Documente Academic
Documente Profesional
Documente Cultură
N.B. The following statutory provisions (“the Act”) are all from the Arbitration Act 2001
unless otherwise specifically stated.
- As stated in the Law Commission’s Final Report on The Review of Arbitration Laws:
- The Arbitration Act 2001 provides for new domestic arbitration laws to be more in
line with the UNCITRAL Model Law, and has adopted many useful features from the
UK Arbitration Act 1996, which was itself enacted to be in line with the UNCITRAL
Model Law.
- Thus need to refer to both of these statutes to understand our Act better.
- With regard to application and appeals to the HC, the relevant provisions are
contained in O 69 ROC
- New order 69 nec in 2002 to make it consistent with provn of new act, some
amendments since made to O69 in 3005 wrt mode of commencement of proceedings
- Most matters regd arbitration to be heard by judge in open court though application
can be made under O69 r3g to hear matters other than in open court as allowed under
s56 arbitration act
- Although may not be cheaper, it is meant to be faster than usual litigation. And is also
less formal. Privacy can be observed and unnecessary publicity can be avoided.
- Arbitrators may also mediate.
- Less formality and more privacy –
- Unlike a court there is no need to rush there at 10 am, and no need to get scolded by
judge. Arbitrator cannot yell or will be seen to be biased.
- Arbitration comes under ADR, and in the last few years arbitrations have been
eclipsed by mediations – and a hybrid has also emerged Med-Arb.
Definition of “arbitration”
Application of Part II
5. —(1) This Part and the Model Law shall not apply to an arbitration which is not an
international arbitration unless the parties agree in writing that this Part or the Model Law
shall apply to that arbitration.
(2) Notwithstanding Article 1 (3) of the Model Law, an arbitration is international if —
(a) at least one of the parties to an arbitration agreement, at the time of the conclusion of
the agreement, has its place of business in any State other than Singapore; or
(b) one of the following places is situated outside the State in which the parties have their
places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is
to be performed or the place with which the subject-matter of the dispute is most closely
connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration agreement
relates to more than one country.
(3) For the purposes of subsection (2) —
(a) if a party has more than one place of business, the place of business shall be that
which has the closest relationship to the arbitration agreement;
(b) if a party does not have a place of business, a reference to his place of business shall
be construed as a reference to his habitual residence.
(4) Notwithstanding any provision to the contrary in the Arbitration Act (Cap. 10), that
Act shall not apply to any arbitration to which this Part applies.
Juridical Seat
- Juridical Seat = ‘the place of the arbitration’. This concept determines the rules of
procedure applicable to an arbitration, and basically refers to the domicile or juridical
capital of the arbitration.
- It is something like the nationality of the arbitration, and is more relevant for
international arbitrations.
- A domestic arbitration cannot be made subject to a foreign law.
- One of the new concepts expressly enacted into the new Act is the concept of a
‘juridical seat’ as “the place of arbitration” in s 2 AA.
- It fills in a lacuna which existed under the previous Act.
- This concept would determine the rules of procedure applicable to an
arbitration.
- The ‘juridical seat’ is a specific reference to the domicile or juridical
capital of the arbitration – like the nationality of the arbitration, and the
place where the arbitration draws its legal legitimacy.
- It is to be distinguished from the place where the hearing is merely held.
- s 2: “the place of arbitration” means the juridical seat of arbitration designated by:
- The parties to the arbitration agreement
- Any arbitral or other institution or person authorised by the parties for that
purpose, or
- The arbitral tribunal as authorised by the parties, or
- determined in the absence of such designation, having regard to the
arbitration agreement and all the relevant circumstances.
Definition of “agreement”
Arbitration agreement
4. —(1) In this Act, “arbitration agreement” means an agreement by the parties to
submit to arbitration all or certain disputes which have arisen or which may arise between
them whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or
in the form of a separate agreement.
(3) An arbitration agreement shall, except as provided for in subsection (4), be in
writing, being contained in —
(a) a document signed by the parties; or
(b) an exchange of letters, telex, telefacsimile or other means of communication which
provide a record of the agreement.
(4) Where in any arbitral or legal proceedings, a party asserts the existence of an
arbitration agreement in a pleading, statement of case or any other document in
circumstances in which the assertion calls for a reply and the assertion is not denied, there
shall be deemed to be an effective arbitration agreement as between the parties to the
proceedings.
(5) A reference in a bill of lading to a charterparty or other document containing an
arbitration clause shall constitute an arbitration agreement if the reference is such as to
make that clause part of the bill of lading.
- An arbitration clause in ordinary terms is usually, and has been held to be, a self
-contained contract collateral to the containing contract. As with any other contract, it
must be construed according to its terms in and with regard to the relevant factual
situation.
o (as per C.A. Ralph Gibson in Harbour Assurance v Kansa Gen Ins)
Some arbitration clauses may be simple, but others, such as in building contracts,
could be quite detailed and complex. Some arbitration clauses may incorporate what
is known as the “Scott v Avery [1856] clause”. It will provide that arbitration is a
condition precedent to the commencement of any action in law, and that the
obligation shall be to pay a sum as may be awarded upon arbitration pursuant to this
clause.
- By virtue of this clause a Court cannot order a stay of proceedings.
- However, the Court (High Court) has power to revoke the authority of
arbitrators who are impartial. In so doing the Court is entitled to order that
the arbitration clause shall cease to have effect with respect to that
particular dispute. Thus, in such a case, the court can order that the Scott v
Avery clause ceases to be effective.
A further development of the Scott v Avery clause is the Atlantic Shipping clause
[Atlantic Shipping v Dreyfus [1992]].
- This clause limits the time for making the claim and the appointment of
the arbitrator.
- Beyond such specified period any claim not so made will be deemed to be
waived and absolutely barred. However, under Section 10 of the new
Arbitration Act, the court has the power to extend the time given, even if it
has already expired, if the court is of the opinion that undue hardship
would be caused.
Section 5 of the new Act lays down the principle that an arbitration agreement is not
to be discharged by the death of a party.
Depending on the subject matter of the dispute, you may wish to get people skilled
with expertise in the area e.g. a master mariner for maritime arbitrations, an architect
or quantity surveyor for construction disputes. Some lawyers may generally be good
all around and in more formal arbitrations that would involve difficult points of law,
lawyer arbitrators actually may be preferred. Even then the parties may wish a lawyer
and a non-lawyer to be arbitrators.
Having a single arbitrator is cheaper on the pocket.
May want to give a choice of a few arbitrators so that the other party can choose
accordingly.
Number of arbitrators
12. —(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, there shall be a single arbitrator.
As under the Schedule 1 of the previous Act, the parties are free to determine the no.
of arbitrators to be appointed: s 12(1) new AA, failing which there shall be a single
arbitrator: s 12(2).
This however differs from the position under the Model Law, which states:
- “Article 10. Number of arbitrators
- The parties are free to determine the number of arbitrators.
- Failing such determination, the number of arbitrators shall be
three.”
Special qualifications/disqualifications
See:
- “commercial men” – Palmco Shipping v Continental Ore Corp, “The
Captain George K” [1970] 2 Llyods Rep 21, retired solicitor practicing as
maritime arbitrator accepted as “commercial man”.
- “shipping man” – Owners of The Myron v Tradax Export SA [1970] 1
QB 527 where a full time maritime arbitrator was held to be a “shipping
man”.
- However, following Art 11 Model Law, s 13(1) states that no person shall be
precluded from being arbitrator by reason of his nationality.
o this is odd in a domestic AA and has been excluded in the Eng AA.
- If the parties cannot agree on the procedure for appointing arbitrator(s) as allowed
under s 13(2), the appointing authority will appoint the arbitrator: s 13(3)(b) and s
13(4).
- The new Act thus differs from the previous act in that an ‘appointing authority’ in the
form of the Chairman of the SIAC, has been introduced: s 13(8).
- The SIAC is actively involved in both domestic and international arbitrations and
looks forward to being a paramount body overseeing arbitration in Singapore
- Through its regular contact with arbitrators and administration of arbitration cases,
the SIAC is well informed about the capabilities of potential appointees to make
appropriate decisions in appointment matters.
- The CJ may also appoint any other person to exercise the powers of the appointing
authority by notification in the Gazette: s 13(9).
Appointment of arbitrators
13. —(1) Unless otherwise agreed by the parties, no person shall be precluded by
reason of his nationality from acting as an arbitrator.
(2) The parties are free to agree on a procedure for appointing the arbitrator or
arbitrators.
(3) Where the parties fail to agree on a procedure for appointing the arbitrator or
arbitrators —
(a) in an arbitration with 3 arbitrators, each party shall appoint one arbitrator,
and the parties shall by agreement appoint the third arbitrator; or
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the
arbitrator, the arbitrator shall be appointed, upon the request of a party, by the
appointing authority.
(4) Where subsection (3) (a) applies —
(a) if a party fails to appoint an arbitrator within 30 days of receipt of a first request to
do so from the other party; or
(b) if the 2 parties fail to agree on the appointment of the third arbitrator within 30 days
of the receipt of the first request by either party to do so,
the appointment shall be made, upon the request of a party, by the appointing authority.
(6) Where a party makes a request or makes an application to the appointing authority
under subsection (3), (4) or (5), the appointing authority shall, in appointing an
arbitrator, have regard to the following:
(a) the nature of the subject-matter of the arbitration;
(b) the availability of any arbitrator;
(c) the identities of the parties to the arbitration;
(d) any suggestion made by any of the parties regarding the appointment of any
arbitrator;
(e) any qualifications required of the arbitrator by the arbitration agreement; and
(f) such considerations as are likely to secure the appointment of an independent and
impartial arbitrator.
The grounds in challenge and the challenge procedure of arbitrators who are
appointed are laid down Sections 14 & 15 of the new Act.
Challenge procedure
15. —(1) Subject to subsection (3), the parties are free to agree on a procedure for
challenging an arbitrator.
(2) If the parties have not agreed on a procedure for challenge, a party who intends to
challenge an arbitrator shall —
(a) within 15 days after becoming aware of the constitution of the arbitral tribunal; or
(b) after becoming aware of any circumstance referred to in section 14 (3),
send a written statement of the grounds for the challenge to the arbitral tribunal.
