The General Division of the High Court in CXG v CXI [2023] SGHC 244 held that a Singapore court who possesses the jurisdiction to hear an application to enforce a tribunal-ordered interim measure in a Singapore-seated international arbitration (“domestic interim measure“) should not be prevented from exercising that jurisdiction on grounds of forum non conveniens (“FNC“).

Factual Background

In CXG v CXI [2023] SGHC 244, the claimants had applied to the court (the “Leave Application“) for permssion to enter judgment in respect of a tribunal’s interim order (the “Interim Order“). The defendants applied to stay the Leave Application on the ground that it was not appropriate for the Singapore court to exercise jurisdiction to hear it as Singapore was not the proper forum (the “Stay Applications“). The decision of the General Division of the High Court (“High Court“) itself related to the Stay Applications as the Leave Application was not before the High Court.

The defendants argued that Malaysia was the more appropriate forum for the enforcement of the Interim Order. The defendants further argued that FNC considerations were relevant to the High Court’s determination as to whether the Singapore court should decline to enforce a domestic interim measure because, among other things:

  • Article 6 of the Model Law exclusively provided for the powers of the supervisory court, and Article 6 did not include the enforcement of a domestic interim measure. Accordingly, the enforcement of a domestic interim measure was not a power exclusive to the seat court and therefore, Singapore being the seat court did not mean that the Singapore court is the appropriate enforcement court.
  • Article 17I of the Model Law with amendments as adopted in 2006 (“2006 Model Law“) provided that the court could refuse to enforce an interim measure in certain circumstances.

The High Court dismissed the Stay Application because, among other things:

  • The scope of the seat court’s jurisdiction was not founded on Article 6 of the Model Law, which was meant to allow the legislature of a State to designate the relevant court which would perform the functions referred to in the specified articles.
  • Article 17I of the 2006 Model Law was not applicable. Apart from not being part of Singapore law, it does not provide for the refusal of enforcement, much less to decline the exercise of jurisdiction over an application to enforce, on FNC principles.
  • Where the enforcement of domestic interim measures is concerned, the court is not concerned with adjudicating the substantive merits of the dispute or the interim measure itself. The court is accordingly not concerned with the typical connecting factors which a particular forum has to the dispute i.e. FNC considerations.
  • The application of FNC principles would undermine party autonomy and the expectation of parties, insofar as parties choose the seat of the arbitration based on considerations that may have little connection with the parties, such as the parties’ confidence in the legal infrastructure of the seat, the national curial law and willingness of the courts to support and facilitate the arbitration, or the neutrality of the seat.
  • There may be legitimate and practical benefits for seeking enforcement at the seat (e.g. the seat jurisdiction’s approach towards enforcing awards), regardless of considerations such as the ease of enforcement at the seat jurisdiction.

Whereas Parliament had prescribed grounds under the International Arbitration Act 1994 where the court could refuse enforcement of a foreign award, Parliament did not prescribe any grounds to refuse the enforcement of domestic interim measures. Logically, therefore, Parliament could not have intended that the court’s discretion to refuse enforcement of a domestic interim measure would be wider than that for a foreign interim measure.

Key takeaways from the decision

Enforcement of domestic interim measures does not depend on the existence of a more appropriate forum for enforcement

  • The FNCanalysis is relevant when a court must decide whether to order a stay of court proceedings in favour of some other available and appropriate forum for the trial of the action.
  • In contrast, where the court is deciding if it should enforce a domestic interim measure, the court is not concerned if there is some other forum where enforcement is more appropriate or more effective. Enforcement applications can be brought in multiple jurisdictions, and merely because enforcement may be sought in one jurisdiction does not make enforcement in another jurisdiction inappropriate.

Party autonomy and certainty remains paramount

  • When parties designate the seat of arbitration in their arbitration agreement, they may take into account a myriad of factors. This may include the fact that the seat of arbitration is the most neutral forum to the dispute, or that the parties have confidence in the legal infrastructure available in the seat.
  • Where parties choose Singapore as the seat, the Singapore court gives effect to party autonomy and the parties’ desire for certainty by refusing to allow its discretion to enforce domestic interim measures to be restricted by considerations that may be outside the parties’ control, such as the location of the evidence and witnesses and where the relevant events and transactions took place, that may be relevant to an FNC analysis.

Conclusion

The parties’ choice of the seat of arbitration has always been of utmost importance, given that the law of the seat is relevant to, among other things, the court’s supervisory jurisdiction and the scope of challenges to the award itself.

This latest decision underscores that the choice of seat also has important implications for the enforcement of domestic interim measures in Singapore. Where the arbitration is seated in Singapore and interim orders are issued by the tribunal, the Singapore courts are likely to give effect to the parties’ choice of seat and will not be swayed by arguments as to whether enforcement in another forum is more appropriate than in Singapore, as the defendants had tried to argue in this case.