Eugene On Arbitration PDF

Eugene Teh on Arbitration (cs)
FUNDAMENTAL CONCEPTS OF ARBITRATION LAW............................................................ 5

GENERALLY ........................................................................................................................................ 5
Focus on commercial arbitration: .................................................................................................. 5
Litigation vs. Arbitration................................................................................................................. 5
Dual regime (two dimensions of arbitration law): ......................................................................... 5
FUNDAMENTAL CONCEPTS OF ARBITRATION LAW.............................................................................. 6
(1) Autonomy and consent (arbitration agreement/clause): ........................................................... 6
(2) Separability: .............................................................................................................................. 6
[3] Kompetenz-Kompetenz.............................................................................................................. 7
(4) Arbitration law or lex arbitri; ................................................................................................... 8
(5) Confidentiality ........................................................................................................................... 9
INTERNATIONAL OR DOMESTIC? ............................................................................................. 11
[0] Preliminary notes: .................................................................................................................. 11
[1] Is it international? .................................................................................................................. 11
[2] If IAA, did the parties opt out? ............................................................................................... 11
[3] Is it domestic?: ........................................................................................................................ 12
[4] Opting in? ............................................................................................................................... 12
ARBITRATION AGREEMENT ....................................................................................................... 13
[A] SEAT AND LEX ARBITRI ............................................................................................................... 13
[1] The seat and lex arbitri:.......................................................................................................... 13
The law of the arbitration agreement ........................................................................................... 15
[B] ARBITRATION AGREEMENT ......................................................................................................... 16
Interpretation of arbitration agreement ........................................................................................ 16
Incorporation by reference: .......................................................................................................... 20
‘DISPUTE’ ........................................................................................................................................... 23
[A] WHAT IS A DISPUTE: ................................................................................................................... 23
[B] SCOPE OF THE ARBITRATION CLAUSE: ........................................................................................ 23
[C] IS THE DISPUTE ARBITRABLE? ..................................................................................................... 25
Non arbitrable matters: ................................................................................................................ 25
STAY OF PROCEEDINGS UNDER IAA........................................................................................ 27
[0] Preliminary step: Application ................................................................................................. 27
[1] Is there an arbitration agreement? ......................................................................................... 27
[2] Is there a dispute referred to arbitration: ............................................................................... 28
[3] Before taking a step in the proceedings: ................................................................................ 28
[4] Is the clause void and null, inoperative or incapable of being performed ............................. 29
[5] No discretion ........................................................................................................................... 30
[B] STAY OF PROCEEDINGS (DISCRETIONARY UNDER AA) ............................................. 31
[0] Introduction ............................................................................................................................ 31
[1] Is there an arbitration agreement? ......................................................................................... 31
[2] Is there a dispute referred to arbitration: ............................................................................... 31
[3] No sufficient reason why it should not refer to arbitration .................................................... 31
[4] Ready and willing ................................................................................................................... 32
[5] Timing of application: ............................................................................................................ 32
[6] Discretionary .......................................................................................................................... 33
On tripartite arbitration ................................................................................................................ 36
Scott v Avery Clauses .................................................................................................................... 37
Atlantic Shipping Clause ............................................................................................................... 38
Extension of time ........................................................................................................................... 38
COURT ASSISTANCE IN ARBITRAL PROCEEDINGS ............................................................ 39
[A] ENFORCEMENT OF ARBITRAL ORDERS AND DIRECTIONS............................................................ 39
[1] Under IAA: .............................................................................................................................. 39
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[2] Under AA: ............................................................................................................................... 39

[B] COMPELLING ATTENDANCE OF NON-PARTIES OR WITNESSES .................................................... 39
[1] Under the IAA: ........................................................................................................................ 39
[2] Under the AA: ......................................................................................................................... 40
[C] COURT ORDERED INTERIM MEASURES IN SUPPORT OF LOCAL ARBITRATION (AA AND IAA) .... 40
[1] Under the IAA: ........................................................................................................................ 40
[2] Under the AA: ......................................................................................................................... 43
[D] COURT ORDERED INTERIM MEASURES IN SUPPORT OF FOREIGN ARBITRATION ......................... 44
INTERIM MEASURES (BY TRIBUNAL) ...................................................................................... 49
UNDER THE AA ................................................................................................................................. 49
UNDER THE IAA ................................................................................................................................ 49
THE ARBITRAL AWARD................................................................................................................ 51
[A] DEFINITION ................................................................................................................................. 51
[1] Under the IAA ......................................................................................................................... 51
[2] Under the AA .......................................................................................................................... 51
[B] FORM OF AWARDS ....................................................................................................................... 51
[1] Awards under the IAA ............................................................................................................. 51
[2] Awards under the AA .............................................................................................................. 53
[C] EFFECT OF THE AWARD ............................................................................................................... 56
CORRECTION OF AWARD ............................................................................................................ 59
[A] CORRECTION UNDER IAA ........................................................................................................... 59
[1] Amending for correction and interpretation: ......................................................................... 59
[2] Requesting for additional award: ........................................................................................... 59
[3] No other corrections: .............................................................................................................. 59
[4] Form of correction/ interpretation/ additional award: .......................................................... 59
[B] CORRECTION UNDER AA ............................................................................................................ 60
[1] Amending for correction and interpretation: ......................................................................... 60
[2] Requesting for additional award: ........................................................................................... 60
[3] No other corrections: .............................................................................................................. 60
[4] Form of correction/ interpretation/ additional award: .......................................................... 60
RECOGNITION/ENFORCEMENT/RESISTING (SINGAPORE AWARDS)............................ 61
[1] SINGAPORE DOMESTIC AWARD (AA) .......................................................................................... 61
Recognition: .................................................................................................................................. 61
Enforcement: ................................................................................................................................. 61
Setting aside: ................................................................................................................................. 62
[2] SINGAPORE INTERNATIONAL AWARD (IAA) ............................................................................... 63
Recognition: .................................................................................................................................. 63
Enforcement: ................................................................................................................................. 63
Setting aside: ................................................................................................................................. 63
Refusal of enforcement .................................................................................................................. 65
RECOGNITION/ENFORCEMENT (FOREIGN AWARDS)........................................................ 67
[1] FOREIGN (NYC AWARDS): .......................................................................................................... 67
Recognition and enforcement: ...................................................................................................... 67
Refusal of recognition and enforcement: ...................................................................................... 68
Cannot set aside award in Singapore: .......................................................................................... 68
[2] FOREIGN (NON-NYC AWARDS): ................................................................................................. 69
Recognition and enforcement: ...................................................................................................... 69
Refusal and recognition and enforcement: ................................................................................... 69
Cannot set aside award in Singapore: .......................................................................................... 70
EXPANSION OF GROUNDS TO SET ASIDE ............................................................................... 71
GENERALLY ...................................................................................................................................... 71
GROUNDS .......................................................................................................................................... 71
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[1] Incapacity or invalid agreement: ............................................................................................ 71

[2] Improper notice or unable to present case: ............................................................................ 71
[3] Award was beyond scope or deals with contemplated dispute:.............................................. 72
[4] Irregularity in tribunal composition/ not in accordance with parties’ agreement: ............... 73
[5] Non-Arbitrability: ................................................................................................................... 74
[6] Contrary to public policy:....................................................................................................... 74
[7] Fraud: ..................................................................................................................................... 76
[8] Breach of natural justice: ....................................................................................................... 77
APPEALING ON A QUESTION OF LAW (AA ONLY) ............................................................... 82
General: ........................................................................................................................................ 82
Step 1: Question of law: ................................................................................................................ 82
Step 2: Exhaust all other options: ................................................................................................. 83
Step 3: Agreement or leave: .......................................................................................................... 83
Step 4: Has jurisdiction of SGHC been excluded: ........................................................................ 84
Step 5: Comply with s 50 AA: ....................................................................................................... 84
Effect of a successful appeal: ........................................................................................................ 84
ARBITRATION RULES & THE TRIBUNAL ................................................................................ 85
ARBITRATION RULES ......................................................................................................................... 85
The rules ........................................................................................................................................ 85
APPOINTMENT OF ARBITRATOR ........................................................................................................ 85
[1] Number: .................................................................................................................................. 85
[2] Manner of appointment: ......................................................................................................... 85
[3] Qualification of arbitrators: ................................................................................................... 86
[4] Nationality: ............................................................................................................................. 86
[5] Emergency arbitrator: ............................................................................................................ 87
REPLACEMENT OF ARBITRATOR: ...................................................................................................... 87
CHALLENGING APPOINTMENT OF ARBITRATOR: ............................................................................... 87
Under the IAA ............................................................................................................................... 88
Under the AA ................................................................................................................................. 88
Resignation of the arbitrator (resign) ........................................................................................... 89
THE ARBITRAL TRIBUNAL ................................................................................................................. 90
Decisions by panel: ....................................................................................................................... 90
General duties non delegable: ...................................................................................................... 90
Case management powers: ........................................................................................................... 90
Delay: ............................................................................................................................................ 91
Breach of duties as ground of removal of arbitrator: ................................................................... 91
Obligation to disclose: .................................................................................................................. 91
Independence: ............................................................................................................................... 91
Impartiality: .................................................................................................................................. 91
COMMENCEMENT OF THE ARBITRATON ............................................................................................ 91
TERMS OF REFERENCE/ MEMORANDUM OF ISSUES ........................................................................... 91
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FUNDAMENTAL CONCEPTS OF ARBITRATION LAW
GENERALLY
Focus on commercial arbitration:
• The resolution of a commercial dispute between two parties who have agreed to refer their
dispute to an independent, impartial individual or tribunal (usually of 3 persons) privately
appointed by the parties and whose findings or judgment in respect of the dispute shall, by
agreement, be binding on the parties (Chew, Law and Practice of Arbitration in Singapore)
Litigation vs. Arbitration
Arbitration Litigation
1 Consensually resorted to by agreement of parties Does not require agreement of the parties
2 Privately conducted by independent arbitrators Judges are state appointed and remunerated.
selected and paid for by the parties.
3 Dispute resolution is conducted in private. Conducted publicly in a courtroom.
4 Proceedings are therefore confidential Proceedings are not confidential.
5 Costs of proceedings borne by the parties. Public funding – costs borne by the State,
Dual regime (two dimensions of arbitration law):
Domestic (AA) International Arbitration (IAA)

• Generally involves local parties only – and • Adoption of model law – SG adopted
no international parties or elements. UNCITRAL framework for international
• It is defined by the IAA as one that is not arbitrations in 1995.
international. • Allows for reciprocity – It allowed SG to
• Most local domestic arbitrations revolve develop as a regional and international hub
around construction disputes – Singapore for arbitration as model law is used by
Institute of Architects form of contract countries.
mandates reference to arbitration of disputes
under the agreement
Reasons for dual regime:

• Supervision for domestic arbitration: For domestic arbitration, the courts should have
closer supervision when own domestic law is concerned;
o ‘adoption of a unified arbitration regime that resulted in a lesser degree of curial
intervention would be unacceptably radical for the local legal profession and local
businessmen’ (Sub Committee of Law Reform Committee of SAL)
• Less supervision required for international arbitration: No need for supervision in INTL
arbitration where applicable law or procedure may be based on a foreign law
• Development of local jurisprudence: Local courts have interest in development of local
jurisprudence applicable to local situations which will arise out of domestic arbitrations with
entirely local overtones without any INTL features
• Local arbitration need not concern international principles: Local arbitrations need not
concern themselves with INTL principles
o Many local arbitrations are conducted by non lawyers e.g. professionals allied to the
building industry such as architects, engineers, quantity surveyors, so it is important
that they are more closely supervised by the courts
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o Local parties may need the protection or aid of the courts more than INTL parties
who have access (e.g. due to financial strength) to sophisticated advisors and state of
the art resources
Adoption of model law

• SG has adopted the model law in both the AA and IAA
o S. 3 IAA: subject to this act, the model law, with the exception of Chapter VIII
thereof, shall have the force of law in SG
o Not stated explicitly in the AA, but the provisions are modeled on the Model Law
• It provides a simple standard framework for countries to adopt as their Arbitration law
• Adopted by UNGA in 1985 and is almost universal now, having been adopted by more than
60 countries
• Categorized as ‘lex specialis’ treated as standing apart from all other local law
• As a separate law and regime, need to understand relationship between Model law, IAA and
Arbitration Rules adopted by parties
• Unlike most state legislation and statutes, many of its provisions are not mandatory e.g. s.5,
15, 15A IAA
FUNDAMENTAL CONCEPTS OF ARBITRATION LAW
(1) Autonomy and consent (arbitration agreement/clause):

• Consent is necessary – [There can be no arbitration is the parties do no agree to go to
arbitration.]
o Form of agreement – This can be through a full written agreement (e.g. contract), but
usually found as a clause in a contract or other agreement
• Party autonomy in deciding – [The parties’ choice reflected in their agreement is the
overarching principle in deciding any matter which touches upon the parties arbitration.]
o (ABC v XYZ [2003] SGHC):
§ [The principle of party autonomy is one that is central to the Model Law, and
it is a principle that must be respected by the courts whenever they have
cause to deal with any issues arising in relation to an international arbitration]
§ [The attitude to be adopted by the courts is:]
• (1) Look to the Model Law for an indication as to how the issue is to
be treated; and
• (2) In the absence of such indication, apply the applicable principles
of the general law in the manner best suited to uphold the parties'
choice of arbitration as the appropriate method of dispute resolution.
o In almost everything, the parties’ choices are given precedence (unless unlawful):
§ E.g. Art 34(2)(a)(iv) IV Model Law: arbitral award may be set aside if arbitral
procedure was not in accordance with the agreement of the parties
• Autonomy from court process –
o (ABC v XYZ [2003] SGHC):
§ The choice of arbitration rules to be adopted by parties is the clear expression
of their autonomy from the strictures of court process.
§ In court, the only relevant court rules mandated by law apply – the parties
have no choice and autonomy.
(2) Separability:
• [It is a fundamental concept of arbitration that the arbitration agreement/clause stands alone
and is separate and independent from the underlying transaction/contract that governs the
substantive relationship between the parties. The arbitral tribunal may rule of its own
jurisdiction, including any objections to the existence or validity of the arbitration agreement
(see s 21 AA; Art 16(1) MAL annexed to the IAA).]
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o [a] Impugned:
§ [Therefore, even where the contract is impugned, the arbitration agreement
can stand as valid.]
§ Main practical advantage of this is that it constitutes a serious bar, for a party
who desires delay or wishes to repudiate his arbitration agreement, to subvert
the arbitration clause by questioning the existence or validity of the
arbitration agreement by questioning the validity of the main contract
(Redfern and Hunter on INTL Arbitration).
o [b] Illegality:
§ [Also, illegality does not necessarily render the arbitration agreement void. A
dispute over illegality of the contract can still go to arbitration (Harbor
Assurance v Kansa General INTL [1993] ENG CA).]
o [c] Frustration / repudiatory breach:
§ [The arbitration clause may apply even if one party alleges that the contract
has been frustration or there has been a repudiatory breach and the other party
had accepted (Heyman and another v Darwins [1942] HL) if]:
§ Requirements:
• [1] arbitration clause provides without qualification that any
difference or dispute which may arise ‘in respect of’ or ‘with regard
to’ or ‘under the contract’ shall be referred to arbitration; and
• [2] the parties are in agreement that they entered into a binding
contract
§ If they are not, then the arbitration clause may not apply
• The arbitration clause will apply even if the dispute involves an
assertion by one party that circumstances have arisen, whether before
or after the contract has been partly performed, which have the effect
of discharging one or both parties from all subsequent liability under
the contract, such as repudiation of the contract by one party
accepted by the other, or frustration of the contract
[3] Kompetenz-Kompetenz
• [It is a fundamental principle of arbitration that the arbitral tribunal is competent to decide on
its own competence (see s 21 AA; Art 16(1) MAL annexed to the IAA, and this has been
accepted and fully recognised in Singapore (see Aloe Vera of America v Asianic Food)]:
o This rule is based on pragmatism, and ensures the primacy of arbitration against
attempts to subject the dispute to the jurisdiction of the court by allegations that the
tribunal has no jurisdiction.
o The object is to ensure that the arbitral process is not subverted by a disputing’s
party’s reliance on traditional approaches to legal interpretation (which is that a
tribunal should not be the arbiter of its own competence).
• (Doshion v Sembawang Engineers SGHC):
o HELD: The dispute fell within the arbitration clause, even if it is a dispute about
whether there was a dispute – the matter is for the arbitrator.
o In construing the scope of the arbitration clause, the purpose of the arbitration clause
was vital – court starts from assumption that parties as rational businessmen, were
likely to have intended any dispute arising out of the relationship into which they
entered or purported to enter to be decided by the same tribunal
o The dispute therefore arises out of the relationship which the parties entered into and
came within the jurisdiction of the arbitration tribunal.
o Unless the arbitration clause clearly stated otherwise, the determination of the matter
should be settled by the tribunal, which Art 16 MAL provides.
• This is accepted in Singapore:
o (Aloe Vera v Asianic Food [2006] SGHC):
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§ Arbitral tribunal has power to rule on its own competence and to continue
with the arbitration if it considers itself competent to do so (S.21(1) AA).
§ The arbitral tribunal may rule on its own jurisdiction, including a plea that it
has no jurisdiction and any objections to the existence or validity of the
arbitration agreement, at any stage of the arbitral proceedings.
o (Art 16(1) Model Law): The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause which forms part of a contract shall
be treated as an agreement independent of the other terms of the contract. A decision
by the arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause
Review of jurisdiction (IAA):

• If tribunal rules that:
o (a) on a plea as a preliminary question that it has jurisdiction; or
o (b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction,
• Within 30 days, any party may appeal the arbitral tribunal’s decision on jurisdiction to the
High Court under s 10(3) IAA.
• Standard of review: Sanum Investments v Laos (SGCA)
o HC to conduct review de novo
§ No deference to be accorded to the tribunal’s findings
§ Matter should be considered afresh
• What the tribunal has said may well be persuasive, but court not
bound to accept
• Does not mean that what happened before the tribunal should be
disregarded, necessitating a full re-hearing of all the evidence, but the
court unfettered by any principle limiting its fact-finding abilities
Review of jurisdiction (AA):

• If tribunal rules that:
o (a) on a plea as a preliminary question that it has jurisdiction; or
o (b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction,
• Within 30 days, any party may appeal the arbitral tribunal’s decision on jurisdiction to the
High Court under s 21(9) IAA.
• Standard of review: Sanum Investments v Laos (SGCA)
o HC to conduct review de novo
§ No deference to be accorded to the tribunal’s findings
§ Matter should be considered afresh
• What the tribunal has said may well be persuasive, but court not
bound to accept
• Does not mean that what happened before the tribunal should be
disregarded, necessitating a full re-hearing of all the evidence, but the
court unfettered by any principle limiting its fact-finding abilities.
(4) Arbitration law or lex arbitri;

• The lex arbitri refers to the "law of the place where arbitration is to take place" in the conflict
of laws.
• It is “a body of rules which sets a standard external to the arbitration agreement, and the
wishes of the parties, for the conduct of the arbitration (Smith Ltd v H&S International):
o The law governing the arbitration comprises :
§ The rules governing interim measures (e.g. court orders for the preservation
or storage of goods);
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§ The rules empowering the exercise by the court of supportive measures to

assist an arbitration which has run into difficulties (e.g. filing a vacancy in
the composition of the arbitral tribunal if there is no other mechanism); and
§ The rules providing for the exercise by the court of its supervisory
jurisdiction over arbitrations (e.g. removing an arbitrator for misconduct).
• It has a substantive component – it determines whether a valid arbitration has arisen
(Sulamerica CIA Nacional v Enesa Engenharia):
o Under Brazilian law, asserted that the party against whom arbitration is initiated must
consent to the initiation of arbitration.
o Under English law, there is no such requirement and an arbitration agreement can be
enforced against an unwilling party if that agreement is valid.
o If Brazilian law had been deemed to be the proper law of the arbitration agreement
then the London arbitration could not have continued.
(5) Confidentiality
• [The IAA/AA does not expressly provide that arbitrations are confidential.]
• [However, it is generally accepted locally and internationally that arbitrations are confidential
(Mynama Yaung Chi Oo Co v Win Win Nu, applied in International Coal v Kristle Trading
and AZT v AZV). This arises from the private nature of arbitration (Myanma Yaung Case)]
• [The Singapore courts also prefer the English position of confidentiality over that of the
Australian position of no confidentiality (Myanma Yaung Case; c.f. Esso Australia Resources
Ltd). This is as parties who opt for arbitration rather than litigation are likely aware and
influenced by the fact that there are private hearings as opposed to open hearings in
litigation.]
• Implied obligation even if not expressed.
o [Therefore as a default position, confidentiality is an implied obligation on parties
even if not expressly provided for (International Coal Pte Ltd v Kristle Trading Ltd;
AAY v AAZ)]
o The obligation is a doctrine of confidentiality developed through the common law in
England and Singapore.
• Scope:
o [Generally, the duty of confidentiality extends to any document produced for and
used, or disclosed in arbitration, or transcripts or notes of evidence in the arbitration
or award (Myanma Yaung Chi Oo Co v Win Win Nu), but each case should be
evaluated in the context of the circumstances (International Coal v Kristle Trading).]
o [A distinction must be drawn between the different types of confidentiality attaching
to different types of documents (Hassneh Insurance Co of Israel v Steuart Met cited
in Kristle Trading).]
o [Arbitration awards are to be treated differently from materials used or disclosed in
the course of arbitration proceedings (Kristle Trading).]
Exemptions of confidentiality:
• [1] Consent by other party:
o [If the other party consents, disclosure can occur (Myanma Yaung Chi Oo Co v Win
Win Nu).]
o [a] By express consent: e.g. parties waiving their right;
o [b] By implied consent: e.g. parties disclosing information in court proceedings
• [2] Court gives leave:
o [Where the court gives leave, disclosure can occur (Myanma Yaung Chi Oo Co v Win
Win Nu).]
• [3] Where reasonably necessary:
o [One exception to disclosure is when it is reasonably necessary to do so, and is
founded on an implied agreement that the duty to confidentiality can be lifted when it
is reasonably necessary to do so (Myanma Yaung Chi Oo Co v Win Win Nu)]
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§ e.g. where disclosure is reasonably necessary to establish or protect a party’s

legal rights as against a 3P by founding a cause of action or a defense to a
claim.
o [Where this exception applies, leave of court is not necessary before disclosure can be
made – as the exception is founded on an implied agreement between the parties.
However, the party seeking disclosure can apply to court to expunge the disclosure,
and the court will determine if it is necessary to make such an order.]
o [The exception applies not just to awards, but also to materials such as pleadings,
written submissions, witnesses statements, disclosure, transcripts, notices of evidence
used in arbitration process leading up to the award.]
• [4] In the interests of justice:
o [Where it is in the interests of justice to disclose, disclosure can occur (Myanma
Yaung Chi Oo Co v Win Win Nu).]
• [5] Requirement of public interest:
o [Disclosure can occur where it is required in the public’s interest (AAY v AAZ).]
o Disclosure of confidential information arising out of arbitration to the relevant
authorities where there is a reasonable suspicion of criminal conduct falls under the
public interest exception to the obligation of confidentiality – burden is on the other
side to show it does not apply
o BUT disclosure of confidential information to the public at large on the grounds of
public interest falls under the public interest defense – burden is on the party alleging
this defense to prove it t avoid a finding of breach of confidentiality
• [6] Information enters the public domain:
o [Disclosure can occur once the information enters the public domain.]
o [An arbitration award is no longer confidential once it is registered as a Singapore
judgment because it has entered the public domain. Thus, no privacy can attach to the
enforcement proceedings attendant on the judgment (International Coal v Kristle
Trading)]
• [7] SIAC exceptions (where SIAC rules apply):
o SIAC Rules 2016, Rule 39: Unless otherwise agreed by the parties, a party or any
arbitrator, including any Emergency Arbitrator, and any person appointed by the
Tribunal, including any administrative secretary and any expert, shall not, without the
prior written consent of the parties, disclose to a third party any such matter except:
§ a. for the purpose of making an application to any competent court of any
State to enforce or challenge the Award;
§ b. pursuant to the order of or a subpoena issued by a court of competent
jurisdiction;
§ c. for the purpose of pursuing or enforcing a legal right or claim;
§ d. in compliance with the provisions of the laws of any State which are
binding on the party making the disclosure or the request or requirement of
any regulatory body or other authority;
• c.f. International Coal v Kristle Trading
§ e. pursuant to an order by the Tribunal on application by a party with proper
notice to the other parties; or
§ f. for the purpose of any application under Rule 7 (Joinder) or Rule 8
(Consolidation)
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INTERNATIONAL OR DOMESTIC?
[0] Preliminary notes:

• [a] Exclusionary definition: If it is not international, then it will be domestic.
• [b] Parties can opt out of the IAA even if it prima facie applies to them:
o The AA will apply if the parties have expressly agreed that either:
§ [i] The MAL or Part II IAA is not to apply; or
§ [ii] That the AA shall apply.
[1] Is it international?
• [As the definition of domestic arbitration is derived by exclusion from the IAA. It is
instructive to first look to the IAA.]
• [An arbitration is international if, (s 5(2) IAA) …]:
o (a) [One party has place of business outside SG] at least one of the parties to an
arbitration agreement, at the time of the conclusion of the agreement, has its place
of business in any State other than Singapore; or
§ Thus, the IAA will apply as long as one party is foreign.
o (b)(i) [Place of arbitration outside SG] the place of arbitration if determined in, or
pursuant to, the arbitration agreement is situated outside the State in which the
parties have their places of business; or
o (b)(ii) [Obligations or place of subject matter outside SG] any place where a
substantial part of the obligations of the commercial relationship is to be
performed or the place with which the subject-matter of the dispute is most
closely connected is situated outside the State in which the parties have their
places of business; or
o (c) [Agreement subject matter related to more than 1 country] the parties have
expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country.
• “Place of business”: [Place of business means … ]:
o [a] If more than one place of business: The place of business is the one which has
the closest relationship to the arbitration agreement (s 5(3)(a) IAA).
§ “Place of business’ – The place of business is usually the place of substantial
performance, which is where a party’s main obligations are carried out
(Mitsui Engineering & Shipbuilding Co Ltd v PSA Corp Lord and Anor).
o [b] If no place of business: The place of business is his habitual residence (s 5(3)(b)
IAA).
[2] If IAA, did the parties opt out?

