A. LEGISLATION AND RULES
A.1 No legislative amendments to the IAA or AA in Singapore
International arbitration continues to be governed by the International Arbitration Act (IAA), the Arbitration Act (AA) and the Arbitration (International Investment Disputes) Act, to which there have been no legislative amendments in the past year.
A.2 Institutions, rules and infrastructure
The main arbitral institution in Singapore is the Singapore International Arbitration Center (SIAC), which was ranked 2nd among the world’s top five arbitral institutions and the most preferred institution based in Asia in findings released in 2021. The SIAC continued to extend its global reach, most notably with its establishment of a strategic partnership with FedArb in the US to allow parties to choose from their respective panels of arbitrators. The SIAC has also signed memoranda of understanding with the National Commercial Arbitration Centre in Cambodia, the National and International Arbitration Centre of the Lima Chamber of Commerce, the In-House Counsel Forum of Korea, Chongqing Yuzhong District People’s Government, the Federation of Indian Corporate Lawyers, China Council for the Promotion of International Trade Hangzhou Committee and the Shanghai University of Political Science and Law.
The SIAC saw its third-highest caseload in 2021, with 469 new case filings. The total sum in dispute for 2021 was USD 6.54 billion (SGD 8.85 billion), and the highest sum in dispute for a single administered case was USD 1.95 billion (SGD 2.64 billion), which was more than twice the highest sum in dispute in 2020. India was the top foreign user of the SIAC, with US and China being in the top-five foreign users of the SIAC.
In January 2023, the SIAC Model Clause was revised to include an optional clause to incorporate the Singapore International Commercial Court (SICC) Model Clause for IAA-related matters. Parties may incorporate the optional clause if they wish to agree that they will commence any court proceedings under the IAA before the SICC and that such proceedings shall be heard and adjudicated by the SICC.
As countries adjust to the lingering effects of the COVID-19 pandemic, the SIAC, with its world-class facilities, and Singapore remain the preferred choice for parties to settle their disputes.
In the past year, there were a number of significant cases which further developed the law of arbitration in Singapore, in particular in relation to the following:
- The choice of law determining the arbitrability of the subject matter of disputes at the pre-award stage
- The circumstances in which a court may refuse a stay of court proceedings in favor of arbitration
- The remission of awards to a tribunal in a setting aside application
- The enforceability of foreign emergency awards in Singapore
- Whether a tribunal retains jurisdiction after issuing a conditional final award
- The validity of pathological clauses
- Whether a tribunal who makes findings beyond the precise terms of the pleadings and submissions advanced by a party would have exceeded its jurisdiction
- Whether a tribunal who invites further submissions on an issue would have committed a breach of the parties’ agreed procedure and natural justice
In general, the Singapore courts have affirmed a commercial and practical approach to arbitration, which gives primacy to the parties’ intentions in choosing their dispute resolution forum. The Singapore courts have also shown that they are at the forefront of arbitration jurisprudence, most notably in deciding that the arbitrability of a dispute is to be determined by the application of the non-arbitrability rules of both the law of the arbitration agreement and the law of the seat.
B.1 Arbitrability of subject matter of disputes at pre-award stage
In last year’s chapter, the High Court’s decision in Westbridge Ventures II Investment Holdings v. Anupam Mittal  SGHC 244 was discussed. Of importance was the issue regarding which system of law was relevant to determining subject matter arbitrability at the pre-award stage: the law of the arbitration agreement or the law of the seat? At first instance, the High Court held that it was only the law of the seat which would apply.
In Anupam Mittal v. Westbridge Ventures II Investment Holdings  SGCA 1, the Court of Appeal overturned the High Court’s finding on this point. In the Court of Appeal’s view, both the law of the arbitration agreement and the law of the seat were relevant to the question of subject matter arbitrability. Specifically, subject matter arbitrability at the pre-award stage is, in the first instance, determined by the law of the arbitration agreement. If the law of the arbitration agreement is a foreign governing law and that law provides that the subject matter of the dispute cannot be arbitrated, the Singapore court will not allow the arbitration to proceed because it would be contrary to public policy, albeit foreign public policy, to enforce such an arbitration agreement. Further, because of the operation of section 11 of the IAA, where a dispute may be arbitrable under the law of the arbitration agreement but Singapore law as the law of the seat considers that dispute to be non-arbitrable, the arbitration would not be able to proceed. In both cases, it would be contrary to public policy to permit such an arbitration to take place.
