Laws and institutions

Multilateral conventions relating to arbitration

Is your jurisdiction a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Since when has the Convention been in force? Were any declarations or notifications made under articles I, X and XI of the Convention? What other multilateral conventions relating to international commercial and investment arbitration is your country a party to?

Singapore became a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) on 21 August 1986. The New York Convention has been in force in Singapore since 19 November 1986, with the reservation that the Convention will only be applied to the recognition and enforcement of awards made in the territory of another contracting state.

Singapore is a party to the International Convention for the Settlement of Investment Disputes between States and Nationals of other States, Washington 1965 (the ICSID Convention). The Arbitration (International Investment Disputes) Act was enacted to provide for the recognition and enforcement of arbitral awards under the ICSID Convention.

Bilateral investment treaties

Do bilateral investment treaties exist with other countries?

Singapore is a party to no fewer than 40 bilateral investment treaties (BITs) and over 30 other international investment-related agreements (including free trade agreements (FTAs)) with other countries, which generally provide for disputes between the investors and host states to be referred to binding international arbitration, including ICSID arbitration.

Singapore is also a party to multilateral investment treaties, including the Association of South East Asian Nations Comprehensive Investment Agreement signed on 29 February 2009, which entered into force on 29 March 2012. Singapore has also signed at least 20 FTAs, with over 24 trading partners. Most of these FTAs contain chapters providing for investment protections typically found in BITs. The FTAs generally provide for disputes between investors and the host state to be resolved through binding international arbitration under the ICSID Arbitration Rules, UNCITRAL Arbitration Rules or rules of leading international arbitration centres.

Domestic arbitration law

What are the primary domestic sources of law relating to domestic and foreign arbitral proceedings, and recognition and enforcement of awards?

Singapore has two principal arbitration statutes: the Arbitration Act (AA), which governs domestic arbitrations, and the International Arbitration Act (IAA), which governs international arbitrations. Pursuant to IAA, section 5(2), an arbitration is ‘international’ if:

  • at least one of the parties has its place of business outside Singapore at the time of the conclusion of the arbitration agreement;
  • the agreed place of arbitration is situated outside the state in which the parties have their place of business;
  • any place where a substantial part of the obligations of the commercial relationship is to be performed or the place to which the subject matter of the dispute is most closely connected is situated outside the state in which the parties have their place of business; or
  • the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

Parties may also agree to opt into the IAA regime, notwithstanding absence of the elements above (IAA, section 5(1)).

The IAA essentially enacts (and incorporates as its First Schedule) the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law) with some statutory modifications. Various elements of the 2006 UNCITRAL Model Law have since also been incorporated into the IAA. IAA, section 3 states that ‘the Model Law, with the exception of Chapter VIII thereof, shall have the force of law in Singapore’.

The greatest difference between the AA and IAA is the level of judicial intervention permitted. For instance, a stay of judicial proceedings is mandatory in an international arbitration (IAA, section 6 and Model Law, article 8) but discretionary in a domestic arbitration (AA, section 6). An appeal to the courts may be made against a domestic award for error of law (AA, section 49) but an international award cannot be challenged on that basis.

The IAA also gives effect to the New York Convention (reproduced in its Second Schedule) and provides for the recognition and enforcement of foreign arbitral awards in Singapore.

Apart from the IAA, the Arbitration (International Investment Disputes) Act provides for the recognition and enforcement of ICSID Convention arbitral awards.

Domestic arbitration and UNCITRAL

Is your domestic arbitration law based on the UNCITRAL Model Law? What are the major differences between your domestic arbitration law and the UNCITRAL Model Law?

The AA does not expressly incorporate the UNCITRAL Model Law. That said, it has undergone various modifications in line with many principles contained in the Model Law. As stated in question 3, the greatest difference between the AA and IAA is the level of judicial intervention permitted. In addition to the examples stated above, the court has the power to extend contractual time limits for the commencement of arbitration (AA, section 10), but there is no equivalent power under the Model Law, and an appeal may be made to the court on a question of law arising out of a domestic award under the AA, but there is no equivalent provision under the Model Law.

Mandatory provisions

What are the mandatory domestic arbitration law provisions on procedure from which parties may not deviate?

The AA and IAA do not set forth a specific list of mandatory provisions from which parties may not contractually deviate.

They do, however, provide, inter alia, for the following:

  • the immunity of arbitrators (AA, section 20 and IAA, section 25);
  • a tribunal’s competence to rule on its own jurisdiction (AA, section 21, and Model Law, article 16 (see IAA, First Schedule));
  • a tribunal’s duty to act fairly and impartially and allow the parties to present their case (AA, section 22 and Model Law, article 18 (see IAA, First Schedule)); and
  • the parties’ rights to challenge an award on grounds such as breach of natural justice, fraud and public policy (AA, section 48 and IAA, section 24).
Substantive law

Is there any rule in your domestic arbitration law that provides the arbitral tribunal with guidance as to which substantive law to apply to the merits of the dispute?

Section 32(1) of the AA provides that the arbitral tribunal shall decide the dispute in accordance with the substantive law chosen by the parties. If the parties have not chosen a substantive law, the arbitral tribunal will apply the law as determined by the application of conflict of laws rules (AA, section 32(2)). The tribunal may also decide the dispute, if the parties so agree, in accordance with ‘such other considerations as are agreed by them or determined by the tribunal’ (AA, section 32(3)). This allows the tribunal to disregard strict rules of law.

These provisions closely follow article 28 of the Model Law as enacted in Singapore through the IAA. Under article 28(1), the arbitral tribunal shall decide the dispute in accordance with the application of a substantive law or rules of law (eg, lex mercatoria) chosen by the parties. However, if the parties have not designated any such applicable law or rules of law, then the arbitral tribunal shall apply a substantive law determined by conflict of laws rules that the arbitral tribunal considers applicable.

Arbitral institutions

What are the most prominent arbitral institutions situated in your jurisdiction?

The most prominent arbitral institution in Singapore is the Singapore International Arbitration Centre (SIAC):

Singapore International Arbitration Centre

28 Maxwell Road #03-01

Maxwell Chambers Suites

Singapore 069120

Tel: +65 6713 9777

Fax: +65 6713 9778

www.siac.org.sg

[email protected]

The SIAC Rules 2016 (sixth edition) (the SIAC Rules) - the primary rules of arbitration at the SIAC - took effect on 1 August 2016, superseding previous versions, and including new provisions, inter alia, on the consolidation of arbitrations and the joinder of additional parties, as well as the early dismissal of claims and defences.

The SIAC also has its SGX-DT Arbitration Rules (first edition, 1 July 2005) and the SIAC SGX-DC Arbitration Rules (first edition, 27 March 2006). These are designed for the conduct of expedited arbitrations for disputes arising from derivative trading and derivative clearing respectively.

Most recently, the SIAC released its Investment Arbitration Rules (the SIAC IA Rules), which came into effect on 1 January 2017. The SIAC IA Rules are a specialised set of rules to address the unique issues present in the conduct of international investment arbitration.

Parties arbitrating at the SIAC also have the option of adopting the UNCITRAL Arbitration Rules (as revised in 2010) (UNCITRAL Rules). Although the UNCITRAL Rules were designed for use in ad hoc arbitrations, parties can, with special provision, enjoy the benefit of institutional administration of the arbitration by the SIAC. The SIAC Guide to UNCITRAL Rules Arbitration (see www.siac.org.sg/our-rules/62-our-rules/rules/311-uncitral-arbitration-rules) provides an explanation as to of how this may be achieved.

Other prominent arbitral institutions include the International Chamber of Commerce, which opened a Singapore case-management office in April 2018, the Singapore Chamber of Maritime Arbitration, the World Intellectual Property Organization Arbitration and Mediation Center and the International Centre for Dispute Resolution (Singapore Office).

Arbitration Agreement

Arbitrability

Are there any types of disputes that are not arbitrable?