• Opt out:
o [The parties can opt out of the IAA even if it prima facie applies to them, by express
agreement by the parties to do so (s 15 IAA).]
o [Here the parties have/have not expressly agreed that…:]
§ [a] the MAL or Part II IAA is not to apply; or
§ [b] the AA shall apply.
o Express agreement: The agreement must be express and the mere adoption of the
rules of an arbitral institution is NOT sufficient to opt out of the MAL or IAA (s 15(2)
IAA and Dermajaya v Premium Properties).
§ HELD: UNCITRAL rules adopted by parties only effective to fill gaps in the
MAL and the IAA.
• If opted out:
o [If the parties have opted out of the IAA, the AA will apply by default]
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o If parties do not want either IAA or AA, but instead their own rules to apply, they
should not choose SG as the seat of arbitration, although they can choose SG as the
venue for the hearing (Dermajaya v Premiium Properties).
[3] Is it domestic?:
• [An arbitration is domestic if the arbitration is seated in Singapore and the IAA does not apply
(s 3 AA).]
o The AA applies to any arbitration (s 3 AA):
§ [a] That is seated in Singapore; and
§ [b] Where Part II IAA does not apply to that arbitration.
• Juridical Seat: [The juridical seat is the ‘place of arbitration’ the arbitration is tied to, which
basically refers to the domicile or nationality of the arbitration. It determines the system of
law (curial law) that would govern the contract of the arbitration. It is not merely the place of
the hearing.]
o While the seat of the arbitration may also be the place of the hearing, the fact that a
hearing is held ar a particular venue does not of itself make that the place or seat of
the arbitration.
[4] Opting in?

• The parties can opt into the IAA (s 5(1) IAA), in which case the IAA will apply.
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ARBITRATION AGREEMENT
[A] SEAT AND LEX ARBITRI

[1] The seat and lex arbitri:
The seat of arbitration

• Definition: [The seat of the arbitration will determine the law which governs the arbitration,
which will be the law governing the procedural aspect of the arbitration (e.g. interim
measures, court interventions, other procedural matters).]
o (PT Gaurda v Birgen Air):
§ FACTS: “The parties agree that such arbitration shall be held in Jakarta,
Indonesia and conducted in the English language…” .... “The place of
arbitration is Jakarta, Indonesia”.
• All hearings later took place in Singapore with consent
§ HELD: seat of arbitration is Jakarta. Singapore was merely the venue.
• Determining the seat:
o First port of call is always look for parties agreement
o Arbitration Rules (e.g. ICC, SIAC) should provide mechanism where parties have not
made an express choice
o If the Tribunal or the Arbitral institution does not define the place of the arbitration,
the Court (hearing setting aside or enforcement) will have to decide:
§ (CLOUT case 408):
• If no particular place can be determined, then it is the last place of
hearing
§ (Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics):
• FACTS: the parties had agreed that arbitration was to be ‘held in
Hong Kong’, but that ‘English law [was] to be applied’.
o One party later applied to English court to set aside award
• HELD: Hong Kong was the seat
• Although parties are at liberty to choose the procedural law to govern
an arbitration, it is relatively infrequent that they do so expressly;
o Parties normally chose the procedural law indirectly through
their selection of the seat of arbitration
• If a contractual term refers to a governing law, it is most likely that
the parties intend this law to govern the substance of their underlying
legal relationship, rather than the procedure of their agreed dispute-
resolution mechanism.
• Thus, the choice of English law identified the substantive law
governing the parties’ contract, not the procedural law governing the
arbitration
§ Cf. (Woh Hup v Property Development):
• Facts: arbitration clause was silent on the seat.
• Sri Lankan Coy, Singapore Coy
• Proper law of the underlying contract was Singapore law
• Held: seat in Singapore
• practical and convenient, and therefore sensible to hold the
arbitration in Singapore without having to prove Singapore law
• architect was also resident in Singapore and arbitration could only
arise after the disputes and differences had first been referred to the
architect
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Lex arbitri (Curial law)

• Definition: [The lex arbitri is a body of rules which sets s standard external to the arbitration
agreement, and the wishes of the parties, for the conduct of the arbitration (Smith (Paul) Ltd v
H & S International).]
• The lex arbitri comprises (Smith (Paul) Ltd v H & S International):
o [1] Rules governing the interim measures (e.g. Court orders for the preservation of
storange of goods);
o [2] Rules governing empowering the exercise by the Court of supportive measures to
assit an arbitration, which has run into difficulties (e.g. filing a vacancy in the
composition of the arbitral tribunal if there is no other mechanism); and
o [3] Rules providing for the exercise by the Court of its supervisory jurisdiction over
arbitration (e.g. removing an arbitrator for misconduct).
• It regulates:
o [1] Matters internal to the arbitration, such as the composition and appointment of the
tribunal, requirements for the arbitral procedure and due process, and formal
requirements for an award;
§ Nb: this is typically supplanted by the choice of a specific set of arbitration
rules such as the SIAC or ICC rules
o [2] The external relationship between the arbitration and the courts, whose powers
may be both supportive and supervisory, such as the grant of interim relief, procuring
evidence from third parties and securing the attendance of witnesses, the removal of
arbitrators and the setting aside of awards; and
o [3] The broader external relationship between arbitrations and the public policies of
that place, which includes matters such as arbitrability and possibly also – more
controversially – the impact on arbitration of social, religious and other fundamental
values in each State
§ Nb: in SG, public policy here is limited only to natural justice and not
political aims of the State.
• It does not govern:
o [1] The substantive dispute; or
o [2] Rules of procedure which the parties may have chosen to conduct their arbitration.
• Determining the lex arbitri (Firstlink Investments v GT Payment Pte Ltd):
o Where Singapore is selected as the seat of the arbitration:
§ Either the AA or the IAA will automatically apply to that arbitration (PT
Garuda v Birgin Air).
o Where parties make a choice on seat, and the curial law flows automatically from it:
§ (Peruvian Insurance Case):
• HELD: the link between the lex arbitri and the seat of arbitration is a
two-way street:
o [a] if parties choose state X as the seat of arbitration, the law
of state X is the law governing the arbitration procedure;
o [b] by the same token, if parties choose the procedural law of
state X as the lex arbitri, state X is impliedly chosen as the
seat
o Where parties have expressly indicated the law governing the main contract
§ “This Agreement is governed by and interpreted under the laws of
Arbitration Institute of the ABC”
§ The specific reference of disputes to the ABC in the present case, in the
absence of any express clause prescribing a different place in which the
arbitration proceedings will be conducted, evinces an objective intention to
elect the lex arbitri of Sweden as the curial law applicable to the arbitration
§ In the absence of factors pointing to the contrary, it follows naturally that
parties have selected ABC as the seat of arbitration
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§ In addition, there are no contrary indications in the main contract to show that
parties intend to have some law other than the law of
§ ABC governs the arbitration agreement
o Where there is no seat specifically defined, then look to governing law Singapore?
§ Chicken and egg question – whether the IAA should apply if Singapore is not
the seat of arbitration even based on the objective intention of the parties –
then how does the Court stay the proceedings in that case?
The law of the arbitration agreement

• It governs issues such as formation of the arbitration agreement
o i.e. whether entered, when entered, whether dispute can be referred to arbitration
• Three step test (Sulamerica v Enesa Engenharia, adopted in BCY v BCZ):
o [1] What is the parties’ express choice?
§ See facts.
o [2] If none, what were the parties’ implied choice?
§ [a] Was the arbitration agreement part of the substantive contract?
§ [b] If so, there is a rebuttable presumption that the law of the contract was the
same as the law of the arbitration agreement (see BCY below).
§ [c] Rebuttable presumption may be rebutted:
• e.g. Where clause allows one party the option to refuse to proceed to
arbitration – it undermined the clear words of the agreement, which
clearly allowed either party to refer any dispute to arbitration.
o [3] The system of law with which the arbitration agreement has the closest and most
real connection:
§ The country which was expressly chosen as the seat?
§ Governing law of the contract?
• (BCY v BCZ):
o In the absence of any indication to the contrary, parties were assumed to have
intended the whole of their relationship to be governed by the same system of
law. This meant that in the absence of an express choice of law for the arbitration
agreement, the natural inference was that the proper law of the main contract should
also govern the arbitration agreement. This presumption was supported by the weight
of authority and was, in any event, preferable as a matter of principle: at [43] and
[49].
• NB: Not followed (FirstLink Investiemnts Corp v GT Payment Pte Ltd):
o Parties indicated the law governing the main contract:
§ “This Agreement is governed by and interpreted under the laws of
Arbitration Institute of the Stockholm Chamber of Commerce”
§ The specific reference of disputes to the SCC in the present case, in the
absence of any express clause prescribing a different place in which the
arbitration proceedings will be conducted, evinces an objective intention to
elect the lex arbitri of Sweden as the curial law applicable to the arbitration
§ In the absence of factors pointing to the contrary, it follows naturally that
parties have selected Sweden as the seat of arbitration
§ In addition, there are no contrary indications in the main contract to show that
parties intend to have some law other than the law of Sweden govern the
arbitration agreement
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[B] ARBITRATION AGREEMENT

• Definition: [First, there must be an arbitration agreement, which is an agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual or not (Art 2A(1)
IAA, s.4 AA, Art 7(1) Model Law).]
• Form:
o It may be in the form of an arbitration clause in a contract or in the form of a separate
agreement (s 4(2) AA, s 2A(2) IAA, Art 7(1) MAL).
• 3 Requirements (s 4 AA, s 2A IAA, Art 7 MAL):
o [1] It must be in writing;
§ An arbitration agreement is in writing if its content is recorded in any form,
whether or not the arbitration agreement or contract has been concluded
orally, by conduct or by other means (s 4(4) AA).
§ The requirement that an arbitration agreement shall be in writing is satisfied
by an electronic communication if the information contained therein is
accessible so as to be useable for subsequent reference (s 4(5) AA).
o [2] It must refer to all present or future disputes to arbitration;
o [3] It must be signed by the parties
• Beyond the above:
o The parties are free to agree, and can draft their own customized clauses to govern the
disputes.
Interpretation of arbitration agreement
Step 1: Singapore’s approach to interpretation:

• Expansive/liberal approach:
o [The modern approach is that the courts take an expansive or liberal approach
favouring arbitration (Lucky-Goldstar (HK) v Ng Mook Kee Engineering), as the
policy behind arbitration legislation is to promote the resolution of disputes where
parties have agreed to do so by this method (WSG Nimbus v Board of Control for
Cricket [2002] SGHC).]
• Must point to parties desire for arbitration:
o [The key consideration is that it must clearly point to the parties desire to use
arbitration as a dispute mechanism, even if other aspects are unclear or uncertain.]
• Where clause allows for election (elect/non-mandatory):
o [The issue is whether a unilateral option to litigate invalidates the arbitration
agreement. As stated, the courts adopt a general approach to this. In WSG Nimbus v
Ng Moo Kee, the court held that an arbitration agreement is valid as long as the
parties had the option to elect for arbitration which, if made, binds the other parties to
submit to arbitration.]
§ This applies even if it the contract lacks mutuality, and provides a unilateral
option to litigate (see Dyna-jet below).
o (WSG Nimbus v Board of Control for Cricket [2002] SGHC):
§ FACTS: “ … In the event that the parties have a dispute over any term or
otherwise relating to this Agreement they shall use their best endeavours to
resolve it through good faith negotiations. In the event that they fail to do so
after 14 days then either party may elect to submit such matter to
arbitration in Singapore …”
• D argued that “may elect” conferred on the parties a discretion to
arbitrate or litigate and therefore did not have to proceed by
arbitration.
§ HELD: Binding
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• The clause must be read as a whole, and the clause clearly

contemplates litigation.
• The agreement provided that parties were to first negotiate, and if
this was unsuccessful, a right was given to either party to elect to
submit the dispute to arbitration. Upon such election, both parties
were bound to submit the dispute to arbitration. Hence, once a party
made an election, arbitration was mandatory
• There was no express mention of any election to resolve the dispute
by court action or that once any party takes out an action in court, the
other party is precluded from electing to submit the dispute to
arbitration
o It is the right of a party to a contractual dispute to commence
an action in a court of competent jurisdiction for the
determination of his claims.
o But this is subject to any agreement that the parties shall
resolve such disputes by way of arbitration
o (Dyna-Jet v Wilson):
§ FACTS: Any claim or dispute or breach of terms of the Contract shall be
settled amicably between the parties by mutual consultation. If no amicable
settlement is reached through discussions, at the election of Dyna-Jet, the
dispute may be referred to and personally settled by means of arbitration
proceedings, which will be conducted under English Law; and held in
Singapore.
§ HELD: The dispute-resolution agreement was an “arbitration agreement”
because it created a contractual obligation to arbitrate, even though:
• (a) it did not create an unconditional obligation to arbitrate disputes;
and
• (b) only the plaintiff enjoyed the right to oblige the defendant to
arbitrate a dispute.
• An agreement to arbitrate disputes was an “arbitration
agreement” even if arbitration was conditional and even if the
agreement lacked mutuality: at [57], [61(a)] and [61(b)].
§ The dispute-resolution agreement was an “arbitration agreement” from
the moment the parties entered into it contractually.
• If the plaintiff elected to arbitrate a specific dispute, a specific
arbitration agreement arose for that dispute.
• But the dispute-resolution agreement was nevertheless from the
outset an “arbitration agreement” and continued into the future to be
one which the plaintiff could invoke by election in relation to other
disputes.
§ If the plaintiff declined to elect to arbitrate a specific dispute, it was
contractually free to resolve the dispute through litigation.
• The defendant had no contractual right to reject or avoid the
consequences of the plaintiff’s election.
• But once the plaintiff had elected not to arbitrate, its right of
election to arbitrate that dispute would be spent or extinguished and
could no longer be exercised: at [134] and [136].
Step 2: Limits (pathological clauses)

• Broad interpretation approach: [above]
• Limits to expansive/liberal approach:
o [However, there are limits to the expansive approach to interpretation, and ambiguous
clauses may not be upheld (Teck Guan v Beow Guan Enterprises [2003] SGHC).]
• Ascertain the extend of the pathology:
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o [Nonetheless, the nature and the extent of the pathology may be ascertained by
assessing the pathological clause in terms of its deviation from the essential elements
of an arbitration clause, namely to (HKL Group Co Ltd v Rizq International Holdings
Pte Ltd):]
§ [1] product mandatory consequences for the parties;
§ [2] exclude the intervention of state courts in the settlement of the disputes, at
least before the issuance of the award;
§ [3] give powers to the arbitrators to resolve the disputes likely to arise
between the parties; and
§ [4] permit the putting in place a procedure leading under the best conditions
of efficiency and rapidly to the rendering of an award that is susceptible of
juridical enforcement.
Step 3: Find examples

• No arbitration clause (Teck Guan v Beow Guan Enterprises):
o à [Non-existent arbitration entity]
o [In Teck Guan, the court held that there was no arbitration clause as there was no
clear reference made to arbitration – the clause made reference to the rules of the
“Cocoa Merchants’ Association’ which the court found to be insufficiently specific,
particularly since it concerns only with disputes between their own members which
none of the parties were.]
o FACTS: TG sued BG for non-delivery of goods. BG applied for a stay on a clause in
contract which stated:
§ “Any quality dispute would be settle [sic] amicably with reference to an
independent surveyor. However, any dispute out of this contract to be
governed by the rules of the Cocoa Merchants’ Association of America Inc …
in force on that date”
o HELD: There was no arbitration agreement.
§ The clause did not make clear that the parties had agreed to resolve disputes
by arbitration.
§ While the clause referred to the rules of CMAA, both parties were not
members of the CMAA.
• Further, since the rules of CMAA did not require non-members to
have their disputes settled by arbitration, the question of
incorporation by reference to an arbitration clause in another
document did not arise.
• Even then. General words will not suffice in the absence of a clear
intention held by the parties to incorporate the arbitration clause.
• Yes Arbitration clause (Lucky-Goldstar (HK) Ltd v Ng Mook Kee Engineering):
o à [Shall be arbitrated in the “third country”]
o FACTS: Clause read: “Any dispute or difference arising out of this contract shall be
arbitrated in a 3rd Country, under the rule of a 3rd Country and in accordance with
the rules of procedure of the International Commercial Arbitration Association.”
o The plaintiff argued that the arbitration agreement should be considered null since it
referred by mistake to an unspecified third country, or inoperative since it referred to
a non-existent organization and non-existent rules under Art 8 Model Law.
o HELD: The reference to an unspecified third country, to a non-existent
organization and non-existent rules did not render the arbitration agreement
inoperative or incapable of being performed since arbitration could be held in any
country other than the countries where the parties had their places of business and
under the law of the place of arbitration, which could be chosen by the plaintiff.
Neither party deposed to intending any specific alternate arbitral institution).
o Enforceable as:
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§ [a] Parties had clearly expressed intention to arbitrate any dispute arising
under the contract;
§ [b] They have chosen the law of the place of arbitration to govern the
arbitration even though that place has not yet been chosen by the plaintiffs;
§ [c] Since no effect could be given to the non-existent arbitration institution
and rules, it is simply to be disregarded.
• Yes Arbitration clause (Shagang South-Asia v Daewoo Logistics):
o à [Seat not chosen]
o FACTS: the parties had agreed that arbitration was to be ‘held in Hong Kong’, but
that ‘English law [was] to be applied’.
§ One party applied to English Court to set aside
§ Other party resisted on the grounds that England was not the seat
o HELD: HK was the seat
§ Although parties are at liberty to choose the procedural law to govern an
arbitration, it is relatively infrequent that they do so expressly;
• Parties normally chose the procedural law indirectly through their
selection of the seat of arbitration
§ If a contractual term refers to a governing law, it is most likely that the
parties intend this law to govern the substance of their underlying legal
relationship, rather than the procedure of their agreed dispute-resolution
mechanism.
§ Thus, the choice of English law identified the substantive law governing the
parties’ contract, not the lex arbitri.
• Yes Arbitration clause (HKL Group Co Ltd v Rizq International Holdings Pte Ltd):]
o à [Non-existent arbitral committee]
o FACTS: Reference made to non-existent Arbitral Committee at Singapore.
o HELD: Court found that the arbitration clause is operative and workable for the
following reasons.
§ First, it clearly evinces the intention of the parties to resolve any dispute by
arbitration.
§ Second, it provides for mandatory consequences in that if a dispute arises, the
matter has to be referred to arbitration.
§ Third, it states the place of the arbitration, namely, Singapore.
§ Fourth, it provides that the arbitration is to be governed by a particular set of
rules, namely, the ICC rules.
• Yes Arbitration clause (KVC Rice Intertrade v Asian Mineral Resources):
o à [Seat not mentioned – bare arbitration clause]
o FACTS: Provided for mandatory arbitration, but referred to non-existent arbitration
rules (“Singapore Contract Rules” and “Indian Contract Rules”) – no seat was
provided.
o HELD: Biding. The SGHC held that the failure to provide for the seat of the
arbitration, the number of arbitrators or the method for establishing the arbitral
tribunal remains a valid and binding arbitration agreement if the parties have
evinced a clear intention to settle any dispute by arbitration.
• Yes Arbitration clause (Woh Hup v Property Development):
o à [Seat not mentioned – silent on seat]
o FACTS: Arbitration clause was silent on the seat – Sri Lankan and Singapore
company. Proper law of contract was Singapore law.
o HELD: Seated in Singapore.
§ It was practical and convenient, and therefore sensible to hold the arbitration
in Singapore without having to prove Singapore law.
§ The architect was also resident in Singapore and arbitration could only arise
after the disputes and differences had first been referred to the architect.
• (Insigma Technology v Alstom Technology):
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o à [Ambiguous]
o FACTS: Arbitration clause stated that all disputes shall be finally resolved by
arbitration before the SIAC in accordance with the rules of arbitration of the ICC
o Test: Whether the parties had evinced a clear intention to setlle any dispute by
arbitration.
o HELD: Where parties had evinced a clear intention to settle any dispute by
arbitration, effect should be given to such intention, even if certain aspects of the
agreement might be ambiguous, inconsistent, incomplete or lacking in certain
particulars
§ An arbitration agreement should not be interpreted restrictively or strictly; it
is not a statute.
§ A commercially logical and sensible construction must be preferred over
another that was commercially illogical.
Incorporation by reference:
• Introduction:
o [An arbitration may also be incorporated by reference (s 4(7) AA; s 2A(7) IAA). This
involves a question of construction of the language of the agreement – there must be
a clear intention to do so (Concordia Agritrading Pte Ltd) ]
o Must therefore interpret the contract having regard to the context and the objective
circumstances attending the entry into the contract (Zurich Insurance).
• Narrow interpretation:
o [The courts will interpret such clauses narrowly and strictly (Concordia) and as
Halsbury Laws of Singapore states, “an arbitration clause in a contract is considered a
separate and independent agreement, and therefore, words of its incorporation must
be specific (Vol 2, paragraph 20.015)]
§ However, the court in International Research v Lufthansa moved away from
the strict view that distinct and specific words were required.
o [Generally, the courts avoid interpretations which would defeat what it views as the
parties objective intent to refer the dispute to arbitration (see e.g. Lucky-Goldstar).]
• Others:
o The arbitration clause is still and independent and self contained contract and should
not be regarded as merely another term in the main contract which can be
incorporated by reference to the main contract.
• (Concordia Agritrading Pte Ltd):
o FACTS: Clause in agreement referring to Warehouse conditions (which refer
disputes to arbitration): “the liability of [the defendant] to [the plaintiff] in respect of
any claims for loss or damage to or expenses arising from the Commodities or in
respect of the Warehouse Management Operations shall be subjected to [the
defendant's] Warehousing and Forwarding Conditions [("the warehousing
conditions")] to the extent not specified by this Agreement”
o HELD: No incorporation as there was no clear intention to do so.
o The correct construction of cl 8.3 of the Agreement would be that it would only be
the "liability" to the "extent not specified by Agreement" that would be "subjected to"
the warehousing conditions and "liability" would not include the method of
adjudication or settlement of disputes
• (Star-Trans Far East v Norske-Tech):
o FACTS: Words of incorporation were “all rights of Norske-Tech may be exercised
by Pt Riau”
o HELD: The Court held that general incorporating words had to be construed
restrictively to incorporate only conditions and exceptions as were appropriate to the
carriage and delivery of goods. Cannot extend to collateral contract, thus arbitration
clause in this case not incorporated.
o Performance guarantee was still a separate and distinct contractual undertaking.
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o A strict and restrictive approach towards incorporation was needed as a bill of lading
is a negotiable commercial instrument and may come into the hands of a foreign party
with no knowledge and no ready means of knowledge of the terms of the charter
party – 3 policy reasons:
§ (a) clear language is required to oust the jurisdiction of the courts;
§ (b) the statutory requirement for an arbitration agreement to be in writing
(see s 2 of the Act) was a clear
§ indication that a party was [not] to be regarded as relinquishing access to
the courts lightly;
§ (c) an arbitration clause is an independent and self-contained contract, and is
not to be regarded as merely
§ another term in the main contract which can be incorporated by reference to
that main contract. (nb: must refer to arb clause; insufficient to refer to main
contract)
• (Transocean Offshoe International Ventures v Burgandy Global Exploration Corp):
o FACTS: Under main agreement, condition precedent for parties to enter in to escrow
agreement. Escrow agreement had non-exclusive jurisdiction clause & waiver of
jurisdictional objection – akin to an exclusive jurisdiction clause .
o HELD: Where different but related agreements contained overlapping and
inconsistent dispute resolution clauses, the nature of the claim and the particular
agreement out of which the claim arose ought to be considered.
o Where an agreement which was subsequently terminated contained an arbitration
clause but a subsequent agreement did not, the arbitration clause in the former
agreement could apply nonetheless if the dispute had arisen out of or was reasonably
connected with the earlier agreement.
• (Astrata (Singapore) Pte Ltd v Portcullis Escrow):
o FACTS: Question on whether dispute between parties on an Escrow Agreement was
subject to arbitration, though not clearly and explicitly expressed to be so – based on
reference to an arbitration clause under another Supply Agreement.
o HELD: Non-exclusive jurisdiction clause widely drafted enough to cover any
dispute, whether bilateral or trilateral, arising out of the Escrow Agreement.
o Hence, the non-exclusive jurisdiction clause presumptively excluded other means of
dispute resolution in favour of the jurisdiction of the Singapore Courts – this effect
had not been displaced by any provision or words in the Escrow agreement – In fact,
choice of Singapore law as governing law supported this conclusion that dispute
resolution is via courts.
o Court refused to read in an intention to subject that dispute to the arbitration clause
under the Supply Agreement.
• (International Research Corp v Lufhansa Systems Asia Pacific):
o FACTS: The appellant was not a signatory (only signed supplementary agreement),
but it was argued that he was bound by the arbitration agreement contained in the co-
op agreement.
o HELD: No incorporation. Strict rule under s 2A(7) IAA that clear and express
reference to arbitration clause was required for incorporation, and the question of
incorporation is a matter of contractual interpretation.
o The Co-op Agreement had to be read with the supplementary agreement to
understand the appellant’s obligation payments, but appellant had undertaken no
obligation under that agreement.
o The obligations were limited to the supplemental agreements.
o Thus, appears that parties had not intended that the dispute resolution clauses in the
co-op agreement were to be incorporated as part of the supplemental agreements.
• 4(7) A reference in a contract to any document containing an arbitration clause shall
constitute an arbitration agreement in writing if the reference is such as to make that clause
part of the contract.
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• 4(8) A reference in a bill of lading to a charterparty or other document containing an

arbitration clause shall constitute an arbitration agreement in writing if the reference is such
as to make that clause part of the bill of lading.
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‘DISPUTE’
[A] WHAT IS A DISPUTE:

• Broad interpretation [Generally, the Singapore courts adopt a holistic and common sense
approach in determining whether there is a dispute (Uni-Navigation Pte Ltd v Wei Loong
Shipping Pte Ltd, cited in Kwan Im Tong Chinese Temple v Fong Choon Hung Construction
with approval), and the term ‘dispute’ is interpreted broadly (Tjong Very Sumito v Antig
Investments [2009] CA).]
o The court will NOT consider whether there is “in fact” a dispute or whether the
dispute is genuine, and it is sufficient for a defendant to simply assert that he disputes
or denies the claim in order to obtain a stay of proceedings in favour of arbitration.
o Only exceptionally, where there is a clear and unequivocal admission, for instance
where liability was admitted BUT there was simply an inability to pay, where the
court will not grant a stay.
• Readily find a dispute:
o [Therefore, the courts would readily find that a dispute existed unless the defendant
had unequivocally admitted that the claim was due and payable (Makassar Caraka
Jaya Niaga III-39).]
• There is still a dispute even if the defendant prevaricates, e.g. first making an admission
and then later purporting to deny the claim on the ground that the admission was mistaken,
fraudulently obtained or never made, there would still be a dispute over both the substantive
claim and whether the defendant can challenge the alleged earlier admission (Tjong Very
Sumito v Antig Investments applied in The Markassar, and Piallo v Yafriro).
o Only in a clear situation where the defendant unequivocally admits to the claim will
there not be a dispute (Multiplex Construction v Sintal Enterprise).
• Justification:
o The justification for this approach is that it is important to hold a party to his
agreement and avoid double and split hearing of matters... if the defendant, therefore,
makes out a prima facie case of disputes, the court should not embark on an
examination of the validity of the dispute as though it were an application for
summary judgment (Uni-Nagivation Pte Ltd v Wei Loong Shipping Pte Ltd).
• Misc:
o Even if a party could be said to have prevaricated in its alleged admission, the dispute
as to the admission and the substantive claims should all be referred to arbitration
(The Makassar Caraka Jaya Niaga).
[B] SCOPE OF THE ARBITRATION CLAUSE:

• Generous and broad approach: [The Singapore courts adopt a generous and broad approach
– the SGCA held that arbitration clauses should be generously construed such that all manner
of claims, whether common law or statutory, should be regarded/assumed as falling within
their scope unless there is good reason to conclude otherwise (Larsen Oil and Gas v
Petroprod (2011) affirmed in Rals International v Cassa di Parma (2016)).
• But not irrespective to context and plain meaning of words (Rals International v Cassa di
Parma (2016)).
o Where there are compelling reasons, commercial or otherwise, that may displace any
assumed intention of the parties, that claims are to fall within the scope of the
arbitration clause, the court should be slow to conduct the exercise of contractual
construction from that starting point.
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o Thus, “a good reason to conclude otherwise” can be shown if it meets with the
expectation of commercial parties in choosing arbitration and to give effect to their
contractual intent, objectively ascertained.
Cases:
• (Rals International v Cassa di Risiparmio di Parma e Piacenza SGCA):
o FACTS: Rals entered into a supply agreement with Oltremare, which contained an
arbitration agreement. Rals was to make certain instalment payments through
promissory notes. Rals duly drew the notes in favour of Oltremare, who later
assigned the notes to Cassa (the bank), together with the contractual right to receive
the sum due under the supply agreement.
§ Bank subsequently demanded payment from Rals pursuant to the notes, but
Rals failed to pay. Bank sued Rals.
o ISSUE: Were Bank’s claims under notes covered by the arbitration agreement?
o HELD: It was not enforceable.
o While arbitration agreements should be interpreted broadly, the presumption should
not be applied irrespective of the context to which the underlying agreement was
entered into, or the plain meaning of the words used.
§ Where there are compelling reasons (commercial or otherwise) that may
displace the assumed intention of the parties, the court should be slow to
conduct the exercise of contractual construction from that starting point.
o The fact that the respondent was relying on a separate cause of action granted to it by
the promissory notes which each constituted a separate contract independent of the
agreement, did not mean that the arbitration agreement was not in the picture.
§ Once the respondent had been determined to be claiming under or through
the arbitration agreement, the inquiry had to move on to the second stage –
whether the arbitration agreement on its true construction applied to the
promissory notes.
• If it were agreed that the promissory notes were not subject to the
arbitration agreement, the issue would be concluded in the bank’s
favour.
• The strict rule that clear and express reference to an arbitration clause
contained in one contract was required before a court would find the
clause incorporated in a separate contract continues to apply in the
context of negotiable instruments.
• The fact that the obligations under the notes were separate and
autonomous from the supply agreement supported a conclusion that a
claim under those notes would not be supported by the arbitration
agreement.
• There was no term in the arbitration or supply agreement that
expressly stated that the arbitration agreement was to encompass
disputes arising out of the notes, or be incorporated within.
o The notes were in practical terms intended to be equivalent as cash.
§ If the arbitration clause were to be extended to cover disputes under the
notes, it could undermine the effectiveness of the notes (for example, there
may be potentially less scope to obtain summary judgment orders on the
Notes in any arbitration as compared to in any proceedings before the courts).
• (Piallo GmbH v Yafriro International Pte Ltd SGHC):
o FACTS: Manufacturer and distributor entered into a distributorship agreement with
an arbitration clause. Manufacturer terminated on grounds of distributor’s breach,
which he denied.
§ Both parties compromised on terms which required the distributor to draw
and deliver 15 post-dated cheques to the manufacturer.
24
§ Before the cheques could be presented for payment, however, the distributor
countermanded them.
§ The manufacturer commenced action against the distributor on the
dishonoured cheques. The distributor applied to stay the action under s 6 of
the Act. At the same time, the distributor issued a notice of arbitration against
the manufacturer.
o HELD: Manufacturer’s action on the dishonoured cheques was indeed ‘in respect of
a matter which is the subject of the agreement’ to arbitrate.
§ Manufacturer’s claim on the cheques and distributor’s cross-claim for breach
on the agreement both arise out of the same incident (parties’ compromise
negotiations).
§ The claims and cross-claims were ‘so closely connected together on the facts
that an agreement to arbitrate on one can properly be construed as covering
the other given the sufficiently wide and general words’ in the arbitration
agreement.
§ Both parties completed payment by cheque, and if they intended a claim on a
dishonoured cheque to fall outside the scope of the arbitration agreement,
they would have provided expressly to that effect.
§ If manufacturer’s action on the cheques is not stayed, distributor is likely to
raise the defence and cross-claim for misrepresentation which are both
intricately tied up with the circumstances surrounding performance and
negotiations over the parties’ agreements.
• This would lead to multiplicity of proceedings.
• (HKL Group v Rizq International SGHC):
o FACTS: KHL argued that Rizq had made part payment on the sum claimed. Rizq
argued that it resisted payment on the basis that liabilities are back to back with the
result that unless it was paid in full by Samsung, it cannot pay the remained sum.
o HELD: Dispute was within meaning.
§ Rizq was not merely resisting payment of the remainder sum because it
cannot pay.
§ Instead, it was arguing on the basis of the nature of the contractual
relationship between the parties which it said was modified by the 24 April
letter.
§ It was not relevant to consider whether the letter had in actuality altered the
contractual relationship between the parties.
§ It was not relevant to consider whether Samsung did in fact pay Rizq to
trigger its obligation to pay HKL.
[C] IS THE DISPUTE ARBITRABLE?
Non arbitrable matters:
[1] Matters belonging exclusively within the purview of national courts

• Family cases e.g. divorce and matrimonial matters (Tomolugen v Silica Investors).
• Matters of status; citizenship, legitimacy of marriage
• Succession matters
• Bankruptcy and insolvency, avoidance claims (Tomolugen v Silica Investors)
• Criminal offenses and prosecutions (Tomolugen v Silica Investors)
• Contracts which are contrary to PP e.g. money laundering, corruption, bribery
• IP rights e.g. patents validity and trademarks
• Antitrust/competition law, consumer protection (although permissible in AUS)
• Environmental protection and planning
• Granting a judgment in rem in admiralty matters (Tomolugen v Silica Investors)
25
[2] Claims under Statutes

• Statutory claim is NOT non-arbitrable merely because it COULD be redressed or remedied
by statutory based relief only available to the courts
• Statutory claims MAY straddle the line between arbitrability and non arbitrability
depending on the facts of the case, the manner in which the claim was framed, and the
remedy or relief sought (cannot just focus on remedy as otherwise parties will tailor their
claims)
• Minority oppression:
o Minority oppression claim under s.216 CA one of the statutory claims that straddled
the line between arbitrability and non arbitrability
o There was nothing in the text of s 216 CA or its legislative history and statutory
purpose that suggested that a dispute was of a nature that would make it contrary to
public policy for it to be adjudicated by an arbitral tribunal. The essence of claim for
relief under s 216 lay in upholding the commercial agreement between shareholders
of the company – s 216 was to remedy differences which would arise as a
consequence of persons associating for an economic purpose through the corporate
form of a company – they should be entitled to resolve their differences through
arbitration.
o Where all shareholders bound by arbitration agreement or there are unique facts and
court is satisfied that all the relevant parties (including 3Ps whose interests may be
affected) are parties to the arbitration AND remedy/relief sought only affects the
parties to the arbitration, minority oppression claims under s.216 will be arbitrable
o Outside of this, unlikely that the claims will be arbitrable e.g. shareholders not
parties to arbitration, arbitral award will directly affect 3Ps or general public, some
claims fall within scope of arbitration agreement or some do note, overtones of
insolvency, remedy or relief sought is one that arbitral tribunal cannot make
• Another one is claim based on s.73 B CLPA which may involve co’s pre-insolvency state of
affairs and cos state of affairs under an insolvency regime à
o Disputes involving insolvent co that stem from pre insolvent rights may or may not
be arbitrable
o Whereas disputes arising upon onset of insolvency due to operation of insolvency
regime are non arbitrable per se
o In such cases not desirable to lay down general rule that all minority oppression
claims are non arbitrable
26
STAY OF PROCEEDINGS UNDER IAA
[0] Preliminary step: Application

• Introduction:
o [A party may apply by way of Oroginating Summons (O 5 r 3 ROC) to the national
court for a stay of proceedings where another party in contravention of an arbitration
agreement/clause initiates litigation instead of proceeding to arbitration]
• Burden of proof:
o [The applicant must show that there is a prima facie case in its favour, namely that
there is a valid arbitration clause that covers the dispute at hand, and that it is not null
and void, inoperative or incapable of being performed (Tomolugen Holdings Ltd v
Silicia Investors [2015] SGCA 57).]
§ (1) That there is a arbitration clause;
§ (2) That it is valid
§ (3) That it covers the dispute at hand; and
§ (4) That it is not null and void, inoperative or incapable of being performed
o [This is assessed on a prima facie standard as the court will not engage in a full
review or consideration of whether a valid arbitration agreement exists in line with
the principle of Kompetenz-Kompetenz (Tomolugen Holdings Ltd v Silica
Investors).]
• Switching burden:
o [If this is shown, the respondent must then show that such agreement is null and
void, inoperative or incapable of being performed (Dyna-Jet v Wilson Taylor Asia
Pacific [2016] SGHC 238 referring to Tjong Very Sumito v Antig Investments).]
o That no other conclusion on this issue is arguable.
• Elements: [The elements are as follows: set it out] Under s 6(2) read with s 6(1) IAA (see
The Engedj (2010) SGHC):
o [1] There is an arbitration agreement;
o [2] A party to the agreement must have initiated court proceedings against another
party of the same agreement;
o [3] The proceedings must be in respect of a matter is within the scope of the
agreement/clause;
o [4] The applicant must have entered appearance in the court proceedings;
o [5] The applicant must do so before delivering any pleading or taking any other step
in the proceedings;
o [6] The arbitration agreement/clause is not void and null, inoperative or incapable of
being performed’.
[1] Is there an arbitration agreement?

• Prima facie test: [Here, the court need only decide on a ‘prima facie’ basis in order to
determine whether there exists an arbitration agreement on a stay application (see Malini
Ventura v knight Capital Pte Ltd).]
o [Further, in investigating the arbitration agreement for a stay application, the standard
review of the arbitration clause is adopted rather than a ‘full review of the merits of
the arbitration agreement’ (affirmed by CA in Tomolugen Holdings v Silica
Investors).]
o The CA affirmed that the ‘more than prima facie approach’ taken in R1 International
v Lonstroff AG was an exception rather than the norm.
• [Refer above]
27
[2] Is there a dispute referred to arbitration:

• [Refer above]
[3] Before taking a step in the proceedings:

• Timing: [The application must be made at any time after entering an appearance and before
delivering any pleadings or taking any other step in the proceedings (s 6(1) IAA).]
o [a] Before delivering any pleading (e.g. Defence); or
§ If applicant serves a defence with express reservation of his right to stay
proceedings in favour of arbitration, he may still be able to apply for a stay as
his rights can be preserved (Chong Long Hak Kee Construction [2003]
SGHC).
§ Recommended procedure is for D to file for stay, then ask for EOT for the
filing of defence (Carona Holdings [2008] SGCA).
o [b] Taking any step in the proceedings:
§ [This refers to any step which impliedly affirms the correctness of the
proceedings or demonstrates a willingness or intention to defend the
substance of the claim in court (Australian Timbre Products v Koh Brothers;
Lian Tech Construction v Woh Hup Pte Ltd).]
§ This refers to whether by the steps taken, the party had (Carona Holdings
[2008] SGCA):
• (a) Evinced intention to submit to the court’s jurisdiction rather than
seek recourse through arbitration; and
• (b) advanced the hearing of the matter in court.
• Common-sense approach: [The court adopts a practical and commonsensical approach
whether an act is regarded as a step in the proceedings (Corona Holdings) and would include
any step that affirms the correctness of the proceedings or demonstrates a willingness or
intention to defend the substance of the claim in court (Australian Timbre Products v Koh
Brothers; Lian Tech Construction v Woh Hup Pte Ltd). The court may consider the following
(Carona Holdings)]:
o [1] Whether a party took a significant act signifying that it submitted to the court’s
jurisdiction rather than to arbitration;
o [2] Whether the act was a step in furtherance of the action by advancing the matter in
court rather than to smother it;
o [3] Whether the party did an act with the consent of the other party;
o [4] Whether a party is equivocating – a party who wants to proceed with arbitration
should be ready and willing to do all things necessary for proper conduct of
arbitration.
• ** Reservation of rights:
o [However, there is a narrow exception, that if such steps were taken but made with
the express reservation of the rights under the arbitration agreement, the defendant’s
right to stay the proceedings could be preserved (Chong Long Hak Kee Construction
Trading).]
• Examples of step in the proceedings:
o Filing affidavit opposing the application for interim payment – this would have to
dwell on the merits of the claim and they would be deemed to have waived their
rights to arbitration (Lian Teck Construction).
o Application to defend (leave to defend) (Carona Holdings);
o Application to strike out
o Application for discovery of documents (Carona Holdings);
o Application for directions (Carona Holdings);
o Attending a summons for directions (Tan Hock Leng v Sigma International Ltd);
o Serving 48-hour notice on P for its counterclaim, when its subject matter was the
same as its defence (Chong Long Hak Kee Construction).
28
o Contesting P’s application to re-amend a writ and mentioning for P’s solicitors (Tan
Hock Leng v Sigma International Ltd).
o Making a prayer in stay application for certain funds to be released to it (The
Republic of Phillipines v Maler Foundation).
• Examples NOT amounting to step in the proceedings:
o Application for EOT to file defence (Australian Timber Products);
§ [Such application would not constitute a step in the proceedings because such
an application would be an act that safeguarded the defendant’s position
pending the determination of the stay application, as opposed to an act that
sought to contest the proceedings on its merits. An application to have the
default judgment set aside would also not constitute a step in the proceedings
(Carona Holdings)]
o Application to set aside default judgment (Australian Timbre Products v Koh
Brothers);
§ This is as if it is not set aside, there will be nothing to stay.
o *Filing of notice to produce documents before defence is filed, to ascertain the
nature of the claim and whether arbitration was an option (Amoe Pte Ltd v Otto
Marine Ltd).
§ [If a party had done so to ascertain the nature of the claim before it to see if
arbitration was an option, this act by itself was not a step in the proceedings,
even without an express reservation of the right to seek a stay – D may be
genuinely seeking to investigate the nature of the contractual arrangements
under which P was making its claim in court.]
o An act which would otherwise be regarded as a step in the proceedings, BUT which
is not treated as such because the applicant has specifically stated that he intends to
seek a stay or expressly reserves his right (Chong Long Hak Kee Construction
Trading v IEC Global);
• Proper approach for defendant (Carona Holdings SGCA):
o (1) If parties cannot agree on stay in favour of arbitration, Df should first file stay
application within the time limited for filing its defence
o (2) The stay application should include a prayer asking for all proceedings in the
action (including the filing of the defence) to be stayed until the stay application had
been disposed of; and application for extension of time to file defence
o (3) The stay application and the default judgment application should be heard
together, with the stay application being dealt with first
o (4) Where counsel sought to abuse the process or behaved unreasonably, appropriate
cost sanctions would be imposed
[4] Is the clause void and null, inoperative or incapable of being performed
• Liberal approach: [The courts generally take a liberal approach in interpreting s 6 IAA and
in finding a valid arbitration agreement (Ng Mook Kee (1993) HKCA). As such, arbitration
clauses are generally binding so long as it clearly evinces the intention of the parties to
resolve any dispute by arbitration (HKL Group v Rizq International).]
• [a] Void and null:
o [“Void and null” covers agreements which suffer from invalidity from the outset, and
is generally understood to refer to situations where there is no binding arbitration
agreement between the parties (Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific [2016]
SGHC 238)
o Where it is devoid of legal effect (Albon v Naza Motor Trading Sdn Bhd (No 3)
[2007]).
o Where it is subject to an internationally-recognised defence such as duress, mistake,
fraud or waiver or if it contravenes fundamental policies of the forum (Rhone
Mediterranee Compagnia Francese di Assicurazioni e Riassicurazioni v Achille
Lauro (1983)).
29
o “Null and void” should be read narrowly in light of the general policy of upholding
the enforceability of arbitration agreements to which all New York Convention
contracting states have subscribe (Rhone).
• [b] Inoperative (Ng Mook Kee (1993) HKCA):
o [“Inoperative” covers agreements which have ceased to have effect (Dyna-Jet Pte Ltd
v Wilson Taylor Asia Pacific [2016] SGHC 238)]:
o [It ceases to have effect, at the very least, when it ¡™, which can occur due to e.g.
discharge by breach, by agreement, waiver, estoppel, lection or abandonment.]
o Examples:
§ (a) Waiver contractual right to arbitrate or finds himself estopped from
relying on that right (Tjong);
§ (b) Abandonment right to seek stay (Tridon Inc v Tridon Australia Pty Ltd
[2002] NSWSC 896);
§ (c) Repudiatory breach of the arbitration agreement which was accepted by
the innocent counterparty (Downing).
• [c] Incapable of being performed:
o [“Incapable of being performed” covers agreements under which arbitration cannot
be set in motion (Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific [2016] SGHC 238).
o An arbitration agreement is incapable of being performed when there is an obstacle
which cannot be overcome which prevents the arbitration from being set in motion.
o The list of such circumstances is not closed.
o E.g. Impossible to establish the arbitral tribunal.
• Examples of YES binding agreement (KVC Rice Intertrade v Asian Mineral Resources):
o [a] Reference to non-existent arbitration rules (see Lucky-Goldstar).
o [b] No reference to the seat of arbitration
o [c] No reference to the number of arbitrators
o [d] No reference to method for establishing tribunal
o [e] Where there exists complex legal issues (Teknik Cekap).
o [f] Breach of agreement containing the arbitration clause (Mancon (BVI Investment
Holding).
• Examples of NOT binding agreements:
o [a] No reference to resolve the matter by arbitration (Teck Guan v Beow Guan).
§ There was no clear intention that the parties were to refer the dispute to
arbitration (HKL Group v Rizq International).
o [b] Non-arbitrability of subject matter:
§ There was a presumption of arbitrability so long as a dispute fell within the
scope of the arbitration clause.
§ However, this presumption could be rebutted by showing (Tomolugen v
Silica Investors):
• [a] Parliament intended to preclude a particular type of dispute from
being arbitrated (as evidenced by either the text or the legislative
history of the statute in question); or
• [b] It would be contrary to the public policy considerations involved
in that type of dispute to perit it to be resolved by arbitration.
§ Oppression remedy is arbitrable (Tomolugen v Silica Investors);
§ Insolvency provisions are non-arbitrable (Larsen Oil & Gas Petropod).
[5] No discretion
• [As long as the arbitration is applicable, proceedings must be stayed even if there are no
triable issues and summary judgment could have been granted on the basis that there was no
triable or arguable issues as a stay is mandatory under s 6(2) IAA (Coop International).]
30
[B] STAY OF PROCEEDINGS (DISCRETIONARY UNDER AA)
[0] Introduction
• Introduction: [A party may apply to the national court for a stay of proceedings where
another party in contravention of an arbitration agreement/clause initiates litigation instead of
proceeding to arbitration].
• Elements: [To succeed in the stay application, A needs to show that there is a valid
arbitration agreement which covers the scope of the dispute, and is not null, inoperative or
incapable of being performed.]
• Additional requirements: [To enable the court to order a stay, 2 requirements are laid down
in s 6(2) AA, namely that there must be no sufficient reason why the matter should not be
referred to arbitration; and the applicant must be ready and willing to do all things necessary
to the proper conduct of the arbitration]
o Under s 6AA, the court may order a stay if:
§ (a) There is no sufficient reason why it should not refer to arbitration; and
§ (b) The applicant is at all times ready and willing to do all things necessary to
arbitrate.
[1] Is there an arbitration agreement?

• Prima facie test: [Here, the court need only decide on a ‘prima facie’ basis in order to
determine whether there exists an arbitration agreement on a stay application (see Tomolugen
Holdings Ltd v Silica Investors; Malini Ventura v knight Capital Pte Ltd).]
o [Further, in investigating the arbitration agreement for a stay application, the standard
review of the arbitration clause is adopted rather than a ‘full review of the merits of
the arbitration agreement’ (affirmed by CA in Tomolugen Holdings v Silica
Investors).]
o The CA affirmed that the ‘more than prima facie approach’ taken in R1 International
v Lonstroff AG was an exception rather than the norm.
• [Refer above]
[2] Is there a dispute referred to arbitration:

• [Refer above]
[3] No sufficient reason why it should not refer to arbitration

• [As a prima facie case of dispute has arisen between the parties, and those disputes fell within
the ambit of the arbitration agreement, the burden of showing that there is a sufficient reason
for not referring the matter to arbitration falls on the party resisting the stay (Kwan Im Tong;
JDC Corp).]
• [From the facts, it nonetheless appears to be no sufficient reason why the matter should not be
referred to arbitration (s 6(2)(a) AA).]
• Examples when sufficient reason:
o [1] Relief sought it not available in arbitration;
o [2] A clear undisputed claim/ non sustainable defence;
§ It is well established that if the court finds that there is no dispute between
the parties, then generally there will not no sufficient reason to stay court
proceedings, as there will be nothing to refer to arbitration (Multiplex
Construction v Sintai Entreprise [2005] SGCA).
§ The court must first consider whether the content and extent of the arbitration
agreement covers catches the subject matter of the action (Uni Navigation
[1992] SGHC)
o [3] Arbitrability is a factor to be taken into consideration
o [4] Multiplicity – to be addressed below.
31
o NB: Sufficient reason would probably not amount to ‘null and void, incapable of
being performed’ like under the AA, sufficient reason test is wider.
• Not sufficient reason:
o [1] Hardship – that referring the matter to arbitration would cause the resisting party
considerable financial hardship (Party was still bound by arbitration agreement: JDC
Corp).
o Even if the arbitration is taking place in another country, court may still stay its
proceedings (Kaverit Steel & Crane; stay asked for in Court of Alberta, whereas
arbitration was in Stockholm, Sweden)
[4] Ready and willing

• [Apply from facts]
[5] Timing of application:

• Timing: [The application must be made at any time after entering an appearance and before
delivering any pleadings or taking any other step in the proceedings (s 6(1) AA).]
o [a] Before delivering any pleading (e.g. Defence); or
§ If applicant serves a defence with express reservation of his right to stay
proceedings in favour of arbitration, he may still be able to apply for a stay as
his rights can be preserved (Chong Long Hak Kee Construction [2003]
SGHC).
§ Recommended procedure is for D to file for stay, then ask for EOT for the
filing of defence (Carona Holdings [2008] SGCA).
o [b] Taking any step in the proceedings:
§ [This refers to any step which impliedly affirms the correctness of the
proceedings or demonstrates a willingness or intention to defend the
substance of the claim in court (Australian Timbre Products v Koh Brothers;
Lian Tech Construction v Woh Hup Pte Ltd).]
§ This refers to whether by the steps taken, the party had (Carona Holdings
[2008] SGCA):
• (a) Evinced intention to submit to the court’s jurisdiction rather than
seek recourse through arbitration; and
• (b) advanced the hearing of the matter in court.
• Common-sense approach: [The court will take a commonsensical approach and may
consider the following (Carona Holdings [2008] SGCA)]:
o (1) Whether a party took a significant act signifying that it submitted to the court’s
jurisdiction rather than to arbitration;
o (2) Whether the act was a step in furtherance of the action by advancing the matter in
court rather than to smother it;
o (3) Whether the party did an act with the consent of the other party;
o (4) Whether a party is equivocating – a party who wants to proceed with arbitration
should be ready and willing to do all things necessary for proper conduct of
arbitration.
• ** Reservation of rights:
o [However, there is a narrow exception, that if such steps were taken but made with
the express reservation of the rights under the arbitration agreement, the defendant’s
right to stay the proceedings could be preserved (Chong Long Hak Kee Construction
Trading).]
• Examples of step in the proceedings:
o Filing affidavit opposing the application for interim payment – this would have to
dwell on the merits of the claim and they would be deemed to have waived their
rights to arbitration (Lian Teck Construction).
o Application to defend (leave to defend) (Carona Holdings);
o Application to strike out
32
o Application for discovery of documents (Carona Holdings);