(3) The arbitral tribunal shall, unless the challenged arbitrator withdraws from his
office or the other party agrees to the challenge, decide on the challenge.
(4) If a challenge before the arbitral tribunal is unsuccessful, the aggrieved party may,
within 30 days after receiving notice of the decision rejecting the challenge, apply to
the Court to decide on the challenge and the Court may make such order as it thinks
fit.
(5) No appeal shall lie against the decision of the Court under subsection (4).
(6) While an application to the Court under subsection (4) is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitration proceedings
and make an award.
Rules of nat justice preserved as arbitrator concerned can appear and be heard by
court
- But no appeal fr order of court
1
In AT & T Corp v Saudi Cable Co [2000] 1 LLR 22 – Chairman of tribunal was non-executive director of
Northern Telecoms, a competitor of AT & T in the bid for contract with Saudi Cable. Award was made
against AT & T who then applied to remove him and set aside award on the ground of bias. Application
failed as they was no danger of “unconscious bias”. Court applied “real likelihood (in the sense of real
danger) of bias test.
Decision by panel of arbitrators
19. —(1) In arbitration proceedings with more than one arbitrator, any decision of the
arbitral tribunal shall be made, unless otherwise agreed by the parties, by all or a
majority of all its members.
(2) Any question of procedure may be decided by a presiding arbitrator if so
authorised by the parties or all members of the arbitral tribunal.
Under Section 20, it is now clear that the arbitrators now enjoy immunity from their
acts as arbitrator, or in arbitration proceedings or in making an arbitral award. This
makes the law in pari materia with Section 25 of the IAA (the wording of Section 20
Arbitration Act and Section 25 IAA is exactly the same).
Liability of arbitrator
20. An arbitrator shall not be liable for —
(a) negligence in respect of anything done or omitted to be done in the capacity of the
arbitrator; or
(b) any mistake of law, fact or procedure made in the course of arbitration proceedings
or in the making of an arbitral award.
- There has also been a tendency to use arbitration as a means to settlement. Thus, even
after reference to arbitration proceedings and sometimes even on the morning of the
arbitration, the parties may come to a settlement. The arbitrator may have done some
getting up on the pleadings and the bundles of documents would have been
exchanged at the time. Some arbitrators therefore feel that in such cases preliminary
“getting-up” fees is fair and reasonable.
- Arbitrators can also charge for any work done before the matter actually goes to
arbitration – preliminary “getting up” fees
K/S Norjarl A/J v Hyundai Heavy Industries Co Ltd (1991)
The arbitrators asked for a proportion of their fees in advance as security for
loss of remuneration should the dispute be resolved prior to the hearing.
Hyundai alleged that this amounted to technical misconduct
Held: (CA) There was no misconduct. The arbitrators were entitled to
reasonable remuneration for work done
The CA remarked that if however the arbitrators wished to insist on a
commitment fee, the proper time to do so was before the appointment was
accepted
Sections 39, 40, 41 and 42 governs the costs of the arbitration and arbitrator’s fees.
As in litigation, under Section 39(1), costs can be taxed or agreed. It is apparently
regarded as being against public policy to agree in an arbitration agreement that each
party will only bear their own costs for disputes going to arbitration. It is however
possible to so agree if the dispute had arisen before the Agreement was made.
Costs of arbitration
39. —(1) Any costs directed by an award to be paid shall, unless the award otherwise
directs, be taxed by the Registrar of the Supreme Court within the meaning of the
Supreme Court of Judicature Act (Cap. 322).
(2) Subject to subsection (3), any provision in an arbitration agreement to the effect
that the parties or any party shall in any event pay their or his own costs of the
reference or award or any part thereof shall be void; and this Act shall, in the case of an
arbitration agreement containing any such provision, have effect as if there were no
such provision.
(3) Subsection (2) shall not apply where a provision in an arbitration agreement to the
effect that the parties or any party shall in any event pay their or his own costs is part of
an agreement to submit to arbitration a dispute which has arisen before the making of
such agreement.
(4) If no provision is made by an award with respect to the costs of the reference, any
party to the reference may, within 14 days of the delivery of the award or such further
time as the arbitral tribunal may allow, apply to the arbitral tribunal for an order
directing by and to whom such costs shall be paid.
(5) The arbitral tribunal shall, after giving the parties a reasonable opportunity to be
heard, amend its award by adding thereto such directions as it thinks fit with respect to
the payment of the costs of the reference.
Under Section 40, parties are jointly and severally liable to their arbitrators for their
fees. It does not matter who had nominated the arbitrator or appointed the arbitrator.
Such fees can be taxed in the Supreme Court. However, fees may have been fixed by
agreement or by some institution agreed by the parties (e.g. SIAC). There will be no
taxation in such cases.
Fees of arbitrator
40. —(1) The parties are jointly and severally liable to pay to the arbitrators such
reasonable fees and expenses as are appropriate in the circumstances.
(2) Unless the fees of the arbitral tribunal have been fixed by written agreement or
such agreement has provided for determination of the fees by a person or institution
agreed to by the parties, any party to the arbitration may require that such fees be taxed
by the Registrar of the Supreme Court within the meaning of the Supreme Court of
Judicature Act (Cap. 322).
Under Section 41, the arbitral tribunal may refuse to deliver an award if the expenses
and fees of arbitrators have not been fully paid. However, their claims may be taxed
by the Court, if an application is made. The Court may order the disputed amount (or
lesser sum) to be paid into Court pending taxation. After taxation, any balance sum
will be paid back to the applicant.
Under Section 42, Section 117 of the Legal Profession Act (allowing charge for
payment of solicitors’ costs) is applicable to arbitration proceedings.
It should be known from the outset that costs can be very high and even prohibitive.
This would be true where small sums are involved and lawyers are engaged. The total
costs may exceed the amount in dispute.
Costs of the award would include the arbitrator’s fees (may be 2 or more of them),
costs of the hearing room, cost of secretarial services and transcripts, costs for writing
the award, and other expenses. A lump sum is usually negotiated which may be
expensive (e.g. $10,000 for a small award of less than 10 pages).
Costs of the arbitration would include the usual party & party costs that one has to
pay in litigation. In an arbitration involving more than two weeks, a figure of
$100,000 or more would not be unusual. Such costs are (as in litigation) in the
discretion of the arbitrator.
There is a tendency to make what is called a “sealed offer”. I.e. a sum is offered in
settlement and made known to the other party but not to the arbitrator. The arbitrator
will be given a sealed envelope at the end of the hearing.
The effect of a sealed offer is similar to that of depositing money in Court. The party
refusing such an offer would have to bear the costs from the date of such refusal, if
the Arbitrator awards a sum less than contained in the offer.
Although costs are in the discretion of the arbitrator, many arbitrators hear the parties
on costs after an award is given. Most arbitrators would follow the general rule
(where there are no sealed offers) that costs follow the event.
There is a tendency to argue that the party in whose favour the award is made should
not get full costs, if he had lost on important issues. Costs may be awarded to the
other party, if it can be shown that these issues should never have been raised, and/or
contributes an abuse of process.
Where there are counter-claims, costs can be awarded separately for the
counterclaims.
Stay of Legal Proceedings
Requirements
o S 6 of the new Act is similar to s 7 of the old act permitting an application for stay of
legal proceedings instituted in respect of any matter which is the subject of the
arbitration agreement at any time after appearance, and before delivering pleadings
or taking any other step in the proceedings so far as the proceedings relate to that
matter.
o As with the old s 7(2), the new s 6(2) lays down the requirements before the court
will order a stay”:
o There must be no sufficient reason why the matter should not be referred to
arbitration; AND
o The applicant must be ready and willing to do all things necessary for the proper
conduct of the arbitration
o Tan Hock Leng v Sigma International Ltd (OS 1110/1988 HC)
- Chan Sek Keong J took the view that as the defendant had contested the plaintiff’s
application to re-mend the writ and had mentioned for the plaintiff’s solicitors, it
would amount to taking a step in the proceedings. This barred them from
obtaining a stay.
- SA Shee & Co (Pte) Ltd v Kaki Bukit Industrial Park Limited [2000] 2 SLR 12
o In that case, a contractor commenced action claiming payment under 5
architect’s certificates issued pursuant to Building Contract. CA upheld the
decision of the HC that there were triable issues, which fell within clause
37(1) of the SIA conditions and should be referred to arbitration. Hence the
HC had correctly stayed the proceedings under Section 7 of the previous
arbitration act.
- In Chong Long Hak Kee Construction Trading Co v IEC Global Pte Ltd [2003] 4
SLR 499, the question of the exercise of discretion by the court in granting stay was
considered.
o In that case, an application for stay of legal proceedings was filed by the
Defence at the same time with the Defence; but the defendants also stated in
the Defence that it was being filed without prejudice to its right to stay the
proceedings. The court pointed out that since a step in the proceedings had
been taken, it would have no discretion to stay the proceedings. However,
where such steps were made with the express reservation of the rights under
the arbitration agreement, the defendant’s right to stay the proceedings would
be preserved. Nonetheless, as a Counterclaim had been served together with
the defence, the defendants had shown that it was serious enough to pursue the
same in a court of law and not in arbitration. Hence the stay application was
dismissed.