All disputes may be resolved by arbitration unless it would be contrary to public policy to do so (IAA, section 11, and AA, section 48(1)(b)). Examples of disputes that are not regarded as arbitrable include custody disputes, grant of statutory licences, validity of registration of trademarks or patents, and some anti-competition matters (eg, matters regulated under Singapore’s Competition Act).

The Singapore Court of Appeal has held that claims involving an insolvent company may not be arbitrable when the substantive rights of other creditors are affected (see Larsen Oil and Gas Limited v Petroprod Ltd [2011] 3 SLR 414).

In Tomolugen Holdings v Silica Investors Ltd [2015] SGCA 57, the Singapore Court of Appeal held that the arbitrability of a dispute would be presumed so long as it fell within the scope of an arbitration clause, subject to that presumption being rebutted if it could be shown that Parliament intended to exclude a particular type of dispute from being arbitrated, or if permitting the arbitration of a type of dispute would be contrary to public policy. Such non-arbitrable matters included claims arising upon insolvency or the liquidation of an insolvent company because they impinge on third-party rights. The Court of Appeal, however, noted that disputes involving section 216 of the Companies Act do not, generally, engage public policy considerations, as they are essentially contractual in nature. Consequently, in L Capital Jones Ltd and another v Maniach Pte Ltd [2017] 1 SLR 312, the Singapore Court of Appeal held that even minority oppression claims in corporate disputes are arbitrable.

The Singapore High Court in Piallo GmbH v Yafriro International Pte Ltd [2014] 1 SLR 1028, has also held that actions on bills of exchange (eg, claims on dishonoured cheques), are arbitrable if the reason for the cheques being dishonoured (in this instance, the alleged breach of a distributorship agreement) arose from a dispute falling within the scope of the arbitration agreement.

Requirements

What formal and other requirements exist for an arbitration agreement?

An arbitration agreement must be in writing. An agreement concluded orally or by conduct or any other means may also be a valid arbitration agreement provided that the contents of such an agreement are recorded in any form (IAA, section 2A).

For instance, in R1 International Pte Ltd v Lonstroff AG [2014] SGCA 56, the Singapore Court of Appeal had to consider whether a set of terms (which included an agreement to arbitrate in Singapore) set out in a contract note that was sent by R1 International to Lonstroff shortly after the deal had apparently been agreed, was incorporated as part of the contract between the parties and, if so, whether an antisuit injunction ought to be made against Lonstroff AG from pursuing a case in the Swiss courts. The Court of Appeal held that the contract note was part of the contract between the parties - it was improbable that the parties expected to contract purely on the bare bones of the prior email confirmations - and as such, those terms (including the agreement to arbitrate) would have, as regards the industry practice and size and scope of the subject matter of the supply contracts in question, probably expected terms such as the agreement to arbitrate in Singapore to be incorporated into the more detailed contract note.

Parties are also increasingly including in their arbitration agreements a specific statement as to their express choice of law to govern the arbitration agreement. In the absence of an express choice of law to govern the arbitration agreement, the Singapore High Court (see BCY v BCZ [2016] SGHC 249 and BNA v BNB and BNC [2019] SGHC 142) has endorsed the approach of the English Court of Appeal in SulAmérica Cia Nacional De Seguros SA and others v Enesa Engenharia SA [2012] 1 Lloyd’s Rep 671, holding that where the arbitration agreement is a clause forming part of a main contract, it is reasonable to assume that the contracting parties intend for the same system of law to govern both the arbitration agreement and the main contract.

Enforceability

In what circumstances is an arbitration agreement no longer enforceable?

An arbitration clause or agreement contained in a contract will continue to be enforceable under the doctrine of separability, even if the contract is avoided, rescinded or terminated (Model Law, article 16, IAA, First Schedule and AA, section 21).

An arbitration agreement is not discharged by the death of any party to the agreement but continues to be enforceable by or against the personal representative of the deceased party (AA, section 5).

The Singapore courts are extremely pro-arbitration. Where arbitration agreements are ambiguous, the Singapore High Court has expressed a willingness to ‘engage in some verbal manipulation or adjustment to resolve a gap in the arbitration agreement . . . [t]he court will give effect to the meaning of the parties’ agreement reasonably discerned from the written agreement itself and the background even though it involves departing from or qualifying particular words used’ - see BNP v BNR [2018] 3 SLR 889.

In contrast to some other jurisdictions, the Singapore Court of Appeal also held - in Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017] 2 SLR 362 - that an arbitration clause that was asymmetric in nature (ie, that provided the claiming party with the right to choose whether to refer its dispute to arbitration or to the courts) could still give rise to a valid and enforceable arbitration agreement once that party elected to arbitrate, provided that no prior inconsistent step had been taken. On the facts of that case, however, the arbitration clause - although valid as an arbitration agreement - was not enforceable given that the claiming party had decided against arbitration, having chosen to litigate the dispute in court.

An arbitration agreement will no longer by enforceable by a party who has waived it, or has repudiated it (with the other party’s acceptance of the repudiation). For example, in Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd (receiver and manager appointed) [2018] 2 SLR 1207, the Singapore Court of Appeal held that Hualon had repudiated the arbitration agreement as it had commenced and maintained court proceedings in the BVI for 10 months without reserving its right to arbitration. As a result, Hualon was disentitled from subsequently relying on the arbitration agreement to bring a SIAC arbitration against Marty.

Separability

Are there any provisions on the separability of arbitration agreements from the main agreement?

Arbitration clauses that form part of a contract shall be treated as an agreement independent of the other terms of the contract (AA, section 21 and Model Law, article 16(1), IAA, First Schedule). The Singapore High Court has held that ‘[s]eparability serves the narrow though vital purpose of ensuring that any challenge that the main contract is invalid does not, in itself, affect the validity of the arbitration agreement. This is necessary because the challenge to the validity of the arbitration agreement often takes the form of a challenge to the validity of the main contract’ - see BCY v BCZ [2017] 3 SLR 357.

Third parties – bound by arbitration agreement

In which instances can third parties or non-signatories be bound by an arbitration agreement?

Third parties, namely non-signatories to the arbitration agreement, are generally not bound by an arbitration agreement, subject to exceptions (see those listed below).

In Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832, the Singapore High Court stated that to permit enforcement of arbitral awards against a non-party to the arbitration agreement (who was also a non-party to the arbitration reference) would be anathema to the ‘internal logic of the consensual basis of an agreement to arbitrate’ as stated by the Singapore Court of Appeal in PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372. It expressly rejected the ‘single economic entity’ concept that it said was conceptually difficult to reconcile with the established doctrine of separate legal personality and the narrow exceptions recognised at law for the piercing of the corporate veil. It also noted that the single economic entity concept has not been recognised in the case law from Singapore and other common law jurisdictions, and that it was not even a clearly established concept in international arbitration.

The exceptions to the above general rule include the following:

  • section 9 of Singapore’s Contracts (Rights of Third Parties) Act allows a third party to rely on an arbitration clause or agreement to enforce a term in a contract if the contract expressly provides that he or she may enforce that term in his or her own right or if that term purports to confer a benefit on him or her;
  • the legal assignee of a contract may also, upon giving notice of assignment to the other party, be entitled to the rights of a party under the arbitration agreement;
  • a principal, whether disclosed or undisclosed, of a party who acted as agent in the agreement, has rights as a party to the arbitration agreement; and
  • the legal representatives of the estate of a deceased, and trustees in bankruptcy, are also entitled to that party’s rights under the arbitration agreement. An insurer claiming through a subrogated action is also bound by the terms of an arbitration clause by which the insured was bound.
Third parties – participation

Does your domestic arbitration law make any provisions with respect to third-party participation in arbitration, such as joinder or third-party notice?

Third parties who are not parties to the arbitration agreement are not permitted to participate in the arbitration through joinder, third-party notice or otherwise, without the consent of all the parties to the arbitration. In line with this principle, rule 7.1 of the SIAC Rules provides that a party or non-party to the arbitration may file an application for one or more additional parties to be joined as a claimant or a respondent, only if the additional party to be joined is prima facie bound by the arbitration agreement, or all parties, including the additional party to be joined, have consented to the joinder of the additional party.

In PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372), the Singapore Court of Appeal held that the tribunal’s joinder of the sixth to eighth claimants to the arbitration was wrong, namely, it was ‘predicated on a mistaken construction of the 2007 SIAC Rules’ (ie, that rule 24(b), as it then stood, allowed the joinder of consenting third parties to the arbitration against the wishes of the respondents, even where those third parties were not privy to the arbitration agreement). The Court of Appeal, therefore, found that the awards made by the tribunal in favour of the sixth to eighth claimants ‘suffer[ed] from a deficit in jurisdiction’ and refused to enforce those awards in Singapore pursuant to its discretion under section 19, IAA.

Groups of companies

Do courts and arbitral tribunals in your jurisdiction extend an arbitration agreement to non-signatory parent or subsidiary companies of a signatory company, provided that the non-signatory was somehow involved in the conclusion, performance or termination of the contract in dispute, under the ‘group of companies’ doctrine?

Courts have not accepted the group of companies doctrine. That said, non-signatories could be considered a party to the arbitration agreement through a piercing of the corporate veil, for example, based on the alter ego principle, fraud or abuse of the corporate vehicle. However, there does not appear to be any Singapore case law on these areas in an arbitration context. Further, in Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832, the Singapore High Court expressly rejected the single economic entity concept - see question 12.

Multiparty arbitration agreements

What are the requirements for a valid multiparty arbitration agreement?

There are no specific provisions or restrictions in the AA or IAA relating to multiparty arbitration agreements.

Consolidation

Can an arbitral tribunal in your jurisdiction consolidate separate arbitral proceedings? In which circumstances?

Section 26, AA provides that an arbitral tribunal has no power to order consolidation of arbitral proceedings or concurrent hearings unless the parties agree to confer such power on the arbitral tribunal. There is no similar provision in the IAA, although the position is presumed to be the same.

The parties may, however, themselves agree that the arbitral proceedings shall be consolidated with other arbitral proceedings; or that concurrent hearings shall be held on such terms as may be agreed. Under the SIAC Rules, Rule 8, a party may apply to the Registrar (prior to the constitution of the tribunal) or to the Tribunal to consolidate two or more arbitrations pending under the SIAC Rules into a single arbitration, provided that certain requirements are met:

  • all parties have agreed to the consolidation;
  • all the claims in the arbitrations are made under the same arbitration agreement, and the same tribunal (if any) has been constituted in each of the arbitrations or no tribunal has been constituted in the other arbitration(s); or
  • the arbitration agreements are compatible, the same tribunal (if any) has been constituted in each of the arbitrations or no tribunal has been constituted in the other arbitration(s), and:
    • the disputes arise out of the same legal relationship(s);
    • the disputes arise out of contracts consisting of a principal contract and its ancillary contract(s); or
    • the disputes arise out of the same transaction or series of transactions.

Constitution of arbitral tribunal

Eligibility of arbitrators

Are there any restrictions as to who may act as an arbitrator? Would any contractually stipulated requirement for arbitrators based on nationality, religion or gender be recognised by the courts in your jurisdiction?

There are no statutory restrictions on who may act as an arbitrator. The IAA and AA both provide that no person shall be precluded by reason of his or her nationality from acting as an arbitrator unless otherwise agreed by the parties (the Model Law, article 11(1), IAA, First Schedule and AA, section 13(1)). It is, however, not uncommon for parties to state specific requirements for their intended arbitrator, for example, a certain expertise or set of qualifications.

Background of arbitrators

Who regularly sit as arbitrators in your jurisdiction?

In commercial arbitrations seated in Singapore, lawyers most commonly comprise the majority - if not the entirety - of the tribunal. They are usually either full-time arbitrators (having retired from private practice or the judiciary) or lawyers in active professional practice in Singapore or international firms. Architects, engineers and accountants are also sometimes appointed to tribunals, with architects and engineers most commonly sitting in construction disputes.

On the issue of arbitrator diversity, in a press release dated 1 June 2017, the SIAC stated that it ‘aims to promote transparency and diversity of arbitrator appointments by nationality and gender’. In 2016, the SIAC appointed 341 arbitrators from 21 jurisdictions, of which 44 (12.9 per cent) were female. The SIAC hopes that its support of this initiative will result in objective, practical information becoming available to parties about arbitrators being considered for appointment’.

Default appointment of arbitrators

Failing prior agreement of the parties, what is the default mechanism for the appointment of arbitrators?

Where the parties cannot agree, the IAA and the SIAC Rules provide for the default appointment of a single arbitrator by the SIAC President as appointing authority (IAA, section 8(2), 8(3) and SIAC Rules, rule 10.2). Under the SIAC Rules, the default provision is for a single arbitrator, but the SIAC Registrar has discretion to appoint three arbitrators if the dispute warrants it (SIAC Rules, rule 9.1).

Section 9A(2) of the IAA and rule 11.3 of the SIAC Rules provide that where two of three arbitrators have been appointed by the parties, the third arbitrator shall be appointed by the SIAC President unless the parties have agreed upon a procedure for nominating the third arbitrator and if that procedure has resulted in a nomination.

Challenge and replacement of arbitrators

On what grounds and how can an arbitrator be challenged and replaced? Please discuss in particular the grounds for challenge and replacement, and the procedure, including challenge in court. Is there a tendency to apply or seek guidance from the IBA Guidelines on Conflicts of Interest in International Arbitration?

An arbitrator can be challenged where there are justifiable doubts as to the arbitrator’s impartiality or independence, or the arbitrator does not possess the qualifications agreed to by the parties (AA, section 14, the Model Law, article 12; IAA, First Schedule and SIAC Rules, rule 14.1). In the absence of any challenge procedure agreed by the parties, the procedure set out in the AA, the IAA or the agreed procedural rules, applies.

Bias can take three forms: actual, imputed or apparent (see PT Central Investindo v Franciscus Wongso and others and another matter [2014] SGHC 190). The Singapore High Court held that actual bias would obviously disqualify a person from sitting in judgment; imputed bias arises where a judge or arbitrator may be said to be acting in his or her own cause (nemo judex in sua causa) and this happens if he or she has, for instance, a pecuniary or proprietary interest in the case - in that situation, disqualification is ‘certain without the need to investigate whether there is likelihood or even suspicion of bias’; and finally, apparent bias, which was what the aggrieved party in that case accused the sole arbitrator of. The court held that the test for determining the bias of an arbitrator is whether a ‘reasonable and fair minded person with knowledge of all the relevant facts would entertain a reasonable suspicion’ that a fair hearing for the applicant was not possible. On the facts of the case, and applying the above ‘reasonable suspicion test’, the court held that the sole arbitrator was not guilty of apparent bias.

An arbitrator may also be replaced on his or her death or resignation, where the arbitrator is physically or mentally incapable of conducting the proceedings or where the arbitrator has failed to properly conduct the arbitration with reasonable despatch or in making the award or where substantial injustice has been or will be caused to a party.

Under the IAA, where the arbitrator is incapable of conducting the proceedings, or where the arbitrator has failed to act without undue delay, either party may apply to the Singapore High Court for his or her removal in the absence of voluntary resignation by the arbitrator or any agreement by the parties to terminate his or her mandate.

In international arbitrations in Singapore, counsel and arbitrators often refer to the IBA Guidelines on Conflicts of Interest in International Arbitration for guidance on arbitrator challenges even though these guidelines are not strictly binding.

Relationship between parties and arbitrators

What is the relationship between parties and arbitrators? Please elaborate on the contractual relationship between parties and arbitrators, neutrality of party-appointed arbitrators, remuneration and expenses of arbitrators.

