FOOTNOTES FOR INTERNATIONAL AND DOMESTIC ARBITRATION IN SINGAPORE

  

  

1 Sect. 3, Arbitration Act.

 

2 Sect. 5(1) IAA.

 

3 Sect. 3(1) IAA.

 

4 Sect. 5(3)(a) IAA provides that if the party has more than one place of business, the place of business shall be the one which has the closest relationship to the arbitration agreement. Sect. 5(3)(b) IAA provides that 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.

 

5 Sect. 5(2) IAA.

 

6 See further discussion below.

 

7 Mitsui Engineering and Shipbuilding Co Ltd v Easton Graham Rush and Another [2004] 2 SLR 14 (High Court).

 

8 Sect. 49, Arbitration Act.

 

9 Progen Engineering Pte Ltd v. Winter Engineering (S) Pte Ltd [2006] SGHC 224.

 

10 Sect. 45, Arbitration Act.

 

11 Sect. 15(1), IAA.

  

12 Sect. 5(1) IAA. Sect. 15 IAA.

 

13 As adopted by UNCITRAL on 28 April 1976; see ILM (1976) p. 701 and ICCA Yearbook Commercial Arbitration (hereinafter Yearbook) II (1977) pp. 161-171.

 

14 However, parties are free to nominate their own arbitrator if so provided in the arbitration agreement.

 

15 By Gazette Notification No. 1656 and No. 1653 published on 2 July 2004; Sect. 8(2) IAA read with Art. 11(3) and (4) Model Law, IAA; Sect. 13, Arbitration Act.

 

16 The SIAC will search and select suitable candidates to be arbitrator, conduct conflict checks and negotiate and fix fees with the arbitrator.

 

17 The SIAC will, inter alia, act as agent of the Tribunal in collecting advances and deposits, render regular statements of account and ensure the smooth processing of the Tribunal’s fees and expenses (Rule 11 & 33 of Practice Note for administered cases PN-01/07).

 

18 The SIAC Rules were first introduced in 1991, It was amended in 1997 (“SIAC Rules 1997”) and again in 2007. The current SIAC Rules 2007 took effect from 1 July 2007.

 

19 The Schedule of SIAC Administration Fee is taken effective from 1 July 2007.

 

20 The amendment was introduced via the Legal Professional (Amendment) Bill 2004 (B17/2004) which was passed in Parliament on 15 June 2004 and was made effective on 14 September 2004. The appearance for foreign lawyer in patent proceeding is subject to several requirements. (website of AGC, FAQ)

 

21 Sect. 4(1), Arbitration Act.

 

22 Sect. 4(2), Arbitration Act. Sect. 4(1) and (2) of the Arbitration Act correspond to Art. 7(1) of the Model Law.

 

23 Sect. 4(3), Arbitration Act. This provision is similar to that in Art. 7(2) of the Model Law.

 

24 Sect. 2(3), IAA; Sect. 4(4), Arbitration Act.

 

25 Sect. 2(4), IAA; Sect. 4(5), Arbitration Act.

 

26 The most commonly used arbitration clause is the SIAC Model Arbitration Clause:

“Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in [Singapore] in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (‘SIAC Rules’) for the time being in force which rules are deemed to be incorporated by reference in this clause.”

Parties may add:

“The tribunal shall consist of ... arbitrator(s) to be appointed by the Chairman of SIAC.”

“The language of the arbitration shall be ....”

“ This contract is governed by the laws of …”

 

27 Art. 16(1) Model Law, IAA, Sect. 21(2) Arbitration Act.

 

28 Art. 16(1) Model Law, IAA; Sect. 21(3), Arbitration Act.

 

29 Art. 16(3) Model Law, IAA read with Art. 6 Model Law and Sect. 8(1) IAA. See also Sect. 21(9) Arbitration Act.

 

30 Sect. 10 IAA. However, Sect. 10 IAA further states that the High Court’s refusal to grant leave to appeal to the Court of Appeal is not appealable. Note that there is no such express restriction in the Arbitration Act.

 

31 PT Asuransi Jasa Idonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597 (CA), reversing the decision of the High Court in PT Asuransi Jasa Indonesia (Persero) V. Dexia Bank SA [2006] 1 SLR 197(HC).

