the fact that at the second stage, CMNC could seek and
get unrestricted access once their experts and counsel had seen the
documents and assessed that this was necessary. That approach, in our
judgment, fell well within the bounds of what a reasonable and fair-minded
tribunal might have done for the reasons we have outlined at [111] above.
114 In any case, we do not accept CMNC’s specific submissions

summarised at [109(b)] above.
(a) We do not accept CMNC’s submission that the AEO Order was
unlimited in scope. In our judgment, the AEO Order must be read as
having been limited to the three categories of documents stated in
Jaguar’s request for the AEO Order (see [21] above). While we
appreciate that this might have formed a rather wide category of
documents, the precise scope of the Order is a matter for the Tribunal
in the exercise of its broad powers over the procedure of the
Arbitration.
(b) We also do not accept CMNC’s submission that the AEO
Regime improperly shifted the burden of applying for disclosure onto
CMNC. A key plank of CMNC’s submission is that the mechanism
for application under the second stage was onerous and impractical
because it required applications for disclosure to be made on a
document-by-document basis. That view is not borne out on the
evidence. Paragraph 36 of TC No 51, which we have reproduced
at [26] above, is material because it gives a clear insight into what was
contemplated. In short, it was anticipated that CMNC’s counsel and
experts would have initial access and they would then be able to assess
whether access had to be given to CMNC for proper instructions to be
taken. It is most unfortunate that CMNC, for whatever reason, chose
not to avail itself of this option. In this regard, we are inclined to agree
with the Judge that the second stage would likely have entailed a
“relatively straightforward exercise”. There is nothing to suggest that
this exercise could not have been done in relation to categories of
documents, instead of individual documents. For these reasons, we do
not think it can be said that CMNC’s burden under the second stage
of the AEO Regime was so imbalanced as to amount to a de facto shift
of the burden of disclosure. To so conclude would require us to find
that disclosure to CMNC’s experts and counsel on terms that they
could then apply for unrestricted access was pointless. We are unable
to so conclude when CMNC never made any such application.
115 We therefore reject CMNC’s submission that the AEO Order was
unfairly imposed in breach of Art 18 of the Model Law. On the contrary,
given the risk or threat of prejudice raised by Jaguar, we are satisfied that
the Order fell within the boundaries of what a reasonable and fair-minded
tribunal might have done in the circumstances.
116 In any case, and as was noted by the Judge, any unfairness occasioned
by the AEO Regime was substantially mitigated following the Redaction
Ruling, which was made just four weeks after the imposition of the AEO
Regime (see [76(c)] above). Against this, CMNC submits that the Redaction
Ruling did little to ameliorate the unfairness caused by the AEO Regime, for
two reasons.
117 First, CMNC submits that the little relief CMNC enjoyed by the lifting
of the AEO Regime by the Redaction Ruling was short-lived, because PO 3

effectively reinstated the AEO Regime in respect of documents pertaining

to the smaller claims (see [39] above). We make two points.
(a) First, this complaint seemed to us to be disingenuous given that
CMNC had itself initially agreed to relieve Jaguar of any obligation to
produce redacted copies of such documents from as early as
28 October 2014, nine days after the Redaction Ruling)
(see [37] above). Admittedly, CMNC later resiled from this position
but this is to be seen in the light of the fact that no explanation has
been advanced that satisfactorily explains this change of position and
the inference to be drawn is that CMNC really would not have
initially agreed to the change if, in fact, it had been as prejudicial to it
as CMNC now contends.
(b) Second, CMNC’s submission overstates the impact of the partial
reinstatement of the AEO Regime for these documents. As earlier
mentioned, disclosure of the post-termination contract
documentation was sought for the purpose of challenging the value or
quantum of Jaguar’s ETC Claim. The fact of the matter is that
CMNC’s employees did have direct access to the overwhelming
majority of documents by value (covering claims worth
approximately US$188.7m). In comparison, the restricted documents
were in respect of claims worth only US$14.5m (see [39] above).
118 Second, CMNC says that the manner in which the redacted
documents were produced further impeded CMNC’s preparations, and that
therefore the Redaction Ruling, instead of mitigating the difficulties caused
by the AEO Regime, in fact exacerbated them. CMNC raised two
complaints, both of which we find to be without merit.
(a) First, CMNC’s complaint that the redaction of contractors’
names was unfair is completely undermined by the fact that CMNC
itself had agreed that contractors’ names and identifying information
could be redacted (see [31(a)] above). CMNC only challenged
Jaguar’s proposed redaction of construction scheduling information
(and this point was resolved by the Tribunal in CMNC’s favour)
(see [32] above).
(b) Second, in relation to CMNC’s complaints regarding Jaguar’s
alleged haphazard production and over-redaction of documents
(see [34] above), CMNC did not immediately surface these
complaints to the Tribunal. Instead, CMNC took the matter up
directly with Jaguar in correspondence. At the Toronto Hearing
(see [35] above), which was held barely a month after the Redaction
Ruling, CMNC advanced a whole raft of other complaints (such as
that pertaining to the redaction of contractors’ names) but never
informed the Tribunal about its difficulties with the production of the
redacted documents. This complaint was first brought to the
Tribunal’s attention only on 17 February 2015 (in its application to

lift the AEO Regime) (see [48] above), some four months after the
Redaction Ruling. After the issue was raised to the Tribunal, it was
resolved soon thereafter when the AEO Regime was completely lifted
by the Supplemental Order.
119 In the circumstances, we do not accept that CMNC has shown that
the Tribunal’s management of the disclosure of the documents in question
was unacceptable or amounted to a breach of natural justice. On the
contrary, on our assessment of the procedural history of the arbitration, the
Tribunal was simply doing the best it could in the circumstances to strike a
fair balance between the parties’ interests.
(a) The imposition of the AEO Regime rested on balancing between

Jaguar’s interest in confidentiality and CMNC’s interest in
unrestricted access; the order was specifically designed so that both
interests could be given effect to (see [110]–[113] above).
(b) The subsequent Redaction Ruling was a recalibration of the

original balance in CMNC’s favour as CMNC’s employees gained
access to the documents, and Jaguar’s confidentiality concerns were
preserved by its having the right to redact the documents
(see [32] above).
(c) While PO 3 recalibrated the balance, this time in favour of

Jaguar, the entire AEO Regime was lifted soon thereafter on 18 March
2015 – a full four months ahead of the main evidentiary hearing.
Prejudice
120 In any case, we do not see how CMNC could have been prejudiced by
any alleged breach. The AEO Regime, in its most restrictive form (meaning
when these documents were presumptively not subject to disclosure to
CMNC’s employees at all), lasted less than a month. Thereafter, CMNC’s
employees received access to redacted documents, and although the AEO
Regime was later reinstated for the smaller claim documents, this was an
arrangement that CMNC, as we have noted, had initially agreed to. In any
case, all restrictions were lifted by 18 March 2015 – almost four months
before the main evidentiary hearing in July 2015. While CMNC now argues
that Mr Gurnham’s preparations had been seriously affected by the AEO
Regime (amongst other factors), we note that Mr Gurnham, in the course of
a teleconference held on 14 April 2015, had informed the Tribunal that the
deadlines set for the filing of his expert reports would be met
(see [53] above). It must also be noted that the parties had agreed to certain
timelines in PO 3 on 18 December 2014 (see [36] above). In other words,
these timelines were agreed in the context of the AEO Regime, and
therefore must be taken as having accounted for whatever adverse impact

the AEO Regime would have had on CMNC’s ability to meet those
timelines.
121 In sum, CMNC has not shown that the restrictions on document
production imposed as a result of the AEO Regime (and its successors) had
any direct impact on CMNC’s preparations in the critical period leading to
the submission of the Gurnham Responsive Report and the other quantum
evidence.
The Construction Documents

