Arbitration Notes

The Law and Practice of Arbitration
Law & Practice of Arbitration Table of Contents

I. Introduction to Arbitration Law and Practice.................................................................................. 3
1. Basic Premise..................................................................................................................................................................... 3
2. Some Differences between Arbitration and Litigation –.................................................................................3
3. History of Arbitration..................................................................................................................................................... 3
4. Two Types of Arbitration.............................................................................................................................................. 3
5. The Legislative Framework in Singapore.............................................................................................................. 4
6. The Domestic Arbitration Regime – Arbitration Act (Cap.10 )(‘AA’).....................................................4
7. International Arbitrations – International Arbitration Act (Cap.137A)(IAA).....................................4
8. Why 2 Acts?......................................................................................................................................................................... 5
9. The UNCITRAL Model Law........................................................................................................................................... 5
10. The relationship between the IAA, Model Law and the Arbitration Rules............................................6
11. Recent revisions in 2006 to the Model Law........................................................................................................ 9
II. Fundamental Concepts of Modern Arbitration Law.................................................................... 10
12. The Arbitration Agreement.................................................................................................................................... 10
13. Party Autonomy........................................................................................................................................................... 13
14. The doctrine of separability................................................................................................................................... 14
15. Principle of Kompetenz-kompetenz.................................................................................................................... 15
16. Confidentiality.............................................................................................................................................................. 16
III. The Role of the National Court in respect of Arbitrations.......................................................18
17. Is the court excluded where parties have chosen arbitration?...............................................................18
18. The relationship b e t w e e n I n t e r n a t i o n a l Commercial Arbitrations and the domestic or
national court.......................................................................................................................................................................... 18
19. Meaning of ‘dispute ’............................................................................................................................................... 19
20. Stay Applications......................................................................................................................................................... 20
21. Before “ taking other step in the proceedings”........................................................................................22
Court’s approach in assessing whether a step has been taken,..............................................................23
22. Compelling Attendance of witnesses at Arbitration....................................................................................25
23. Enforcement of Arbitral Orders and Directions............................................................................................ 25
24. Recognition and Enforcement of Awards......................................................................................................... 25
25. Setting Aside of Arbitral Awards.......................................................................................................................... 25
IV. The Arbitral Award; Recognition and Refusal to Recognize and Setting Aside................26
26. The Award and its form............................................................................................................................................ 26
International Arbitral Awards.......................................................................................................................................... 26
27. Form and Type of Award......................................................................................................................................... 26
Under the AA – domestic awards..................................................................................................................................... 27
28. Meaning of ‘Award’.................................................................................................................................................. 27
28.1. Decisions of the tribunal:............................................................................................................................. 27
28.2. Titling of document not important; use of or absence of ‘award’ not conclusive..................28
28.3. In writing – Art 31(1) MAL - necessary for enforcement (Art IV, New York Convention). 28
28.4. Signed by sole arbitrator or by majority of the tribunal – Art 31(1) MAL...............................28
28.5. Unambiguous and certain:.......................................................................................................................... 28
28.6. Complete............................................................................................................................................................. 28
28.8. Reasons for Award:......................................................................................................................................... 30
30. Final and Binding Effect of the Award............................................................................................................... 30
31. Recognition and Enforcement............................................................................................................................... 32
31.1 Domestic Awards......................................................................................................................................... 32
1
31.2. Foreign Awards: Recognition of Foreign Awards..........................................................................33

Grounds to refuse enforcement under NYConv............................................................................................. 37
32. Grounds to Refuse Recognition of Foreign Awards under the IAA........................................................37
32.a. A party’s incapacity at the time when agreement was made – s 31(2)(a) IAA.................37
32.b. The arbitration agreement is invalid under the lex arbitri – s 31(2)(b) IAA........................38
32.c. Failure to give notice of arbitration proceedings or the appointment of arbitrators and
the inability to present the case – s 31(2)(c)IAA......................................................................................... 38
32.d. Scope of the Arbitration Agreement – s 31(2)(d) IAA.....................................................................39
32.e. Non-compliance with the agreed composition of the tribunal, the qualifications of
its members and the appointment procedure – s 31 (2)(e)....................................................................40
32.f. Award not yet binding, is suspended or has been set aside – s31(2)(f)..................................41
32.g. Court cannot refuse recognition of Convention award, except on grounds in s 31(2) of
IAA itself........................................................................................................................................................................ 42
33. Two Additional Grounds for Refusal to Recognize Arbitral Award for Enforcement....................44
Subject matter is not capable of settlement by arbitration......................................................................44
Enforcement of the award is against public policy.....................................................................................44
33. Recourse against Award (Domestic) under AA................................................................................................... 49
33.1. Setting aside under the AA (equivalent to Refusal to Recognize for enforcement under
IAA) 49
33.3. Making an additional award....................................................................................................................... 51
33.4 Appeal on question of law under s. 49 AA.............................................................................................. 52
35. Recourse against award (International) under IAA........................................................................................54
35.1 Setting aside at the seat of arbitration..................................................................................................... 54
35.2 Grounds for setting aside – s 34(2) ML incorporated in IAA..........................................................54
36. Setting Aside under s 24(b) IAA and Article 34(2)(a)(iii) of the Model Law.......................................57
37. Special Provision in AA for Non-Convention Foreign Arbitral Awards...............................................59
38. Setting Aside of a foreign arbitral award under the Model Law............................................................59
V. Interim Measures in Aid of Foreign Arbitrations......................................................................... 60
39. Powers of the Arbitral Tribunal under IAA...................................................................................................... 60
40. What are interim reliefs?......................................................................................................................................... 61
41. What about the court’s ability to support a foreign arbitration?.........................................................61
42. A Singapore Stand-Off: Swift-Fortune v Front Carriers.............................................................................62
43. The position in Singapore with respect to foreign arbitrations and interim reliefs......................63
VI. Arbitration Rules and Practical Matters....................................................................................... 63
44. What is the role of and relationship between Arbitration Rules in arbitration?............................63
45. Commencement of the Arbitration..................................................................................................................... 64
46. Terms of Reference/Memorandum of Issues................................................................................................... 64
47. Appointment of the Arbitral Tribunal................................................................................................................ 64
48. Challenging the Appointment of an Arbitrator on the Tribunal............................................................65
49. Taking and Production of Evidence.................................................................................................................... 66
50. Procedure in obtaining aid of the court............................................................................................................ 67
51. Practical Matters........................................................................................................................................................ 68
52. General Powers of Arbitral Tribunal.................................................................................................................. 68
53. Appeals under AA........................................................................................................................................................ 68
54. Emergency Arbitrator under the SIAC Arbitration Rules (July 2010 Edition)...........................69
2
I. Introduction to Arbitration Law and Practice
1. Basic Premise
- Commercial Arbitraton not Industrial Arbitration or any other kind

- ‘A judicial process concerned with the adjudication of rights of parties in a dispute.’ See
th
Halsbury’s Laws of England, 4 editon, Vol 2 at paragraph 502.
- Arbitraton defned. See Halsbury’s Laws of Singapore (2003 Reissue), Vol 2 at p 3.
- A working defniton: “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 fndings or judgment in respect of the
dispute shall, by agreement, be binding upon the parties” – Chew, Law and Practce of
Arbitraton in Singapore, LexisNexis, 2010 at p 2.
2. Some Differences between Arbitraton and Litgation –
S/No. Arbitration Litigation

Consensually resorted to by agreement Does not require the agreement of the
(1)
of the partes. partes.
Is privately conducted by independent
Judges are state appointed and
(2) arbitrators selected and paid for by the
remunerated.
partes.
The dispute resoluton is conducted in
(3) It is conducted publicly in a court room.
private.
Conducted in private, its proceedings are Being public, the proceedings are not
(4)
confdental. confdental.
The cost of the proceedings is borne by
(5) The cost is borne by the State.
the partes.
3. History of Arbitration
- Some date it as far back as 4000 BC – Sumerian era

- In Singapore’s modern context, traceable to Statute of 1698, 9 & 10 William III, c XV (English
statute) and subsequent English Acts for example, the Arbitraton Act 1950 (UK).
- A comparison may be made with the Hong Kong experience which was also a Britsh Colony
whose arbitration laws tracked those of the UK and eventually culminated in the Arbitration
Ordinance of today.
4. Two Types of Arbitraton
- Domestc
- Internatonal
3
5. The Legislative Framework in Singapore
- Arbitraton Act (Cap. 10)

- Internatonal Arbitration Act (Cap.143A)
- Historical background to the law as represented by the two Acts – old Arbitraton Ordinance
and Arbitraton Acts.
- Why 2 Acts?
- UNCITRAL Model Law
- What is it?
- Why the Model Law? Any other alternatves – see Arbitraton Act, 1996 (UK) for example.
6. The Domestc Arbitraton Regime – Arbitraton Act (Cap.10 )(‘AA’)
- Essentally it covers arbitratons between local partes and where there are no internatonal
elements.
- When is an arbitraton domestic? – the defniton is derived by exclusion from the
Internatonal Arbitration Act – that which is not internatonal arbitraton under the IAA
becomes a domestic arbitraton and becomes subject to the AA.
- Much of the arbitration disputes which dominate the domestic arena arises out of
constructon disputes and other related areas. This is primarily because the Singapore
Insttute of Architects (SIA) form of contract mandates the reference to arbitraton of
disputes under the agreement.
- There are also other institutonal agreements which include a reference to arbitraton for
example the Singapore Institute of Surveyors and Valuers.
- Traditonally also old forms of Tenancy Agreements and some contnue to be used, contain
an arbitraton clause or agreement.
7. Internatonal Arbitrations – International Arbitration Act (Cap.137A)(IAA)
- In reality a very new regime. Prior to 1995, before the enactment of the IAA international
arbitraton as we have now become well known as a hub for was not a common feature.
- Historically international arbitratons or arbitrations with internatonal elements did not take
place in Singapore. Even where Singapore as a State or Government was a party, arbitration
agreements provided for arbitraton sitting either in London or Geneva or Paris. London was
a common arbitral seat even in Government contracts. Choice of arbitral seat is usually
driven by the perception of neutrality of the seat.
- The enactment of the IAA in 1995 was the result of the recommendation of the Sub-
Committee on Review of Arbitraton Laws appointed by the Attorney-General in 1991. The
IAA came into force on 27 Jan 1995. For the frst tme, Singapore had a comprehensive
internatonal arbitration regime. Singapore opted for the United Natons Commission on
Trade and Law (UNCITRAL) Model Law.
4
- The sub-committee in recommending the UNCITRAL Model Law did examine the UK
Arbitraton Act which was passed in 1996. The UK Act does not adopt the UNCITRAL Model
Law. Indeed it is practcally the only leading common law jurisdiction that does not.
- The sub-committee concluded and recommended that Singapore unlike the UK could not
ignore the Model Law regime.
8. Why 2 Acts?
- A clue is found in the recommendation of the Sub-Commitee of the Law Reform Committee
of the Singapore Academy of Law:
“... it is considered that the 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.”
- Important for domestic arbitratons to be subject to greater scrutny by the local courts:
a. Local arbitrations need not concern itself with internatonal principles etc
b. Much local arbitrations are conducted by non-lawyers; these include professionals allied to
the building industry such as architects and engineers as well as quantty surveyors. That
being the case, it is perhaps important that they be more closely supervised by the courts.
c. Local courts will have interest in the development of local jurisprudence applicable to local
situatons which will inevitably arise out of domestc arbitratons with entrely local overtones
without any international feature whatsoever.
d. A practcal reason which is more of an assurance to the community is that local partes may
need the protection or aid of the courts more than internatonal parties who have access (by
reason of fnancial muscle) to sophistcated advisors and state of the art resources. The
domestic regime should therefore provide for this differentation.
9. The UNCITRAL Model Law
What is it? It is the product of the UNCITRAL and is the culminaton of extensive consultatons
amongst the international community spanning many years and fnally adopted by the UN General
Assembly on 11 Dec 1985.
The thinking behind the Model Law is best encapsulated in the Resoluton of the General Assembly of
the United Nations which was adopted – GA Resolution A/40/72 of 11 Dec 1985 – see The Law and
Practce of Arbitraton, LexisNexis, p 20.
When enacted by a State it becomes ‘lex specialis’ applicable to the exclusion of all other non-treaty
provisions for example those in a code of civil procedure etc.
As the name suggests, the Model Law is a basic template so that any State adoptng it will have a
basic framework for internatonal commercial arbitration.
As a ‘lex specialis’ the Model Law differentates itself both in philosophy and doctrine as it applies to
commercial arbitraton. This gives rise to a separate jurisprudence sometmes antthetcal to curial
laws.
Almost universal now being adopted by more than 60 countries.
Singapore has adopted the Model Law framework in both the AA and IAA. This makes Singapore’s
5
Arbitraton laws uniform in respect of both the domestc and the internatonal regimes even though
found in separate Acts.
10. The relatonship between the IAA, Model Law and the Arbitraton Rules
- Important to understand in order to ensure integrity in applicaton so that neither

undermines the other
- Secton 5 IAA generally and section 5(2) specifically
Section 5(1) This Part and the Model Law shall not apply to an arbitraton which is not an
internatonal arbitraton unless the partes agree in writng that this Part or the
Model Law shall apply to that arbitraton.
Section 5(2) Notwithstanding Artcle 1(3) of the Model Law, an arbitraton is internatonal if
—
(a) at least one of the partes to an arbitraton agreement, at the tme of the
conclusion of the agreement, has its place of business in any State other than
Singapore; or
(b) one of the following places is situated outside the State in
which the partes have their places of business:
(i) the place of arbitraton if determined in, or pursuant to, the
arbitraton agreement;
(ii) any place where a substantal part of the obligatons of the
commercial relatonship is to be performed or the place with which the
subject-mater of the dispute is most closely connected; or
(c) the partes have expressly agreed that the subject-mater of the arbitraton
agreement relates to more than one country.
5(3) For the purposes of subsecton (2) —
(a) if a party has more than one place of business, the place of business shall be
that which has the closest relatonship to the arbitraton agreement;
(b) if a party does not have a place of business, a reference to his place of
business shall be construed as a reference to his habitual residence.
5(4) Notwithstanding any provision to the contrary in the Arbitraton Act (Cap. 10),
that Act shall not apply to any arbitraton to which this Part applies.
- Can partes opt out of the Model Law regime – see Secton 15 IAA
15(1) If partes to an arbitraton agreement (whether made before or after 1 st
November 2001) have expressly agreed either –
(a) Model Law or this Part shall not apply to the arbitraton; or
(b) That the AA or the repealed AA shall apply to the arbitraton,
Then, both the Model Law and this Part shall not apply to that arbitraton but
the AA or the repealed AA shall apply to that arbitraton.
15(2) For the avoidance of doubt, a provision in an arbitraton agreement referring to
or adoptng any rules of arbitraton shall not of itself be sufficient to exclude
the applicaton of the Model Law or this Part to the arbitraton concerned.
The IAA and Model Law applied to internatonal arbitratons taking Coop International Pte
place in Singapore unless the partes expressly opted out under s 15 Ltd v Ebel SA [1998] 3
of the IAA. However, when partes chose a foreign country to be the SLR 670
place of arbitraton, expressly optng out of the IAA and Model Law
was not necessary.
Partes could opt out by implicaton by choosing procedures alien

6
and contrary to the mandatory provisions in the IAA or the Model

Law for arbitraton in Singapore. AA then applies.
There would be no lacuna in the law because when the Model Law
and the IAA did not apply, the Arbitraton Act (Cap 10, 1995 Rev Ed)
(“AA”) applied by operaton of its s 2, which was wide enough to
cover all arbitraton agreements whether internatonal or domestc.
By agreeing to have the arbitraton conducted in accordance with John Holland v Toyo
the ICC Rules, the partes have thereby, in my view, agreed that the Engineering Corp (Japan)
Model Law will not apply, or in the words of s 15, “that the [2001] 2 SLR 262
arbitraton be setled or resolved otherwise than in accordance with (Choo J)
the Model Law”. If they should subsequently at the proceedings
Part II and the Model law
itself, by consent or without objecton, rely on the Model Law (or any are not one. If selected
other set of rules) at the arbitraton they will be regarded as having set of rules other than
agreed to do so on an ad hoc basis. That arrangement will end when Model Law, they opt out
either party wishes to revert to the chosen rules; and any dispute as of Model Law only and
to whether they would be permited to do so will be determined by not Pt II of IAA.
the arbitrator. The arbitrator is perfectly enttled to determine
whether any issue of estoppel arises and whether there is a need to
revert to the contractually-chosen rules in writng. ICC rules
remained the governing rules to the exclusion of the Model Law.
When partes select Pt II of the IAA, without specifying the Model

Law as well, the Model Law is naturally included because it is part
of Pt II, as it is by means of the First Schedule to the IAA. However,
the converse is not so. When partes select the Model Law without
specifying Pt II of the IAA, the later does not apply.
The Model Law was created as an optonal set of rules to be utlised

like any other set of contractual rules such as the ICC Rules. It
follows, therefore, that the partes had elected to apply the ICC
Rules in place of the Model Law, thereby excluding the Model Law
only. The electon did not include Pt II of the IAA. [Supported by s5
of IAA; s5(4) does not include Model Law]
When the partes make their electon, they must remember that by
excluding the IAA they may have invoked the AA by default (if the
choice of law clause specifes Singapore law, as in this case).
If Singapore was the place of arbitraton, the curial law of Singapore Dermajaya Properties
applied. The queston then was whether the IAA or the Arbitraton Sdn Bhd v Premium
Act (“AA”) applied. The queston of optng out was to allow partes to Properties Sdn Bhd
opt out of the IAA into the AA and not to opt out of the IAA into a set [2002] 2 SLR 164
of rules of an arbitral insttuton governing the conduct of the
Disagreed with Choo J: If
arbitraton. The curial law, or the lex arbitri, was not necessarily the Model Law or Pt II is
restricted to a set of procedural rules governing the conduct of the expressly excluded, both
arbitraton. will not apply. (s 15)
If the curial law of Singapore applied and the arbitraton was an

internatonal one, then, prima facie, the IAA applied. Since the IAA
incorporated the Model Law, the Model Law had also effectvely
been chosen by the partes, even though they might have been
unaware of it. The queston was whether the Model Law and Pt II
IAA had been excluded under s 15.
7
The requirement for partes to agree to exclude the Model Law or Pt

II was and is a requirement for an express optng out in that the
mere adopton of the rules of an arbitral insttuton would not be
sufficient to consttute such an exclusion.
If the Model Law applied, the other incompatble set of rules was
completely excluded. Likewise, if the other set of rules applied, then
the Model Law was completely excluded.
Parliament’s intenton and preference was and is that, where

Singapore is the place of arbitraton and the arbitraton is an
internatonal one, both the Model Law and Pt II should be read and
be applied together. Even if the arbitraton were a domestc one and
the partes agree that the Model Law or Pt II is to apply, then both
the Model Law and Pt II should be read and be applied together.
Both Model Law and Pt II apply to the arbitraton in queston. The

inclusion of the UNCITRAL Rules in the agreement does not oust
their applicaton. The UNCITRAL Rules do not apply but it is open to
the partes to now agree that such rules will apply to fll any vacuum
in the Model Law and Pt II or to apply such rules on an ad hoc basis.
(1) It is hereby declared for the avoidance of doubt that a provision Section 15A IAA
of rules of arbitraton agreed to or adopted by the partes, whether
before or after the commencement of the arbitraton, shall apply (1) Provision of rules of
and be given effect to the extent that such provision is not arbitraton must not be
inconsistent with a provision of the Model Law or this Part from inconsistent with
which the partes cannot derogate. Model Law or Pt II
(2) Without prejudice to subsecton (1), subsectons (3) to (6) shall

apply for the purposes of determining whether a provision of rules
of arbitraton is inconsistent with the Model Law or this Part.
(3) A provision of rules of arbitraton is not inconsistent with the
Model Law or this Part merely because it provides for a matter on
which the Model Law and this Part is silent.
(4) Rules of arbitraton are not inconsistent with the Model Law or
this Part merely because the rules are silent on a matter covered by
any provision of the Model Law or this Part.
(5) A provision of rules of arbitration is not inconsistent with the

Model Law or this Part merely because it provides for a matter
which is covered by a provision of the Model Law or this Part which
allows the parties to make their own arrangements by agreement
but which applies in the absence of such agreement.
(6) The partes may make the arrangements referred to in subsecton

(5) by agreeing to the applicaton or adopton of rules of arbitraton
or by providing any other means by which a mater may be decided.
(7) In this secton and secton 15, “rules of arbitraton” means the
rules of arbitraton agreed to or adopted by the partes including the
rules of arbitraton of an insttuton or organisaton.
8
11. Recent revisions in 2006 to the Model Law
- Form of agreement - Article 7 Model Law

(1) "Arbitraton agreement" is an agreement by the partes to submit to arbitraton all or certain
disputes which have arisen or which may arise between them in respect of a defned legal relatonship,
whether contractual or not. An arbitraton agreement may be in the form of an arbitraton clause in a
contract or in the form of a separate agreement.
(2) The arbitraton agreement shall be in writng. An agreement is in writng if it is contained in a
document signed by the partes or in an exchange of leters, telex, telegrams or other means of
telecommunicaton which provide a record of the agreement, or in an exchange of statements of claim
and defence in which the existence of an agreement is alleged by one party and not denied by another.
The reference in a contract to a document containing an arbitraton clause consttutes an arbitraton
agreement provided that the contract is in writng and the reference is such as to make that clause part
of the contract.
9
II. Fundamental Concepts of Modern Arbitration Law
12. The Arbitration Agreement
- The most important aspect of arbitraton law and practce is the fact that is based on partes’
agreement – it is a consensual process. It is from this important startng point that many
consequences fow in the applicaton of both law and practce to the arbitral process. This is
frmly embodied in modern Arbitraton Law.
- For specimen clauses/agreements, see ICC and SIAC model clauses.
- Seat of Arbitration – “the seat of the arbitraton and the law of the place governs the arbitral
th
proceedings”. See Redfern and Hunter on Internatonal Arbitraton, 5 editon (Oxford)
Chapter 2.
- The law of the seat of arbitraton – Lex Arbitri; example of a defniton see Smith (Paul) Ltd v
H & S Internatonal [1991] 2 Lloyd’s Rep 127 at 130:
“What then is the law governing the arbitration? ...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. The law
governing the arbitration comprises the rules governing interim
measures (eg Court orders for the preservation or storage of goods) , the
rules empowering the exercise by the Court of supportive measures to
assist an arbitration which has run into difficulties (e.g. flling 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 arbitration (eg removing an arbitrator for misconduct).”
- The lex arbitri is to be distinguished from the proper law of the dispute between partes
- Basic requirements of an Arbitraton Agreement/Clause – see secton 4 AA and section 2 IAA
read with Artcle 7 Model Law.
4.—(1) In this Act, “arbitraton agreement” means an agreement by the partes to S 4 AA

submit to arbitraton all or certain disputes which have arisen or which may arise
between them in respect of a defned legal relatonship, whether contractual or not.
(2) An arbitraton agreement may be in the form of an arbitraton clause in a contract
or in the form of a separate agreement.
(3) An arbitraton agreement shall be in writng.
(4) An arbitraton agreement is in writng if its content is recorded in any form,
whether or not the arbitraton agreement or contract has been concluded orally, by
conduct or by other means.
(5) The requirement that an arbitraton agreement shall be in writng is satsfed by an
electronic communicaton if the informaton contained therein is accessible so as to
be useable for subsequent reference.
(6) Where in any arbitral or legal proceedings, a party asserts the existence of an
arbitraton agreement in a pleading, statement of case or any other document in
circumstances in which the asserton calls for a reply and the asserton is not denied,
there shall be deemed to be an effectve arbitraton agreement as between the
partes to the proceedings.
(7) A reference in a contract to any document containing an arbitraton clause shall
consttute an arbitraton agreement in writng if the reference is such as to make that
10
clause part of the contract.

