In DTH v DTF [2026] SGHC(I) 5, the Singapore International Commercial Court (“SICC”) dismissed an application by successful arbitral claimants to set aside or remit the costs portion of a Singapore-seated arbitral award. The applicants had won the merits phase of the arbitration but failed before the arbitral majority to recover their third-party funding costs (“TPF costs”). They argued that the tribunal’s refusal to award those costs conflicted with Singapore public policy and breached the parties’ agreed arbitral procedure. The SICC rejected both grounds.[1]
The decision is important because the court did not decide whether TPF costs are, as a matter of Singapore arbitration law, recoverable in principle. Instead, it held that even if the arbitral majority had erred on that question, the error would not meet the demanding threshold for setting aside an award under Article 34 of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”).[2]
Facts
The dispute arose out of a joint venture for the provision of financing technology services. The applicants, DTH and DTI, and the first and second respondents, DTF and DTG, were shareholders in the third respondent, a joint venture company. Their relationship deteriorated. The first and second respondents purported to terminate shareholder and investment agreements, and the applicants were removed as directors and terminated as employees.[3]
In the arbitration, the applicants claimed breaches of the relevant agreements and minority oppression under s. 216(1) of the Companies Act 1967. The tribunal’s partial award found breaches of the agreements, held that the purported termination was invalid, found oppressive conduct, and ordered the first respondent to buy out the applicants’ shares for USD 14,736,000.[4]
The applicants had entered into a Litigation Funding Agreement (“LFA”) with a funder. Under the LFA, the funder was entitled to reimbursement of funded costs and a return calculated by reference to either a multiple of funded costs or a percentage of the resolution sum. The applicants sought USD 14,608,695.11 in TPF costs, in addition to legal costs and disbursements of USD 4,561,716.59 and a conditional-fee uplift of USD 1,403,701.38.[5]
The tribunal awarded the applicants USD 4,129,633.56 in legal costs, including the costs of the arbitration, plus interest. But by majority, it dismissed the claim for TPF costs and the uplift claim. The TPF costs point was the focus of the SICC application.[6]
The arbitration was conducted under the SIAC Rules. The applicants relied on Rule 37, which empowered the tribunal to order that “legal or other costs” be paid by another party. The majority rejected the argument that Rule 37, which provides that the tribunal “shall have the authority to order in its award that all or part of the legal or other costs of a party be paid by another party”, authorised recovery of TPF costs. It reasoned that s. 12(5) of the International Arbitration Act 1994 (“IAA”) limited the tribunal to remedies or relief that could have been ordered by the General Division of the High Court, and that TPF costs did not fall within “other costs” under Rule 37. The majority also found that the LFA did not fall within the third-party funding permitted by Singapore’s 2017 legislative amendments.[7]
For statutory context, Singapore’s 2017 amendments abolished civil liability for maintenance and champerty and permitted qualifying third-party funding in prescribed proceedings. “Maintenance and champerty” were the historical common-law impediments under which funding agreements were generally void as contrary to public policy or illegal because they constituted contracts for maintenance or champerty. A “third-party funding contract” was defined in the judgment by reference to s. 5B(10) of the Civil Law Act as “a contract or agreement” with a funder for funding proceedings in return for a share or interest in the proceeds.[8]
Issues
The SICC identified two principal issues.