The arbitrator must be independent of the parties to the arbitration. He or she must be impartial and should disclose any circumstance that gives rise to justifiable doubts as to his or her impartiality and independence. This obligation continues throughout the duration of the arbitration (Model Law, article 12; IAA, First Schedule, AA, section 14(1)).

The arbitrator should treat the parties with equality and allow each party a full opportunity to present its case (Model Law, article 18, IAA, First Schedule). In this context, ‘full opportunity’ means ‘reasonable opportunity’ (see ADG and another v ADI and another matter [2014] 3 SLR 481). In JVL Agro Industries Ltd v Agritrade International Pte Ltd [2016] 4 SLR 768), the Singapore High Court clarified that there are two aspects to a party’s reasonable opportunity to present its case: a positive and a responsive aspect. The positive aspect encompasses the opportunity to present the evidence and advance the propositions of law on which it positively relies to establish its claim or defence, as the case may be. The responsive aspect encompasses the opportunity to present the evidence and advance the propositions of law necessary to respond to the case made against it. The responsive aspect of presenting a party’s case has itself two subsidiary aspects to it. The first is having notice of the case to which one is expected to respond. The other is being permitted to actually present the evidence and advance the propositions of law necessary to respond to it. A tribunal will therefore deny a party a reasonable opportunity to respond to the case against it if it either: (i) requires the party to respond to an element of the opposing party’s case that has been advanced without reasonable prior notice; or (ii) unreasonably curtails a party’s attempt to present the evidence and advance the propositions of law that are reasonably necessary to respond to an element of the opposing party’s case. But there is a third situation in which a tribunal will deny a party a reasonable opportunity to present its responsive case: when the tribunal adopts a chain of reasoning in its award, which it has not given the complaining party a reasonable opportunity to address.

The parties are jointly and severally liable to pay the arbitrator’s fees and expenses, which are set forth by the arbitrator and subject to party agreement in ad hoc arbitrations. If the arbitration is administered by an arbitral institution, some form of scale fees will usually apply.

Duties of arbitrators

What are arbitrators’ duties of disclosure regarding impartiality and independence throughout the arbitral proceedings?

Disclosure of all circumstances likely to give rise to justifiable doubts as to an arbitrator’s impartiality or independence is required of arbitrators - see AA, section 14(1) and Model Law, article 12, IAA First Schedule as well as Rule 13.1 of the SIAC Rules read with Rules 2.1 and 2.2 of the SIAC Code of Ethics for an Arbitrator. The duty to disclose is ongoing; it runs from the time of the arbitrator’s appointment and continues throughout the arbitration proceedings - see AA, section 14(2) and Model Law, article 12(1), First Schedule, IAA as well as Rule 13.5 of the SIAC Rules.

Immunity of arbitrators from liability

To what extent are arbitrators immune from liability for their conduct in the course of the arbitration?

Arbitrators are immune against claims for negligence arising from acts or omissions done in the capacity of arbitrator and for any mistake in law, fact or procedure made in the course of the arbitral proceedings or in the making of an arbitral award (AA, section 20, and IAA, section 25). However, neither the AA nor IAA provide that arbitrators will be immune from liability for intentional breaches of duty or deliberate bad faith.

Jurisdiction and competence of arbitral tribunal

Court proceedings contrary to arbitration agreements

What is the procedure for disputes over jurisdiction if court proceedings are initiated despite an existing arbitration agreement, and what time limits exist for jurisdictional objections?

The aggrieved party may apply to the court for a stay of the court proceedings; it must not take a step in the proceedings within the meaning of section 6 of the AA, or IAA, such that it is disentitled from seeking a stay.

A stay of judicial proceedings is mandatory in an international arbitration (IAA, section 6 and Model Law, article 8) but discretionary in a domestic arbitration (AA, section 6). However, even in an application for a stay under section 6 of the AA, the burden is on the party who wishes to proceed in court to ‘show sufficient reason why the matter should not be referred to arbitration’. Assuming the applicant is ready and willing to arbitrate, the court will only refuse a stay in exceptional cases because of Singapore’s strong policy in favour of arbitration (see Maybank Kim Eng Securities Pte Ltd v Lim Keng Yong and another [2016] 3 SLR 431).

However, an application to the court for pre-action disclosure will not be stayed pursuant to section 6 of the AA, or IAA, as it would be premature - see Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25 (further details in question 32).

The Singapore Court of Appeal decision in Carona Holdings Pte Ltd v Go Delicacy Pte Ltd [2008] 4 SLR(R) 460, provides guidance as to what the parties should do: the aggrieved party should file a stay application within 14 days from the service of the statement of claim (ie, the 14 days being the time allowed for the filing of the aggrieved party’s defence under the Rules of Court) or within any extended time frame arising from a court order or the parties’ agreement. Once this occurs, the opposing party should not press ahead to seek a judgment in default of defence, pending the hearing of the application for a stay. The aggrieved party should not file a substantive defence as this would constitute a ‘step in the proceedings’ disentitling it from a stay. However, the filing and serving a notice to produce documents referred to in the statement of claim, pursuant to Order 24 Rule 10 of the Rules of Court, does not amount to a step in the proceedings - see Amoe Pte Ltd v Otto Marine Ltd [2014] 1 SLR 724.

In Oei Hong Leong v Goldman Sachs International [2014] 3 SLR 1217, the Singapore High Court had to consider whether to grant a stay under section 6 of the IAA where there was an arbitration clause in one contract between the parties and a (court) jurisdiction clause in another contract between them. The court held that it should ascertain which contract had the closer connection to the claims or which contract the claims arose out of, and in doing so, found that the parties’ dispute was more closely connected with the contract containing the arbitration clause; it thus granted the stay.

Parties should be extremely cautious in commencing, or proceeding with, court proceedings contrary to an arbitration agreement. In Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd (receiver and manager appointed) [2018] 2 SLR 1207, the Singapore Court of Appeal expressly stated that ‘it is strongly arguable that the commencement of court proceedings per se by a party who is subject to an arbitration agreement is prima facie repudiatory of such party’s obligations [to arbitrate] under that agreement’, and that this repudiation could be accepted by the other (innocent) party, thereby terminating the arbitration agreement.

Jurisdiction of arbitral tribunal

What is the procedure for disputes over jurisdiction of the arbitral tribunal once arbitral proceedings have been initiated, and what time limits exist for jurisdictional objections?

A plea that the arbitral tribunal does not have jurisdiction must be raised no later than the submission of the statement of defence.

The arbitral tribunal may, however, admit a later plea if it considers the delay justified (Model Law, article 16(2), IAA, First Schedule and AA, section 21(4)).

The arbitral tribunal has the power to determine its own jurisdiction based on the competence-competence principle, including issuing a ruling on whether an arbitration clause is valid (Model Law, article 16; IAA, First Schedule).

If a party is dissatisfied with the tribunal’s jurisdictional ruling (whether finding that it has jurisdiction or that it does not), it may appeal to the Singapore High Court within 30 days of receipt of the tribunal’s ruling (IAA, section 10 and AA, section 21(9), Model Law, article 16(3)). However, preliminary rulings on jurisdiction can only be challenged under article 16(3) of the Model Law if they do not touch on the merits of the case. In AQZ v ARA [2015] 2 SLR 972, the Singapore High Court held that relief under article 16(3) was not available if the tribunal’s ruling dealt in some way with the merits of the case, even though the ruling was predominantly on jurisdiction; in that case, the aggrieved party’s proper recourse would be to challenge the ruling under the relevant limbs of article 34(2) of the Model Law.

A party who is thereafter dissatisfied with the decision of the High Court on a challenge brought under IAA, section 10 and Model Law, article 16(3) may then appeal to the Court of Appeal, provided that leave to do so is obtained from the High Court (IAA, section 10(4); AA, section 21A(1)). If the court subsequently decides, upon an appeal from the tribunal’s decision, that the tribunal does have jurisdiction, the tribunal shall continue the arbitral proceedings and make an award. If, however, the tribunal is unable or unwilling to do so, its mandate shall terminate and a new tribunal will be appointed (IAA, section 21A).