(8) A reference in a bill of lading to a charterparty or other document containing an
arbitraton clause shall consttute an arbitraton agreement in writng if the reference
is such as to make that clause part of the bill of lading.
(9) In this secton —
“data message” means informaton generated, sent, received or stored by electronic,
magnetc, optcal or similar means, including, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy;
“electronic communicaton” means any communicaton that the partes make by
means of data messages.
Same as AA but with one extra clause: s 2A IAA
Artcle 7 of ML shall not apply to this secton
(1) “Arbitraton agreement” is an agreement by the partes to submit to arbitraton all Article 7 Model Law
or certain disputes which have arisen or which may arise between them in respect of
a defned legal relatonship, whether contractual or not. An arbitraton agreement
may be in the form of an arbitraton clause in a contract or in the form of a separate
agreement.
(2) The arbitraton agreement shall be in writng.
(3) An arbitraton agreement is in writng if its content is recorded in any
form, whether or not the arbitraton agreement or contract has been concluded
orally, by conduct, or by other means.
(4) The requirement that an arbitraton agreement be in writng is met by an
electronic communicaton if the informaton contained therein is accessible so as to
be useable for subsequent reference; “electronic communicaton” means any
communicaton that the partes make by means of data messages; “data message”
means informaton generated, sent, received or stored by electronic, magnetc,
optcal or similar means, including, but not limited to, electronic data interchange
(EDI), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitraton agreement is in writng if it is contained in an

exchange of statements of claim and defence in which the existence of an agreement
is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitraton clause
consttutes an arbitraton agreement in writng, provided that the reference is such
as to make that clause part of the contract.
OR
“Arbitraton agreement” is an agreement by the partes to submit to arbitraton all
or certain disputes which have arisen or which may arise between them in respect of
a defned legal relatonship, whether contractual or not.
- Interpretations of arbitration clauses by courts

an agreement in which the partes have the opton to elect for arbitraton WSG Nimbus Pte Ltd v
which, if made, binds the other partes to submit to arbitraton is an Board of Control for
arbitraton agreement within the meaning of the Act. This is plainly in accord Cricket in Sri Lanka
with the policy behind the Act which is to promote the resoluton of disputes [2002] 23 SLR 603; see
observations of the
by arbitraton where the partes have agreed to achieve it by this method
court at [30].
- There are limits to an expansive approach to interpretng arbitraton clauses.
Ambiguous clauses/agreements may be attacked –
11
 “any dispute of this contract to be governed by the rules of the Cocoa Teck Guan Sdn Bhd
Merchants’ Associaton of America Inc” (“CMAA”) v Beow Guan
 The clause relied on by BG was vague and did not make it clear that the Enterprises Pte Ltd
[2003] 4 SLR 276
partes had agreed to resolve disputes by arbitraton.
 Though the clause referred to the rules of CMAA, both partes were not
members of the CMAA. Since the rules of CMAA did not require non-
members to have their disputes setled by arbitraton, the queston of
incorporaton by reference to an arbitraton clause in another document
did not arise.
- Arbitraton agreement incorporated by reference – is a queston of constructon –

Clear intenton to do so. Words of incorporaton must be specifc and Concordia Agritrading Pte
intenton clearly expressed. Ltd v Cornelder
Hoogewerff (Singapore)
Pte Ltd [2001] 1 SLR 222
Courts will construe words of incorporaton used in bills of lading Star-Trans Far East Pte Ltd
narrowly. Fact remains that the disputes which may be referred to V Norske-Tech Ltd [1996]
arbitraton must be disputes “arising out of or in connecton with” 2 SLR 409
contract 6021, and not the performance guarantee. The performance
guarantee is stll a separate and distnct contractual undertaking.
The dispute between PT Riau and Star-Trans relates solely to the former’s
obligatons under the performance guarantee. we hold that the
incorporatng words relied upon by PT Riau are not sufficiently clear to
permit incorporaton of the arbitraton clause by reference.
The relevant words of incorporaton relied upon by PT Riau are contained
in cl 3 of the performance guarantee, which provides that “all rights” of
Norske-Tech may be exercised by PT Riau.
The law provides that distnct and specific words are required to Transocean Offshore
incorporate an arbitraton clause into a contract. In L & M Concrete International Ventures Ltd
Specialists Pte Ltd v United Eng Contractors Pte Ltd [2000] 2 SLR(R) 852, v Burgundy Global
Choo Han Teck JC stated at [18] that “arbitraton clauses like exempton Exploration Corp [2010] 2
SLR 821
clauses, must be expressly brought to the atenton of the other
contractng party”. In the present mater, not only was there no clause
specifying that the arbitraton clause was to be incorporated into the
Escrow Agreement, there was an express clause conferring jurisdicton on
the Singapore courts. Accordingly, incorporatng an arbitraton clause into
the Escrow Agreement would be plainly inconsistent with the clear
wording of cl6.2 of the Escrow Agreement.
The non-exclusive jurisdicton clauses in the Escrow Agreement were Astrata (Singapore) Pte
widely-drafted enough to cover any dispute, whether bilateral or trilateral, Ltd v Portcullis Escrow
arising out of the Escrow Agreement. This presumptvely excluded other Pte Ltd and another
means of dispute resoluton in favour of the jurisdicton of the Singapore and other matters
courts. This effect had not been displaced by any provision or words in the [2011] 3 SLR 386
Escrow Agreement. The partes’ choice of Singapore law as the governing
law of the Escrow Agreement further supported this conclusion. The
Singapore courts would therefore be the non-exclusive forum for
resoluton of the dispute between the partes.
Need distnct and specific words referring to the arbitraton clause. Three Sir John Megaw in
important inter-related factors peculiar to arbitraton agreements: Aughton Ltd v MF Kent
Services Ltd [1992]
(1) Arbitraton agreement may preclude the partes to it from
ADRLJ 83
12
bringing a dispute before court of law.

(2) Laid down by statute that an arbitraton agreement has to be “a
writen agreement” – purpose is to ensure that one is not
deprived of his right to have a dispute decided by a court of law,
unless he has consciously and deliberately agreed that it should
be so.
(3) Arbitraton clause is a “self-contained contract collateral or
ancillary to” the substantve contract. It can e.g. have a different
proper law from proper law of the contract to which it is
collateral. Therefore if it is to be incorporated, it must be expressly
referred to in the document which is relied on as incorporatng
writng. It is not incorporated by a mere reference to the terms
and conditons of the contract to which the arbitraton clause
consttutes a collateral contract.
In relaton to arbitration clauses/agreements –
a. Clear language is required to oust the jurisdiction of the courts
b. The statutory requirement for an arbitration agreement to be in
writng... was a clear indicaton that a party was [not] to be
regarded as relinquishing access to the courts lightly – but see
recent amendments to IAA passed in Parliament on 9 April 2012.
c. An arbitraton 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.
 Clause shows that it was clear that the partes intended to arbitrate Lucky-Goldstar (HK)
any disputes that might arise under the contract. Agreement not Limited v Ng Mook
nullifed because they chose the rules of a non-existent organizaton Kee Engineering [1993] 2
HKLR 73;.
 Arbitraton could be conducted under the law of the 3 rd country
chosen by the P
 Cannot be said that arbitraton clause is inoperatve or incapable of
being performed. Even if there are no arbitraton under rules of the
ICAA, there will be arbitraton under law of the place of arbitraton
chosen by the P
 Correct approach is for court to satsfy itself that the partes have
clearly expressed the (dominant) intenton to arbitrate any dispute.
Ignore reference to non-existent arbitraton insttuton and rules.
Apply to court to stay the proceedings. Court may make an order…staying Section 6 IAA
proceedings unless it is satsfed that the arbitraton agreement is null and
void, inoperatve or incapable of being performed.
13. Party Autonomy
- This is another important feature of arbitration and is equally important as part of the
startng point to understand modern arbitraton
- It represents the most stark difference between litgaton in a natonal court and arbitraton
whether international or to a slightly lesser degree, domestc arbitraton
13
- Arbitraton rules chosen by partes are examples of the expression of parties’ choice in
exercise of its autonomy.
- See ABC Co v XYZ Co Ltd [2003] 3 SLR 546:
“The principle of party autonomy is one that is central to the Model

Law. It is a principle that must be respected by the courts whenever
they have cause to deal with issues arising or in relation to an
international arbitration.”
- Equally applicable to domestc arbitraton though subject to natonal court’s supervision

- The importance and arguably the supremacy of the party autonomy principle may be seen in
An arbitral award may be set aside by the court specifed in Artcle 6 only Article 34(2)(a)(iv)
if: of the Model Law
the compositon of the arbitral tribunal or the arbitral procedure was – see First
not in accordance with the agreement of the partes, unless such Schedule to the
agreement was in confict with a provision of this Law from which the IAA
partes cannot derogate, or, failing such agreement, was not in
accordance with this Law.
14. The doctrine of separability
- The arbitraton agreement whether drafted in full or as a standard clause represents a

separate contract different from the underlying contract that governs the
substantve relatonship between parties so far as their partcular commercial transaction is
concerned
- The arbitration agreement is separate, distnct and independent
- An attitude in interpretaton to give primacy to arbitraton:
“The main practical advantage of this principle 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 in
court the existence or validity of the arbitration agreement [by
questioning the validity of the main contract]” – see The Law and
th
Practce of Internatonal Commercial Arbitration, 4 editon at paragraph
3.60;
Two separate contracts. Primary or main contract concerns commercial Redfern and Hunter
obligatons of the partes; the secondary or collateral contract contains on International
the obligaton to resolve any disputes arising from the commercial Arbitration 5 th
relatonship by arbitraton. edition (Oxford), at

2.89 – 2.92
This secondary contract may never come into operaton; but if it does, it
will form the basis for the appointment of an arbitral tribunal and for
the resoluton of any dispute arising out of the main contract.
Even if contract is null and void, it shall not entail ipso jure the
invalidity of the arbitraton clause: Model Law Art 16(1)
If there was never a contract at all, there was never an agreement to Heyman v Darwins
arbitrate since this was part of the contract. “The greater includes the Ltd [1942] AC 356
less”.
Separability gives arbitrators powers to decide whether arbitraton Harbour Assurance
14
agreement is valid or invalid, even when alleged invalidity was inital v Kansa General
illegality. Arbitraton clause is a self-contained contract, collateral to the International
container contract. Insurance [1993] 1
Lloyd’s Rep 455
(1) The arbitral tribunal may rule on its own jurisdicton, including a plea s 21 AA and Article
that it has no jurisdicton and any objectons to the existence or validity 16 (1) Model Law
of the arbitraton agreement, at any stage of the arbitral proceedings.
(2) For the purpose of subsecton (1), an arbitraton clause which forms
part of a contract shall be treated as an agreement independent of the
other terms of the contract.
(3) A decision by the arbitral tribunal that the contract is null and void
shall not entail ipso jure (as a mater of law) the invalidity of the
arbitraton clause.
If there is a dispute over whether there a contract was entered into or Contrastng positon
not and it contains an arbitraton clause, the issue cannot go to of Singapore law pre
arbitraton under the clause. AA and IAA positon –
i.e. if the contract never existed, the arbitraton clause does not exist. New India Assurance
v Lewis [1967] 1 MLJ
Arbitraton clause is not an independent agreement.
156
15. Principle of Kompetenz-kompetenz
- This principle is a close cousin of the principle of Separability. Together these two principle
ensures the primacy of arbitraton against attempts to subvert its predominance by reason of
partes’ consensual arrangements objectvely ascertained.
- It refers to the arbitral tribunal’s own “competence to decide its competence”. Rule
based on pragmatsm and with the object of ensuring the arbitral process is not subverted
by a disputng party’s reliance on traditonal approaches to legal interpretation. For an
example of the tension between the conventional approach in legal interpretaton and the
pragmatic approach to give primacy to arbitraton.
`The test in such cases has been said to be whether the contract is see Ian Leonard Jackman
determined by something outside itself, in which case the arbitraton v Culifrance Furniture
is determined with it, or be something arising out of the contract, in Pte Ltd (Unreported);
which case the arbitraton clause remains effectve and can be Arden Shipping Ltd v
Owners of Sungei Bulan
enforced.
[1983] 2 MLJ 377 which
Culifrance followed
Where an arbitral award had been granted overseas and where the Aloe Vera of America,
law governing the arbitraton was not Singapore law, a pragmatc Inc v Asiatic Food (S)
approach had to be taken when determining if an “arbitraton Pte Ltd [2006] 3 SLR
agreement” existed between the partes. This was so as to give 174
effect to arbitral awards granted outside Singapore. Thus, the correct
part of the Act to apply was Pt III which contained ss 27 and 29 and Pragmatic Approach
was enttled “Foreign Awards”
16. Confidentality
- Strictly not a principle but an important feature approaching a principle. For a long time both
the arbitral community and partes to arbitration operated on the assumption that
15
arbitraton proceedings are confdental.

- Generally accepted that arbitral proceedings are confdental but note concerns raised by
writers and courts alike – see Confdentiality in Arbitration (1996) 12 Arbitration International
287
- Is it really confdental? Important case in Australia raising this issue of whether arbitral
proceedings are confdential – Esso Australia Resources Limited v Plowman (1995) 183 CLR
10:
“...in Australia, having regard to the various matters to which I have

referred we are justified in concluding that confidentiality is not
an essential attribute of private arbitration imposing an obligation on
each party not to disclose the proceedings or documents and
information provided in and for the purposes of the arbitration” Esso
supra at 30
- In Singapore accepted as confidental but subject to exceptions – Exceptions depend on the

circumstances of the case and may operate differently with respect to different types of
documents.
There was an implied obligaton on a party obtaining documents not to Myanma Yaung Chi
disclose them or use them for any purpose other than the dispute in which Oo Co Ltd v Win
they were obtained. Win Nu [2003] 2
SLR 547
Disclosure could occur with the consent of the other party or by order or
leave of the court, where it was reasonably necessary or where it was in the
interests of justce.
The reasonable necessity excepton was founded on an implied agreement
that the duty of confidentality would be lifted when it was reasonably
necessary to disclose. Where the excepton applied, leave of court would not
be necessary before disclosure could be made.
What amounts to reasonably necessary: required to support D’s case that P’s
suit was vexatous and an abuse of court but positon can change.
An obligaton of confidentality was to be implied in arbitraton International Coal
proceedings. This was so even in the face of r 34.6 of the Singapore Pte Ltd v Kristle
Internatonal Arbitraton Centre Rules 1997 (the “Confdentality Rule”). There Trading Ltd [2009]
should be no generalisatons of what the duty of confdentality encompassed 1 SLR 945 at [83] to
as each case should be evaluated in the context of its circumstances. [84] followed Hasneh
and Associated
Applies even after arbitraton concluded and the award is issued.
Electric rejected Esso
Australia Resources
Implied obligaton of confdentality in arbitraton proceedings. Obligaton Dolling Baker v

arose out of the very nature of arbitraton itself. Merret [1990] 1
“Essentally private nature of an arbitraton, coupled with the implied obligaton of WLR 1205
a party who obtains documents on discovery not to use them for any purpose other
than the dispute in which they were obtained. As between partes to an arbitraton,
although the proceedings are consensual and may thus be regarded as wholly
voluntary, their very nature is such that there must, in my judgment, be some implied
obligaton on both partes not to disclose or use for any other purpose any
documents prepared for and used in the arbitraton…”
Regarding exceptons to the duty of confdentality: A distncton has to be drawn Hasneh Insurance
between different types of confdentality ataching to different types of documents. Co of Israel v Stuart
Arbitraton awards were also to be treated differently from the materials used or J Meir [1993] 2
disclosed in the course of arbitraton proceedings.
16
 Extended confdentality obligaton to documents disclosed in the Lloyds Rep 243

arbitraton. Award and reasons for it subject to same obligaton.
 Excepton: where the interests of the arbitratng party require disclosure
Implied obligaton of confdentality in arbitraton proceedings. Associated Electric
& Gas Insurance
Services Ltd v
European
Reinsurance Co of
Zurich [2003] 1
WLR 1041
- IAA does not expressly provide for this; see NZ positon – secton 14 of the Arbitraton Act
1996 (NZ): Every arbitraton agreement to which this secton applies is deemed to provide that
the partes and the arbitral tribunal must not disclose confdental informaton (s14B). List
exceptons to the rule in s14.
- See Confdentiality in Arbitration, Loh and Lee, SAL Monograph Series (2007).
17
III. The Role of the National Court in respect of Arbitrations
17. Is the court excluded where partes have chosen arbitraton?
- Is there a difference between domestc and internatonal arbitratons?

- Why arbitration in the frst place – in the case of domestc and in the case of internatonal
disputes.
- Can you have an arbitraton without reference to any territory?
18. The relatonship between Inter nat onal Commercial Arbitratons and
the domestic or natonal court
General
- The arbitral seat ‘fixes’ the arbitraton to a specific territory. A Singapore seat will mean
that the lex arbitri is Singapore law. In the case of international arbitrations the IAA would
apply – see s 5 IAA
- Consequentally the Model Law contained in the First Schedule to the IAA applies as Singapore
law.
- What becomes evident then is that if Singapore law applies there is but one guardian of that
law – the Courts in Singapore. The immediate and important feature then is that the
relatonship between the natonal court and the internatonal commercial arbitratons is such
that it is the case the supervisory function of the local courts is in the background and
may potentally be called upon.
- More so in the case of domestc arbitrations – the natonal courts in Singapore has a wider
supervisory role in respect of local or domestc arbitratons by virtue of the dual regime for
commercial arbitrations. See generally, and
Singapore Court
Practice, 2009, at
paragraph 69/1/5
 The courts would generally play a more interventonist role in grantng NCC International AB
interim injunctons in domestc arbitraton as compared to internatonal v Alliance Concrete
arbitraton because the Arbitraton Act (Cap 10, 2002 Rev Ed) conferred Singapore Pte Ltd
the power to grant interim injunctons solely on the court, whereas the [2008] 2 SLR 565.
Internatonal Arbitraton Act (Cap 143A, 2002 Rev Ed) conferred the same
power on both the court and the arbitral tribunal.
 Ratonale for larger role for the court in domestc arbitraton is one of
policy – “for the development of domestc commercial and legal practce,
and for a closer supervision of decisions which may affect weaker
domestc partes”.
 But note that court will only intervene in limited circumstances where
curial interventon will support arbitraton
 However, where the court had concurrent jurisdicton with the arbitral
tribunal, liberal curial interventon not appropriate.
18
 Regardless of whether court’s jurisdicton is exercised under the AA or IAA,

the general principle of limited and cautous curial assistance applies.
Court will intervene sparingly and in very narrow circumstances, for
instance, where third partes over whom the arbitral tribunal had no
jurisdicton were involved, where maters were very urgent, or where the
court’s coercive powers of enforcement were required.
Specifc
- Recogniton of the existence of the Arbitration Agreement or clause – if the natonal court
accepts and recognizes the arbitraton agreement, it will defer to the arbitraton proceedings
except in certain circumscribed situatons governed in Singapore’s case by the IAA and AA
respectively as well as the Model Law where international disputes are concerned.
- The natonal court recognizes and defers to the arbitral proceedings by issuing a stay of the
litgaton in favour of the arbitraton proceedings
19. Meaning of ‘dispute ’

- In every arbitration agreement, the key is the partes agreement to refer ‘disputes’ to
arbitraton instead of litgatng them in court. The fundamental inital question where the
court’s determinaton will often be necessary is whether there is in the first place a
‘dispute’ between the partes.
Whether there is a “dispute” that falls within arbitraton agreement/clause