o Application for directions (Carona Holdings);
o Attending a summons for directions (Tan Hock Leng v Sigma International Ltd);
o Serving 48-hour notice on P for its counterclaim, when its subject matter was the
same as its defence (Chong Long Hak Kee Construction).
o Contesting P’s application to re-amend a writ and mentioning for P’s solicitors (Tan
Hock Leng v Sigma International Ltd).
o Making a prayer in stay application for certain funds to be released to it (The
Republic of Phillipines v Maler Foundation).
• Examples NOT amounting to step in the proceedings:
o Application for EOT to file defence (Australian Timber Products);
§ [Such application would not constitute a step in the proceedings because such
an application would be an act that safeguarded the defendant’s position
pending the determination of the stay application, as opposed to an act that
sought to contest the proceedings on its merits. An application to have the
default judgment set aside would also not constitute a step in the proceedings
(Carona Holdings)]
o Application to set aside default judgment (Australian Timbre Products v Koh
Brothers);
§ This is as if it is not set aside, there will be nothing to stay.
o *Filing of notice to produce documents before defence is filed, to ascertain the
nature of the claim and whether arbitration was an option (Amoe Pte Ltd v Otto
Marine Ltd).
§ [If a party had done so to ascertain the nature of the claim before it to see if
arbitration was an option, this act by itself was not a step in the proceedings,
even without an express reservation of the right to seek a stay – D may be
genuinely seeking to investigate the nature of the contractual arrangements
under which P was making its claim in court.]
o An act which would otherwise be regarded as a step in the proceedings, BUT which
is not treated as such because the applicant has specifically stated that he intends to
seek a stay or expressly reserves his right (Chong Long Hak Kee Construction
Trading v IEC Global);
• Proper approach for defendant (Carona Holdings SGCA):
o (1) If parties cannot agree on stay in favour of arbitration, Df should first file stay
application within the time limited for filing its defence
o (2) The stay application should include a prayer asking for all proceedings in the
action (including the filing of the defence) to be stayed until the stay application had
been disposed of; and application for extension of time to file defence
o (3) The stay application and the default judgment application should be heard
together, with the stay application being dealt with first
o (4) Where counsel sought to abuse the process or behaved unreasonably, appropriate
cost sanctions would be imposed
[6] Discretionary
• Discretion used sparingly: [The court may grant a stay if there is no sufficient reason why
the matter should not be referred to arbitration (s 6(2) AA), but court’s discretion not to refer a
matter to arbitration should be exercised sparingly and in a principled way, and significant
weight is necessary to displace the important factor that parties have undertaken to resolve
their disputes by way of arbitration (Sim Kay Choon v NTUC).]
o The very existence of an agreement to arbitrate means that something weighty must
be shown in order to demonstrate that there is sufficient reason not to hold the parties
to that agreement (Sim Kay Choon v NTUC), the burden of which lies on the party
against arbitration (Maybank Kim Eng v Lim Keng Yong).
33
• Refusal in exceptional circumstances: [Where the applicant is ready and willing to arbitrate,
the court will only refuse a stay in exceptional circumstances. This is in line with the
desirability of holding the parties to their agreement as well as Singapore’s strong policy in
favour of arbitration (Maybank Kim Eng v Lim Keng Yong and Lye Hoi Fong).]
Factors:
• [1] Arbitration more expensive – NO:
o [It is not a legitimate ground to say that arbitration will be more costly than relief via
court proceedings. Even if true, parties may be taken to have already factored that
when they nonetheless chose to arbitrate their disputes (Sim Kay Choon v NTUC)]
o [Moreover, even if it were to cause financial hardship, the parties would still be
bound to arbitration (see JDC Corp).]
• [2] Subjective belief of better hearing in court – NO:
o [The subjective preference of a party will generally be irrelevant basis for the
exercise of the court’s discretion (Sim Kay Choon v NTUC)]
• [3] Nature of the statutes:
o The CPF Act, the Employment Act and the Industrial Relations Act, that are
implicated in this matter were statutes applicable to employment and with a
particular emphasis on protecting workers.
o Held in Sim Kay Choon v NTUC that there nothing in the nature of the CPF Act, the
Employment Act and the Industrial Relations Act that make it unsuitable for an
arbitrator to deal with the issues they give rise to.
o Further, there are retired judges and senior lawyers who may be available and willing
to be appointed as arbitrator(s) to hear this matter
• [4] Risk of multiplicity of proceedings:
o [While the risk of multiplicity of proceedings is a strong factor militating against a
stay, it is not determinative and it must be considered in light of all the circumstance
(Cars & Cars Pte Ltd v Volkswagen & Another).]
o (Cars & Cars):
§ [In Cars & Cars v Volkswagen, a stay was granted despite the risk of
multiplicity.]
§ Ought to have foreseen: [In the case, it was not a determinative factor since
the parties had by contractual agreement deliberately arranged for their
dispute resolution procedures in such a fashion (4 separate agreements with
differing dispute resolution clauses) that almost inevitably such multiplicities
would arise, and therefore they ought to have been held to their respective
contractual bargains to arbitrate under the SIAC.]
o (Hua Xin Innovation Incubator v IPCO International):
§ Did not foresee: [In Hua Xin Innovation, a stay was not granted – the parties
entered into the Agreement only for relations to subsequently unravel as a
result of an unforeseen turn of events. A global settlement agreement was
thus entered into, which purported to address a whole host of issues
including, inter alia, the dispute over the advance amount under the
Agreement. It certainly cannot be said that the parties could have foreseen
what has transpired].
§ [The applicant was one of the parties that commenced the collateral HC
proceedings with third parties – risk of multiplicity was brought by its own
actions].
o [Apply facts whether parties ought to have foreseen multiplicity in proceedings]
Cases:
• (Sim Kay Choon v NTUC Income Insurance [2015] SGCA 246):
34
o FACTS: P sued NTUC for a breach of employment and wrongful termination. All
contracts included an arbitration agreement. NTUC successfully obtained a stay of
proceedings. P appealed against this arguing:
§ Arbitration is more expensive compared to class action relief in court;
§ Nature of the statutes (namely CPF Act, Employment Act and Industrial
Relations Act) implicated in the matter were statutes applicable to
employment, with a particular emphasis on protecting workers;
§ Their subjective belief was that they would get a better hearing in court
o HELD: Proceedings stayed.
§ The court’s discretion not to refer a matter to arbitration should be exercised
sparingly and in a principled way.
§ Significant weight is necessary to displace the important factor that parties
had undertaken to resolve their disputes by arbitration.
o The court rejected the 3 arguments put forth by counsel for the appellant:
§ [a] That arbitration will be more costly:
• Even if true, parties may be taken to have already factored this when
choosing to arbitrate their disputes.
§ [b] Re Nature of statutes:
• There was nothing in their nature that would make it unsuitable for
an arbitrator to deal with issues they give rise to.
• Further, there are retired judges and senior lawyers who may be
available and willing to be appointed as arbitrators to hear the matter.
§ [c] Re subjective preference:
• The subjective preference of a party will generally not be a relevant
basis for the exercise of the court’s discretion.
• (Cars & Cars v Volkswagen SGHC):
o FACTS: VW entered into importer agreement with CC and granted them rights to
import and distribute commercial and passenger cars bearing VW marque.
§ Agreement subsequently terminated in respect of passenger cars.
§ CC assumed states of authorised dealer while CGS (locally incorporated sub
of VW) took over as importer.
o In 2006, pursuant to a decision to terminate the dealership and what was left of the
importer agreement, 4 written agreements were made:
§ In each, it was agreed that by payment of the named sum, ‘neither party shall
have any claim against the other party for any breach, default, contravention
or non-observance of any nature whatsoever of any term’.
§ VW did not make $1.2m payment by stipulated date and CC elected to treat
failure to pay as repudiation of all 4 agreements.
§ CC brought action against VW and VGS for loss and damages.
§ VGS sought a stay as one of the agreements provided for arbitration ‘in
accordance with the Rules of the Singapore Arbitration Centre for the time
being in force.
§ AR granted the application.
§ [a] IAA applied to current agreement – fact that other agreements were AA
were not of assistance.
• IAA was applied on the facts (relevant agreement which claim was
brought was Termination of Dealership Agreement):
• It adopted the SIAC Rules 2007, which made IAA the governing
statute of arbitrations conducted under those rules, the parties had
agreed in writing that Part II of the IAA should apply.
• As the parties had chosen to enter into separate contracts, each with
separate and distinct procedures for dispute resolutions, the express
choice to apply the AA in the Sale of Assets and VW Parts
35
Agreement between VGS and GEPL could not be used to assit the
argument that AA applied to the Termination of Dealership
Agreement.
§ [b] Even assuming that AA applied, the court should not exercise the judicial
discretion it had under the statute to deny the stay.
• Although multiplicity of proceedings was an important factor for
refusing a stay, it was not a wholly decisive ground. Here, even if the
parties had entered into a ‘global settlement’, they had expressed
chosen to enter into 4 separate agreements which significantly
different dispute resolution clauses.
• It could be said that parties could have foreseen there would be a risk
of multiplicity and inconsistent decisions which could arise from the
4 agreements. Therefore, parties ought to be held to their respective
contractual bargains to arbitrate under the SIAC.
• (Maybank Kim Eng v Lim Keng Yong):
o SIGNIFICANCE: The SGHC in Maybank clarified that the principles governing the
court’s inherent powers of case management set out in Tomolugen Holdings applies
equally in situations where part of the dispute is governed by an arbitration agreement
which the IAA or the AA applies. The only difference is what where the AA applies,
it may even stay the claims which are covered by the arbitration agreement (c.f.
mandatory stay of the IAA).
§ The relevant principles in a situation in which a dispute was to be resolved
partly by arbitration and partly by court proceedings, and there was an
overlap of issues and parties in the two proceedings: (Tomolugen Holdings):
• [i] The court should take lead to ensure efficient and fair resolution
of the dispute;
• [ii] Whether a court will grant a stay in the interest of case
management depended on the balancing of the 3 ‘higher order
concerns’, but how the balance was to be struck would depend on the
circumstances of the case;
• [iii] The ‘higher order concerns’ were namely:
o [1] P’s right to choose who and where he wants to sue;
o [2] Court’s desire to prevent P from circumventing an
arbitration clause; and
o [3] Court’s inherent power to manage its processes to prevent
an abuse of process and ensure the efficient and fair
resolution of disputes.
On tripartite arbitration
Stay in favour of tripartite arbitration:

• QN: Can arbitration agreement bind a non-party in order that arbitration may be conducted
involving that non-party?
• ANS: [Prima facie, no. This is as arbitration is founded upon the principle of consent.
Therefore, no person ought to be compelled to arbitrate a dispute unless he has agreed to do
so.]
• [However, under s 6(5) AA/IAA, a reference to a ‘party to an arbitration agreement’ under s 6
extends to ‘any person claiming through or under a party to an arbitration agreement’]
Cases:
• Wide: (Yee Hong v Tan Chye Tee Andrew (Ho Bee, Third Party)):
Ye Hong (Main Con) Andrew (Architect) Ho Bee (Employer or A)
Main contract (arbitration clause)
36
TP Proceedings
o FACTS: YH brought arbitration proceedings against developer for placing undue
pressure on Architect to influence him not to give EOT. YH sued Architect for
issuing delay certificates, arguing that Architect wrongfully refused to grant EOT.
§ Architect issued TPP on HB (employer).
§ HB applied for a stay under s 6AA on grounds that each of the contracts
Architect had entered into with YH had an arbitration clause.
o HELD: Proceedings were stayed in favour for tripartite arbitration.
§ It was highly unsatisfactory for the disputes between the parties to be
litigated separately, when both disputes arose from the same project.
§ YH argued that court has no jurisdiction to order arbitration between it and
Architect as there was no arbitration agreement between them:
• Court held that the words ‘any person claiming through or under
such party’ in s 6(5) AA included the Defendant who by the TPP was
making a claim for an indemnity or contribution through or under the
TP (who had an arbitration agreement with P.
o S 6(5) AA empowered court to order P to arbitrate dispute with D even though there
was no arbitration agreement between them.
o S 6(5) AA states that a reference to a party includes a reference to any person claiming
through or under such party.
o Lai J read the “through or under” to include the Defendant who by the Third Party
Proceedings was making a claim for an indemnity or contribution through or under
the Third Party (who had an arbitration agreement with the Plaintiff)
o The needs of justice outweighs the risk of multiplicity.
o Justice would be best served if the 3 parties proceeded to arbitration to determine
their respective claims, defences and counterclaims if any.
o The order to stay proceedings merely meant that there was a more suitable forum for
the 3 parties involved to have all their disputes relating to one project determined.
• (Taunton-Collins v Cromie) cited in Yee Hong above:
o FACTS: Owner employed architect and contractors. Building Contract contained
arbitration clause. Owner sued architect, who then blamed contractors and joined
them as co-defendants.
o HELD: Stay was refused.
§ It was undesirable that there should be 2 proceedings before 2 different
tribunals who might reach e.g. inconsistent findings.
• Narrow: (Cassa Di Risparmio 2015):
o The court stated that the intent of the extended definition of "party" in s 6(5)(a) is to
impose a statutory obligation on a plaintiff to arbitrate even if the plaintiff is not
itself a contractual party to an arbitration agreement.
o Therefore the section must be viewed in line with the law of obligations.
o Coomaraswamy J stated that arbitration clauses are capable of assignment.
o Even if there is no arbitration agreement between the parties, but one is nonetheless
bound by the general law of obligations, he will be taken to fall under s 6(5) AA.
Scott v Avery Clauses

• Description: [An agreement between parties that they will submit any dispute between them
to arbitration before taking any court action. An express and clear provision in a contract that
defers any dispute first to arbitration before any litigation is commenced (Scott v Avery).]
• Effect: [It does not prevent litigation being initiated on a contract containing a clause of this
type, but the condition precedent is a defence to the action (Scott v Avery; Tay Eng Chuan v
Ace insurance).]
Cases:
• (Tay Eng Chuan v Ace Insurance):
37
o FACTS: Policy contained clause which stated any dispute was to be referred to
arbitration within 3 months. Policy also contained a clause which said that if the
policyholder did not fulfil the conditions in the policy, the insurer would not be liable
to pay the policy holder.
§ Tay did not refer the matter to arbitration within 3 months.
§ Therefore, when proceedings were brought, Ace argued it was not liable to
pay due to Tay’s breach in the ‘arbitration clause’.
o HELD: Not stuck out.
§ The contra proferentum rule applied.
§ Normal Scott v Avery clauses:
• All provisions that state the obtaining of an arbitral award was a
condition was a condition precedent to insured’s right to bring an
action on the insurance policy were set out in the same clause – this
leaves him in no doubt as to its legal effect.
§ Clause in this case:
• It was separated into the legal action clause, condition precedent
clause and arbitration clause – disparate provisions.
• An insured would not be expected to know that they had to be read
together, and to understand them collectively to mean that he would
forfeit his right to sue on the policy if he failed to refer any dispute or
difference to arbitration within 3 months.
Atlantic Shipping Clause

• Description: [A clause in an arbitration agreement which provides that claims to which the
agreement applies shall be barred unless some step to commence the arbitration is taken
within a stated time (Atlantic Shipping v Louis Dreyfus)]
• (Atlantic Shipping v Louis Dreyfus):
o It is not just a limitation defence. It destroys the right itself.
o It will be strictly construed against the party relying on them.
Extension of time
• Under s 10 AA:
o (1) Where the terms of an arbitration agreement to refer future disputes to arbitration
provide that a claim to which the arbitration agreement applies shall be barred unless
—
§ (a) some step has been taken to begin other dispute resolution procedures
which must be exhausted before arbitral proceedings can be begun;
§ (b) notice to appoint an arbitrator is given;
§ (c) an arbitrator is appointed; or
§ (d) some other step is taken to commence arbitral proceedings, within a time
fixed by the agreement and a dispute to which the agreement applies has
arisen, the Court may, if it is of the opinion that in the circumstances of the
case undue hardship would otherwise be caused, extend the time for such
period and on such terms as the Court thinks fit.
• There is no equivalent in IAA
38
COURT ASSISTANCE IN ARBITRAL PROCEEDINGS

Overview
• [A] Enforcement of arbitral orders and directions;
• [B] Compelling attendance of non-parties or witnesses;
• [C] Court ordered interim measures in support of local arbitration; and
• [D] Court ordered interim measures in support of foreign arbitration.
[A] ENFORCEMENT OF ARBITRAL ORDERS AND DIRECTIONS
[1] Under IAA:

• [Under s 12(6) IAA, all orders or directions made or given by an arbitral tribunal in the course
of arbitration shall, by leave of the High Court or a Judge thereof, be enforceable in the same
manner as if they were orders made by a court and, where leave is so given, judgment may be
entered in terms of the order or direction.]
[2] Under AA:

• [Under s 28(4) AA all orders or directions made or given by an arbitral tribunal in the course
of an arbitration shall, by leave of the Court, be enforceable in the same manner as if they
were orders made by the Court and, where leave is so given, judgment may be entered in
terms of the order or direction]
[B] COMPELLING ATTENDANCE OF NON-PARTIES OR WITNESSES

• Tribunal has no power to compel non-parties:
o [As arbitration is a consensual process, the arbitral tribunal does not have the power
or jurisdiction over non- or unconsenting parties. As such, the tribunal requires the
assistance of the court to secure their attendance.]
o However…
[1] Under the IAA:

• Subpoena witness:
o [However, under s 13(2) IAA, the SGHC may issue a subpoena to a witness to testify
or to product documents before an arbitral tribunal provided that the witness can also
be compelled to product the same if it were a trial (s 13(4) IAA).]
o Prisoner examination: The court also has the power to issue an order under s 38
Prisons Act to bring up a prisoner for examination before an arbitral tribunal (s 30(3)
IAA).
• Application:
o [W has evidence of ___/ W was present and witnesses ___]
o [This is relevant, material and necessary for the disposal of the matter and thus, the
court may issue a subpoena (Laos v Sanum Investments).]
o [Further, the court must be certain that the production of the evidence would produce
something of value towards the disposal of the matter.]
o [It is not enough that the documents may lead to a train of inquiry which might assist
the party in conduct of his case, or that they may or may not have been relevant to the
conduct of the litigation.]
o On confidential property (Laos v Sanum Investments)
§ The fact that documents are confidential property of the witnesses and not the
P/D is not a bar.
§ FACTS: P sought drafts and internal documents which were property of W.
39
§ HELD: While the drafts and internal documents sought may be the property
of W, that was not a bar to the issue of a subpoena for them to be produced,
as subpoenas may sometimes be an invasion into the confidentiality and
privacy of a third party.
• However, before ordering their disclosure, the court must be utterly
scrupulous in ensuring that it was satisfied as to the relevance of the
documents.
• Difference between subpoena & discovery (Loas v Sanum Investments):
Subpoena Discovery
Bring evidence directly Have documents disclosed before the hearing of the matter
to the court to allow parties to evaluate their case.
• The language used may be indicative of whether what is sought is correct subject of a
subpoena or whether it is in truth an application for discovery in disguise:
o (The Lorenzo Halcoussi):
§ FACTS: “Such documents to include (but not limited to)”
§ HELD: Discovery – refused.
o (Laos v Sanum Investments):
§ FACTS: “to produce the following”:
• (a) E&Y’s engagement letter with the Lao PDR;
• (b) all reports relating to Savan Vegas provided to the Lao PDR by
E&Y;
• (c) all correspondence or other documents exchanged between the
Lao PDR and E&Y concerning the financial and accounting
inspection or any potential inspection of Savan Vegas and/or
Parksong Vegas & Casino Co Ltd;
• (d) all drafts of reports relating to Savan Vegas created by E&Y;
• (e) all E&Y internal documents (including e-mails, notes,
memoranda and work papers) concerning the financial and
accounting inspection or potential inspection of Savan Vegas or
Parksong Vegas; and
• (f) any and all other documents generated by E&Y related to the
financial and accounting inspection or any potential inspection of
Savan Vegas or Parksong Vegas.”
o HELD: Allowed after striking out ‘including’ and ‘any and all’.
[2] Under the AA:

• Subpoena witness:
o [However, under s 30(2) AA, the court may issue a subpoena to a witness to testify or
to product documents before an arbitral tribunal provided that the witness can also be
compelled to product the same if it were a trial (s 30(4) IAA).]
• Application [see above]:
[C] COURT ORDERED INTERIM MEASURES IN SUPPORT OF LOCAL ARBITRATION

(AA AND IAA)
[1] Under the IAA:

• Court may grant: [Under Art 9 MAL as annexed to the IAA, it is not incompatible with an
arbitration agreement for a court to grant interim measures for protection, before or during
arbitral proceedings.]
o e.g. Mareva injunctions – freezing orders etc
• If necessary for preserving evidence or assets:
40
o [Under s 12A(1) IAA, the SGHC has the power to order interim measures if they are
necessary for the purpose of preserving evidence or assets (s 12(4) IAA), such that
without which, the asset which is sought to be preserved would be lost (Maldives
Airports v GMR Male Intentional Airport).]
o “Necessary”: If there are other reasonably available alternatives for securing the
evidence or asset, then it cannot be said that the order is necessary for the
preservation of that evidence or asset.
o “Assets”: For the purposes of s 12A(4) IAA, a wide meaning of ‘assets’ is to be taken.
§ This includes choses in action and contractual rights;
§ BUT not all contractual rights; only those which if lost, would not be
adequately remediable by an award of damages.
§ (Maldives Airports v GMR International Airport):
• Would have preserved the right to have exclusive use, occupation
and peaceful enjoyment of the airport site.
• [s 12(1) IAA further provides that arbitral tribunals shall have the powers to make orders or
give directions to any party for _____ ;]
• Orders which may be made (s 12(1)(a) read with s 12A(2) IAA):
o (a) security for costs;
o (b) discovery of documents and interrogatories;
o (c) giving of evidence by affidavit;
o (d) the preservation, interim custody or sale of any property which is or forms part of
the subject-matter of the dispute;
o (e) samples to be taken from, or any observation to be made of or experiment
conducted upon, any property which is or forms part of the subject-matter of the
dispute;
o (f) the preservation and interim custody of any evidence for the purposes of the
proceedings;
o (g) securing the amount in dispute;
o (h) ensuring that any award which may be made in the arbitral proceedings is not
rendered ineffectual by the dissipation of assets by a party; and
o (i) an interim injunction or any other interim measure
• (Swift Fortune): old law
o FACTS: Disputes where one party applied to SG court for injunction to restrain the
defendant from removing or disposing with its Singapore assets up to $2.5million.
o HELD: s 12(7) did not give the court power to grant a Mareva injunction in aid of a
foreign arbitration notwithstanding Art 9 MAL.
• (Front Carriers):
o FACTS: P successfully ordered ex parte Mareva injunction to restraint removal of
Singapore assets. Swift-Fortune was referred during D’s application to set aside.
o HELD: SG Courts have the power under IAA to assist by way of interim orders
international arbitrations both in Singapore and abroad.
o The court opined that the framework of the IAA, including Arts 1(2) and 9 MAL
recognises that parties to an international arbitration may require curial support by
way of interim measures from the High Court even though the seat of the arbitration
is outside Singapore.
• (s 12A IAA) à It legislatively overcomes the legal impediment in Swift-Fortune preventing
the court in Singapore from issuing an interim measure in aid of a foreign arbitration.
o E.g. Mareva injunction was granted pursuant to s 12A IAA in Solvadis Commodity
Chemicals v Affert Resources.
• NB: (Five Ocean Corporation v Cingler Ship):
o The scope and application of s 12A IAA was recently considered and was held to
grant Singapore courts the power to preserve assets and evidence even where they are
situated outside Singapore.
o Case à see pg 64 of sent notes.
41
• Singapore Mareva à Mareva injunctions was granted by Judith Prakash J in AYK v AYM.
Requirement of urgency:
• Urgent preservation: [If the case is one of urgency a party or proposed party to the arbitral
proceedings may apply and the SGHC may make such orders under subsection (2) as the
High Court or Judge thinks necessary for the purpose of preserving evidence or assets (s
12A(4) IAA).]
• Limit of power: [However, the court can only make use of its powers to the extent that the
arbitral tribunal has no power or is unable for the time being to act effectively (s 12A(6)
IAA)].
o “Has no power”:
§ Since arbitral tribunals have the power to issue the same interlocutory orders
as the courts, it is unlikely that an arbitral tribunal would be deemed to have
‘no powers’ in this respect.
o “Is unable for the time being to act effectively”:
§ E.g. If the parties are still in the process of appointing arbitrators and the
tribunal has not yet been formed, it could be said that the arbitral tribunal is
unable to act, in which case the court has the power to step in.
• Determine what type:
o [1] If the case is urgent (s 12A(4) IAA):
§ And the tribunal has no power or it unable for the time being to act
effectively;
§ The SGHC may:
• On application of a party or proposed party;
• Make such orders under s 12A(2) IAA as is necessary for the purpose
of preserving evidence or assets.
o [2] If the case is NOT urgent (s 12A(5) IAA):
§ And the tribunal has no power or it unable for the time being to act
effectively;
§ The SGHC shall:
• On application of a part to the arbitral proceedings (upon notice to
the other parties and to the arbitral tribunal);
• Made with:
o [i] the permissions of the arbitral tribunal; or
o [ii] the agreement in writing of other parties;
• Make such orders under s 12A(2) IAA.
Enforcement:
• Such orders are not immediately enforceable, and an application to court for leave is required
for court enforcement under s 12(6) IAA.
o Summons supported by affidavit.
Type:
• [1] If Mareva injunction (Bouvier):
o [1] There must be a good arguable case against the defendant – looking at the
affidavit, the judge can see prospects of success at trial;
o [2] There must be a real risk of dissipation (e.g. transfer of assets out of the
jurisdiction and evading enforcement) (see also Solvadis Commodity Chemicals).
• [2] If interim injunction:
o The issue is whether the balance of convenience lay in granting the [interim relief].
o [a] Damages must not be an adequate remedy;
§ (Maldives Airports v GMR Male Intl Airport):
• FACTS: R submitted that it would be difficult, if not impossible to
calculate the revenue and concession fees which were dependent on
42
commercial airport activities as well as passenger and airline traffic

over a 25-year period
• HELD: while it is true that passenger numbers and airline traffic
may fluctuate, historical data for the Airport and other airports that
are similarly situated should provide some basis for prescribing and
calculating the loss of profits that may be sustained by the
Respondent
• Moreover, there are experts who would be able to assist in this task
o [b] Difficulties in assessing damages;
§ Converse to above.
§ If it is difficult to assess damages if the order should ultimately turn out to be
unjustified, then it will also be a factor against the making of the order:
Maldives Airports v GMR Male Intl Airport
o [c] Lack of evidence that D may be unable to pay/insolvent’
§ D’s precarious financial position would be taken as a neutral factor if P had
entered into the contract with full knowledge of this fact
o [d] Interim relief would be difficult to enforce
§ Whether the injunction requires an unaccepted degree of supervision
§ The court will not grant injunctions / orders which would result in numerous
follow-up applications raising issues of compliance or non-compliance
with the injunctions granted
§ The wider the terms of the order, the more difficult it would be for the
parties to have any certainty of what was required of them in order to
ensure that they were acting in compliance with the terms of the Injunction
§ The broad scope of the Injunction affected the actions of other agencies and
entities of the Maldives Government such as transportation, tourism, and
even defence.
• The potential for an interim injunction to affect third parties and the
potential for them to aid / abet a breach or deliberately frustrate the
purpose of an injunction is a relevant factor against the grant of an
injunction
[2] Under the AA:

• Powers: [Under s 31(1) AA, the court has the power to ____ ]:
o (a) make the same powers as set out in s 28 AA, namely …
§ Under s 28(2):
• (a) security for costs;
• (b) discovery of documents and interrogatories;
• (c) giving of evidence by affidavit;
• (d) the preservation, interim custody or sale of any property which is
or forms part of the subject-matter of the dispute;
• (e) samples to be taken from, or any observation to be made of or
experiment conducted upon, any property which is or forms part of
• (f) the preservation and interim custody of any evidence for the
purposes of the proceedings;
• (g) securing the amount in dispute;
• (h) ensuring that any award which may be made in the arbitral
proceedings is not rendered ineffectual by the dissipation of assets by
a party; and
• (i) an interim injunction or any other interim measure
o (b) securing the amount in dispute
o (c) ensuring that any award which may be made in the arbitral proceedings is not
rendered ineffectual by the dissipation of assets by a party
43
o (d) an interim injunction or any other interim measure