That said, the Singapore Court of Appeal has made it clear that where a respondent has elected not to participate in an arbitration because he or she has a valid objection to the jurisdiction of the tribunal and has validly and timeously registered that objection, he or she is not compelled to apply to the Singapore courts under IAA, section 10 or Model Law, article 16(3) after the tribunal has found against the objection and held that it has jurisdiction. The respondent may instead reserve his or her position and after the issuance of the award against him or her, validly mount a challenge against the award under article 34(2)(a)(i) or article 34(2)(a)(iii) of the Model Law - see Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2019] 2 SLR 131.

Arbitral proceedings

Place and language of arbitration, and choice of law

Failing prior agreement of the parties, what is the default mechanism for the place of arbitration and the language of the arbitral proceedings? How is the substantive law of the dispute determined?

Neither the IAA nor the AA provides for a default mechanism for determining the place of arbitration or the language of the arbitral proceedings in the absence of the parties’ prior agreement. The procedural rules agreed to by the parties, however, often provide for such matters. In the absence of any other mechanism, the arbitral tribunal ultimately has the discretion to determine such matters.

As regards the substantive law of the dispute, see question 6.

Commencement of arbitration

How are arbitral proceedings initiated?

The IAA, which adopts the procedure set forth in the Model Law, provides that arbitration proceedings are commenced when a request to refer a dispute to arbitration is received by the respondent (Model Law, article 21). The AA also contains similar provisions.

Procedural rules usually specify what the request for arbitration (or notice of arbitration) should contain. As an example, the SIAC Rules require the claimant to file a notice of arbitration with the SIAC Registrar (SIAC Rules, rule 3.1). The notice of arbitration should comprise:

  • a demand that the dispute be referred to arbitration;
  • the names, addresses, telephone numbers, facsimile numbers and electronic mail addresses, if known, of the parties to the arbitration and their representatives, if any;
  • a reference to the arbitration clause or the separate arbitration agreement that is invoked and a copy of it;
  • a reference to the contract out of or in relation to which the dispute arises and, where possible, a copy of it;
  • a brief statement describing the nature and circumstances of the dispute, specifying the relief claimed and, where possible, an initial quantification of the claim amount;
  • a statement of any matters that the parties have previously agreed as to the conduct of the arbitration or with respect to which the claimant wishes to make a proposal;
  • a proposal for the number of arbitrators if this is not specified in the arbitration agreement;
  • unless the parties have agreed otherwise, the nomination of an arbitrator if the arbitration agreement provides for three arbitrators, or a proposal for a sole arbitrator if the arbitration agreement provides for a sole arbitrator;
  • any comment as to the applicable rules of law;
  • any comment as to the language of the arbitration; and
  • payment of the requisite filing fee.

The claimant shall also, at the same time, send a copy of the notice of arbitration to the respondent and it shall notify the SIAC Registrar that it has done so, specifying the mode of service employed and the date of service (SIAC Rules, rule 3.4).

Hearing

Is a hearing required and what rules apply?

Article 24(1) of the Model Law provides that an arbitral tribunal has discretion to decide whether to hold oral hearings, subject to the parties’ agreement. In practice, oral hearings are usually held unless the parties opt to proceed with the arbitration on a documents-only basis. The arbitration agreement between the parties and the procedural rules adopted thereunder may contain express provisions as to the need for an oral hearing.

The SIAC Rules provide that the tribunal shall, unless the parties have agreed on a documents-only arbitration, hold a hearing for the presentation of evidence or the oral submissions, or both, on the merits of the dispute, including, without limitation, any issue as to jurisdiction (SIAC Rules, rule 24.1). The tribunal may also direct the witnesses to give evidence by video conference.

Evidence

By what rules is the arbitral tribunal bound in establishing the facts of the case? What types of evidence are admitted and how is the taking of evidence conducted?

In a Singapore-seated arbitration, the tribunal is not bound to apply the Singapore law of evidence or rules of civil procedure. The tribunal has the power to determine the admissibility, relevance, materiality and weight of any evidence (Model Law, article 19, IAA, First Schedule; AA, section 23(3)). The SIAC Rules further provide that the tribunal is ‘not required to apply the rules of evidence of any applicable law’ (SIAC Rules, rule 19.2).

The tribunal has the power to order the discovery (disclosure) of documents and interrogatories, and the giving of evidence by affidavit from witnesses (IAA, section 12; AA, section 28(2)). Both the IAA and the AA provide that the arbitral tribunal has wide discretion to conduct the arbitration in such manner as it considers appropriate (Model Law, article 19(2), IAA, First Schedule and AA, section 23(2)). The IBA Rules on the Taking of Evidence in International Arbitration are frequently referred to.

In practice, evidence is frequently given in the form of witness statements (sometimes made on oath, depending on the procedure agreed by the parties), which are subsequently orally verified at the evidentiary hearing, followed by cross-examination and re-examination of the witness. Cross-examination is usually not limited to the scope of the witness statements, although the tribunal may exercise some control in preventing cross-examination from straying beyond the issues identified by the parties. Re-examination is permitted, but it is usually limited to matters raised in cross-examination. Re-cross-examination (permitted in some jurisdictions) is uncommon and does not usually occur. The tribunal may also adopt an inquisitorial process (IAA, section 12(3)). Witness conferencing (also called concurrent evidence or hot-tubbing) is becoming increasingly popular as an alternative to the traditional examination, cross-examination and re-examination approach stated above.

In addition, the tribunal may appoint one or more experts if necessary. It can also require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his or her inspection (Model Law, article 26, IAA, First Schedule and AA, section 27).

Officers or employees of the parties are not restricted from giving evidence in the arbitration. Such persons are in practice frequently called as witnesses.

Court involvement

In what instances can the arbitral tribunal request assistance from a court, and in what instances may courts intervene?

As opposed to the arbitral tribunal requesting assistance from the court to enforce its orders, the party in whose favour an order has been made may apply to the court to enforce that order. The effect of this is that subsequent non-compliance with that order would amount to contempt of court.

Orders made by an arbitral tribunal may be enforced by the Singapore High Court ‘as if they were orders made by the court’ (AA, section 28(4) and IAA, section 12(6)). Such orders may include an order granting security for costs, discovery of documents and interrogatories, taking evidence by way of affidavit or measures for the preservation of evidence (AA, section 28; and IAA, section 12).

The court may also grant interim relief in aid of arbitrations that are seated outside Singapore (IAA, section 12A).

The orders of an emergency arbitrator in Singapore may also be enforced in Singapore as though they were orders of an arbitral tribunal (IAA, section 12(6) read with section 2(1)).

The court will generally not interfere with the exercise of the tribunal’s discretion to make interlocutory orders. It the tribunal refuses to make such orders, the court will not compel the tribunal to make them. The court will also not set aside interlocutory orders made by a tribunal (see PT Pukuafu Indah and others v Newmont Indonesia Ltd and another [2012] 4 SLR 1157).

The court also has the power to issue subpoenas to witnesses within the jurisdiction to testify or produce documents at arbitral proceedings (AA, section 30 and IAA, section 13). It may also intervene on various grounds, such as deciding on a challenge as to the arbitrator’s impartiality, independence, hearing an appeal against a tribunal’s decision on its jurisdiction and setting aside the award (see questions 20, 25 and 46).

Confidentiality

Is confidentiality ensured?

Neither the AA nor the IAA impose a statutory duty of confidentiality on the parties or the arbitral tribunal. Singapore courts have, however, ruled that there is an implied duty on the parties and the arbitrator not to disclose confidential information obtained in arbitration proceedings or use them for any purpose other than the dispute in which they are obtained (Myanma Yaung Chi Oo Co Limited v Win Nu [2003] 2 SLR 547 at (15) and International Coal Pte Ltd v Kristle Trading Ltd & Anor [2009] 1 SLR (R) 945 at [82]). In that regard, a party may apply to the Singapore High Court to seal court documents in court proceedings to preserve the confidentiality of a related arbitration.