Common Sense approach: Uni-Navigation Pte
Ltd v Weil Loong
“... the court should, save in obvious cases, adopt a holistc and Shipping Pte Ltd
commonsense approach to see if there is a dispute”, [1993] 1 SLR 876
 The justfcaton for this approach is that it is important to hold a
party to his agreement and avoid double and split hearing of
maters. per Selvam J
 If the defendant, therefore, makes out a prima facie case of

disputes the courts should not embark on an examinaton of the
validity of the dispute as though it were an applicaton for
summary judgment.
 Adopted common sense approach Kwan Im Tong
Chinese Temple & Anor
 While O 14 summary judgment principles aided the court to v Fong Choon Hung
determine whether a claim should be immediately allowed in Construction Pte Ltd
very obvious cases, it was not entrely safe to apply them in [1998] 2 SLR 137
determining whether partes should be bound by their
agreement to arbitrate. Burden falls on P (party resistng the
stay) to show cause (that other party had no defence to the
claim) to allowing a stay – s 7 AA
 Need only establish prima facie case for arbitraton: (1) valid
arbitraton agreement; (2) Partes chose arbitraton; (3) no
reason why arbitraton cannot proceed.
In a situaton like the present, if there appears to be a conflict Multiplex Construction
between two provisions of a contract and such confict cannot be Pty Ltd v Sintal
19
setled without delving deeply into the contract, then the resoluton of Enterprise Pte Ltd
the queston of constructon that is raised by the confict is a dispute [2005] 2 SLR (R) 530
which should go to arbitraton. where the above cases
were cited and followed
Court found that an argument can possibly be made that Item I
confers a contractual right on Multplex to claim general damages for Other disputes found in
Sintal’s delay. As a result, there is a possible tension between cl 10 and respect of set-off notices
Item I and this is an issue to be determined by the arbitrator.
Therefore there was a dispute that must go to arbitraton on the
proper interpretaton of the damages provisions of the sub-contract.
20. Stay Applications
- If a party in contravention of an arbitration agreement/clause initates litgation instead of

going to arbitraton, the other party to the agreement may apply to the natonal court for a
stay.
Internatonal Arbitratons
6.—(1) Notwithstanding Artcle 8 of the Model Law, where any party to Section 6(1) IAA
any arbitraton agreement to which this Act applies insttutes any
See s 5 IAA above
proceedings in any court against any other party to the agreement in
for defnition of
respect of any mater which is the subject of the agreement, any party
International
to the agreement may, at any tme after appearance and before
Arbitration
delivering any pleading or taking any other step in the proceedings,
apply to the court to stay the proceedings so far as the proceedings
relate to that mater.
If the court fnds that the applicant seeking stay has satsfed the S 6(2) IAA
requirements of s 6 IAA, stay is mandatory under the IAA.
Express language of section 6(2), IAA - the court “shall stay the
proceedings”
Applicaton is made under the Rules of Court, by Originatng Summons O 5 r 3 ROC
Singapore Court
Practice, 2009,
paragraph 5/3/1.
Both partes accepted that a stay was mandatory under IAA. Issue was Mitsui
whether IAA applied. The dispute was over Mitsui’s place of business – Engineering &
either Singapore or Japan under s 5 IAA. Court held it was Japan Shipbuilding Co
therefore it was an internatonal arbitraton. Ltd v PSA Corp
 Had place of business in Japan and in Singapore – s 5(3)(a) – Ltd & Anor
which of these two places of business “has the closest [2003] 1 SLR 446
relatonship” to the arbitraton agreements.
 Look at the negotatons leading to the Consortum Agreements
which contained the arbitraton provisions. Therefore, the Is the arbitration
individuals who took part in the negotatons (not the number) international?
and the place of the negotatons were important. Interpretation of
 Place of substantal performance a factor – Japan – main s 5(3)(a) IAA
responsibility was the design works
 Person in charge of negotatons few from Japan to Singapore
form tme to tme, therefore place of negotatons and executon
of the Agreement less important.
20
 Address in Japan was used for the agreement and any formal
communicaton was to be sent to its head office in Japan.
 Conduct of partes & conduct of arbitraton proceedings
militated against M’s argument that arbitraton not internatonal
one. Partes taken IAA to be relevant statute.
Assuming the arbitraton clause was applicable, the proceedings had to Coop International
be stayed because a stay was mandatory under s 6(2) of the IAA when Pte Ltd v Ebel SA
there was a dispute governed by an arbitraton agreement. The fact [1998] 3 SLR 670
that there were no triable issues was irrelevant.
 Secton 6(1) IAA applied where the proceedings in court were “in Dalian Hualiang
respect of any mater which [was] the subject of the Enterprise Group
[arbitraton] agreement”. This meant that the court had no Co Ltd & Anor v
Louis Dreyfus Asia
jurisdicton under s 6(2) IAA to order a stay if the court
Pte Ltd [2005] 4
proceedings were not in respect of a matter which was the
SLR 646 at [75]
subject of the arbitraton agreement.
 It should be for the court to determine if the mater before the
court was the subject of the arbitraton agreement. However, if
that issue was arguable in that the outcome was not clear, then
the court should stay the proceedings.
 Under s 6(2) of the Arbitraton Act (Cap 10, 2002 Rev Ed), the
court might determine if there was in fact a dispute before
deciding to order a stay, although the court should not examine
the validity of the dispute as though the stay applicaton was an
applicaton for summary judgment.
 As regards s 6(2) IAA, once there was a dispute, a stay had to be
ordered unless the arbitraton agreement was null and void,
inoperatve or incapable of being performed. The court was not
to consider if there was in fact a dispute or whether there was a
genuine dispute.
 The more difficult queston was when it could be said that a
dispute existed. A mere refusal to pay or silence was not a
dispute. An admission by a defendant would, generally speaking,
be contrary to a dispute but not every admission would
necessarily avoid a stay order.
A stay will not be granted in respect of an in rem action where the new The "Engedi"
owner of the vessel intervening in the acton was not a party to the [2010] 3 SLR 409
arbitraton agreement.
The court will not grant a stay if the arbitration agreement is “null and Lucky-Goldstar
void, inoperative or incapable of being performed”. [1993] 2 HKLR 73
Court will look at the real dispute; whether it falls within the arbitration Giant Light Metal
agreement or based on some other dispute. Technology
(Kunshan) Co Ltd v
Aksa Far East Pte
Ltd [2012] SGHC 2
Principles the Court will take into account: Kwan Im Tong
[1998] 2 SLR 137;
1. The arbitration contract
equally applicable
2. Partes choice for arbitration instead of litgation should be
to both IAA and
honoured
AA.
3. The Party resistng the stay proceedings bear the burden of
21
proof
4. Court will take a holistic and commonsense approach, save in
obvious cases
5. Summary judgment principles applicable to the assessment of
the strength of each party’s position should not held to be
exhaustive; if a party makes out a prima facie case of a
dispute, the court should not embark on an examination as if it
were an application for summary judgment.
-
Domestc Arbitratons
Court has the discretion whether to grant a stay or otherwise as s 6 AA
opposed to the IAA where it is mandatory on the court to grant a
stay if the applicaton satsfes the legal tests
“The court ... may, if the court is satsfed that – S 6(2) AA
(a) There is no suffcient reason why the matter should not be
referred in accordance with the arbitraton agreement and
(b) The applicant was, at the time when proceedings were

commenced, and stll remains, ready and willing to do all
things necessary to the proper conduct of the arbitraton,
Make an order to stay the proceedings.
Court of Appeal upheld a decision to dismiss an applicaton to stay a Larsen Oil and Gas
claim seeking to avoid transactions under the Bankruptcy Act, as the Pte Ltd v Petroprod
dispute was not arbitrable on the grounds of public policy. Ltd (in official
liquidation in the
The claims were derived from the insolvency regime and are not Cayman Islands
arbitrable. and in compulsory
liquidation in
Singapore) [2011]
3 SLR 414
21. Before “ taking other step in the proceedings”
- Both IAA and AA makes it clear in subsectons (1) of both sections 6 that a stay applicaton
must be made “at any time after appearance and before delivering any pleading or taking
any other step in the proceedings “
Any step that affirms the correctness of the proceedings or Australian Timber
demonstrates a willingness or intenton to defend the substance of the Products Pte Ltd v
claim in court. Koh Brothers
Building & Civil
 Applicaton by D to extend tme to serve its defence is not a
Engineering
step in the proceedings because such an applicaton is an act Contractor (Pte) Ltd
that safeguards the D’s positon pending the determinaton of [2005] 1 SLR 168
the stay applicaton, as opposed to an act that sought to
contest the proceedings on its merits.
 An applicaton to have the default judgment set aside is not a
step in the proceedings.
 Reservation of rights to make applicaton for stay preserves Chong Long Hak Kee
rights under arbitraton agreement. Construction Trading
22
 However, the defendant, by serving the 48-hour notce on the Co Ltd v IGE Global
plaintff for its Counterclaim, had shown that it was serious Pte Ltd [2003] 4 SLR
about pursuing its Counterclaim in the courts and not at 499
arbitraton. Since the maters covered in the Counterclaim and
Defence are intertwined, this vitated the defendant’s
arguments that it had shown a clear and unequivocal intenton
to arbitrate the mater. Accordingly, the stay applicaton had to
be dismissed.
An act, which would otherwise be regarded as a step in the Australian Timber,
proceedings, would not be treated as such if the applicant specifically supra at [22]
stated that he intended to seek a stay or expressly reserved his right
to do so.
Issue: whether stay applicaton and interim payment applicaton ought Lian Teck
to be heard together Construction Pte Ltd
Held: hearing of applicaton for interim payment be adjourned after v Woh Hup (Pte)
Ltd [2006] 4 SLR 1
fnal resoluton of the stay applicaton
P cannot apply for summary judgment while a stay applicaton is

pending because summary judgment is only available after defence is
fled. To fle a defence would prejudice his stay applicaton by taking a
step in the proceedings.
No distncton between O 14 and O 29 r 10

(1) Applicaton for interim payment under O 29 r 10 is an applicaton
on the merits and akin to an applicaton for SJ because, before grantng
an order for interim payment, court had to be satsfed that A would
obtain judgment for a substantal amount at trial. (2) if R were to fle
affidavit opposing the applicaton, it would have to dwell on the merits.
(3) fling of such an affidavit would consttute taking a step in the
proceedings and R would be deemed to have waived their rights to
arbitraton.
Whether there was some “positve act” or essentally, an act which Eagle Star Insurance
“impliedly affirm[ed] the correctness of the [court] proceedings and Co Ltd v Yuval
the willingness of the defendant to go along with a determinaton by Insurance Co Ltd
the Courts of law instead of arbitraton”, as observed by Lord Denning [1978] 1 Lloyd’s Rep
357
MR
Kuwait Airway
Corp v Iraq Airways
Co [1994] 1 Lloyd’s
Rep 357
Court’s approach in assessing whether a step has been taken,

To be understood in a practcal and commonsensical way’. A step Court of Appeal
which manifests a willingness to submit to the jurisdicton of the court decision of Carona
instead of evincing an intenton to rely on arbitraton ought to be Holdings Pte Ltd
regarded as taking a step in the proceedings. Pte & Ors v Go Go
Delicacy Ltd
a “step” is deemed to have been taken if the applicant employs court [2008] 4 SLR 460 at
procedures to enable him to defeat or defend those proceedings on [52]
their merits and/or the applicant proceeds, from a procedural point of
view, beyond a mere acknowledgment of service of process by evincing
an unequivocal intenton to partcipate in the court proceedings in
preference to arbitraton.
23
Accordingly, the courts have held the following acts as steps in the
proceedings such as seeking leave to defend or to strike out (Pitchers,
Ltd v Plaza (Queensbury), Ltd [1940] 1 All ER 151), atending a
summons for directions (County Theatres ([46] supra), Richardson v Le
Maitre [1903] 2 Ch 222 and Ochs v Ochs Brothers [1909] 2 Ch 121) and
requiring disclosure of documents (Parker, Gaines & Co, Limited v
Turpin [1918] 1 KB 358).
A party applying for a stay should not blow hot and cold. The Republic of
Philippines v Maler
HC held: appellant had submited to the jurisdicton of the Singapore Foundation [2008]
courts through its own conduct by including a specifc prayer in the 2 SLR 857
stay applicaton for the Funds to be released to it (“Prayer 2”), as well
as through the acts of its agent, PNB (see WestLB AG v Philippine
Natonal Bank [2007] 1 SLR(R) 967). Hence, by fling writen
submissions in the interpleader proceedings and claiming a benefcial
interest in the Funds, KanJ held that PNB was trying the appellant’s
claim and thereby submitting to the jurisdicton of the Singapore
courts and could no longer invoke state immunity.
CA held: Appellant had submited to the jurisdicton of the Singapore

courts as Prayer 2 was a step in the proceedings since it demonstrated
the appellant’s unequivocal, clear and consistent intention to submit to
jurisdiction. The appellant had indicated it would proceed with Prayer 2
even if the stay applicaton succeeded and this suggested that the
appellant had always intended to invoke the jurisdicton of the
Singapore courts to release the Funds to it and that Prayer 2 was not
merely a request for an order consequental to a stay order.
Simultaneous application to extend time to file defence untl after Carona Holdings,
the hearing of the stay applicaton – not a step supra at [94]
In ascertaining what a step in the proceedings is, the context in which a Pragmatic
request for an extension of tme is sought is germane in assessing if it approach
consttutes a step – indeed, the background forms the canvass against
which the applicaton for an extension of tme is to be assessed.
The applicaton for extension of tme to fle a defence is merely an

acknowledgment by a defendant that the court has transient
jurisdicton over the partes. As such, an applicaton actually makes it
abundantly clear to the opposing party and the court that the
defendant does not intend to defend the acton in court pending the
outcome of its applicaton for a stay.
agree with PoterJ’s perceptve observatons in Blue Flame Mechanical

([51] supra at 267), viz, that an act which “has been done manifestly
without prejudice to an intenton to invoke arbitraton and merely to
preserve the status quo untl a summons to stay is promptly issued”
[emphasis added] cannot consttute or be viewed as a step in the
proceedings.
22. Compelling Attendance of witnesses at Arbitration
24
- Recognizing that the arbitral process is consensual and entered into by agreement of the
disputng partes it will at once be noticed that the arbitral tribunal does not have
powers/jurisdiction over non-partes and those who do not consent to be part of the process.
- Partcular difficulty with third partes, for example, non-cooperative potental witnesses –
tribunal may order witness to give evidence or produce documents but has no power to
compel – arbitral tribunal/party needs the help of the court – both IAA and AA have
provisions to obtain the help of the national court – see ss 13 – 14 IAA and s 30 AA.
23. Enforcement of Arbitral Orders and Directions
- See section 12 IAA, generally

- Secton 28 AA
24. Recogniton and Enforcement of Awards
- This is perhaps the most important role of the natonal court. Unless and untl the local court
recognizes an arbitral award for enforcement purposes, the arbitraton process is incomplete
and of litle practcal use to the party who has the beneft of that arbitral award.
- Singapore awards i.e. recognized by IAA under s 19; foreign arbitral awards are also
recognized for purposes of enforcement; see s 29 IAA.
- Foreign awards may also be enforced by an action on the arbitral award – see O 69 A Rules of
Court and s 30 IAA.
25. Setng Aside of Arbitral Awards
- An important role of the natonal court which is the other side of Enforcement – see next
lecture on The Arbitral Award, its recognition and enforcement.
25
IV. The Arbitral Award; Recognition and Refusal to Recognize and

Setting Aside.
26. The Award and its form
- The Arbitral Award is the culminaton of the arbitral process. It is the product the partes to
the arbitration seek to have, hopefully one in their favour. Simply put, it is the decision of
the Arbitral Tribunal with its grounds for the decision. It is the equivalent to the judgment of
a court.
- Strictly, arbitral awards with reasons in commercial arbitratons certainly in the domestic
context, is a fairly recent development. In early 1950’s up to perhaps 1970’s there were what
were known as ‘non-speaking awards’. Essentally, these were awards without reasons. At a
practcal level, there grew up a practce amongst arbitrators, the attitude that “if give no
reasons, then it would be difficult to fault my decision”. However, even then if partes
requested a ‘speaking award’, i.e. one with reasons, the arbitrator would be obliged to
provide one.
- In modern commercial arbitratons, there is no partcular form of the Arbitral Award, though
professional arbitrators adopt a style not dissimilar to court judgments. Certain basic
‘formats’ are taught by professional arbitral institutes to ensure enforceability of the awards.
International Arbitral Awards
27. Form and Type of Award
- The basic requirements rather than form are those laid down in the UNCITRAL Model Law
where it is applicable. The essental requirements are:
a. In writng and signed by the arbitrator or by a majority of them; usually reasons are given
for the omission of the signature of an arbitrator (dissenting/minority arbitrator)
b. Grounds or reasons for the decision/award save where partes do not require any.
c. Possibly the only formal requirement is as to statng the (i) date of the Award and (ii) the
place of the award as determined by Artcle 20(1) of the Model Law
- Above are adopted in Singapore law by virtue of s 3(1) of the IAA.

- The ‘place of the award’ is an important aspect. It determines and characterizes the type of
award – whether a Singapore award or a foreign award. In the internatonal context, it has
ramifcations as to recognition and enforcement.
- As a Singapore award, the award will be recognized 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 proceedings in any
court of competent jurisdicton – see s 19B
- Foreign awards, so far as Singapore is concerned will be subject to the provisions of Part III of
the IAA. The formal requirements for recognition are straightforward and found in s 30 IAA.
(NB: Part III of the IAA does not apply to foreign arbitraton awards made before 19 Nov 1986
– see s 28(2) IAA.
- For the implication of the nature/type of the award in the context of recogniton and
enforcement, see.
26
Change in venue of the hearing does not necessarily mean that the place of PT Garuda
arbitraton changes. Jakarta remained the place of arbitraton. Singapore was Indonesia v Birgen
not the most appropriate forum to challenge and set aside the award. The Air [2001] SGHC 262
most appropriate forum was Jakarta. As place of arbitraton is not Singapore,
neither s 34 of Model Law nor Part 1 of IAA would apply.
Part I of IAA applies only if (a) the arbitraton is an internatonal arbitraton

within the meaning of s 5 of the Act, (b) place of arbitration is Singapore, and
(c) partes have not excluded its applicaton by agreement.
OR Part I can apply if partes agree that it should. See s 15 IAA
Secton 24 IAA is linked to artcle 34(1) – if artcle 34(1) is not applicable

because place of arbitraton is not Singapore, then s 24 also not applicable.
- Under the Model Law regime, an award is deemed to have been made at the seat of the
arbitraton (unless otherwise indicated). That, therefore, determines the type of award it is –
Artcle 31(3) Model Law.
Under the AA – domestic awards

- Same requirements as under the IAA – Part VIII of AA – see s 38; see sub-paragraphs (a) to (c)
above.
- AA expressly provides that award is deemed to be made at place of arbitration - s 38(4),
mirroring Artcle 31(3) Model Law.
28. Meaning of ‘Award’

- S 2 IAA, AA: "award" means a decision of the arbitral tribunal on the substance of the dispute
and includes any interim, interlocutory or partal award but excludes any orders or directons.”
- While taken literally the meaning of ‘award’ seems uncontroversial. However, as in
everything to do with law, there are surprising situatons or nuances which call for a more
thorough investigaton of the partcular concept or term.
- Thus, does a negatve determination by the arbitral tribunal amount to a decision capable of
meaning an ‘award’ with its consequent ramifications?
The defniton of an “award” in s 2 of the Act was clear and did not PT Asuransi Jasa
include a negatve determinaton on jurisdicton, as it was not a Indonesia (Persero) v
decision on the substance of the dispute. On the contrary, a negatve Dexia Bank SA
determinaton on jurisdicton was a decision not to determine the [2007] 1 SLR 597 in
substance of the dispute, and therefore was not an award for the relaton to s 2(1) of
purposes of Art 34 of the Model Law. The mere ttling of a document the IAA and in the
as an award did not make it an award as defned by the Act. In this context of Artcle 34
case, the court had to consider the substance of the Second Award to of the Model Law.
see whether it was a pure negatve ruling on jurisdicton or a decision
on the substance of the dispute.
28.1. Decisions of the tribunal:

a. Award – the tribunal’s fnal decisions on substantve maters in dispute
b. Interim orders or procedural directons
c. Interim measures – MAL (2006 Revision), Chap IV, Art 17 (2) : “whether in the form of an
award or in any other form” (Note: Chap IV has not been adopted in Singapore)
27
28.2. Titling of document not important; use of or absence of ‘award’ not conclusive.
a. May be fnal, interim, interlocutory or partal
b. All awards are “fnal and binding”
28.3. In writng – Art 31(1) MAL - necessary for enforcement (Art IV, New York
Conventon)
28.4. Signed by sole arbitrator or by majority of the tribunal – Art 31(1) MAL
- If not all the arbitrators are available, the reason for omission must be mentoned and decision
making must involve all the arbitrators.
28.5. Unambiguous and certain:

a. where money is ordered to be paid, the payee is to be identfed.
b. where acts to be done, should identfy which party is to perform .
c. fnal in form - not interlocutory in form e.g. “adequately compensated”
28.6. Complete
Duty of arbitrator to make fndings and decisions of all maters in Halsbury’s Laws of
dispute. All issues must be answered. An award must therefore set out Singapore (2003
the fndings, and deal with all the issues raised. (Tan Toi Lan) reissue) Vol
2, at pargraph
An award is not complete if the queston of costs is not addressed (Re 20.100
An arbitration between Becker, Shillan & Co and Barry Bros [1921] 1 KB
391), but this omission will not render the award invalid as the tribunal
may rectfy it by an additonal award or an amendment of an award.
The incompleteness of an award is not a ground for it to be set aside.