First, whether the majority’s refusal to award TPF costs conflicted with the public policy of Singapore and should be set aside under Article 34(2)(b)(ii) of the Model Law.[9]
Second, whether the arbitral procedure adopted by the majority was not in accordance with the parties’ agreement, such that the relevant portion of the costs award should be set aside under Article 34(2)(a)(iv) of the Model Law.[10]
A subsidiary question was whether, even if a setting-aside ground had been made out, the application would still fail because the applicants suffered no prejudice. The respondents argued that the majority had an independent basis for refusing TPF costs: the LFA itself fell outside the statutory protection for third-party funding, causing no prejudice to the Applications, and therefore could not support a costs award against the respondents.[11]
Rule and Holding
The governing public-policy rule was stringent. A party seeking to set aside an award on public-policy grounds must identify the relevant public policy and the part of the award said to conflict with it. The conflict must reach the high threshold expressed in authorities such as PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA: the award must “shock the conscience”, violate basic notions of morality and justice, be clearly injurious to the public good, or be wholly offensive to an ordinary, reasonable and fully informed member of the public.[12]
The SICC held that the applicants did not meet that standard. Access to justice is generally a recognised head of public policy, but the recoverability of TPF costs is distinct from the legality or availability of third-party funding. The court held that it did not “shock the conscience” for a funded party to be told, even incorrectly, that TPF costs were not recoverable from the opposing party.[13]
The court also rejected the applicants’ arbitral-procedure argument. Rule 37 of the SIAC Rules was not procedural in the relevant sense; it authorised the tribunal’s disposition of costs, rather than prescribing the process by which the tribunal must decide costs. Even if Rule 37 were treated as procedural, the majority’s construction of it was at least open on the text, so the court would not re-open the merits of that interpretation through Article 34(2)(a)(iv),[14] which provides that “[a]n arbitral award may be set aside by the court specified in article 6 only if: (a) the party making the application furnishes proof that: […] (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law”.[15]
Accordingly, the SICC dismissed the application in its entirety.[16]
Reasoning and Disposition
The court’s reasoning began with a boundary marker: the application was not an appeal on whether the tribunal got Singapore law right. Singapore arbitration law gives strong effect to minimal curial intervention (“curial intervention” meaning court intervention in arbitral proceedings or awards). Even an error of Singapore law does not, without more, make an award contrary to Singapore public policy.[17]
On public policy, the applicants framed the relevant policy as access to justice for impecunious but deserving parties with meritorious claims in arbitration. The court found that formulation too narrow to qualify as public policy in the Article 34 sense. It was directed to a limited class of parties: impecunious but successful arbitrants seeking recovery of TPF costs. The court considered that this risked collapsing the distinction between public policy and social policy.[18]
The court also declined to treat the applicants’ own economic outcome as sufficient to establish a public-policy conflict. The applicants had sought a much higher buyout figure than the USD 14,736,000 awarded. The fact that the TPF costs would largely consume the recovery did not transform the majority’s costs ruling into a public-policy violation. That outcome was instead a risk inherent in dispute resolution: a party may not recover as much as it hoped when proceedings began.[19]
The court accepted that access to justice can be served by third-party funding, especially where a “fundee” is an impecunious litigant who would otherwise be unable to pursue proceedings. But the court separated that point from the further question, whether the funder’s return should be shifted to the losing party. The 2017 amendments legalised third-party funding in prescribed areas, but they did not expressly mandate recovery of TPF costs from the unsuccessful party.[20]
The court gave several reasons why the irrecoverability of TPF costs was compatible with access to justice. Less than full costs recovery is common. Access to justice is not “a one-way street”; the opposing party’s position also matters. If TPF costs were recoverable as a matter of course, an unsuccessful respondent could pay more when sued by an impecunious funded claimant than when sued by a claimant with means, even if the respondent had no role in causing the claimant’s impecuniosity. The court also noted that recovery of TPF costs is prohibited in SICC proceedings under O. 22 r. 1(5) of the SICC Rules 2021, making it difficult to say that non-recovery in arbitration offends Singapore’s most basic notions of morality and justice.[21]
