Last year, the General Division of the High Court dismissed a USD 37 million claim by UniCredit Bank AG (UCB) against Glencore Singapore Pte Ltd (Glencore) for recovery of monies paid under a letter of credit under the “fraud exception”.
On 30 August 2023, the Court of Appeal dismissed UCB’s appeal, and has on 28 November 2023 issued its written grounds of decision. The Court of Appeal noted that UCB could not rely on the “fraud exception” as there was no fraud on the documents tendered by Glencore for payment under the letter of credit, and the underlying transaction was not a sham. Further, the Court of Appeal considered that there had been no relevant representation made by Glencore to UCB for the purposes of the tort of deceit, that any representation was in any case true, and that there was no fraudulent intention on the part of Glencore. Significantly, the Court of Appeal’s grounds clarify that whether non-contractual representations can properly be implied from contractual promises is a fact-centric question, dependent on what was said and the context in which it was said.
A copy of the Court of Appeal’s grounds of decision in  SGCA 41 can be found here.
Chan Leng Sun SC and Colin Liew acted for Glencore, the successful respondent, instructed by Clasis LLC.