The court may however decline leave (s 46(1) AA; s 19 IAA) to enforce
the award untl and unless the award is made complete.
(s 43 AA; Model Law art 33. The tribunal may make correctons to the
award or make additonal awards on claims submited but omited in
the award)
Issue of whether the deceased was a ‘workman’ under the then Tan Toi Lan v Lai
Workmen’s compensaton Ordinance 1952 and whether the accident Kee Ying [1975] 1
occurred in the course of employment was not answered. The arbitrator MLJ 27
simply decided that the claim be dismissed. The court held that it was
an invalid award.
Merely narratng but not deciding on the issues amounted to Jeeram v National
‘misconduct’ justfying a setting aside. Union of
Plantation Workers
[1993] 3 MLJ 104
Complete viz. should decide all issues and make defnite fndings. Not Shanghai Tunnel
leaving any issue unanswered. Tribunal cannot choose to ignore any Engineering Co Ltd
issue raised even if he feels it may not be relevant to fnal outcome. v Econ-NCC Joint
Venture [2011] 1
SLR 217
Incomplete awards may not be enforceable. Article 33 Model
28
Law and s 43 AA
28.7. Made within tme allowed by agreement or by law.
- {e.g. SIAC Rules - 45 days; CIETAC Rules (2005)—within 6 months from consttuton of the tribunal;
; ICC – 6 months from TOR}
The case lingered for some 9 years with several arbitrators being appointed and
India: Supreme
re- appointed. Court; NBCC Ltd v JG
Engineering Pvt Ltd ;
Civil Appeal 8/2010
(Decided: 5 January
2010)
Tribunal becomes functus after expiry of tme given. Set aside award made a Ian MacDonald
few months after tme allowed. Library Services Ltd v
PZ Resort Systems Inc
{1987] 14 BCLR (2d)
273, BC CA
Court has discreton if delay causes no prejudice. FIAT SpA v Republic of
Suriname (USDC,
South New York,1989)
Yearbook Com Arb
XXIII(1998) p 880-
885)
The award should be made within the time set under the agreed rules. Party Ting Kang Chung
autonomy was the cornerstone of arbitraton and if partes have chosen to a John v Teo Hee Lai
tme limit within which an arbitrator is to render his award, and there is no Building
clause to extend tme, other than by mutual agreement, then no court can re- Constructions Pte Ltd
write the contract for the partes. and others [2010] 2
SLR 625
S15 AA should be exercised by court to prevent a substantal injustce,
provided there was no prejudice to the other party. Court should be slow to
exercise its discreton if by doing so it overrode party autonomy which was
paramount.
(1) if arbitraton clause was clearly worded that arbitrator had to issue his
award within a specifed tme, a court should no interfere unless there
were exceptonal circumstances.
(2) Unless there were very good reasons, a court should not entertain any
applicaton under s 15 if the tme limit had expired, a fortiori, if the
tme limit had expired by a large margin. The longer the delay in making
the applicaton the less likely a court would exercise its discreton to extend
tme. What was a large margin had to necessarily depend on the facts of each
case. There should be no hard and fast rule. It would not only be a prudent
measure but a preferable pre-requisite that any applicaton for extension of
tme should be made before expiry of the tme limit agreed to by the partes
for rendering the award. Any applicaton to extend tme after the tme limit
had expired would need very good reasons and extenuatng circumstances for
the court to exercise its discreton to extend tme, eg, the court remited an
award or part of an award back to the arbitrator to reconsider.
(3) Discreton was exercised if in all the circumstances of the case it would
cause a substantal injustce if tme were not extended. Prejudice to
other party is taken into account
29
28.8. Reasons for Award:

 Award must be made with reasons unless partes have agreed that no reasons are to be given or it
is a consent award {Art. 31(2), MAL}
 Findings of a tribunal are not its reasons but its conclusions: Gora Lal v Union Of India (2003) 12
SCC 459 (India: Supreme Court, 18 December 2003)
30. Final and Binding Effect of the Award
i. A proper, complete and enforceable arbitral award is fnal and binding upon the parties. This
ensures in subsequent proceedings as well – see s 19B IAA and s 44 of AA.
 Enforceable in like manner as a court judgment – see s 19 IAA and s 46 AA.

 If the award is the final award,
a. it terminates the arbitraton.
b. extnguishes the original cause of acton
c. where the award is set aside
d. Arbitrator becomes functus officio
 Tribunal cannot “vary, amend, correct, review, add to or revoke” award except for clerical or
calculaton errors – s 19B IAA; s 44(2) AA
o [These provision were added in 2001 to re-state the proper meaning of “fnality of awards”
reversing the effect of CA’s decision in Tang Boon Jek Stanley v Tan Poh Leng Stanley (CA)
[2001] 3 SLR 237)]
 Tribunal is also functus in respect of issues disposed in Interim Awards: Halsbury’s Laws of
Singapore Vol 1(2), para 20.116; MCIS Insurance Bhd v Associated Cover Sdn Bhd [2001] 2 MLJ 561;
 Original cause of acton replaced by right to enforce award
 Res judicata (no re-litgaton of same cause of acton) and Issue estoppel (no re-opening of the
state of law or fact which had earlier been established) applies to maters decided in arbitral
awards as in judgments of courts.
Question of when an arbitral award is final.
The practce of making awards “final save as to costs”. Tan Poh Leng Stanley v
Fact s : Ar b it rato r m ad e f n al award dism issin g claim and Tang Boon Jek Jeffrey
cou nte rclaim . A ft e r re spo nd e nt m ad e a re q ue st fo r a f re sh [2001] 1 SLR 624 (HC)
he ar in g , t he arb it rato r he ld a f ur th e r he ar in g an d mad e
an ot h e r award o n 6 M arch , in wh ich he revise d h is e arlie r
de cision and allowe d co unte rclaim .
Issue : wh eth e r arb it rato r h ad p owe r to re call and reve rse a

f n al award he m ade .
He ld :
 The doctrine of functus officio was expressed in Art 32 of the Model
Law. There was nothing in the Model Law which authorised the
arbitrator to recall or reconsider his award after he had made his
fnal award and his mandate was thereby terminated.
 Thus, the March award was made by the arbitrator outside his
mandate and was a nullity. The arbitrator had become functus
officio and he had no power to recall and reverse the award. More
importantly, he had no power to create that power when it was not
contained in the Internatonal Arbitraton Act (Cap 143A, 1995 Rev
30
Ed) or the Model Law.

 No power because of the principal of fnality and public policy to
bring an early end to commercial disputes.
 Court could not invoke s 34(4) of ML to suspend setting aside
proceedings and remit award to arbitrator. It could only be invoked
where there were irregularites in the award and not when award
was null. Power to remit did not apply to an award made after
arbitrator became functus officio.
A “fnal award” had to be the one that decided or completed everything Tang Boon Jek Stanley v
that the arbitral tribunal was expected to decide, including the Tan Poh Leng Stanley (CA)
queston of costs. This was regardless of the label given to the award by [2001] 3 SLR 237
the arbitral tribunal, since such label could not be conclusive if the facts
were that there were stll maters yet to be adjudicated upon. Untl such Decision reversed by
a fnal award was given, the arbitral tribunal’s mandate stll contnued statute – s 19B IAA, s 44(2)
and it was not functus officio. On the present facts, as the arbitrator had AA
not decided on all the issues, his mandate was not terminated and he
was enttled to reconsider his decision and if he thought ft, as he did
here, to reverse himself.
st
- Russell on Arbitration 21 editon, 1997:
“Proceedings will close after the oral hearings have fnished and any
post-hearing submissions have been made. Thereafter the tribunal
makes its award. Once a fnal award is made, the tribunal becomes
functus officio. This means its authority to act ceases, the reference
terminates and the award cannot thereafter be amended.”
- Contrast the position decreed by the Court of Appeal in Tang Boon Jek Stanley, supra where
the CA sanctoned the arbitrator’s reopening of the merits of the case; see also
Chew, Singapore
Arbitration
Handbook
(LexisNexis) 2003,
pp 59 -60 and 115
19B.—(1) An award made by the arbitral tribunal pursuant to an s 19B IAA
arbitraton agreement is final and binding on the partes and on any
persons claiming through or under them and may be relied upon by
any of the partes by way of defence, set-off or otherwise in any
proceedings in any court of competent jurisdicton.
(2) Except as provided in Artcles 33 and 34(4) of the Model Law, upon
an award being made, including an award made in accordance with
secton 19A, the arbitral tribunal shall not vary, amend, correct, review,
add to or revoke the award.
(3) For the purposes of subsecton (2), an award is made when it has
been signed and delivered in accordance with Artcle 31 of the Model
Law.
(4) This secton shall not affect the right of a person to challenge the
award by any available arbitral process of appeal or review or in
accordance with the provisions of this Act and the Model Law.
44.—(1) An award made by the arbitral tribunal pursuant to an s 44 AA
arbitraton agreement shall be final and binding on the partes and on
any person claiming through or under them and may be relied upon by
31
any of the partes by way of defence, set-off or otherwise in any

proceedings in any court of competent jurisdicton.
(2) Except as provided in secton 43, upon an award being made,

including an award made in accordance with secton 33, the arbitral
tribunal shall not vary, amend, correct, review, add to or revoke the
award.
(3) For the purposes of subsecton (2), an award is made when it has
been signed and delivered in accordance with secton 38.
(4) This secton shall not affect the right of a person to challenge the
award by any available arbitral process of appeal or review or in
accordance with the provisions of this Act.
An arbitraton is terminated when the arbitral tribunal makes its fnal Article 32(1)
award. Model Law
31. Recogniton and Enforcement

General
- Even in the case of an international arbitraton, Singapore awards by definiton need no

recognition by the courts in Singapore. They do however require the leave of the court to
be enforced as judgment of a court – see s 19 IAA. Thus an arbitral tribunal sitting in
Singapore having its seat of arbitraton in Singapore will produce an award that will be
Singapore award. Such an award is readily enforced by virtue of s 19 IAA.
- S 19 IAA - leave is however required of the court in order for judgment to be entered in terms
of the award.
- Of greater importance however, is the recognition of foreign awards which is considered
below.
31.1 Domestc Awards

- In the domestc context, under the AA – arbitral awards are enforced in a similar way
as internatonal awards; see s 46 AA.
46. —(1) An award made by the arbitral tribunal pursuant to an S 46 AA
arbitraton agreement may, with leave of the Court, be enforced in the
same manner as a judgment or order of the Court to the same effect.
(2) Where leave of the Court is so granted, judgment may be entered in

the terms of the award.
(3) Notwithstanding secton 3, subsecton (1) shall apply to an award

irrespectve of whether the place of arbitraton is Singapore or elsewhere.
 Awards made in Singapore may be enforced by:

o Entry as judgments or orders of domestc court: s 19 IAA; s 46(1)
o Recogniton by way of set-off or defence in pending litgaton: s 19B IAA; s 44(1) – “may
be relied upon by any of the partes by way of defence, set off or otherwise in any
proceedings in any court of competent jurisdicton
 Note: Art 35-36 MAL specifcally excluded in adopton
32
 Court may refuse leave to enforce if:

o Award exceeded terms of reference, incomplete or ambiguous
o Grounds for setting aside exist
31.2. Foreign Awards: Recogniton of Foreign Awards

 Awards made outside Singapore may be:
o Enforced by an acton under common law: Alexander G Tsavliris & Sons Maritime Co v
Keppel Corp Ltd [1995] 2 SLR 113, CA
o Recognized as binding for all purposes and be relied upon by any of those partes by way of
defence, set-off or otherwise in any legal proceedings in Singapore e.g. in proving a debt in
insolvency – see Pacifc King Shipping Pte Ltd and another v Glory v Wealth Shipping Pte
Ltd [2010] SGHC 1734 SLR 413
o Recognised and enforced under UN Conventon for the Recogniton and Enforcement of
Foreign Arbitral Awards 1958 (New York Conventon 1958) – Schedule II, IAA
 Non-NYC awards can also be enforced under s 46(3) AA
o OR Part III of IAA: s 27-33
Under Part III of IAA
 To be noted that it applies only to awards that are made after 19 Nov 1986
 Foreign award may recognized for enforcement as a local judgment – s 29 IAA read with s 19
- Procedure is to apply by Originatng Summons – see Order 69A r 3 (1)(e) read with r 6 of the
Rules of Court.
- The application is to be supported by an affidavit which:
a. Exhibit the arbitraton agreement with an authentcated copy of the original
arbitral award accompanied by translaton where required
b. Affdavit must state name of applicant with his usual address and the
name of the party against whom it is sought to enforce
c. Details of how and to what extent the award has not be complied with is also to
be provided.
- Once leave is given by the High Court to enter judgment on an applicaton to enforce the
award, the other party has 14 days to challenge the leave granted.
 Recogniton and enforcement, once formalities as above are complied with is essentally
automatc. Recognition as a process is to be ‘mechanistc’, i.e. it does not require the court to
investigate the merits of such enforcement
The idea that the enforcement process is a mechanistc one which does Aloe Vera of
not require judicial investgaton by the court of the jurisdicton in which America, Inc v
Asianic Food (S)
enforcement is sought. expressed in Robert Merkin, Arbitraton Law (LLP, Pte Ltd & Anor
1991) (Service Issue No 42: 5 December 2005) at para 19.48 as follows: [2006] 3 SLR 174
at [42], followed in
The Arbitraton Act 1996, s101(2) provides that a New York Conventon award may, by Denmark
permission of the court, be enforced in the same manner as a judgment or order of the SkibstekniskeKonsul
court to the same effect, and s 101(3) goes on to state that “where leave is so given,
enter A/S I
judgment may be entered in terms of the award”. This wording makes it clear that the
Likvidation v
33
enforcement process is a mechanistic one, and that the court may simply give a Utrapolis 3000
judgment which implements the award itself. It follows that the award cannot be Investments Ltd
enforced on terms not specified in the award, and in partcular it can only be enforced [2010] 3 SLR 661
against a person who was the losing party in the arbitration.
Soh applied for a stay of executon pending appeal. Stay denied. Strandore Invest
A/S v Soh Kim Wat
The principles governing a stay of executon pending appeal are well setled and [2010] SGHC 151
have been authoritatvely set out in a number of decisions, including the decision
of the Court of Appeal in Lian Soon Construction Pte Ltd v Guan Qian Realty Pte
Ltd [1999] 1 SLR(R) 1053. They are as follows:
(a) While the court has the power to grant a stay, and this is entrely at the
discreton of the court, the discreton must be exercised judicially, ie, in
accordance with well-established principles.
(b) The first principle is that, as a general propositon, the court does not
deprive a successful litgant of the fruits of his litgaton, and lock up
funds to which he is prima facie enttled, pending an appeal. There is no
difference whether the judgment appealed against was made on a
summary basis or after a full trial.
(c) This is balanced by the second principle. When a party is exercising his
undoubted right of appeal, the court ought to see that the appeal, if
successful, is not nugatory. Thus a stay will be granted if it can be shown
by affidavit that, if the damages and costs are paid, there is no
reasonable probability of getting them back if the appeal succeeds.
(d) The third principle follows, and is an elaboraton of the second
principle, that an appellant must show special circumstances before the
court will grant a stay.
 The court in every case will have to examine the facts to see if special
circumstances justfying the grant of a stay of executon exist based
upon the applicaton of the three principles.
 Special circumstances must be circumstances which go to the
enforcement of the judgment and not to its validity or correctness. If
there is litle merit in the appeal, it is a relevant circumstance that a
court can take into account.
1st principle outweighs the 2nd even though he would have to go to Denmark to
pursue applicants for money paid in the event he succeeds in his appeal.
Court took into account these factors:

 No evidence that A were not good for any judgment against them, no
suggeston that they are impecunious such that any money handed over to
them will be irrecoverable
 Soh did not appear to have any great difficulty in instructng Danish lawyers
to pursue his remedies before the Danish courts. He only complained it
would be expensive.
 No suggeston that there are any peculiarites of Danish law that would
prevent his recovery of monies paid over in the event that his appeal
succeeds.
 Mere fact that Applicants resided out of jurisdicton or are foreign
companies and it would be inconvenient or expensive to seek recovery
outside jurisdicton was not, of itself, a special circumstance to warrant a
stay.
Supreme court refused to recognize and enforce a NY Conventon award in UK Supreme Court
favour of Dallah. in Dallah Real
Estate and
Facts: A dispute arose as to the scope of the project, Dallah brought ICC Tourism Holding
arbitraton proceedings against the Government, claiming government was a Company v
true party to the underlying agreement. Tribunal upheld the contenton and Ministry of
ruled that it had jurisdicton. Religious Affairs,
Government of
Dallah then sought to enforce the award in England. The Government objected Pakistan [2010]
34
to enforcement under secton 103(2)(b) of the Arbitraton Act 1996, on the UKSC 46.
ground that “the arbitration agreement was not valid [...] under the law of the
country where the award was made” because the Government was not a party
to it.
Issue: court’s power to review the issue of jurisdiction

 SC could fully investgate the issue of jurisdicton in order to ascertain
whether s 103(2)(b) of 1996 Act had been made out by a party
resistng enforcement on the grounds that the arbitraton agreement
was not valid (not binding on the relevant partes).
 L Collins – interventon limited to those circumstances where the
“fundamental structural integrity of the arbitraton proceedings” was in
issue
 Structural integrity of arbitraton proceedings is never more in issue
than where one party alleges that it was not a party to the purported
arbitraton proceedings.
 L Mance – nothing in language of s 103(2)(b) of the 1996 Act and Art V
of NYC, which indicates only a limited review by the enforcing court. No
obligaton for person resistng recogniton or enforcement in one
country to frst seek to set aside the award in the country where it was
made.
Signifcance of tribunal’s view on its jurisdiction

 Tribunal’s own view has no legal or evidental value when the issue is
whether it has legitmate authority. Court is not bound or restricted by
tribunal’s fndings.
 Classic case of “pulling oneself up by one’s own bootstraps”.
 Doctrine of competence-competence does not mean that tribunal’s
word on jurisdicton is the last word. Last word will lie with a court,
either in a challenge brought before the courts of the arbitral seat, or
in a challenge to recogniton or enforcement abroad.
Establishing whether the government was a party

 Court applied French law because it was the law of the country where
the award was made and found that the government was not a party
to the arbitraton agreement.
Discretion
 It was argued that word “may” in s 103(2)(b) of 1996 Act meant that
court had discreton to enforce award regardless of fact that Gov. was
not party to the arbitraton.
 Court held that “may” did not denote such a wide discreton to enforce
the award even where a ground for refusal under NYC is made out to
the extent that the “fundamental structural integrity of the arbitraton
proceedings” was affected. Merely allowed court to consider other
circumstances which might on some recognizable legal principle affect
prima facie right to have enforcement or recogniton refused. E.g.
estoppel
Key points to note: (ukscblog/Richard Bamforth & Andrew Aglionby)

 English court’s power to fully investgate tribunal’s jurisdicton where
enforcement is resisted under s 103(2)(b) of 1996 Act derives from Art
V(1)(a) of NYC.
 Partes did not specify governing law. S 103(2)(b) of 1996 Act requires
jurisdictonal issue to be addressed under law of place where award
was made. Partes should be aware that choice of seat has wider
ramifcatons than merely supervisory powers of the courts, as law of
seat will determine whether TP which have not signed arbitraton
agreement are in fact party to it.
“The Arbitraton Act 1996, s 101(2) provides that the New York Conventon Robert Merkin,
35
award, may by permission of the court, be enforced in the same manner as a Arbitration Law
judgment or order of the court to the same effect, and s 101(3) goes on to say (LLP 1991):
that “where leave is so given, judgment may be entered in terms of the
award”. The wording makes it clear that the enforcement process is a
mechanistc one, and that the court may simply give judgment which
implements the award itself...”.
[The reference to the Arbitraton Act 1996 is a reference to the UK
arbitration Act which – the wording s 101 (2) and (3) of the 1996 Act
is similar to s 19 of the IAA.
ARTICLE 35: RECOGNITION AND ENFORCEMENT Part VII of the
(1) An arbitral award, irrespectve of the country in which it was made, shall IAA
be recognised as binding and, upon applicaton in writng to the Conditions of
competent court, shall be enforced subject to the provisions of this recognition of
Artcle and of Artcle 36. foreign awards
(2) The party relying on an award or applying for its enforcement shall
supply the duly authentcated original award or a duly certfed copy Not part of
thereof, and the original arbitraton agreement referred to in Artcle 7 or Singapore law
a duly certfed copy thereof. If the award or agreement is not made in
an official language of this State, the party shall supply a duly certfed
translaton thereof into such language.
Artcle 36 – grounds for refusing recogniton or enforcement of award

3.—(1) Subject to this Act, the Model Law, with the excepton of Chapter VIII cf s 3(1) IAA
thereof, shall have the force of law in Singapore.
(2) In the Model Law —
“State” means Singapore and any country other than Singapore; “this State”
means Singapore.
However, the requirements in Artcle 35(2) which are the maximum Art 35(2) is part of
requirements that may be imposed for the recogniton of foreign arbitral Singapore Law
awards under the New York Convention are part of Singapore law and
practce.
(1) An applicaton for leave to enforce an award or a foreign award may be 69A r 6 (1) of the
made ex parte and must be supported by an affidavit — Rules of Court.
(a) exhibitng the arbitraton agreement and the duly authentcated
original award or, in either case, a duly certfed copy thereof and
where the award or agreement is in a language other than English, a
translaton of it in the English language, duly certfed in English as a
correct translaton by a sworn translator or by an official or by a
diplomatc or consular agent of the country in which the award was
made;
(b) statng the name and the usual or last known place of abode or
business of the applicant (referred to in this Rule as the creditor) and
the person against whom it is sought to enforce the award (referred to
in this Rule as the debtor) respectvely; and
(c) as the case may require, statng either that the award has not been
complied with or the extent to which it has not been complied with at
the date of the applicaton.
Grounds to refuse enforcement under NYConv
 Generally these are grounded in principles of natural justce and fairness.