 

32 Like courts in many common law jurisdiction, courts in Singapore takes the view that an arbitration agreement does not automatically oust the court’s jurisdiction and would not dismiss the cases brought before them, unlike in many civil law jurisdictions, where would dismiss the actions or decline to exercise jurisdiction.

 

33 Sect. 6, Arbitration Act.

 

34 Sect. 6(2), Arbitration Act.

 

35 Sect. 6(2) IAA.

 

36 Sect. 6(3), IAA; Sect. 6(3), Arbitration Act.

 

37 Sect. 6(4), IAA; Sect. 6(4), Arbitration Act.

 

38 That the arbitrator does not possess the qualifications agreed to by the parties is one of the grounds on which the arbitrator may be challenged: Art. 12(2) Model Law and Sect. 14(3)(b) Arbitration Act.

 

39 Art. 11(1) Model Law, IAA.

 

40 Many of the arbitrators are members of the Singapore Institute of Arbitrators and/or the Chartered Institute of Arbitrators, London, although membership in such institutions is not a condition for acting as arbitrator.

 

41 Sect. 14(1), Arbitration Act.

 

42 Art. 12 Model Law, IAA.

 

43 Rule 9.2, SIAC Rules.

 

44 Sect. 14(2), Arbitration Act, Art. 12(1), Model Law, IAA. See also Rule 2.1 of Code of Ethics for an Arbitrator of SIAC.
 

45 Sect. 14(3), Arbitration Act, Art. 12(2), Model Law, IAA.

 

46 R v. Bow Street Metropolitan Stipendiary Magistrate and Ors Ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272.

 

47 Jeyaratnam Joshua Benjamin v. Lee Kuan Yew   [1992] 2 SLR 310, following the test laid down by the English case of R v. Liverpool City Justices ex p. Topping [1983] 1 WLR 119; Turner (East Asia) Pte Ltd v. Builders Federal (Hong Kong) Ltd & Anor [1998] SLR 532.

 

48 Yee Hong Pte Ltd v. Powen Electrical Engineering Pte Ltd [2005] 3 SLR 512.

 

49 Sect. 12(2), Arbitration Act; Sect. 9, IAA and Rule 5, SIAC Rules. Note that Sect. 9, IAA modifies Art. 10(2) Model Law.

 

50 Sect. 19, Arbitration Act and Art. 29 Model Law, IAA requires that the award be made by a majority of the arbitrators. It sometimes happens that parties agree to two arbitrators and further agree that, should the two arbitrators not agree, the matter will be referred to a third person as an umpire. However, this practice is not very common. It is also possible (although less probable) that a tribunal of an odd number of arbitrators may not be able to reach decision by a majority if each maintains his own view and decision. The SIAC Rules provide that, in such a situation, the decision of the presiding arbitrator shall be binding (Rule 27.4 SIAC Rules).

 

51 Supra note 16. Sect. 13(3)(b) Arbitration Act, Art. 11(3)(b) Model Law, IAA read with Art. 6 Model Law and Sect. 8(2) IAA.

 

52 Rules 5, 6 and 7 SIAC Rules.

 

53 Sect. 9A, IAA.

 

54 Supra note 16. Sect. 13(4) Arbitration Act, Sect. 9A IAA.

 

55 Supra note 16. Sect. 13(5) Arbitration Act; Art. 11(4) Model Law, IAA.

 

56 Art. 11(5) Model Law, IAA.

 

57 Sect. 13(7) Arbitration Act states that “No appointment by the appointing authority shall be challenged except in accordance with this Act”.

 

58 Sect. 23(1), Arbitration Act; Art. 19(1) Model Law, IAA.

 

59 Sect. 23(2), Arbitration Act; Art. 19(2) Model Law, IAA.

 

60 Sect. 24, IAA; Art. 23 Model Law, IAA.

 

61 Rule 16, SIAC Rules.

 

62 Rule 17 SIAC Rules. This procedure was introduced only in 2007 edition of the SIAC Rules. Previous editions do not contain such a process.