- Australian timber prodts v koh brothers building and civil engineering contractor
2005 1 SLR 168 – relevant to meaning of ‘step in the proceedings’ under 6.1 of AA
o Belinda Ang J took view tt step means any step which affirms correctness
of proceedings or demonstrates a willingness or intention to defend
substance of claim in court instead of arbitration
o Additionally no such step if specific statement tt applicant intends to seek
stay or expressly reserves his right to do so
o Learned judge noted tt def clearly intended to seek stay
o Also fact tt def had applied ot have default judgement set aside was not
step in proceedings
- Yee Hong v Chan Chye Yee Andrew 2002 4 SLR 398 – impt pt of law raised
regarding juris of court in rlation to stay of proceedings
o Case involved three parties – plaintiff (main contractor), def (architect),
and third aprty (developer)
o No contract between plaintiff and def
o Already suit bet plaintiff and third party to be referred to arbitration
o Hence third party felt tt suit bet plaintiff and def shld be stayed and also
referred to arbitration though no arbitrarion bet them as no conract
between them
o Application was dismissed by assistant registrar and matter appealed
o Justice Lai Siu Chui – took view tt s6.5 of AA empowered court to order
plaintiff to arbitrate its dispute with def though no arbitrarion agreement
bet them – because provn states tt ref to party includes ref to any person
claiming through o runder such a party
Also pted out tt order to stay proceedings merely meant tt there
was more suitable forum for three parties involved to have all their
disputes relating to one poject determined
o : - decision cld have interesting conseq –may start trend where consultants
eg architects, engineers, or quantity surveyors who may have arbitrarion
clause in their respective service contracts with developer wld be drawn
into tripartite arbitrations with developer and contractor
o may also start trend of tripartite arbitrations involving developer,
contractor and sub contractor
Multiplex Construction V Singtel Enterprise 2005 2 Slr 530 – X Look Into Nature
And Siptue To Let Stay
- Facts
o Subsequently, Sintal sued Multiplex for various sums of money and damages
that it claimed were due to it. Multiplex applied to stay the proceedings
pursuant to an arbitration clause in the sub-contracts. An assistant registrar
granted the stay, save for Sintal’s claim under the interim certificates (“the
claim”). The judge in chambers upheld the assistant registrar’s decision.
o On appeal, Multiplex argued that there were disputes under the claim which
should be stayed in favour of arbitration. First, it was unclear from the Sub-
Contract whether Multiplex’s sole remedy for delay was liquidated damages.
Multiplex argued that although cl 10 of the letter of acceptance stipulated
liquidated damages for late completion, it still had a right to general damages
under Item I in Bill 1 of the GCP and cl 11.4 of the Conditions.
- Held:
o (3) The set-off notices that Multiplex sent Sintal were detailed documents
that were reasonably accurate as they provided sufficient information to
enable Sintal to ascertain the quantum of the set-off, to understand the bases
of Multiplex’s claims against it and how the same were calculated, and to
challenge such claims in any arbitration proceeding. However, in view of the
phraseology of cl 11.4 and the common law position which did not allow the
set-off of prospective debts, the first set-off notice was not reasonably
accurate: at [33] and [34].
o (4) Multiplex was entitled to make a claim for every component of its
monthly costs as long as it could prove that those costs would not have been
incurred but for Sintal’s delay. Disputes as to the ability of Multiplex to
recover any particular item and the extent to which such item was recoverable
were matters to be sorted out by the arbitrator: at [35].
o (5) Multiplex had dropped its claim against LKC for delay. Even if the issue
of concurrent delay remained, it could not be said to be indisputable that the
set-off notices were not reasonably accurate because there was a substantive
dispute on concurrent delay: at [36].
o (6) Apart from the first set-off notice in respect of interim certificate no 27,
the other set-off notices complied with cl 11.5(i). A stay was granted in respect
of the interim certificates save for interim certificate no 27. Multiplex was
awarded two thirds of its costs here and b The legal position
- 4 The issues that arise on this appeal are substantially the same as those
considered below. The main point that has to be determined by this court is
whether there is a dispute between the parties that should be stayed in favour of
arbitration.
- 5 The application made by Multiplex to stay the High Court action was brought
under s 6 of the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Act”). This section
provides that a court may stay proceedings brought contrary to an arbitration
agreement, if the court is satisfied that “there is no sufficient reason why the matter
should not be referred in accordance with the arbitration agreement” (see s 6(2)(a)). It
is well established that if the court finds that there is no dispute between the parties,
then generally there will be no sufficient reason to stay court proceedings as there will
be nothing to refer to arbitration.
- 6 The parties are in substantial agreement on the legal principles that guide the
court when it hears an application under s 6 of the Act. Both parties cited the decision
in Kwan Im Tong Chinese Temple v Fong Choon Hung Construction Pte Ltd [1998] 2
SLR 137 (“the Kwan Im Tong case”). There, while this court accepted the principle
enunciated in Tradax Internacional SA v Cerrahogullari TAS (The M Eregli) [1981]
2 Lloyd’s Rep 169 that if the claim is indisputable then the court has jurisdiction to
hear the matter instead of referring it to arbitration, it also sanctioned a holistic and
common-sense approach towards determining the existence of a dispute. In so doing,
this court adopted the following observation of G P Selvam JC (as he then was) in
Uni-Navigation Pte Ltd v Wei Loong Shipping Pte Ltd [1993] 1 SLR 876 at 879, [16]
and [17]:
- The common form arbitration agreement provides for disputes to be decided by
arbitrators. In such a case the court should, save in obvious cases, adopt a holistic and
commonsense approach to see if there is a dispute. The justification for this approach
is that it is important to hold a party to his agreement and avoid double and split
hearing of matters. …
- If the defendant, therefore, makes out a prima facie case of disputes the courts should
not embark on an examination of the validity of the dispute as though it were an
application for summary judgment.
- This court in the Kwan Im Tong case (per Karthigesu JA at [10]) also indicated that
while O 14 summary judgment principles aided the court in determining whether a
claim should be immediately allowed in very obvious cases, it was not entirely safe to
apply them in determining whether the parties should be bound by their agreement to
arbitrate. His Honour agreed with the observation of Parker LJ in Home and
Overseas Insurance Co Ltd v Mentor Insurance Co (UK) Ltd [1990] 1 WLR 153 at
158 that, except in a very clear case, in a situation where there was an arbitration
clause, full-scale argument should not be permitted since the parties had agreed on
their chosen tribunal and the defendant would be entitled, prima facie, to have the
dispute decided by that tribunal in the first instance. This court concluded, on the
basis of the authorities it had discussed, that it was the party resisting the stay of
proceedings who had the burden of showing that the other party had no defence to the
claim.
Dalian Hualiang Enterprise Group Co Ltd and Another v Louis Dreyfus Asia Pte
Ltd [2005] 4 SLR 646– shld not go into details and nature od diptue, court shld not
examine validity of dispute as though stay alication was an application for SJ
- Facts
- The first plaintiff (“DHE”) entered into a contract with the defendant (“LD”) (“the
Armonikos contract”). DHE then assigned the Armonikos contract to the second
plaintiff (“DJOM”). Subsequently, DJOM made two claims under the Armonikos
contract. Sally Yang (“SY”) of LD’s offices in China confirmed certain sums to be
payable on these claims and the plaintiffs filed an action against LD for these sums.
LD applied for a stay of the action pursuant to an arbitration agreement in the
Armonikos contract.
- The issues before the assistant registrar (“AR”) who heard the stay application were,
inter alia: (a) whether there was a dispute between the parties capable of arbitration
under s 6(1) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”);
(b) whether there was an admission by LD of the debt; and (c) whether LD could
claim a set-off from a running account, assuming there was such an admission (“the
set-off issue”). LD raised the set-off issue as it had a claim against another company
(“Fuhong”) under a different contract (“the Hanjin Tacoma contract”). LD alleged
that Fuhong was treated as part of the group of companies that included DHE and
DJOM insofar as the running account was concerned.
- The AR ordered a stay of the action. He held that there was a dispute regarding SY’s
authority to bind LD as she was not an employee of LD itself. As such, the dispute
was not capable of resolution by the court. The plaintiffs appealed against his
decision. The parties presented further arguments on s 6(2) IAA as to whether the
court had jurisdiction to consider if there was in fact a dispute between the parties or
whether the court was obliged to refer any dispute to arbitration so long as there was a
dispute.
- Held, allowing the appeal:
- Section 6(1) IAA applied where the proceedings in court were “in respect of any
matter which [was] the subject of the [arbitration] agreement”. This meant that the
court had no jurisdiction under s 6(2) IAA to order a stay if the court proceedings
were not in respect of a matter which was the subject of the arbitration agreement. It
should be for the court to determine if the matter before the court was the subject of
the arbitration agreement. However, if that issue was arguable in that the outcome
was not clear, then the court should stay the proceedings: at [20] and [25].
- On the facts, SY was not the only one who had admitted the claims under the
Armonikos contract. The sums payable on the claims were disclosed in a statement of
account issued by LD, which demonstrated LD’s acceptance that the sums claimed
under the Armonikos contract would be due and payable but for its claim under the
Hanjin Tacoma contract: at [14].
- The disputes under the Hanjin Tacoma contract were separate and distinct from those
under the Armonikos contract. Neither of the plaintiffs was a party to the Hanjin
Tacoma contract and the allegation about the running account arose only because of
LD’s claim under that contract. The issue as to whether there was a running account
was unrelated to the transaction under the Armonikos contract and it was clear that
the set-off issue was not the subject of the arbitration agreement: at [30].
- Under s 6(2) of the Arbitration Act (Cap 10, 2002 Rev Ed), the court might determine
if there was in fact a dispute before deciding to order a stay, although the court should
not examine the validity of the dispute as though the stay application was an
application for summary judgment. As regards s 6(2) IAA, once there was a dispute, a
stay had to be ordered unless the arbitration agreement was null and void, inoperative
or incapable of being performed. The court was not to consider if there was in fact a
dispute or whether there was a genuine dispute. The more difficult question was when
it could be said that a dispute existed. A mere refusal to pay or silence was not a
dispute. An admission by a defendant would, generally speaking, be contrary to a
dispute but not every admission would necessarily avoid a stay order: at [74] and
[75].
Thus, the sending of the request is not enough. It has to be received by the respondent.
S 9 of new Act states that, unless otherwise agreed, arbitration commences when the
request is received by the Respondent.
- Cos there are cases where request may not be received.
- And then turns on the meaning of ‘received’ sometimes fella in Cayman Islands
and other places where difficult to serve stuff on person.
- This imposes on the party commencing proceedings the added duty to show that the
respondent has received the request.
- Provision is non-mandatory: parties may agree otherwise.
- Adopts Art 21 Model Law
Under Section 11 of the new Arbitration Act, the Limitation Act shall apply to
arbitration proceedings as it applies to proceedings before any court.
Application of Limitation Act
11. —(1) The Limitation Act (Cap. 163) shall apply to arbitration proceedings as it
applies to proceedings before any court and a reference in that Act to the commencement
of any action shall be construed as a reference to the commencement of arbitration
proceedings.