 Grounds are exhaustve – court cannot justfy refusal on any other ground: Art III NYC
o “enforcement may be refused only if…” Art V(1) NYC
 Court’s power to refuse enforcement is discretonary – Art V(1) NYC
36
 Court may enforce even if one or some grounds were proven [China Nanhai Oil Joint Service
Corp. v Gee Tai Holding Co. Ltd [1995] ADRLJ 127;Hebei Import & Export Corporation v Polytek
Engineering Co Ltd [1999] 14 Mealey’s Int Rep (no.2);
 Note however Kanoria v. Guinness [2006] EWCA Civ 122, [2006] 1 Lloyd’s Rep 701; Svenska
Petroleum Exploraton AB v. Government of the Republic of Lithuania (No 2) [2006] EWCA
1529, [2007] QB 886; Dallah Estate and Tourism Holding Company v The Ministry of Religious
Affairs, Government of Pakistan, Court of Appeal – English Court of Appeal, July 20, 2009
[2009] 30 EG 67, [2009] EWCA Civ 755 -
o “discreton is narrow and would be unlikely to be exercised where the award in
queston was subject to a fundamental or structural defect. There can hardly be a more
fundamental defect than an award against someone who was never party to the
relevant contract or agreement to arbitrate.”
 Burden of proof of the grounds lays with the respondent: “the party against whom it is
invoked ...furnishes proof...” {Artcle V(1)}
 Court cannot review the merits of the award: misapplicaton of law is not reviewable - Virgilio
De Agostini v Milloil SpA (Corte di Appello, Italy CA, 1999) , Yearbook Com Arb XXV (2000) p
739-750)
 Court cannot set aside a foreign award. Hebei Import & Export Corporation v Polytek
Engineering Co Ltd [1999] 14 Mealey’s Int Rep (no.2)
 Confictng awards not ground for refusal: Tema-Frugoli SpA v Hubei Space Quarry Industry Co
Ltd (Corte di Appello, Italy CA, 1999) ), Yearbook Com Arb XXVI (2001) p 807-811)
32. Grounds to Refuse Recogniton of Foreign Awards under the IAA
32.a. A party’s incapacity at the time when agreement was made – s 31(2)(a) IAA
Deals with the legal ability (capacity) of the party to enter into the arbitration agreement – similar to
the capacity of a party to enter into any other contractual transaction as determined under his the
proper law of the partcular contract. It also involves the applicaton of the personal law of the party
concerned – see example, of law as to guarantees under Indonesian law.
 Parallels Art V(1)(a) NYC: incapacity or invalid arbitraton agreement

o Incapacity of parties - under personal law (“law applicable to them”) b.
o Agreement invalid
 under the law partes have subjected it or
 where the award was made.
o Enforcement against a non-party:
 Javor v. Francoeur 2003 BCSC 350
 Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd and Another [2006] SGHC 78
– Singapore court will not disturb fnding of tribunal on proper party to
agreement
 Contra (AUS, Victoria CA): Altain Khuder LLC v IMC Mining Inc and IMC Mining
Solutions Pty Ltd [2011]VSCA 248 following Dallah Estate and Tourism Holding
Company v The Ministry of Religious Affairs, Government of Pakistan, Court of
Appeal – UK Supreme Court, [2010] UKSC 46
37
32.b. The arbitraton agreement is invalid under the lex arbitri – s 31(2)(b) IAA
No local cases as yet. An example could be the decision in the Italian case of Bobbie Brooks Inc (USA)
v Lanificio Walter Banci sas (Italy). Italian party contended that the arbitration agreement on the
purchase order was invalid under Italian law. The Italian CA rejected this plea – Vol IV (1979)
Yearbook Commercial Arbitraton, 2889.
 Existence of formal agreement be in writng judged by law of the place where the contract was
concluded – US law.
 Arbitral clause expressly provided for in purchase orders
 Purchase orders were directed to party & were accepted by him – exchange of documents
under Art. II of NY Conventon
 Distnguished cases where arbitral clause were general reference to a separate document in
which the arbitral clause was contained. Here it was in the Purchase orders – front page had
reference to conditons on reverse die of the page where arbitral clause was mentoned.
32.c. Failure to give notce of arbitraton proceedings or the appointment of

arbitrators and the inability to present the case – s 31(2)(c)IAA
Clearly based on rules of natural justce. Similar to litgaton – notce of hearings/proceedings and
acton must be duly given to the other side.
Party not given proper notice:

 Test is whether notce is adequate is a Q of facts. Requirement is not simply to raise no notce
but also to prove it
 If steps were taken in the arbitraton proceedings, absence of receipt of actual notce
irrelevant.
Otherwise unable to present his case: test is whether a party was in fact prevented from presentng his
case in arbitraton
 The limb dealing with the party’s “inability to present the case” is arguably wider than the
earlier parts of the provision.
 where the absent party to an arbitraton 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 –
ICCA Yearbook XVIII, US 130 (sub-5).
 Koh Bros Building and Civil Engineering Contractor Pte Ltd v Scotts Development (Saraca)
Pte Ltd [2002] 4 SLR 748 – arbitrator was removed for misconduct because he omitted to
allow partes to be heard but nevertheless issued his decision without hearing at least one
side. If an award had been made before the arbitrator’s removal, the matter would have
been covered by this provision.
32.d. Scope of the Arbitration Agreement – s 31(2)(d) IAA

 This ground deals with the scope of the arbitraton. The arbitral tribunal only has the
jurisdicton and power to deal with the disputes contemplated by the arbitral agreement
and no more.
 Matters in excess of jurisdiction i.e.
o Not contemplated by arbitraton agreement;
o Not falling within terms of agreement;
o Beyond scope of arbitrat on agreement
 But award is enforceable in part if severable: s 31(3) IAA
38
 HK case where the tribunal gave an award on non-payment whereas the reference to
arbitraton was over ‘the quality or conditon of the rubber’. On enforcement the court
refused enforcement as the arbitral award went beyond its proper scope – ICCA Yearbook
XVII Hong Kong I (sub 14- 17).
 The law on the jurisdicton of an arbitral tribunal is well established. PT Asuransi [2007]
Artcle 34(2)(a)(iii) of the Model Law merely refects the basic 1 SLR 597 at [37] –
principle that an arbitral tribunal has no jurisdicton to decide any [39];
issue not referred to it for determinaton by the partes. Principle
fnds support in the decision of Rederij Lalemant v Transportes
Generales Navigacion SA (The Maria Lemos) [1986] 1 Lloyds’ Rep 45.
 Court held that jurisdicton that any arbitral tribunal could exercise
was that bestowed by the partes and that the scope would depend
on the terms in which the partes had defned it.
GOP applied to set aside the award on several grounds, one was that the Government of the
award deals with a dispute not contemplated by and/or not falling within the Republic of the
terms of the submission to arbitraton and/or contains decisions on maters Philippines v
beyond scope…contrary to art. 34(2)(a)(iii) ML. Philippine
International Air
Two key fndings of Tribunal that GOP complained of were: (i) severability and Terminals Co, Inc
(ii) Singapore was chosen as neutral place for arbitration. [2007] 1 SLR 278
(i) Severability
 GOP made submissions only on choice of law and argued Tribunal
should frst make a ruling on choice of law before partes could
address jurisdictonal arguments including whether arbitraton
agreement as severable from main contract.
 PIATCO made submissions on jurisdictonal arguments – thought that
issue of severability was necessary part of reasoning process that led
Tribunal to conclude that Singapore law was the proper law of the
arbitraton clause.
 GOP on the other hand, considered that Tribunal can decide on
applicable law by applying principles of choice of law and not go into
issue of severability.
 Held: it was prerequisite for Tribunal to consider whether the
arbitraton agreement could be separated from main contract and
survive despite the alleged nullity of the main contract, or whether it
had been extnguished with its parent. If not it would be pointless.
 Also necessary in the sense that it could be governed by law that was
different from that which governed the main contract.
 GOP did in substance argue severability
 GOP had ample opportunity to address the issue – it saw PIATCO’s
representatons dealing with severability but did not write in to
Tribunal to say that the issue was misplaced and did not write in to
make further submissions
(ii) Neutrality
 Argued not open for Tribunal to decide because it did not inform
partes it would be making a determinaton on neutrality of Singapore
as venue for arbitraton and neither party made submissions on it.
 Caused prejudice to GOP because it was tantamount to pre-judgment
of one of GOP’s jurisdictonal objectons.
 Held: complaint against fnding that lex arbitri was Singapore law was
an issue entwined with the jurisdictonal issue is an appeal on the
merits of the Tribunal’s decision.
39
 Tribunal at this stage could only take an objectve approach since it

had not yet received any evidence. The conclusion that it came to on
the basis of the document alone cannot estop or prevent it in any way,
after hearing the evidence, from deciding that the choice of Singapore
as the arbitral venue was in point of fact a mala fde choice procured
by fraud and corrupton and cannot be upheld. In my judgment, the
Tribunal has not fetered its ability to freely decide the jurisdictonal
arguments on the basis of the evidence that is put forward and the
submissions that are made by the partes after the evidence has been
taken. No prejudgment of the issue has been made.
 Award was made on the basis of assumed facts objectvely gleaned
from the document alone whilst when the jurisdictonal objectons are
fully heard and determined.
In the case of arbitral awards going beyond its scope, if the award is s 31(3) IAA
divisible the non-offending parts may be saved.
32.e. Non-compliance with the agreed composition of the tribunal, the

qualificatons of its members and the appointment procedure – s 31 (2)(e)
 Composition of arbitral tribunal not in accordance with agreement of the parties or arbitration
law of the seat
o Lack of qualifcaton or existence of disqualifcaton of arbitrator
o Appointment made by wrong insttuton
 CLOUT case No. 662: An award made by only 2 members of tribunal (without
partcipaton of the absent member) was set aside on ground that tribunal was
wrongly consttuted.
 China Argibusiness Dev. Corp. v Balli Trading [1998] 1 LLR 76: arbitraton clause
referred to FETAC arbitraton. CIETAC (new name) the only arbitraton insttute
in China, accepted reference. Award made under CIETAC Rules. R resisted
enforcement. Objecton disallowed and award enforced.
 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 arbitraton was conducted by arbitrators from the Shenzhen list and
not by those on the Beijing list as provided for in the arbitraton agreement.
The HK court although agreeing the ground was made out, nevertheless
permitted enforcement because it found the party objectng had
partcipated in the proceedings any way.
 Reasoning: contrary to good faith to object at such a late stage – abuse
of process
 Court applied the principal of good faith deemed enshrined in Art V(1)
which provides that a court may refuse enforcement if a party asserts a
ground for refusal contrary to good faith. Here it was unfair for a party
to appreciate that something was wrong with the compositon of the
tribunal yet not make any formal submission to the tribunal about its
own jurisdicton, or to the arbitraton commission which consttuted
the tribunal and then proceed to fght the case on the merits and then
2 years after the award atempt to nullify the whole proceedings on
the grounds that arbitrators were chosen from wrong CIETAC list. i.e.
estopped from relying upon a wrongly consttuted arbitral tribunal.
 Discretion –
o partes agreed on CIETAC arbitraton under CIETAC rules and
got it. CIETAC, Shezhen is a sub-commission of CIETAC Beijing.
Defendants partcipated in arbitraton and raised no other
grounds which go to the procedure or substance of the award.
40
Had they won, they would not have complained. (but duh!)
o No one would have been placed on shenzhen list without
approval of commission in Beijing.
o D got what they agreed – arbitraton conducted by 3 chinese
arbitrators under CIETAC rules.
o Discreton exercised to enforce the award notwithstanding a
ground of oppositon made out in NY Conventon. Consistent
with pro enforcement attitude of most enforcing courts around
the world.
(*) Possible rea son – cou rt s always veer toward rendering an arbitral award as being valid
or enforceable, where it is an arbitraton friendly court which looks at the core issue namely that
parties had consensually opted for arbitraton. That core intent should therefore be given effect and
a party should not be permitted to easily avoid such previous agreement to arbitrate
32.f. Award not yet binding, is suspended or has been set aside – s31(2)(f)
The ground is self-explanatory. However, in practce national courts have used this to refuse
enforcement on their own policy grounds. // Art V(1)(e) NYC:
Award has not become binding

 An award is generally binding when it is made. Where local laws require it to be deposited in a
court or registry to consttute it as binding, those steps need have been done.
 No requirement that executon or registraton (or as in the US, a confrmaton of award) need
ensue.
 Pending appeal in primary jurisdicton does not affect binding nature of award.
Award set aside or suspended

 If set aside, binding force lost. [See Baker Marine (Nig) Ltd v Chevron (Nig) Ltd USCA (2nd) 1999-
award set aside in Nigeria, not enforced in US] {Germany Case 51 YB2001 p717-720, Spier v
Calzaturicio YB 2000 p 1042 (Italy)}
 See however French Approach – if an award is internatonal, its existence should not be affected
by or integrated with the local legal framework and it is not against internatonal public policy to
enforce it. In Pabalk Ticaret Ltd. Sirketi v. Norsolor SA, Cour de Cassaton (1st Civ. Ch.), 9 October
1984, Rev. Arb. 431 (1985), 2 J. Int'l Arb. 67 (1985), 3 Crit. Droit Int'l Privé 555 (1985), Yearbook
Com Arb XI pg 484 (1986), in a series of reversals of decision over an arbitral award made in
Vienna (Austria) resulted at one stage for an award set aside in Vienna to be enforced in France.
 See also: Hilmarton Ltd v Omnium de Traitement et de Valorisation- OTV - 121(3) J.D.I. 701 (1994) :
have enforced award under French domestc law which had been annulled at the place of
arbitraton (London); Direction Générale de l’Aviation Civile de l’Émirat de Dubai v. International
Bechtel CA Paris, 29 September 2005, 2005(3) Stockholm Int’l Arb. Rev. 151 - the Paris Court of
Appeal upheld an enforcement order of an award rendered in Dubai and subsequently annulled
by the highest civil court of the United Arab Emirates (UAE).
 Latest decision affirming approach PT Putrabali Adyamulia v. Rena Holding, 2007(3) Rev. arb. 507 ;
Note by note by E. Gaillard, XXXII Y.B. Com. Arb. 299 (2007)
 French courts justfy this positon under France’s domestc law, made applicable through the
‘more favourable- right provision’ in Artcle VII of the New York Conventon.
41
 Netherlands: Yukos Capital S.A.R.L. v. OAO Rosneft [see commentary by Albert Albert Jan Van
Den Berg “Enforcement of Awards Annulled in Russia” (2010) Jr Int Arb 179-198]
 Some US courts took the view that an award which is set aside in its primary jurisdicton may
stll be enforced if the partes had agreed that recourse to courts was not allowed and if the
award met the US standards for enforcement. See In Re Chromalloy Aeroservices 939 F Supp 907
where an award annulled in Egypt was enforced. Contra : Termorio S.A., E.S.P. v Electranta S.P. et
al., USCA – DC, 25 May 2007; No. 06-7058; 376 US App DC 242. Telecordia Technologies v
Telkom SA Ltd (2006)- US CA (3 rd) declined to enforce award set aside in South Africa on the
ground of “comity of courts” (Note: the awards were subsequently restored by the South
African Supreme Court – see Telcordia Technologies Inc v Telkom SA [2006] 139 SCA (RSA)
32.g. Court cannot refuse recogniton of Convention award, except on grounds in s

31(2) of IAA itself
 The mechanistc nature of the enforcement process was also supported by Aloe Vera of America
s 31(1) of the Act, which stated that the court could only refuse Inc v Asianic Food (S)
enforcement if one of the grounds in s 31(2) or s 31(4) was established. Pte Ltd [2006] 3 SLR
The court thus had no residual discreton to refuse enforcement if one of 174
those grounds was not established.
 Court cannot look into the merits of the award and allow partes to re-
litgate issues that could have been brought up either before the arbitrator
or the supervisory court. Thus he could not object to enforcement on
ground that there was no arbitraton agreement.
 31(2)(b) – no evidence adduced to show that arbitrator’s fndings are
incorrect under Arizona law. Not supervisory court and cannot review
arbitrator’s decision in the same way an Arizona court could.
 31(2)(d) – argued that joining him in was beyond scope of submission to
arbitraton – no evidence brought based on Arizona law to show that award
contained a decision on a mater beyond the scope of the submission to
arbitraton. This ground relates to scope of arbitraton agreement rather
than whether a partcular person was a party to that agreement.
 31(4)(a) – arbitrable under law of Singapore – alter ego – arbitrator found
that Mr Chiew was a party to the arbitraton agreement with AVA, he was
enttled to fnd on whether Mr Chiew was the alter ego of Asianic.
 31(4)(b) – contrary to public policy of Singapore – award must be enforced
unless it offends against our basic notons of justce and morality. Rejected
for the following reasons:
o Mr Chiew had something to do with the agreement.
o Singapore law deals with impositon of liability based on notons of
alter ego and so this is not strange to us. Whether on the evidence
adduced, a Singapore court would have come to the same
conclusion is irrelevant.
o Mr Chiew was at all tmes given opportunity to deal with the
substantve issues involved in the arbitraton. He took part in it to
the extent he objected to the jurisdicton. He chose not to
partcipate in the courts of Arizona or taking part in arbitraton
itself or challenging arbitrator’s holding in courts of Arizona. He had
beneft of legal advice in Arizona at all material tmes and his
decision not to have recourse to the supervisory court was a
calculated one.
Law and Practice of
Arbitration in
Singapore, supra at p
42
102
Facts: Mitsui Engineering &
1st D appointed arbitrator between Pf and 2 nd D. Arbitrator issued frst interim Shipbuilding Co Ltd v
award but Pf dissatsfed. Pf challenged his positon as arbitrator and applied for Easton Graham Rush
an injuncton to restrain arbitrator from contnuing with the arbitraton pending [2004] 2 SLR 14.
applicaton to remove him and to set aside the FIA.
Held: dismissing applicaton

 Arbitraton governed by IAA which incorporated ML. Art 5 of ML
provided that “no court shall intervene except where so provided in
this Law”
 Court has no power to grant injuncton since ML did not provide for
interlocutory injuncton in respect of an applicaton under art 13
(challenge procedure) or art 34 (setting aside an award).
 Moreover, last clause of 13(3) indicated that it was for arbitrator to
decide whether arbitral proceedings should be stayed pending the
court’s ruling on the challenge.
 Mitsui also relied on art 34, and s 24 of the IAA. However, both
provided for a challenge against the arbitrator's award, not the
arbitrator himself. Artcle 34(4) also appeared to indicate that it was for
the arbitrator to decide whether to stay arbitral proceedings. The
grounds for setng aside an award could be made on less serious
grounds than those for challenging an arbitrator. It was incongruous
for the court to have the power to grant the Interlocutory Injuncton
under art 34 if it did not have such a power under art 13. If the court
had such a power under art 34, this would be contrary to art 34(1),
which provided for recourse to the court "only" by an applicaton to set
aside. Finally, s 24 only provided additonal grounds on which to set
aside, and did not change the concept of non-interventon by the court
on an interlocutory basis.
 The absence of the power to grant the Interlocutory Injuncton would
not render a court's eventual decision to set aside an award nugatory,
since, if an award was set aside, anything done in reliance on that
award would consequently be set aside too.
33. Two Additonal Grounds for Refusal to Recognize Arbitral Award for
Enforcement
Under the IAA there two further grounds on which a court may refuse enforcement: s 31(4) IAA //
Art V(2) NYC
a. The subject-matter of the difference between the partes to the award is not capable of
settlement by arbitration under the law of Singapore; and
b. Enforcement of the award would be contrary to the public policy of Singapore
43
Subject matter is not capable of settlement by arbitraton

 This is not a controversial ground. Generally, a State reserves to itself specific areas of law in
which it alone has the exclusive jurisdicton to deal with.
 Common examples would be family disputes and estate and succession. These areas are
generally accepted as being within the sole purview of the domestic courts.
 Maters of status (e.g. citzenship, legitmacy of marriage)
 Insolvency (e.g. companies winding up bankruptcies): Petropod Ltd v Larsen Oil and Gas Pte Ltd
[2010] HC
 Contracts contrary to public policy (e.g. money laundering; corrupton/bribery arrangements)
 IP rights (e.g. patents validity and trademarks)
 Ant-trust/competton (permissible in Australia e.g. Trade Practces Act; see QH Tours; Ferris
below]; consumer protecton; environmental protecton and planning
Enforcement of the award is against public policy

This is a ground which is quite commonly relied upon to thwart the recognition and enforcement
of foreign arbitral awards. The differences in how each State treats the interpretaton of what
consttutes public policy gives rise to interestng outcomes. It is also a ground which partes rely upon
when they are ‘desperate’ to seek a challenge of an arbitral award.
This was an arbitraton in London. Indonesian buyers of sugar from a German ED & F Man
(Sugar) Ltd v Yani
company started an acton to set aside an internatonal arbitral award made Haryanto
against it on the ground that it was contrary to public policy. This case concerned
the fact that at the tme the importation of sugar into Indonesia required
Governmental approval. The Indonesian buyer did not have such approval. At
all levels of the Indonesia court system, the arbitral award was denied
enforcement on the public policy ground on the basis that the contract of sale of
sugar did not have the required approvals. The reasoning was essentally that
any arbitral award touching upon an ‘illegal contract’ could not be enforced in
Indonesia.
Approach by natonal courts – Narrow Interpretaton of public policy