The implied duty of confidentiality is, however, not absolute; much turns on the specific facts of the case. For instance, confidentiality may be lifted by the express or implied consent of the parties where leave of court is obtained, disclosure is reasonably necessary for the protection of a party’s legitimate interests, disclosure is in the interests of justice or public interest so requires (see AAY v AAZ [2011] 1 SLR 1093 at [64]).

Interim measures and sanctioning powers

Interim measures by the courts

What interim measures may be ordered by courts before and after arbitration proceedings have been initiated?

Courts have the power to grant many of the types of relief available to the tribunal under the IAA and the AA, whether before or after arbitration proceedings have commenced, except for the granting of security for costs and the discovery of documents.

The Singapore High Court has confirmed that it has no power to grant an order for the discovery of documents prior to the commencement of the arbitration (see Equinox Offshore Accommodation Ltd v Richshore Marine Supplies Pte Ltd [2010] SGHC 122).

If, however, the potential claimant is still seeking to determine whether he or she has a cause of action, the court may, in appropriate cases, still be in a position to order pre-action discovery even where there is an arbitration clause in the contract between the parties (see Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25). The Singapore Court of Appeal, however, cautioned that where an arbitration clause is prima facie applicable, absent exceptional circumstances, a court will not grant pre-action discovery or pre-action interrogatories, especially where both the parties involved as well as the issues in dispute between them were one and the same, on the grounds of abuse of process.

Interim measures by an emergency arbitrator

Does your domestic arbitration law or do the rules of the domestic arbitration institutions mentioned above provide for an emergency arbitrator prior to the constitution of the arbitral tribunal?

Neither the IAA nor the AA specifically provide for the appointment of an emergency arbitrator; they do, however, include emergency arbitrators within the definition of ‘arbitral tribunal’, with the result that any orders by an emergency arbitrator in Singapore can be enforced by the Singapore High Court (IAA, section 2(1)).

The SIAC Rules provide that a party in need of emergency interim relief may apply for the appointment of an emergency arbitrator prior to the constitution of the arbitral tribunal (SIAC Rules, rule 30.2 and Schedule 1).

Interim measures by the arbitral tribunal

What interim measures may the arbitral tribunal order after it is constituted? In which instances can security for costs be ordered by an arbitral tribunal?

The tribunal has broad powers. For instance, it has the power to order a claimant to provide security for costs under section 12(1)(a) of the IAA, although that power is restricted by section 12(4), which provides that an order cannot be made only by reason of the fact that the claimant is an individual ordinarily residing outside Singapore or a corporation incorporated or controlled outside Singapore. Similar provisions are found in the AA (AA, section 28(2)).

Sanctioning powers of the arbitral tribunal

Pursuant to your domestic arbitration law or the rules of the domestic arbitration institutions mentioned above, is the arbitral tribunal competent to order sanctions against parties or their counsel who use ‘guerrilla tactics’ in arbitration? May counsel be subject to sanctions by the arbitral tribunal or domestic arbitral institutions?

There are no specific provisions in the IAA or the AA that allow the tribunal to issue sanctions against the parties or their counsel for such tactics. That said, a person may have recourse to a variety of provisions to provide some sanctions against a party adopting such tactics: for example, an appropriate order for costs (SIAC Rules, rule 35) or ordering some form of interim relief (IAA, section 12 and AA, section 28(2)). Where the guerrilla tactics amount to professional misconduct, an aggrieved party or the tribunal may consider making a professional complaint against the counsel in question to the Law Society of Singapore (if he or she is registered with the Singapore Legal Services Regulatory Authority). See also question 54.

Awards

Decisions by the arbitral tribunal

Failing party agreement, is it sufficient if decisions by the arbitral tribunal are made by a majority of all its members or is a unanimous vote required? What are the consequences for the award if an arbitrator dissents?

Where the tribunal consists of more than one arbitrator, any decision shall be made by a majority of all its members, unless otherwise agreed by the parties (Model Law, article 29, IAA, First Schedule). Questions of procedure, however, may be decided by the chair or presiding arbitrator, if he or she is so authorised by the parties or all members of the arbitral tribunal. The SIAC Rules also provide that if there is no majority decision, the presiding arbitrator alone shall make the award for the tribunal (SIAC Rules, rule 32.7).

Dissenting opinions

How does your domestic arbitration law deal with dissenting opinions?

There is no prohibition on dissenting opinions in either the IAA or the AA. Tribunal members who do not agree with the majority view in an award may therefore issue dissenting opinions.

Form and content requirements

What form and content requirements exist for an award?

The AA and IAA prescribe that the award must fulfil the following requirements (Model Law, article 31, IAA, First Schedule and AA, section 38):

  • be made in writing and signed by the arbitrators (in the case of two or more arbitrators, by all the arbitrators or the majority of the arbitrators provided that the reason for any omitted signature of any arbitrator is stated);
  • state the reasons for the award, unless the parties have agreed that no reasons are to be given or the award is one on agreed terms;
  • state the date of the award and the place of arbitration; and
  • a copy of the award shall be delivered to each party to the proceeding.
Time limit for award

Does the award have to be rendered within a certain time limit under your domestic arbitration law or under the rules of the domestic arbitration institutions mentioned above?

Although neither the IAA nor the AA prescribes a time limit within which an award should be rendered, a tribunal should conduct the arbitration ‘without undue delay’ (article 14, Model Law). Similar provisions can be found in the AA (section 16). There does not appear to be any Singapore case law defining what would amount to undue delay. In Coal & Oil Co LLC v GHCL [2015] 3 SLR 154, the Singapore High Court found that a 19-month delay in the release of the award did not violate any rule of natural justice. See question 46.

Under the SIAC Rules, there is a default requirement for a tribunal to submit its draft award to the registrar within 45 days of the date on which the tribunal declares the proceedings formally closed. This deadline may be extended at the registrar’s discretion or if the parties agree (SIAC Rules, rule 32.3).

If the expedited procedure under Rule 5.1 of the SIAC Rules is adopted, the tribunal must render its award six months from the date when the tribunal is constituted, unless the registrar extends that period owing to exceptional circumstances (SIAC Rules, rule 5.2).

Date of award

For what time limits is the date of the award decisive and for what time limits is the date of delivery of the award decisive?

The date of the award is relevant for enforcement purposes. An award must be enforced within six years (Limitation Act (Chapter 163), section 6(1)(c)). Further, under the Model Law, article 33, as enacted by the IAA:

  • if a party wishes to request a correction or interpretation of the award, it may do so within 30 days of the party’s receipt of the award;
  • if the tribunal wishes to make corrections to the award (on its own initiative), it may do so within 30 days of the date of the award; and
  • if a party wishes to challenge or set aside the award, the application must be made to the Singapore courts within three months from the date of the receipt of the award by the applicant (Model Law, article 34, IAA).

The AA has similar provisions (section 43). The tribunal may, under the AA, also issue interpretations (on its own initiative) within 30 days of the date of the award (section 43(3)).

Types of awards

What types of awards are possible and what types of relief may the arbitral tribunal grant?

The IAA defines an award as any decision of the arbitral tribunal on the substance of the dispute. This includes an interim, interlocutory or partial award, ‘but excludes any orders or directions made under section 12 (of the IAA)’ (IAA, section 2(1)). The purpose of this phrase is to distinguish an award from procedural orders. This is significant because an award may be challenged but a procedural order may not (see PT Pukuafu Indah v Newmont Indonesia Ltd [2012] 4 SLR 1157).