The court distinguished the authorities relied on by the applicants. In G v N, a Hong Kong court intervened because of exceptional circumstances, including a supervening change in law and a result that would have let a wrongdoer retain benefits under an illegal contract. That was not the situation in DTH v DTF. Similarly, AJU v AJT concerned the risk of enforcing an award based on a contract that might be illegal under Singapore law. By contrast, an allegedly erroneous refusal to award TPF costs did not raise the same risk of enforcing illegality.[22]
On arbitral procedure, the court held that Article 34(2)(a)(iv) is concerned with procedural irregularity, not the substantive outcome of an award. Rule 37 dealt with the tribunal’s authority to allocate costs, not the steps by which the tribunal was required to conduct the arbitration. Therefore, if the majority wrongly concluded that it lacked power to award TPF costs, that would be an error of substance, not procedure.[23]
The court considered Sanum Investments Ltd v Government of the Lao People’s Democratic Republic, where Rule 37 had been discussed in a costs challenge, but found that case was not a considered decision on whether Rule 37 constituted agreed arbitral procedure for Article 34(2)(a)(iv) purposes. The court preferred the view that Rule 37 concerned the merits of costs allocation.[24]
Finally, the court added that even if the applicants had established a setting-aside ground, there was force in the respondents’ no-prejudice argument. The majority had found not only that it lacked power to award TPF costs generally, but also that this particular LFA did not fall within the third-party funding permitted by the 2017 amendments. On that view, the LFA would not be enforceable against the respondents, thus causing no prejudice to the applicants, and the applicants’ TPF costs claim “must fail” regardless of the tribunal’s general power.[25]
The disposition was straightforward: the SICC dismissed the application in its entirety. If the parties could not agree costs within 21 days, they were to file short written submissions.[26]
Conclusion
DTH v DTF is significant for Singapore-seated arbitration because it reinforces the narrowness of public-policy review and the court’s reluctance to recast alleged errors of law or costs allocation as grounds for setting aside. The decision does not conclusively answer whether TPF costs can ever be awarded in a Singapore-seated arbitration. It does, however, make clear that a refusal to award those costs will not easily be set aside merely because the funded party says the refusal undermines access to justice.[27]
For funded parties, the lesson is that the economics of funding cannot be assumed to shift to the losing side. For tribunals and counsel, the decision underscores the importance of distinguishing three questions: whether third-party funding is lawful, whether TPF costs are recoverable as a category of costs, and whether a particular funding agreement falls within Singapore’s statutory framework. In Singapore, the first question may be answered by the 2017 reforms, but the second and third remain harder terrain.[28]
[1] DTH v DTF [2026] SGHC(I) 5 at [1]-[6], [24]-[25], [109].
[2] DTH v DTF [2026] SGHC(I) 5 at [42]-[43], [72]-[75].
[3] DTH v DTF [2026] SGHC(I) 5 at [2]-[3], [9]-[10].
[4] DTH v DTF [2026] SGHC(I) 5 at [10]-[11].
[5] DTH v DTF [2026] SGHC(I) 5 at [13]-[15].
[6] DTH v DTF [2026] SGHC(I) 5 at [17]-[23].
[7] DTH v DTF [2026] SGHC(I) 5 at [20]-[23].
[8] DTH v DTF [2026] SGHC(I) 5 at [35]-[39].
[9] DTH v DTF [2026] SGHC(I) 5 at [24].
[10] DTH v DTF [2026] SGHC(I) 5 at [24].
[11] DTH v DTF [2026] SGHC(I) 5 at [99]-[100].
[12] BNX v BOE [2017] SGHC 289 at [95]; PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2006] SGCA 41 at [59] (cited as PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 at [59]); DTH v DTF [2026] SGHC(I) 5 at [40]-[43].
[13] DTH v DTF [2026] SGHC(I) 5 at [70]-[75].
[14] DTH v DTF [2026] SGHC(I) 5 at [88]-[98].
[15] UNCITRAL Model Law, Article 34(2)(a)(iv).
[16] DTH v DTF [2026] SGHC(I) 5 at [109].
[17] DTH v DTF [2026] SGHC(I) 5 at [42].
[18] DTH v DTF [2026] SGHC(I) 5 at [49]-[55].
[19] DTH v DTF [2026] SGHC(I) 5 at [56]-[58].
[20] DTH v DTF [2026] SGHC(I) 5 at [71]-[72].
[21] DTH v DTF [2026] SGHC(I) 5 at [72]-[75].
[22] G v N [2023] HKCFI 3366; AJU v AJT [2011] SGCA 41 at [62] (cited as AJU v AJT [2011] 4 SLR 739 at [62]); DTH v DTF [2026] SGHC(I) 5 at [76]-[81].
[23] CEF v CEH [2022] SGCA 54 at [58]-[59] (cited as CEF v CEH [2022] 2 SLR 918 at [58]-[59]); PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2010] SGHC 202 at [39] (cited as PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2010] 4 SLR 672 at [39]); DTH v DTF [2026] SGHC(I) 5 at [88]-[91].
[24] Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2022] SGCA(I) 9 at [59] (cited as Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2022] 4 SLR 198 at [59]); DTH v DTF [2026] SGHC(I) 5 at [92]-[96].
[25] DTH v DTF [2026] SGHC(I) 5 at [99]-[108].
[26] DTH v DTF [2026] SGHC(I) 5 at [109].
[27] DTH v DTF [2026] SGHC(I) 5 at [42]-[43], [72]-[75], [91]-[98].
[28] DTH v DTF [2026] SGHC(I) 5 at [35]-[39], [72]-[73], [99]-[108].