• Considerations:
o [In exercising its powers under s 31 AA, the court shall have regard to any application
or order may before the arbitral tribunal in respect of the same issue (s 31(3)(a) and
(b) AA).]
• Ceasing of power:
o [The orders made by the court under s 31 AA cease to have effect in whole or part (as
the case may be) if the arbitral tribunal makes an order which expressly relates to the
whole or part of that order (s 31(2) AA).]
• Leave to enforce interim orders:
o [P may apply to the SGHC for leave to enfore any orders made by the arbitral tribunal
as if they were orders made by the court (s 28(4) AA).]
[D] COURT ORDERED INTERIM MEASURES IN SUPPORT OF FOREIGN ARBITRATION
Introduction:
• Power:
o [It is clear from the plain wording of the new s 12A(1)(b) IAA that the court has the
power to order interim measures in aid of arbitration conducted overseas as it does in
aid of local arbitration under the IAA. This reverses the decision of the SGCA in
Swift-Fortune where it was held otherwise.]
o Moreover, the scope and application of s 12A IAA was, in 2015, considered and was
held to grant the Singapore Courts the power to preserve assets and evidence even
where they are situated outside Singapore (see Five Ocean Corporation v Cingler
Ship).
o Similarly, a Mareva injunctions was granted by Judith Prakash in AYK v AYN.
• Apply IAA interim measures above.
• Interim measures granted by SG Courts:
o [1] Injunction over all assets in Singapore in aid of foreign arbitration:
§ (Solvadis Commodity v Affert Resources):
• HELD: Mareva injunction was granted and Defendant’s appliucation
to discharge it was dismissed.
• s12A of IAA empowered High Court to grant interim measures in aid
of arbitration. This includes power to grant a Mareva injunction. On
the facts, the requirements of appropriateness (s12(3) of the IAA,
urgency (s12A(4) of the IAA) and inability of the arbitral tribunal to
act effectively for the time being (s12A(6) of the IAA) were
satisfied. To obtain Mareva injunction, the applicant had to show
good arguable case and that there was a real risk of dissipation of
assets. Need solid evidence to substantiate the alleged risk, which
might consists of direct evidence
• Defendant’s seeming lack of commercial morality lent credibility to
the Plaintiff’s contention that there was a real risk of dissipation of
assets. Also, series of events that transpired in the case strongly
suggested that the Defendant had no real intention to pay for the
cargo.
• Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi Shipping SA
[2003] 1 SLR(R) 157 ("Guan Chong Cocoa") at [17]. While there is
no need to show an intention to dissipate assets, a mere assertion that
there is a risk of dissipation will not suffice.
o [2] Power to preserve assets and evidence even where situated outside Singapore:
§ (Five Ocean Corporation v Cingler Ship):
44
OLD Cases:
- Swift-Fortune v Magnifica Marine SGCA (Caution: No Longer Good Law)
o Facts: Arbitration was to take place in London. SF filed an ex parte Mareva
injunction in Singapore to restrain M from disposing or dealing with its assets in
Singapore up to the value of US$2.5m.
o Issue: Whether Singapore courts empowered to grant interim measures in aid of an
arbitration that is not conducted in Singapore
o Held: No power
§ Object of the IAA
• The object of the IAA is to promote the kind of international
arbitration that would augment the legal and other kinds of services
already available in Singapore, and which is conducive to promoting
Singapore as an international arbitration centre
§ S 12(7) AA does not independently confer any power on the court in the
same way that ss 12(1) to 12(6) independently confer new powers on arbitral
tribunals.
• The court’s power under s 12(7) has to be found in another statutory
source. In the context of this case, that source can only be s 4(10) of
the CLA, read with s 18(1) of the SCJA.
§ S 4(10) CLA does not confer any power on the court to grant a Mareva
injunction against the assets of a defendant in Singapore unless the plaintiff
has an accrued cause of action against the defendant that is justiciable in a
Singapore court
• Where P has such a cause of action against D who is subject to the
personal jurisdiction of the Singapore court (as, eg, where he has
assets in Singapore), Front Carriers SGHC has decided that the court
has power under s 4(10) of the CLA to grant a Mareva injunction in
aid of the foreign arbitration to which the substantive claim has been
referred in accordance with the agreement of the parties, and by
implication, where the substantive claim is tried in a foreign court.
• The existence of the court’s personal jurisdiction over the defendant
in itself does not give power to the court to grant a Mareva injunction
in aid of a foreign arbitration
- The Siskina HL
o Facts: Ps. Who had no cause of action against D which was justiciable in England but
only an arbitral claim outside England, issued a writ against the defendants and
applied for a Mareva injunction to restrain the defendants from remitting abroad the
proceeds of insurance held in England
o Held: refused – jurisdiction to commence proceedings in England, and that no leave
could be granted
- Channel Tunnel HL
o Facts: Disputes were to be resolved by arbitration seated in Brussels. The builders
threatened to stop work over a dispute and the employers sought an interlocutory
injunction to restrain the builders from stopping work while the underlying dispute
was being referred to Brussels for arbitration
o Held: the court had jurisdiction to grant the interlocutory injunction on the basis that
the court retained a residual jurisdiction over the underlying cause of action
45
o Lord Browne-Wilkinson
§ The Siskina doctrine required P to have a substantive claim before the court
and D must be amendable to its jurisdiction before the court could grant a
Mareva Injunction
• But, it is not a requirement that the substantive claim must be
decided by an English court
• It was not necessary that the substantive claim must result in an
English judgment
§ The relevant question was whether the English court had power to grant the
substantive relief, not whether it would in fact grant it
§ Lord Mustill
• the doctrine of the Siskina, put at its highest, is that the right to an
interlocutory injunction cannot exist in isolation, but is always
incidental to and dependant on the enforcement of a substantive right
which usually although not invariably takes on the shape of a cause
of action. If the underlying right is not subject to the jurisdiction of
the English court, then that court should never exercise its power
under section 37(1) by way of interim relief.
• The Siskina doctrine had no application where the court continued to
retain a residual jurisdiction over the substantive right
o (a) where a contract entirely English in all respects is subject
to an agreement for arbitration in London: in this case, the
court continues to have jurisdiction over the dispute, whether
or not there is application for a stay;
o (b) a similar contract but where one party is a national of a
foreign state: the arbitration agreement ceases to be
domestic, but the cause of action is still “potentially
justiciable” by the English court, and will be adjudicated
upon if there is no stay; and
o (c) a contract with an arbitration agreement calling for
arbitration abroad.
§ If the seat of arbitration is abroad this source of
jurisdiction is cut off, and the inhibitions created by
the Siskina authorities will preclude the grant of an
injunction.
§ Nevertheless, if the facts are such that the court has
jurisdiction in some way other than the one just
described I can see no reason why the additional
foreign element should make any difference to
the residual jurisdiction of the court over the dispute,
and hence to the existence of the power to grant an
injunction in support. So also in the present case.
- Mercedez Benz (PC HK)
o Facts: A had sued the R1 in Monaco on a dishonoured promissory note (given
against money advanced) and had obtained an order attaching its assets, but the order
did not extend to the assets of the second defendant, a Hong Kong company, that A
had received part of the money.
46
§ A then applied ex parte to the High Court of Hong Kong for and obtained a
worldwide Mareva injunction restraining both respondents from dealing with
any of their assets, including R1’s shares in R2.
§ There was no claim for any substantive relief.
§ R1 applied to have the ex parte order discharged on the ground that the court
had no jurisdiction over him.
o Held: order discharged – no injunction
§ Whether the court had jurisdiction depends on the territorial jurisdiction over
D and the power to grant a Mareva injunction against D
• 1) O 11 r 1 did not permit the service outside the jurisdiction of a
writ claiming Mareva relief alone because a claim for such relief was
not a claim of that character, and that the claim for such relief did not
fall within O 11 r 1(m) because it was not brought to enforce
anything but to prepare the ground for a possible execution by
different means in the future, and there was, in any event, no
judgment in existence to enforce.
• 2) if there was jurisdiction over D, then P would need to show the D
was susceptible to personal service
- Front Carriers SGHC
o Facts: FCL negotiated the charter of a Panamax newbuilding to be called Double
Happiness with the Singapore representative of the defendants (“A&O”).
§ All disputes were to be referred to arbitration in London
o Held:
§ The contract was arguably made through an agent in Singapore on behalf of
A&O thus FCL’s claim for breach of charter was one that was recognisable
by the Singapore courts
§ There was a recognisable right between the parties, even though the right was
to be determined not by the court but by arbitration in London
§ Channel Tunnel followed, s 4(10) of the CLA, read with Art 9 of the Model
Law, conferred a general power on the court to grant Mareva relief in support
of foreign arbitrations.
o SGCA comments
§ the finding in Front Carriers that there was a cause of action justiciable in a
Singapore court differentiates it from the present case where Swift-
Fortune did not have such a justiciable right against Magnifica when it
obtained the ex parte Mareva injunction, and would never have it at any time.
- The Lady Muriel HKCA referred to in Swift-Fortune SGHC
o Issue: whether HK court had jurisdiction to order a survey to be conducted on a
vessel in its territorial waters in aid of arbitration in London
o Held: HK court had inherent jurisdiction and Channel Tunnel followed
§ Illustration of the principle that once personal jurisdiction is established, the
court has jurisdiction to grant interim relief based on its domestic law
§ It was not a necessary condition that for the grant of an interim measure of
protection that the measure must be ancillary to a final order to be granted by
the Hong Kong court. Although the Hong Kong Court of Appeal relied
on Channel Tunnel in support of its decision, the judgment itself did not
47
make explicit the necessity for the existence of a substantive claim justiciable
by the Hong Kong court.
o Swift-Fortune SGHC distinguished the case on the following grounds:
§ (a) the order to inspect the vessel while it was in Hong Kong waters was
analogous to an Anton Piller order;
§ (b) the order was given under the inherent jurisdiction of the court;
§ (c) the present case is concerned only with the extent of the court’s power
under s 4(10) of the CLA, and not under its inherent jurisdiction; and
§ (d) that decision was not concerned with a Mareva injunction but an order
analogous to an Anton Piller order, which is not within the terms of s 4(10).
48
INTERIM MEASURES (BY TRIBUNAL)
UNDER THE AA
Step 1: Powers
• The arbitral tribunal has such powers for the purposes of and in relation to the arbitration as
are agreed by the parties (s 28(1) AA)
• Further, s 28(2) AA confers the following powers regardless of what is provided by the
parties:
§ Nb: shall not be exercised by reason only that the claimant is (s 28(3) AA).
• (a) an individual ordinarily resident outside Singapore; or
• (b) a corporation or an association incorporated or formed under the
law of a country outside Singapore, or whose central management
and control is exercised outside Singapore.
o (d) a party or witness to be examined on oath or affirmation, and may for that purpose
administer any necessary oath or take any necessary affirmation;
o (e) the preservation and interim custody of any evidence for the purposes of the
proceedings;
o (f) samples to be taken from, or any observation to be made of or experiment
dispute; and
o (g) the preservation, interim custody or sale of any property which is or forms part of
the subject-matter of the dispute
Step 2: Enforcement
• [The tribunal’s interim measures are not immediately enforceable, and PARTY needs to
apply to court for leave to enforce it under s 28(4) IAA by way of summons supported by
affidavit.]
Step 3: Setting aside interim measure:

• [In PT Pukuafu Indah v Newmount Indonesia, it was held that an interim order made by an
arbitral tribunal under s 12 IAA is not an award and cannot be set aside. This case is likley to
apply by way of analogy.]
UNDER THE IAA
Step 1: Powers
• Art 17 MAL as annexed in the IAA provides that:
o unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, order any party to take such interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject-matter of the dispute.
o The arbitral tribunal may require any party to provide appropriate security in
connection with such measure.
• Further, s 12(1) IAA provides that an arbitral tribunal shall have powers to make orders or
give directions to any party for —
49

o (d) the preservation, interim custody or sale of any property which is or forms
part of the subject-matter of the dispute;
dispute;
proceedings;
§ E.g. interim anti-suit injunction as in PT Pukuafu v Newmont Indonesia.
Step 2: Enforcement
• [The tribunal’s interim measures are not immediately enforceable, and PARTY needs to
apply to court for leave to enforce it under s 12(6) IAA by way of summons supported by
affidavit.]
Step 3: Setting aside interim measure:

• [In PT Pukuafu Indah v Newmount Indonesia, it was held that an interim order made by an
arbitral tribunal under s 12 IAA is not an award and cannot be set aside.]
50
THE ARBITRAL AWARD
[A] DEFINITION
[1] Under the IAA

• [The titling of the document is not important or conclusive – the use or absence of the word
‘award’ is not conclusive (PT Asuransi Jasa Indonesia v Dexia Bank [2006] SGCA).]
• [An award means a decision of the arbitral tribunal on the substance of the dispute and
includes any interim, interlocutory or partial award but excludes any orders or directions
made under s 12 IAA (powers of arbitral tribunal) (S 2 IAA).]
o (d) the preservation, interim custody or sale of any property which is or forms part of
dispute;
proceedings;
[2] Under the AA

• [The title is not conclusive (PT Asuransi Jasa Indonesia v Dexia Bank [2006] SGCA).]
• [An award means a decision of the arbitral tribunal on the substance of the dispute and
includes any interim, interlocutory or partial award but excludes any order or direction made
under s 28 AA (general powers exercisable by arbitral tribunal) (S 2 AA:)]:
o (d) a party or witness to be examined on oath or affirmation, and may for that purpose
administer any necessary oath or take any necessary affirmation;
o (e) the preservation and interim custody of any evidence for the purposes of the
proceedings;
o (f) samples to be taken from, or any observation to be made of or experiment
dispute; and
o (g) the preservation, interim custody or sale of any property which is or forms part of
the subject-matter of the dispute
[B] FORM OF AWARDS
[1] Awards under the IAA
Essential requirements:
• [1] Writing and signed: [The award must be in writing and signed by the arbitrator (Art
31(1) MAL).]
51
• [2] Grounds: [The grounds or reasons for the decision must also be stated, unless the parties
do not require any (Art 31(2) MAL).]
o NB: The findings of the tribunal are not its reasons, but rather, its conclusions (Gora
Lal v Union of India).
• [3] Unambiguous and certain: [The award must also be unambiguous and certain, such that
no reasonable doubt can arise upon the face of it as to the arbitrator’s meaning, or as to the
nature and extent of the duties imposed by it on the parties (Tan Toi Lan v Lai Kee Ying
MLJ).]
o E.g. where money is ordered to be paid, payee should be identified
o E.g. where acts are ordered to be done, party to perform must be identified and acts to
be done must also be identified
o If uncertain, the award is invalid
• [4] Final and complete [The award must also be final, in that it is one that completes
everything that the arbitral tribunal is expected to decide, including the question of costs
(Jerrefy Tang v Stanley Tan). The tribunal cannot choose to ignore any issues raised even if it
feels that it may not be relevant to the final outcome (Shanghai Tunnel Engineering v Econ-
NCC Joint Venture).]
o [This is important as incomplete awards may not be enforceable (Art 33 MAL).]
o Cannot reserve or delegate – The tribunal cannot reserve to itself, or delegate to
another, the power of performing in the future any act of a judicial nature in relation
to matters dealt with in the award (Shanghai Tunnel Engineering v Econ-NCC Joint
Venture).
o Final save as to costs – Previously, it had been held by the SGCA that an award made
“final save as to costs” was not a final award, and consequently, the arbitrator was
permitted to revisit his prior decision (Jeffrey Tang v Stanley Tan)
o However, this has been changed with amendments to the IAA and AA.
o Tribunal cannot “vary, amend, correct, review, add to or revoke” award except
for clerical or calculation errors (s 19B IAA).
Formal requirements:
• [1] Date of the award;
• [2] Place of the arbitration;
o Not merely the venue as determine by Art 20(1) MAL.
o Significant consequences can result:
§ [1] As a Singapore award:
• The award will be recognised and enforced as if it were a Singapore
court judgment and judgment may be obtained upon it provided leave
is obtained from the court in Singapore (s 19 IAA).
• It may also be relied upon in any court proceeding in any court of
competent jurisdiction (s 19B(1) IAA).
• Only Singapore awards may be set aside.
§ [2] As a foreign award:
• Foreign awards, so far as Singapore is concerned, will be subject to
the provisions of Part III IAA. The form requirements for recognition
are straightforward and found in s 30 IAA.
o Part III IAA does not apply to foreign arbitration awards
made before 19/11/86 (s 28(2) IAA).
• Foreign awards are enforced by s 29 IAA; O 69A ROC.
o (PT Garuda V Birgen Air SGCA):
§ FACTS: the contract provided that the “the parties agree that such arbitration
shall be held in Jakarta, Indonesia” and the terms of reference of the
arbitration provided that the “place of arbitration is Jakarta, Indonesia”
• Due to political turmoil, the tribunal proposed that it should sit in
Singapore instead
52
• Arbitration was held entirely in Singapore

§ HELD: place of arbitration remained in Jakarta, Indonesia
• The fact that the venue was altered did not affect the place of the
arbitration
Made within time allowed:

• Made within time allowed by agreement or by law:
o SIAC Rule 28.2: 45 days from date on which the Tribunal declares the proceedings
closed;
o CIETAC Rules Art 48: within 6 months from constitution of the tribunal
o ICC Rules Art 30(1): 6 months from date of last signature by the arbitral tribunal, or
by parties of the Terms of Reference
• Out of time:
o [The tribunal loses its jurisdiction to make a valid award and becomes functus after
expiry of the time given (Ting Kang Chung John v Teo Hee Lai Building; Ian
MacDonald Library Services v PZ Resort Systems Inc).
§ Where the arbitrator overlooks te time limit within which to issue his award,
that is a very serious error (Ting Kang Chung John v Teo Hee Lai Building).
• No extension of time:
o [Party autonomy is the cornerstone of arbitration; if the parties have chosen to agree
to a time limit within which an arbitrator had to render his award and the contract or
arbitration clause DID NOT contain a provision for the extension of time other than
by mutual agreement, then no court will be in a position to re-write the contract for
the parties unless there was a statutory provision conferring such a power.]
§ No power under the IAA.
[2] Awards under the AA
Essential requirements:
• [1] Writing and signed: [The award must be in writing and signed by the arbitrator or
majority, provided the reason for the omitted signature is stated (s 38(1) AA).]
• [2] Grounds: [The grounds or reasons for the decision must also be stated, unless the parties
do not require any (s 38(2) AA).]
o NB: The findings of the tribunal are not its reasons, but rather, its conclusions (Gora
Lal v Union of India).
• [3] Unambiguous and certain: [The award must also be unambiguous and certain, such that
no reasonable doubt can arise upon the face of it as to the arbitrator’s meaning, or as to the
nature and extent of the duties imposed by it on the parties (Tan Toi Lan v Lai Kee Ying
MLJ).]
o E.g. where money is ordered to be paid, payee should be identified
o E.g. where acts are ordered to be done, party to perform must be identified and acts to
be done must also be identified
o If uncertain, the award is invalid
• [4] Final and complete [The award must also be final, in that it is one that completes
everything that the arbitral tribunal is expected to decide, including the question of costs
(Jerrefy Tang v Stanley Tan). The tribunal cannot choose to ignore any issues raised even if it
feels that it may not be relevant to te final outcome (Shanghai Tunnel Engineering v Econ-
NCC Joint Venture).]
o [This is important as incomplete awards may not be enforceable (s 43 AA).]
o Cannot reserve or delegate – The tribunal cannot reserve to itself, or delegate to
another, the power of performing in the future any act of a judicial nature in relation
to matters dealt with in the award (Shanghai Tunnel Engineering v Econ-NCC Joint
Venture).
53
o Final save as to costs – Previously, it had been held by the SGCA that an award made
“final save as to costs” was not a final award, and consequently, the arbitrator was
o However, this has been changed with amendments to the IAA and AA.
o Tribunal cannot “vary, amend, correct, review, add to or revoke” award except
for clerical or calculation errors –(s 44(2) AA).
Formal requirements (s 38(3) AA):

• [1] Date of the award;
• [2] Place of the arbitration;
o Not merely the venue as determine by Art 20(1) MAL.
o Under the MAL regime, an award is deemed to have been made at the seat of the
arbitration (unless otherwise indicated), therefore it determines the type of award it is
Art 31(3), 20(1) MAL.
o Significant consequences can result:
§ [1] As a Singapore award:
• The award will be recognised and enforced as if it were a Singapore
court judgment and judgment may be obtained upon it provided leave
is obtained from the court in Singapore s 46 AA).
• It may also be relied upon in any court proceeding in any court of
competent jurisdiction (s 19B(1) IAA).
• Only Singapore awards may be set aside.
§ [2] As a foreign award:
• Foreign awards, so far as Singapore is concerned, will be subject to
the provisions of Part III IAA. The form requirements for recognition
are straightforward and found in s 30 IAA.
o Part III IAA does not apply to foreign arbitration awards
made before 19/11/86 (s 28(2) IAA).
• Foreign awards are enforced by s 29 IAA; O 69A ROC.
o (PT Garuda V Birgen Air SGCA):
§ FACTS: the contract provided that the “the parties agree that such arbitration
shall be held in Jakarta, Indonesia” and the terms of reference of the
arbitration provided that the “place of arbitration is Jakarta, Indonesia”
• Due to political turmoil, the tribunal proposed that it should sit in
Singapore instead
• Arbitration was held entirely in Singapore
§ HELD: place of arbitration remained in Jakarta, Indonesia
• The fact that the venue was altered did not affect the place of the
arbitration
Made within time allowed:

• Made within time allowed by agreement or by law:
o SIAC Rule 28.2: 45 days from date on which the Tribunal declares the proceedings
closed;
o CIETAC Rules Art 48: within 6 months from constitution of the tribunal
o ICC Rules Art 30(1): 6 months from date of last signature by the artbiral tribunal, or
by parties of the Terms of Reference
• Out of time:
o [The tribunal loses its jurisdiction to make a valid award and becomes functus after
expiry of the time given (Ting Kang Chung John v Teo Hee Lai Building; Ian
MacDonald Library Services v PZ Resort Systems Inc).
o Where the arbitrator overlooks te time limit within which to issue his award, that is a
very serious error (Ting Kang Chung John v Teo Hee Lai Building).
• Extension of time:
54
o Application [An application may be made by ___ (s 36(2) AA)]:

§ (a) the arbitrator with notice to the parties;
§ (b) either party with notice to the other party and the arbitrator;
o Prerequisites:
§ [1] [The parties have nor excluded the court’s power to grant an extension of
time (s 36(1) AA):]
• Preferably done by providing that there shall be no enlargement of
time to make the award, whether by the parties or by the arbitrator
(Ting Kang Chung John v Teo Hee Lai Building).
§ [2] [All other processes to obtain an extension of time have been exhausted (s
36(3) AA):]
• Arbitrator should try to get the consent of the parties well before the
expiry of the time limit so that failing such agreement, he still has
time to make the application to court (Ting Kang Chung John v Teo
Hee Lai Building).
§ [3] [There will be no substantial injustice (s 36(4) AA)]
• [a] What are the terms of the arbitration award?
o If the arbitration agreement was clearly worded that the
arbitrator must issue the award within the stipulated time,
then the court should not interfere unless there are
exceptional circumstances.
• [b] Was there abuse by one party?
o Did one party try to frustrate the arbitration by delaying
tactics until it became impossible to comply with the time
limits?
• [c] Will one party suffer prejudice if extension were granted?
o Factual.
• [d] When was application made since limit expired?
o The longer the delay in making the application, the less
likely a court would exercise its discretion to extend, and
what is long will depend on each case.
o Generally, application should be made before the expiration
of time, and any application made after will require good
reasons and extenuating circumstances for the court to
exercise its discretion to extent time.
• [Party autonomy is the cornerstone of arbitration; if the parties have
chosen to agree to a time limit within which an arbitrator had to
render his award and the contract or arbitration clause DID NOT
contain a provision for the extension of time other than by mutual
agreement, then the court should be slow in granting the extension.]
§ YES Extension examples (Ting Kang Chung John v Teo Hee Lai Building):
• [1] Arbitrator taken ill for a substantial period of time after the close
of the hearing.
• [2] Fire on the arbitrator’s premises which caused his documents and
working papers to be destroyed.
• [3] The matter was much more complex than envisaged by the agreed
timeline and the arbitrator needs more time to render a properly
reasoned award.
§ (Ting Kang Chung John):
• FACTS: Arbitrator complained of various issues below.
• HELD: On the following issues:
• [1] That the issues raised were complex and/or complicated;
voluminous documents
55
o It was an overstatement – they were the usual kind of

disputes one would expect in any building and construction
dispute
• [2] Arbitrator complained of voluminous documents
o The arbitrator knew what he was facing after the hearing and
ought to have taken out an application well before the time
limited for the making of his award
• [3] Arbitrator complained of one of the parties making
innumerable challenges to his handling of the arbitration –
repeated allegations of procedural errors culminating in 22 interloc
applications
o They certainly are not of such a nature that would unduly
complicate the making of an award in a case like this.
Arbitrators just have to deal firmly with parties who
indulge in such tactics and who use intemperate and rude
language.
• [4] Arbitrator became president of Singapore Institute of
Architects after his appointment – a lot of unexpected matters
arose which involved him in that capacity
o An arbitrator who accepts an appointment should ensure he
has the time to complete his task
Appeals under the section

• Leave of court will be required for any appeal made from a decision of the court under this
section (s 36(6) AA).
[C] EFFECT OF THE AWARD

• [1] Final and binding:
o The tribunal cannot vary, amend, correct, review or revoke the award (s 44(2) AA, s
19B IAA).
• [2] Terminates arbitration:
o Arbitral proceedings are terminated by the final award or by an order of the arbitral
tribunal (Art 32(1) MAL).
• [3] Extinguishes original cause of action:
o The original cause of action is replaced by the right to enforce the award.
• [4] Arbitrator becomes functus officio:
o This means that its authority to act ceases, the reference terminates and the
award cannot thereafter be amended (Jeffrey Tang v Stanley Tan)
§ Previously, it had been held by the SGCA that an award made “final save as
to costs” was not a final award, and consequently, the arbitrator was
§ However, this has been changed with amendments to the IAA and AA
§ Tribunal cannot “vary, amend, correct, review, add to or revoke” award
except for clerical or calculation errors – s 19B IAA / s 44(2) AA.
o Tribunal is also functus in respect of issues disposed in Interim Awards so long as
they were issues which were referred to it for determination (MCIS Insurance v
Associated Cover)
§ If arbitrator makes an award on a particular controversy and calls it an
‘interim award’ and another award on another controversy, and the ‘interim
award’ is a decision on the controversy then regardless of the label, the
interim award is final.
56
§ E.g. interim award made on issue of liability and another award on

quantum; interim award on liability is final as the decision made is part
of the controversy
§ Arbitrator becomes functus officio and cannot revisit the issue of liability
when he deals with the other issue of quantum
57
58
CORRECTION OF AWARD
[A] CORRECTION UNDER IAA
[1] Amending for correction and interpretation:

• Time for application:
o [Application must be made within 30 days of the receipt of award, UNLESS another
period of time has been agreed upon by the parties (Art 33(1) MAL).]
§ The Arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award under
paragraph (1) or (3) of the Article (Art 33(4) MAL).
o [a] Requesting correction:
§ [Parties may request the arbitral tribunal to correct in the award any clerical
or typographical errors, or any errors of similar nature with notice to the other
party (Art 33(1)(a) MAL).]
§ The tribunal may also correct any error on its own initiative (Art 33(2) MAL).
o [b] Requesting interpretation:
§ [With the agreement of the other party, a party may request the interpretation
of a specific point or part of the award with notice given to the other party
(Art 33(1)(b) MAL).]
• Tribunal may grant request:
o [The tribunal may grant the request, and if so, shall make the correct/interpretation
within 30 days (Art 33(1) MAL).]
[2] Requesting for additional award:

• Request:
o [A party, with notice to the other, may request within 30 days of receipt of the award
for the tribunal to make an additional award as to claims presented in the arbitral
proceedings BUT omitted from the award (Art 33(3) MAL).]
o The Arbitral tribunal may extend, if necessary, the period of time within which it
shall make a correction, interpretation or an additional award under paragraph (1) or
(3) of the Article (Art 33(4) MAL).
o [If the arbitral tribunal considers the request to be justified, it shall make the
additional award within 60 days (Art 33(3) MAL).]
[3] No other corrections:

• No other corrections:
o [Apart from the above, the tribunal CANNOT vary, amend, correct, review, add to or
revoke the award except for clerical or calculation errors (s 19B IAA).]
o S 19B(2) IAA: Except as provided in Articles 33 and 34(4) of the Model Law, upon
an award being made, including an award made in accordance with section 19A, the
arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award.
[4] Form of correction/ interpretation/ additional award:

• The provisions of Art 31 MAL (as to form and contents of the award) shall apply to a
correction or interpretation of the award or to an additional award (Art 33(5) MAL).
59
[B] CORRECTION UNDER AA
[1] Amending for correction and interpretation:

• Time for application:
o [Application must be made within 30 days of the receipt of award, UNLESS another
period of time has been agreed upon by the parties (s 43(1) AA).]
§ The Arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award under
paragraph (1) or (3) of the Article (s 43(6) AA).
o [a] Requesting correction:
§ [Parties may request the arbitral tribunal to correct in the award any clerical
or typographical errors, or any errors of similar nature with notice to the other
party (s 43(1)(a) AA).]
§ The tribunal may also correct any error on its own initiative (s 43(3) AA).
o [b] Requesting interpretation:
§ [With the agreement of the other party, a party may request the interpretation
of a specific point or part of the award with notice given to the other party (s
43(1)(b) AA).]
§ The tribunal may give an interpretation on its own initiative (s 43(3) AA).
o [The tribunal may grant the request, and if so, shall make the correct/interpretation
within 30 days (s 43(2) AA).]
[2] Requesting for additional award:

• Time:
o [A party may request for an additional award within 30 days of receipt of the award,
unless otherwise agreed (s 43(4) AA).]
o The Arbitral tribunal may extend, if necessary, the period of time within which it
shall make a correction, interpretation or an additional award under paragraph (1) or
(3) of the Article (s 43(6) AA).
• Request:
o [A party, with notice to the other, may request within 30 days of receipt of the award
for the tribunal to make an additional award as to claims presented in the arbitral
proceedings BUT omitted from the award (s 43(4) AA).]
o [If the arbitral tribunal considers the request to be justified, it shall make the
additional award within 60 days (s 43(5) AA).]
[3] No other corrections:

• No other corrections:
o [Apart from the above, the tribunal CANNOT vary, amend, correct, review, add to or
revoke the award except for clerical or calculation errors (s 44(2) AA).]
[4] Form of correction/ interpretation/ additional award:

• The provisions of s 38 AA (as to form and contents of the award) shall apply to a correction or
interpretation of the award or to an additional award (s 43(7) AA).
60
RECOGNITION/ENFORCEMENT/RESISTING (SINGAPORE
AWARDS)
SINGAPORE AWARDS FOREIGN AWARDS
Domestic (AA) International (IAA) NYC Awards Non-NYC Awards
Recognition Auto Auto Auto; Art III NYC S 46(3) AA
Enforcement S 46 AA w leave S 19 IAA w leave S 29 IAA S 46(3) AA
Setting Aside S 48 AA Art 34 MAL; 24 IAA - -
Refusal of Art 36 r/w s 19 IAA S 31(2) IAA Likely Art 36.
R&E & PT Media v Astro
Appeal S 49 AA - - -
[1] SINGAPORE DOMESTIC AWARD (AA)

Recognition:
• [Singapore awards do not require recognition by the courts in Singapore (proceed straight to
enforcement).]
• Under AA:
o [Therefore, under the AA, an arbitral award would be a Singapore award and no issue
of recognition arises.]
o [But such awards are challenged by way of setting aside applications.]
Enforcement:
[1]: Where entered as judgment;
• [Enforcement of arbitral awards made in Singapore, whether in domestic or international
arbitration, requires the leave of court.]
• [The party may apply to the Singapore High Court for leave to enforce the award as a
judgment (s 46(1) AA).]
• [The application is made by way of Originating Summons (see O 69A r 3(1)(e) read with r 6
ROC)] and is to be supported by an affidavit (O 69A r 6(1) ROC). The affidavit must:]
o (a) exhibit the arbitration agreement or any record of the content of the arbitration
agreement with an authenticated copy of the original arbitral award accompanied by
translation where required.
o (b) state the name of the applicant with his usual address and the name of the party
against whom it is sought to enforce.
o (c) state details of how and to what extent the award has not been complied with is
also to be provided
• [Once leave is granted by the High Court to enter judgment on application to enforce the
award, the other party has 14 days to challenge the leve granted (O 69A r 6(4) ROC).]
o On challenging leave – see setting aside & appeal on question of law.
[2]: Where as set off or as defence in pending litigation:

• [Recognition by way of set-off or defence in pending litigation, can be relied upon in any
court proceedings in any court of competent jurisdiction (s 44(1) AA).]
• There is no need for leave.
61
Setting aside:
** NOTE that in the case of local or domestic arbitrations, the courts have greater interest in
exercising their supervisory powers.
** The observations on the grounds under s 31 IAA (refusal of enforcement) is also applicable to s 48
AA (setting aside), with the exception that the courts have greater interest in exercising their
supervisory powers over these awards as they are from domestic arbitrations (Fairmount).
Procedure:
• Time: [An application to must be made before the expiry of 3 months from the date on the
receipt of the award (s 48(2) AA).]
• Procedure: [The application is made by originating summons support by affidavit stating the
grounds on which the award should be set aside (O 69 r 5(1) ROC).]
o The supporting affidavit must (O 69 r 5(2) ROC):
§ (a) Have exhibited to it a copy of the arbitration agreement or any record of
the content of the arbitration agreement AND the award or any other
document relied on by the applicant (who shall be referred to in the
originating summons and hereafter in this Order as the plaintiff); and
§ (b) Set out any evidence relied on by the plaintiff;
• Opposing this application:
o [If the defendant wishes to oppose the application, he must file an affidavit stating the
grounds on which he opposes the application within 14 days after being served with
the originating summons (O 69 r 5(3) ROC).]
Grounds for setting aside:

[Section 48(1) AA sets out exhaustively when an award may be set aside by the court, which includes
the situation where, ___ …]
• (a) the party who applies to the Court to set aside the award proves to the satisfaction of the
Court that —
o (i) [Incapacity of a party] A party to the arbitration agreement was under some
incapacity;
o (ii) [Invalidity] The arbitration agreement is not valid under the law to which the
parties have subjected it, or failing any indication thereon, under the laws of
Singapore;
o (iii) [Lacking proper notice of arbitration proceedings] The party making the
application was not given proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to present his case;
o (iv) [Award is beyond scope] The award deals with a dispute not contemplated by
or not falling within the terms of the submission to arbitration, or contains decisions
on matters beyond the scope of the submission to arbitration, except that, if the
decisions on matters submitted to arbitration can be separated from those not so
submitted, only that part of the award which contains decisions on matters not
submitted to arbitration may be set aside;
o (v) [Irregularity in composition of tribunal & procedure] The composition of the
arbitral tribunal or the arbitral procedure is not in accordance with the
agreement of the parties, unless such agreement is contrary to any provisions of this
Act from which the parties cannot derogate, or, in the absence of such agreement, is
contrary to the provisions of this Act;
o (vi) [Fraud or corruption] The making of the award was induced or affected by
fraud or corruption;
62
o (vii) [Breach of natural justice] A breach of the rules of natural justice occurred
in connection with the making of the award by which the rights of any party have
been prejudiced
• (b) the Court finds that —
o (i) [Non-arbitrable] The subject-matter of the dispute is not arbitrable; or
o (ii) [Contrary to public policy] The award is contrary to public policy.
[2] SINGAPORE INTERNATIONAL AWARD (IAA)
Recognition:
• [Singapore awards do not require recognition by the courts in Singapore (proceed straight to
enforcement).]
Enforcement:
[1]: Where entered as judgment;
• [Enforcement of arbitral awards made in Singapore, whether in domestic or international
arbitration, requires the leave of court.]
• [The party may apply to the Singapore High Court for leave to enforce the award as a
judgment (s 19 IAA).]
• [The application is made by way of Originating Summons (see O 69A r 3(1)(e) read with r 6
ROC)] and is to be supported by an affidavit (O 69A r 6(1) ROC). The affidavit must:]
o (a) exhibit the arbitration agreement or any record of the content of the arbitration
agreement with an authenticated copy of the original arbitral award accompanied by
translation where required.
o (b) state the name of the applicant with his usual address and the name of the party
against whom it is sought to enforce.
o (c) state details of how and to what extent the award has not been complied with is
also to be provided
• [Once leave is granted by the High Court to enter judgment on application to enforce the
award, the other party has 14 days to challenge the leve granted (O 69A r 6(4) ROC).]
o On challenging leave – see setting aside & appeal on question of law.
[2]: Where as set off or as defence in pending litigation:

• [Recognition by way of set-off or defence in pending litigation, can be relied upon in any
court proceedings in any court of competent jurisdiction (s 19B IAA).]
• There is no need for leave.
Setting aside:
** NOTE that in the case of local or domestic arbitrations, the courts have greater interest in
exercising their supervisory powers.
** The observations on the grounds under s 31 IAA (refusal of enforcement) is also applicable to s 48
AA (setting aside), with the exception that the courts have greater interest in exercising their
supervisory powers over these awards as they are from domestic arbitrations (Fairmount).
Step 1: Setting aside only at arbitral seat:

• Setting aside can ONLY be done at the arbitral seat (Garuda v Birgen Air).
o NB: Seat, NOT venue.
o The seat of the arbitration and the law of the place governs the arbitral proceedings”.
See Redfern and Hunter on International Arbitration, 5th edition (Oxford) Chapter 2.
63
• The court has no power to investigate the merits of the dispute or review any decision of law
or fact made by the tribunal.
o No power to remit to the tribunal to reconsider the matter on the merits.
o BUT, the court may suspend the setting aside application proceedings to allow the
tribunal to eliminate grounds for setting aside (Art 34(4) MAL).
Step 2: Procedure:
• Time: [An application for setting aside may NOT be made after 3 months have elapsed from
the date on which the party making the application had received the award (Art 34(3) IAA).]
o Or if a request had been made under Art 33, from the date on which that request had
been disposed of by the arbitral tribunal (Art 34(3) MAL).
Step 3: Grounds:
[Art 34(2) MAL and s 24 IAA sets out exhaustively when an award may be set aside by the court,
which includes the situation where, ___ …]
• (a) the party making the application furnishes proof that:
o (i) [Incapacity or invalid] a party to the arbitration agreement referred to in Article 7
was under some incapacity; or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication thereon, under the law of
this State; or
o (ii) [Lacking proper notice or unable to present case] the party making the
application was not given proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to present his case; or
o (iii) [Award is beyond scope] the award deals with a dispute not contemplated by or
not falling within the terms of the submission to arbitration, or contains decisions on
matters beyond the scope of the submission to arbitration, provided that, if the
decisions on matters submitted to arbitration can be separated from those not so
submitted, only that part of the award which contains decisions on matters not
submitted to arbitration may be set aside; or
o (iv) [Irregularity in composition of tribunal & procedure] 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; or
• (b) the court finds that:
o (i) [Non-arbitrable] the subject-matter of the dispute is not capable of settlement by
arbitration under the law of this State; or
o (ii) [Contrary to public policy] the award is in conflict with the public policy of this
State.
• In addition to grounds under Art 34(2) MAL (s 24 IAA):
o (a) [Fraud] the making of the award was induced or affected by fraud or corruption;
or
o (b) [Breach of natural justice] a breach of the rules of natural justice occurred in
connection with the making of the award by which the rights of any party have been
prejudiced
• Cannot set aside if grounds of decision on the merits was perverse or irrational (Sui Southern
Gas v Habibullah).
Step 4: Court’s discretion:

• Court’s discretion: [The court, whether under Art 34 MAL or s 24 IAA, retains a discretion
not to set the award aside].
• [However, the court will usually enforce the award, unless _____ :]
o [a] Prejudice has been sustained by the aggrieved party (CRW Joint Operation v PT
Perusahaan);
64
o [b] There was a fundamental defect with the award;

§ e.g. the respondent was a non-party (Dallah Estate v Ministry of Religious
Affairs Pakistan).
• May suspend proceedings for tribunal to act: [The court, when asked to set aside an award,
may where appropriate and so requested by a party, suspend the setting aside proceedings for
a period of time determined by it, in order to give the arbitral tribunal an opportunity to
resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s
opinion will eliminate the grounds for setting aside (Art 34(4) MAL).]
Refusal of enforcement
• [It should be noted that the provisions on refusal to enforce awards under s 31 IAA only apply
to foreign awards and whilst Art 36 MAL applies to awards irrespective of where they were
made, Art 36 is part of Chapter VIII and consequently does not have force of law in
Singapore (s 3(1) IAA).]
• [However, the SGCA in PT First Media v Astro Nusantara has held that the same grounds for
resisting enforcement under Art 36 MAL will apply to applications to enforce Singaporean
International Arbitration Awards under s 19 IAA.]
Enforcement of an arbitral award, irrespective of where it was made, may be refused at the request
of the party against whom it is invoked on proof that: Art 36(1)(a) Model Law
• (i) a party to the arbitration agreement referred to in Article 7 was under some incapacity; or
the said agreement is not valid under the law to which the parties have subjected it or, failing
any indication thereon, under the law of the country where the award was made; or
• (ii) the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
• (iii) the award deals with a dispute not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope of the
submission to arbitration, provided that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, that part of the award which contains decisions
on matters submitted to arbitration may be recognised and enforced; or
• (iv) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
• (v) the award has not yet become binding on the parties or has been set aside or suspended
by a court of the country in which, or under the law of which, that award was made; or
Enforcement of an arbitral award, irrespective of where it was made, may be refused by the court on
its own motion if the court finds that: Art 36(1)(b) Model Law
• (i) the subject-matter of the dispute is not capable of settlement by arbitration under the
law of this State; or
• (ii) the recognition or enforcement of the award would be contrary to the public policy of this
State
65
66
RECOGNITION/ENFORCEMENT (FOREIGN AWARDS)
[1] FOREIGN (NYC AWARDS):
Recognition and enforcement:
MODE 1: Recognition and enforcement under the NY Convention:

• [Art III NYC requires the contracting states to recognise the NYC arbitral awards as binding
and to enforce them subject to the conditions laid down in the NYC.]
• Obtaining recognition and enforcement:
o [The applicant is to supply (Art IV(1) NYC) …]:
§ (a) the duly authenticated original award or a duly certificated copy thereof;
§ (b) the original arbitration agreement;
§ If the award or arbitration agreement is not in Singapore’s official language
(English), to also provide certified translations (Art IV(2) NCY).
• Resisting recognition and enforcement:
o [The Singapore High Court may decline to enforce the award if the respondent proves
____ (Art V(1) NYC):]
§ (a) parties were under some incapacity, or the arbitration agreement is not
binding
§ (b) lack of proper notice of appointment of arbitrator or proceedings
§ (c) award deals with matters outside the scope of the arbitration agreement
§ (d) composition of the arbitral authority or the arbitral procedure was not in
accordance with the arbitration agreement
§ (e) if award has been set aside or suspended by a competent court in which,
or under the law of which, that award was made
§ This is unique to NY Con
o [The Singapore High Court may decline to recognise or enforce it if ___ (Art V(2)
NYC):]
§ (a) the subject-matter of the difference is not capable of settlement by
arbitration under the law of that country; or
§ (b) the recognition or enforcement of the award would be contrary to the
public policy of that country.
MODE 2: Enforced by action under common law:

• [Enforcement can be sought through the common law as an action for the breach of payment
of the award. The award is used as parties best evidence of such a breach (see Alexander
Tsavliris v Keppel Corp)]
o There is an implied promise in every arbitration agreement that the parties will
perform the award. If a party to an arbitration agreement acts in breach of this implied
promise by failing to comply with the award, the successful party may bring an action
to enforce the award in any court of competent jurisdiction.
o Therefore, an action on an arbitration award is really founded on the agreement to
submit to the difference of which the award is the result.
MODE 3: Recognised as binding for all purposes and be relied upon by any of those parties by way of
defence, set-off or otherwise in any legal proceedings in Singapore:
• [Foreign awards that are not registered or not registrable for enforcement may however be
recognised (as opposed to being enforced by way of execution) as conclusive findings of fact
and law in proceedings which may be commenced in the Singapore Courts, based on the
original cause of action or related proceedings (such as a statutory demand).]
67
• (Pacific King v Glory Wealth Shipping):

o HELD: Ds did not have to enforce the award under the IAA before it could bring
winding-up proceedings against the plaintiffs.
o No authority is cited for me for the proposition that a successfully party to a foreign
arbitration award is obliged and confined to enforce the award only by way for
enforcement proceedings under the IAA, and is thereby precluded form issuing a
statutory demand based on a foreign arbitration award followed, if unsatisfied, by a
winding-up application on the grounds of a presumption of insolvency.
o The IAA provided a platform through which a party might have an award in its
favour recognized and enforced, but it was not the only means by which a party might
seek to utilize an award it had obtained
Refusal of recognition and enforcement:

• See above if NYC.
At request by aggrieved party:

• [The enforcement of an arbitral award, irrespective of where it was made, may be refused at
the request of the aggrieved party on proof that (s 31(2) IAA)]
o (a) a party to the arbitration agreement referred to in Article 7 was under some
incapacity; or the said agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon, under the law of the country
where the award was made; or
o (b) the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
o (c) he was not given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his case in the
arbitration proceedings;
o (d) subject to subsection (3), the award deals with a difference not contemplated by,
or not falling within the terms of, the submission to arbitration or contains a decision
on the matter beyond the scope of the submission to arbitration;
§ (3) but may be enforced to the extent that those matters can be severed
o (e) the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
o (f) the award has not yet become binding on the parties to the arbitral award or has
been set aside or suspended by a competent authority of the country in which, or
under the law of which, the award was made.
o Parties can make prayers below.
By Court on its own motion:

• [The enforcement of an arbitral award, irrespective of where it was made, may be refused by
the court on its own motion if the court finds that (s 31(4) IAA)].
o (a) the subject-matter of the difference between the parties to the award is not capable
of settlement by arbitration under the law of Singapore; or
o (b) enforcement of the award would be contrary to the public policy of Singapore.
Cannot set aside award in Singapore:

• [Setting aside is not available as it can only be done at the arbitral seat (Garuda v Birgen
Air).]
68
[2] FOREIGN (NON-NYC AWARDS):
Recognition and enforcement:
MODE 1: Recognition under s 46(3) AA:

• [In Singapore, a foreign award which is NOT a NYC award may also be recognised or
enforced in Singapore under the domestic AA as it applies to awards irrespective of where the
seat of arbitration is (s 46(3) AA).]
• [Apply AA provisions above]
MODE 2: Action under common law:

• [Enforcement can be sought through the common law as an action for the breach of payment
of the award. The award is used as parties best evidence of such a breach (see Alexander
Tsavliris v Keppel Corp)]
o There is an implied promise in every arbitration agreement that the parties will
perform the award. If a party to an arbitration agreement acts in breach of this implied
promise by failing to comply with the award, the successful party may bring an action
to enforce the award in any court of competent jurisdiction.
o Therefore, an action on an arbitration award is really founded on the agreement to
submit to the difference of which the award is the result.
MODE 3: Recognised as binding for all purposes and be relied upon by any of those parties by way of
defence, set-off or otherwise in any legal proceedings in Singapore:
• [Foreign awards that are not registered or not registrable for enforcement may however be
recognised (as opposed to being enforced by way of execution) as conclusive findings of fact
and law in proceedings which may be commenced in the Singapore Courts, based on the
original cause of action or related proceedings (such as a statutory demand).]
• (Pacific King v Glory Wealth Shipping):
o HELD: Ds did not have to enforce the award under the IAA before it could bring
winding-up proceedings against the plaintiffs.
o No authority is cited for me for the proposition that a successfully party to a foreign
arbitration award is obliged and confined to enforce the award only by way for
enforcement proceedings under the IAA, and is thereby precluded form issuing a
statutory demand based on a foreign arbitration award followed, if unsatisfied, by a
winding-up application on the grounds of a presumption of insolvency.
o The IAA provided a platform through which a party might have an award in its
favour recognized and enforced, but it was not the only means by which a party might
seek to utilize an award it had obtained
Refusal and recognition and enforcement:

• The court cannot refuse recognition of a NYC award, except on the grounds in s 31(2) IAA
(and 2 additional grounds under s 31(4) IAA).
By the aggrieved party:

• [The enforcement of an arbitral award, irrespective of where it was made, may be refused at
the request of the aggrieved party on proof that: s 31(2)(a) IAA.
o (a) [Incapacity] a party to the arbitration agreement in pursuance of which the award
was made was, under the law applicable to him, under some incapacity at the time
when the agreement was made;
o (b) [Invalid] the arbitration agreement is not valid under the law to which the parties
have subjected it or, in the absence of any indication in that respect, under the law of
the country where the award was made;
69
§ It was accepted in Manuchar Steel Hong Kong v Star Pacific that pursuant to
s 31(2)(b) IAA, it is ‘not possible to seek enforcement of an arbitration award
against a non-party to the arbitration agrement’.
o (c) [Improper notice/ unable to present case] he was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was otherwise
unable to present his case in the arbitration proceedings;
o (d) [Outside scope] subject to subsection (3), the award deals with a difference not
contemplated by, or not falling within the terms of, the submission to arbitration or
contains a decision on the matter beyond the scope of the submission to arbitration;
o (e) [Composition not in accordance with law] the composition of the arbitral
authority or the arbitral procedure was not in accordance with the agreement of the
parties or, failing such agreement, was not in accordance with the law of the country
where the arbitration took place; or
§ This is a classic example of the application of the party autonomy principle in
arbitrations. The choice of parties previously agreed to must be given effect.
See China Nanhai Oil Joint Service Cpn v Gee Tai Holdings Co Ltd a
decision of the Hong Kong court Vol XX (1995) Yearbook Commercial
Arbitration 671. A CIETEC arbitration was conducted by arbitrators from the
Shenzhen list and not by those on the Beijing list as provided for in the
arbitration agreement. The HK court although agreeing the ground was made
out, nevertheless permitted enforcement because it found the party
objecting had participated in the proceedings any way.
• Search term: estopped, estop; waive; waiver
§ (Possible reason – courts always veer toward rendering an arbitral award as
being valid or enforceable, where it is an arbitration friendly court which
looks at the core issue namely that parties had consensually opted for
arbitration. That core intent should therefore be given effect and a party
should not be permitted to easily avoid such previous agreement to arbitrate).
o (f) [Not yet binding] the award has not yet become binding on the parties to the
arbitral award or has been set aside or suspended by a competent authority of the
country in which, or under the law of which, the award was made.
§ The ground is self-explanatory. However, in practice national courts have
used this to refuse enforcement on their own policy grounds – see Chapter
10, Law and Practice of International Commercial Arbitration.
By the court on its own motion:

• [The enforcement of an arbitral award, irrespective of where it was made, may be refused by
the court on its own motion if the court finds that (s 31(4) IAA)]
o (a) [Subject matter not capable of settlement] the subject-matter of the difference
between the parties to the award is not capable of settlement by arbitration under
the law of Singapore; or
§ i.e. non-Arbitrability.
o (b) [Public policy] enforcement of the award would be contrary to the public policy
of Singapore.
Cannot set aside award in Singapore:

• [Setting aside is not available as it can only be done at the arbitral seat (Garuda v Birgen
Air).]
70
EXPANSION OF GROUNDS TO SET ASIDE
GENERALLY
When applying to AA:
• [It is important to note for local or domestic arbitrations, the courts have a greater interest in
exercising their supervisory powers (Fairmount Development v Soh Beng Tee), this is as the
Arbitration Act, being enacted later, does not follow the MAL in its entirely and the courts
have more supervisory powers in respect of domestic arbitrations than they do in respect of
international arbitrations (Fairmount).
When applying IAA:

• [It is not open to the court to set aside an award under the IAA on the grounds that the
decision on the merits was perverse or irrational (Sui Southern Gas v Habibullah Coastal
Power).]
GROUNDS
[1] Incapacity or invalid agreement:

• Either:
o Agreement not valid;
o Non-party to arbitration agreement; or
o No capacity to enter into arbitration agreement under it’s personal law
o unsoundness of mind, infancy, lack of authority under the company’s MOA/AOA
(i.e. no authority to enter into arbitration agreement)
• The SGHC will not disturb tribunal’s finding of property party (Aloe Vera of America v
Asianic Food).
• It cannot be relied upon if P participated in the arbitration without reservation (Slaney v
IAAF; Azoz Shipping v Baltic Shipping (No 3)).
o P would have had the opportunity not to agree to arbitration and cannot merely sit
back and allow the arbitration to go forward and only after it dispute its validity – P
estopped from raising argument
o This usually happens if P is arguing that it is not a party to the arbitration (Azov
Shipping v Baltic Shipping).
[2] Improper notice or unable to present case:

[a] Improper notice:
• [The test as to whether notice is adequate is a question of fact, and the requirement is not
simply to raise the lack of notice, but to also prove it.]
o The requirement is not simply to raise no notice but also to prove it.
o (National Development Company v Khashoggi):
§ Failure to attend hearing for fear of extradition does not constitute a denial of
opportunity to be heard
o Nb: If steps were taken in the arbitration proceedings, absence of receipt of actual
notice is irrelevant
o Nb: refusal to participate in proceedings is not a ground for setting aside; it is a
forfeiture of the right to be heard (Re Corporacion Transnacional de Inversiones).
71
[b] Unable to present case:

• [A tribunal’s failure to afford the losing party an equal and adequate opportunity to present its
case during arbitration can provide grounds for annulling the award. The test is whether a
party was in fact prevented from presenting his case in arbitration.]
o But fear of extradition proceedings NO: [A fear of extradition proceedings is not
an excuse to absent a party from the proceedings and then argue that he was unable to
present his case. In a case where the absent party to an arbitration challenged the
arbitral award in the New York courts on the ground that he did not attend the
proceedings and was therefore unable to present his case because he feared
extradition proceedings if he attended it in England, the Court did not accept such an
argument and held that the right to be heard was not violated – ICCA Yearbook
XVIII, US 130.]
o But tribunal’s refusal to adjourn/more time NO: (Minmetals Germany GmbH v
Ferco Steel):
§ The fact that the tribunal had refused to extend time or allow adjournment of
hearing is itself not a denial of the right to be heard.
§ Nor where parties fail to take advantage of an opportunity to present their
case for reasons within their control (lawyer’s failure was deemed to be
within parties’ control, hence not a denial of right).
o Failure due to reasons within their control NO: (Minmetals Germany GmbH v
Ferco Steel):
§ The fact that parties fail to take advantage of an opportunity to present their
case for reasons within their control (the lawyer’s failure was deemed to be
within parties’ control, hence not a denial of the right) is itself not a denial of
the right to be heard.
o Spanish Court of Appeal set aside an award rendered in proceedings where the
arbitrator had been refused access by the other party to the premises the construction
which was the subject matter of the dispute (Egson Constructions v Canteras Y
Constructions).
• Arbitration issued decision without hearing the other side (Koh Bros v Scotts Development).
[3] Award was beyond scope or deals with contemplated dispute:

• à NB: Aware is severable – only the award that deals with matters outside the scope of the
arbitration, will be set aside.
o [Here, the two stage test per CRW Joint Operation v PT Perusahaan is instructive
(see also PT Asuransi)]
• Two-stage test: (CRW Joint Operation v PT Perusahaan; PT Asuransi v Dexia Bank):
o Step [1]: [First, we look at what matters were within the scope of submission to the
arbitral tribunal]
§ The arbitrator may examine the correspondence between the parties to
ascertain their intention when appointing him (PT Asurasi v Dexia).
o Step [2]: [Second, we look at whether the arbitral award involved such matters or
whether it involved a ‘new difference’ outside the scope of the submission to
arbitration and irrelevant to the issues requiring determination.]
• Also includes omitting to decide matters that had been submitted to it (CRW Joint
Operation v PT Perusahaan).
o But mere failure to deal with every issue referred to it will not ordinarily render its
arbitral award liable to be set aside.
o The crucial question in every case is whether there has been real or actual prejudice
to either (or both) of the parties to the dispute
§ The significance of the issues that were not dealt with has to be considered in
relation to the award as a whole. For example, it is not difficult to envisage a
situation in which the issues that were overlooked were of such importance
72
that, if they had been dealt with, the whole balance of the award would have
been altered and its effect would have been different.
• There will be a breach if:
o The tribunal was only asked to determine quantum of damages but tribunal dealt with
issue of liability as well (Pacol v Joint Stock).
o “All disputes as to quality or condition of rubber or other disputes arising under these
contract regulations” – arbitrator awarded damages for failing to open a letter of
credit as required by the contract (Tiong Huat Rubber Factory v Wah-Chang
International Company Limited).
§ HELD: “contract regulations” covered specific provisions but not letters of
credit
• Not a breach if:
o Decided an issue which surfaced in the course of arbitration and was known to all
parties although not part of the memo of issues or the pleadings (TMM v Pacific
Richfield).
o Deciding on an unargued premise which reasonably flowed from an argued premise
(TMM v Pacific Richfield).
§ Arbitrator does not need to invite parties to submit new arguments on this –
he can make the necessary inferences
[4] Irregularity in tribunal composition/ not in accordance with parties’ agreement:

• A mere technical breach is not enough: [Not all technical or minor breaches would
invariably result in an award being set aside and the court will consider the materiality of the
breach and the nature of the departures from the parties’ agreed arbitral procedure (Triulzi
Cesare SRL v Xinyi Group (Glass) Co Ltd).]
• There must be actual prejudice: [The applicant must prove materiality and proof of actual
prejudice (ie, where the procedural breach complained of could reasonably have said to have
altered the final outcome of the arbitral proceedings in some meaningful way). otherwise
court might not exercise discretion to set aside (China Nanhai Oil v Gee Tai).]
o (China Nanhai Oil v Gee Tai):
§ FACTS: arbitration was conducted by arbitrators from the Shenzhen list and
not by those on the Beijing list as provided for in the arbitration agreement
§ HELD: technical breach
• Discretion refused - Gee Tai had taken part in the arbitration
knowing that technically the arbitrators were not selected from the
correct list and without reserving its rights and without continuing
to contest the Shenzhen branch’s jurisdiction.
• Gee Tai was therefore estopped from challenging the branch’s
jurisdiction at the enforcement stage
o [The supervising court would also be wary of any attempts by a party to repackage or
re-characterise its original case and arguments that were previously advanced in the
arbitration for the purpose of challenging the award (BLC v BLB)]
• Includes lack of partiality or independence of arbitrator (PT Central Investido v
Franciscus Wongso).
o The requirement of impartiality or independence amounts to a mandatory provision
implied under Art 12(2) the breach of which is “not in accordance with this Law”.
• Irregularity in composition of tribunal:
o While prejudice is not a legal requirement for an award to be set aside pursuant to Art
34 (2)(a)(iv), it is a relevant factor that the supervisory court considers in deciding
whether to exercise its discretion to set aside the award for the breach in question
(AQZ v ARA).
o As in other contexts, a party's failure to object to departures from agreed procedures
will virtually always waive any objection.
§ (China Nanhai Oil Joint Service Cpn v Gee Tai Holdings Co Ltd):
73
• A CIETEC arbitration was conducted by arbitrators from the

Shenzhen list and not by those on the Beijing list as provided for in
the arbitration agreement. The HK court although agreeing the
ground was made out, nevertheless permitted enforcement because it
found the party objecting had participated in the proceedings with
knowledge that arbitrators were not from the agreed list.
• More, see Hannah page 30.
[5] Non-Arbitrability:
• Exclusive areas of law: [Generally, a State reserves to itself specific areas of law in which it
alone has the exclusive jurisdiction to deal with.]
o e.g., citizenship or legitimacy of marriage, grants of statutory licences, validity of
registration or trademarks or patents, copyrights, winding-up of companies,
bankruptcies of debtors, administration of estates
• See above for more
[6] Contrary to public policy:

• NB: The public policy test for setting aside an arbitral award under Art 34(2)(b)(ii) (IAA
setting aside) is no different from the enforcement regime under s 31(4)(b) of the IAA
(Refusal of recognition and enforcement) (AJU v AJT).
• [An award may be set aside when it is in conflict with the public policy of Singapore. Public
policy under this ground is not to be equated with domestic public policy, but narrowly
confined to fundamental notions and principles of justice.]
o Thus, instances such as corruption, bribery or fraud and similar cases would
constitute a ground for setting aside.
• Test: [In Singapore, the conventional wisdom is that a narrow interpretation should be given
to the public policy ground (Halsbury Laws, Vol 2, pg 136), and it reserved only for
exceptional cases, for arbitral awards that would ‘shock the conscience’ of the court, be
clearly injurious to the public good, be wholly offensive to the ordinary reasonable and
fully informed member of public, or ‘violate the forum’s most basic notions of morality
and justice’ (PT Asuransi Jasa Indonesia). ]
o Public policy is a question of law (AJU v AJT).
• Not to second-guess findings: [However, as courts should give deference to and should not
reopen and examine a tribunal’s finding of fact (see AJU v AJT), it should not be used as a
basis to revisit and second-guess findings.]
o However, an error of law on what public policy is, would justify intervention (AJU v
AJT).
• Comity: [Moreover, the principle of comity of nations requires that the awards of foreign
arbitration tribunals be given due deference and be enforced unless exceptional circumstances
exist (Hainan Machinery Import)]
o Apply AJU v AJT
o NB: Agreements whose object to be attained is a breach of international comity will
be regarded by the courts as being against public policy and void (See Peh Teck Quee
V Bayerische Landesbank Girozentrale).
• à (AJU v AJT):
o Court considered 2 different approaches above, and favoured the Westacre approach
as it gave primacy to the autonomy of arbitral proceedings and upholding the finality
of arbitral awards.
o The court is entitled to decide for itself as a matter of law what public policy of
Singapore is and whether any agreement governed by Singapore law is illegal.
o BUT it will not do so IF:
§ (a) The tribunal did NOT ignore palpable and indisputable illegality and
had considered all relevant surrounding circumstances in interpreting te
settlement agreement;
74
§ (b) The tribunal had found as findings of fact, that the intention of the
parties did not involve illegality; and
§ (c) The illegality engaged in the case was premised on those findings of
fact which ought not have been re-opened by the court as the public
policy exception is limited to findings of law made by the tribunal, to the
exclusion of findings of facts, absent fraud, breach of natural justice or
some other recognised vitiating factor.
o [Public policy is a question of law and when considering whether public policy of
Singapore is engaged, the court would not reopen and examine the tribunal’s finding
of fact.]
o [However, errors on law of what public policy is, justifies intervention.]
• CAN NOTE IF TIME:
o [Moreover, the Singapore Court of Appeal in AJU v AJT declined to follow the
English Court of Appeal’s approach in Soleimany, where it held that the court could
in appropriate cases reopen the tribunal’s finding of fact on illegality, and preferred
the approach in Westacre, where the court would only reopen a tribunal’s finding
where the challenge was based on facts not placed before the tribunal.]
o [The SGCA also reaffirmed the principle that even if an arbitral tribunal’s findings of
law or fact were wrong, such errors would not per se engage the public policy of
Singapore (see AJU v AJT).]
o [The court did clarify that an erroneous finding of law as to Singapore’s public policy
would be grounds for setting aside the award (see AJU v AJT).]
• [APPLY FACTS]
o [The line of authorities have shown an attitude of minimal curial intervention, a
healthy respect for the arbitral process and giving due effect to commercial decisions
to enter into arbitration agreements.]
• There will be a breach if:
o [a] Lack of impartiality or independence of the tribunal (Beijing Sinozonto
Mining v Goldenray Consortium):
§ A lack of impartiality and independence of the tribunal that would certainly
shock the conscience and be clearly injurious to the public good or wholly
offensive to the ordinary reasonable and fully informed member of the
public.
o [b] Fraud of corruption:
§ High threshold (Sui Southern Gas v Habibullah).
o [c] Contract is illegal (AJT v AJU):
§ The court is entitled to decide for itself whether the underlying contract was
illegal and set aside the award if so.
§ BUT, it will NOT reopen the tribunal’s finding that the contract was not
illegal if it palpably ignored an indisputable illegality.
• There will not be a breach if:
o [a] Error of law:
§ The IAA would be internally inconsistent if the public policy provision in Art
34 MAL is construed to enlarge the scope of curial intervention to set aside
errors of law or fact (PT Asuransi v Dexia).
§ [Can only set aside if upholding the decision would:
• (a) shock the conscience of the court, or
• (b) be clearly injurious to the public good or
• (c) be wholly offensive to the ordinary reasonably and fully informed
member of the public.]
o [b] Irrationality (Sui Southern Gas v Habibullah).
Cases:
• (AJU v AJT):
75
oFavoured approach (Westacre EWCA):

§ FACTS: P was to procure arms contract for D with Kuwait. Dispute on fees
payable to P. Underlying contract was illegal under Kuwaiti law.
§ HELD: Enforceable. The court was not asked to enforce the underlying
contract but the award.
o Rejected approach (Soleimany EWCA):
§ FACTS: Contract for illicit enterprise of smuggling carpets out of Iran.
§ HELD: EWCA refused to enforce (not followed in Singapore.
§ à SGCA in AJU v AJT: EWCA’s position in this case is inconsistent with
the legislative policy of the IAA of giving primacy to the autonomy of
arbitral proceedings and upholding the finality awards.
• (Re An Arbitration between Hainan Machinery Import):
o FACTS: Argued that award made in China should not be enforced as it did not
decide the real issues of the dispute between parties, thus to enforce the award would
be an injustice and offend public policy under s 31(4)(b) IAA
o HELD: No allegation of illegality or fraud and enforcement would not be
injurious to the public good.
o It was just a backdoor route to inviting the court to look at the merits of the case.
o Principle of comity of nations requires that awards of foreign arbitration tribunals be
given due deference and be enforced unless exceptional circumstances exist.
• (Aloe Vera of America v Asianic Foods):
o FACTS: Argued that enforcement of foreign awards that sought to bind non-
signatory SG Citizen to an award would be contrary to PP.
o HELD: It would not be a breach by any stretch of imagination offend against the
most basic notions of justice that the Singapore court adheres to.
o Arbitration awards would be enforced unless they offended against our basic notions
of justice and morality, and the second defendant had not established on the facts that
the Award was of such an offensive nature.
• (PT Asuransi v Dexia Bank):
o Broad view not adopted: To adopt a broad view of the public policy ground as in
Saw Pipes would be inimical to Singapore’s broader interests.
o The CS declined to follow the Indian approach on the concept of public policy in Oil
& Natural Gas v Saw Pipes, that an error of law was contrary to the PP of India as
contemplated by the Indian Act – doing so would have done unimaginable harm to
Singapore’s open attitude towards both international business and arbitration.
• (Westacre Investments v Jugoimport-SDPR):
o Court took the approach that it was the award and not the contract that is being
enforced.
[7] Fraud:
• To set aside an award on the basis of corruption/fraud there must be cogent (ie, clear and
convincing) evidence to substantiate these serious allegations (Beijing Sinozonto Mining
Investment v Goldenray Consortium).
o The court emphasised that “public policy” under s 31(4)(b) of the IAA would not
extend to erroneous legal reasoning or misapplication of law but an award obtained
by fraud and/or corruption is very much a breach against the public policy of
Singapore.
o However, the standard of proof must be such as to satisfy the court, on a balance of
probabilities, that facts exist which make out the ground relied upon by the party.
o The court emphasised that the more improbable an allegation, the stronger the
evidence must be.
76
[8] Breach of natural justice:

Preliminary:
• [As a preliminary, the same approach towards natural justice is adopted for both international
and domestic arbitration in Singapore (Soh Beng Tee).]
• [In respect of applications to set aside an award for breach of natural justice, the Singapore
courts have consistently taken a ‘minimal intervention’ approach (AQU v AQV).]
• Under the IAA/MAL:
o The rules of natural justice are set out in Arts 12 and 18 MAL – the right to be heard,
opportunity to be heard, to be free from bias, which includes actual and perceived
biasness and impartiality.
o Art 12: Impartiality/independence;
o Art 18: Equal treatment of all parties, and each party shall be given a full opportunity
of presenting his case
• Under the AA:
o Under s 22 AA, there is a duty for the arbitral tribunal to act impartially and fairly
and to give the parties a chance to be heard, and for the tribunal to disclose all
justifiable doubts (s 14 AA).
o [In respect of applications to set aside under s 48(1)(a)(vii) AA, the Singapore courts
have consistently taken a minimalistic intervention approach (see e.g. AQU v AQV).]
Step 1: Test for breach of natural justice:

• Elements: [To rely on the breach of natural justice as a ground for setting aside an award, the
party must establish ______ (John Holland affirmed in Soh Beng Tee v Fairmount SGCA):]
o [1] that a rule of natural justice had been breached;
§ (1) The adjudicator was biased (Soh Beng Tee v Fairmount);
§ (2) Party was not given an opportunity to be heard (Soh Beng Tee v
Fairmount).
o [2] how the rule was breached; and
§ apply below
o [3] a causal link between the breach and the award established prejudice of the
party’s rights.
§ This does not require that the outcome would definitely be different.
§ Instead, the test is whether the arbitrator was denied the benefit of arguments
or evidence that had a real, as opposed to a fanciful chance, of making a
different to his deliberations.
§ The issue is whether the material could reasonably have made a difference to
the arbitrator, rather than whether it would necessarily have done so (Lim
Chin San Contractors v L W Infrastructure).
o [4] That award prejudiced the rights of the party concerned.
§ [However, only meaningful breaches will warrant intervention by the court,
and there must be prejudice or injustice suffered as a result of the breach (see
Soh Beng Tee; Dongwoo Mann).]
§ [To attract curial intervention the breach must, at the very least, have actually
altered the final outcome of the arbitral proceedings in some meaningful way.
If the same result could or would ultimately have been attained anyway, or if
it can be shown that the complaint could not have present any ground-
breaking evidence or submissions regardless, the bare fact that the arbitrator
might have inadvertently denied one or both parties some technical aspect of
a fair trial would almost invariably be insufficient to set aside the award.]
• Grounds: [There will be a breach of natural justice if a tribunal (1) disregards a party’s
submissions; or (2) had regard to the party’s submissions in a superficial sense without
making any attempt to understand these submissions (Front Row).]
o Right to present one’s case and a right to a fair tribunal (John Holland)
77
• [SEE PG 46 STELLA’s NOTES]
Step 2: What constitutes a breach of natural justice:

• Apply facts: [Here, _____ … ]
o Use examples below to evaluate.
• [+] Deciding on a basis not raised/contemplated by parties –
o [It would be a breach if a tribunal decided on a basis on contemplated by the parties
as an affected party would have been deprived of its opportunity to be heard or to
address issues upon which the case was decided (Pacific Recreation v SY
Technology).]
o BUT no breach if reasonably connected: [However an arbitrator would NOT be in
breach of the natural justice rules if it relied on premises which were not raised or
argued by the parties per se, but were “reasonably connected to arguments
canvassed by the parties” in its adjudication process (TMM Division Maritima SA de
CV v Pacific Richfield Marine).]
o [Therefore for a tribunal to be considered to have acted beyond its jurisdiction, it
must have made an award or decision on either an issue or claim that neither party
has pleaded or envisaged, or on an issue or claim that cannot be legally subsumed
under any of those expressly pleaded by parties.]
o [Apply Facts]
• [+] Acting ultra vires – award that was not requested:
o [A tribunal can be considered to have acted ultra vires its jurisdiction if it makes an
arbitral award that neither party had requested (PT Prima International v
Kempinski).]
• [+] If the tribunal disregards the submissions and arguments –
o made by the parties on the issues, without considering the merits thereof (Front Row
Investment).
• [+] Failure to deal with issues that was submitted to arbitration (BLB v BLC).
o Although the arbitrator need not deal with all issues canvassed by the parties, it must
deal with the essential issues.
o “Essential issues” – These are issues which are likely to impact on the outcome of the
claim.
• [+] Right to be heard/ Insufficient time to respond –
o [There may be a breach where the tribunal allows one party to raise new claims at the
11th hour, thereby depriving the other party of time and opportunity to prepare its
own evidence and to respond to the new claims (AKN v ALC).]
o Show prejudice: [The party must demonstrate that the argument that it was deprived
of making could have reasonably made a difference to the outcome rather than
whether it would necessarily have done so (L W Infrastructure c.f. previous the test in
Soh Beng Tee).
o [Accordingly, the issue is whether the breach was merely technical and
inconsequential or had deprived the applicant a real chance of making a difference to
his deliberations.]
o Where the material presented would not have made any difference then there would
be no actual or real prejudice in not having had the opportunity to present this to the
arbitrator (cf Soh Beng Tee at [86]).
• [+] Final award made in preliminary hearing –
o Where a party is unable to state clearly its position during te arbitral hearing as it was
supposed to be a preliminary hearing and did not evisage having to present evidence
at that stage, but tribunal still made a final award then (CRW Joint Operation).
o It was entitled to have a property opportunity to comprehensively present its case at a
hearing before the tribunal.
• [+] Finding without basis on evidence – In AQU v AQV, the court left open the question of
whether an award may be set aside where an arbitrator makes findings of fact when there was
78
no logical probative material before him on which to base those findings. To date, there have
been no Singapore cases that expressly applied the no evidence rule to set aside an arbitral
award for breach of natural justice.
Examples of conduct NOT amounting to breaches:

• [+] Unequal time to argue case:
o [The time afforded to each party cannot be based solely on the amount o time
afforded to the other party. Other relevant circumstances include the conduct of the
parties and the stage of the arbitral proceedings at the material time. The right to be
heard is neither unfettered nor unqualified. It does not mean that the tribunal must
‘sacrifice all efficiency in order to accommodate unreasonable procedural demands
by a party (Trilulzi Ceasare v Xinyi Group).]
• [+] The duty to act fairly must not be read too broadly – thus the arbitrator NEED NOT
(Balfracht):
o [a] Refer back to the parties when he makes findings of fact;
o [b] Deal exhaustively with every argument that parties have raised;
• [+] Arbitrator uses his own expert knowledge to arrive at his award (St Gerorge Investment
v Gemini Consulting);
• [+] Arbitrator is entitled to arrive at his award by deploying evidence in a way different
than the parties’ witnesses have deployed them, provided it addresses a matter which has
been put into the arena (St George’s Investment v Gemini Consulting);
• [+] An error in fact or law would not be a ground for setting aside an award on the basis of
breach of natural justice (Dongwoo Mann).
• [+] Other examples:
o [a] Misunderstanding or failing to understand a submission or a case presented.
o [b] Not mentioning or engaging with a submission raised by a party (in the
proceedings or in an award).
o [c] Choosing not to deal with a particular submission raised because the tribunal
thinks it to be unnecessary.
o [d] Having been mistaken as to the law relating to a submission raised.
o [e] Rejecting an argument, whether implicitly or otherwise, and whether rightly or
wrongly.
o [f] Poor reasoning in reaching a decision.
o [g] Muddling the facts, law and arguments in a dispute.
• (Soh Beng Tee v Fairmount SGCA):
Fairmount (Developer) Soh Beng Tee (Main con) Architect
o FACTS: Architect issued various certs and decisions which declared that SBT had
failed to proceed with due diligence and expedition 1 month later, a termination
certificate. F terminated SBT’s employment contract and claimed performance bond
and damages.
§ Matter referred to arbitration – arbitrator found that wrong person had issued
termination cert and that SBT should have been given an EOT, and that F
could not rely on SBT’s alleged repudiatory breach to justify termination, as
time was not of the essence.
o SGHC: F applied to set aside on the ground that arbitrator’s decision to set time at
large, rather than determine the reasonable extension of time that SBT was entitled to,
was not an issue that had been submitted for arbitration.
§ This deprived it of putting forward a case against setting time at large, and
this was in breach of its right to be heard, and also contrary to the Singapore
Arbitration Act.
o HELD CA: There was NO breach of natural justice.
§ Must establish elements above;
79
§ There was no casual nexus: The arbitrator’s finding that time was set at
large was only in relation to whether the architect had properly assessed
SBT’s application for the EOT.
• This finding had no effect on whether Fairmount could rely on the
termination certificate to rescind its employment with SBT.
• The question whether F could rely on the termination cert had been
answered when the arbitrator found that the termination and delay
certs issued were invalid as they had been issued by the wrong
person.
§ There was no prejudice: If the same result could or would have ultimately
been attained, or if it could be shown that the complainant could not have
presented any ground-breaking evidence and/or submissions regardless, the
bare fact that the arbitrator might have inadvertently denied one or both
parties some technical aspect of a fair hearing would almost invariably be
insufficient to set aside the award.
• (ADG v ADI):
o FACTS: P secured certain rights under a survey agreement in 2003. In 2009, D
entered into an option with P to purchase a certain percentage of its rights under the
agreement. In the option, P made certain threshold and continuing representations and
warranties. D terminated the option and commenced arbitration for misrepresentation.
§ Arbitrator held that the representations were not true and correct at the date of
the option and that P had also breached its continuing obligations to disclose
material changes of fact.
§ D was entitled to terminate.
§ P applied to set aside on the grounds that the arbitrator’s decision to declare
proceedings closed on 4/6 and its decision to dismiss P’s application to re-
open proceedings on 9/6 meant it had no opportunity to put new evidence
which it wished to rely to show the agreements were valid.
§ New evidence did in fact materialise before 8/6 but after proceedings were
closed.
o HELD: There was no breach of natural justice.
§ Where the tribunal is alleged to have breached a party’s right to be heard, the
guiding principle for the court remains the principle of limited curial
intervention.
• This is all the more so where the breach is said to have arisen from a
procedural or case-management decision of a tribunal.
• Parties who choose to arbitrate in Singapore or under the SIAC Rules
have agreed to give the tribunal a wide and flexible discretion to
o (i) determine its own procedures and processes; and
o (ii) receive and evaluate competing evidence and arguments
in order to arrive at its determination
o The tribunal did not act unilaterally, unfairly or unreasonably in:
§ [a] declaring proceedings closed on 4/6/13:
• It properly and sufficiently consulted the parties within the SIAC
rules by informing them on 29/5/13 of its proposed course of action
and gave them a reasonable deadline for comments.
§ [b] refusing to reopen proceedings:
• Ps did not object to the tribunal’s deadline to make a formal
application to re-open proceedings as being unreasonable at that time
and it did not lie in the plaintiffs’ mouth now to complain that it was.
o Even assuming that there was a breach of natural justice, it was not casually
connected to the award:
80
§ The new evidence, even if the tribunal had received it, carried no real chance
of making a difference to the final outcome of the arbitral proceedings in any
meaningful way.
• (John Holland v Tokyo Engineering):
o There are 2 rules of natural justice:
§ [1] The right to present one’s case; and
§ [2] The right to an impartial tribunal.
Step 3: Even where breach, proportionality:

• If breach, only tainted parts set aside: [Further, where an arbitral award is found to be
tainted by a breach of natural justice, only parts of the award affected by the defective arbitral
procedures need to be set aside; the remaining parts that were not tainted should be upheld
(AKN c ALC).]
o Therefore, a single, isolated allegation of a procedural defect, if successful, will not
work to defeat the entire award.
Step 3: Discretion not to set aside award:

• [Notwithstanding the above, the Court retains the residual discretion not to set aside the
award even if the grounds exist, but such discretion ought to be exercised only if no prejudice
has been sustained by the aggrieved party (CRW Joint Operation v PT Perusahaan).]
• [Apply facts whether there is prejudice …]
Step 4: FOR MAL:

• The Court has no power under the MAL to remit to the tribunal to reconsider the matter on the
remits.
• However, the court may suspend the setting aside application proceedings to allow the
tribunal to eliminate grounds for setting aside (Art 34(4) MAL).
81
APPEALING ON A QUESTION OF LAW (AA ONLY)
General:
• There is no right of appeal against an international arbitral award; although there are
applications which can be made to the court to determine specific issues and to set aside the
award under s 24 IAA and Art 24(2) MAL.
• Proceed to setting aside for IAA awards.
Step 1: Question of law:

• Only limited to questions of law: [In domestic arbitrations under the AA, there is a limited
right to appeal to the court on a question of law arising out of an award made in the
proceedings in which the guidance of the court is required to resolve (see s 49(1) AA; Progen
Engineering v Chua Aik Kia). Here … ]
o à Narrowly construed – An error in application of law may not amount to a question
of law (Northern Elevator Manufacturing v United Engineers) (i.e. misapplication of
the law)
o à If the underlying facts are being challenged, the application will be dismissed (see
Progen Engineering c Chua Aik Kia).
• Distinguish between question of law and mere errors of law:
o [1] Questions of law: This concerns findings of law that the arbitrator made which
the parties dispute, that required the guidance of the court to resolves – this entitled
them to appeal per s 49(1) AA.
o [2] Mere errors of law: This is when the arbitrator does not apply a principle of law
correctly that failure is a mere error of law (erroneous application of law) which does
not entitle an appeal.
§ Thus, if the point of law is settled (not novel), and the arbitrator made an
error in the application of the law, there lies NO APPEAL against that error
for there is no question of law which calls for an opinion of the court.
o Foreign law is a question of fact, not law (Glencore International AG v Metro
Trading).
[1] Relating to proper law of the contract:

• Here, the question of law regards the proper construction of the contract (see Permasteelisa
Pacific v Hyundai Engineering).
o [a] [one-off point] Where the question of law involve is a ‘one-off’ point, leave to
appeal should not be given UNLESS:
§ it is apparent to the court upon a mere perusal of the reasoned award itself,
without the benefit of argument, that the arbitrator was obviously wrong (s
49(5)(c)(ii) AA; see Pioneer Shipping v BTP Tioxide);
§ [Here, the question of law suffers from the same defect as it is a one-off
contract and it was decided on its own particular facts. Despite the absence of
any findings of fact in relation to the question of bona fides or
reasonableness, it cannot be said that the arbitrator was obviously wrong.]
§ [One the contrary, the arbitrator’s findings are support by the evidence before
him and he was justified in coming to the conclusion that he did]
§ [Moreover, determination of this question may not substantially affect the
rights of one or more of the parties.]
o [b] [part of standard contracts] Where the question of law is not a ‘one-off’ point,
but part of a standard form contract, leave to appeal should not be give, UNLESS:
82
§ the court considers resolution of the question of construction would add

significantly to the clarity, certainty and comprehensiveness of Singapore
commercial law; and
§ that a strong prima facie case has been made out that the arbitrator is clearly
wrong (s 49(5)(c)(ii) AA):
[2] Relating to whether facts lead to a particular legal conclusion:

• Here, the question of law is that, that requires the arbitrator to determine whether the facts
proved in evidence before him leads to a particular legal conclusion.
o This can be a pure question of law, or mixed question of fact and law (e.g. in The
Nema, where the arbitrator had to decide whether the charter party between the
parties had been frustrated – the question of frustration is never a pure question of
fact, but involves a conclusion of law as to whether the frustrating event or series of
events has made the performance of the contract a thing that is radically different to
that which was undertaken by the contract).
o The court should not ask itself whether it agrees with the decision reached by the
arbitrator, but rather whether it appears upon the perusal of the award either that the
arbitrator misdirected himself in law or that his decision was such that no reasonable
arbitrator could reach.
Step 2: Exhaust all other options:

• Exhaust: [The applicant must have first exhausted any process for review and recourse for
correcting the award or obtaining an interpretation (s 50(2) AA).]
o The court may order the tribunal to state its reasons if the reasons are insufficient (s
50(4) AA).
o The court may order the applicant to provide security for costs (s 50(6) AA).
o The court may order that any money awarded be paid into court or otherwise secured
pending hearing of the appeal (s 50(8) AA).
Step 3: Agreement or leave:

• [Under s 49(3) AA, no appeal shall be brought except (a) with the agreement of all other
parties to the proceedings; or (b) with the leave of court.]
o On leave application the court need not hold an oral hearing and may decide on the
documents only (s 52(2) AA).
o The court to hear leave applications is the High Court by a Judge in Chambers.
• Requirement for leave: [Leave of court shall only be given if (s 49(5) AA):]
o (a) the determination of the question will substantially affect the rights of one or
more of the parties; and
o (b) the question is one which the arbitral tribunal was asked to determine; and
o (c) on the basis of the tribunal’s findings of fact— ; and
§ (i) the decision of the arbitral tribunal on the question is obviously wrong; or
§ (ii) the question is one of general public importance and the decision of the
arbitral tribunal is at least open to serious doubt; and
• (Holland Leedon v Metalform Asia (2011)):
o HELD: The issue related to a commonly used mechanism
for determining the purchase price in acquisitions of
businesses and shares (earnings before interest, depreciation,
tax and amortisation (EBIDTA)) and was thus one of general
public importance.
• (Engineering Construction v Sanchoon Builders (2011)):
o HELD: Both questions of law involved construction of the
subcontract, which was a one-off contract, being P’s own
contract form and not a standard form. They were thus not of
“general public importance”.
83
o (d) despite the agreement of the parties to resolve the matter by arbitration, it is just
and proper in all the circumstances for the Court to determine the question.
• Where leave is refused: [Leave is required to appeal any refusal of leave.]
Step 4: Has jurisdiction of SGHC been excluded:

• [The parties may agree to exclude the jurisdiction of the SGHC to hear appeals on question of
law (s 49(2) AA). Here … ]
• Agreement to dispense with reasons for the arbitral tribunal’s award shall be treated as an
agreement to exclude the jurisdiction of the SGHC for this section (s 49(2) AA).
o NO (Holland Leedon v Metalform Asia):
§ FACTS: Parties agreed ‘to exclude any right or application to any court or
tribunal of competent jurisdiction in connection with questions of law arising
in the course of any arbitration’.
§ HELD: Jurisdiction was NOT excluded.
• Distinguish between a question of law arising in the course of
proceedings (which attracts s 45 AA), and a question of law arising
out of an award made in the proceedings.
o YES (Daimler SEA v Front Row Investment):
§ FACTS: Parties adopted the ICC Rules 1998 which stated that ‘the parties
undertake to carry out any Award without delay and shall be deemed to have
waived their right to any form of recourse insofar as such waiver can validly
be made’.
§ HELD: Jurisdiction excluded.
Step 5: Comply with s 50 AA:

• [The right to appeal is also subject to the restrictions in s 50 AA, which include … ]
• The exhaustion of s 50(2) AA:
o (a) any available arbitral process of appeal or review; and
o (b) any available recourse under s 43 AA (correction or interpretation of award and
additional award).
• And must be brought within 28 days of the date of the award, or if there has been any
arbitral process of appeal or review, of the date when the applicant or appellant was notified
of the result of that process (s 50(3) AA).
Effect of a successful appeal:

• Where varied:
o [Where the award is varied by the court, the variation shall have the effect as part of
the arbitral tribunals award (s 52(2) AA).]
• Where remitted:
o [Where the award is remitted to the arbitral tribunal, in whole or in part, for
reconsideration, the tribunal shall make a fresh award in respect of the matters
remitted within 3 months of the date of the order for remission or such longer or
shorter period as the court may direct (s 51(3) AA).]
84
ARBITRATION RULES & THE TRIBUNAL
ARBITRATION RULES
The rules
• E.g. ICC Rules, SIAC Arbitration Rules.
• Arbitration Rules provide the procedural framework to conduct the arbitration. These may be
likened to the rules of court. While substantive law determine and provide for the law
applicable to a particular dispute, the manner in which the administration and adjudication of
the dispute must depend on the applicable rules established for such arbitration.
• Rules can be provided for on an ad hoc basis, i.e. parties to a commercial agreement could
theoretically draft rules which will govern the conduct of any future arbitration to resolve
their dispute.
• The rules serve to provide for the key stages in the life of an arbitration – broadly:
o [1] Commencement of the arbitration’
o [2] Appointment of the tribunal;
o [3] The proceedings;
o [4] The award.
APPOINTMENT OF ARBITRATOR
[1] Number:
Under the IAA:

• Parties are free to determine the number of arbtirators (Art 10(1) MAL).
• Notwithstanding Art 10(2) MAL, if the number of arbitrators is not determined by the
parties, there shall be a single arbitrator (s 9, 9A IAA).
• Failing such determination, the number shall be three (Art 10(2) MAL).
• If the number of arbitrators is not determined by the parties, there shall be a single arbitrator
(s 9 IAA; in spite of Art 10(2) MAL).
Under the AA:

• Parties are free to agree on the number of arbitrators (s 12(1) AA).
• If the number of arbitrators is not determined by the parties, there shall be a single arbitrator
(s 12(2) AA).
• If the contract clause refers to ‘an arbitrator’ but also refers to the SIAC rules for the
appointment of arbitrators if there is no agreement, the SIAC Registrar has no power to
appoint more than one arbitrator because the express term of the contract overrides the
discretion (NCC International AB v LTA).
[2] Manner of appointment:
Under the IAA:

• Notwithstanding Art 11(3) MAL, in an arbitration with 3 arbitrators, each party shall
appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator
(s 9A(1) IAA).
• Where the parties fail to agree on the appointment of the third arbitrator within 30 days of the
receipt of the first request by either party to do so, the appointment shall be made, upon the
request of a party, by the President of the SIAC Court of Arbitration (s 9A(2) IA).
85
• Parties are free to agree on a procedure for appointing the arbitrator or arbitrators, subject to
the provisions of (4) and (5) (Art 11(2) MAL).
Under the AA:

• Parties are free to agree on a procedure for appointment (s 13(2) AA).
o Where parties fail to agree on appointment procedure:
§ If the arbitration is to have 3 arbitrators, each party will appoint one and the
parties will by agreement appoint the third (s 13(3) AA).
§ An appointment shall be made, upon the request of a party, by the appointing
authority of:
• (a) A party fails to appoint an arbitrator within 30 days of receipt of a
1st request to do so from the other party (s 13(4)(a) AA); or
• (b) Parties fail to agree on the 3rd arbitrator within 30 days of the
receipt of the 1st request by either party to do so (s 13(4)(b) AA).
o If the arbitration is to have 1 arbitrator and if the parties are unable to agree:
§ They may request the appointing authority to appoint the arbitrator (s 13(3)
AA).
• The appointing authority also generally acts as a gap filler if a party fails to exercise its power
to appoint an arbitrator (s 13(4) AA):
• The appointing authority shall, in appointing an arbitrator, have regard to the following (s
13(6) AA):
o (a) the nature of the subject-matter of the arbitration;
o (b) the availability of any arbitrator;
o (c) the identities of the parties to the arbitration;
o (d) any suggestion made by any of the parties regarding the appointment of any
arbitrator;
o (e) any qualifications required of the arbitrator by the arbitration agreement; and
o (f) such considerations as are likely to secure the appointment of an independent and
impartial arbitrator.
• See s 13(2)-(6) AA for provisions where parties cannot agree or default happens
[3] Qualification of arbitrators:
Under the IAA:

• Unless otherwise agreed by the parties, no person shall be precluded by reason of his
nationality from acting as an arbitrator (Art 11(1) MAL).
• See also Arts 11(2)-(5) Model Law (which are similar to s 13(2)-(6) A
Under the AA:

• Unless otherwise agreed by the parties, no person shall be precluded by reason of his
nationality from acting as an arbitrator (s 13(1) AA).
[4] Nationality:
• 9A: (1) Notwithstanding Article 11(3) of the Model Law, in an arbitration with 3 arbitrators,
each party shall appoint one arbitrator, and the parties shall by agreement appoint the third
arbitrator.
• (2) Where the parties fail to agree on the appointment of the third arbitrator within 30 days of
the receipt of the first request by either party to do so, the appointment shall be made, upon
the request of a party, by the appointing authority.
• Article 11(1) – No person shall be precluded from acting as an arbitrator, by reason of his
nationality.
• Article 11(2) – Parties are free to agree on a procedure for appointing the arbitrator or
arbitrators, subject to provisions (4) and (5) of this Article.
86
[5] Emergency arbitrator:

• Purpose: Designed for the appointment of an arbitrator to deal with emergency interim relief
prior to the constitution of the Arbitral Tribunal after Notice of Arbitration has been filed
(Paragraph 1 of Schedule 1 to the SIAC Rules – The Schedule)
o Appointment is done by the President of the Court of Arbitration of SIAC (2013 /
2016 editions, Schedule 1)
o Known as the “Emergency Arbitrator” – such arbitrator shall have the power to order
or award interim relief that he deems necessary – Paragraph 6 of the Schedule 1
(2013), Paragraph 8 of Schedule 1(2016)
• Both the SIAC and ICC have provisions for this for situations when the Tribunal has not been
constituted
o ICC clause for pre arbitral process (Article 29): “Any party to this contract shall have
the right to have recourse to and shall be bound by the pre- arbitral referee procedure
of the International Chamber of Commerce in accordance with its Rules for a Pre-
Arbitral Referee Procedure”
o SIAC clauses: Schedule 1 of the 2013 / 2016 Rules
• The directions or orders are enforceable in Singapore under IAA s 12(6) though strictly not an
award - see s 2, IAA
o SIAC: Award made under the Schedule is binding on the parties – Paragraph 9 of
2013 SIAC Rules / Paragraph 12 of the 2016 SIAC Rules.
• See notes for more.
REPLACEMENT OF ARBITRATOR:
• On death, resignation and successful challenge – Art 15 ICC (2012); Rule 14 SIAC (2010),
Rule 17 (SIAC 2016)
CHALLENGING APPOINTMENT OF ARBITRATOR:

• Unlike in court litigation, it is common for opposing parties to challenge the appointment of a
particular arbitrator.
o This is part and parcel of the arbitration framework. This is premised on the
consensual nature of arbitration as opposed to a state-sanctioned court proceeding.
• Grounds for challenge: IAA and AA essentially provide the same 3 grounds:
o [1] Lack of impartiality,
o [2] Lack of independence,
o [3] Lack of qualifications as prescribed by the parties
• The standard test for lack of partiality is the real likelihood of bias test: (Turner (East
Asia) v Builders Federal).
o Would a reasonable and fair-minded person sitting in court and knowing all the
relevant facts have a reasonable suspicion that a fair trial is not possible
• Arbitrators frequently challenged for tactical reasons
o These may involve the assessment by a party as to the advantages or disadvantages
arising from the appointment of a particular arbitrator though not necessarily on the
grounds of impartiality or lack of independence.
§ E.g. familiarity with Common Law system, known opinions on certain issues
of law based on writings or past decisions
§ More appropriate in international arbitration.
87
Under the IAA

Grounds for Challenge (Art 12 MAL):
• (1) [Arbitrator disclosure] When a person is approached in connection with his possible
appointment as an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his
appointment and throughout the arbitral proceedings, shall without delay disclose any such
circumstances to the parties unless they have already been informed of them by him.
o Reasonable doubts to impartiality or independence: [The relevant test is that of
the reasonable suspicion test – which is whether a reasonable and fair minded person
sitting in Court and knowing all the relevant facts have a reasonable suspicion that a
fair hearing for the applicant was not possible (Turner (East Asia) v Builders Federal
(HK); Koh Bros Building v Scotts Dev).]
• (2) [Challenged if no justification/qualification] An arbitrator may be challenged only if
circumstances exist that give rise to justifiable doubts as to his impartiality or
independence, or if he does not possess qualifications agreed to by the parties. A party may
challenge an arbitrator appointed by him, or in whose appointment he has participated, only
for reasons of which he becomes aware after the appointment has been made:
o [1] Lack of impartiality of the arbitrator;
o [2] Lack of independence;
o [3] Lack of qualifications agreed by the parties.
Procedure (Art 13 MAL):

• (1) [Parties free to provide procedure] The parties are free to agree on a procedure for
challenging an arbitrator, subject to the provisions of paragraph (3) of this Article.
• (2) [Challenge within 15 days + written statement] Failing such agreement, a party who
intends to challenge an arbitrator shall, within fifteen days after becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any circumstance referred
to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral
tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees
to the challenge, the arbitral tribunal shall decide on the challenge.
• (3) [If (2) unsuccessful, 30 days to send request for court to decide] If a challenge under
any procedure agreed upon by the parties or under the procedure of paragraph (2) of this
Article is not successful, the challenging party may request, within thirty days after having
received notice of the decision rejecting the challenge, the court or other authority specified in
Article 6 to decide on the challenge, which decision shall be subject to no appeal; while such
a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue
the arbitral proceedings and make an award.
Under the AA
Grounds for Challenge (s 14 AA):

• (1) [Arbitrator disclosure] Where any person is approached in connection with his possible
appointment as an arbitrator, he shall disclose any circumstance likely to give rise to
justifiable doubts as to his impartiality or independence.
o Reasonable doubts to impartiality or independence: [The relevant test is that of
the reasonable suspicion test – which is whether a reasonable and fair minded person
sitting in Court and knowing all the relevant facts have a reasonable suspicion that a
88
fair hearing for the applicant was not possible (Turner (East Asia) v Builders Federal
(HK); Koh Bros Building v Scotts Dev).]
• (2) [Continued disclosure] An arbitrator shall, from the time of his appointment and
throughout the arbitral proceedings, disclose without delay any such circumstance as is
referred to in subsection (1) to the parties unless they have already been so informed by him.
• (3) [Challenge if no justification/qualification] Subject to subsection (4), an arbitrator
may be challenged only if —
o (a) circumstances exist that give rise to justifiable doubts as to his impartiality or
independence; or
o (b) he does not possess the qualifications agreed to by the parties.
• (4) [Challenge on if award of grounds AFTER appointment] A party who has appointed
or participated in the appointment of any arbitrator may challenge such arbitrator only
if he becomes aware of any of the grounds of challenge set out in subsection (3) as may be
applicable to the arbitrator after the arbitrator has been appointed
Challenge Procedure (s 15 AA):

• (1) [Parties free to provide procedure] Subject to subsection (3), the parties are free to
agree on a procedure for challenging an arbitrator.
• (2) [Challenge within 15 days + written statement] If the parties have not agreed on a
procedure for challenge, a party who intends to challenge an arbitrator shall —
§ (a) within 15 days after becoming aware of the constitution of the arbitral
tribunal; or
§ (b) after becoming aware of any circumstance referred to in section
14(3),
o send a written statement of the grounds for the challenge to the arbitral tribunal.
• (3) [Tribunal decide on challenge] The arbitral tribunal shall, unless the challenged
arbitrator withdraws from his office or the other party agrees to the challenge, decide on the
challenge.
• (4) [Application within 30 days to court to decide] If a challenge before the arbitral tribunal
is unsuccessful, the aggrieved party may, within 30 days after receiving notice of the decision
rejecting the challenge, apply to the Court to decide on the challenge and the Court may make
such order as it thinks fit
• (5) [Court decision not appealable] No appeal shall lie against the decision of the Court
under subsection (4).
• (6) [Arbitration continues during appeal] While an application to the Court under
subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may
continue the arbitral proceedings and make an award
Resignation of the arbitrator (resign)

• The arbitrator may resign with good and justifiable cause: [An arbitrator is contractually
obliged to complete the mandate to which he has accepted, and therefore cannot resign during
the course of the arbitration, UNLESS with good and justifiable cause (Anwar Siraj v Teo
Hee Lai Building).]
o FACTS: Plaintiff’s relationship with Arbitrator had deteriorated and had become
very acrimonious (at no fault of the arbitrator). Arbitrator sought leave to discharge
himself
§ Plaintiff made numerous unfounded accusations and allegations
o HELD: Arbitrator did not need leave to withdraw – he could simply write to parties
89
§ An arbitrator is also contractually obliged to complete the mandate which he

or she accepts, and therefore not to resign during the course of the arbitration
without good cause (Gary Born)
§ Gary Born notes that there is generally no requirement for an arbitrator to
state his reasons for resigning and drafters of the UNCITRAL Rules rejected
proposals that required a resigning arbitrator to provide a statement of his
reasons.
• The learned author however notes that most conscientious
practitioners will often choose to do so. Here, Mr Chow set out his
reasons in full and as I found earlier, he had very good reasons and
proper cause for wanting to resign
o “I have no doubt in the circumstances that Mr Chow had the right to resign. He was
the subject of numerous unfounded accusations and allegations, many of which were
not only unwarranted but also scurrilous. They were couched in very strong and
aggressive terms which were quite uncalled for. I turn now to consider the proper
procedure for him to resign as arbitrator.”
THE ARBITRAL TRIBUNAL
Decisions by panel:
• Where there is a panel, decisions are made by all or majority UNLESS otherwise agreed (s
19 AA / Art 29 MAL).
• A presiding arbitrator may deal with matters of procedure if he is authorized to do so (s
19(2) AA).
General duties non delegable:

• Non-delegable duties: The three primary duties of the arbitral tribunal are not delegable.
Doing so would may result in the arbitrator being challenged and removed.
• Cannot consult others: Arbitrators are not allowed to consult anyone to decide the dispute
on their behalf.
• Cannot let others hear evidence: Arbitrator cannot name another person to hear the
evidence as by doing so would essentially be letting them influence the final decision (Neale
v Richardson).
Case management powers:

• On impartiality: Where directions given by an arbitrator fell within the realm of the case
management powers of the tribunal the directions cannot be said to lack impartiality. It was
well within an arbitrator’s case management powers to draw adverse inference when faced
with a party that ignored his case management decision. There was no logical reason to
differentiate between the proactive case management powers of a judge under the Rules of
Court and the proactive case management powers of an arbitrator (PT Central Investindo v
Franciscus Wongso).
o PTCI’s argument was that there were justifiable doubts about the arbitrator’s
impartiality demonstrated through the delay in rendering the Award, the short
timelines given to PTCI and the threat to draw adverse inferences.
90
Delay:
• Both parties suffer delay: Undue delay in issuing the award by itself does not suggest that
the arbitrator is partial or biased. Both parties were affected by the undue delay. Any
allegation of failure to conduct proceedings properly or with reasonable despatch ought to fall
within Art 14 of the MAL and the proper application was for the arbitrator’s appointment to
be terminated therein rather than to seek his removal under Art 13 r/w Art 12(2) MAL (PT
Central Investindo v Franciscus Wongso)
Breach of duties as ground of removal of arbitrator:

• Breach of duties is ground of removal: If an arbitrator breaches a general duty during the
course of an arbitration, the breach might provide grounds for an application to remove the
arbitrator.
Obligation to disclose:
• Disclosure of impartiality or independence: Most laws and rules require prospective and
serving arbitrators to disclose to the parties any circumstances that might raise a reasonable
doubt about their independence or impartiality; disclosure may extend to arbitral institution if
parties have opted for institutional arbitration
o Continuing obligation: Art 12(1) of MAL requires a continuing obligation of
disclosure right until the end of the proceedings
Independence:
• Examines appearance of bias (not actual bias), thus entirely objective
• Doesn’t require showing of effect of r/s on arbitrator’s minds
• Reasonable doubts to impartiality or independence: [The relevant test is that of the
reasonable suspicion test – which is whether a reasonable and fair minded person sitting in
Court and knowing all the relevant facts have a reasonable suspicion that a fair hearing for the
applicant was not possible (Turner (East Asia) v Builders Federal (HK); Koh Bros Building v
Scotts Dev).]
Impartiality:
• Subjective concept – doesn’t necessarily require tangible r/s
• Examines likelihood of an arbitrator actually having a state of mind or pre-judgement
favouring one side
o It could be caused by totally immeasurable, psychological motives or prejudices
COMMENCEMENT OF THE ARBITRATON

• Rules 4 and 5 of the ICC Rules deal with the Request for Arbitration and the Answer. These
roughly equate to the pleadings in a litigation in court.
• Though similar to they are not however the same as court pleadings. They do not possess the
formality of court pleadings which in the common law tradition is steeped in historical basis
and tradition.
• Under the SIAC Arbitration Rules, similar provisions are found in Rules 3, 4, 17.
• The forms in the SIAC Arbitration Rules do however resemble more closely to court
pleadings; possibly providing for clarity in complex cases.
TERMS OF REFERENCE/ MEMORANDUM OF ISSUES

• This is a mechanism peculiar to arbitrations. This serves to assist the parties and the Tribunal
in defining and confirming in writing the issues to be dealt with in the arbitration. It can be
immediately seen that this is a very useful tool for complex and complicated arbitrations.
91
• See Article 18 ICC Rules and Rule 17 of the 2007 edition of the SIAC Arbitration Rules –
this has been dropped from the 2010 edition of the SIAC Rules. Under the SIAC Rules 2013,
Rule 17 remains unchanged from the 2010 edition. Nothing to stop an arbitrator from
adopting this framework even in an SIAC arbitration.
• A useful feature of the Terms of Reference and the Memorandum of Issues is the addition of
requiring parties to the arbitration to sign off on them. This serves both as an affirmation for
the parties as well as a record of what was agreed between parties as to matters that are
properly before the Tribunal. In a sense it helps define the scope of the arbitration as well as
provide a checklist for the Tribunal. See Chew, Law and Practice of Arbitration in Singapore,
p 141.
92

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FUNDAMENTAL CONCEPTS OF ARBITRATION LAW............................................................ 5

[2] Under AA: ............................................................................................................................... 39

[1] Incapacity or invalid agreement: ............................................................................................ 71

FUNDAMENTAL CONCEPTS OF ARBITRATION LAW

Litigation vs. Arbitration

Dual regime (two dimensions of arbitration law):

Domestic (AA) International Arbitration (IAA)

Reasons for dual regime:

Adoption of model law

FUNDAMENTAL CONCEPTS OF ARBITRATION LAW

(1) Autonomy and consent (arbitration agreement/clause):

Review of jurisdiction (IAA):

Review of jurisdiction (AA):

(4) Arbitration law or lex arbitri;

§ The rules empowering the exercise by the court of supportive measures to

§ e.g. where disclosure is reasonably necessary to establish or protect a party’s

[0] Preliminary notes:

[2] If IAA, did the parties opt out?

[4] Opting in?

[A] SEAT AND LEX ARBITRI

The seat of arbitration

Lex arbitri (Curial law)

The law of the arbitration agreement

[B] ARBITRATION AGREEMENT

Interpretation of arbitration agreement

Step 1: Singapore’s approach to interpretation:

• The clause must be read as a whole, and the clause clearly

Step 2: Limits (pathological clauses)

Step 3: Find examples

• 4(8) A reference in a bill of lading to a charterparty or other document containing an

[A] WHAT IS A DISPUTE:

[B] SCOPE OF THE ARBITRATION CLAUSE:

[C] IS THE DISPUTE ARBITRABLE?

Non arbitrable matters:

[1] Matters belonging exclusively within the purview of national courts

[2] Claims under Statutes

STAY OF PROCEEDINGS UNDER IAA

[0] Preliminary step: Application

[1] Is there an arbitration agreement?

[2] Is there a dispute referred to arbitration:

[3] Before taking a step in the proceedings:

[B] STAY OF PROCEEDINGS (DISCRETIONARY UNDER AA)

[1] Is there an arbitration agreement?

[2] Is there a dispute referred to arbitration:

[3] No sufficient reason why it should not refer to arbitration

[4] Ready and willing

[5] Timing of application:

o Application for discovery of documents (Carona Holdings);

Stay in favour of tripartite arbitration:

Scott v Avery Clauses

Atlantic Shipping Clause

COURT ASSISTANCE IN ARBITRAL PROCEEDINGS

[A] ENFORCEMENT OF ARBITRAL ORDERS AND DIRECTIONS

[1] Under IAA:

[2] Under AA:

[B] COMPELLING ATTENDANCE OF NON-PARTIES OR WITNESSES

[1] Under the IAA:

[2] Under the AA:

[C] COURT ORDERED INTERIM MEASURES IN SUPPORT OF LOCAL ARBITRATION

[1] Under the IAA:

commercial airport activities as well as passenger and airline traffic

[2] Under the AA: