On 1 January 2010, Singapore's International Arbitration Act (the "IAA") was amended with the coming into force of the International Arbitration (Amendment) Act 2009 (the "Amendment Act"). The driving force behind the Amendment Act was changes made to the UNCITRAL Model Law in 2006 (the "2006 Model Law"). Singapore's IAA is based on the UNCITRAL Model Law of 1985 and the recent amendments reflect some of the changes made to the Model Law in 2006.
The Amendment Act brought about three main changes to Singapore's international arbitration framework.
Definition of "arbitration agreement"
The definition of "arbitration agreement" under Section 2(1) of the IAA has been amended, providing a more "up-to-date" version derived from Article 7 (Option 1) of the 2006 Model Law. The revised definition includes agreements made by electronic communications – such as by email. However, the changes do not go as far as the 2006 Model Law and stop short of widening the definition to include recorded oral arbitration agreements. Consequently, while it is commonplace for business people to make oral agreements which are binding as to the substance of the transaction (e.g. a commodity or share sale), they should be aware that an oral agreement to arbitrate disputes arising from that transaction may not always be enforceable, even in a jurisdiction as arbitration-friendly as Singapore.
The new definition also does not apply to the whole of the IAA. For Part III of the IAA, which relates to the recognition and enforcement in Singapore of foreign awards made in New York Convention ("NYC") Contracting States, the definition of "arbitration agreement" under the NYC continues to apply. The NYC's definition is yet to be revised to include explicit reference to electronic communications. Nonetheless, national courts generally will take a pragmatic approach to the requirement for an "agreement in writing" under Article II of the NYC (including its non-exhaustive definition in Article II.2) and treat writing as including soft copy correspondence.
Powers of the Singapore Courts to grant interim relief in support of foreign arbitrations
One of the key changes to the IAA is a new Section 12A, which empowers the Singapore High Court to order interim measures in aid of arbitrations seated in countries other than Singapore. Prior to this change, the High Court had interpreted the power conferred by the IAA as excluding the making of interim orders to assist foreign arbitrations. Now, the High Court can grant interim orders and relief including discovery of documents and freezing of assets in foreign arbitrations, in line with the new Article 17J of the 2006 Model Law.
However, in broadening the territorial scope of the High Court, the new amendments have reduced the number of situations in which it can act in place of the arbitral tribunal. Thus, the amended IAA precludes the High Court from issuing orders for security for costs, discovery of documents and interrogatories on the basis that – according to the explanation issued by the Singapore Ministry of Law – these relate to the conduct of the arbitration and should therefore be within the exclusive purview of the tribunal.
Recognition of "made in Singapore" awards
The new Section 19C of the IAA empowers the Ministry of Law to designate authenticating authorities to authenticate awards "made in Singapore" for purposes of overseas enforcement. This should assist the enforcement of Singapore awards in other NYC Contracting States. The respective heads of the Singapore International Arbitration Centre (SIAC) and Maxwell Chambers – Singapore's recently-opened integrated arbitration venue – have been designated as authenticating authorities for this purpose.