122 CMNC’s second plank is that the AEO Regime had a disproportionate
and compounding impact on its preparation efforts because it was already
lacking access to the Construction Documents that were necessary to
identify the Completed Work Quantities and engage in the Comparison
Analysis of the ETC Claim (see [14(b)] above). According to CMNC:
(a) The Tribunal had acted unfairly in that it had ignored CMNC’s
multiple complaints (beginning in April 2014) that it had been
deprived of the Construction Documents, and never ordered Jaguar
to produce the seized Construction Documents.
(b) The lack of timely access to the Construction Documents
prejudiced CMNC’s ability to complete the Comparison Analysis,
with the result that the Completed Work Quantities were only fully
ascertained on 14 March 2015. As such, CMNC could only begin
evaluating the ETC Claim with reference to the Completed Work
Quantities from that date.
123 CMNC’s first submission – that the Tribunal had “ignored” its
complaints (which had purportedly been brought to the Tribunal as early as
April 2014) in failing to order the production of the seized Construction
Documents – is simply unsupported by the record.
(a) On 4 April 2014, in CMNC’s answer, challenge to jurisdiction,
and outline of defence and counterclaim, CMNC narrated the facts
relating to its eviction from the Site, and Jaguar’s subsequent takeover
the Construction Area, including CMNC’s drawings and documents
kept therein. CMNC gave no indication as to what these documents
were and how they were relevant to the suit; made no allegation that
CMNC’s preparation of its case would be prejudiced by the lack of
access to the documents; and made no request that the Tribunal order
that the Construction Documents be returned.
(b) No such request for the Construction Documents was made
until 2 October 2014 (by way of RC No 42), some six months after the
Tribunal was constituted in late-March 2014 (see [16] above). Even
so, RC No 42 was not a request for production made on CMNC’s own
initiative, but was itself responsive to a request from Jaguar for
production of the Construction Documents in CMNC’s possession. It

was in that context that CMNC filed RC No 42 as a request that
Jaguar produce the documents it had allegedly confiscated from the
Living Quarters, from which CMNC would then extract the
documents relevant to Jaguar’s request. When Jaguar responded that
it did not have possession of or access to CMNC’s documents left at
the site, CMNC did not thereafter pursue its request for the
Construction Documents.
124 In these circumstances, we find CMNC’s submission that the
Tribunal “ignored” its complaints to be without basis. In truth, CMNC had
never sought any such relief from the Tribunal. If indeed the documents
allegedly seized by Jaguar were as critical to CMNC as it now claims, one
would have expected CMNC to have sought production of the
Construction Documents immediately after the constitution of the
Tribunal (in March 2014). Instead, CMNC did nothing. What CMNC now
claims – that these documents were essential, and that its lack of access to
them dealt a mortal blow to its ability to prepare – just does not comport
with how it conducted its case at the material time.
125 CMNC’s second submission – that it was unable to ascertain the
Completed Work Quantities until 14 March 2015 as it had no access to the
Construction Documents – is contradicted by its own filings in the arbitral
proceedings, which suggest that CMNC did in fact manage to value the
Completed Work Quantities fairly early on in the arbitration.
(a) As early as 13 August 2014, CMNC was able to file its statement
of case in relation to counterclaims, which detailed CMNC’s
counterclaims for outstanding milestone payments without any
mention or qualification that it had been unable to properly quantify
the value of the completed work it was claiming for.
(b) On 22 December 2014, CMNC was able, in its Statement of
Reply, to state in percentage terms the work completed, as well as to
state that the costs incurred by CMNC exceeded US$600m.
(c) In CMNC’s Amended Statement of Case in Relation to
Counterclaims dated 27 March 2015, CMNC stood by the figures
stated in its statement of reply (meaning, “nearly 90%” of the value of
the EPC Contract was completed, totalling about US$600m in costs
incurred). This also appears to be the figure that Mr Gurnham
eventually adopted at the main evidentiary hearing in Dublin, as
recorded in the Award. What this suggests is that by 22 December
2014, CMNC had been able to calculate the Completed Work
Quantities with reasonable accuracy.
126 We therefore do not accept CMNC’s complaints as to the effect that
its alleged lack of access to the Construction Documents had on its ability to
prepare its case. We note that CMNC’s case does not seem to be that its lack

of access to the Construction Documents was a default of the Tribunal that

amounted to a breach of natural justice; rather, its point appears to be that
its lack of access to the Construction Document was part of the
circumstances which the Tribunal ought to have taken into account in the
overall management of the arbitral process. We address this point
at [161] below.
Jaguar’s rolling production of the Costs Documents

127 The third plank of CMNC’s case is that its ability to respond to
Jaguar’s ETC Claim was compromised by the Tribunal’s treatment of three
key pieces of evidence: its indirect exclusion of the Gurnham Responsive
Report and Chai’s 2nd Witness Statement (which were crucial expert and
lay evidence responsive to the evidence produced by Jaguar on 5 June 2015)
when it indicated that Jaguar need not respond to these parts of CMNC’s
evidence, and its formal exclusion of the Aspinall Report (a report of
CMNC’s design expert, on which the Gurnham Responsive Report relied).
CMNC contends that in so far as the Tribunal’s decisions in relation to the
three filings above were made on the basis that these were submitted late,
the delay in their preparation was itself due to the Tribunal’s failure to put a
stop to Jaguar’s rolling production of the Costs Documents.
128 In sum, the following are alleged as the factual bases for CMNC’s
claim that the Tribunal had acted in breach of natural justice:
(a) the Tribunal’s failure to put a stop to the rolling production of
Costs Documents until 5 June 2015, which meant that CMNC did not
have sufficient time to prepare its response to Jaguar’s ETC Claim (in
the form of the lay and expert witness statement and reports);
(b) the Tribunal’s refusal to grant CMNC’s second request for an
extension of the filing deadline for the Gurnham Responsive Report;
(c) the Tribunal’s refusal to admit the Aspinall Report into
evidence; and
(d) the Tribunal’s failure to account for the fact that Jaguar’s
disorganised and haphazard production of Costs Documents
compounded CMNC’s difficulty in reviewing them for the purposes
of preparing its response to Jaguar’s ETC Claim.
We deal with each in turn.
Failure to impose a cut-off date for Jaguar’s rolling production of documents