(2) The Court may order that in computing the time prescribed by the Limitation Act for
the commencement of proceedings (including arbitration proceedings) in respect of a
dispute which was the subject-matter of —
(a) an award which the Court orders to be set aside or declares to be of no effect; or
(b) the affected part of an award which the Court orders to be set aside in part or declares
to be in part of no effect,
the period between the commencement of the arbitration and the date of the order
referred to in paragraph (a) or (b) shall be excluded.
(3) Notwithstanding any term in an arbitration agreement to the effect that no cause of
action shall accrue in respect of any matter required by the agreement to be referred until
an award is made under the agreement, the cause of action shall, for the purpose of the
Limitation Act, be deemed to have accrued in respect of any such matter at the time when
it would have accrued but for that term in the agreement.
Based on Article 16 of the Model Law, the doctrine of competence now applies to
arbitral tribunals. Under Section 21, they may rule on their own jurisdiction and also
on the existence or validity of the arbitration agreement. Note that an “arbitration
clause” in an Agreement may be regarded as an independent agreement by virtue of
Section 4(2) Arbitration Act.
The concept of separability is now embodied in Section 21(3) of the new Act. Thus, a
decision by the tribunal that the contract is null and void does not entail ipso jure (as a
matter of law) the invalidity of the arbitration clause.
The plea of lack of jurisdiction is to be raised not later than the submission of the
statement of defence.
Where there is a plea that the arbitral tribunal has exceeded its authority, it must be
raised when the matter concerned is raised during the arbitration proceedings.
Where the tribunal holds that it has jurisdiction, one can apply to the High Court to
decide the matter. For any further appeal, the leave of the High Court would be
required. It would, however, appear that where the tribunal holds that it has no
jurisdiction, there is no appeal to the Court.
After the appointment of the arbitrator (and his acceptance), he would normally ask
the parties to appear before him. The Arbitrator will then give directions as to the
filing of pleadings, the Statement of Claim and the Statement of Defence, and the
dates they are to be filed. Section 24 of the new Act no longer refers to a “Reply”,
though this would be necessary where there is a counter claim. Nevertheless lawyers
do usually file a reply in such an instance where it is necessary.
After the close of proceedings, the Claimant and the Respondent would then have to
deliver a list of documents. Thereafter the Claimant’s Solicitor would prepare an
(“Agreed Bundle”). As for documents not agreed, the parties can prepare their own
bundles.
The Arbitrator would also like to be told whether there would be expert witnesses and
if so, their reports should be exchanged. Sometimes, the Arbitrator may want to limit
the number of expert witnesses to be called by each side.
Section 27 of the new Arbitration Act gives the power to the arbitral tribunal to
appoint experts. If the tribunal would like to do so it would have to search an appoint
such an expert and give him/her time to make his/her assessment and to formulate a
written or oral report prior to the hearing.
The “venue” or the premises where the arbitration would be held would be discussed
(usually a conference room, sometimes in some posh town club). The use of
shorthand notes or other means of recording/ transcribing will then be determined.
Similar to the procedure now adopted in the Courts, some arbitrators may direct that
the affidavits be filed by the parties within a specified time, and thus reduce the time
spent in examination in chief.
If you’re an arbitrator, when dealing with lawyers, always appear to be fair and
impartial. Don’t interfere too much or it could be grounds for improper conduct.
Don’t talk too much in front of the parties or their lawyers.
Arbitral Proceedings
Based on Article 18 of the Model Law, Section 22 of the new Arbitration Act makes it
a mandatory duty for the arbitral tribunal to act fairly and impartially.
Based on Article 19 of the Model Law, Section 23 of the new Act gives the parties
freedom to agree on the procedure to be followed by the arbitral agreement.
o Following art 19 Model Law, the new s 23(1) gives the parties the
freedom to agree on the procedure to be followed, failing which the
tribunal will conduct the proceedings as its sees appropriate: s 23(2).
Section 24 of the new Act now refers to “Statement of Claim and Defence”, No
“Reply” is referred to, but obviously the tribunal can allow filing of other documents.
Under Section 25 of the new Act, the arbitral tribunal can decide how proceedings are
to be conducted. Thus, an arbitration may proceed with or without oral hearing or oral
arguments. It can proceed on the basis of documents (e.g. written affidavits) and
materials. This is subject to any contrary agreement.
Therefore if parties request for oral hearing, arbitral tribunal must allow an oral
hearing
- Myint Soe: Being a lawyer, the arbitrator would usually follow court
procedure
- Start with oaths/affirmation
- Then, written submissions,
- EIC, XXN, Re-Exam
- And then an award in lieu of a judgement – which of course is liable to appeal [see
below].
But even where affidavits have been filed, the arbitrators would usually allow
more evidence to be entered orally – to ensure that justice is done, since the lawyer
may not have known certain facts when the affidavit was first prepared. The lawyer
must apply for the oral evidence to be admitted.
It is implied from the words “shall be communicated” in Section 25(5) that the
parties should file the expert reports and evidentiary documents ahead. Hence the
present practice of giving “directions” would normally include the time for filing of
expert reports, and of discovery and inspection of documents.
Under Section 26 of the new Act, the parties are free to agree on the agree on the
consolidation of arbitration proceedings or for concurrent hearings where there is
more than one arbitration proceedings. The tribunal would have such power if the
parties agree to confer such power. No provisions are made for the Court to exercise
such power.
- S27 AA is based on s 26 Model Law in giving the arbitral tribunal the power to
appoint experts, a power that was not found in the previous Act.
- Note that S 37 Eng AA goes even further and refers to Legal Advisors and Assessors.
- In most arbitrations, there will be experts especially in fields of construction,
insurance etc.
- Arbitrator must be careful here because expert reports are impt and shld be exchanged
by both parties and shld be given to the arbitrator before the arbitration starts
- Problem when arbitrator thinks he is an expert – and if disagrees then should trash it
out with the experts when issue arises – do not just say tt disagree in the judgement.
- Cannot use their own expert knowledge without first putting it to the experts.
- And how to decide which expert to believe?
- Where confused, arbitrator is allowed to appoint his own expert: this is something
new.
- And if not a lawyer, then permitted to consult a lawyer as well
- Expert can also be asked by any party to participate in the hearing: s 27(2) – and on
costs probably the losing party will pay.
Section 28 of the new Act refers to general powers exercisable by the tribunal.
However, it is not confined to making orders or giving directions for security for
costs, or for the preservation and interim custody of any evidence. It is to be noted
that security for costs can be ordered against any party.
Orders for preservation and interim custody would be similar to grant of an
interim injunction by the Court. This new section enumerates other matters such as
discovery of documents and interrogatories, giving of evidence by affidavit, the
examination of parties by oath or affirmation and administering the same.
(2) Without prejudice to the powers conferred on the arbitral tribunal by the parties
under subsection (1), the tribunal shall have powers to make orders or give directions to
any party for —
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
(d) a party or witness to be examined on oath or affirmation, and may for that
purpose administer any necessary oath or take any necessary affirmation;
(e) the preservation and interim custody of any evidence for the purposes of the
proceedings;
(f) samples to be taken from, or any observation to be made of or experiment
conducted upon, any property which is or forms part of the subject-matter of the
dispute; and
(g) the preservation, interim custody or sale of any property which is or forms part of
the subject-matter of the dispute.
(3) The power of the arbitral tribunal to order a claimant to provide security for
costs as referred to in subsection (2)(a) shall not be exercised by reason only that the
claimant is —
(a) an individual ordinarily resident outside Singapore; or
(b) a corporation or an association incorporated or formed under the law of a
country outside Singapore, or whose central management and control is exercised
outside Singapore.
(4) All orders or directions made or given by an arbitral tribunal in the course of an
arbitration shall, by leave of the Court, be enforceable in the same manner as if they
were orders made by the Court and, where leave is so given, judgment may be
entered in terms of the order or direction.
Section 29 of the new Act deals with defaulting parties. Where statements of claims
are not filed in time, the proceedings may be summoned. However, if the defence is
not filed the tribunal can proceed, but it is not to treat such failure in itself as an
admission of the claimant’s allegations. Where the claimant is guilty of inordinate or
inexcusable delay, the tribunal may make an award dismissing the claim.
Section 30 of the new Act gives power to the parties to secure the attendance of
witnesses. A court order can be obtained to subpoena witnesses.
It is however pertinent to note that the Court must give due regard to what the arbitral
tribunal does. Where similar orders are later made by the tribunal, the order of the
court would cease to have effect.
Removal of arbitrators
2 sitns when this is sought –
- want to remove arbitrator
- award already made, want to set aside award on misconduct (note
term is not used any longer)
note that the wording of Section 16 of the new Act does not use the word
“misconduct” unlike Section 17 and 18 of the previous Arbitration Act. The
phrase used is “refused or failed to properly conduct the proceedings”.
Although the legal effect is roughly the same, the new phrasing avoids the
undesirable stigma on the arbitrator. The cases above refer to the old test of
“misconduct”. In the part, there were two kinds of misconduct – legal
misconduct and personal misconduct.
Recent case under new Act wrt removal of arbitrator is tt of yee hong v powen
electrical engineering 2005 3 SLR 512
- In tt case yee hong filed application under s16(1)(b) of AA to remove
arbitrator in arbitration proceedings commenced by powen electrical
- Allgted tt arbitrator in tt case had made preemptory order tt unless yee
hong exchanged affidavits of eic before certain date, he wld proceed to
hear matter with regard to AEIC fr yee hong
- Additionally alleged tt arbitrator made said order without hearing
application for yee hong for fuhter discovery of docs and consequential
application for etensoin of time to exchange affidavits
- Therefore alleged tt this amted to violation of natural justice and breach of
duty under s22
- Belinda Ang J dismissed application; pted out tt power to remove
arbitrator wld not be exercised unless failure to conduct proceedings
properly had cuased or wld cause substantial injustice to applicant
- Whilst failure to comply with s22 of act might manifest improper conduct
of proceedings, tt in itself not enough to warrant removal of arbitrator
under s16.1.b
- Latter provision reqd second stage of investigation nad tt whether failure
had cuased or wld cause substantial injustice
- Test of substantial injustice was igh one for any application to
surmount and diff fr test under prev regime
- Judge also found tt arbitrator had heard arg fr both sides before making
order
- Thus arbitrator had balanced relevant considerations and entitled to ocnlue
tt no basis for not proceeding to hold hearing of scheduled dates
- Arbitrator had wide discretion in reaching his decisions as to what duty of
acting fialry demanded in circumstances of partr case
In Fisher & Another v P G Wellfair Ltd [1981] 2 Lloyds Rep. 514 (English CA), the
applicants served notices of motion in the main and individual arbitrations applying
that the arbitrator be removed for misconduct; alternatively that the awards be set
aside for misconduct. The grounds of the application were inter alia that (1) the
arbitrator had taken into account facts and matters which tended to contradict the
unchallenged evidence tendered at the hearing of the reference without giving the
applicants notice or opportunity of dealing with the same and (2) he failed to conduct
the said proceedings in accordance with the principles of natural justice.