B.2 Court of Appeal refuses to stay court proceedings in favor of arbitration
Where parties agree to refer their disputes to arbitration and one of the parties seeks to commence court proceedings in breach of the arbitration agreement, the Singapore courts will typically stay the court proceedings in favor of arbitration. This is consistent with the Singapore courts’ general approach to respecting party autonomy and upholding the parties’ agreement to arbitrate.
CSY v. CSZ  2 SLR 622 represented a departure from the general approach. There, the Court of Appeal refused to stay court proceedings in favor of arbitration despite the parties’ agreement to arbitrate in light of the special circumstances of that case. The claimant had commenced Singapore court proceedings against the respondent, its external auditors, for failing to detect material misstatements in its audited financial statements for FY2014 to FY2019. The engagement letters between the claimant and the respondent differed for the various financial years: (i) between FY2008 to FY2015, there were no dispute resolution clauses, (ii) for FY2016 and FY2017, there was an exclusive jurisdiction clause in favor of the Singapore courts, (iii) for FY2018, there was an exclusive jurisdiction clause and a tiered arbitration clause which culminated in SIAC arbitration and (iv) for FY2019, there was only a tiered arbitration clause. Prior to the claimant’s commencement of the Singapore court proceedings, the parties were unable to reach agreement on referring all the claims for FY2014 to FY2019 to arbitration. After the claimant had commenced the Singapore court action, the respondent applied to the Singapore court to stay the dispute relating to the audits for FY2018 and FY 2019 (“FY2018-2019 Dispute”) in favor of arbitration pursuant to section 6 of the AA.
The court rejected the respondent’s application on the basis that the claimant had shown “sufficient reason why the matter should not be referred to arbitration” pursuant to section 6 of the AA. Among other factors, the court found that the following factors militated against granting a stay of court proceedings in respect of the FY2018-2019 Dispute: (i) the significant overlap between the disputed factual issues for the dispute pertaining to the audits for FY2014 to FY2017 on the one hand and the FY2018-2019 Dispute on the other hand; (ii) the real prospect of inconsistent findings between the two fora in light of the significant overlap in factual issues; (iii) the risk of bringing disrepute to the administration of justice if the same issues were reopened in a different proceeding despite having been disposed of in one case; and (iv) the parties’ intentions were not determinative because it appeared that the parties had not contemplated a multi-year dispute of the kind in question when they agreed to a tiered arbitration agreement for FY2018 and FY2019, in circumstances where disputes arising from the parties’ engagement up until 2017 would have been resolved by the courts.
B.3 Remission of award to tribunal
Under article 34(4) of the UNCITRAL Model Law, the court, when asked to set aside an award, has the power to remit an award to the tribunal “where appropriate and so requested by a party.” If an award is remitted, the court will suspend the setting aside proceedings to give the tribunal an opportunity to resume arbitral proceedings to eliminate the grounds for setting aside.
In Bagadiya Brothers (Singapore) Pte Ltd v. Ghanashyam Misra & Sons Pte Ltd  SGHC 246, the High Court exercised its powers of remission upon finding that the arbitrator had breached rules of natural justice which would have constituted a ground for setting aside. Specifically, the court found that the arbitrator had failed to give the parties a fair opportunity to be heard by applying a specific provision of a statute when that provision was neither raised nor submitted on by the parties. Having determined that there was a breach of natural justice, the court turned to the question of whether to remit the award to the tribunal. While the plaintiff-applicant maintained that it sought a setting aside of the award and did not request a remission of the award to the tribunal as part of its setting aside application, the defendant-respondent made the request for remission in the alternative to its primary position that the setting aside application should be dismissed. Having considered the parties’ positions, the court was satisfied that the defendant’s request allowed it to remit the award to the tribunal. The court also found that it was appropriate to remit the award because the breaches of natural justice were not so inextricably intertwined with the award. The court also disagreed with the plaintiff’s submissions that the arbitrator had entirely failed to apply their mind to the issues or that a reasonable person would no longer have confidence in their ability to come to a fair and balanced conclusion on the remitted issues.
B.4 Foreign emergency arbitral awards are enforceable in Singapore
In CVG v. CVH  SGHC 249, the High Court held that foreign emergency arbitral awards could be enforced like other foreign awards under the IAA. The defendant in this case had applied to set aside an order by the Singapore court granting leave to the applicant to enforce an emergency interim award made in Pennsylvania, US. The defendant argued, among other things, that the definition of a “foreign award” under section 29 of the IAA did not include a foreign emergency award, such that the emergency interim award made in Pennsylvania could not be enforced in Singapore.
The High Court rejected the defendant’s argument regarding the scope of the phrase “foreign award” under the IAA. In the court’s view, on a purposive interpretation, the term “arbitral award” in the IAA includes awards by emergency arbitrators, such that a foreign emergency award is enforceable in Singapore. While the court did not agree with the defendant’s argument on this point, the court ultimately granted the defendant’s application on other grounds.
B.5 Tribunal rendered functus officio after a conditional final award has been rendered
In York International Pte Ltd v. Voltas Ltd  SGHC 153, the High Court held that an arbitrator who had issued a conditional final award was functus officio and no longer had jurisdiction to issue any further award. There, the plaintiff and the defendant had entered into an agreement for the supply of chillers, to support the defendant’s performance of its obligations under a main contract with Resorts World at Sentosa Pte Ltd (RWS). The main contract was later novated to another company, DCP (Sentosa) Pte Ltd (DCP Sentosa). In 2012, the plaintiff commenced an arbitration to recover outstanding payments owed by the defendant under the agreement, and the defendant counterclaimed for damages and losses arising from allegedly defective chillers. The arbitrator issued a final award in 2014 which allowed some of the plaintiff’s claims as well as part of the defendant’s counterclaims. The 2014 award contained orders regarding certain claims (“Nitrogen and Removal Claims”) which the plaintiff was found liable to the defendant for, “upon the [defendant] making payment to RWS in respect of” the damage relating to the Nitrogen and Removal Claims.
Following the 2014 award, the defendant entered into a settlement agreement with DCP Sentosa under which DCP Sentosa agreed to pay the defendant a settlement sum to settle all claims each party had against each other under the main contract. In the defendant’s view, that meant that the amount it owed DCP Sentosa for the Nitrogen and Removal Claims (amounting to SGD 1,132,439.46) had been paid by it to DCP Sentosa by set off when the settlement agreement was concluded.
From 2015 to 2018, the defendant demanded payment of SGD 1,132,439.46 from the plaintiff, but the plaintiff refused to make payment on the basis that the defendant had allegedly not provided sufficient evidence that it had indeed paid DCP Sentosa for the Nitrogen and Removal Claims
In 2020, the defendant applied to the arbitrator for a further award to determine, among other things, whether the defendant had paid DCP Sentosa in respect of the Nitrogen and Removal Claims. The arbitrator issued a preliminary ruling that they retained jurisdiction to issue a further award with respect to these issues.
On the application of the plaintiff under section 21(9) of the AA, the High Court held that the arbitrator did not in fact retain any jurisdiction to issue a further award. The court explained that the 2014 award was a final award which dealt with all issues which were the subject of the arbitration, and the arbitrator was therefore functus officio.
B.6 Pathological clauses upheld by Singapore courts
Where the parties’ agreement contains a pathological clause, i.e., an arbitration agreement which contains a defect or defects liable to disrupt the smooth progress of the arbitration, this raises issues regarding the validity of the arbitration agreement. Nevertheless, the Singapore courts will interpret the clauses to ascertain if parties have evinced a clear intention to settle the dispute by arbitration, and in such event, the courts will give effect to such intention. Two cases show how the Singapore courts would interpret such pathological clauses.
B.6.1 Arbitration agreement specifying nonexistent arbitral institution
In Re Shanghai Xinan Screenwall Building & Decoration Co, Ltd  5 SLR 393, the Singapore High Court found that a pathological clause was valid despite naming a nonexistent institution, such that an award issued by the tribunal was binding. There, the parties had agreed to submit disputes to the “China International Arbitration Center” for arbitration, when no such institution existed. The claimant ultimately commenced arbitration under the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2015, and a tribunal constituted under the CIETAC Arbitration Rules 2015 ultimately issued an award after the respondent did not appear in the arbitration. The respondent later applied to the Singapore courts to set aside an order granting the claimant leave to enforce the CIETAC award.
The High Court dismissed the application to set aside the order. The court found that insofar as rational commercial parties would not deliberately choose a nonexistent institution, the question to be determined was whether the arbitration agreements evinced a common intention that CIETAC would be that arbitral institution. On the available evidence, the court held that it was indeed the parties’ common intention for CIETAC to be the administering institution. The court took into account the parties’ use of the first two words in CIETAC’s name, i.e., “China” and “International,” as well as another word, i.e., “Arbitration.” The Court further noted that out of five arbitral institutions in China (including CIETAC), three of those institutions did not include the word “China” in their name, whereas the last institution (specifically, China Maritime Arbitration Commission) used the word “China” but qualified this immediately with the word “Maritime.” As the court found that the parties intended CIETAC to be the administering institution, the court held that the award issued by the tribunal was binding.