Halsbury’s Laws of
Singapore, Vol 2
(Reissue) at p 136
Supreme Court of India held that an arbitral award which was inconsistent with Oil & Natural Gas
the provisions of the Indian Arbitraton and Conciliaton Act (“the Indian Act”), Corporation Ltd v Saw
and therefore wrong in law, was “patently illegal” and liable to be set aside on Pipes Ltd AIR
2003 SC 2629 (Indian
the ground that it was in confict with the public policy of India. In other words, position)
an error of law was contrary to the public policy of India as contemplated by
the Indian Act. Broader approach
Facts: D object to an applicaton to enforce the award. Enforcement of award Re An Arbitration
contrary to public policy because courts would not allow award to be enforced between Hainan
where a Df had raised facts which would give rise to the possibility that the Machinery Import &
award already procured did not decide on the real mater in dispute between Export Corp and Donald
and McCarthy Pte Ltd
the partes and injustce would be done to the defendants if the award were to
[1996 1 SLR 34
be enforced.
Held:
 D had ample opportunity to make submissions before the tribunal. It
did not substantate its positon with evidence. Since it chose not to
partcipate in the arbitraton proceedings, they cannot now complain
that they suffered injustce.
44
 Public policy did not require that this court refuse to enforce the award
obtained by the plaintffs. There was no allegaton of illegality or fraud
and enforcement would therefore not be injurious to the public good.
As the plaintffs submited, the principle of comity of natons requires
that the awards of foreign arbitraton tribunals be given due
deference and be enforced unless exceptonal circumstances exist. As
a naton which itself aspires to be an internatonal arbitraton centre,
Singapore must recognise foreign awards if it expects its own awards to
be recognised abroad. I could see no exceptonal circumstances in this
case which would justfy the court in refusing to enforce the award of
the Commission.
R alleged decision not based on law; no allegaton of illegality or fraud. CIETAC Hainan Machinery
award enforced. Import & Export Corp
and Donald & McArthy
Pte Ltd [1996] 1 SLR 34
Agreement whose object to be atained is breach of internatonal comity will be Peh Tech Quee v
regarded as being against public policy and void Bayerische Landesbank
Girozentrale [1993] 3
SLR(R) 842
Allegaton that contract involved Israelis interests and therefore contrary to Harris Adacom Corp v
public policy nevertheless enforced. Perkom Sdb Bhd [1994]
MLJ 504
Counsel for the appellant contended that each of these three critcal fndings PT Asuransi Jasa
contradicted the fndings of the First Tribunal and were therefore illegal and Indonesia (Persero)
contrary to public policy for contravening the fnality principle enacted in s 19B v Dexia Bank SA
of the Act. [2007] 1 SLR 597
(Court of Appeal
Held: argument rejected
 Disagreed with Indian decision in Oil & Natural Gas. Legislatve intent
of the Indian Act refected in the Indian decision is not refected in the
Act which, in contrast, gives primacy to the autonomy of arbitral
proceedings and limits court interventon to only the prescribed
situatons. The legislatve policy under the Act is to minimise curial
interventon in internatonal arbitratons. Errors of law or fact made in
an arbitral decision, per se, are fnal and binding on the partes and may
not be appealed against or set aside by a court except in the situatons
prescribed under s 24 of the Act and Art 34 of the Model Law.
 Act will be internally inconsistent if the public policy provision in Art 34
of the Model Law is construed to enlarge the scope of curial
interventon to set aside errors of law or fact. For consistency, such
errors may be set aside only if they are outside the scope of the
submission to arbitraton. In the present context, errors of law or fact,
per se, do not engage the public policy of Singapore under Art 34(2)(b)
(ii) of the Model Law when they cannot be set aside under Art 34(2)(a)
(iii) of the Model Law.
 Indian decision not accepted in New Zealand Downer-Hill Joint Venture
v Government of Fiji [2005] 1 NZLR 554 at [80], the High Court of New
Zealand in Wellington quoted: Enforcement of an award containing an
error of [law] would certainly not shock the conscience. Nor would it
suggest that the integrity of the courts' processes and powers would be
abused should an award containing an error of that nature be upheld
(assuming such an error were established).
 General consensus of judicial and expert opinion is that public policy
under the Act encompasses a narrow scope. In our view, it should only
operate in instances where the upholding of an arbitral award would
45
“shock the conscience” (see Downer Connect ([58] supra) at [136]), or

is “clearly injurious to the public good or ... wholly offensive to the
ordinary reasonable and fully informed member of the public” (see
Deutsche Schachbau v Shell International Petroleum Co Ltd [1987] 2
Lloyds’ Rep 246 at 254, per Sir John Donaldson MR), or where it
violates the forum’s most basic notion of morality and justice: see
Parsons & Whittemore Overseas Co Inc v Societe Generale de
L’Industrie du Papier (RAKTA) 508 F 2d, 969 (2nd Cir, 1974) at 974 . This
would be consistent with the concept of public policy that can be
ascertained from the preparatory materials to the Model Law.
“In discussing the term ‘public policy’, it was understood that it was not Commission Report
equivalent to the political stance or international policies of a State but (A/40/17) on the
comprised the fundamental notions and principle of justice... It was Model Law – see
understood that the term ‘public policy’, which was used in the 1958 Holtzmann & Neuhaus,
A Guide to the
New York Convention and many other treaties, covered fundamental
UNCITRAL Model Law
principles of law and justice in substantive as well as procedural aspects. on International
Thus, instances such as corruption, bribery or fraud and similar serious Commercial Arbitraton,
cases would constitute a ground for setting aside.” Kluwer at p 914:
See above. Aloe Vera of America,
Inc v Asianic Food (S)
Pte Ltd [2006] 3 SLR
174
AZT sought to set aside the Award on various grounds, one of which was that the AJT v AJU [2010] 4
Award was contrary to public policy under Art 34(2)(b)(ii) of the Model Law as SLR 649
case on the settng
(i) the Concluding Agreement, which the Award seeks to uphold, sought to stfe
the prosecuton of a non-compoundable offence; and
aside of an award
under s 34(2)(b)(ii) of
(ii) the Award sought to enforce a contract that was illegal and unenforceable in the First Schedule IAA
Thailand (New York
Convention)
The Award was set aside on the basis that it was contrary to public policy. The judgment
suggests that the Award was contrary to public policy on two counts.
(iii) Under Singapore law, agreements to stfe the prosecuton of non-

compoundable offences contravened public policy as they undermined the
public interest in the maintenance of justce and the basic purpose of criminal
law and the administraton of justce would be defeated if such agreements were
upheld (and are essentally, illegal). As the effect of the Concluding Agreement
was essentally to stfe the prosecuton of the forgery offences (non-
compoundable offences), and the Award sought to validate the Concluding
Agreement, the Award conficted with public policy and had to be set aside.
(iv) Second, the Concluding Agreement was also illegal under Thai law. Case law
has established that an agreement whose object is a breach of internatonal
comity would be regarded by the courts as being against public policy and void.
To uphold the Award would consttute a breach of internatonal comity as it
would mean the enforcement of a contract which was illegal under the law of
the place of performance (Thailand). Consequently, the Award had to be set
aside for being contrary to public policy.
Reporter's comments: This case is signifcant in that it may suggest that, in deciding
whether or not to set aside an award, the Singapore courts may conduct re-hearings of
issues canvassed in arbitratons as long as they fall within the grounds for setting aside
(rather than limit themselves to reviews of the correctness on the Tribunal's decision on
the relevant issues, which is the traditonal positon). However, it appears that a very
high threshold nevertheless has to be met before the courts will set aside an arbitral
46
award.
 Court found it appropriate to reopen tribunal’s fndings of fact and/or law to

decide whether the contract in queston was illegal. “While there is a need to
uphold the public interest in ensuring the fnality of arbitral awards, the court
must also safeguard the countervailing public interest in ensuring that its
processes are not abused by litgants”.
Both the setting aside regime and the enforcement regime provide for “the CA Decision
public policy” of Singapore as a basis on which an IAA award may be set aside
(under the former regime) and a foreign arbitral award denied enforcement
(under the later regime). (s 19B(4) of the IAA, read with Art 34(2)(b)(ii) of the Model
Law, and s 31(4)(b) of the IAA)
Are the public policy of Singapore under the two regimes the same?
 there is no difference between these two regimes as far as the concept of

public policy is concerned because the legislatve purpose of the IAA is
to treat all IAA awards as having an internatonal focus (see s 5(1) of the
IAA, which provides that in the absence of a writen agreement to the
contrary between the partes to an arbitraton, Pt II of the Act (ie, the
Part governing IAA awards) and the Model Law shall apply only to
“international arbitraton” [emphasis added] as defned in ss 5(2) and
5(3))
 Disagreed with authors of Singapore Arbitraton legislaton that public

policy under s 31(4)(b) of IAA is more stringent that s 19B(4) IAA read
with Art 34(2)(b)(ii) ML in that it has an internatonal focus.
 Public policy objecton in queston must involve either “exceptonal

circumstances ... which would justfy the court in refusing to enforce
the award” or a violaton of “the most basic notons of morality and
justce”.
Finality principle
 Appropriate case means exceptonal case
 In Westacre (HC), Colman J said (at 769E) that since the partes had
selected arbitraton by an impressively competent internatonal body
(viz, the ICC), the English courts would be enttled to assume that the
arbitrators appointed were of undoubted competence and ability, and
well able to understand and determine the partcular issue of illegality
arising in that case. This premise applies a fortiori in the present case,
given that: (a) the partes selected arbitraton by the SIAC (an equally
competent internatonal body); (b) the Tribunal consisted of
experienced members of the local Bar; and (c) the Tribunal decided the
issue of illegality according to Singapore law. For these reasons, a
Singapore court would all the more be enttled to assume that the
members of the Tribunal had adequate knowledge of Singapore law.
 since the law applied by the Tribunal was Singapore law, the queston
that arises is whether, if a Singapore court disagrees with the Tribunal’s
fnding that the Concluding Agreement is not illegal under Singapore
law, the court’s supervisory power extends to correcting the Tribunal’s
decision on this issue of illegality : YES. Court cannot abrogate its judicial
power to the Tribunal to decide what the public policy of Singapore is
however eminent the tribunal’s members may be.
 Court is thus enttled to decide for itself whether the concluding
agreement is illegal and to set aside the interim award if it is tained
47
with illegality.
 But this was not an appropriate case for judge to reopen tribunal’s
fnding that the concluding agreement was valid and enforceable. The
Tribunal did not ignore palpable and indisputable illegality (as the Beth
Din did in Soleimany). The Concluding Agreement does not, on its face,
suggest that the Appellant was required to do anything other than to
receive evidence of the withdrawal and/or discontnuance and/or
terminaton of “the Criminal Proceedings” (as defned in cl 1 of the
Concluding Agreement) from the Thai prosecuton authority or other
relevant authority.
 In short, this case is not a Soleimany-type case involving an underlying
contract clearly tainted by illegality, but a Westacre (CA) or OTV-type
case, where the respectve arbitral tribunals found that the underlying
contracts in queston did not involve the giving of bribes to, but merely
the lobbying of, government officials, which lobbying was not contrary
to English public policy (ie, the public policy of the Enforcing State).
 On the facts of this case, s 19B(1) of the IAA calls for the court to give
deference to the factual findings of the Tribunal. The policy of the IAA
is to treat IAA awards in the same way as it treats foreign arbitral
awards where public policy objectons to arbitral awards are
concerned, even though, in the case of IAA awards, the seat of the
arbitraton is Singapore and the governing law of the arbitraton is
Singapore law. Arbitraton under the IAA is internatonal arbitraton,
and not domestc arbitraton. That is why s 19B(1) provides that an IAA
award is final and binding on the partes, subject only to narrow
grounds for curial interventon. This means that fndings of fact made
in an IAA award are binding on the partes and cannot be reopened
except where there is fraud, breach of natural justce or some other
recognised vitatng factor.
 It is a queston of law what the public policy of Singapore is. An arbitral
award can be set aside if the arbitral tribunal makes an error of law in
this regard, as expressly provided by s 19B(4) of the IAA, read with Art
34(2)(b)(ii) of the Model Law.
 Art. 34(2)(b)(ii) of ML is limited to findings of law made by an arbitral
tribunal – to the exclusion of findings of fact. This is consistent with the
legislatve objectve of IAA – IA regime should exist as an autonomous
system of private dispute resoluton to meet needs of internatonal
business community.
 There is “no difference” in public policy treatment when considering setting aside of a Singapore-
made award under Art 34(2)(b) MAL, Art V(2) NYC and s 31(4) IAA: AJU v AJT [2011] CA
 English cases:
o Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd [1999] 2 SLR 65 (CA): arms
trade; allegaton of buying infuence; tribunal found no illegality. Court took approach it was
the award and not the contract that is being enforced and enforced the ICC award. Followed
in Omnium De Traitement et de valorization SA v Hilmarton Ltd [1999] 2 LLR 222. (Followed
by CA in AJU v AJT)
o Soleimany v Soleimany [1998] 3 LLR 811 (Eng CA): award acknowledged contract involved
smuggling actvites’ award not enforced (not followed by CA in AJU v AJT)
33. Recourse against Award (Domestc) under AA

a. An award made in a domestc arbitraton in Singapore may be challenged in court.
b. S 47 AA. – Court’s limited jurisdicton
48
c. Appeal on queston of law under S.49 AA
33.1. Setng aside under the AA (equivalent to Refusal to Recognize for enforcement
under IAA)
- Under the AA, an arbitral award would be a Singapore award and no issue of recogniton
strictly arises. But awards are challenged by way of settng aside applications.
- Equivalent provision to s 31 IAA is s 48 AA.
 Observatons on s 31 apply equally to the grounds in s 48 AA
- Important to note however that in the case of local or domestc arbitrations, the courts
have greater interest in exercising their supervisory powers – see Fairmount Development
Pte Ltd v Soh Beng Tee & Co Pte Ltd [2007] 1 SLR 32 at [8] – [9]: “The Arbitration Act was
enacted in October 2001 and many of its features refect the provisions of the
[UNCITRAL] Model Law...the Act does not, however, follow the Model Law in its entrety
and the courts have more supervisory powers in respect of domestic arbitratons than
they do in respect of internatonal arbitrations.” Fairmount is a case on s 48(1)(a)(vii) AA.
Award may be set aside if: A breach of the rules of natural justce S 48(1)(a)(vii)
occurred in connecton with the making of the award by which the rights AA
of any party have been prejudiced
Issue: whether Fairmount had been taken by surprise and whether Fairmount
prejudiced had been suffered because Arbitrator made decision on point [2007] 3 SLR 86
that was neither pleaded nor argued – tme was set at large.
 A party challenging an arbitraton award as having contravened the
rules of natural justce had to establish: (a) which rule of natural
justce was breached; (b) how it was breached; (c) in what way the
breach was connected to the making of the award; and (d) how the
breach prejudiced its rights.
 The rule of natural justce alleged to have been breached in the
present case was the alleged right of Fairmount to be heard on an
issue that it maintained was crucial to the outcome of the Arbitrator’s
decision.
 First, partes to arbitraton had, in general, a right to be heard
effectvely on every issue that might be relevant to the resoluton of a
dispute. The overriding concern was fairness.
 Second, fairness, however, was a multdimensional concept and it
would also be unfair to the successful party if it were deprived of the
fruits of its labour as a result of a dissatsfed party raising a multtude
of arid technical challenges after an arbitral award had been made.
The courts were not a stage where a dissatsfed party could have a
second bite of the cherry.
 Third, the later concepton of fairness justfed a policy of minimal
curial interventon, which had become common as a mater of
internatonal practce.
 Fourth, the delicate balance between ensuring the integrity of the
arbitral process and ensuring that the rules of natural justce were
complied with in the arbitral process was preserved by strictly
adhering to only the narrow scope and basis for challenging an arbitral
award that had been expressly acknowledged under the Act.
 Fifth, it was almost invariably the case that partes proposed
49
diametrically opposite solutons to resolve a dispute. The Arbitrator,

however, was not bound to adopt an either/or approach.
 Sixth, each case should be decided within its own factual matrix. It
had to be always be borne in mind that it was not the functon of the
court to assiduously comb an arbitral award microscopically in
atemptng to determine if there was any blame or fault in the arbitral
process; rather, an award should be read generously such that only
meaningful breaches of the rules of natural justce that have actually
caused prejudice are ultmately remedied.
 Breach of rules of natural justce itself does not necessarily create a
prejudice suffered by the party who had been deprived of its rights.
Need to persuade the court that there had been some actual or real
prejudice caused by the alleged breach. This is a lower hurdle than
substantal prejudice, but does not embrace technical or procedural
irregularites that caused no harm. Must be more than technical
unfairness…at the very least, actually alter the fnal outcome of the
arbitral proceedings in some meaningful way.
 No causal nexus between breach and award. “Arid, hollow, technical
or procedural objectons that do not prejudice any party should never
be countenanced…only if breach caused actual prejudice.”
 If breach of natural justce of only a single isolated or stand-alone
issue or point, normally not sensible or appropriate to set aside entire
award. Policy of minimal curial interventon implied that court’s focus
should be on the proportonality between the harm caused by the
breach and how that could be remedied.
 Appropriate remedy may be to remit the mater to Arbitrator for him
to receive further evidence on disputed issue.
Revertng to s 24 of the IAA and s 17(2) of the AA, I think that the John Holland
Legislature intended that it will require more than an error of law or fact Pty Ltd v Toyo
(or both) to set aside an arbitraton award. Engineering
Corp (Japan)
[2001] 2 SLR
262
33.3. Making an additonal award

Unless otherwise agreed by the partes, a party may, within 30 days of S 43(4) AA –
receipt of the award and upon notce to the other party, request the making an
arbitral tribunal to make an additonal award as to claims presented additional
during the arbitraton proceedings but omited from the award. award
 Pf objected to additonal award on two grounds: (i) add. Award nullity Lim Chin San
as it did not fall within scope of s 43(4) AA; (ii) set aside under s 48(1) Contractors Pte
(a)(vii) for breach of natural justce Ltd v
Held: LW
 S 43(4) AA not a ground to set aside additonal award. Only grounds Infrastructure
are contained in s 48 and 49(8)(d) AA. No inherent or residual Pte Ltd [2012]
discreton to do so because of principal of minimal curial interventon SGHC 75.
in arbitraton proceedings, refected in s 47 AA.
 The ability to make an additonal award provided for in s 43(4) of the
Act supported the principle of minimal curial interventon because the
arbitrator could correct his award for genuine oversights and fortfy it
against litgious challenges based on natural justce principles. This
would uphold the autonomy of the arbitral process.
50
 The claim which was the subject of an additonal award had to have
been presented during the arbitral proceedings and all submissions
and evidence necessary for an arbitrator to make an additonal award
had to have been placed before him during the main arbitral
proceedings.
 Before an arbitrator could make an additonal award under s 43(4), he
had to frst correctly decide that s 43(4) applied at all, and to do so he
had to decide whether the subject of the claim was both presented
during the arbitral proceedings and omitted from the final award.
Secton 43(4) required the requestng party to give notce to the
other party of the request made to the tribunal. This was to give the
other party an opportunity to address the arbitrator on the
applicability of s 43(4). The applicaton of natural justce was
especially relevant at this point.
 The arbitrator in waitng a short three days before rendering his
additonal award failed to give the plaintff adequate opportunity to
respond to the defendant’s request; especially in the light of the fact
that s 43(5) allowed the arbitrator sixty days in which to do so and
the consequence of the additonal award was to require the plaintff
to pay the defendant a further $274,114.61. The plaintff was denied
an opportunity to submit on the applicability of s 43(4) and thus
suffered prejudice. There was thus a breach of the rule audi alteram
partem.
 Factors such as the tme given for the other party’s response, the
consequences of the additonal award, the manner in which the
request was made and the tming of the request would be relevant in
determining whether adequate opportunity had been given for the
other party to respond.
- Not open to the court to set aside an award under IAA on the grounds that the decision
on the merits was perverse or irratonal – Sui Southern Gas Co Ltd v Habibullah Coastal
Power Co (Pte) Ltd [2010] 3 SLR 3.
33.4 Appeal on queston of law under s. 49 AA

“49.—(1) A party to arbitraton proceedings may (upon notce to the other partes and to the arbitral
tribunal) appeal to the Court on a queston of law arising out of an award made in the proceedings.”
i. ‘Queston of law’ and not a mere ‘error of law’?

Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd [2004] SGCA 11
Held: question of law is necessarily a finding of law which the partes dispute and which requires the
guidance of the court to resolve. It is merely an “error of law” when an arbitrator does not apply a
principle of law correctly, and such an error does not enttle an aggrieved party to appeal.
Progen Engineering Pte Ltd v Chua Aik Kia (trading as Uni Sanitary Electrical Construction) [2006] SGHC
159
Held: point of law must be one that substantially affects the rights of at least one of the partes. Two
types of questons of law that can arise:
 (i) queston relatng to proper constructon of a contract, because English law regards
interpretaton of a writen document as being a queston of law rather than a queston of fact.
51
How the court approaches it depends on whether contract is a “one-off” contract or standard-
form contract.
 (ii) arbitrator must determine whether facts proved in evidence before him lead to a partcular
legal conclusion. It can be a pure queston of law or mixed queston of fact and law. E.g. queston
of frustraton
 the court had to decide any questons of law arising on the basis of an unqualifed acceptance of
the fndings of fact of the arbitrator as the court had no jurisdicton to set aside an award on the
ground of errors of fact on the face of the award.
Holland Leedon v Metalform Asia

Held: true constructon of contractual terms is a queston of law.
ii. Premised on finding of fact:
Ng Huat Foundations Pte Ltd v Samwoh Resources Pte Ltd [2006] SGHC 43
Held: queston of law misconceived because it is premised on facts not found by arbitrator and ignores
the view of the facts that he took and the factual fndings he made.
Note - Foreign law is a queston of fact not law: A/S Tallina Laevauhisus v Estonian State Steamship Line
(1946) 80 Ll L Rep 99 per Scot LJ at 107, which was recently followed by Moore-Bick J in Glencore
International AG v Metro Trading International Inc [2001] 1 Lloyd's Rep 284 at 300.
Reliance Industries Ltd. v. Enron Oil and Gas India Ltd. and Another [2002] 1 Lloyd's Rep. 645 – issues of
Indian law tried in England, not a ‘queston of law’ under the English AA.
iii. Appeal may be brought only if – s 49(3) AA

a. all the partes consent
(see e.g. Econ Piling Pte Ltd v Shanghai Tunnel Engineering Co Ltd [2011] 1 SLR 246, where both
partes were dissatsfed with the tribunal’s decision)
b. with leave of the High Court
c. within 28 days after the award has been made
iv. Leave to appeal will only be granted if the court is satsfied: s 49(5) AA
a) the determinaton of the queston will substantially affect the rights of one or more of the
partes;
b) the queston is one which the arbitral tribunal was asked to determine;
c) on the basis of the fndings of fact in the award —
i. the decision of the arbitral tribunal on the queston is obviously wrong ; or
Engineering Construction Pte Ltd v Sanchoon Builders Pte Ltd [2011] 1 SLR 681
Held: questons of law decided on its own partcular facts. Arbitrator could not have been said to be
52
obviously wrong. His fndings were amply supported by the evidence before him.
ii. the queston is one of general public importance and the decision of the arbitral tribunal is at
least open to serious doubt; and
Holland Leedon Leedon Pte Ltd (in liquidation) v Metalform Asia Pte Ltd [2011] 1 SLR 517
 Purchaser claiming that breaches of warranty dimishes EBIDTA and purchase price which is a
multple of EDIBTA.
 If purchaser claims were allowed to proceed, it would have the effect of subvertng a commonly
used mechanism for determining purchase price in acquisitons of business and shares. Decision
of arbitrator that Purchaser is allowed to pursue his claim is at least open to serious doubt. Issue
– commonly used commercial pricing mechanism – is one of general public importance.
 Similar reasons, just and proper in all circumstances for an appeal to lie to the court.
d)despite the agreement of the partes to resolve the mater by arbitraton, it is just and proper in
all the circumstances for the Court to determine the queston.
v. Leave to appeal to the Court of Appeal against refusal of leave

(i)Only available at the High Court: Ng Chin Siau and Others v How Kim Chuan [2007] SGCA 46
(ii) Only if queston of law before it is one of general importance, or one which for some special
reason should be considered by CA: s 49(11) AA
vi. Partes may agree to exclude appeal - S. 49 (2) AA

 Agreement to dispense with reasons shall be treated as an exclusion agreement.
 Words of exclusion must be specifc e.g. agreeing “to exclude any right or applicaton to any court
or tribunal of competent jurisdicton in connecton with questons of law arising in the course of
any arbitration” (coming within s 45 is not sufficient to exclude applicaton of s 49 AA). 49(1)
expressly states “question of law arising out of an award made in the proceedings”: Holland
Leedon Pte Ltd (in liquidation) v Metalform Asia Pte Ltd [2011] 1 SLR 517
vii. Setng aside for misconduct of arbitrator [s.17 AA 1950] no longer available
35. Recourse against award (Internatonal) under IAA

“In maters governed by this Law, no court shall intervene except where so provided in this Law.” [Art 5]
35.1 Setng aside at the seat of arbitraton

 “Recourse to a court against an arbitral award may be made only by an applicaton for setting aside
in accordance with paragraphs (2) and (3) of this Artcle.” [Art 34(1)]
 Available only to awards ‘made’ in the seat/place of arbitraton
 PT Garuda Indonesia v Birgen Air [2002 CA]: award referred to place of arbitraton as Jakarta,
Singapore court declined jurisdicton to set aside even though the oral hearings were entrely held
in Singapore. No jurisdicton to set aside
 Case 6 Sch 2/99 (Germany: Higher Regional Court Düsseldorf, 2000) CLOUT Case 408
53
A/CN.9/SER.C/ABSTRACTS/35: Held: arbitrator’s auditng and subsequent negotatons with both

partes – took place in Zurich; the ‘effectve place of arbitraton’ was held not to be situated in
Germany. Court refused to entertain applicaton to challenge validity of award.
 CLOUT Case 950: Russian Federaton: Presidency of the Supreme State Commercial Court No.
15359/03; 30 March 2004
 Contra: CLOUT Case 817: Philippines: Supreme Court, Special Second Division KOREA
TECHNOLOGIES CO. LTD, Petitioner, v. HON. ALBERTO A. LERMA et al. “Foreign arbitral award is
subject to judicial review by the RTC, which can set aside, reject or vacate it under sec. 42 in
relaton to sec. 45 of RA 9285 on grounds provided under artcle MAL 34 (2).” (This decision is
clearly wrong.)
35.2 Grounds for setng aside – s 34(2) ML incorporated in IAA
a. One of the partes was under some incapacity or the agreement is not valid under the
law to which the partes have subjected it or under the law of Singapore; or
 {If partcipated in arbitraton without reservaton, too late to raise non- party ground to set aside:
Slaney v IAAF (USCA 2nd Cir, 2001) Yearbook Com Arb XXVi (2001) p 1091. See also Azoz
Shipping v Baltic Shiping (No 3) [1999] 2 All ER 453
b. The applicant was not given proper notce of the appointment of the arbitrator or of
the arbitral proceedings or was unable to present his case; or
 {Refusal to partcipate in proceedings held to be forfeiture of right to be heard. Award cannot be

set aside: Re Corporacion Transnacional de Inversiones, S.A. de C.V. et al. and STET International,
S.p.A. et al. (Canada: Superior Court, 1999) CLOUT Case 391, A/CN.9/SER.C/ABSTRACTS/34}
c. The award deals with a dispute not contemplated by or not falling within the terms of
the submission to arbitraton or contains decisions on matters beyond the scope of
the submission; or {See Pacol Ltd v Joint Stock Co Rossakhar [1999] 2 All ER (Comm)778
d. The compositon of the tribunal or the arbitraton procedure was not in accordance
with the agreement of the partes or was not in accordance with the IAA; or
Insigma Technology Co Ltd v Alstom Technology Ltd [2008] SGHC 134; [2009] SGCA 24
Facts: Dispute arose between Insigma and Alstom. Alstom referred dispute for arbitraton before the
Internatonal Chamber of Commerce (ICC) in Paris, under the ICC Rules. Insigma however, disputed
jurisdicton of any arbitral tribunal consttuted by the ICC, contending that partes agreed to submit
dispute to SIAC to administer arbitraton under ICC rules. Alstom breached arb. Agreement by invoking
jurisdicton of ICC. Tribunal decided it had jurisdicton. Insigma applied to HC to set aside Tribunal’s
decision arguing that arbitraton agreement uncertain because (a) partes agreement could not be
fulflled as ICC Rules had many unique features which could not be administered by a non-ICC
insttuton; (b) arbitraton without involvement of ICC Secretariat and the ICC Court could not bear the
“ICC’s hallmark of quality”, which was what it had bargained for.
Held: HC rejected Insigma’s argument. CA affirmed HC decision.
 Legal validity of a hybrid form of internatonal arbitraton – arbitraton agreement should be
construed like any other commercial agreement. Effect was to be given to partes’ intentons as
54
expressed in the agreement

 Where partes evinced a clear intenton to setle any dispute by arbitraton, effect should be give
to such intenton, even if certain aspects of the agreement may be ambiguous, inconsistent,
incomplete or lacking in certain partculars, so long as arbitraton can be carried out without
prejudice to the rights of either party and it does not result in an arbitraton that is not within
the contemplaton of either party. Similar to principle of effective interpretation – interpretaton
that gives meaning to the words rather than that which renders them useless or nonsensical.
 May not be advisable to use ICC Rules for most ad hoc arbitratons because of need for an
administering body, but if nominate a substtute insttuton to administer the arbitraton and
such substtute can arrange organs to carry out similar functons to those carried out by
different parts of ICC apparatus, there should be no practical problem and no objecton in
principle, to providing for such a hybrid ad hoc arbitraton. This freedom is inherent in the
flexible nature of arbitration, especially ad hoc arbitraton.
 Inefficiency alone cannot render a clause invalid so long as partes had agreed and intended for
arbitraton to be conducted in this manner.
 Insigma was blowing hot and cold – objected to ICC administered arbitraton and then SIAC which
it had earlier agreed to because of SIAC’s lower costs of administraton – cannot now say ICC
branding is what they bargained for.
 Pathological clause: at worst, defect prevents arbitraton from taking place where it is impossible
to infer an intenton which is sufficiently coherent and effectve to enable arbitraton to
functon. In most cases, arbitrators or courts, relying on the principle of effective interpretation
more than on any rule in favorem validitatis – will salvage the arbitration clause by restoring
the true intention of the parties, which was previously distorted by the parties’ ignorance of
mechanics of arbitration.
 Partes to an arbitraton are free to adopt the arbitraton rules of their choice. S 15A – rules
adopted by partes will prevail over IAA unless there is confict with a mandatory provision of
the IAA or Model Law. Hybrid form of arbitraton consistent with Singapore’s policy
consideratons.
e. the subject-matter is not arbitrable under the law of Singapore; or the award conflicts
with the public policy of Singapore; or
 “fundamental error constituting palpable inequity” held to be against public policy - Zimbabwe
Electricity Supply Authority v. Genius Joel Maposa (Zimbabwe: Supreme Court, 1999) CLOUT
Case 323: A/CN.9/SER.C/ABSTRACTS/30
 Oil & Natural Gas Corporation Ltd v SAW Pipes Ltd AIR 2003 SC 2629, where the Supreme Court
of India held that an arbitral award which was inconsistent with the provisions of the Indian
Arbitraton and Conciliaton Act, and therefore wrong in law, was “patently illegal” and liable to
be set aside on the ground that it was in conflict with the public policy of India. In other words,
an error of law was contrary to the public policy of India as contemplated by the Indian Act. [Not
followed in Singapore: see PT Asuransi v Dexia ]
 McDermot International Inc. v Burn Standard Co Ltd (2006) 11 Sup Ct Cases 181
(htp://indiankanoon.org/doc/996348/) - “Such patent illegality however, must go to the root of
the mater. The public violaton, indisputably, should be so unfair and unreasonable as to shock
the conscience of the court.”
 Venture Global Engineering v. Satyam Computers Services Ltd : Supreme Court Of India, Division
Bench, (2008) 4 SCC 190: AIR 2008 SC 1061– Held that if an award made outside India has
55
sufficiently close and intmate nexus to India, Indian courts have jurisdicton to review it.
 Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] 3 SLR 3 - merely
contending that the award was “perverse or irratonal” could not of itself amount to a breach of
public policy. To avail of this, there must instead be some demonstrably “egregious
circumstances such as corruption, bribery or fraud which would violate the most basic notions of
morality and justice” at [48]
 AJT v AJU [2011] SGCA 41 (August 2011): Court of Appeal reverses High Court’s order court
setting aside an award which upholds an agreement in which a party agreed to and did
withdraw criminal charges “of non-compoundable offences” was one which “contravene(s)
public policy as they undermine the public interest in the maintenance of justice – particularly
in the realm of law and order”. The court added that the tribunal’s fnding that the agreement
“was not illegal was not conclusive as the court in exercising its supervisory jurisdicton must
safeguard public interest”.
o CA declared that there is a “legislative policy of the IAA of giving primacy to the
autonomy of arbitral proceedings and upholding the fnality of arbitral awards (whether
foreign arbitral awards or IAA awards).” [60]
o “...the Tribunal’s fndings in the present case as to the intenton of the Appellant and the
Respondent when they signed the Concluding Agreement, which intenton was refected
in cl 1 thereof, are fndings of fact which are not correctable as they are fnal and
binding on both partes. Public policy, based on the alleged illegality of the Concluding
Agreement, was not engaged by such fndings of fact. Hence, the Judge should not have
reopened the Tribunal’s fndings.” [70]
f. Additonal ground provided in s 24 IAA; s 48(1)(a)(vii) AA. –
“24. Notwithstanding Artcle 34 (1) of the Model Law, the High Court may, in additon to the grounds set
out in Artcle 34 (2) of the Model Law, set aside the award of the arbitral tribunal if —
(a) the making of the award was induced or affected by fraud or corrupton; or
(b) a breach of the rules of natural justce occurred in connecton with the making of the award by which
the rights of any party have been prejudiced.”
 Pacific Recreation Pte Ltd v SY S Y Technology Inc [2008] 2 SLR(R) 491, held that it would be a
breach of natural justce if a court or tribunal decided a case on a basis not raised or
contemplated by the partes, as an affected party would have been deprived of its opportunity
to be heard or to address the issues upon which the case was decided.
 Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010]
SGHC 80 at [31]): “The corollary is plainly also true – that a court or tribunal will be in breach of
natural justce if in the course of reaching its decision, it disregarded the submissions and
arguments made by the partes on the issues (without considering the merits thereof). Court
directed a new arbitrator be appointed!
 CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33 –where award
was set aside. Unfortunately CA suggested making an “interim award” – a misunderstanding of
the term “award”.
 Grounds set out above are exclusive. But court retains discreton not to set aside even if grounds
exist: CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33
56
 Burden lays with party seeking to set aside - Art 34(2) "...only if...(a) a party making the
applicaton furnishes proof..."
 Court hearing an applicaton to set aside an award under the Law has no power to investgate the
merits of the dispute or to review any decision of law or fact made by the tribunal.
 Remission -
o Court has no power under MAL to remit to tribunal to reconsider the mater on the
merits.
o However court may suspend the setting aside applicaton proceedings to allow tribunal
to eliminate grounds for setting aside. - Art 34(4) MAL.
36. Settng Aside under s 24(b) IAA and Artcle 34(2)(a)(iii) of the Model Law
 Argued that arbitrator made decision on point that was not pleaded nor argued. Soh Beng Tee & Co
Therefore denied opportunity to present his claim. Pte Ltd v Fairmount
Development Pte
 Party challenging arbitral award as having contravened rules of natural justce had to
Ltd [2007] SGCA 28:
establish: (a) which rule of natural justce was breached; (b) how it was breached;
(c) in what way the breach was connected to making of the award; and (d) how
the breach prejudice its rights. E.g. Allege right to be heard on an issue that is
crucial to outcome of decision.
 Only meaningful breaches of rules of natural justce that have actually caused
prejudiced are ultmately remedied. Breach of rules of natural justce itself
insufficient to set aside an award.
 Must show that there had been some actual or real prejudice caused by the
breach. This is a lower hurdle than substantal prejudice but does not include
technical or procedural irregularites that caused no harm in fnal analysis. More
than technical unfairness. At least actually alter the final outcome of the arbitral
proceedings in some meaningful way.
 One indicaton of whether arbitrator had come to its own conclusion in breach of
rules of natural justce is that the decision was wholly unexpected or
unforeseeable, i.e. decision outside scope of submission, then breach of rules of
natural justce.
 Here, no appreciable difference in outcome even if breach had not occurred.
Arbitrator’s failure to determine an issue was due to lack of evidence presented by
partes and not result of his “inventng” a new point.
 Observed: jurisdicton immediately revived by terms of remission to the extent of
the remission. If there were breach of natural justice in respect of only single
isolated or stand-alone issue or point, normally not sensible or appropriate to
set aside entire award. Instead police of minimal curial intervention implied that
court’s focus should be on proportonality between harm caused by the breach
and how that could be remedied. E.g. remit mater to Arbitrator to receive further
evidence on disputed issue, since other issues not challenged.
 Artcle 34(2)(a)(iii) of the Model Law applied where an arbitral tribunal improperly CRW Joint
decided maters that had not been submited to it or failed to decide maters that had Operation v PT
been submited to it. However, a failure to deal with every issue referred to the arbitral Perusahaan Gas
tribunal did not render the arbitral award liable to be set aside unless there had been Negara (Persero)
real or actual prejudice to either (or both) of the partes to the dispute. TBK [2011] 4 SLR
 In additon, mere errors of law or fact were insufficient to warrant setting aside an 305
arbitral award.
57
 In order to set aside an arbitral award under s 24(b) of the Internatonal Arbitraton Act
(Cap 143A, 2002 Rev Ed) (“the IAA”), the court had to be satsfed, frst, that the
arbitral tribunal breached a rule of natural justce in making the arbitral award.
Second, and more importantly, the court had to be satsfed that the breach of natural
justce caused actual or real prejudice to the party challenging the award, ie, the
breach had to have altered the fnal outcome of the arbitral proceedings in some
meaningful way before curial interventon was warranted.
 Sub-cl 20.6 is “not intended to be an appeal but a fresh submission that would lead to
a new case. Tribunal adjudicates the case afresh.
 The Final Award was set aside under Art 34(2)(a)(iii) of the Model Law. By issuing a
fnal award which upheld the DAB decision without going into the substantve merits
of the partes’ dispute, the Majority Members ignored the clear wordings of sub-cl
20.6 of the 1999 FIDIC Conditons of Contract and fundamentally altered the terrain of
the entre proceedings as well as the arbitral award which would have been issued if
they had reviewed the merits of the DAB decision (regardless of what the fnal
outcome might have been). PGN suffered real prejudice as it was deprived of its
contractual right to have the DAB decision reviewed unless it incurred additonal tme
and costs in commencing fresh arbitraton proceedings (assuming such an opton were
legally feasible).
 There was a breach of the rules of natural justce in the making of the Final Award
under s 24(b) of the IAA. PGN was not provided with a real opportunity to present its
case on what was owing to CRW. PGN’s inability to state clearly its positon during the
arbitral hearing was because it was meant to be a preliminary hearing. PGN did not
envisage having to present evidence at that stage. It was enttled to have a proper
opportunity to comprehensively present its case on the DAB decision at a hearing
before the arbitral tribunal. However, it was denied this opportunity as the Majority
Members summarily made the Final Award without considering the merits of the real
dispute between the partes. PGN clearly suffered prejudice as a result.
 Followed Soh Beng Tee: answer to whether an issue decided by arbitral tribunal was
within scope of submission to the tribunal should be the same as the answer to
whether the rules of natural justce were observed by the tribunal in making its
arbitral award.
 Court has discreton to decline to set aside award even though one of the prescribed
grounds for setting aside has been made out. However, discreton exercised only if the
aggrieved party has sustained no prejudice. Here, PGN suffered real prejudice as a
result of Majority members actng in excess of their jurisdicton and also in breach of
rules of natural justce. No basis to refuse to set aside the fnal award.
37. Special Provision in AA for Non-Convention Foreign Arbitral Awards
- The New York Convention applies to arbitral awards emanatng from countries which are also
partes to the Convention. There can be arbitral awards which are issued out of a
country which is not a party to the Convention. In such a case, the arbitral award
cannot be recognized under the regime of the Convention.
- What is to be done with such foreign awards?
Enforcement of award Section 46 (3)
46. —(1) An award made by the arbitral tribunal pursuant to an arbitraton agreement AA
may, with leave of the Court, be enforced in the same manner as a judgment or order
of the Court to the same effect.
(2) Where leave of the Court is so granted, judgment may be entered in the terms of
the award.
58
(3) Notwithstanding secton 3, subsecton (1) shall apply to an award irrespectve of

whether the place of arbitraton is Singapore or elsewhere.
Note: these awards are treated as domestc awards and thus subjected to more stringent scrutny.
38. Setng Aside of a foreign arbitral award under the Model Law
Refuse enforcement of award under ML Set aside foreign award under ML

S 31 IAA – grounds for invitng court to refuse Art 34 ML - grounds upon which an applicaton
enforcement of award (same as s 34 ML) may be made to set aside the foreign award –
this is the only recourse against an arbitral award
Note: ML is in 1st schedule of IAA under the Model Law regime.
See Mitsui Engineering & Shipbuilding Co Ltd v Easton Graham Rush [2004] 2 SLR 14.
59
V. Interim Measures in Aid of Foreign Arbitrations
39. Powers of the Arbitral Tribunal under IAA
- The general principle is that an arbitral tribunal has such powers that are invested upon them
by the partes. In the modern context, such powers are frequently drawn from the Rules
which partes may have subscribed to or have incorporated into their arbitration agreement
by reference.
60
 Despite existence of arbitraton rules, see Artcle 19 (2) MAL – Power to conduct the arbitraton
in a manner it considers appropriate. Power to determine admissibility, relevance, materiality
and weight of any evidence.
 See other powers under Model Law, eg: Artcle 24 (Hearings), Artcle 25 (Default of party)
and Artcle 26 (appointment of experts by tribunal).
 What about the Model Law and the IAA? – Some powers are listed in s 12 IAA.
 Specifc Powers under IAA: see section 12. For example under s 12(1)(i) the arbitral tribunal
may grant an interim injuncton and other interim measures. See below on s 12A.
40. What are interim reliefs?