- Held, by C.A. (Lord DENNING, M.R., DUNN and O'CONNOR, L.JJ.),
that
- (1) on the evidence the arbitrator was an expert and not simply a legal
arbitrator
- (2) the fact that the claim was undefended did not mean that the arbitrator
was obliged to accept the claim without question nor did it mean that he
was under an obligation to protect the party who was not present; his
function was to hold the scales of justice as evenly as he could and act as
fairly and judicially in the conduct of the hearing
- (3) an expert arbitrator should not in effect give evidence to himself
without disclosing the evidence on which he relied to the parties or if there
was only one to that party; he should not act on his private opinion without
disclosing it and although it was true that an expert arbitrator could use his
own expert knowledge there was a distinction between general expert
knowledge and knowledge of special facts relevant to the particular case
- (4) the conclusion which the arbitrator had come to could only have been
reached by in effect giving evidence to himself in fiat contradiction to the
evidence given by the applicants' expert witnesses; natural justice required
that he ought to have put his alternative scheme and alternative costings to
the experts to give them an opportunity of dealing with them; and in
failing to take that course the arbitrator was guilty of technical or legal
misconduct in failing to observe the principles of natural justice
- (5) in the circumstances the learned Judge was right in his conclusion that
the awards would be set aside and the arbitrator removed and the appeal
would be dismissed
Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd & Anor (No. 2)
[1988] 2 MLJ 502 is an interesting case where the “reasonable suspicion” test was
applied (in relation to the old Section 17(1), the predecessor of the current Section
16(1) AA. The test applied by Chao Tick Hin J (as he then was) was whether a
reasonable and fair minded person sitting in Court and knowing all the relevant facts
have a reasonable suspicion that a fair hearing for the applicant was not possible. It
was held that by not referring a legal question to the Court, the arbitrator had
misconducted the proceedings.
In Sabah Bank Bhd v Borneo Housing Mortgage Finance Bhd [1992] 3 CLJ 1640,
it was remarked that it was not misconduct to err in fact or law, or to make findings
for which there was no evidence. In that case, it was held that the arbitrator had not
deviated from the norms as the parties had their say, they submitted all sorts of
documents, they talked at length, and only at the end did the arbitrator consider the
facts and the weight to be placed on each, as well, as the law. Accordingly, he had not
misconducted himself or the proceedings.
The recent case of Koh Bros Building and Civil Engineering Contractor Pte Ltd v
Scotts Development (Saraca) Pte Ltd [2002] 4 SLR 748 relates to the alleged
misconduct of an arbitrator during the course of an arbitration. That case involved a
dispute between the contractor and the developer. The contractor had applied for an
interim award on the sum obtained. The developer objected in correspondence to the
application that the matter was res judicata. At the hearing of the preliminary
objections of the developer, an additional argument was presented; namely that the
matter was not fit for summary disposal. The arbitrator apparently agreed with the
submission and later wrote to the parties refusing to hear the application for the
interim award.
- The arbitrator then applied to the High Court for the removal of the
arbitrator for misconduct under Section 17(1)(a) of the previous
Arbitration Act alleging breach of natural justice as he had not heard their
application on the merits. Additionally, it was argued that he had
prejudged the matter, as the only matter before him was whether the
contractor’s application should be heard.
- Judith Prakash J went extensively into the general law relating to
misconduct, and dealt with the two main issues before her:
- (a) was there a breach of natural justice as alleged; and
- (b) should the arbitrator be removed.
- The learned judge took the view that there was a breach of natural justice
as submitted by the contractor, and hence the arbitrator had acted
inappropriately. With regards to the next question, it was pointed out that
an order for removal would be made if it is determined that the conduct of
the arbitrator was such as to make a reasonable person think that there was
a real likelihood that the arbitrator could not or would not fairly determine
the relevant issues in the arbitration. In the circumstances, the arbitrator
would be removed.
- The learned Judge pointed out that the arbitrator had cut short the process
of listening to both sides, by telescoping two separate parts of the interim
application hearing into one. He did so by determining the outcome of the
first part of the application on the basis of issues that actually fell within
the second part of the application, without hearing full arguments from
both sides.
Award
Section 32 of the new Act deals with the law to be applied by an arbitral tribunal to
the substance of a dispute before it.
Section 32(2) therefore presumes that the law of Singapore need not apply in such
cases. This could be so in cases where the parties arbitrating in Singapore may not
have any connection with Singapore, but merely like to come to Singapore to
arbitrate.
Section 32(3) would allow the tribunal to decide according to justice, equity and good
conscience and other similar considerations. Thus a decision would be recognised,
even if it is not made in accordance with any system of national law.
Section 33 allows an arbitral tribunal to make more than one award at different points
in time. The controversial concept of ‘interim awards’ has also been dropped in the
new Act. A tribunal may decide on liability which would affect the whole claim, or
the tribunal may decide in part only of the claim or on cross-claims submitted for
decision, or on counterclaims.
- Section 34 of the new Act deals with remedies or reliefs, which an arbitral
tribunal may award. Here again, the choice of the parties is paramount.
that unless otherwise agreed, the tribunal shall have the power to make
any award that could have been ordered by a Court in civil proceedings
- There is now no restriction in Singapore on the power to grant specific
performance of a contract relating to land, unlike First Schedule of the
old Act and s 48 Eng Act.
-
Thus our Tribunals may have more powers than the English Tribunals as our law also
modelled on Model Law
Remedies
34. —(1) The parties may agree on the powers exercisable by the arbitral
tribunal as regards remedies.
(2) Unless otherwise agreed by the parties, the arbitral tribunal may award any
remedy or relief that could have been ordered by the Court if the dispute had been
the subject of civil proceedings in that Court.
If the parties had not agreed to limit the available remedies beforehand, Section 34(2)
states that the tribunal can provide any relief or remedy as the High Court could if the
dispute had been the subject of a civil dispute proceedings in court e.g.
Section 35 deals with interest payable on an award. The general rule is that it should
be the same as a judgment debt.
Interest
35. —(1) The arbitral tribunal may award interest, including interest on a compound
basis, on the whole or any part of any sum that —
(a) is awarded to any party; or
(b) is in issue in the arbitral proceedings but is paid before the date of the award,
for the whole or any part of the period up to the date of the award or payment,
whichever is applicable.
(2) A sum directed to be paid by an award shall, unless the award otherwise directs,
carry interest as from the date of the award and at the same rate as a judgment debt.
Section 36 allows the court to give extensions of time for making an award provided
it is satisfied that substantial injustice would otherwise be done.
- Section 37 allows the tribunal may record a settlement between parties in the form of
an arbitral award on agreed terms. The parties may agree to come to a settlement and
then may want to record the settlement in the form of a consent award so that they
could have a settlement agreement with all the benefits of enforcement that comes
along with an arbitral award: eg could enforce it in a jurisdiction that is party to the
NY Convention.
- This saves the party in whose favour the award is made the need to prove its claims
afresh or sue on the settlement agreement should default be made in the performance
of the agreed terms
Award by consent
37. —(1) If, during arbitration proceedings, the parties settle the dispute, the arbitral
tribunal shall terminate the proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the settlement in the form of an arbitral
award on agreed terms.
(2) An arbitral award on agreed terms —
(a) shall be made in accordance with section 38;
(b) shall state that it is an award; and
(c) shall have the same status and effect as any other award on the merits of the
case.
(3) An award on agreed terms may, with the leave of the Court, be enforced in the
same manner as a judgment or order to the same effect, and where leave is so
given, judgment may be entered in terms of the award.
Section 38 of the new Arbitration Act stipulates inter alia that the award shall be
made in writing and signed by the arbitrator or arbitrators.
The award must be in writing, and signed by all the arbitrators or a majority provided
the reason for any omitted signature is stated: s 38(1), with the date and place of
arbitration stated: s 38(3)
The award must state the reasons on which it is based, UNLESS:
- the parties have agreed that no grounds need be stated OR
- the award is an award by consent under s 37.
Effect of award
Effect of award
44. —(1) An award made by the arbitral tribunal pursuant to an arbitration agreement
shall be final and binding on the parties and on any person claiming through or under
them and may be relied upon by any of the parties by way of defence, set-off or
otherwise in any proceedings in any court of competent jurisdiction.
(2) Except as provided in section 43, upon an award being made, including an award
made in accordance with section 33, the arbitral tribunal shall not vary, amend,
correct, review, add to or revoke the award.
(3) For the purposes of subsection (2), an award is made when it has been signed and
delivered in accordance with section 38.
(4) This section shall not affect the right of a person to challenge the award by any
available arbitral process of appeal or review or in accordance with the provisions of
this Act.
Tang Boon Jek Jeffrey v Tan Poh Leng Stanley [2001] 3 SLR 237
The “final award” must be the one that completes everything that the arbitral tribunal is
expected to decide, including the question of costs. Following from the above, it is
clear that until such a final award is given, the arbitral tribunal’s mandate still
continues; it is not functus officio. As the mandate of the Arbitrator had not yet been
terminated, he was entitled to reconsider his decision and if he thought fit, as he did
here, to reverse himself.
Comments: The CA took the view that the arbitration proceedings had not come to an
end as there was an outstanding question as to costs and the arbitrator could reconsider
issues, which had been decided by him.
