Singapore Court of Appeal: Whether a Party Can Object to a New Claim and Still Argue it on the Merits Without Impermissibly Hedging its Position
In ONI Global Pte Ltd and another v GNC Holdings LLC and another appeal, [2026] SGCA(I) 3, the Court of Appeal inter-alia decided the issue of whether the franchisee’s conduct, in applying to strike out a new damages claim while simultaneously addressing that claim on its merits, amounted to impermissible hedging, thereby precluding it from later resisting enforcement of the foreign arbitral award on that ground.
While deciding this issue, the Court also examined the extent to which a court should defer to an arbitral tribunal’s own findings on alleged procedural fraud, and the scope of a tribunal’s power to craft detailed specific performance orders without first consulting the parties.
Factual Matrix
GNC Holdings LLC (“GNC”) and ONI Global Pte Ltd (“ONI Global”), together with its associated company LAC Global (Singapore) Pte Ltd (collectively, “ONI”), had a long-standing franchise relationship for the sale of health products and dietary supplements through franchised stores in Singapore, governed by agreements due to expire on 31 December 2024.
Following a change in GNC’s ownership in October 2020, the relationship deteriorated, and disputes arose in the Malaysian and Taiwanese franchise relationships in 2021, leading ONI to commence arbitration against GNC. On or about 20 May 2022, ONI terminated the Singapore Agreements and rebranded all 54 Singapore Franchised Stores without notifying GNC.
Both parties commenced arbitrations in May 2022 alleging repudiatory breach by the other. These were consolidated and seated in Pittsburgh, Pennsylvania, administered by the ICDR under Pennsylvania law.
The central issue was whether ONI was entitled to terminate the Singapore Agreements, and whether GNC was entitled to specific performance of the post-termination covenant under Clause 13.4 of the Franchise Agreement, requiring ONI to assign its interest in the store leases to GNC.
After the evidentiary hearing, ONI applied to dismiss GNC’s claims and for adverse inferences, alleging that GNC’s Executive Vice Chairman, Mr Wong, had destroyed relevant text messages (“Spoliation Application”).
The Tribunal declined to dismiss GNC’s claims but found Mr Wong’s testimony unreliable and drew a limited adverse inference. Separately, in its Post-Hearing Brief, GNC advanced a claim for “Post-Termination Damages” that ONI characterised as new and unpleaded (“GNC’s Quantum Case”).
ONI reserved “all rights” by joint email, then sought and was granted leave to apply to strike out GNC’s Quantum Case (“Striking Out Application”). During the closing hearing, ONI argued the Striking Out Application first, but also went on to address GNC’s Quantum Case on its merits.
The Tribunal issued its Award on 14 August 2024, largely in GNC’s favour, ordering detailed specific performance of Clause 13.4 (comprising several sub-orders, collectively “Order 3”) and awarding Post-Termination Damages of US$18,923,012.
GNC obtained an Enforcement Order in Singapore, which ONI sought to set aside on four grounds:
(i) public policy, based on GNC’s alleged spoliation of evidence;
(ii) natural justice, for the Tribunal’s alleged failure to consider a “Critical Argument”;
(iii) that the Post-Termination Damages claim fell outside the scope of submission to arbitration and/or breached natural justice; and
(iv) that Order 3 fell outside scope and/or breached natural justice.
The SICC rejected Grounds 1 to 3 and most of Ground 4, but found three specific orders within Order 3, orders 3(d)(ii), 3(d)(iii) and 3(f), to have been made in breach of natural justice, and varied the Enforcement Order accordingly. Both parties appealed.
Parties’ Contentions
ONI contended that the SICC’s approach to Ground 1 would mean that fraud perverting the arbitral process could never be corrected by a court.
On Ground 2, ONI maintained that the Critical Argument had been properly raised before the Tribunal, which had completely failed to consider it.
On Ground 3, ONI argued the Post-Termination Damages claim was unpleaded or had been dropped by GNC, and that in the alternative it had been denied a reasonable opportunity to address it.
On Ground 4, ONI argued the Tribunal was confined to granting relief in the specific terms sought by GNC, and that the SICC erred in finding no prejudice arising from certain orders.
It further contended that having found order 3(f) was made in breach of natural justice, the SICC should have refused enforcement of Order 3 in its entirety.
On the question of hedging, ONI submitted that it had not hedged its position, since it had expressly reserved “all rights,” sought leave to strike out GNC’s Quantum Case, and argued the striking-out application before addressing the merits, with its counsel “making clear that its primary position remained” that the claim should be struck out.