129 We begin by noting that Jaguar’s rolling production of Costs
Documents was a provision agreed between the parties in PO 3. As
mentioned at [41] above, there were a total of four updates to Jaguar’s ETC
Claim between the Statement of Case filed on 13 August 2014 and the final
update on 5 June 2015. At the time PO 3 was issued, no cut-off date was set
for the continued production of documents. It was not until 30 May 2015
(in RC No 219) that CMNC requested, for the first time, that the Tribunal
exclude from consideration all documents produced after 3 April 2015, that
being the date that Mr McGeehin filed his report setting out Jaguar’s
positive case on the ETC Claim. CMNC argued that it must follow that
documents produced after that date would not be admitted.
130 Before us, CMNC submits that it was “highly irregular” for the
Tribunal to have permitted Jaguar’s continual amendments of its ETC
Claim with no consideration of whether CMNC would have adequate time
to respond to the amended claim and the new evidence in support of the
amendments. The Tribunal, CMNC says, should have considered whether
CMNC would have the opportunity to respond to the amended claim
before allowing Jaguar to amend its claim. This the Tribunal failed to do, by
refusing to impose a cut-off date of 3 April 2015 for Jaguar to amend its
ETC Claim in the terms CMNC had requested in RC No 219
(see [57] above).
131 However, what CMNC omits to mention is that its request for relief in
RC No 219 presented the Tribunal with two alternatives: either a cut-off of
3 April 2015 should be imposed, or, “[i]f the Tribunal [was] minded to allow
[the production of documents] after 3 April 2015”, that an extension of the
deadline for the Gurnham Responsive Report should be granted to 18 June
2015 (see [57] above). When the Tribunal allowed Jaguar to produce
documents beyond 3 April 2015 (setting the cut-off date as 5 June 2015
instead), it allowed CMNC’s request for an extension to 18 June 2015 for
the filing of the Gurnham Responsive Report. In other words, the Tribunal
had given CMNC the very relief it had sought, albeit in the form of the
alternative option that CMNC itself had presented. That being the case, we
do not see how CMNC can conceivably argue that the Tribunal’s failure to
cut off document production on 3 April 2015 was unfair, let alone so unfair
as to constitute a breach of natural justice.
132 Further, having read the Tribunal’s reasons (see [60] above) for its
decision to grant the extension and impose a later cut-off date, it is clear to
us that the Tribunal was balancing Jaguar’s interest in presenting material
relevant to its claim, and CMNC’s interest in having a reasonable
opportunity to meet Jaguar’s case. In our view, the course which the
Tribunal chose was an entirely reasonable one in the circumstances.
133 It is also significant that CMNC did not then object to the Tribunal’s
decision to set the cut-off date of 5 June 2015 (see [61] above). Instead,
CMNC simply got on with its preparations. It was not until 27 June 2015,
when CMNC was already in breach of the extended deadlines it had itself
requested that it then asserted that it was never in a position to meet those
deadlines due to, amongst other things, the Tribunal’s failure to stop the
rolling production of Costs Documents earlier (see [67] above). As we have
emphasised at [99] above, the Tribunal can only operate on the basis of

what the parties tell it. Since CMNC told the Tribunal that it would be able
to proceed either if a cut-off date were imposed or if an extension were
granted, that must mean that CMNC considered either of those courses of
action to be fair. If intervening events or circumstances subsequently
changed that calculus, then it was incumbent on CMNC to promptly seek
further relief on that basis. On the facts, CMNC did not subsequently
request that the Tribunal change its decision on the 5 June 2015 cut-off
date – instead, it asked for further extensions for the filing of the Gurnham
Responsive Report, which we address at [137] below.
134 For these reasons, we see no basis to impeach the Tribunal’s decision
to grant CMNC the extension it sought in lieu of the imposition of a 3 April
2015 cut-off date for the rolling production of documents.
Refusal to grant further extension for filing of the Gurnham Responsive

Report
135 As set out above at [52]–[72], the key events leading to the belated
filing of the Gurnham Responsive Report are as follows.
S/N Date Event

1 18 March 2015 Original deadline: Deadline for filing of the
Gurnham Responsive Report is set as 15 May
2015 in PO 4.
CMNC did not object to or challenge the
timelines.
2 8 May 2015 Extension (by consent): Deadline is extended
to 5 June 2015 by consent.
3 30 May 2015 1st Extension: The Tribunal fixed 5 June 2015
as the last date for Jaguar’s rolling production
of documents, and extended the deadline for
the filing of the Gurnham Responsive Report
to 18 June 2015, in the terms CMNC had
requested.
4 5 June 2015 Jaguar uploaded the last tranche of documents
supporting its final update to its ETC Claim.
5 17 June 2015 Request for 2nd extension: CMNC requested
an extension of the report deadline to 25 June
2015 (from 18 June 2015). The Tribunal
rejected this request.
6 18 June 2015 CMNC failed to file the Gurnham Responsive
Report.
7 22 June 2015 CMNC filed the Gurnham Responsive Report
out of time.
8 26 June 2015 Deadline for filing of pre-hearing

submissions.
9 3 July 2015 The Tribunal made no order as to the
admissibility of the Gurnham Responsive
Report, but stated that Jaguar need not
respond to the matters raised in the report.
10 6–21 July 2015 Dates of the main evidentiary hearing.
136 CMNC submits that (a) the Tribunal’s decision not to extend the time
for the filing of the Gurnham Responsive Report to 25 June 2015 (at s/n 5 of
the table above), and (b) its subsequent refusal to formally admit the
Gurnham Responsive Report after it had been belatedly filed meant that
crucial responsive expert evidence on quantum was shut out from the
proceedings, which amounted to a denial of CMNC’s right to an
opportunity to respond to Jaguar’s ETC Claim.
(1) The Tribunal’s refusal to grant a second extension of time

137 Having had regard to the Tribunal’s reasons for its denial of CMNC’s
request for the further extension (set out at [64] above), we see no basis on
which the Tribunal’s decision may be impeached as being unfair or
unreasonable. As a general proposition, it would not be unreasonable for a
tribunal to hold parties to timelines previously set, particularly where those
timelines had been agreed. It is for the party seeking an extension of the
timeline to show that it was reasonably unable to comply with the existing
timeline.
138 In seeking the second extension of the deadline, CMNC submitted
that this was necessary because Mr Gurnham required more time to review
the “voluminous quantum material (over 2000 documents)” produced on
5 June 2015. The Tribunal rejected this submission, noting that its earlier
decision to grant CMNC the first extension of the deadline to 18 June 2015
(see s/n 3 of the table above) had been made in contemplation of the fact
that documents would be produced on 5 June 2015. In other words, the
5 June 2015 disclosure had already been accounted for in the earlier
extension of time, and there was therefore no basis for a further extension.
139 At the hearings before us, CMNC argued that while the fact that
documents would be disclosed on 5 June 2015 was known, the sheer volume
of documents disclosed was not foreseeable when the first extension was
granted. However, we have difficulty accepting this submission for two
reasons.
140 First, if indeed CMNC had been caught by surprise by the volume of
documents uploaded on 5 June 2015, one would have expected CMNC to
have registered its concerns with the Tribunal immediately or soon
thereafter. Instead, CMNC only took this point to the Tribunal on 17 June
2015 – some 12 days later, and on the eve of the 18 June 2015 deadline.

141 Second, this was not a case where documents had been held back and
sprung on CMNC. As Jaguar pointed out, the bulk of the invoices
evidencing Jaguar’s actual costs had already been incrementally disclosed
prior to 5 June 2015, pursuant to the three previous updates (ie, C-669,
C-773 and C-840). Whether one looks at the monetary value of the claims
evidenced by the documents, or at the raw volume of the documents
themselves, there is no basis to suggest that the volume of documents
disclosed on 5 June 2015 was unusually large.
(a) In terms of the monetary value of the claims evidenced by the
documents produced, the documents relating to the C-900 update
evidenced an increase of US$33m in the actual sum paid by Jaguar in
respect of the cost of completion. This is comparable to the increase of
US$32m evidenced by the documents relating to the C-840 update
before it, and is in fact smaller than the increase of US$58m evidenced
by the documents relating to the C-773 update. Overall, and as can be
seen from the table below, the increase in the monetary value of the
claims evidenced by the documents relating to the C-900 update
constituted just 13% of the total sum paid.
Transaction Actual sum paid to- % of actual

Log Number date (completion sum paid on
costs) (US$) C-900
C-699 138,031,638 44%
C-773 196,501,094 75%
C-840 229,330,606 87%
C-900 262,831,307 100%
(b) In terms of the volume of documents produced, the 11,991
pages of documents related to C-900 constituted about 20% of the
60,000 total pages of documents produced pursuant to the updates. In
other words, 80% of the documents had already been previously
disclosed over the three previous updates (C-669, C-773 and C-840).
Seen in this light there was nothing particularly unusual or
unforeseeable about the volume of documents disclosed on 5 June
2015.
142 There are two further points. First, the Gurnham Responsive Report
did not stand alone but was subsequently accompanied by the Aspinall
Report and Chai’s 2nd Witness Statement. Leave had not been sought for
those documents at the time CMNC applied for the extension of time on
17 June 2015. The short point is that in focusing attention on the Gurnham
Responsive Report, CMNC fails to deal with the critical fact that this by
itself was insufficient and incomplete and would not have advanced its case.
No explanation has been advanced for why it made no mention at all of the
other evidence which, by then, it plainly knew it would file. Secondly, it is
material in assessing the Tribunal’s response to have regard to the
extremely late stage at which the application was being made, the threat to
the hearing dates that had been fixed many months earlier, the interests of
fairness applicable to both parties, and the duty to conduct the arbitration
on an expedited basis.
143 In that latter regard, it is trite that what natural justice demands turns
in part on the parties’ particular agreement to arbitrate: Trustees of Rotoaira
Forest Trust v Attorney-General [1999] 2 NZLR 452 at 463, cited in Soh
Beng Tee ([86] supra) at [55]. Of course, parties do not relinquish their due
process rights simply by dint of agreeing to an expedited arbitration. That
said, the fact that parties agreed to an expedited arbitration will inevitably
have a bearing on the expectations that parties may reasonably and fairly
have as to the extent of the procedural accommodation that may be
afforded to them. On its part, CMNC submits that limited weight should be
given to cl 20.2 (which provided for expedited arbitration) given that the
parties had waived strict compliance with cl 20.2 by agreeing to timelines
that were well in excess of the 180-day limit stipulated. This submission
does not take CMNC very far because while parties had indeed waived strict
compliance with the timelines stipulated in cl 20.2, it was clear that both
parties intended that the arbitration was nonetheless to be expedited. This
is clear from the fact that CMNC itself had, on 6 May 2014, requested that
the Tribunal move forward the evidentiary hearing to October 2014 on the
basis of “the parties’ strong original intention and desire that the matter
should be completed at the earliest possible moment and under the shortest
possible timetable”. We note that CMNC held this view notwithstanding
that by that time (6 May 2014), strict compliance with cl 20.2 had already
been waived as reflected in the timelines set out in PO 2 (see [17] above).
144 Besides the point that there was really no basis for CMNC’s request
for a further extension of time, the Tribunal noted several of the points we
have highlighted above in its response as follows (see [64] above).
(a) First, acceding to CMNC’s request for a second extension would

have brought the timelines for the admission of evidence perilously
close to the main evidentiary hearing. CMNC had asked for an
extension of the deadline to 25 June 2015. This was just one day
before the parties’ pre-hearing submissions were due (see s/n 8 in the
table above), and just two weeks from the main evidentiary hearing,
which was slated to begin on 6 July 2015 (see s/n 10 in the table
above).
(b) Second, CMNC’s request for a second extension on the eve of

the deadline for submission was in disregard of the Tribunal’s
repeated reminders to the parties that applications for extensions of
time should be made adequately in advance of, and not on the eve of
the expiry of, the deadline.

145 Taking all these factors into consideration, it was, in our judgment,
well within the Tribunal’s rights to have refused CMNC’s request for the
further extension. The Tribunal’s decision to grant CMNC’s first extension
request reflected a balance between the parties’ rights, and, for the reasons
we have outlined above, especially considering the effect that an extension
would have on Jaguar’s ability to adequately consider and respond to that
material, it seems to us entirely fair and reasonable for the Tribunal to have
found that CMNC had not “made out a case for disturbing the balance
which the Tribunal struck in [TC No 208]”.
(2) The Tribunal’s decision on admissibility of the Gurnham Responsive

Report
146 After the Tribunal’s refusal to grant CMNC the extension sought, the
Gurnham Responsive Report and Chai’s 2nd Witness Statement were
nevertheless filed out of time on 22 June 2015 and 26 June 2015
respectively. CMNC formally applied to have both the Gurnham
Responsive Report and Chai’s 2nd Witness Statement admitted into
evidence, and Jaguar objected (see [67] above). On 3 July 2015, the Tribunal
gave its decision on the admissibility of CMNC’s belatedly-filed evidence. It
made no order as to the admissibility of the Gurnham Responsive Report,
but stated that Jaguar did not need to respond to the material therein
(see [71] above).
147 At the hearings before us, counsel for CMNC, Mr Toby Landau QC
(“Mr Landau”) argued that the Tribunal’s direction to Jaguar that it need
not respond to the Gurnham Responsive Report amounted to a de facto
exclusion of that evidence, because, having told Jaguar that it need not
respond, any reliance placed on that evidence by the Tribunal would subject
the award to challenge by Jaguar on grounds of breach of its right to
respond.
148 We think it is necessary first to draw a distinction between an order to

the effect that Jaguar need not address these materials, and an order that it
must not do so. The latter could have amounted to an exclusion and for the
reasons outlined in the previous section, had the Tribunal made such an
order, in our judgment, it would have been entitled to do so in all the
circumstances. The former, however, leaves it open to Jaguar, if it wishes, to
deal with the material to the extent it is able and on that basis leaves it open
to the Tribunal, in that light, to consider the material and give it such
weight as it deems appropriate. That, as we shall see, is what in fact
happened.
149 We deal first with the supposed exclusion of the evidence. First, we
are satisfied that it would have been well within the competence of the
Tribunal to make such an order – see Waincymer at pp 822–823:
A tribunal must always be prepared to consider the reasons why an extension

is sought. Many rules require ‘exceptional circumstances’. A tribunal might
consider the fault, if any, of the party seeking to submit late evidence. A party,
who for whatever reason has only gathered previously existing evidence after
deadlines have passed, might typically seek to rely on its right to an adequate
or full opportunity to present its case. The tribunal is not bound to accede to
such requests as the mandatory obligation is only to give each an
‘opportunity’. If the previous procedural deadlines were adequate and a party
simply did not comply, it cannot say that it did not have an adequate
opportunity. [emphasis added]
150 We turn to consider the reasons the Tribunal gave for its decision to
direct that Jaguar need not respond to CMNC’s belatedly-filed evidence. In
this regard, it is clear from the Tribunal’s reasons that the Tribunal was
acutely aware of the time pressure that counsel were under in their
preparations for the main evidentiary hearing, which was, at that point, just
days away:
The Tribunal appreciates that counsel continue to undertake very significant
work leading up to the Main Evidentiary Hearing that is to commence next
week. It is understood that the pressures associated with this work is behind
the recent submissions and materials received by the Tribunal in relation to
the Disputed Materials [which included the Gurnham Responsive Report].
As the Tribunal has noted on a number of previous occasions on this subject,

there is a difficult balance to be struck between the Parties having an
opportunity to present their cases in light of the compressed timeframe (in
which this Arbitration must be conducted) and having an opportunity to
meet the cases presented by the other Parties.
There is a very real concern that [Jaguar] are put to procedural disadvantage
since they are not just attempting to respond to materials which have been
provided contrary to the Tribunal’s directions, but they have a dilemma as to
whether to attempt to do so in which, what [Jaguar] submit[s], is an impossible
timeframe. Some guidance needs to be given to [Jaguar] in this regard.
The Tribunal has previously observed [in TC No 208] that one of the criteria
to be taken into account in considering whether to place any reliance upon
the materials provided, to which objection is taken, is that a judgement needs
to be made as to whether a party has the capacity to respond to the material. It
must be noted that the later in time and closer to the hearing that material is
provided, the less realistic the possibility there is for a response. For this reason,
the Tribunal wishes to make it clear that it does not require [Jaguar] to
attempt to respond to material, which on any view has been provided too late
for any meaningful response to be formulated. Accordingly, the Parties
should be aware that the Tribunal does not expect [Jaguar] to undertake what
can be fairly regarded as a futile exercise, and that judgements as to the
reliance if any to which the Tribunal will have on such material will be made
by the Tribunal in this context. No assumptions can be made at this stage as to

whether any of the Disputed Material (other than the expert statement of
Mr Adam Aspinall) will be admitted.
151 Therefore, crunched by the timelines, and having to balance between

CMNC’s interest in putting additional material forward and Jaguar’s
interest in having a reasonable opportunity of responding to that material,
the Tribunal thought that it should, given the close proximity to the main
evidentiary hearing, give an indication to the parties that it did not (and
indeed could not) expect Jaguar to respond to the material CMNC sought
to file. The test, as mentioned, is whether what the Tribunal did fell outside
the realm of what a reasonable and fair-minded tribunal might have done in
the circumstances. Having considered the reasons given by the Tribunal
(especially the fact that the main evidentiary hearing was just days away) as
well as the circumstances in which the decision was made, it is clear to us
that the Tribunal’s direction falls within the boundaries of what a
reasonable and fair-minded tribunal might have done in the circumstances.
152 We should add, for completeness, that there does not in any case seem
to have been any prejudice caused to CMNC arising from the Tribunal’s
decision. As noted above, the Tribunal did not exclude the possibility of
Jaguar responding and Jaguar did in fact address the Gurnham Responsive
Report in its post-hearing written submissions. In its award, the Tribunal
undertook a careful analysis of the findings made in the Gurnham
Responsive Report. In particular, it considered Mr Gurnham’s findings on
the Completed Work Quantities as well as his views on the Comparison
Analysis, but concluded that Mr Gurnham’s proposed method of assessing
the ETC Claim was “unhelpful” because (a) there was reason to doubt his
calculation of the Completed Work Quantities and (b) Mr Gurnham had
failed to consider some US$96m worth of costs that his method simply
assumes were completed by CMNC. The Tribunal also addressed
Mr Gurnham’s opinion on a list of issues raised in respect of the
reasonableness of the ETC Claim; it ultimately rejected Mr Gurnham’s
views, but explained its doubts on each point made by Mr Gurnham.
153 The supervisory jurisdiction of the courts over arbitral awards does
not, of course, extend to a review of the award on the merits. The sole
purpose of referring to the Award is to ascertain whether the Tribunal had
engaged with Mr Gurnham’s evidence in coming to its decision. Having
examined the Tribunal’s reasoning in its Award, we reject CMNC’s
submission that the Tribunal had not properly considered Mr Gurnham’s
evidence. Though the Tribunal in the event preferred Mr McGeehin’s
evidence over Mr Gurnham’s, it gave detailed reasons for doing so. In sum,
we are satisfied that the Tribunal did carefully consider Mr Gurnham’s
evidence, and that, therefore, no prejudice was caused to CMNC by the
Tribunal’s direction that Jaguar was not obliged to respond to the Gurnham
Responsive Report.
Refusal to admit the Aspinall Report

154 Besides the Gurnham Responsive Report, CMNC submits that the
Aspinall Report, which was prepared by CMNC’s design expert, was a
second key piece of expert evidence which should have been admitted. The
Aspinall Report supported Mr Gurnham’s conclusions as to the Completed
Work Quantities, as well as on the post-termination work procured by
Jaguar which was said to fall outside the initial scope of the EPC Contract
and therefore constituted betterment (see [14(a)] above).
155 In TC No 230, the Tribunal formally excluded the Aspinall Report
from consideration (see [70] above). In deciding to exclude the Aspinall
Report, it seems clear to us that the Tribunal’s decision was driven by the
circumstances under which it was filed, and not just its late timing:
Its provision is contrary to the Tribunal’s directions not just as to time, but also
as to substance. In the interests of fairness the Tribunal believes that it is
appropriate and necessary to indicate that leave should not be granted for it
to be relied upon. [emphasis added]
156 In our judgment, it was entirely reasonable for the Tribunal to have
come to the view that it was necessary “[i]n the interests of fairness” that the
Aspinall Report be excluded. No provision had been made for the filing of
the Aspinall Report, and CMNC had not sought any leave to file it. In fact,
CMNC did not give the Tribunal or Jaguar any notice that it intended to file
the Aspinall Report. It was not until Jaguar realised that the Gurnham
Responsive Report made reference to the Aspinall Report that its existence
was brought to the Tribunal’s attention. The Aspinall Report (along with
the Gurnham Responsive Report as well as the lay witness statements) were
purportedly responsive to the documentary evidence produced by Jaguar
on 5 June 2015. If indeed that were the case, CMNC must have intended to
file the Aspinall Report soon after 5 June 2015. We find it troubling that
CMNC then chose to hold back on applying for leave to introduce it until
27 June 2015, less than two weeks before the start of the main evidentiary
hearing. It is trite that the tribunal is, subject to the parties’ agreement,
master of its own procedure, and that it may take appropriate action to
ensure that its orders are obeyed. CMNC’s conduct in relation to the filing
of the Aspinall Report was unsatisfactory to say the least and reflected a
disregard for the Tribunal’s authority and mandate to ensure that the
proceedings were conducted in a manner that was fair. In the
circumstances, we do not think it unfair or unreasonable for the Tribunal to
have decided to exclude the Aspinall Report.
Failure to take Jaguar’s disorganised production of documents into account

157 CMNC further argues that, quite apart from the fact of the continual
updates and additional disclosures, the disorganised and delayed manner in
which the documents generally were disclosed also exacerbated the time
pressure that CMNC was already under, and that the Tribunal should have

taken this into account in its case management in the crucial final weeks
leading up to the main evidentiary hearing. CMNC’s main complaint was
that Jaguar had not provided any index to the uploaded documents, which,
according to CMNC, significantly slowed its review of the documents and
therefore its ability to present its case responsive to Jaguar’s ETC Claim.
The parties attempted to resolve this issues between themselves: Jaguar’s
counsel provided step-by-step instructions on how a transaction log may be
used as an index, and also offered teleconferences (with Mr McGeehin) to
walk CMNC and/or Mr Gurnham through the production, which CMNC
did not take up. However, the parties were ultimately unable to resolve
CMNC’s concerns (see [44]–[47] above).
158 We note that CMNC’s case does not appear to be that the Tribunal
should have granted it some sort of relief in respect of the document
production, and rightly so, for (as noted at [47] above) CMNC never asked
the Tribunal for any such relief. Despite the fact that (a) parties remained
unable to resolve CMNC’s issues over a substantial period of
correspondence and the extension of multiple offers of assistance
(by Jaguar’s counsel and its quantum expert); (b) the date of the main
evidentiary hearing, which was known to both parties by this time, was
looming ever closer; and (c) Jaguar’s counsel had repeatedly stated in their
correspondence with CMNC’s counsel that Jaguar would proceed as
directed by the Tribunal should CMNC decide to bring the matter to the
Tribunal’s attention (see [47] above), CMNC never brought these concerns
to the Tribunal’s attention in a request for relief.
159 CMNC’s case on the allegedly disorganised and haphazard
production of the Costs Documents is that the Tribunal should have taken
the resulting difficulties into account in its case management decisions
leading up to the main evidentiary hearing. Again, in assessing whether the
Tribunal had acted unfairly, it is of crucial importance that we examine
what exactly the Tribunal had been told about the alleged difficulties that
CMNC now relies on. In this regard, CMNC did not mention Jaguar’s
allegedly disorganised and haphazard production of documents in its two
requests to the Tribunal for an extension of time for the filing of the
Gurnham Responsive Report – all it said was that the “extraordinary size”
of the incoming material necessitated the extensions sought (see [56] and
[63] above). It was not until 27 June 2015, long after its extended deadlines
had lapsed, that CMNC informed the Tribunal of its difficulties with the
uploaded documents in its application to formally admit the various
witness statements and expert reports it had belatedly filed and/or filed
without leave.
160 In the circumstances, we see no basis at all for this complaint.
The cumulative effect of all three factors
161 CMNC further argues that the three planks of its case – the AEO
Regime, CMNC’s lack of access to the Construction Documents and
Jaguar’s rolling production of the Costs Documents – should not be
assessed individually in isolation, but that their cumulative effect must be
assessed together, as a whole. Before us, Mr Landau explained that the
thrust of this submission was that the impact that each event had consisted
not just of how that individual event affected CMNC’s ability to prepare its
case, but also how each event exacerbated the effects of other events, which,
as a whole, resulted in a thoroughly defective arbitral procedure which put
CMNC on the back foot in the Arbitration and never afforded it a chance to
recover.
162 Thus, it was said, CMNC had been forced to start with a “pre-existing
handicap” – its lack of access to the Construction Documents. Even if this
alone did not found a claim for breach of natural justice, it formed part of
the backdrop that any reasonable and fair-minded tribunal would have
taken notice of, and taken into consideration in the conduct of the
proceedings. Yet, what the Tribunal did was to “aggravate” this existing
handicap by imposing the AEO Regime. In turn, the AEO Regime, although
lifted in March 2015, had concertinaed the timelines for CMNC’s
preparations into the four months before the main evidentiary hearing
(whereas Jaguar’s ability to prepare had been unhampered since the
commencement of the Arbitration). CMNC was not, however, given any
chance to recover during this four-month window, as the Tribunal failed to
control Jaguar’s rolling production of Costs Documents, and thereby
allowed the proceedings to descend into a free-for-all under which Jaguar
was free to amend its case at will.
163 When looked at in this light, Mr Landau argues, the Judge had erred
in finding that the prejudice caused could have been cured by, for example,
the lifting of the AEO Regime, or the Tribunal’s grant of the first extension
for the filing of the Gurnham Responsive Report. According to CMNC, the
problems were far more deep-seated, and had begun almost from the start
of the Arbitration. Although CMNC attempted, as a cooperative party, to
carry on with the Arbitration despite these handicaps by requesting
extensions of time, this should not be seen as an acknowledgment that those
extensions, if granted, would have cured the prejudice caused to CMNC.
When viewed in its proper context, the prejudice caused was irreparable,
and the arbitral proceedings were in fact irretrievably lost. In short, it had
become impossible to have a fair hearing in July 2015 given the massive
influx of new supporting documents, coupled with the disorganised
manner of production and the effect of the AEO Order in concertinaing the
timelines for preparation. We emphasise the last point because it brings
home the real thrust of Mr Landau’s submission, which is that by this stage

of the proceedings, it was no longer a matter of granting some extension of

time or even of allowing some evidence to be admitted late.
164 These points were, Mr Landau submitted, properly and forcefully
brought to the Tribunal’s attention by CMNC at the material time. In
support of his submission, Mr Landau referred to the following
communications:
(a) RC No 38 (dated 26 September 2014), which was CMNC’s
request that the Tribunal reconsider its decision to impose the AEO
Order:
Further, the procedure imposed on [CMNC] with regard to documents
that [Jaguar] decide to designate as attorney’s eyes only is unfair and
severely hinders [CMNC’s] defence … The inequality and unfairness
that will result if this ruling is maintained is acute given the obvious
importance of these documents and the aggressive procedural
timetable to which the Parties are committed … The [AEO Regime] …
will substantially slow and hinder [CMNC’s] review of critical
documents, again to the substantial prejudice of effective defence
preparation.
… The Tribunal’s decision [in TC No 49 to impose the AEO Order]…
deprives [CMNC] of an adequate opportunity to prepare its defence
…[;]
(b) RC No 48 (dated 15 October 2014), in which CMNC requested

a reset of the procedural timelines set in PO 2 on account of its
insufficiently advanced preparations:
The prolonged dispute about ‘attorney’s eyes only’ designation has
imposed severe practical limitations on effective defence preparation
…[;]
and
(c) RC No 119 (dated 17 February 2015), CMNC’s request that the
AEO Regime be lifted, which led to negotiations ultimately resulting
in the lifting of all restrictions on the disclosure of sensitive
documents by consent:
4. [CMNC] is gravely prejudiced by the AOE [sic] Order…
…
6. … by allowing [Jaguar] to subjectively and unilaterally redact
documents, [the AEO Order] offends against the rules of natural
justice and the fair and efficient conduct of the arbitration proceedings.
7. It is procedurally unfair for [CMNC] and its employees to be
unable to inspect the documents relied upon by [Jaguar] … Their
inability to do so is depriving them of the reasonable opportunity to
present their case and answer [Jaguar’s] case.
165 It is undoubtedly the case that CMNC did raise several of these
objections at various times especially in the context of the many exchanges
when these issues were being raised to and dealt with by the Tribunal. But
as we have emphasised, the inevitable consequence of this final submission
that Mr Landau made to us, as to the cumulative effects of these various
complaints, is that by the time the Tribunal came to deal in June 2015 with
those cumulative effects of all the issues that had been raised earlier, the
prospects of a fair arbitration had been irretrievably lost as a result of the
Tribunal’s mismanagement of its procedure (or alternatively, and at the
very least, that the scheduled evidentiary hearings could not proceed). In
his words, he said the arbitration process had become “dysfunctional”. Yet,
in none of these communications did CMNC make that point. On the
contrary, CMNC had, by its continued engagement as a party in the
arbitration, consistently expressed its intention to forge ahead with the
main evidentiary hearing and to see the arbitration through to its
conclusion at the scheduled time right up to the end of June 2015, even as
matters came to a head:
(a) On 6 March 2015, in the weeks before the parties agreed to lift
the AEO Regime, CMNC confirmed, in a separate and unrelated
application to amend its case, that it wished to proceed with the July
2015 main evidentiary hearing (see [51] above).
(b) On 14 April 2015, about a month after the AEO Regime had
been lifted, CMNC’s quantum expert, Mr Gurnham, confirmed in a
teleconference with the Tribunal that he was on track to meet the
deadlines set for the filing of his reports. Mr Gurnham gave no
indication that the effects of the AEO Regime during its operation had
affected his preparations at all, much less that they had irretrievably
compromised his ability to prepare the report (see [53] above).
(c) On 30 May 2015, when CMNC had assessed that it would not be
able to submit the Gurnham Responsive Report on time, it requested
a cut-off date to be imposed on Jaguar’s production, or, in the
alternative, for a substantial extension of time. CMNC never
requested an adjournment of the July 2015 hearing dates
(see [57]–[58] above).
(d) On 17 June 2015, on the eve of the extended deadline for the
filing of the Gurnham Responsive Report, all that CMNC requested
was a one-week extension of time (see [63] above). But that seems a
wholly inadequate remedy for what CMNC claims were proceedings
which had by then allegedly fallen into total disarray. If CMNC had
truly considered the proceedings irreparably compromised by breach
of natural justice, one would have expected CMNC to have said so,
instead of simply seeking a one-week extension of time.

(e) On 27 June 2015, CMNC applied to admit the Gurnham

Responsive Report (which had been belatedly filed after CMNC’s
unsuccessful request for an extension) and the Aspinall Report as well
as six lay witness statements (for which leave to file had not even been
obtained). At this point, CMNC’s position was at its most
precarious – it was unclear if the Tribunal would admit several pieces
of critical responsive lay and expert evidence, with less than two
weeks to go to the main evidentiary hearing. Despite this, CMNC did
not seek a postponement of the July 2015 hearing or suggest this was
necessary. On the contrary, CMNC intimated that it wished to proceed
with the main evidentiary hearing, asserting that its evidence should
be admitted as “[Jaguar], despite [its] strident protestations, have
sufficient opportunity to review this supplemental evidence, and deal
with it [at the main evidentiary hearing] in Dublin” (see [67] above).
166 In short, CMNC’s conduct at the material time is entirely at odds with
its present contention that the arbitration was irretrievably lost and
doomed. Indeed, CMNC’s conduct in the proceedings suggested the precise
opposite – that it was, at all times, ready, able and willing to proceed with
the main evidentiary hearing in July 2015.
167 There are two separate points to be made here. The first is one we
have already made at [101], [102] and [104(d)] above. Simply put, it is that a
court faced with a challenge after the fact must not conduct the analysis
with all the wisdom of hindsight but must, as best it can, put itself in the
shoes of the tribunal as events unfolded and following from this, a tribunal
cannot be criticised for failing to consider points not put to it. As evident
from [164]–[165] above, the contention that the proceedings could not, in
fairness to the parties and more pertinently to CMNC, continue as
scheduled simply was not put to the Tribunal.
168 This is sufficient to dispose of the argument but there is a second
point. An assertion that the tribunal has acted in material breach of natural
justice is a very serious charge, not just for the imputation that such an
allegation makes as to the bona fides and professionalism of the tribunal,
but also for the grave consequence it might have for the validity of the
award. For this reason, there can be no room for equivocality in such matters.
An aggrieved party cannot complain after the fact that its hopes for a fair
trial had been irretrievably dashed by the acts of the tribunal, and yet
conduct itself before that tribunal “in real time” on the footing that it
remains content to proceed with the arbitration and obtain an award, only
to then challenge it after realising that the award has been made against it.
In our judgment, such tactics simply cannot be countenanced.
169 A similar situation confronted the English High Court in ASM
Shipping ([97(c)] supra). The other ground of challenge in that case was
arbitrator bias. After a key witness had been examined, one of the
arbitrators (“X”) disclosed his involvement in an earlier case against that
witness. The unsuccessful party (the ship owners in a shipping dispute)