(2) The Court shall not consider an application under this section unless —
(a) it is made with the agreement of all parties to the proceedings; or
(b) it is made with the permission of the arbitral tribunal and the Court is satisfied that
—
(i) the determination of the question is likely to produce substantial savings in costs;
and
(ii) the application is made without delay.
(5) Except with the leave of the Court, no appeal shall lie from a decision of the Court
on whether the conditions in subsection (2) are met.
(6) The decision of the Court on a question of law shall be a judgment of the Court for
the purposes of an appeal to the Court of Appeal.
(7) The Court may give leave to appeal against the decision of the Court in
subsection (6) only if the question of law before it is one of general importance, or is
one which for some other special reason should be considered by the Court of Appeal.
Enforcement of award
46. —(1) An award made by the arbitral tribunal pursuant to an arbitration agreement
may, with leave of the Court, be enforced in the same manner as a judgment or
order of the Court to the same effect.
(2) Where leave of the Court is so granted, judgment may be entered in the terms of
the award.
(3) Notwithstanding section 3, subsection (1) shall apply to an award irrespective of
whether the place of arbitration is Singapore or elsewhere.
Hence, orders for certiorari, mandamus, etc. are not available to vary, set aside or
remit an award.
Furthermore, an application under Order 69 Rule 2 to declare that an award is not
binding, would no longer be available as it is not specifically provided for in the Act.
Section 48 lays down a number of reasons for which the High Court may set aside an
award. This Section is based on Article 34 of the Model Law. Setting aside the
award is not the same as an appeal, which is dealt with under Section 49
(ii) the arbitration agreement is not valid under the law to which the parties have
subjected it, or failing any indication thereon, under the laws of Singapore;
(iii) the party making the application was not given proper notice of the appointment
of an arbitrator or of the arbitration proceedings or was otherwise unable to present his
case;
(iv) the award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration, except that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, only that part of
the award which contains decisions on matters not submitted to arbitration may be set
aside;
(v) the composition of the arbitral tribunal or the arbitral procedure is not in
accordance with the agreement of the parties, unless such agreement is contrary to any
provisions of this Act from which the parties cannot derogate, or, in the absence of such
agreement, is contrary to the provisions of this Act;
(vi) the making of the award was induced or affected by fraud or corruption;
(vii) a breach of the rules of natural justice occurred in connection with the making
of the award by which the rights of any party have been prejudiced; or
(2) An application for setting aside an award may not be made after the expiry of 3
months from the date on which the party making the application had received the
award, or if a request has been made under section 43, from the date on which that
request had been disposed of by the arbitral tribunal.
(3) When a party applies to the Court to set aside an award under this section, the Court
may, where appropriate and so requested by a party, suspend the proceedings for setting
aside an award, for such period of time as it may determine, to allow the arbitral
tribunal to resume the arbitration proceedings or take such other action as may
eliminate the grounds for setting aside an award.
The term “corruption” can be construed very widely as under the Prevention of
Corruption Act. Basically taking any advantage is corruption. Corruption is not
limited to just bribery alone.
Award is contrary to public policy. Note that the scope of public policy is not defined,
so it can be very broad, and a possible “unruly horse” if the phrase is not strictly
construed.
2
The respondent alleged that decision not based on law; no allegation of illegality or fraud, CIETAC award
enforced.
- Is the fact so? This court need only refer to exh P7 referred to in the affidavit of Paul
Owen Suttie at p 14 that the Malaysian Government`s stand vis-a-vis the state of
Israel is not applicable and has no relevance in our present case and does not support
the defendant`s argument. I find merit in the statement of LJ Zito of Harris Adacom,
in a letter to the defendant, dated 12 July 1990 (exh A5) in the affidavit of DP Naban,
encl (1), that clearly puts the correct position that the plaintiff is a United States
corporation. The plaintiff like any other company has a 68% stake in a subsidiary
company engaged in development and manufacturing operations in Israel but what is
important for our consideration, and to be clear about, and the court is clear on this,
that the products covered by the distribution agreement have been and would have
continued to be developed, manufactured and supported from the plaintiff`s United
States operation. For the reason stated above, I reject the defendant`s argument that it
is against public policy to have this award enforced.
Note that Section 48(3) does not amount to a real remission as it is intended to enable
the tribunal to remedy only the alleged irregularities. One cannot review the case on
its merits.
It must also be noted that Section 48(1)(a)(vi), (vii) and (viii) can be possibly applied
in situations where there can be said to be ‘misconduct” on the part of the arbitrator,
although there is no concept of misconduct in the present Arbitration Act as compared
to the old Act.
With regards to Section 48(1)(a)(vii) (breach of the rules of natural justice), Lord
Tucker in Russell v Duke of Norfolk [1949] 1 All ER 109 states that whatever
standard is adopted,, the person concerned should have a reasonable opportunity of
presenting his case (audi alteram partum). What does the phrase “breach of the rules
of natural justice” mean? As was said by Lord Morris in Wiseman v Borneman
[1971] AC 309, “Natural justice, it has been said, is only fair play in action”.
In criticizing awards made by arbitrators, it is often alleged that findings have been
made with little or no evidence, or that the aggrieved party was not given a chance to
explain matters more fully, more so, as they cannot know what the arbitrators were
thinking.
Colman J – “The arbitrator’s duty was to give the parties a fair opportunity of
addressing them on all factual issues material to their intended decision as to which
there had been no reasonable opportunity to address them during the hearings…..
It has to be emphasized, however, that the duty to act fairly is quite distinct from the
autonomous power of the arbitrators to make findings of fact. Thus, whereas it may
normally be contrary to the arbitrator’s duty to fail to give to the parties an
opportunity to address them on proposed findings of major areas of material primary
facts which have not been raised during the hearing or earlier in the arbitral
proceedings, it will usually not be necessary to refer back to the parties for further
submissions every single inference of fact from the primary facts which arbitrators
intend to draw, even if such inferences may not have been previously anticipated in
the course of the arbitration. Particularly where there are complex factual issues it
may often be impossible to anticipate by the end of the hearing exactly what
inferences of fact should be drawn from the findings of primary fact which have been
in issue. In such a case the tribunal does not have to refer back its evidential analysis
for further submissions.”
- recent English case relevant to rules of natural justice or duty to act fairly – st
george’s investment v Gemini consulting 2004 EWHC 2353 (Ch)
o held tt arbitrator entitled to use his expert knowledge to arraive at his
award; knowledge which he wld be reasonably expected to have and
provded he isuses it to evaluate the vid called and not to introd new and
diff evid
o otherwise his duty to expose those matters for comnt by party concerned
o arbitrator is also entitled to arrive at award by deploying evid in awy diff
fr the way parties’ witnesses have deployed them; provided tt it addresses
matter which has been put into arena
- What’s the difference btwn setting aside an award and appealing against an award?
- Setting aside relates primarily to attacking the award based on
irregularity.
- Appealing deals with the merits of the case – not so much on arbitration –
but on the question of law arising out of the award made in the
proceedings.
(2) Notwithstanding subsection (1), the parties may agree to exclude the jurisdiction
of the Court under this section and an agreement to dispense with reasons for the
arbitral tribunal’s award shall be treated as an agreement to exclude the
jurisdiction of the Court under this section.
(5) Leave to appeal3 shall be given only if the Court is satisfied that —
(a) the determination of the question will substantially affect the rights of one or
more of the parties;
(b) the question is one which the arbitral tribunal was asked to determine;
(c) on the basis of the findings of fact in the award —
(i) the decision of the arbitral tribunal on the question is obviously wrong; or
(ii) the question is one of general public importance and the decision of the arbitral
tribunal is at least open to serious doubt; and
(d) despite the agreement of the parties to resolve the matter by arbitration, it is just
and proper in all the circumstances for the Court to determine the question.
(6) An application for leave to appeal under this section shall identify the question of
law to be determined and state the grounds on which it is alleged that leave to appeal
should be granted.
(7) The leave of the Court shall be required for any appeal from a decision of the Court
under this section to grant or refuse leave to appeal.
(9)The Court shall not exercise its power to set aside an award, in whole or in part,
unless it is satisfied that it would be inappropriate to remit the matters in question to the
arbitral tribunal for reconsideration.
(10) The decision of the Court on an appeal under this section shall be treated as a
judgment of the Court for the purposes of an appeal to the Court of Appeal.
(11) The Court may give leave to appeal against the decision of the Court in subsection
(10) only if the question of law before it is one of general importance, or one which
for some other special reason should be considered by the Court of Appeal.
3
The principles in The Nema are similar.
Under Section 49(1) , an appeal must be on the basis of a question of law, and not
secondary facts.
- The court will only grant leave to appeal if the grounds in S 49(5) are satisfied.
- Note that under Section 49(5)(a), the rights of one or more of the parties
must be “substantially” affected.
- The phrase “obviously wrong” under Section 49(5)(c)(i) is a question of
law which is subjective.
- The phrase “open to serious doubt” under Section 49(5)(c)(ii) implies a
standard lower than “obviously wrong” under Section 49(5)(c)(i). If one
arbitrator out of three totally differs in opinion, that could qualify as
serious doubt. A decision may be “open to serious doubt”, but may not be
“obviously wrong”.
Note that the present provisions with regards to appeals against awards contained in
section 49 (and the statutory criteria in Section 49(5) in particular) of the new Act
have replaced the judge-made guidelines in the the HL decisions in The Nema [1980]
2 Lloyd’s Rep 339 and The Antaios [1985] AC 191 (widely referred to as The
Nema/Antaios guidelines).
Previously under the Nema/ Antaios guidelines, where the construction of a “one-off”
contract or clause was in issue, the discretion was to be strictly exercised and leave to
appeal normally refused unless the judge was satisfied that the construction given by
the arbitrator was “obviously wrong”.
- Where, however, what was in issue was the construction of a standard
form contract or clause a less guarded approach was adopted. In such a
case, the judge had to be satisfied as to two cumulative requirements
before being prepared to consider giving leave to appeal.
- First, he must be satisfied that the resolution of the question of
construction would add significantly to the clarity, certainty and
comprehensiveness of the law; and second when so satisfied, that there
was strong prima facie evidence that the arbitrator had gone wrong in his
construction.
