Singapore: International Arbitration

In Singapore, the International Arbitration Act 1994 (2020 Revised Edition) (Cap. 143A) (IAA) applies to international commercial arbitrations seated in Singapore, commonly referred to as international arbitrations. The IAA incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (adopted by UNCITRAL in 1985) (the UNCITRAL Model Law). The IAA also gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention). By contrast, the Arbitration Act 2001 (2020 Revised Edition) (Cap. 10) (AA) applies to any domestic arbitrations in Singapore (i.e., arbitrations that are not international as defined in Part II of the IAA). Nonetheless, parties may agree in writing to the application of Part II of the IAA or of the UNCITRAL Model Law.

While parties are free to agree on the law applicable to the arbitration, certain mandatory laws do impact international arbitration in Singapore, such as portions of the IAA related to judicial review of tribunal jurisdiction and the enforcement or setting aside of arbitral awards.

In 1986, Singapore acceded to the New York Convention, which remains in force in Singapore today. Singapore has expressed the sole reservation that it will apply the New York Convention to the recognition and enforcement of only those awards made in the territory of another Contracting State, with the schedule of Contracting States appearing in the IAA (Cap. 143A, s 32(1)) International Arbitration (New York Convention Countries) Order.

Singapore currently has 38 bilateral investment treaties (BITs) in force and another 33 treaties with investment provisions (TIPs) in force (see https://investmentpolicy.unctad.org/international-investment-agreements/countries/190/singapore   ). Many of these international investment agreements provide for investment treaty arbitration between foreign investors and the relevant host State in certain circumstances.

After signing the United Nations Convention on International Settlement Agreements Resulting from Mediation (2018) (the Singapore Convention) on 7 August 2019, Singapore ratified the same on 25 February 2020. The Singapore Convention entered into force in Singapore on 12 September 2020. While the Singapore Convention applies to mediated settlement agreements rather than directly to arbitration, it is an arbitration-related international instrument in that it may provide additional options for parties to pursue international mediated settlement with an increased likelihood of enforcement as an alternative to or in parallel with traditional arbitration.

Singapore is also a Contracting State of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States which established the International Centre for Settlement of Investment Disputes.

Yes, the IAA is based on the UNCITRAL Model Law, with s 3(1) of the IAA giving the UNCITRAL Model Law the force of law in Singapore (the sole exception is Chapter VIII (Recognition and Enforcement of Awards)).

Not at the moment. The International Arbitration (Amendment) Act 2020 (No. 32 of 2020) was implemented on 1 December 2020 and introduced a number of key amendments, including with respect to the default appointment of arbitrators and the expanded scope of tribunal authority to enforce confidentiality obligations in arbitration.

Arbitral institutions present in Singapore include the following (the most recently amended rules are listed below each institution):

• Singapore International Arbitration Centre (SIAC)
  • SIAC Rules (6th Edition, 1 August 2016)
  • SIAC Investment Arbitration Rules (1st Edition, 1 January 2017)
  • SIAC SGX-DC Arbitration Rules (1st Edition, 27 March 2006)
  • SIAC SGX-DT Arbitration Rules (1st Edition, 1 July 2005)
• International Court of Arbitration of the International Chamber of Commerce (ICC)
  • ICC Rules of Arbitration (2021)
• Permanent Court of Arbitration (PCA)
  • PCA Arbitration Rules (2012)
• Singapore Chamber of Maritime Arbitration (SCMA)
  • SCMA Arbitration Rules (4th Edition, January 2022)
• International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association
  • ICDR International Dispute Resolution Procedures (2021)
• World Intellectual Property Organization (WIPO) Arbitration and Mediation Center
  • WIPO Arbitration Rules (2021)

SIAC has commenced the process of reviewing the SIAC Rules (2016) as well, establishing a Rules Revision Executive Committee as well as ‘Subcommittees on (i) Multiple Contracts, Consolidation, and Joinder; (ii) Expedited Procedure and Emergency Arbitration; (iii) Appointment and Challenges; (iv) Arbitral Procedure and Powers of the Tribunal (including Early Dismissal); (v) New Technology and New Procedures; and (vi) Drafting’.

In light of the prominence of the ICC Rules of Arbitration and the SIAC Rules in international arbitral practice in Singapore, responses to the questions below calling for institutional practice in Singapore focus on these two sets of rules.

S 8(1) of the IAA appoints the High Court in Singapore as the ‘Court or other authority for certain functions of arbitration assistance and supervision’ under Article 6 of the UNCITRAL Model Law (with some exceptions relating to the appointment of arbitrators under Article 11 of the UNCITRAL Model Law). While the High Court is not a ‘specialist arbitration court’ as such, the sophistication of the Singaporean judiciary with respect to arbitration is respected around the world.

S 2A(1) of the IAA defines an ‘arbitration agreement’ as ‘an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not’. S 2A(2) provides that ‘[a]n arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement’, and s 2A(3) further confirms that ‘[a]n arbitration agreement must be in writing’. In this regard, s 2A(4) also clarifies that ‘[a]n arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct or by other means’. Finally, s 2A(5) provides that ‘[t]he requirement that an arbitration agreement must be in writing is satisfied by an electronic communication if the information contained in the electronic communication is accessible so as to be useable for subsequent reference’.

Yes. Article 16(1) of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, states as follows:

‘The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.’

No. In the 2019 case of BNA v BNB and another, [2019] SGHC 142, Vinodh Coormaraswamy J stated specifically as follows (at [52]): ‘I do not accept that the validation principle forms a part of Singapore’s arbitration law’. In considering an appeal from that case, the Singapore Court of Appeal found it ‘unnecessary to deal with some of the points considered by the Judge — specifically the validation principle’. BNA v BNB and another, [2020] 1 SLR 456, at [95]. As such, the High Court’s decision provides the most recent statement of the law with respect to the ‘validation principle’ in Singapore.

The SIAC Rules (2016) provide for applications for joinder prior to constitution of the tribunal in the case of multi-party arbitration in which the party to be joined is prima facie bound by the arbitration agreement or all parties have consented (Rule 7.1).

The SIAC Rules (2016) also provide for applications for consolidation in multi-contract situations (under Rule 6) in accordance with Rule 8 (Consolidation), which allows for such applications prior to tribunal constitution where any of the following criteria is satisfied:

• ‘all parties have agreed to the consolidation’;
• ‘all the claims in the arbitrations are made under the same arbitration agreement’; or
• ‘the arbitration agreements are compatible, and: (i) the disputes arise out of the same legal relationship(s); (ii) the disputes arise out of contracts consisting of a principal contract and its ancillary contract(s); or (iii) the disputes arise out of the same transaction or series of transactions’ (Rule 8.1).

There are also provisions for the joint appointment of one arbitrator by claimant(s) and one arbitrator by respondent(s) in multi-party arbitrations involving three arbitrators under the SIAC Rules (Rule 12) and the PCA Arbitration Rules (Article 10(1)).

Similarly, the ICC Rules of Arbitration provide processes (a) for joinder of additional parties under Article 7; and (b) for ‘claims arising out of or in connection with more than one contract’ to ‘be made in a single arbitration’ under Article 9 (subject to certain requirements, including under Article 6 (Effect of the Arbitration Agreement)).

Generally, the Courts of Singapore order third parties to be bound by an arbitration agreement only with the consent of the parties. As the Singapore High Court observed in the 2014 case of The Titan Unity, [2014] SGHCR 4 (at [24]):

‘Consent is the very foundation of arbitration, without which an arbitral tribunal’s authority to hear and determine the dispute is non-existent. If a court orders a joinder notwithstanding the lack of consent, it would force a party to bring its dispute to be adjudicated by a forum which has no jurisdiction to decide the matter [and] from which no enforceable award could be rendered. More fundamentally, the non-consenting party would be denied its right to access the courts when it has not waived its right to do so in the form of an arbitration agreement. As such, in adherence with the spirit of the Model Law and the New York Convention, a court has the power to order a joinder only with the parties’ consent.’

This principle of required consent to be bound by an arbitration agreement was also applied more recently in the case of A co and others v D and anor, [2018] SGHCR 9.

Nevertheless, s 9 of the Singapore Contracts (Rights of Third Parties) Act 2001 does provide for a third party (i.e., a person who is not a party to the relevant contract) to be ‘treated for the purposes of the Arbitration Act 2001 or the International Arbitration Act 1994 (as the case may be) as a party to the arbitration agreement’ in certain situations in which the third party has a right to enforce a term in the relevant contract under s 2 of the same act.

S 11(1) of the IAA states that ‘[a]ny dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so’. There is no exhaustive list of types of disputes the resolution of which by arbitration would be contrary to public policy and that are, therefore, non-arbitrable in Singapore. The Singapore Court of Appeal has recognized several types of disputes that may be non-arbitrable, however, based on the legislative histories of the AA and the IAA in the case of Larsen Oil and Gas Pte Ltd v Petropod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore), [2011] 3 SLR 414 [Larsen], at [29]. Areas of law that the Larsen Court recognized to have public interest elements that may give rise to non-arbitrability include:

• citizenship or legitimacy of marriage;
• grants of statutory licenses;
• validity of registration of trademarks or patents;
• copyrights;
• winding-up of companies;
• bankruptcies of debtors; and
• administration of estates.

Additionally, in the case of Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals, [2016] 1 SLR 373 (‘Tomolugen’), the Singapore Court of Appeals found that a dispute over minority oppression or unfair prejudice is arbitrable in Singapore. The Tomolugen Court stated as follows at paragraph [84]:

‘In our judgment, a claim for relief under s 216 of the Companies Act stands on a different footing from the liquidation of an insolvent company or avoidance claims that arise upon insolvency because the former generally does not engage the public policy considerations involved in the latter two situations. There is certainly nothing in the text of s 216 to suggest an express or implied preclusion of arbitration. Nor does the legislative history and statutory purpose of the provision suggest that a dispute over minority oppression or unfair prejudice is of a nature which makes it contrary to public policy for the dispute to be adjudicated by an arbitral tribunal.’

In Singapore, ‘the governing law of an arbitration agreement is to be determined in accordance with a three-step test’ in which the following are considered:

• ‘the parties’ express choice’;
• ‘the implied choice of the parties as gleaned from their intentions at the time of contracting’; and
• ‘the system of law with which the arbitration agreement has the closest and most real connection’. BCY v BCZ, [2017] 3 SLR 357 at [40] (internal citations omitted).

In BCY v BCZ, the Singapore High Court found that, where an arbitration agreement does not contain an express choice of governing law, ‘the implied choice of law for the arbitration agreement is likely to be the same as the expressly chosen law of the substantive contract’. BCY v BCZ, [2017] 3 SLR 357 at [49]. In the 2020 case of BNA v BNB and another, [2020] 1 SLR 456 at [45], the Singapore Court of Appeal recognized that the BCY v BCZ framework ‘mirrors the framework set out by the English Court of Appeal in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others, [2013] 1 WLR 102’ and that ‘[s]uch a framework accords with the established common law rules for ascertaining the proper law of any contract’.

In JIO Minerals FZC and others v Mineral Enterprises Ltd, [2011] 1 SLR 391 at [79], the Singapore Court of Appeal held as follows:

‘It is well established that a three-stage approach is applied to determine the governing law of a contract (see, for example, the decision of this court in Pacific Recreation Pte Ltd v S Y Technology Inc [2008] 2 SLR(R) 491 (Pacific Recreation) at [36]). At the first stage, the court considers if the contract expressly states its governing law (the Express Law). If the contract is silent, the court proceeds to the second stage and considers whether it can infer the governing law from the intentions of the parties (the Implied Law). If the court is unable to infer the parties’ intentions, it moves to the third stage and determines the law which has the closest and most real connection with the contract (the Objective Law).’

The Singapore Court of Appeal recently described this test (i.e., judicial determination of the choice of law by reference to Express Law, Implied Law and Objective Law in three sequential stages as necessary) approvingly as the ‘traditional three-stage test’. See Lew, Solomon v Kaikhushru Shiavax Nargolwala and others and another appeal, [2021] 2 SLR 1 at [9].

Transnational principles such as the UNIDROIT Principles of International Commercial Contracts (the UNIDROIT Principles) have featured in only a handful of cases in the Singapore Courts, generally by reference as a persuasive source of law (see, e.g., the Singapore Court of Appeal’s discussion of the protection of the rights of debtors in the case of assignment by reference to the UNIDROIT Principles at BXH v BXI, [2020] 1 SLR 1043 at [150]).

There are no restrictions in the appointment of arbitrators under the IAA.

Where the parties fail to agree on a procedure for appointing the arbitrator or arbitrators, Article 11(3) of the UNCITRAL Model Law, given force of law in Singapore via s 3(1) of the IAA, provides that (a) for tribunals with three arbitrators, each party shall appoint one arbitrator within 30 days of receipt of a request to do so from the other party, and both arbitrators selected shall appoint the third arbitrator within 30 days of their appointment, failing which the appointing authority shall appoint the relevant arbitrator upon party request; and (b) for sole arbitrators, the appointing authority shall select the sole arbitrator upon party request if the parties are unable to agree on the sole arbitrator to be appointed. S 8(2) of the IAA specifies the President of the SIAC Court of Arbitration as the competent authority for making such appointments under Article 11(3) of the UNCITRAL Model Law.

In arbitrations with three or more parties and three arbitrators, s 9B(1)(a) of the IIA also provides that ‘the claimant, or all the claimants by agreement if there is more than one claimant, must appoint an arbitrator on or before the date of sending of the request for the dispute to be referred to arbitration and inform the respondent or respondents of the appointment on the date when the request for the dispute to be referred to arbitration is sent to the respondent or respondents’. In turn, s 9B(1)(b) provides that ‘the respondent, or all the respondents by agreement if there is more than one respondent, must appoint an arbitrator and inform the claimant or claimants of the appointment within 30 days after the date of receipt of the request for the dispute to be referred to arbitration by the respondent, or by the last respondent to receive the request if there is more than one respondent’. S 9B(1)(c) also requires that ‘the two arbitrators appointed under paragraphs (a) and (b) must by agreement appoint the third arbitrator, who is to be the presiding arbitrator, within 60 days after the date of receipt of the request for the dispute to be referred to arbitration by the respondent, or by the last respondent to receive the request if there is more than one respondent’.

Additionally, s 9B(2) provides for the appointing authority to appoint all three arbitrators, designating one as the presiding arbitrator, in the event of the following:

(a) ‘the claimant or claimants fail to appoint an arbitrator, or fail to inform the respondent or respondents of such appointment, by the date specified in subsection (1)(a)’; or

(b) ‘the respondent or respondents fail to appoint an arbitrator, or fail to inform the claimant or claimants of such appointment, within the time specified in subsection (1)(b)’.

Finally, s 9B(4) requires that ‘the appointing authority must, upon the request of any party and having regard to all relevant circumstances, appoint the third arbitrator if the 2 arbitrators appointed by the parties fail to agree on the appointment of the third arbitrator within the time specified in subsection (1)(c)’.

Finally, s 9 of the IIA provides that, ‘[n]otwithstanding Article 10(2) of the Model Law, if the number of arbitrators is not determined by the parties, there shall be a single arbitrator.’

As mentioned above, s 8(2) of the IAA specifies the President of the SIAC Court of Arbitration as the competent authority for making appointments in the absence of party agreement under Article 11(3) of the UNCITRAL Model Law, which is given force of law in Singapore via s 3(1) of the IAA. S 8(3) does provide, however, that the Chief Justice of Singapore may ‘appoint any other person to exercise the powers of the President of the Court of Arbitration of the Singapore International Arbitration Centre under subsection (2)’.

Yes. The grounds for challenge of an arbitrator in Singapore are outlined at Article 12(2) of the UNCITRAL Model Law (given force of law in Singapore by s 3(1) of the IAA), which provides that ‘[a]n arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties’. Importantly, Article 12(2) also provides that ‘[a] party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made’.

Article 13(1) of the UNCITRAL Model Law allows parties to agree on a procedure for challenging arbitrators. With respect to arbitrations in which parties have agreed to the application of the SIAC Rules, for example, Rule 15.1 of the SIAC Rules provides as follows: ‘[a] party that intends to challenge an arbitrator shall file a notice of challenge with the Registrar in accordance with the requirements of Rule 15.2 within 14 days after receipt of the notice of appointment of the arbitrator who is being challenged or within 14 days after the circumstances specified in Rule 14.1 or Rule 14.2 became known or should have reasonably been known to that party’. While there is some overlap between the default position on arbitrator challenges under Singapore law and arbitral rules commonly selected by parties to Singapore-seated arbitration, applicable rules in each specific context must be consulted as divergent aspects may exist.

In the event that no procedure for arbitrator challenge has been agreed by the parties, Article 13(2) of the UNCITRAL Model Law provides that a party, within 15 days of becoming aware of the constitution of the tribunal or of the relevant circumstance under Article 12(2), shall ‘send a written statement of the reasons for the challenge to the arbitral tribunal’. In such a case, the arbitral tribunal shall then decide the challenge unless the challenged arbitrator withdraws or the non-challenging party agrees with the challenge.

In the event that a party is unsuccessful in challenging an arbitrator either under rules agreed by the parties or where no such rules have been agreed (as discussed above), Article 13(3) provides that the unsuccessfully challenging party ‘may request, within 30 days after having received notice of the decision rejecting the challenge, the [General Division of the High Court in Singapore] to decide on the challenge, which decision shall be subject to no appeal’. Article 13(3) also states that, ‘while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award’.

Recently, there has been some further clarification of how the Singapore Courts may apply the law regarding the duty of independence and impartiality of arbitrators in the context of an application to set aside an award following an arbitrator challenge in an ICC arbitration. In the case of BYL and another v BYN, [2020] 4 SLR 1 (BYL), the Singapore International Commercial Court (SICC) held (at [66]) that ‘[a] court must therefore be wary about drawing inferences of bad faith merely because an arbitrator has been laconic in his or her responses to disclosure requests or has expressed personal regret and hurt in a resignation letter’. The BYL Court also asserted, however, that this statement does not mean that an arbitrator ‘can be economical with the truth and make misleading statements’ (at [66]).

In BYL, one arbitrator had acted as co-counsel in a prior separate arbitration with a law firm (the Firm) that also represented one of the parties in the instant arbitration, although the arbitrator had done so ‘as an independent barrister and not sharing in the Firm’s profits and risks as a firm of solicitors’ (at [55]). The BYL Court found that ‘the nature and extent of [the Arbitrator]’s associations’ with the Firm did not ‘support a conclusion of apparent bias in relation to the ICC Award’ (at [54]). Ultimately, the BYL Court held that ‘the mere fact of [the arbitrator] being engaged or potentially engaged to act as co-counsel with the Firm would not of itself give rise to apparent bias’, but rather, ‘[f]or there to be cause for concern, there must be something about [the arbitrator]’s actual contact with the Firm’s representatives that gives rise to a reasonable suspicion of bias’ (at [55]).

In the recent case of BYL and another v BYN, [2020] 4 SLR 1 at [51], the SICC commented on an arbitrator’s duty of disclosure of conflicts of interest as follows:

‘The Plaintiffs submit (and I am prepared to accept) that, since the IBA Guidelines have achieved widespread acceptance as setting out current international practice for disclosure among arbitrators, the reasonable observer would be aware of the duty of disclosure as set out in the IBA Guidelines. However, the court must be careful, when evaluating whether the reasonable observer would harbour a justifiable suspicion of bias, not to assume knowledge beyond that of a reasonably well-informed member of the public. For instance, the court should not presume a detailed knowledge of law or arbitration practice or inside knowledge of the attributes of tribunal members: BOI at [103(d)]. A reasonable suspicion or apprehension of bias arises when the hypothetical reasonable observer would think, from the relevant circumstances, that bias is possible. The belief should not be fanciful and must be capable of articulation by reference to the available evidence. A standard of possibility (as opposed to probability) is adopted to ensure that from the public perspective the administration of justice is beyond reproach.’

Article 15 of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, provides that, ‘[w]here the mandate of an arbitrator terminates under Article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced’. In addition, s 31(2) of the IAA provides that the Singapore Courts may refuse enforcement of a foreign arbitral award ‘if the person against whom enforcement is sought proves to the satisfaction of the court that . . . (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’. As such, it may be possible for the Singapore Courts to refuse enforcement of an arbitral award rendered by a truncated tribunal.

Yes. S 25 of the IAA provides that ‘[a]n arbitrator shall not be liable for:

• negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and
• any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award.

Yes. Article 16(1) of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, provides that ‘[t]he arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement’. Additionally, the High Court in Singapore, in the recent case of 6DM (S) Pte Ltd v AE Brands Korea Ltd and others and another matter, [2022] 3 SLR 1300 at [30], has provided greater clarity in regard to the position on this point under Singapore law:

‘In Tomolugen, one of the key reasons for the adoption of the prima facie approach was the kompetenz-kompetenz principle found in Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (at [26] and [67]). The CA in Tomolugen was of the view that allowing (and, indeed, obliging) the court seised of jurisdiction to make a full determination on the existence and scope of the arbitration clause would deprive the putative arbitral tribunal of its kompetenz-kompetenz (at [67]). Instead, the CA held that “the arbitral tribunal is to be the first arbiter of its own jurisdiction, with the court having the final say” [emphasis added] (at [66]). Thus, while the arbitral tribunal will determine the existence and scope of its own jurisdiction, its determination will “nonetheless remain subject to overriding court supervision in the form of an appeal under s 10(3) of the [International Arbitration Act (Cap 143A, 2002 Rev Ed)] against the arbitral tribunal’s jurisdictional ruling” (at [64]).’

Pursuant to s 6(1) of the IAA, in the event that a party to an arbitration agreement institutes proceedings in any court against another party to the same agreement in relation to any matter within the scope of their agreement to arbitrate, ‘any party to the agreement may, at any time after appearance and before delivering any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings so far as the proceedings relate to that matter’. In such a case, s 6(2) of the IAA provides that the relevant court ‘shall make an order, upon such terms or conditions as it may think fit, staying the proceedings so far as the proceedings relate to the matter, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed’. At s 6(3), the IAA further clarifies that, where such an order has been made, ‘the court may, for the purpose of preserving the rights of parties, make such interim or supplementary orders as it may think fit in relation to any property which is the subject of the dispute to which the order under that subsection relates’.

Article 21 of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, provides that, ‘[u]nless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent’.

Pursuant to s 8A(1) of the IAA, ‘the Limitation Act (Cap. 163) and the Foreign Limitation Periods Act 2012 shall apply to arbitral proceedings as they apply to proceedings before any court and any reference in both Acts to the commencement of proceedings shall be construed as a reference to the commencement of arbitral proceedings’.

Singapore’s State Immunity Act (Cap. 313) provides at s 3(1) that ‘[a] State is immune from the jurisdiction of the courts of Singapore’, except in cases in which:

• the relevant State has submitted to the jurisdiction of the Singapore Courts (s 4(1));
• the proceedings relate to a commercial transaction of the relevant State or a contractual obligation of the State falls to be performed at least partly in Singapore, with some exceptions (s 5(1));
• the relevant State has either made a contract of employment with an individual in Singapore or such a contract is to be at least partially performed in Singapore, with some exceptions (s 6(1));
• the proceedings are in respect of death, personal injury, or damage to or loss of tangible property that has been caused by an act or omission in Singapore (s 7(1));
• the proceedings are in relation to certain interests or obligations connected with immovable property (or movable property where ‘an interest arises by way of succession, gift or bona vacantia’) (s 8(1-2));
• the proceedings involve certain intellectual property rights (s 9(1));
• the proceedings involve certain types of membership of the relevant State in ‘a body corporate, an unincorporated body or a partnership’, with some exceptions (s 10(1));
• a State has agreed in writing to submit a dispute to arbitration, where the proceedings relate to such arbitration (s 11(1));
• one or more of a set of limited circumstances exist involving the commercial use of ships (s 12(1)); or
• the proceedings relate to liability for ‘any customs duty or excise duty’, ‘any goods and services tax’, or ‘any tax in respect of premises occupied by [the State] for commercial purposes’ (s 13).

Accordingly, a State may invoke state immunity in connection with proceedings in Singapore in which none of the above applies. The above regime for State immunity applies to entities separate from the State itself if and only if ‘the proceedings relate to anything done by [the entity] in the exercise of sovereign authority’ and ‘the circumstances are such that a State would have been so immune’ (s 16(2)).

The law in Singapore does not compel a respondent against whom arbitration proceedings have been commenced to take part in those proceedings. Article 25(b) of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, provides that, where ‘the respondent fails to communicate his statement of defence in accordance with Article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations’. Under Article 16 of the UNCITRAL Model Law, a respondent may raise a plea that an arbitral tribunal has no jurisdiction to the tribunal itself and seek judicial review in the High Court of Singapore of a ruling on a preliminary question in which the tribunal does find that it has jurisdiction within 30 days of receiving notice of such a ruling. In addition, the Singapore Court of Appeal has determined the following in Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd, [2019] 2 SLR 131, at [73]:

‘If the respondent believes that the arbitration tribunal has no jurisdiction, for one reason or another, he is perfectly entitled to sit by and do nothing in the belief that either the proceedings will not result in a final award against him or that, if an award is made, he will have valid grounds to resist enforcement. Such a respondent may therefore let the opportunity to challenge the tribunal’s jurisdiction afforded to him by Article 16 go unutilised.’

Under SIAC Rule 7, ‘a party or non-party to the arbitration’ may apply ‘for one or more additional parties to be joined in an arbitration pending under these Rules as a Claimant or a Respondent, provided that any of the following criteria is satisfied:

1. the additional party to be joined is prima facie bound by the arbitration agreement; or
2. all parties, including the additional party to be joined, have consented to the joinder of the additional party’ (Rules 7.1 and 7.8).

If the application is made prior to the constitution of the Tribunal, it is to be filed with the SIAC Registrar under Rule 7.1, with the decision on joinder to be made at the discretion of the SIAC Court of Arbitration under Rule 7.4 (or a Committee of the Court in accordance with the definition of “Court” under Rule 1.3). If the application is made after the constitution of the Tribunal, on the other hand, it is to be directed to the Tribunal itself, with the decision on joinder to be made at the Tribunal’s discretion under Rule 7.10. Any decision in regard to whether or not to grant an application for joinder under Rules 7.4 or 7.10 is without prejudice to the Tribunal’s ‘power to subsequently decide any question as to its jurisdiction arising from such decision’ (Rules 7.4 and 7.10). Additionally, in the event the SIAC Court of Arbitration decides to reject an application for joinder under Rule 7.4, such a decision ‘is without prejudice to any party’s or non-party’s right to apply to the Tribunal for joinder pursuant to Rule 7.8’.

Please see Question 12 above (in regard to whether third parties or non-signatories may be bound by an arbitration agreement) and Question 35 below (in regard to the role of local courts in the obtainment of evidence, including witness testimony).

Without prejudice to other powers set out under the IAA and the UNCITRAL Model Law, s 12(1) of the IAA outlines an arbitral tribunal’s ‘powers to make orders or give directions to any party for:

• security for costs;
• discovery of documents and interrogatories;
• giving of evidence by affidavit;
• the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;
• 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;
• the preservation and interim custody of any evidence for the purposes of the proceedings;
• securing the amount in dispute;
• ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party;
• an interim injunction or any other interim measure; and
• enforcing any obligation of confidentiality:
  1. that the parties to an arbitration agreement have agreed to in writing, whether in the arbitration agreement or in any other document;
  2. under any written law or rule of law; or
• under the rules of arbitration (including the rules of arbitration of an institution or organisation) agreed to or adopted by the parties.

For arbitrations governed by Part II of the IAA, s 12A(2) of the IAA provides that ‘the General Division of the High Court shall have the same power of making an order in respect of any of the matters set out in section 12(1)(c) to (j) as it has for the purpose of and in relation to an action or a matter in the court’, subject to the specific provisions of subsections (3) (considerations where the place of arbitration is or is likely to be outside of Singapore), (4) (applications for orders for the preservation of evidence or assets in cases of urgency), (5) (procedure in cases that are not urgent), and (6) (limiting action of the Singapore Courts to cases where the arbitral tribunal has no power or is unable to act effectively). Accordingly, the full scope of potential interim measures anticipated by the above language is within the power of the Singapore Courts.

Article 9 of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, further establishes that ‘[i]t is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure’.

Yes, anti-suit injunctions are available and enforceable in Singapore.

In John Reginald Stott Kirkham and others v Trane US Inc and others, [2009] 4 SLR(R) 428, at [28]–[29], the Singapore Court of Appeal recognized the following elements to be considered ‘in determining whether an anti-suit injunction ought to be granted’:

(a)    ‘whether the defendants are amenable to the jurisdiction of the Singapore court’;

(b)    ‘the natural forum for resolution of the dispute between the parties’;

(c)    ‘the alleged vexation or oppression to the plaintiffs if the foreign proceedings are to continue’;

(d)    ‘the alleged injustice to the defendants as an injunction would deprive the defendants of the advantages sought in the foreign proceedings’; and

(e)    ‘whether the institution of the foreign proceedings is in breach of any agreement between the parties’.

With regard to the specific context of arbitration, the Singapore Court of Appeal has also confirmed as follows in Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd, [2019] SGCA 10, at [68]:

‘In cases involving an arbitration agreement or an exclusive jurisdiction clause, it would suffice to show that there was a breach of such an agreement, and anti-suit relief would ordinarily be granted unless there are strong reasons not to: Donohue v Armco Inc [2002] 1 All ER 749 (“Donohue”), per Lord Bingham at [24]; Morgan Stanley Asia (Singapore) Pte v Hong Leong Finance Ltd [2013] 3 SLR 409 at [29]. There will be no need to adduce additional evidence of unconscionable conduct in such cases. Crucially, however, this approach is subject to an important caveat: there is no requirement for the court to feel any diffidence in granting an anti-suit injunction, “provided that it is sought promptly and before the foreign proceedings are too far advanced”: Aggeliki Charis Compania Maritima SA v Pagnan SpA (The “Angelic Grace”) [1995] 1 Lloyd’s Rep 87 at 96.’

Article 19 of the UNCITRAL Model Law (Determination of rules of procedure), given force of law in Singapore by s 3(1) of the IAA, provides that:

• ‘Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.’
• ‘Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.’

Additionally, s 12(1) of the IAA states in relevant part that ‘[w]ithout prejudice to the powers set out in any other provision of this Act and in the Model Law, an arbitral tribunal has powers to make orders or give directions to any party for: . . . (c) giving of evidence by affidavit’ as well as for ‘(e) 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 for ‘(f) the preservation and interim custody of any evidence for the purposes of the proceedings’. As such, the rules of procedure governing evidentiary matters in arbitration in Singapore are generally subject to agreement by the parties to a given dispute or to selection by the relevant arbitral tribunal with the tribunal empowered to determine the admissibility, relevance, materiality and weight of evidence accordingly.

S 12A of the IAA also provides for the availability of court-ordered interim measures in support of arbitration in certain circumstances, stating that ‘the General Division of the High Court has the same power of making an order in respect of any of the matters set out in section 12(1)(c) to (j) as it has for the purpose of and in relation to an action or a matter in the court.’ Further, under s 13(2) of the IAA, ‘The General Division of the High Court may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore’, although s 13(4) provides the additional qualification that ‘[n]o person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action’.

Signalling that the Singapore Courts will intervene in matters of evidence where a breach of natural justice has occurred, the Singapore Court of Appeal, in CBS v CBP, [2021] 1 SLR 935, recently upheld a decision of the Singapore High Court to set aside a Singapore Chamber of Maritime Arbitration (SCMA) arbitration award. The Court of Appeal found (at [71]) that ‘the arbitrator’s directions in excluding the entirety of the Buyer’s witness evidence is a material breach of the rules of natural justice’ where SCMA Rule 28.1 ‘does not confer on the arbitrator the power to summarily and effectively exclude all the Buyer’s witnesses from giving evidence at the hearing’.

Article 12 of the UNCITRAL Model Law (Grounds for challenge), given force of law in Singapore by s 3(1) of the IAA, requires an arbitrator to ‘disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence’, both ‘from the time of his appointment and throughout the arbitral proceedings’.

In addition to the above disclosure requirement in the IAA, SIAC also maintains its Code of Ethics for an Arbitrator, which addresses the topics of appointment, disclosure, bias, communications, fees, conduct and confidentiality with respect to arbitrators. The ICC has also recently released its updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (the Note) in January 2021, providing for guidance on ‘Conduct of Participants in the Arbitration’ as follows at [65]–[66]:

‘65. Arbitral tribunals, parties and their representatives are expected to abide by the highest standards of integrity and honesty, to conduct themselves with honour, courtesy and professionalism, and to encourage all other participants in the arbitral proceedings to do the same.

66. Arbitrators shall discharge their duties in accordance with the Rules, be at all times independent and impartial, avoid any behaviour that may create a conflict of interest, a bias or an appearance of bias, and not allow any consideration that is extraneous to the case to influence their decisions.’

Both the Note (at [68]) and SIAC Rule 13.6 also forbid ex parte communications between parties (or those acting on their behalf) and arbitrators (or candidates for appointment as arbitrators) except in limited circumstances. The Note further encourages parties and arbitral tribunals, ‘where appropriate, to adopt or otherwise be guided by the IBA Guidelines on Party Representation in International Arbitration’. Note at [67].

Sections 22-23 of the IAA provide for court proceedings brought under the IAA to be heard otherwise than in open court upon the application of any party as well as for restrictions on the publication of information relating to such proceedings. In CHH v CHI, [2021] 4 SLR 295 at [73], the High Court of Singapore has also recently confirmed the following in relation to the law of Singapore on the confidentiality of arbitration proceedings:

‘It has been recognised that “as a principle of arbitration law at least in Singapore and England, the obligation of confidentiality in arbitration will apply as a default to arbitrations where the parties have not specified expressly the private and/or confidential nature of the arbitration”, and where Singapore is the seat of the arbitration, “confidentiality will apply as a substantive rule of arbitration law, not through the … AA, but from the common law” (AAY v AAZ [2011] 1 SLR 1093 (“AAY) at [55]).’

As indicated above, the selection of procedural rules in Singapore-seated arbitrations is likely to have a significant impact on the overall confidentiality of such arbitrations. Under Rule 39 of the SIAC Rules (2016), for example, the default position (unless the parties agree otherwise) continues to be that ‘all matters relating to the proceedings and the Award’ are confidential (Rule 39.1), including the ‘discussions and deliberations of the Tribunal’ (Rule 39.1) as well as the very ‘existence of the proceedings’ (Rule 39.3).

Furthermore, under s 12(1)(j) of the IAA, ‘an arbitral tribunal shall have powers to make orders or give directions to any party for:

(j) enforcing any obligation of confidentiality:

(i) that the parties to an arbitration agreement have agreed to in writing, whether in the arbitration agreement or in any other document;

(ii) under any written law or rule of law; or

(iii) under the rules of arbitration (including the rules of arbitration of an institution or organisation) agreed to or adopted by the parties.’

No. In Law Society of Singapore v Shanmugam Manohar, [2021] SGHC 201 at [116] – [120], the Court of Three Judges characterized the law on admissibility of illegally obtained evidence in Singapore (by reference to Law Society of Singapore v Tan Guat Neo Phyllis, [2008] 2 SLR(R) 239 (‘Phyllis Tan’)) in relevant part as follows:

‘Nonetheless, this court did consider (at [52]) the admissibility of illegally obtained evidence in criminal proceedings, and held (at [124]–[126]) that under the EA [Evidence Act (Cap 97, 1997 Rev Ed)], the overarching principle is that “all relevant evidence is admissible unless specifically expressed to be inadmissible”. The court may only exclude evidence where its prejudicial effect exceeds its probative value (see also Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 120 at [51]–[53]). It thus concluded that the court has no discretion to exclude illegally obtained evidence because of the manner in which it was obtained.

[…]

In ANB v ANC and another and another matter [2015] 5 SLR 522 (at [28]–[31]), the Court of Appeal said that it would leave for a future occasion the question of whether this exclusionary discretion exists in the context of civil proceedings and whether the same balancing test (where the prejudicial effect of the evidence is weighed against its probative value) ought to apply. Since this issue is not before us, we leave it open as well.’

SIAC provides an online schedule of fees (available at https://www.siac.org.sg/fees/siac-schedule-of-fees), which includes updated fee information depending on the circumstances of the case for the following fees:

• case filing fee;
• administration fees;
• arbitrator’s fees; and
• as applicable, emergency interim relief fees, challenge fees, Arb-Med-Arb fees, appointment fees, authentication and certification service fees, and assessment or taxation fees.

SIAC also provides a fee calculator (available online at https://siac.org.sg/fee-calculator).

The ICC offers a similar explanation of costs and payments in ICC arbitration (available online at https://iccwbo.org/dispute-resolution-services/arbitration/costs-and-payments/) and a cost calculator (available online at https://iccwbo.org/dispute-resolution-services/arbitration/costs-and-payments/cost-calculator/).

Pursuant to Article 37(2) of the ICC Rules of Arbitration, the ICC International Court of Arbitration sets an advance ‘payable in equal shares by the claimant and the respondent’ to cover the costs of ICC arbitration. In SIAC arbitration, the Registrar sets the amount of deposits payable (generally 50% for each of the claimant and respondent sides in the arbitration), and parties are required to make deposit payments toward that amount during the course of the proceedings.

In both ICC and SIAC arbitration, tribunals may make an award of costs (often in a favourable amount to the successful party in the final award, depending on a variety of factors).

In Singapore, s 20(1) of the IAA provides as follows:

‘Subject to subsection (3), unless otherwise agreed by the parties, an arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from such date, at such rate and with such rest as the arbitral tribunal considers appropriate, for any period ending not later than the date of payment on the whole or any part of:

• any sum which is awarded by the arbitral tribunal in the arbitral proceedings;
• any sum which is in issue in the arbitral proceedings but is paid before the date of the award; or
• costs awarded or ordered by the arbitral tribunal in the arbitral proceedings’.

S 20(3) of the IAA (referenced as ‘subsection (3)’ above) provides that ‘[w]here an award directs a sum to be paid, that sum shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt’. In turn, the rate of interest for a judgment debt may be determined by reference to the Singapore Rules of Court and Supreme Court Practice Directions as in force at the relevant time. In practice, pre-award interest is rare absent specific agreement by the parties.

With respect to the enforcement of an arbitral award generally, s 19 of the IAA provides that ‘[a]n award on an arbitration agreement may, by leave of the General Division of the High Court, be enforced in the same manner as a judgment or an order to the same effect and, where leave is so given, judgment may be entered in terms of the award’. S 29(1) of the IAA also provides that, ‘[s]ubject to this Part, a foreign award may be enforced in a court either by action or in the same manner as an award of an arbitrator made in Singapore is enforceable under section 19’.

More specifically, O. 48, r. 6(1)-(2) of the Singapore Rules of Court (2021) provide as follows:

‘(1) An application for permission to enforce an award may be made without notice and must be supported by an affidavit:

(a) exhibiting the arbitration agreement or any record of the content of the arbitration agreement and the duly authenticated original award or, in either case, a duly certified copy of the arbitration agreement or record and a duly certified copy of the award and, where the award, agreement or record is in a language other than English, a translation of it in the English language, duly certified in English as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made;

(b) stating the name and the usual or last known place of residence or business of the applicant (called in this Rule the creditor) and the person against whom it is sought to enforce the award (called in this Rule the debtor) respectively; and

(c) as the case may require, stating either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.

(2) An application for permission to enforce a foreign award may be made without notice and must be supported by an affidavit:

(a) exhibiting the arbitration agreement and the duly authenticated original award or, in either case, a duly certified copy of the arbitration agreement or award and, where the award or agreement is in a language other than English, a translation of it in the English language, duly certified in English as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made;

(b) stating the name and the usual or last known place of residence or business of the applicant (called in this Rule the creditor) and the person against whom it is sought to enforce the award (called in this Rule the debtor) respectively; and

(c) as the case may require, stating either that the award has not been complied with or the extent to which it has not been complied with at the date of the application’.

O. 48, r. 6(3)-(7) also contain additional requirements in relation to service.

Article 31 of the UNCITRAL Model Law, given force of law in Singapore by s 3(1) of the IAA, provides that an arbitral award made in Singapore ‘shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 30’. There is no requirement per se, however, that reasons be provided for the recognition and enforcement of a foreign arbitral award in Singapore.

The actual time required for the recognition and enforcement of an arbitral award will vary with the particular facts of each case. As a general guideline, however, the timeframe for the recognition and enforcement of most arbitral awards in Singapore is between one and four months. The Singapore Rules of Court (2021) do provide that ‘[a]n application for permission to enforce an award may be made without notice and must be supported by an affidavit’ (O. 48, r. 6(1)).

Generally, no. S 29 of the IAA provides that, ‘[s]ubject to this Part, a foreign award may be enforced in a court either by action or in the same manner as an award of an arbitrator made in Singapore is enforceable under section 19’.

S 12(5-6) of the IAA provides as follows with respect to available remedies in Singapore-seated international arbitration and associated enforcement:

‘(5) Without prejudice to the application of Article 28 of the Model Law [i.e., “Rules applicable to substance of dispute”], an arbitral tribunal, in deciding the dispute that is the subject of the arbitral proceedings:

(a) may award any remedy or relief that could have been ordered by the General Division of the High Court if the dispute had been the subject of civil proceedings in the General Division of the High Court;

(b) may award simple or compound interest on the whole or any part of any sum in accordance with section 20(1).

(6) All orders or directions made or given by an arbitral tribunal in the course of an arbitration shall, by leave of the General Division of the High Court, be enforceable in the same manner as if they were orders made by a court and, where leave is so given, judgment may be entered in terms of the order or direction.’

In Singapore, possible grounds for setting aside arbitral awards (under Article 34(2)(a-b) of the UNCITRAL Model Law (given force of law in Singapore via s 3(1) of the IAA)) include:

(1) incapacity;

(2) invalidity of the arbitration agreement;

(3) failure to provide proper notice or the inability to present one’s case;

(4) the award having exceeded the scope of the arbitration agreement;

(5) defective composition of the tribunal or arbitral procedure;

(6) the subject matter not being capable of settlement by arbitration; and

(7) conflict with the public policy of Singapore.

S 24 of the IAA adds the following to the above available grounds for setting aside arbitral awards:

(8) ‘the making of the award was induced or affected by fraud or corruption’; and

(9) ‘a breach of the rules of natural justice’.

The first seven grounds listed above for the setting aside of arbitral awards are also available as grounds for the refusal of enforcement of foreign arbitral awards under s 31(2) of the IAA, although s 31(2) also allows for refusal of enforcement in the event that ‘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’.

Importantly, Article 34(3) of the UNCITRAL Model Law provides that ‘[a]n application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under Article 33 [Correction and interpretation of award; additional award], from the date on which that request had been disposed of by the arbitral tribunal’.

O. 34, r. 5 of the Singapore Rules of Court (2021) provides as follows in regard to the form of an application to set aside an arbitral award in Singapore:

‘(1) The originating application for setting aside an award under section 48 must be supported by an affidavit stating the grounds on which it is contended that the award should be set aside.

(2) The supporting affidavit must:

(a) have exhibited to it a copy of the arbitration agreement or any record of the content of the arbitration agreement, the award or any other document relied on by the applicant (who is to be referred to in the originating application and in this Order as the claimant);

(b) set out any evidence relied on by the claimant; and

(c) be served with the originating application.

(3) Within 14 days after being served with the originating application, the defendant, if the defendant wishes to oppose the application, must file an affidavit stating the grounds on which the defendant opposes the application.’

N.B., the above relates only to the setting aside of international arbitral awards and not, e.g., to an appeal on rulings of jurisdiction under s 10 of the IAA or to an appeal on a “question of law” in relation to a domestic arbitral award under s. 49 of the AA.

In the context of domestic arbitration in Singapore, the Singapore High Court has held, in Daimler South East Asia Pte Ltd v Front Row Investment Holdings (Singapore) Pte Ltd, [2012] 4 SLR 837 [Daimler] at [15], that ‘parties could exclude the right of appeal by adopting rules of arbitration’. The Daimler Court further held that the parties in that case actually had excluded the right of appeal under s 49(2) of the AA (i.e., the Arbitration Act generally applicable to domestic arbitration). The Daimler Court noted that s 49(2) of the AA provides in relevant part that ‘the parties may agree to exclude the jurisdiction of the Court under this section’. Accordingly, the parties in Daimler had waived the right to appeal by adopting the ICC Rules 1998, which stated at Article 28(6) that, ‘[b]y submitting the dispute to arbitration under these Rules, the parties undertake to carry out any Award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made’.

By contrast, in the international arbitration context, s 19B(1) of the IAA (Effect of award) confirms that ‘[a]n award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties’ while s 19B(4) of the same provides that ‘(t)his 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 and the Model Law’. The IAA primarily emphasizes a right to appeal a ruling on jurisdiction by a tribunal (see s 10) and does not provide a general right to appeal on questions of law. Further, the IAA contains no similar language to that of the AA for the exclusion of the jurisdiction of the Singapore Courts. As such, it is unlikely that the Singapore Courts would consider that parties had effectively excluded any rights of appeal or challenge to an arbitral award otherwise available under the IAA by way of an arbitration agreement (e.g., through the selection of institutional rules of arbitration that purport to waive the right to judicial recourse).

The restrictive scope of State or sovereign immunity in Singapore under the State Immunity Act (Cap. 313) is discussed above at Question 28. With respect to the potential for a defence of State or sovereign immunity to be raised in the course of attempted enforcement of an arbitral award, s 15(2) of the State Immunity Act (Cap. 313) provides as follows:

‘Subject to subsections (3) and (4):

• relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and
• the property of a State shall not be subject to any process for the enforcement of a judgment or an arbitration award or, in an action in rem, for its arrest, detention or sale’.

Importantly, however, the exceptions allowed under this section include ‘the giving of any relief or the issue of any process with the written consent of the State concerned’ (subsection (3)) and ‘the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes’ (subsection (4)).

Finally, s 15(5) of the State Immunity Act (Cap. 313) also provides as follows:

‘The head of a State’s diplomatic mission in Singapore, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) and, for the purposes of subsection (4), his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved’.

The Singapore Courts generally may not order third parties or non-signatories to be bound by an arbitration agreement without the consent of the parties (including the relevant third party or non-signatory) (see The Titan Unity, [2014] SGHCR 4 at [24]). Similarly, s 29(2) of the IAA provides that ‘[a]ny foreign award which is enforceable under subsection (1) shall be recognised as binding for all purposes upon the persons between whom it was made and may accordingly be relied upon by any of those parties by way of defence, set-off or otherwise in any legal proceedings in Singapore’. With regard to the potential for a third party or non-signatory to challenge the recognition of an award, s 31(2) of the IAA states in relevant part as follows:

‘(2) 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:

[…]

(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; . . . ’.

In turn, subsection (3) referenced above provides that, ‘[w]hen a foreign award referred to in subsection (2)(d) contains decisions on matters not submitted to arbitration but those decisions can be separated from decisions on matters submitted to arbitration, the award may be enforced to the extent that it contains decisions on matters so submitted’.

Finally, in National Oilwell Varco Norway AS (formerly known as Hydralift AS) v Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd), [2021] SGHC 124 at [185]–[186], the General Division of the High Court set aside the plaintiff’s leave to enforce an arbitral award where the arbitral award had been issued against an entity that had ceased to exist following a prior merger so that, under the IAA, the Court had “no power to allow the plaintiff to enforce an award which the tribunal did not intend to issue and did not issue in the plaintiff’s favour”.

Yes. In Re Fan Kow Hin, [2019] 3 SLR 861 at [22], the High Court of Singapore has recalled that ‘the 2017 amendments to the Civil Law Act restrict the ambit of maintenance and champerty, permitting third-party funding in respect of international arbitrations’.

