The Legal 500

In this issue
Hot-tubbing in International Arbitration…1
By Chia Voon Jiet
Upcoming Amendments to the International Arbitration Act …………….. 3
By Chew Kiat Jinn & Mahesh Rai

After more than two years of review by a working group and various consultations with arbitrators and practitioners, the China International Economic and Trade Arbitration Commission (CIETAC) has published its revised Arbitration Rules (the “2012 Rules”), which will replace the existing Arbitration Rules which have been in place since 1 May 2005 (the “2005 Rules”).

SLRC proposes right to judicial review

Singapore is the fifth top seat of arbitration for International Chamber of Commerce-International Court of Arbitration cases, with the arbitration caseload increasing in Singapore at the Singapore International Arbitration Centre from 160 in 2009 to 198 in 2010.

To common law practitioners, cross-examination of witnesses is a critical part of any arbitration because it gives counsel an opportunity to test the veracity of the other party’s evidence.

I. Introduction This article looks at the recent Singapore Court of Appeal decision in AJU v AJT, [2011] SGCA 41. The case involved considerations of public policy and the extent of judicial review in arbitral awards. In a resonating decision, the Court of Appeal affirmed its minimal interventionist approach. This reinforces Singapore‟s position as a leading arbitration centre by upholding the finality of arbitral proceedings.

As more maritime disputes are being referred to arbitration in recent years, it becomes vital for countries to adjust their arbitration laws to accommodate to commercial practicability. Along these lines, with the aim to move Malaysia forward in providing a competitive edge in this growing global arbitration arena, the Arbitration Act 2005 in Malaysia has recently been amended to provide extra measures to facilitate arbitral proceedings involving admiralty dispute.

The International Who’s Who of Commercial Litigators has brought together three of the leading practitioners in the world to discuss key issues facing lawyers today.

Norwest Holdings Pte Ltd (in liquidation) v Newport Mining Ltd and another appeal [2011] SGCA 42

The Court of Appeal has ruled that a private bank owed its customer a duty of care both in contract and in tort, even though the agreements entered into between the parties did not contain any express terms requiring the bank to advise the customer. However, in its judgment, the Court of Appeal expressed the view that banks and other financial institutions may, with the use of appropriately drafted disclaimers or exclusion clauses, prevent a duty of care from arising.

There are two arbitration regimes in Singapore; 'domestic' arbitrations governed by the Arbitration Act 2002 (Cap.10, 2002 Rev.Ed.) and 'international' arbitrations governed by the International Arbitration Act (Cap. 143A, 2002 Rev.Ed.).  This article will discuss the international arbitration system.

“ALL REASONABLE ENDEAVOURS” OBLIGATION NOT LIMITED BY A PARTY’S COMMERCIAL INTERESTS

Jet2.com Ltd v Blackpool Airport Ltd [2011] EWHC 1529 (Comm)

In this issue
Arbitrability of Insolvency Related Claims
Retention of Title in International Sale of Goods
Should the Courts Injunct Arbitration Proceedings on the Basis of an Alleged Settlement Agreement?
Non-Arbitrability of Disputes With Public Interest Elements
ICCA Conference 2011

Tan Chong Koay & Anor v Monetary Authority of Singapore [2011] SGCA 36

In September 2010, the Singapore High Court ruled that Tan Chong Koay (“Tan”) and Pheim Asset Management Sdn Bhd (“Pheim Malaysia”) had contravened section 197(1)(b) of the Securities and Futures Act (“SFA”) by trading with the intention of creating a false or misleading appearance in the price of certain securities.

Jiang Ou v EFG Bank AG [2011] SGHC 149

In the recent decision of Jiang Ou v EFG Bank AG [2011] SGHC 149, the Singapore High Court awarded damages of approximately US$2.33 million to a customer for losses suffered as the result of 160 unauthorised transactions.

UK COURT OF APPEAL RULES THA “ENTIRE AGREEMENT” CLAUSE MAY NOT EXCLUDE LIABILITY FOR MISREPRESENTATION

Jones v Kaney [2011] UKSC 13
Summary

The UK Supreme Court, the UK’s highest court, has abolished the immunity from suit for breach of duty that experts have enjoyed in relation to their participation in legal proceedings.

NEW YORK COURT GRANTS PRE-AWARD ATTACHMENT IN AID OF SINGAPORE ARBITRATION

MAS ISSUES GUIDANCE ON FIT AND PROPER CERTIFICATION OF REPRESENTATIVES

Introduced in November 2007, the Code of Governance for Charities and Institutions of a Public Character (“Code”) sets out guidelines as to good governance in charities and Institutions of a Public Character (“IPCs”) with the underlying objective of boosting public confidence in the sector.

In one of the very few cases on assessment of damages heard by the Court of Appeal, the Court of Appeal has held that post-breach losses may be recoverable, thereby affirming the High Court’s decision in Fish & Co Restaurants Pte Ltd v MFM Restaurants Pte Ltd & Another [2010] 1 SLR 1104.

In this decision of international importance, the UK Supreme Court unanimously held that where a party resists enforcement of an arbitration award on the basis that there was no arbitration agreement binding upon it under the laws of the country where the award was made, the court of the country in which enforcement is sought is entitled, and indeed bound, to revisit the question of the arbitral tribunal’s jurisdiction.

The Court of Appeal's recent decision in The Asia Star is significant to the shipping industry, as the courts have now made clear that it is important for a charterer to consult a defaulting owner on the measures that the former intends to take in order to mitigate damage caused by the latter's contractual breach. 

The High Court has clarified the degree of disclosure required on an application for a warrant of arrest following The Vasiliy Golovnin.(1) An arresting party is not required to show that it is likely to win the case on the merits before invoking the Singapore court's admiralty jurisdiction. Rather, it must merely show that the court has prima facie jurisdiction in rem in the matter under the High Court (Admiralty Jurisdiction) Act.(2) The duty to make full and frank disclosure is meant to ensure that the Singapore court's power of arrest is not being abused or misused by the arresting party. 

MOF CONSULTATION PAPERS ON MERGERS AND ACQUISITIONS SCHEME

AGREEMENT STIFLING CRIMINAL PROCEEDINGS TAINTED BY ILLEGALITY; ARBITRATION AWARD UPHOLDING SUCH AGREEMENT SET ASIDE

This article discusses the Singapore Court of Appeal’s recent statement on the relationship between entire agreement clauses and implied terms.

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01.05.10 - Boey Swee Siang - Naresh Mahtani

There are two arbitration regimes in Singapore; 'domestic' arbitrations governed by the Arbitration Act 2002 (Cap.10, 2002 Rev.Ed.) and 'international' arbitrations governed by the International Arbitration Act (Cap. 143A, 2002 Rev.Ed.).  This article will discuss the international arbitration system.

The Singapore Exchange Ltd (the “SGX”) has issued a public consultation paper which sets out proposed amendments to the Listing Manual of the Singapore Exchange Securities Trading Ltd (the “Listing Manual”). The proposals are the result of the SGX’s latest rule review. Such reviews are carried out annually to keep abreast of industry developments and to enhance the standards of the listed companies.

The Singapore High Court has ruled that a rise in prices of sand, caused by a ban on sand exports (the “sand ban”) by the Indonesian government in January 2007, did not constitute a force majeure event which would relieve a concrete supplier of its obligations to supply concrete to a construction company. The court also highlighted the importance of being clear and unequivocal when communicating one’s intention to terminate a contract.

The Singapore Exchange Limited (the “SGX”) has announced two measures to assist companies listed on Catalist which have yet to appoint a sponsor (“Catalist-NS companies”). The measures are intended to provide financial assistance and time extension to Catalist-NS companies in light of the current challenging economic climate.

In this recent case, the Singapore Court of Appeal (the “Court”) applied well established propositions of patent law to a patent infringement claim relating to a business method. The Court also commented on the application of the plea of innocent infringement provided by section 69(1) of the Patents Act (Cap. 221).

The Singapore Court of Appeal has provided valuable guidance on the relationship between “entire agreement” clauses and implied terms in contracts. An “entire agreement” clause would arguably not, as a matter of principle, exclude the implication of terms into a contract. In order for an “entire agreement” clause to exclude implied terms, such effect must be spelled out clearly and unambiguously in the clause itself.

The Court of Appeal also held that a general duty of good faith could not be implied in law into contracts.

This case illustrates the circumstances in which a court will find a director personally liable for procuring a tortious act by the company of which he is a director.

The Singapore High Court has affirmed that pre-contractual negotiations and drafts may be admissible for interpreting latently ambiguous terms in the final contract as long as they: (i) are relevant; (ii) are reasonably available to the parties in the situation in which they were at the time of the contract; and (iii) relate to a clear or obvious context.

This principle is subject to one possible exception: extrinsic evidence that was available to only one party may be used against that party to show its subjective intention, so as to reveal what the objective intention of the parties could not be.

The Consumer Protection (Fair Trading) Act (the “CPFT Act”) and related subsidiary legislation are set to undergo several changes which will, among other things, extend their scope of protection to consumers of financial products and services.

The Singapore High Court has held that a company director may, in principle, be liable in conspiracy with a company of which he is the “moving spirit and controlling mind” under circumstances where they have established an arrangement which benefits the company to the detriment of third parties.