- At the outset, I must state that while the criteria for appeal are set out in s 49 new Act
and at first glance contrast extremely with the old s 28, on careful examination, one
will find that our s 49 is merely a codification of the law as existed before the
commencement of the new Act.
- In the case of Nema the court expounded the guidelines on when the court should
grant leave to appeal.
- Law Commission’s Final Report on The Review of Arbitration Laws:
• The principles that had consistently been applied by the courts in granting or
refusing leave as enunciated in the leading case of The Nema are now spelt out
in this clause.
- The Nema principles are thus relevant and the new Act is a mere codification of the
law as stood then, revealed in parliamentary reports too.
- As stated in the Law Commission Report, our new Act was meant to incorporate the
guidelines therefore guidelines clearly relevant:
- Under s 49(5)(c), the court may grant leave only where on the basis of the findings of
fact in the award,
- (i) the decision of the arbitral tribunal is ‘obviously wrong’OR
- (ii) if the question is one of general public importance AND the decision of the
arbitral tribunal is at least open to serious doubt
- Thus it would appear that s 49(5)(c)(i) refers to a case where leave will be granted in
a one-off contract: i.e. where the arbitrator was ‘obviously wrong’. The test for
granting leave here appears to be the exact phrase used by Lord Diplock in The
Nema and the Antaios.
- However, it does appear that our s 49 may lay down even stricter requirements for the
granting of leave to appeal as s 49(5) also states as cumulative requirements that:
- The determination of the question must ‘substantially affect’ the rights of
one or more of the parties: s 49(5)(a), and
- The question must be one which the arbitral tribunal was asked to
determine: s 49(5)(b), and
- The question of law must have as its basis the findings of fact by the
tribunal: s 49(5)(c).
• As noted in the Law Commission’s Report, this it to prevent parties from trying to
review a tribunal’s findings of facts by expressing it in the form of a question of law,
and operates to ensure that the question of law has relevance to the facts as found
• Further, the power of the court to grant leave is discretionary and the court may refuse
leave unless it is just and proper in all the circumstances
• OTOH, it could be said that these ‘additional’ requirements for leave were always
also present before the enactment of the law, and the new AA just merely codified all
the principles applicable.
• The leave of the court will be required for any appeal from a decision of the court to
grant or refuse leave to appeal: s 49(7).
• After the court has heard an appeal against the award, another appeal from this appeal
is possible. [ie Tribunal HC CA]
- Here leave to appeal against the decision of the court is need and will only
be given if the question of law is one of some general importance, or for
some other special reason should be considered by the CA: s 49(11).
- thus while a distinction is drawn in the criteria required in an appeal from
the tribunal to the HC, and an appeal from the HC to the CA, there is some
overlap.
- Note also O 69 r 8: An application under the Arbitration Act for leave to
appeal against a decision of the Court to the Court of Appeal must be
made to the court within 7 days of the decision of the court.
The Nema/ Antaios guidelines had been applied in Singapore in the cases of:
American Home Assurance Co v Hong Lam Marine Pte Ltd [1999] 3 SLR 682
Held -- dismissing the appeal -- (1).The general principles governing the granting of
leave to appeal against an award made on an arbitration agreement under s 28 of the
Arbitration Act (Cap 10) (`the Act`) were as spelt out in the House of Lords decisions
in The Nema and The Antaios , and have come to be widely referred to as The
Nema/Antaios guidelines. These not only gave effect to the policy of the legislature to
accord greater recognition to the finality of awards in matters of legal determination,
but also illustrated the approach to be taken in particular circumstances encountered
in practice, for instance the nature of the question of law in issue and whether its
significance was confined to the arbitrating parties or was of wider interest.
(2).Where the construction of a `one-off` contract or clause was in issue, the
discretion was to be strictly exercised and leave to appeal normally refused unless the
judge was satisfied that the construction given by the arbitrator was `obviously
wrong`. Where, however, what was in issue was the construction of a standard form
contract or clause a less guarded approach was adopted. In such a case, the judge had
to be satisfied as to two cumulative requirements before being prepared to consider
giving leave to appeal. First, he must be satisfied that the resolution of the question of
construction would add significantly to the clarity, certainty and comprehensiveness
of the law; and second when so satisfied, that there was strong prima facie evidence
that the arbitrator had gone wrong in his construction.
(3).In the instant case, the main question of law in issue - the scope and effect of the
bonds issued by the appellants in favour of the respondents - had to be characterised
as `one-off` rather than standard. The resolution of this question depended entirely on
the true nature of the bonds which, it was trite law, was entirely a question of
construction. In turn, the question of construction involved taking into account not
only the words used by the parties to express their mutual obligations, but also the
factual matrix or surrounding circumstances, and when all this was considered, it led
to the conclusion that the question of law was `one-off` and not standard in character,
for two reasons. First, the evidence showed that the relevant portions of the bonds
were tailored to meet the parties` respective positions - the epitome of a `one-off`
case; and second, the decision on the question of construction one way or the other
would merely be another factual illustration of well-established principles and would
be incapable of adding anything to the existing jurisprudence. The appellants
therefore had to satisfy the court to the degree of an `obvious`, ie readily
demonstrable error - that the award of the arbitrator was bad in law. In any
event, if this was incorrect, they would not have succeeded in satisfying even the
less stringent criteria of a `strong prima facie case` of error.
(4).Leave to appeal would be refused on the first issue. The bonds were clearly
performance bonds payable on demand and not repayment or refund guarantees.
Accordingly, the appellants were liable to pay on the respondents` demands made
under the bonds which were triggered by the exercise of their rights of termination or
rescission, notwithstanding that what was claimed was not repayment of the progress
payments paid to the shipyard but possession of the vessel and damages. Neither a
strong prima facie case was made out that the arbitrator had erred in his
construction of the bonds, nor could it be said that he was obviously wrong.
- The Nema/Antaios guidelines governed the approach that should be taken by judges
when deciding whether to grant leave to appeal against an arbitration award and have
now been incorporated into our s 49(5) AA.
- Note however that clear guidelines in Nema now superceded by s49(5)
- Do not have to show seriously wrong – merely that
- decision of tribunal open to serious doubt and tt
- pt is one of general public importance (the commercial community)
- As noted by CJ Yong in American Home Assurance, this two-step approach has been
endorsed by the way in which the guidelines have been formulated in subsequent
authorities:
On what is ‘strong prima facie case’ that was wrong in a std term contract
- In contrast, the courts will be more ready to entertain a question of law relating to the
construction of a standard form contract or clause than is the case with a `one-off`
contract or clause, notwithstanding the initial reference to arbitration. A less guarded
approach is adopted; and the courts are more willing to substitute their own
determination for that of the arbitrator.
- If the judge is satisfied that the arbitrator is right or is probably right or there is at the
very least a strong prima facie case that the arbitrator is right, then normally leave
ought to be refused (see, eg Aden Refinery (supra), notwithstanding that an appeal
might contribute beneficially to the development of the law.
- The test is clearly less strict than that applicable to the category of `one-off` contracts
and clauses, but otherwise raises difficulties as to its precise meaning.
- However some factors pointing towards the presumption in favour of finality:
- If the parties selected as an arbitrator an experienced lawyer of many year’s standing
- and in so far as the dispute centred on a question of construction of the contract and
other related issues of law, must be assumed to have had good reason for relying on
the arbitrator`s legal expertise.
On policy grounds:
- Finality as the intention of the Legislature
- Comments on American Home Assurance:
- Although this case decides whether leave to appeal should be granted under the old
repealed AA and not our new AA, it is still very relevant as it makes reference the
Nema/Antaios guidelines which are clearly relevant under our new AA. [see above.]
On ‘obviously wrong’
- Does this refer to obviously wrong on the facts or on the law?
- Seems like referring to the decision of law, as based on the findings of facts, is
obviously wrong.
- The requirement of ‘obviously wrong’ is necessary because of the principle of
finality, parliamentary intention, and the fact that the parties had themselves agreed to
go for arbitration and thus should be bound by the arbitral decisions.
- I.e. it must be more than debatable, it must be clear.
- I think that what will be considered ‘obviously wrong’ cannot just be an issue of law,
but there must be some policy decisions involved.
Finality
- Do not want long arguments: inefficient. Singapore hates inefficiency.
- Commercial reasons for wanting Singapore to be commercial international arbitration
hub.
The Nema
Here the case concerned whether continued strikes by stevedores had the effect of
frustrating a charterparty.
Lord Diplock:
- As Lord Denning M.R. summarised it in dealing with the question of frustration in
the instant case: to justify interference with the arbitrator's award it must be shown (i)
that the arbitrator misdirected himself in law or (ii) that the decision was such that no
reasonable arbitrator could reach.
- Parliament's intention to promote greater finality in arbitral awards than was being
achieved under the previous procedure as it was applied in practice is evidenced by
the removal for judicial review for an error on the face of the record, and the need for
leave to appeal except where all parties consent.
- Where, as in the instant case, a question of law involved is the construction of a "one-
off" clause, leave should not normally be given:
- Unless it is apparent to the judge upon a mere perusal of the reasoned award itself
without the benefit of adversarial argument, that the meaning ascribed to the
clause by the arbitrator is obviously wrong.
- But if on such perusal it appears to the judge that it is possible that argument
might persuade him, despite first impression to the contrary, that the arbitrator
might be right, he should not grant leave; the parties should be left to accept, for
better or for worse, the decision of the tribunal that they had chosen to decide the
matter in the first instance.
- Rather less strict criteria are in my view appropriate where questions of construction
of contracts in standard terms are concerned.
- That there should be a high degree of legal certainty as to how such terms apply
upon the occurrence of events of this kind
The Antaios
- Here, in times when mkt prices for hire were rising, the shipowners withdraw their
vessel from the service of the charterers on the grounds that inaccurate B/Ls had been
issued.
- The arbitrator found that the breach by the charterers was non-repudiatory and did not
give the S/O a right of withdrawal.
- Hl held (lord diplock):
- On granting leave to appeal:
Even in a case which turns on the construction of a standard term, the mere
fact that there are conflicting commercial opinions would not normally in
itself be a reason for departing from the Nema guidelines.