Yes. Importantly, s 2(1) of the IAA defines ‘arbitral tribunal’ to include ‘an emergency arbitrator appointed pursuant to the rules of arbitration agreed to or adopted by the parties including the rules of arbitration of an institution or organization’.

In the SIAC context, Schedule 1 of the SIAC Rules 2016 provides a process for applying to the SIAC Registrar for emergency interim relief ‘concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal’ while SIAC Rule 30.1 (Interim and Emergency Relief) also provides that ‘[t]he Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other interim relief it deems appropriate’. The SIAC Annual Report 2021 indicates that there were 15 applications for emergency arbitrators in 2021 and that all of these were accepted (see https://siac.org.sg/wp-content/uploads/2022/06/SIAC-AR2021-FinalFA.pdf at p. 17).

Yes. Rule 5.1 of the SIAC Rules 2016 provides that, ‘[p]rior to the constitution of the Tribunal, a party may file an application with the Registrar for the arbitral proceedings to be conducted in accordance with the Expedited Procedure under this Rule, provided that any of the following criteria is satisfied:

1. the amount in dispute does not exceed the equivalent amount of S$6,000,000, representing the aggregate of the claim, counterclaim and any defence of set-off;
2. the parties so agree; or
3. in cases of exceptional urgency’.

The SIAC Annual Report 2021 indicates that there were 93 applications for expedited procedure in 2021 and that 26 of these were accepted (see https://siac.org.sg/wp-content/uploads/2022/06/SIAC-AR2021-FinalFA.pdf at p. 17).

The ICC Rules of Arbitration (2021) also provide for an expedited procedure at Article 30 (Expedited Procedure) and Appendix VI (Expedited Procedure Rules).

A number of arbitral institutions and other stakeholders have engaged in public initiatives to highlight diversity as an issue in Singapore-seated arbitration.

On a webpage dedicated to ‘Diversity in arbitration’ (at https://iccwbo.org/global-issues-trends/diversity/diversity-in-arbitration/), the ICC confirms that ‘[i]n 2016, the Court introduced a new policy to publish limited information relating to arbitrators sitting in ICC cases’ in part in the hope that ‘the information will provide further incentive to promote regional, generational and gender diversity in the appointment of arbitrators — an utmost priority for ICC’ (see https://iccwbo.org/global-issues-trends/diversity/diversity-in-arbitration/).

Similarly, the SIAC Annual Report 2021 provides information on arbitrator appointments, including in regard to geographical diversity and gender diversity (see https://siac.org.sg/wp-content/uploads/2022/06/SIAC-AR2021-FinalFA.pdf at p. 22-24). In this document, SIAC reports as follows for 2021 (at p. 24):

• ‘Of the 179 arbitrators appointed by SIAC, 64 (or 35.8%) were female.’
• ‘Of the 38 members of SIAC’s Court of Arbitration, 10 (or 26.3%) are women.’
• ‘Women constitute 64% of SIAC’s Management and Secretariat.’

No, while a number of arbitral awards from Singapore-seated arbitrations have been set aside recently on various grounds, there have not been recent court decisions in Singapore considering the setting aside of an award that has been enforced in another jurisdiction or vice versa.

In Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [Lao Holdings], [2021] SGHC(I) 10, the SICC recently dismissed applications to set aside arbitral awards issued in two related arbitrations (the BIT Arbitrations) in which the Government of the Lao People’s Democratic Republic (GOL) was the Respondent under separate BITs. In the BIT Arbitrations, the GOL had ‘raised a threshold defence that the plaintiffs’ claims should not be entertained given the evidence of bribery, corruption and embezzlement’ (see Lao Holdings at [13]) with, inter alia, the following resultant finding in the BIT Arbitrations:

‘Having acted in “manifest bad faith” and having attempted “to compromise the integrity of [the] arbitration”, the plaintiffs were entirely disentitled from any treaty reliefs sought’. (Lao Holdings at [36]).

Before the SICC, the plaintiffs in Lao Holdings subsequently argued, inter alia, that the tribunals in the BIT Arbitrations had ‘exceeded their jurisdiction and dealt with matters beyond the express scope of the parties’ submission to arbitration’ in part because the parties to the arbitrations had agreed in a Settlement Deed prior to the merits hearings that neither party would ‘be permitted to add any new claims or evidence to the arbitration nor seek any additional reliefs not already sought in the proceedings’ (see Lao Holdings at [36], [17]).

Finding a ‘public duty’ for arbitrators to examine allegations of corruption, however, the Lao Holdings Court held as follows at [153]:

‘In each of the cited cases, the court or tribunal recognised that arbitral tribunals and particularly arbitral tribunals dealing with investor-State disputes, have a duty to consider corruption, which includes illegal conduct, bribery and fraud. That duty arises not only where the arbitral tribunal has to deal with allegations of corruption in the dispute between the parties, but also where the evidence in the case indicates possible corruption. This shows that, as with national courts, arbitral tribunals have a pro-active role and cannot simply ignore evidence of corruption. Where, therefore, a party seeks to put before an arbitral tribunal evidence of corruption, we are of the clear view that no agreement between the parties can prevent the arbitral tribunal from reviewing and, where appropriate, admitting that evidence. This is consistent with the commentaries cited by GOL and with the public duty which, we find, applies as much to arbitrators as it does to judges. Otherwise parties could enter into procedural agreements deliberately or unintentionally precluding evidence of corruption and arbitral tribunals might make awards supporting or enforcing that corruption.’

With respect to the legal principles applicable to setting aside or refusing enforcement of arbitral awards in Singapore on the basis of fraud, the Singapore Court of Appeal recently described the threshold as follows in Bloomberry Resorts and Hotels Inc. and another v Global Gaming Philippines LLC and another, [2021] SGCA 94 at [162]:

‘The legal principles governing applications to set aside awards or resist enforcement on the grounds of an arbitral award being contrary to the public policy of Singapore are well-established. As this court summarised in AJU v AJT [2011] 4 SLR 739 (AJU), the prevailing approach is that the public policy objection must involve either “exceptional circumstances … which would justify the court in refusing to enforce the award” or be a violation of “the most basic notions of morality and justice” (at [38], citing Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd [2006] 3 SLR(R) 174 at [40] and [75]). In addition, unless the decision or decision-making process of the tribunal is tainted by fraud, breach of natural justice, or any other vitiating factor, any error made by an arbitral tribunal would not per se be contrary to public policy (AJU at [66]). The public policy objection pitched at a high threshold is thus necessarily of a narrow scope (PT Asuransi at [59]).’

In an earlier related appeal (i.e., Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another, [2021] 1 SLR 1045 at [82]), the Singapore Court of Appeal also held that no carve-out is available for fraud or corruption from the usual application of Article 34(3) of the UNCITRAL Model Law (given force of law in Singapore by s 3(1) of the IAA). Article 34(3) states as follows:

‘An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.’

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As noted at https://www.siac.org.sg/covid-19, SIAC has taken a number of responsive steps in relation to the COVID-19 pandemic, including the following:

• Publishing COVID-19 information for SIAC users on the SIAC website;
• Maintaining full operations while the SIAC offices were physically closed through the continued telecommuting of all SIAC personnel;
• Providing email and telephonic points of contact in lieu of physical mail during the imposition of relevant COVID-19 measures; and
• Complying with the guidance of the Singapore government on telecommuting.

In addition, the PCA has confirmed that it has conducted a number of virtual hearings in response to COVID-19 measures (https://pca-cpa.org/en/news/covid-19-pandemic-travel-restrictions-lifted-for-participants-in-pca-hearings-and-meetings/), and the ICC Court of Arbitration has issued a COVID-19 guidance note outlining measures to assist parties with mitigating the effects of the COVID-19 pandemic on arbitral proceedings (available at https://iccwbo.org/media-wall/news-speeches/icc-court-issues-covid-19-guidance-note-for-arbitral-proceedings/).