 Under s 12(1)(i) IAA, Tribunal has powers to make an order for an interim injuncton or any
other interim measure.
 These are reliefs asked for and granted by a tribunal to deal with the matter on a temporary
basis untl it can be dealt with at the Hearing proper or otherwise.
 Interim reliefs would include preservaton of the subject matter of the dispute – s 12(1)(d)
IAA. So is an interim injuncton.
 Where the arbitraton has its seat in Singapore, the Singapore courts may be said to have
natural jurisdicton over any temporary relief a party may require. Indeed, in such a case,
Singapore law would be the lex arbitri which has direct impact on things procedural.
 See Artcle 9 Model Law on interim measures. Essentally, it is not incompatble with an
arbitraton agreement for party to request, before or during proceedings, from a court to
grant such measures.
41. What about the court’s ability to support a foreign arbitraton?
 The question is can a local court exercise its powers to aid a foreign arbitration for example
where a party is based in Singapore but is involved in an arbitraton being held in London.
 This may be a situation where there are assets in Singapore and a court may be asked to help
one party to preserve assets held locally in Singapore in order to be made available for
subsequent use by the successful party in the London arbitraton.
 Consider the 2 cases in Singapore of Swift-Fortune Ltd v Magnifica SA [2006] 2 SLR 323 and
Front Carriers v Atlantic Orient Shipping Corp [2006] 3 SLR 854 which reached different
conclusions on the proper interpretation and effect of s 12 (7) IAA and Article 9 Model Law.
Swift- Fortune
The case involved 2 parties who were in dispute over sale and delivery of a vessel. The agreement
between them provided for arbitraton in London if there was a dispute. A dispute ensued and
arbitraton was to be held in London. In the meantime, plaintff applied to the court in Singapore for
an injuncton to restrain the defendant from removing or in any way disposing or dealing with its
assets in Singapore up to the value of US$2.5 million.
Issue: whether the court in Singapore had power to issue a Mareva injunction over the Singapore
assets of a foreigner in support of a foreign arbitration.
Held: S 12(7) did not give the court power to grant a Mareva injunction in aid of a foreign arbitraton
notwithstanding Artcle 9 Model Law.
61
 Art 9 MAL purpose is to declare compatbility between arbitratng the substantve dispute and
seeking resistance from the courts for interim protectve measures. It can have no bearing on the
meaning and effect of a domestc law providing for interim measures such as s 12(7) IAA.
Front Carriers
Plaintff commenced arbitraton proceedings against the defendant in London for breach of a charter
party allegedly concluded between them.
The Plaintff successfully obtained ex parte a Mareva injuncton to restrain the defendant from
removing from Singapore any of its assets up to a specified value or in any way dealing with or
disposing or diminishing the value of such assets.
Amongst other grounds, Defendant applied to set aside the Mareva on the ground that a) the High
Court in Singapore had no jurisdicton to order the Mareva injuncton in support of the arbitraton
proceedings in London.
Swift-Fortune was referred to but the court in Front Carriers disagreed with the outcome of that case
and, Held: The court in Singapore had the power under the IAA to assist by way of interim
orders internatonal arbitrations both in Singapore and abroad.
Essentally, the court there opined that ‘The framework of the IAA, including Arts 1(2) and 9 of the
Model Law, recognizes that partes to an international arbitraton may require curial support by way
of interim measures from the High Court even though the seat of the arbitraton is outside
Singapore.”
42. A Singapore Stand-Off: Swift-Fortune v Front Carriers
 As it stood in 2006 there was a big queston mark over whether a Singapore Court had the
power to grant interim orders in aid of a foreign arbitraton.
 Fortunately, the case of Swift-Fortune went on appeal to the Court of Appeal.
 Court of Appeal agreed with Prakash J in Swift-Fortune. The Court of Appeal made the
following rulings:
a. Secton 12(7) of the IAA does not apply to foreign arbitratons only to Singapore internatonal
arbitratons
b. S 12 IAA has to be read with s 4(10) of the Civil Law Act and s 18(1) of the Supreme Court of
Judicature Act
c. S 4(10) Civil Law Act does not grant a court in Singapore power to grant a Mareva injunction
over the assets of a defendant in Singapore unless the plaintff has an accrued cause of acton
against the defendant that is justciable in a Singapore Court.
d. Contrary to what was decided in Front Carriers, the existence of the court’s personal
jurisdicton over the defendant in itself does not give power to the court to grant a Mareva
injuncton in aid of a foreign arbitraton.
43. The positon in Singapore with respect to foreign arbitratons and interim
reliefs
 The positon prior to 1 Jan 2010 is as stated in Swift-Fortune in the Court of Appeal, i.e. the
62
court in Singapore has no power to grant interim reliefs in aid of foreign arbitrations.
 Subsequent to 1 Jan 2010, the International Arbitration (Amendment) Bill was passed and
came into effect on 1 Jan 2010.
 The new section 12A of the IAA, effectvely incorporated Artcle 17 J of the Revised Model
Law.
 Artcle 17 J – “A court shall have the same power of issuing an interim measure in relaton to
arbitraton proceedings, irrespective of whether their place is in a territory of this State, as it
has in relaton to proceedings in courts. The court shall exercise such power in accordance
with its own procedure in consideration of the specifc features of international arbitraton.”
 S 12A IAA, therefore, legislatvely overcomes the legal impediment in Swift-Fortune
preventng the court in Singapore from issuing an interim measure in aid of a foreign
arbitraton.
 See comments in Chew, Law and Practice of Arbitration in Singapore, at pp 132 -133.
o Safeguards provided which makes clear that court will not be used to bypass the arbitral
tribunal or to gain a procedural advantage – s 12A (3)-(7) IAA
o Unlike revised Art 17, s 12A does not explicitly defne the meaning of ‘interim measure’.
Provision does however cross-refer to s 12(1)(c) to (i) which makes clear the types of orders
that are envisaged.
o New provision does not include power to make orders in respect of security of costs and
discovery of documents and interrogatories. It is clear that court may now grant an
injuncton in aid of a foreign arbitraton: s 12A(2) read with s 12A(1)(b)
o AA was also likewise amended – s 2 AA with 2010 amendments dealing with respectve
interpretatons in Part II – s 31(d) AA.
VI. Arbitration Rules and Practical Matters
44. What is the role of and relatonship between Arbitration Rules in

arbitration?
 Arbitraton 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 partcular dispute, the manner in which the administration and adjudicaton
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. partes to a commercial agreement could
theoretically draft rules which will govern the conduct of any future arbitration to resolve
their dispute.
 Happily, modern arbitral insttutes provide as a matter of course, their version of rules
governing arbitratons which they administer in the frst instance. These rules are now
generally adopted by parties when providing for arbitraton as a means of resolving their
future disputes. In existence today there are a myriad number of such arbitration rules.
 Some examples are the ICC Rules and the SIAC Arbitraton Rules.
 Arbitraton Rules today are similar around the world, at least in key areas. This is because
internatonally, arbitration rules have evolved to adopt and reflect best practces in
arbitraton. Many rules are therefore identcal.
 Arbitraton Rules serve to provide for the key stages in the life of an arbitration.
63
 Broadly speaking these key stages are:

a. Commencement of the arbitraton
b. Appointment of the Tribunal
c. The Proceedings
d. The Award
45. Commencement of the Arbitraton
 Rules 4 and 5 of the ICC Rules deal with the Request for Arbitraton and the Answer. These
roughly equate to the pleadings in a litgaton 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 traditon is steeped in historical
basis and tradition.
 Under the SIAC Arbitration Rules, similar provisions are found in Rules 3-4 of 2010 editon.
 The fo rm s i n th e SIAC Arbitrat on Rules do however resemble more closely to court
pleadings; possibly providing for clarity in complex cases.
46. Terms of Reference/Memorandum of Issues
 This is a mechanism peculiar to arbitratons. This serves to assist the partes and the Tribunal
in defining and confirming in writng 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 arbitratons.
 See Artcle 18 ICC Rules and Rule 17 of the 2007 edition of the SIAC Arbitraton Rules – this
has been dropped from the 2010 edition of the SIAC Rules. Nothing to stop an arbitrator
from adoptng this framework even in an SIAC arbitration.
 A useful feature of the Terms of Reference and the Memorandum of Issues is the additon of
requiring partes to the arbitraton to sign off on them. This serves both as an affirmation for
the partes as well as a record of what was agreed between partes as to matters that are
properly before the Tribunal. In a sense it helps defne the scope of the arbitration as well as
provide a checklist for the Tribunal. See Chew, Law and Practice of Arbitraton in Singapore, p
141.
47. Appointment of the Arbitral Tribunal
 The Arbitraton Agreement can and frequently provide for the number and in some cases the
type of arbitrators that are required.
 For the number of arbitrators – see ss 9 (default is 1 arbitrator) and 9A IAA (default
appointment of arbitrators) and s 12 AA (default is 1 arbitrator).
 For the qualifcation of arbitrators and manner of appointment see s 13 AA and Artcle 11
Model Law (default is 3 arbitrators)
 Under the ICC Rules – see Artcles 8 and 9 which also provide for the number and manner of
appointment of arbitrators. 2010 edition of the SIAC Arbitraton Rules equivalent – see Rules
6 - 9.
64
48. Challenging the Appointment of an Arbitrator on the Tribunal
 Unlike in court litgaton, it is common for opposing partes to challenge the appointment of a
partcular arbitrator. This is part and parcel of the arbitraton framework. This is premised on
the consensual nature of arbitration as opposed to a state-sanctioned court proceeding. While,
from tme to time, partes do for good reason usually based on issues of impartality or the
perception of a lack of impartality, apply to recuse a judge in court proceedings, such
applicatons are rare – see
Joshua Benjamin Jeyaretnam v Lee Kuan Yew [1990] 3 SLR 322 and [1992] 2 SLR 310 (CA)
Held: Objectve test – would a reasonable and fair-minded person sitting in court and knowing all the
relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible.
 Fact that judge was with the frm of Lee & Lee for 13 years cannot be a ground for any right-
thinking person to form the opinion that he was biased towards Respondent who was founder of
that frm. At tme of trial, judge had left the frm for 9 years and had no pecuniary or any other
interest in the frm. Many judges before their appointments were partners of law frms, no one
has suggested that they are biased.
 Fact that judge presided at CA which dismissed appeals from decisions of HC and that his own
decision was also critcized by that appellate tribunal not a valid basis. Part and parcel of judicial
system and judge will accept critcism with judicial equanimity and not be ill disposed towards
litgant against whom he has given that decision and who subsequently appears before him.
Lee Kuan Yew v Tang Liang Hong & Anor [1997] 2 SLR 233
 Man is reasonable if he takes into account only relevant facts, primary and inferental, and
analysis the issue clinically and ratonally. He must act logically and recognize any non sequitur.
 Notonal man must be fair-minded. He keeps his eyes on the tes of natural justce and
fairness; has no pre-conceived notons and prejudices; gives equal treatment to both partes;
only looks to see if the claims are sustainable in law; guard against misplaced sympathy or
compassion.
See also, Re Raffles Town Club [2008] 2 SLR 1101 which was overturned by the Court of Appeal.
 Issue: whether deputy chairman of Income Tax Board of Review ought not to sit because of
his prior resignaton from membership in taxpayer
 Held: no breach of natural justce but commented that Mr Chew’s connecton with the Club
could give rise to questons concerning his impartality as deputy chairman of the Board
hearing the Club’s appeals.
 Under the IAA the challenge procedure is found Art 13 of the Model Law. Essentially, partes to
an arbitration agreement may provide for their own procedure. In default, Arts 13(2) and (3)
provide for the mechanism – to be made within 15 days (a) after becoming aware of the
consttuton of the tribunal or (b) after becoming aware of any of the grounds set out in Art
12 Model Law:
a. Lack of impartality
b. Lack of independence
c. Lack of qualifcatons as prescribed by the partes.
 See also the companion Art 12(2) – ‘any circumstances likely to give rise to justifiable doubts
as to his impartiality or independence’.
 ‘Real likelihood of bias’ – Turner (East Asia) Pte Ltd v Builders Federal (HK) Ltd (No. 2) [1988] 2
MLJ 502: Test of ‘reasonable suspicion’ i.e. would a reasonable and fair-minded person sitting
in court and knowing all the relevant facts have a reasonable suspicion that a fair trial was not
65
possible.
 Compare with the recent case of Goh Kah Heng (alias Shi Ming Yi) v PP [2009] SGHC 61. The
case involved an applicaton in the High Court to move the criminal trial from the District
Court to the High Court on the ground that since the Chief District Judge who was the former
Director of CAD, which had investigated the case, had become the supervisor of the District
Judges, the case before the District Court would result in a ‘likelihood of bias’. The High
Court rejected the reasoning and the applicaton.
o The fear was that judge may not dare to disagree with Senior DJ because of his power
to assess judge’s performance. It goes beyond this case and would even apply to cases
that do not involve the CAD so long as Senior DJ holds a different view. The ideal of
judicial independence would be undermined. Test of reasonable apprehension of this
fear not based on possibility of the rare and remote case.
o Formaton and expression of court’s opinion is a critcal aspect of judge’s work. He is
required by oath to administer the law without fear or favour. Thus, the Appellant’s
fear is not a reasonable apprehension.
 See Law and Practice of Arbitraton in Practce, at p 70 – 71.

 Under the AA – see sections 14 and 15 AA which mirrors the Model Law with respect to the
challenge procedure and the grounds of challenge.
 Tactical decisions – frequently, the challenge to the appointment of an arbitrator to the
Tribunal is based on tactical consideratons. These may involve the assessment by a party as
to the advantages or disadvantages arising from the appointment of a partcular arbitrator
though not necessarily on the grounds of impartality or lack of independence. These tactcal
considerations are more appropriate and quite common place in international arbitrations.
Some of the reason relate to the nationality of the partes, the system of law they are
accustomed to viz. Common Law v Civil Law, and the known views of certain arbitrators
(arising from previous encounters or writngs).
 Under arbitraton rules – see Artcle 11 ICC Rules and Rules 11 – 13 of the 2010 editon of the
SIAC Arbitraton Rules as examples.
49. Taking and Production of Evidence
 Evidence Act (Cap 97) does not apply to arbitrations in Singapore – see s 2(1) Evidence
Act. Generally, arbitrations are not formally tied to any rules of evidence. Does it mean
arbitrators do not follow or apply rules of evidence? They do but in a generalized manner –
rather than adoptng Evidence legislaton arbitrators subscribe to the general requirements
of fairness and equality.
 In internatonal arbitrations, the International Bar Association, in an atempt to bridge the
differences between the common law and civil law traditions came up with the very
admirable IBA Rules on the Taking of Evidence in International Commercial Arbitration.
Adopted in 1999 by the IBA Council, these rules are now regularly used by the internatonal
community of arbitrators. The revised version was adopted in May 2010 – see
www.ibanet.org/publications.
 Under the AA, in respect of domestic arbitrations similarly the Evidence Act does not apply.
 Approach to admissibility of evidence – arbitrators generally take a more inclusive approach
subject of course to fairness. Generally, however, the approach is less rigid than that taken in
litgaton.
66
 Burden of Proof – Though it is normally taken for granted and seldom raised as an issue, it is
generally understood that arbitraton which after all involve civil type claims, is decided on
proof based on a balance of probabilites; see Redfern and Hunter at paragraphs 6-67.
50. Procedure in obtaining aid of the court
 In Singapore, the Rules of Court contain specific provisions to facilitate applications relatng
to arbitraton matters. These are found in two Orders.
 O 69A governs applications under the IAA; O 69 governs applicatons under the AA.
 For detailed commentaries on the two Orders, see Pinsler, Singapore Court Practice.
 On how O 69A is to be applied, see ABC Co v XYZ Co Ltd [2003] 3 SLR 546; also see generally,
o Rule 2(1): applicaton to court to set aside award under s 24 of Act or art 34(2) MAL by
originatng moton to a single judge
o R 2(4): such applicaton made within 3 months from date of receipt by the applicant of
the award or corrected award
o Amendments in 2002: notce of moton must state grounds on which the applicaton is
made and must be accompanied by an affidavit that exhibits the relevant documents
and sets out the evidence the applicant relies on. O 69A r 2(4B)
o Setting aside of an arbitral award is not equivalent to an appeal. Not appropriate to
apply to an applicaton to amend an originatng moton the principles that are applied
to an applicaton to amend an appeal.
o O 20 r 5 is clear as to the principles that apply to amendment of originatng motons.
 Chew, Singapore Arbitraton Handbook at p 124:
o Q: in context of enforcement of foreign arbitral awards, if arbitral tribunal got law so

wrong as far as the law of enforcing jurisdicton is concerned, would it be both unjust
and offends public policy to enforce it?
o Queston remained unanswered in PT Asuransi in CA. Submited that approach and
thinking adopted by HC gives a hint. Although counsel did not use the phrase
“egregious error”, decision of Arizona arbitrator to in effect ‘pierce the corporate viel’
so as to make Mr Chiew de jure if not de facto a party to the arbitraton agreement,
unless supported by clear evidence would be an ‘egregious error’ and the arbitral
award on which it based ought to be refused enforcement on the ground that it would
offend public policy.
o To make a person who did not voluntarily sign arbitraton agreement a party to the
arbitraton agreement so that he becomes bound by the arbitral award must surely
‘offend the basic notons of morality and justce’. But HC not impressed.
51. Practcal Matters
 Selection of arbitrators – factors to consider

o a. Qualifcatons having regard to the arbitraton agreement;
o b. Experience and reputaton;
o c. Nationality in internatonal arbitratons;
o d. Availability;
o e. Suitability
 For a discussion of the various factors, see generally, Chew, Law and Practce of Arbitraton in
Singapore
67
 Physical considerations – venue and support facilities.
52. General Powers of Arbitral Tribunal
 See generally s 28 AA; see partcularly commentary on s 12 IAA in Merkin and Hjalmarsson,
(Informa), 2009 at pp 32 – 45.
 Interest – see s 35 AA
 Legal Expenses/Costs – s 39 AA
53. Appeals under AA
 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’ – see s 49(1) AA.
 This right to appeal may also be excluded by agreement of partes – see s 49(2), Holland
o Leedon Pte Ltd v Metalform Asia Pte Ltd [2011] 1 SLR 517
 The right to appeal is based on either consent of the partes or by obtaining the leave of court
 s 49(3)
 Leave is only given if the requirements set out in s 49(5) are satsfed – these requirements
are based on the Nema principles – see The Nema [1981] 2 All ER 1030 but see Engineering
Construction below and s 69(3)(c) UK Arbitraton Act 1996.
 On a leave application the court need not hold an oral hearing and may decide on the
documents only – s 52 (2).
 The Court to hear leave applicatons under this secton is the High Court by a Judge in
o Chambers
 If leave is refused, leave is required to appeal against such refusal
 The threshold questions of law based on the Nema principles and section 49 AA are to be
considered. These will not be met if the matter is based on the specific facts of the case –
Engineering Construction Pte Ltd v San Choon Builders Pte Ltd [2011] 1 SLR 681 where the UK
Arbitraton Act (1996) s 69(3)(c) was referred to.
 - An award may be set aside if in coming to its decision, the tribunal had acted in breach of
natural justce –
Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010] SGHC
80
 Arbitrator concluded award that the applicants had abandoned 2 of the 3 alleged
misrepresentatons pleaded despite the fact that reference was made to all 3 alleged
misrepresentatons in applicant’s opening and closing submissions. Award set aside for breach of
natural justce – party denied opportunity to address its positon to the judicial mind – includes
allowing submissions but then ignoring it altogether whether deliberately or otherwise.
Kempinski Hotels SA v PT Prima International Development [2011] 4 SLR 633

 Each point in the submissions of both partes need not be expressly addressed by the tribunal in its
awards, both partes should be given the opportunity to address the tribunal and that the tribunal
should at least consider those submissions (rather than ignoring them outright). Endorsed SEF
Construction Pte Ltd v Skoy Connected Pte Ltd “natural justce requires that partes should be
heard; it does not require that they be given responses on all submissions made”.
 Not a breach of natural justce to reject applicant’s arguments without existence of countervailing
68
arguments by the respondent. Quotng Soh Beng Tee: “It is almost invariably the case that partes
propose diametrically opposite solutons to resolve a dispute. They may expect the arbitrator to
select one of these alternatve approaches. The arbitrator, however, is not bound to adopt an
either/or approach ... Similarly, an arbitrator is entitled - indeed, it is his obligation - to come to his
own conclusions or inferences from the primary facts placed before him”.
54. Emergency Arbitrator under the SIAC Arbitraton Rules (July 2010 Editon)
Under the SIAC Rules there is now a Schedule 1 which deals with the ability of the SIAC on
applicaton, to appoint an ‘Emergency Arbitrator’:
 Designed for the appointment of an arbitrator to deal with emergency interim relief prior to
the consttution of the Arbitral Tribunal after Notce of Arbitraton has been fled – Paragraph
o 1 of Schedule 1 to the SIAC Rules (‘the Schedule’)
 Appointment is at discretion of Chairman of SIAC – Paragraph 2 of the Schedule
 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
 The order or award made under the Schedule is binding on the partes – Paragraph 9 of the
Schedule
 The Emergency Arbitrator has the power to decide how the SIAC Rules apply to the
emergency process – Paragraph 11 of the Schedule
----- End -----
69

Arbitration Notes

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Arbitration Notes

Загружено:

Авторское право:

Доступные форматы

The Law and Practice of Arbitration

Law & Practice of Arbitration Table of Contents

31.2. Foreign Awards: Recognition of Foreign Awards..........................................................................33

I. Introduction to Arbitration Law and Practice

- Commercial Arbitraton not Industrial Arbitration or any other kind

2. Some Differences between Arbitraton and Litgation –

S/No. Arbitration Litigation

- Some date it as far back as 4000 BC – Sumerian era

4. Two Types of Arbitraton

5. The Legislative Framework in Singapore

- Arbitraton Act (Cap. 10)

6. The Domestc Arbitraton Regime – Arbitraton Act (Cap.10 )(‘AA’)

7. Internatonal Arbitrations – International Arbitration Act (Cap.137A)(IAA)

“... it is considered that the adoption of a unified arbitration regime that

9. The UNCITRAL Model Law

- Important to understand in order to ensure integrity in applicaton so that neither

Partes could opt out by implicaton by choosing procedures alien

and contrary to the mandatory provisions in the IAA or the Model

When partes select Pt II of the IAA, without specifying the Model

The Model Law was created as an optonal set of rules to be utlised

If the curial law of Singapore applied and the arbitraton was an

The requirement for partes to agree to exclude the Model Law or Pt

Parliament’s intenton and preference was and is that, where

Both Model Law and Pt II apply to the arbitraton in queston. The

(2) Without prejudice to subsecton (1), subsectons (3) to (6) shall

(5) A provision of rules of arbitration is not inconsistent with the

(6) The partes may make the arrangements referred to in subsecton

11. Recent revisions in 2006 to the Model Law

- Form of agreement - Article 7 Model Law

II. Fundamental Concepts of Modern Arbitration Law

12. The Arbitration Agreement

4.—(1) In this Act, “arbitraton agreement” means an agreement by the partes to S 4 AA

clause part of the contract.

(5) Furthermore, an arbitraton agreement is in writng if it is contained in an

- Interpretations of arbitration clauses by courts

- Arbitraton agreement incorporated by reference – is a queston of constructon –

bringing a dispute before court of law.

13. Party Autonomy

“The principle of party autonomy is one that is central to the Model

- Equally applicable to domestc arbitraton though subject to natonal court’s supervision

14. The doctrine of separability

- The arbitraton agreement whether drafted in full or as a standard clause represents a

relatonship by arbitraton. edition (Oxford), at

15. Principle of Kompetenz-kompetenz

arbitraton proceedings are confdental.

“...in Australia, having regard to the various matters to which I have

- In Singapore accepted as confidental but subject to exceptions – Exceptions depend on the

Implied obligaton of confdentality in arbitraton proceedings. Obligaton Dolling Baker v

 Extended confdentality obligaton to documents disclosed in the Lloyds Rep 243

III. The Role of the National Court in respect of Arbitrations

17. Is the court excluded where partes have chosen arbitraton?

- Is there a difference between domestc and internatonal arbitratons?

 Regardless of whether court’s jurisdicton is exercised under the AA or IAA,

19. Meaning of ‘dispute ’

Whether there is a “dispute” that falls within arbitraton agreement/clause

 If the defendant, therefore, makes out a prima facie case of

20. Stay Applications

- If a party in contravention of an arbitration agreement/clause initates litgation instead of

(b) The applicant was, at the time when proceedings were

21. Before “ taking other step in the proceedings”

P cannot apply for summary judgment while a stay applicaton is

No distncton between O 14 and O 29 r 10

Court’s approach in assessing whether a step has been taken,

CA held: Appellant had submited to the jurisdicton of the Singapore