Anti-Suit Injunctions for Parallel Proceedings – Court Considers Principles for Appeals and Setting Aside

Can a party that no longer wishes to contest Singapore court proceedings turn around and subsequently allege that it should have been served with appeal papers in those same proceedings? Is an anti-suit injunction (“ASI“) restraining the continuation of foreign proceedings otherwise rendered impossible by the delivery of a decision in those foreign proceedings, and will that, in turn, lead to the discharge or variation of the ASI? When will a court impose the condition in an ASI that one party is required to waive its time bar defence against the other party, bearing in mind the implications of such waiver on the justice of the case as between parties?

In COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills [2025] SGHC 87 (“Cosco Shipping“), the Singapore High Court (“High Court“) provided guidance on: (i) the requirements for service of appeal papers under the Rules of Court 2021 (“ROC 2021“); (ii) the circumstances in which ASIs may be varied; and (iii) the imposition of conditions such as the waiver of a time bar defence to do justice between parties in complex, multi-jurisdictional disputes.

Brief Facts

In Cosco Shipping, a maritime dispute arose between COSCO Shipping Specialized Carrier Co, Ltd (“COSCO“) and PT OKI Pulp & Paper Mills (“OKI“) following an allision between a vessel owned by COSCO and a jetty owned by OKI. The dispute triggered (among others): (i) a limitation action brought by COSCO in the Singapore courts; (ii) proceedings brought by OKI in the Indonesian courts; and (iii) arbitral proceedings brought by COSCO at the Singapore International Arbitration Centre (“SIAC“).

In all, OKI asserted losses of around US$269 million. On the other hand, COSCO estimated its liability under Singapore law to be limited to around US$16.5 million. Significantly, OKI’s claims were partially granted by the Indonesian courts in the Indonesian proceedings, in the amount of around US$147 million.

Prior to the Indonesian decision, in the Singapore limitation action, COSCO had applied in HC/SUM 2676/2023 (“ASI Application“) for an ASI to restrain OKI from, inter alia, continuing the Indonesian proceedings. While the High Court initially dismissed COSCO’s ASI Application, on appeal by COSCO, the Singapore Court of Appeal (“Court of Appeal“) granted the ASI sought.

In the present decision, OKI brought two main applications in the Singapore limitation action: (i) HC/SUM 3059/2024 (“Setting Aside Application“) was OKI’s application to discharge, revoke, set aside, or alternatively, vary the ASI granted by the Court of Appeal; and (ii) HC/SUM 2712/2024 (“Stay Application“) was OKI’s application to stay the ASI pending the determination of the Setting Aside Application.

The High Court considered several procedural and substantive issues, including:

1. Setting aside: Whether the ASI should be discharged, revoked or set aside, including:

• • whether COSCO was required to serve the appeal papers on OKI under the ROC 2021;
  • if so, whether its failure to do so could and/or should be cured; and
  • whether the ASI should be discharged because: (i) the permission to appeal and appeal hearings had become ex parte in nature and COSCO had allegedly breached its duty of full and frank disclosure at these hearings (“Disclosure Argument“); or (ii) OKI would suffer prejudice because the release of the Indonesian decision rendered its continued compliance with the ASI impossible (“Impossibility Argument“).

2. Variation: If the ASI is not discharged:

• • Whether the ASI should nevertheless be varied, given: (i) the Impossibility Argument; and (ii) OKI’s willingness to undertake not to enforce nor rely on the Indonesian decision pending full and final determination of the issue of the tribunal’s jurisdiction in the SIAC arbitration; and
  • If so, whether the varied order should be conditional on COSCO waiving any time bar defences or objections in the SIAC arbitration. In particular, OKI was chiefly concerned with COSCO raising the two-year time bar under Indonesian law in respect of OKI’s tortious claims as the owner of the jetty (“Time Bar Condition“).

3. Stay: Whether the Stay Application should be granted.

Holding of the High Court

Discharge, Revocation or Setting Aside of the ASI

OKI sought to discharge, revoke, or set aside the ASI, submitting that COSCO should have but failed to serve the appeal papers on OKI, given that Order 18 rules 27(1) and 29(1) of the ROC 2021 require an appellant to serve the relevant documents (i.e. the appeal papers in this case) on “all parties who have an interest in the appeal”. Due to COSCO’s failure to do so, the ASI suffered from a “fundamental procedural defect that warrants its discharge”. The High Court declined to discharge, revoke or set aside the ASI.

1. The High Court found that OKI was a “party” to the proceedings in the Singapore limitation action. However, OKI lost its requisite “interest in the appeal” after it withdrew its Notice of Intention to Contest (“NITC“) in the Singapore limitation action, prior to the permission to appeal and appeal proceedings being brought. Therefore, COSCO was not required to serve the appeal papers on OKI.

2. Even if service were required, the High Court held that any failure to serve the appeal papers was an irregularity that could be cured, and it exercised its discretion to do so in this case. After analysing the authorities, the High Court reasoned that the determinative factor in this case was whether OKI had suffered prejudice arising from COSCO’s failure to serve the appeal papers, and found that there was no such prejudice caused to OKI given that:

• • OKI had withdrawn its NITC, which strongly suggested that it would not have participated in the appeal in any case; and
  • OKI was in all likelihood aware of the appeal (from an email dated 24 May 2024 from COSCO to the SIAC, copied to OKI, informing that the appeal was pending) but chose not to participate in the appeal and remained silent until after the appeal was decided against it.

3. Finally, the High Court found that:

• • Disclosure Argument: Even assuming that the permission to appeal and appeal hearings were ex parte in nature (given the lack of service in this case), COSCO had not breached its duty of full and frank disclosure; and
  • Impossibility Argument: Such impossibility would lead to the ASI being varied but not being discharged altogether (see below).

Variation of the ASI

The High Court accepted the Impossibility Argument and that such impossibility had resulted in a material change of circumstances requiring a variation of the ASI. The High Court ordered a variation of the ASI to further restrain OKI from enforcing or relying upon the Indonesian decision (in addition to the original wording of the ASI restraining OKI from continuing the Indonesian proceedings).

Further, the High Court imposed the Time Bar Condition in the varied ASI, requiring COSCO to waive any time bar objections or defences in the SIAC arbitration commenced by COSCO or any other arbitration proceedings commenced in Singapore by OKI in respect of the same claim. The High Court reasoned that:

1. The Time Bar Condition was justified by the unusual circumstances of the case and how proceedings had panned out in Indonesia and Singapore. In particular, OKI had not been dilatory nor blameworthy, nor could it be faulted for failing to commence arbitration proceedings in Singapore before any Indonesian law time bar had or could potentially have set in.

2. Thus, it would be unjust to impose on OKI the consequences of the time bar under Indonesian law applying to a tortious claim that might be brought by OKI in arbitration proceedings in Singapore or for OKI’s claim to be subject to such a time bar defence.

Stay of the ASI

The High Court granted a stay of the ASI pending the final determination of the Setting Aside Application (including any appeals therefrom), reasoning that a continuation of the interim stay that was previously granted would retain the status quo and would not prejudice either party.

Concluding Words

A key takeaway from this case is that parties will generally be held to be bound by their respective litigation decisions. For example, if one party has indicated an intention not to contest Singapore court proceedings, it might not be permitted to turn around and subsequently allege that it should have been served with appeal papers in those same proceedings; a fortiori, when it was made aware of the appeal but chose to stay silent on the same until the appeal was decided against it.

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