 

63 Art. 24(1), Model Law, IAA; Sect. 25, Arbitration Act.

 

64 Rule 21.1, SIAC Rules.

 

65 Sect. 2(1), Evidence Act Cap. 97.

 

66 Art. 19(2) ,Model Law, IAA; Sect. 23(3), Arbitration Act.

 

67 Sect. 28(2), Arbitration Act.

 

68 Set out in Sect. 12, IAA.

 

69 Sect. 12(1)(g), IAA and Sect. 12(1)(e) IAA. There is no similar power for arbitrators under the Arbitration Act. Only the High Court has the power to grant interim injunctions and/or any other interim measures or order to secure the amount in dispute: Sect. 31(1)(b) and (d), Arbitration Act.

 

70 SIAC Trust Account.

 

71 Rule 24(g), SIAC Rules; Sect. 12(1)(d), IAA; Sect. 28(2)(g), Arbitration Act.

 

72 Sect.12(6), IAA; Sect. 28(4), Arbitration Act.

 

73 Sect. 12(7), IAA; Sect 31(1)(a), Arbitration Act.

 

74 There is no equivalent provision in the IAA.

 

75 Sect. 2(1), IAA; Sect. 2(1), Arbitration Act.

 

76 Sect. 28, Arbitration Act and Sect. 12, IAA.

 

77 PT Asuransi Jasa Idonesia (Persero) v. Dexia Bank SA [2006] 1 SLR 197 (HC), [2007] 1 SLR 597 (CA); Government of the Republic of the Philippines v. Philippines International Air Terminals Co, Lnc [2007] 1 SLR 278.

 

78 Sect. 46, Arbitration Act; Sect. 19, IAA.

 

79 An arbitrator acting under the Arbitration Act who fails to use reasonable dispatch in making the award, however, risks being removed by the court, provided it can be shown that the delay causes substantial injustice to the party applying for the removal. See Sect. 16(1)(b), Arbitration Act.

 

80 Sect. 36, Arbitration Act.

 

81 Rule 27.1, SIAC Rules.

 

82 Art. 31(1), Model Law, IAA; Sect. 38(1)(b), Arbitration Act; Rule 27.4, SIAC Rules.

 

83 Sect. 38(2), Arbitration Act; Art. 31(2), Model Law, IAA.

 

84 Art. 31(3), Model Law, IAA; Sect. 38(3), Arbitration Act.

 

85 In practice, where the award involves parties from different jurisdictions, a certificate of authentication is attached to the award to facilitate enforcement under the New York Convention 1958.

 

86 Sect. 19B(3) IAA, and Sect. 44(3), Arbitration Act provide that the award is made when it is “signed and delivered” in accordance with Art. 31 Model Law and Sect. 38 Arbitration Act respectively.

 

87 Sect. 44(1), Arbitration Act; Sect. 19B, IAA.

 

88 Art. 33(1)(a), Model Law, IAA; Sect. 43(1)(a), Arbitration Act.

 

89 Art. 33(1) and (2), Model Law; Sect. 43(1), Arbitration Act; Rules 28.1 and 28.2, SIAC Rules.

 

90 Rule 28.4 SIAC Rules.

 

91 Art. 33(1), Model Law, IAA; Sect. 43(2), Arbitration Act.

 

92 Art. 33(3), Model Law, IAA; Sect. 43(4), Arbitration Act; Rule 28.3, SIAC Rules.

 

93 Rule 28.3, SIAC Rules.

 

94 Art.33(3) , Model Law, IAA; Sect.43(5), Arbitration Act.

 

95 Sect. 49, Arbitration Act. No appeal is permitted under the IAA.

 

96 Sect. 49(2), Arbitration Act.

 

97 Sect. 50(3), Arbitration Act.

 

98 Sect. 49, Arbitration Act.

 

99 These remedies are correction or interpretation of award and additional award. Sect. 50(2) Arbitration Act.

 

100 Sect. 49(7), (11) Arbitration Act; Ng Chin Siau v How Kim Chuan ([2007] SGCA 46.

 

101 Sect. 48, Arbitration Act.

 

102 Art. 34, Model Law, IAA. Under the IAA, the High Court may, in addition to the grounds enumerated in the Model Law, set aside an award if the making of the award was induced or affected by fraud or corruption, or 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. See Sect. 24, IAA.

 

103 Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] SGCA 28.

 

104 Awards under IAA: Art 34(3), Model Law, IAA, Order 69A, Rule 2(4), Rules of Court (2006 Rev Ed); Award under Arbitration Act: Sect. 48(2), Arbitration Act, Order 69, Rule 2(1), Rules of Court(2006 Rev).