Applications in such cases should ‘normally be dealt with on the papers
alone.’
My Lords, to permit any prolonged and therefore costly arguments on
applications for leave to appeal to the High Court would only assist in
frustrating the policy of Parliament.
- On granting leave to appeal from a granting/refusal to grant leave to appeal [our s
49(7) sitn]:
This brings me to the "(6A) question" canvassed in Staughton J.'s second
judgment of 19 November 1982: when should a judge give leave to appeal
to the Court of Appeal from his own grant or refusal of leave to appeal to
the High Court from an arbitral award?
I agree with him that leave to appeal to the Court of Appeal should be
granted by the judge under section 1(6A) [Our s 49(7)] only in cases where
a decision whether to grant or to refuse leave to appeal to the High Court
under section 1(3)(b) [our s 49(5)] in the particular case in his view called
for some amplification, elucidation or adaptation to changing practices of
existing guidelines laid down by appellate courts; and that leave to appeal
under section 1(6A) should not be granted in any other type of case.
Judges should have the courage of their own convictions and decide for
themselves whether, applying existing guidelines, leave to appeal to the
High Court under section 1(3)(b) ought to be granted or not.
But now the statutory provisions in the new Section 49 replace the Nemas/ Antaios
guidelines. This point was well brought out in the English CA decision of The North
Pioneer [2003] 1 WLR 1015.
It was emphasized that under Section 69 of the English Act (in pari materia with the
Singapore Section 49), before a Judge could grant permission to appeal, he was
required to find both that the decision of the arbitrators was obviously wrong or was a
point of general public importance and that the said decision was at least open to
serious doubt. Furthermore the Judge was to be satisfied that the question of law
arising out of the award would substantially affect the rights of one or more of the
parties.
Lord Philips MR also pointed out that the guidelines laid down in The Nema by Lord
Diplock that the arbitrator had to be “wrong in his construction” had been superceded
by Section 69(3)(c)(ii) [Singapore Section 49(5)(c)(ii)] and imposed a test broader
than Lord Diplock’s requirement. Hence, changing circumstances can raise issues of
general public importance with regards to terms or clauses that are not covered by
judicial decision.
It also follows that in certain arbitrations where there is more than one arbitrator
(there were 3 in the above case), differences in view between them may itself provide
a ground for contending that the decision of the majority is “at least open to serious
doubt”.
In view of The North Pioneer 2003 1 WLR 1015, the guidelines previously adopted
by the Singapore courts in Invar Realty and American Home Assurance Co. will
have to be carefully studied.
Liew ter kwang v hurry general contractor 2004 3 SLR 59 – decided under old act
also but may have some relevance wrt reqt of decisions of law applying for leave to
appeal
- 3 qns of law involved in std lump sum building contract and held inter alia
by Judith prakash J tt determoination of qns of law wld have substantial
effect on rights of one or more parties to arbitration
- leave to appeal accordingly given
The Court may also order the applicant to provide security for costs of the appeal: s
50(5), subject to the restrictions in s 50(6).
The need for quick resolution of the dispute is also reflected in s 52(2) where the
court in hearing an application for leave shall determine the application without a
hearing unless it appears to the court that this is required. This adopts Lord Diplock’s
approach in The Antaios, as the hearing of lengthy arguments would frustrate the
intention of the AA. As noted by Lord Roskill in The Antaios, ‘one purpose of
arbitration, especially in commercial disputes, is the avoidance of delays traditionally
if often unfairly associated with the judicial process. The award of an arbitral tribunal
can, it is supposed, be obtained swiftly and simply and without elaboration.’
(2) Subject to any provision made by Rules of Court, a requirement to give notice to
the arbitral tribunal of legal proceedings shall be construed —
(a) if there is more than one arbitrator, as a requirement to give notice to each of them;
and
(b) if the arbitral tribunal is not fully constituted, as a requirement to give notice to any
arbitrator who has been appointed.
(3) References in this Act to making an application or appeal to the Court within a
specified period are references to the issue within that period of the appropriate
originating process in accordance with the Rules of Court.
(4) Where any provision of this Act requires an application or appeal to be made to the
Court within a specified time, the Rules of Court relating to the reckoning of periods,
the extending or abridging of periods, and the consequences of not taking a step within
the period prescribed by the Rules, shall apply in relation to that requirement.
(5) Provision may be made by Rules of Court amending the provisions of this Act —
(a) with respect to the time within which any application or appeal to the Court must be
made;
(b) so as to keep any provision made by this Act in relation to arbitral proceedings in
step with the corresponding provision of the Rules of Court applying in relation to
proceedings in the Court; or
(c) so as to keep any provision made by this Act in relation to legal proceedings in step
with the corresponding provision of the Rules of Court applying generally in relation to
proceedings in the Court.
(6) Nothing in this section shall affect the generality of the power of the Rules
Committee to make Rules of Court.
(3) This section shall apply to an employee or agent of the appointing authority or of an
arbitral or other institution or person as it applies to the appointing authority, institution
or person himself.
Service of notices
60. —(1) The parties are free to agree on the manner of service of any notice or other
document required or authorised to be given or served in pursuance of the arbitration
agreement or for the purposes of the arbitration proceedings.
(2) If or to the extent that there is no such agreement as is referred to in subsection (1),
subsections (3) and (4) shall apply.
(3) A notice or other document may be served on a person by any effective means.
(5) This section shall not apply to the service of documents for the purposes of legal
proceedings, for which provision is made by Rules of Court.
(6) References in this Part to a notice or other document include any form of
communication in writing and references to giving or serving a notice or other
document shall be construed accordingly.
- The case of Myanma Yaung Chi Oo Co Ltd v Win Win Nu and another [2003] 2
SLR 547 brought out several important features with regard to the confidential nature
of arbitration proceedings. In that case, the second defendant had commenced
arbitration proceedings against the Government of Myanmar. The Plaintiffs (a joint
venture between the Government of Myanmar and the first defendant) had filed the
present legal proceedings in Singapore against the first and second defendants. In an
application for striking out, the first defendant had inter alia referred to the arbitration
proceedings and exhibited documents in those arbitration proceedings.
- The main issue before the High Court was whether parties in arbitration proceedings
have a duty to maintain confidentiality of the documents in those proceedings, and
whether leave of court was necessary for disclosure. The learned judge (Kan Ting
Chu J) discussed relevant English and Australian decisions. He preferred the English
approach over the Australian. He agreed that it was more in keeping with the parties’
expectations to take the position that the proceedings are confidential (There was an
implied obligation on a party obtaining documents not to disclose them or use them
for any purpose other than the dispute in which they were obtained), and that
disclosures can be made in accepted circumstances (with the consent of the other
party or by order or leave of the court, where it was reasonably necessary or where it
was in the interests of justice).
- The learned judge also held that there was no need to obtain the leave of the court
before making the disclosure. However, after disclosure is made, the party which
argues that it was not reasonably necessary to disclose (the “reasonably necessary”
exception) can apply to expunge the disclosure and the court will then decide whether
it was reasonably necessary to disclose.
- It was held that the time of application, the disclosure of the arbitration pleadings and
documents were reasonably necessary as it was required to support the defendant’s
case that the plaintiff’s suit was vexatious and an abuse of court.
- However, by the time of the appeal, the arbitration tribunal had held that it had no
jurisdiction to hear the matter thereby ending the arbitration proceedings. Hence it
was no longer reasonably necessary for any disclosure to be made.
Appointment of mediator
62. —(1) In any case where an agreement provides for the appointment of a
mediator by a person who is not one of the parties and that person refuses to make the
appointment or does not make the appointment within the time specified in the
agreement or, if no time is so specified, within a reasonable time of being requested by
any party to the agreement to make the appointment, the Chairman of the Singapore
Mediation Centre may, on the application of any party to the agreement, appoint
a mediator who shall have the like powers to act in the mediation proceedings as if he
had been appointed in accordance with the terms of the agreement.
(2) The Chief Justice may, if he thinks fit, by notification published in the
Gazette, appoint any other person to exercise the powers of the Chairman of the
Singapore Mediation Centre under subsection (1).
(3) Where an arbitration agreement provides for the appointment of a mediator
and further provides that the person so appointed shall act as an arbitrator in the
event of the mediation proceedings failing to produce a settlement acceptable to
the parties —
(a) no objection shall be taken to the appointment of such person as an arbitrator,
or to his conduct of the arbitral proceedings, solely on the ground that he had
acted previously as a mediator in connection with some or all of the matters
referred to arbitration; and
(b) if such person declines to act as an arbitrator, any other person appointed as an
arbitrator shall not be required first to act as a mediator unless a contrary intention
appears in the arbitration agreement.
(4) Unless a contrary intention appears therein, an agreement which provides for the
appointment of a mediator shall be deemed to contain a provision that in the event of
the mediation proceedings failing to produce a settlement acceptable to the parties
within 4 months, or such longer period as the parties may agree to, of the date of the
appointment of the mediator or, where he is appointed by name in the agreement, of the
receipt by him of written notification of the existence of a dispute, the mediation
proceedings shall thereupon terminate.
Transitional Provisions
Transitional provisions
65. —(1) This Act shall apply to arbitration proceedings commenced on or after 1st
March 2002 but the parties may in writing agree that this Act shall apply to arbitration
proceedings commenced before that date.
(2) Notwithstanding the repeal of the Arbitration Act (Cap. 10, 1985 Ed.), where the
arbitration proceedings were commenced before 1st March 2002, the law governing the
arbitration agreement and the arbitration shall be the law which would have applied if
this Act had not been enacted.
(3) Where an arbitration agreement made or entered into before 1st March 2002
provides for the appointment of an umpire or an arbitral tribunal comprising 2
arbitrators, the law to the extent that it governs the appointment, role and function of
the umpire shall be the law which would have applied if this Act had not been enacted.
(4) For the purposes of this section, arbitration proceedings are to be taken as having
commenced on the date of the receipt by the respondent of a request for the dispute to
be referred to arbitration, or, where the parties have agreed in writing that any other
date is to be taken as the date of commencement of the arbitration proceedings, then on
that date.