The terms ‘interim’, ‘interlocutory’ and ‘partial’ are not statutorily defined. In PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364, the Singapore Court of Appeal held that a partial award finally disposes of part, but not all, of the parties’ claim in an arbitration, leaving some claims for further consideration and resolution in future proceedings in the arbitration. An interim award decides a preliminary issue relevant to the disposing of a particular claim. In contrast, a provisional award is effectively an order or direction made under section 12 of the IAA. It is issued to preserve a factual or legal situation so as to safeguard rights that one party is attempting to have the arbitral tribunal recognise; it does not definitely or finally dispose of either a preliminary issue or a claim in arbitration. Therefore, although partial or interim awards qualify as an award under section 2 of the IAA (and can be set aside), a provisional award does not qualify under section 2 of the IAA and is not capable of being revoked.

If the dispute is settled, the parties can record the settlement and its terms by way of a consent award, that is, an arbitral award on agreed terms (Model Law, article 30, IAA, First Schedule and AA, section 37).

Termination of proceedings

By what other means than an award can proceedings be terminated?

Proceedings may terminate in one of several ways, for example:

  • by the final award;
  • by an order of the arbitral tribunal when the claimant withdraws his or her claim, or when the parties agree on the termination of the proceedings; or
  • if the tribunal finds that the continuation of proceedings becomes unnecessary or impossible (article 32, Model Law).

Arbitral proceedings shall also be terminated by the arbitral tribunal if the claimant fails to serve its statement of claim within the prescribed time limit, without showing sufficient cause (article 25, Model Law).

If the parties settle the dispute, the tribunal can issue a consent award on agreed terms to record the settlement and issue an order for termination of the arbitration by way of a procedural order (Model Law, article 32, IAA, First Schedule).

Cost allocation and recovery

How are the costs of the arbitral proceedings allocated in awards? What costs are recoverable?

A Singapore-seated arbitral tribunal has wide and general discretion to allocate and apportion costs in its awards, unless the parties have agreed otherwise.

The general rule, however, is that costs follow the event. This rule derives from court proceedings and means that the losing party will be ordered to bear the legal costs and arbitration costs incurred by the successful party, in full or in part. The paying party has the right to apply to the registrar of the SIAC for taxation (assessment) of the costs to be paid under an award, unless the award directs otherwise (section 21(1), IAA). A tribunal need not take Singapore civil procedure principles on the allocation of costs into account (see VV v VW [2008] 2 SLR 929).

The SIAC Rules provide that most forms of costs are recoverable, including the fees and expenses of the tribunal and the SIAC’s administration, as well as legal and expert fees and expenses (SIAC Rules, rules 35 to 37).

Interest

May interest be awarded for principal claims and for costs, and at what rate?

A Singapore-seated tribunal may award simple or compound interest on the whole or any part of sums awarded or costs awarded under an award for any period ending no later than the date of payment (IAA, sections 20 and 12(5)).

A sum directed to be paid under an award shall, unless the award otherwise directs, carry interest from the date of the award until date of payment and at the same rate as a judgment debt (IAA, section 20(3)).

The default rate for judgment debts in Singapore is at present 5.33 per cent per annum (Supreme Court Practice Directions, Part IX, paragraph 77).

Proceedings subsequent to issuance of award

Interpretation and correction of awards

Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?

Any request for a correction or interpretation of the award must be submitted within 30 days of the party’s receipt of the award (Model Law, article 33, IAA, First Schedule). Similar provisions exist in the AA (section 43). If the tribunal wishes to make corrections to the award (on its own initiative), it may do so within 30 days of the date of the award (Model Law, article 33, IAA, First Schedule and AA, section 43(3)).

Challenge of awards

How and on what grounds can awards be challenged and set aside?

An award is challenged by making an application to the Singapore High Court to set aside the award. The grounds for setting aside are found in article 34 of the Model Law, supplemented by two additional grounds set out in section 24 of the IAA.

Article 34 of the Model Law provides that the award may be set aside on the following grounds:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement was not valid;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the proceedings and was unable to present its case;
  • the award dealt with a dispute not falling within the terms of the arbitration agreement;
  • the tribunal was improperly constituted;
  • the subject matter of the arbitration was not capable of settlement by arbitration; or
  • the award was contrary to public policy.

Under section 24 of the IAA, the following are two further grounds for setting aside an award:

  • the making of the award was induced or affected by fraud or corruption; or
  • a breach of natural justice occurred in connection with the making of the award, by which the rights of a party were prejudiced.

Under the AA, unless the parties have agreed otherwise, a party may appeal against an award on a question of law arising out of an award (section 49). If the parties agree for any reason to dispense with the tribunal giving reasons for the award, that agreement should include a waiver of the right to appeal against the award on a question of law.

An award will not be set aside for breach of an agreed procedure if the non-observance is derived from the applicant’s own doing, or if the challenge to the award is against the arbitral tribunal’s procedural orders or directions that fall within the exclusive domain of the arbitral tribunal. See Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2014] SGHC 220.

In Coal & Oil Co LLC v GHCL [2015] 3 SLR 154, the Singapore High Court held that for an award to be set aside under article 34(2)(a)(iv) of the Model Law, the procedural breach complained of could not be of an arid, technical or trifling nature; rather, it had to be a material breach of procedure serious enough that it justified the exercise of the court’s discretion to set aside the award. This would often, though not invariably, require proof of actual prejudice. In that case, neither the tribunal’s failure to declare the proceedings closed nor the 19-month delay in the release of the award violated any rule of natural justice. Further, such complaints did not rise to the level of gravity that the notion of public policy contemplated. The court also observed that an accusation against a tribunal for committing a breach of natural justice was a serious matter; as such, courts take a serious view of such challenges, and this was the reason those that had succeeded were few and far between and limited only to egregious cases where the error was ‘clear on the face of the record’.

Further, in ASG v ASH [2016] 5 SLR 54, the Singapore High Court clarified that for an award to be set aside under article 34(2)(a)(ii) of the Model Law, the party alleging a breach of natural justice must demonstrate ‘a clear and virtually inescapable inference that the arbitrator did not apply his mind at all to [an important] aspect of that party’s submissions’ and that this set a ‘high bar’ for the party making the assertion of a breach of natural justice. It is only if the aggrieved party can show either that the tribunal might have realised the issue for determination but deliberately avoided grappling with it, or the tribunal entirely overlooked the issue in question, that a breach of natural justice can be established. There is a ‘crucial difference between a tribunal’s decision to reject an argument, whether explicitly or implicitly, and its failure even to consider that argument. There will be no breach of natural justice if the tribunal reaches its decision implicitly, or reaches the wrong decision, or in fact fails to understand the argument’.

In 2019, the Singapore Court of Appeal set aside an award rendered in a Permanent Court of Arbitration investor-state arbitration seated in Singapore for lack of jurisdiction under article 34(2)(a)(iii) of the Model Law, stating that it could also have done so under article 34(2)(a)(i) of the Model Law - see Swissbourgh Diamond Mines (Pty) Ltd v Kingdom of Lesotho [2019] 1 SLR 263. In that case, the court held that where an investor purports to accept a state’s offer to arbitrate certain disputes under an investment treaty, but the dispute falls outside the scope of the offer as stated in the treaty, there would be a lack of jurisdiction, and the Singapore courts (as the supervisory courts at the seat) would have jurisdiction to set aside the award.

Levels of appeal

How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?

The application to challenge an award is made in the first instance to the Singapore High Court by way of an application to set aside the award. The application must be made within three months of the date of receipt of the award. If the application fails, a party, with leave of the High Court, may pursue an appeal to the Singapore Court of Appeal. Given that applications to set aside awards are court proceedings, the general rule that costs follow the event applies (see question 43). In practice, a challenge is usually decided within three to six months of the application being filed in court.

Recognition and enforcement

What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?

Awards made in Singapore as well as awards made in countries that are parties to the New York Convention may be recognised and enforced in Singapore by application to the Singapore High Court.

Singapore courts have developed a pro-arbitration reputation and generally favour the recognition and enforcement of awards, unless there are solid grounds upon which enforcement should be refused. In that regard, the Singapore Court of Appeal has, in at least two cases, seen fit to allow a party’s challenge to a tribunal’s finding that it had jurisdiction and also allow a party’s application to resist enforcement of multiple awards made in another SIAC arbitration (see International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2014] 1 SLR 130 and PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372).