 

105  Sect. 46(1), Arbitration Act.

 

106  Sect. 19, IAA.

 

107  As for procedure, see Order 69 and Order 69A, Rules of Court (2006 Rev Ed).

 

108  Order 69A, Rule 3(3), Rules of Court (2006 Rev Ed).

 

109  Order 57, Rule 4, Rules of Court (2006 Rev Ed).

 

110  Sect. 6, Limitation Act Cap. 163.

 

111   Order 69A, Rule 6, Rules of Court (2006 Rev Ed).

 

112  Order 57, Rule 4, Rules of Court  (2006 Rev Ed).

 

113  Order 57, Rule 15, Rules of Court  (2006 Rev Ed).

 

114  Sect. 36(1), Supreme Court of Judicature Act Cap. 322.

 

115 Para. 254 of Michael Hwang S.C. and Andrew Chan’s Singapore Chapter in Michael Moser, gen. ed.,  Arbitration in Asia (Butterworths 2001).

 

116 Including grounds on the existence of fraud, corruption and the breach of natural justice, being additional grounds to set aside the award under the IAA.

 

117 Where an action arises out of an award on a salvage award or a claim under a charterparty, it falls within the Admiralty jurisdiction of the High Court and an action in rem could be brought. See Alexander G Tsavliris & Sons Maritime Co v. Keppel Corp Ltd [1995] 2 SLR 113.

 

118 Sect. 19, IAA read with Sect. 29 of the IAA.

 

119 Sect. 29(2), IAA.

 

120 Sect. 6(1)(c), Limitation Act Cap. 163.

 

121 Order 69A, Rule 6(4), Rules of Court (2006 Rev Ed).

 

122 Order 69A, Rule 6(4), Rules of Court (2006 Rev Ed). The rationale here is to give the debtor the opportunity to contest the enforcement of the award under Art. V of the Convention as the first order would have been obtained ex parte without the debtor being heard.

 

123 Sect. 31(2) IAA provides as follows:

 

A court so requested may refuse enforcement of a foreign award if the person against whom enforcement is sought proves to the satisfaction of the court that —

 

(a) a party to the arbitration agreement in pursuance of which the award was made was, under the law applicable to him, under some incapacity at the time when the agreement was made;

(b) the arbitration agreement is not valid under the law to which the parties have subjected it or, in the absence of any indication in that respect, under the law of the country where the award was made;

(c) he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case in the arbitration proceedings;

(d) subject to subsection (3), the award deals with a difference not contemplated by, or not falling within the terms of, the submission to arbitration or contains a decision on the matter beyond the scope of the submission to arbitration;

(e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(f) the award has not yet become binding on the parties to the arbitral award or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.”

 

124 The Singapore courts have yet to refuse enforcement of any Convention award. As at December 1994, more than 30 awards have been enforced.

 

125 Sect. 29A, Supreme Court of Judicature Act (Cap. 322).

 

126 Sect. 46(1) read with 46(3) of the Arbitration Act.

 

127 Cap. 11, Rule 1. The ICSID Convention has been given statutory force in the Arbitration (International Investment Disputes) Act (Cap 11).

 

128 Cap. 322, Rule 5; Rule 2(2) of the Arbitration (International Investment Disputes) Rules stipulates that Order 67 of the Rules of Court (2006 Rev Ed.) shall apply, with the necessary modifications, to awards made under the ICSID Convention as it applies to any judgments to which Part II of the Reciprocal Enforcement of Foreign Judgments Act Cap. 265 (REFJA) applies. Order 67 of the Rules of Court (2006 Rev Ed.) sets out the procedure for the registration of foreign judgments to which the REFJA relate.

 

129 Reciprocal Enforcement of Commonwealth Judgments (Extension) (Consolidation) Notification NI, 1999 Rev. Ed. lists the territories to which the Act extends. For Australia, see Declaration under Sect. 5 (Cap. 264, Declaration 1) (24 September 1993).

 

130 Reciprocal Enforcement of Commonwealth Judgments Act Cap. 264 (RECJA).

 

131 For example, until 14 July 2005Pakistan did not ratify the Convention. Awards made prior to the date would then have to be enforced under RECJA.

 

132 Sect. 3, RECJA.

 

133 Sect. 3(2), RECJA.

  


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