GNC, in response, submitted that ONI’s conduct constituted precisely the type of impermissible hedging warned against in China Machine New Energy Corp v Jaguar Energy Guatemala LLP [2020] 1 SLR 695, since ONI had never raised its specific due process complaints before the Tribunal and had adopted a “two-fold response” of seeking to strike out the claim while also arguing it on the merits.
On its cross-appeal, GNC submitted that the SICC had refused enforcement of orders 3(d)(ii) and 3(d)(iii) on grounds beyond those stipulated in the International Arbitration Act 1994 (2020 Rev Ed) (“IAA”), that those orders would not lead to unnecessary debate and supervision, and that there was no breach of natural justice in the making of any of the three orders, given the sufficient nexus between those orders and the cases advanced by the parties, and the absence of prejudice to ONI.
Issues
The issues before the Court of Appeal were:
(i) whether enforcement of the Award should be refused on public policy grounds due to GNC’s spoliation of evidence;
(ii) whether the Tribunal’s alleged failure to consider the Critical Argument amounted to a breach of natural justice;
(iii) whether ONI’s conduct in respect of GNC’s Quantum Case amounted to impermissible hedging, and if not, whether the Post-Termination Damages award should be refused enforcement on scope or natural justice grounds; and
(iv) whether Order 3, or any part of it, fell outside the scope of submission to arbitration and/or was made in breach of natural justice.
Findings of the Court of Appeal
On Ground 1, the Court held that where the alleged procedural fraud concerned the conduct of the arbitration itself, where all relevant facts were known to the Tribunal, and where the fraud had already been assessed and ruled upon by the Tribunal pursuant to a specific application, the court should exercise “the greatest caution possible” before reopening and re-litigating the question.
This was so because courts accord substantial deference to a tribunal’s exercise of procedural discretion, because the tribunal is better placed to assess the materiality of concealed information in the counterfactual, and because courts cannot review the merits of an award, including one allegedly tainted by fraud.
Since ONI could not establish the actual contents of the deleted messages, its challenge was held to fail, consistent with the approach in CYE v CYF [2023] SGHC 275.
On Ground 2, the Court applied the four cumulative conditions for an infra petita challenge set out in DKT v DKU [2025] 1 SLR 806, and held that the Critical Argument had not been properly brought before the Tribunal for determination, noting that a party cannot bring a challenge based on a case it wished it had made rather than the case it actually ran.
The Court further held there was no clear and virtually inescapable inference that the Tribunal had completely failed to consider the Critical Argument, particularly since the Tribunal’s finding of no evidence of “actual conduct” by GNC to terminate the Singapore Agreements was logically inconsistent with the Critical Argument having been overlooked.
On the hedging issue, the Court held that ONI’s conduct amounted to impermissible hedging. Applying the principle from China Machine that “it is a contradiction in terms for a party to claim 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,” the Court found that ONI had never intimated to the Tribunal that the merits of GNC’s Quantum Case could not fairly be considered at all, nor sought the specific remedial measures (reopening document production, adducing expert evidence, resuming cross-examination) it now claimed to have been deprived of.
The Court distinguished CAJ v CAI [2022] 1 SLR 505, where the objecting party had engaged with the new defence only in a “cursory manner” by raising threshold arguments, holding that ONI, by contrast, had made substantial submissions on the merits, which was fundamentally inconsistent with its position that the alleged breach was incapable of remedy short of striking out the claim.
The Court held this consequently precluded ONI from raising the Due Process Complaints before the court, and found it unnecessary to determine whether GNC’s Quantum Case was in fact new and unpleaded.
On Ground 4, the Court held that the Tribunal was not confined to granting specific performance in the precise terms sought by GNC, noting that GNC’s prayer included “such other relief as the Tribunal deems necessary, fair and just,” and that the parties’ own exchange of pleadings had introduced considerations of balancing equities between the parties and third parties, including the hardship to employees.
The Court held that the specific terms of Order 3 were relevant to matters within the scope of submission to arbitration.
On natural justice, applying Glaziers Engineering Pte Ltd v WCS Engineering Construction Pte Ltd [2018] 2 SLR 1311 and TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972, the Court held that it was reasonably foreseeable that the Tribunal would craft Order 3 on detailed terms without inviting further submissions, since this flowed reasonably from arguments already advanced by the parties, including ONI’s own arguments concerning hardship.
The Court held this reasoning extended to orders 3(d)(ii), 3(d)(iii) and 3(f), and found the SICC had erred in refusing their enforcement, since in the absence of a breach of natural justice, the question of prejudice did not arise.
Accordingly, the Court dismissed ONI’s appeal in CA/CAS 5/2025 and allowed GNC’s appeal in CA/CAS 6/2025, such that the Award, including all parts of Order 3, was to be enforced in full.