On 7 July 2020, SIAC announced the commencement of revisions for the seventh edition of the SIAC Rules, including the organization of a subcommittee to address ‘New Technology and New Procedures’. On 31 August 2020, SIAC also announced the release of the first of its ‘SIAC Guides’, a ‘user-friendly’ tool intended ‘to help users effectively navigate the use of audio conference, videoconference and other non-physical means of communications in their arbitration cases’ (see https://www.siac.org.sg/69-siac-news/672-release-of-the-siac-guides-taking-your-arbitration-remote).

For its part, the ICC has released the ‘ICC Checklist for a Protocol on Virtual Hearings and Suggested Clauses for Cyber-Protocols and Procedural Orders Dealing with the Organisation of Virtual Hearings’, guidance that is found at section VII(C) of the ICC’s Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, dated 1 January 2021 (see https://iccwbo.org/publication/icc-checklist-for-a-protocol-on-virtual-hearings-and-suggested-clauses-for-cyber-protocols-and-procedural-orders-dealing-with-the-organisation-of-virtual-hearings/).

The ICC has also announced the development of its ‘Virtual Hearing Solution’, a technical solution intended to ‘provide the Security, Service and the ease of use necessary to ensure a seamless transition to a virtual environment’ (see https://iccwbo.org/dispute-resolution-services/hearing-centre/icc-virtual-hearings/).

Yes, the insolvency of a party may affect the enforceability of an arbitration agreement in Singapore. In BWG v BWF, [2020] 1 SLR 1296 at [1], the Singapore Court of Appeal observed as follows in regard to disputes that are subject to an arbitration clause while also forming the basis of a winding up application:

‘This appeal was heard together with Civil Appeal No 174 of 2018. Both appeals involved the same legal issue: what is the standard of review when a dispute that is subject to an arbitration arises in relation to a debt which forms the basis of a winding-up application? This court’s decision on this issue is set out in full in AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2020] 1 SLR 1158 (VTB Bank). In short, we held that when a court is faced with either a disputed debt or a cross-claim that is subject to an arbitration agreement, the prima facie standard of review should apply, such that the winding-up proceedings will be stayed or dismissed so long as (a) there is a valid arbitration agreement between the parties; and (b) the dispute falls within the scope of that arbitration agreement, provided that the dispute is not being raised by the debtor in abuse of the court’s process (VTB Bank at [56]). We also held that the doctrine of abuse of process is an appropriate measure to check against possible abuses of the prima facie standard. We stressed that in determining whether there has been an abuse of process, the court must be wary not to engage in the merits of the parties’ dispute, as the court is not the proper forum to adjudicate the dispute between the parties which is subject to arbitration (VTB Bank at [100]).’

More generally, the Singapore Court of Appeal clarified for the Singapore Courts the balance to be struck between application of the arbitral and insolvency regimes in Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore), [2011] 3 SLR 414 at [45]–[46], [51], holding as follows:

‘45 A distinction should be drawn between disputes involving an insolvent company that stem from its pre-insolvency rights and obligations, and those that arise only upon the onset of insolvency due to the operation of the insolvency regime. Many of the statutory provisions in the insolvency regime are in place to recoup for the benefit of the company’s creditors losses caused by the misfeasance and/or malfeasance of its former management. This is especially true of the avoidance and wrongful trading provisions. This objective could be compromised if a company’s pre-insolvency management had the ability to restrict the avenues by which the company’s creditors could enforce the very statutory remedies which were meant to protect them against the company’s management. It is a not unimportant consideration that some of these remedies may include claims against former management who would not be parties to any arbitration agreement. The need to avoid different findings by different adjudicators is another reason why a collective enforcement procedure is clearly in the wider public interest.

46 We, therefore, are of the opinion that the insolvency regime’s objective of facilitating claims by a company’s creditors against the company and its pre-insolvency management overrides the freedom of the company’s pre-insolvency management to choose the forum where such disputes are to be heard. The courts should treat disputes arising from the operation of the statutory provisions of the insolvency regime per se as non-arbitrable even if the parties expressly included them within the scope of the arbitration agreement.

[…]

51 However, in instances where the agreement is only to resolve the prior private inter se disputes between the company and another party there will usually be no good reason not to observe the terms of the arbitration agreement. The proof of debt process is merely a substituted means of enforcing debts against the company, and does not create new rights in the creditors or destroy old ones (see Wight v Eckhardt Marine GmbH [2004] 1 AC 147). Hence, even if the claim is subsequently proved to be valid and enforceable against the liquidator, the pool of assets available to all creditors at the time of the liquidation of the company is not affected. For the same reason, allowing a creditor to arbitrate his claim against an insolvent company in such circumstances does not undermine the insolvency regime’s underlying policy aims.’

No, Singapore is not a Contracting Party to the Energy Charter Treaty.

No major announcements of developments specific to the arbitration of climate change or human rights disputes have been made recently.

On 21 October 2019, the following excerpt from the statement of Ms. Chung Yoon Joo, delegate to the 74th Session of the United Nations General Assembly, was published on the website of the Singapore Ministry of Foreign Affairs (available at https://www.mfa.gov.sg/Overseas-Mission/New-York/Mission-Updates/Sixth_committee/2019/10/Press_20191021):

‘Turning now to the ongoing and future work of UNCITRAL, we note that over the past four sessions, consensus has emerged in Working Group III that reforms to the investor-State dispute settlement system are desirable and warrant further work. Singapore welcomes this significant development and will continue to participate constructively in this process. We have actively supported the work of Working Group III with a multi-disciplinary and multi-agency national delegation. In addition, a Singapore delegate has been the rapporteur of the Working Group since it commenced work in 2017.’

Yes. On 5 March 2022, Singapore announced the imposition of sanctions and restrictions on the Russian Federation that ‘aim to constrain Russia’s capacity to conduct war against Ukraine and undermine its sovereignty’ by imposing ‘export controls on items that can be directly used as weapons to inflict harm on or to subjugate the Ukrainians, as well as items that can contribute to offensive cyber operations’. Sanctions and Restrictions Against Russia in Response to its Invasion of Ukraine, Singapore Ministry of Foreign Affairs (5 March 2022), available at https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2022/03/20220305-sanctions#:~:text=05%20March%202022,and%20small%2C%20must%20be%20respected.

The announcement confirms that the sanctions regime in Singapore specifically provides for the imposition of the following:

• ‘a ban on the transfer to Russia of: (a) all items in the Military Goods List and (b) all items in the “Electronics”, “Computers”, and “Telecommunications and Information Security” categories of the Dual-Use Goods List of the Strategic Goods (Control) Order 2021’; and
• ‘financial measures targeted at designated Russian banks, entities and activities in Russia, and fund-raising activities benefiting the Russian government’ with digital payment token service providers ‘specifically prohibited from facilitating transactions that could help to circumvent these financial measures’.

The announcement also confirms that the financial measures above ‘apply to all financial institutions in Singapore, including banks, finance companies, insurers, capital markets intermediaries, securities exchanges and payment service providers’.

No carve-outs from the above regime have been reported recently in regard to the specific context of Singapore-seated arbitration.

The Singapore Courts have not recently considered the impact of sanctions on international arbitration proceedings or whether international economic sanctions are to be recognized as part of international public policy in Singapore. In regard to the approach of the Singapore Courts to international public policy generally, however, the Court of Appeal explained as follows in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace), [2010] 1 SLR 1129 at [113]:

‘Ex hypothesi, the statutory public policy expressed in s 5(2) of the CLA [Civil Law Act – i.e., the prohibition of legal actions in relation to gaming or wagering] is superior to what may be called the “higher” international public policy at common law, i.e., the “higher standard of public policy in operation when a forum court is faced with a foreign judgment” (see Burswood Nominees ([10] supra) at [32]). This is because the higher international public policy is only common law public policy. The position would be different if the court’s refusal to enforce a foreign gambling debt, in whatever form or guise that debt takes (including the debt as converted into a foreign judgment), is based on domestic public policy that has no basis in statute; in such circumstances, the court would be entitled to prefer the higher international common law public policy to its domestic common law public policy. But, this is not the case where s 5(2) of the CLA is concerned. In a contest between the higher international public policy at common law and statutory public policy, the latter must prevail.’

No special measures for the administration of arbitration proceedings involving sanctioned individuals or entities have recently been reported in the specific context of Singapore-seated arbitrations or related arbitral rules.