objected to X’s continuing to sit on the grounds of apparent bias. While it
was agreed between the parties that the arbitration could continue if X
recused himself, X refused to do so. The parties subsequently exchanged
correspondence, in which the ship owners maintained their objections as to
X’s fitness to act as an arbitrator, but otherwise allowed the proceedings to
continue with X sitting as an arbitrator. The tribunal (including X)
subsequently determined a number of preliminary issues, and the
unsuccessful ship owners then challenged the interim award, alleging bias.
Morison J held (at [48]–[49]):
48. … In my judgment, when the case resumed on the third day, after X QC
had declined to recuse himself, [the owners’ counsel] should have indicated that
that decision was not acceptable and that an application would be made to the
court to have him removed but that the hearing should be concluded, without
prejudice to owners’ rights. Following the hearing, an application should have
been made to this court under section 24 [of the English Arbitration Act 1996
for the removal of an arbitrator]. … Instead what happened was a continuing
objection to X QC conducted in correspondence. An interim award was made
and owners took it up.
49. In my judgment, by taking up the award, at the very least, the owners
had lost any right they may have had to object to X QC’s continued
involvement in that part of the arbitral process. It is unacceptable to write
making further objections after the hearing was concluded. X QC had made
his decision not to recuse himself, rightly or wrongly, at the beginning of the
third day. Owners were faced with a straight choice: come to the court and
complain and seek his removal as a decision maker or let the matter drop.
They could not get themselves into a position whereby if the award was in their
favour they would drop their objection but make it in the event that the award
went against them. A ‘heads we win and tails you lose’ position is not
permissible in law … The threat of objection cannot be held over the head of
the tribunal until they make their decision and could be seen as an attempt to
put unfair and undue pressure on them.
170 In our judgment, there is a principle to be drawn from this and it is
this: if a party intends to contend that there has been a fatal failure in the
process of the arbitration, then there must be fair intimation to the tribunal
that the complaining party intends to take that point at the appropriate
time if the tribunal insists on proceeding. This would ordinarily require that
the complaining party, at the very least, seek to suspend the proceedings
until the breach has been satisfactorily remedied (if indeed the breach is
capable of remedy) so that the tribunal and the non-complaining party has
the opportunity to consider the position. This must be so because if indeed
there has been such a fatal failure against a party, then it cannot simply
“reserve” its position until after the award and if the result turns out to be
palatable to it, not pursue the point, or if it were otherwise to then take the
point. After all, the requirement of a fair process avails both parties in the

arbitration and to countenance such hedging would be fundamentally

unfair to the process itself, to the tribunal and to the other party. In the final
analysis, it is a contradiction in terms for a party to claim, as CMNC now
does, that the proceedings had been irretrievably tainted by a breach of
natural justice, when at the material time it presented itself as a party ready,
able and willing to carry on to the award. If a party chooses to carry on in
such circumstances, it does so at its own peril. The courts must not allow
parties to hedge against an adverse result in the arbitration in this way.
171 If indeed CMNC believed that proceeding with the hearing in July
2015 in the circumstances it was presented with was impossible, then it was
incumbent on CMNC to make that abundantly clear to the Tribunal.
Specifically, CMNC had to bring home its concern that proceeding with the
main evidentiary hearing at that time would be futile because it would be on
terms that denied it a fair and reasonable opportunity of preparing its case
and this resulted in a fatally flawed process. However, and as mentioned
at [165]– [166] above, not only was this not done, CMNC never requested a
vacation of the July 2015 hearing dates. On the contrary, CMNC persisted
in maintaining that it wished to press on with the main evidentiary hearing
in July 2015.
172 In our judgment, this puts the lie to CMNC’s submission that the
Tribunal had “lost control” or allowed proceedings to become
“dysfunctional” or to descend into a “free-for-all”. Instead of seeking an
adjournment of the July 2015 hearing, CMNC seemed intent on keeping
the hearing dates, obtaining an extension for itself to file further evidence
on the eve of the hearing, and, if anything, letting the breach of natural
justice go the other way.
Conclusion
173 In final analysis, we find that CMNC has not discharged its burden of
showing that the Tribunal’s conduct of the proceedings fell outside the
realm of what a reasonable and fair-minded tribunal might have done.
Accordingly, CMNC has not proved that the award was made in breach of
the rules of natural justice. We see no basis upon which to interfere with the
Judge’s decision to dismiss the application to set aside, and therefore
dismiss the appeal.
174 It remains for us to note, for good order, that it was, on 10 October
2019, announced that Prof Douglas Jones (“Prof Jones”) (who was the
chairman of the Tribunal) would be appointed an International Judge of the
Singapore International Commercial Court (a division of the Singapore
High Court) with effect from 1 November 2019. We directed that the
parties be notified of this by way of a case management conference held on
11 October 2019, and invited parties to convey any concerns they might
have arising from this development to us in writing within 14 days of the
case management conference. On 17 October 2019, Jaguar responded,
stating that they had no concerns. On 25 October 2019, CMNC responded,

stating that it had no comment on the appointment of Prof Jones as an
International Judge, but that this should not be taken as a waiver of its
challenge against the Award, the grounds of which were reiterated in a
separate letter annexed to the first. These grounds of challenge, to the extent
that they were raised in the appeal, are addressed in this judgment.
175 Unless the parties are able to come to an agreement on costs, they are
to furnish written submissions, limited to ten pages each, within three
weeks of the date of this judgment on the appropriate costs order they
contend should be made.
Reported by Ong Zhihao Reuben.

(2020) 1 SLR 0695

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fm Page 695 Friday, May 15, 2020 1:31 PM

[2020] 1 SLR SINGAPORE LAW REPORTS 695

China Machine New Energy Corp

Court of Appeal — Civil Appeal No 94 of 2018

696 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

Held, dismissing the appeal:

698 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

continued engagement as a party in the Arbitration, consistently expressed its

700 SINGAPORE LAW REPORTS [2020] 1 SLR

Toby Landau QC (Essex Court Chambers Duxton (Singapore Group Practice))

28 February 2020 Judgment reserved.

Sundaresh Menon CJ (delivering the judgment of the court):

1 The concept of due process encompasses a basic guarantee of

2 These procedural safeguards can assume an enhanced significance in

3 While due process serves to protect the legitimacy of the process,

China Machine New Energy Corp v

arbitration as a whole and its critical role as a mode of binding dispute

Background to the dispute

702 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

13 In gist, Jaguar’s case in the Arbitration was that it had validly

14 According to CMNC, its response to the ETC claim required it to

(a) The Interrogation Analysis: This involved interrogating the

(b) The Comparison Analysis: This involved ascertaining the

15 To carry out the Interrogation and Comparison Analyses, CMNC

(a) The Construction Documents: This comprised pre-termination

704 SINGAPORE LAW REPORTS [2020] 1 SLR

(b) The Bid Documents: This comprised documents related to the

(c) The Costs Documents: This comprised invoices, contracts and

16 We return to the procedural history of the arbitral proceedings. The

18 Notably, notwithstanding that parties had agreed on the timelines in

China Machine New Energy Corp v

The AEO regime

706 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

27 Despite the Tribunal’s express reference to CMNC’s right to apply for

The Redaction Ruling and reset of procedural timelines

708 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

rejected this and concluded that “the redactions which [CMNC] …

710 SINGAPORE LAW REPORTS [2020] 1 SLR

China Machine New Energy Corp v

39 The effect of PO 3 on the parties’ preparation of their respective cases

40 Second, PO 3 postponed the date of the main evidentiary hearing and

41 Third, PO 3 recorded the parties’ agreement that Jaguar be permitted

712 SINGAPORE LAW REPORTS [2020] 1 SLR

S/N Transaction Date of Date of invoice Quantum of

Changes in CMNC’s legal team of external counsel and experts

Jaguar’s rolling production of Costs Documents

China Machine New Energy Corp v

irregularities and discrepancies in the documents uploaded by Jaguar’s

45 KWM’s chief complaint pertained to VLMG’s failure to provide an

46 In relation to KWM’s request for an index, VLMG explained that the

47 Ultimately, the parties remained unable to resolve the matter; KWM’s

The supplemental order

48 Separately, on 17 February 2015, CMNC applied to the Tribunal for