B.6.2 Arbitration agreement referring to defunct procedure for appointment of arbitrator
In Hunan Xiangzhong Mining Group Ltd v. Oilive Pte Ltd  5 SLR 239, the High Court had to consider whether an appointment of an arbitrator by the President of the SIAC was invalid, in circumstances where the arbitration clause provided that the tribunal would consist of “a single arbitrator agreed upon by both parties, or if not so agreed, by the Chairman for the time being of SIAC.” The relevant arbitration clause was contained in an agreement between the parties executed in May 2020. However, in 2013, there had been an internal reorganization of the SIAC, which created the office of the President of the Court of Arbitration of the SIAC. As such, since the 2013 edition of the SIAC Rules onwards, all references to “Chairman” had been revised to “President.” While earlier editions of the SIAC Rules had provided that the Chairman could make appointments, from 2013 onwards, it was not technically possible for the appointment of an arbitrator to be made by the “Chairman” of the SIAC. As it turned out, following the commencement of arbitration in September 2020, the President of the SIAC appointed the sole arbitrator. Dissatisfied with the appointment, the applicant applied to the Singapore courts seeking a declaration that the sole arbitrator lacked jurisdiction because the parties had agreed that the sole arbitrator was to be appointed by the “Chairman” of the SIAC.
The High Court held that the appointment of the sole arbitrator by the President of the SIAC was a valid appointment, such that the sole arbitrator had jurisdiction over the arbitration. In the court’s view, by the use of the phrase “agreed upon by,” the parties did not distinguish between the concepts of nomination and appointment. Further, since the parties incorporated the SIAC Rules 2016 by reference in the arbitration agreement, it was relevant to consider those rules. In that connection, the SIAC Rules 2016 provided that all appointments of arbitrators shall be made by the President in their discretion, and that if 21 days had passed without the parties’ agreement on a nomination for a sole arbitrator, the President was empowered to make the appointment of the sole arbitrator in any event.
B.7 Tribunal not bound by precise terms of the parties’ pleadings and submissions
It is well-settled that a tribunal has no jurisdiction to decide any issue that has not been submitted to arbitration and the parts of an award that relate to such issues may be set aside by the court. In CJA v. CIZ  2 SLR 557, the Court of Appeal held that a tribunal that made findings beyond the precise terms of the pleadings and submissions advanced by a party did not exceed its jurisdiction as the findings were premised on the fundamental point raised by the parties. In this case, the appellant had commenced an arbitration against the respondent to seek damages for the respondent’s failure to pay the appellant certain success fees payable to the appellant pursuant to a consultancy agreement upon the appellant’s presentation of investment opportunities to the respondent. The appellant’s pleaded case in the arbitration was premised on there being a subsisting agreement between the parties. In the award, the tribunal found that while the agreement had come to an end, the appellant was nevertheless entitled to a success fee because the respondent’s obligation to pay the appellant arose upon the presentation of the opportunities. Therefore, notwithstanding that the agreement had come to an end, the tribunal ordered the respondent to pay the appellant for the success fees claimed. Dissatisfied, the respondent applied to the Singapore court to set aside the award on the basis that the tribunal had exceeded its jurisdiction.
The Court of Appeal dismissed the respondent’s application to set aside the award. In the court’s view, the tribunal had prompted the parties to consider the possibility that the agreement could be interpreted such that the respondent would be obliged to pay a success fee in relation to an opportunity, even if the opportunity only bore fruit subsequently. Accordingly, the tribunal’s finding was premised on the fundamental point raised by the appellant’s submissions. The court further held that the tribunal’s findings did not breach the rules of natural justice as the parties had a reasonable opportunity to address the determinative issue.
B.8 Tribunal’s request for further submissions not a breach of natural justice which warrants the setting aside of an award
In COD v. COE  SGHC 126, the High Court held that an arbitrator who had requested the parties to make further submissions on an issue of damages was not acting in breach of the parties’ agreed procedure and rules of natural justice. The claimant in the arbitration had sought specific performance for breach of contract or alternatively, damages. The sole arbitrator issued an interim award where they found that there was a breach of contract, but that specific performance was not an appropriate remedy. The arbitrator therefore requested that the parties make further submissions on the issue of damages, which both parties submitted on. The arbitrator subsequently issued a final award which awarded damages to the claimant. The respondent thereafter applied to the Singapore courts to set aside the award on the basis that, among other things, the arbitrator’s request for further submissions amounted to a breach of the parties’ agreement to have only one tranche of hearing without bifurcation into liability and quantum phases.
In the court’s view, the respondent’s application had no merit, as there was only one evidentiary hearing and the arbitrator did not ask for or allow evidence to be adduced after the hearing. The arbitrator merely asked for further submissions on the question of damages, having determined that they would not grant specific performance.
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