The Singapore High Court in Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832, opined, rejecting the single economic entity concept, that it would not grant enforcement of arbitral awards against a non-party to the arbitration agreement (who was also a non-party to the arbitration reference). See question 12.

The Singapore Court of Appeal has upheld the enforceability of an interim award in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364.

Time limits for enforcement of arbitral awards

Is there a limitation period for the enforcement of arbitral awards?

Yes. A party seeking to enforce an arbitral award in Singapore, must do so within six years from the date that the award was issued (Limitation Act (Cap 163), section 6(1)(c)).

Enforcement of foreign awards

What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?

Singapore courts are unlikely to recognise the enforcement of foreign awards that have been set aside at the place of arbitration. See, for example, the Patron’s speech of Singapore Chief Justice Sundaresh Menon at the Chartered Institute of Arbitrators London Centenary Conference on 2 July 2015 in which he stated the traditional view as being that ‘an award which is set aside at the seat of arbitration has no legal existence or effect because the force of an award comes from the law of the seat, ex nihilo nihil fit’.

This is one of the grounds upon which recognition and enforcement may be refused under the New York Convention, namely, that the award ‘has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made’ (article V(1)(e)).

Enforcement of orders by emergency arbitrators

Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?

Such provisions exist in Singaporean arbitration legislation. An emergency arbitrator (appointed pursuant to the rules of arbitration agreed to by the parties) falls within the definition of an arbitral tribunal (see AA, section 2 and IAA, section 2). As such, in Singapore, orders and directions made by emergency arbitrators have the same standing as orders and directions made by actual tribunals and may, by leave of the High Court or a judge thereof, be enforceable in the same manner as if they were orders made by a court, and where leave is so given, judgment may be entered in terms of the order or direction (see AA, section 28(4) and IAA, section 12(6)).

Cost of enforcement

What costs are incurred in enforcing awards?

Court fees and legal fees will be incurred in the enforcement of awards.

Other

Influence of legal traditions on arbitrators

What dominant features of your judicial system might exert an influence on an arbitrator from your jurisdiction?

Singapore arbitration is influenced by Singapore law and legal tradition. By reason of the close links between Singapore and English law, examples of case law from England and other British Commonwealth jurisdictions, though not binding, are generally regarded as being persuasive in Singapore courts, provided that they are not inconsistent with Singapore statutes or case law. The higher the level of court the English or Commonwealth decision derives from, the greater its persuasive power before Singapore courts. Singapore civil procedure also derives from English civil procedure prior to its reforms in 2000.

A Singaporean arbitrator can therefore be expected to be familiar with English law principles and civil procedure. Many Singaporean arbitrators have also obtained varying degrees of exposure to the legal systems of other countries (including civil law jurisdictions) and are therefore able to adapt to the needs, expectations and nuances of the parties appearing before them.

Professional or ethical rules

Are specific professional or ethical rules applicable to counsel and arbitrators in international arbitration in your jurisdiction? Does best practice in your jurisdiction reflect (or contradict) the IBA Guidelines on Party Representation in International Arbitration?

Counsel who are registered with the Singapore Legal Services Regulatory Authority are regulated by the Singapore Legal Profession Act and the rules made under it, in particular, the Legal Profession (Professional Conduct) Rules 2015, as well as the Law Society of Singapore’s Practice Directions. On 18 November 2015, the legal professional disciplinary framework in Singapore was extended to include all foreign-qualified lawyers registered to practise in Singapore law practices; a common set of professional conduct rules now applies to registered Singapore-qualified and foreign-qualified lawyers. Counsel who are admitted to practise law in jurisdictions outside Singapore are also subject to the legal and ethical standards applicable to their specific jurisdictions. As a matter of best practice, arbitration counsel also generally have regard to, and comply with, the IBA Guidelines on Party Representation in International Arbitration.

There are no national professional or ethical rules applicable to arbitrators in international arbitrations seated in Singapore. That said, arbitrators will have to abide by the professional and ethical standards set by institutes of which they are members, such as the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members. Arbitrators in SIAC arbitrations will also be bound by the SIAC Code of Ethics for an Arbitrator.

Third-party funding

Is third-party funding of arbitral claims in your jurisdiction subject to regulatory restrictions?

Third-party funding for arbitral claims is regulated by the Civil Law (Amendment) Act and Civil Law (Third Party Funding) Regulations, which came into force in March 2017.

These enactments:

  • clarify that the common law torts of champerty and maintenance are abolished in Singapore;
  • provide that, in certain prescribed categories of dispute resolution proceedings (as set out in the Civil Law (Third Party Funding) Regulations), third-party funding contracts are not contrary to public policy or illegal;
  • provide for conditions to be imposed on funders through subsidiary legislation; and
  • provide that lawyers may recommend third-party funders to their clients or advise their clients on third-party funding contracts so long as they do not receive any direct financial benefit from the recommendation or facilitation.

Funding may only be provided by an entity that meets the criteria for a qualifying third-party funder. Also, related amendments to the Legal Profession (Professional Conduct) Rules 2015 - see Rules 49A and 49B - have been made. Legal practitioners are under a duty to disclose the existence of a third-party funding contract and the identity of the third-party funder to the court or tribunal, and to every other party to the proceedings, as soon as is practicable. Legal practitioners and law practices are also prohibited from having interests in relevant third-party funders and from receiving referral fees and commissions.

Regulation of activities

What particularities exist in your jurisdiction that a foreign practitioner should be aware of?

A person does not need to be admitted to legal practice in Singapore to represent a party or to sit as an arbitrator in an arbitration in Singapore. For this purpose, foreign arbitrators and counsel may obtain a short-term visit pass to Singapore (see the Singapore Ministry of Manpower’s website, www.mom.gov.sg, for more details).

Business-visit visas are required for foreign nationals holding travel documents issued by certain countries including China, but not Australia, the United Kingdom, the United States or most EU countries.

Update and trends

Legislative reform and investment treaty arbitration

Are there any emerging trends or hot topics in arbitration in your country? Is the arbitration law of your jurisdiction currently the subject of legislative reform? Are the rules of the domestic arbitration institutions mentioned above currently being revised? Have any bilateral investment treaties recently been terminated? If so, which ones? Is there any intention to terminate any of these bilateral investment treaties? If so, which ones? What are the main recent decisions in the field of international investment arbitration to which your country was a party? Are there any pending investment arbitration cases in which the country you are reporting about is a party?

Legislative reform and investment treaty arbitration57 Are there any emerging trends or hot topics in arbitration in your country? Is the arbitration law of your jurisdiction currently the subject of legislative reform? Are the rules of the domestic arbitration institutions mentioned above currently being revised? Have any bilateral investment treaties recently been terminated? If so, which ones? Is there any intention to terminate any of these bilateral investment treaties? If so, which ones? What are the main recent decisions in the field of international investment arbitration to which your country was a party? Are there any pending investment arbitration cases in which the country you are reporting about is a party?

In June 2019, the Ministry of Law published a consultation paper seeking comments from the public on various proposals to amend the IAA. The proposed amendments include provisions:

  • specifying a default procedure to nominate arbitrators in multi-party arbitrations;
  • enabling the parties to require that a tribunal decide on its jurisdiction at the preliminary stage;
  • recognising the tribunal’s and High Court’s power to enforce confidentiality obligations;
  • enabling the parties to lodge appeals to the Singapore High Court to determine narrow questions of law arising out of an award, provided that leave of court is obtained. (Such leave will only be granted where the appeal raises a question of ‘general public importance and the decision of the arbitral tribunal is at least open to serious doubt’, or where the tribunal’s decision was ‘obviously wrong’.)
  • enabling the parties to exclude or limit the grounds for setting aside under the Model Law and IAA; and
  • empowering the Court to order the payment of costs following the setting-aside of an award.

For now, these proposals are still far from being adopted. The Singapore arbitration community is monitoring their progress with great interest.