1.1 Describe the prevalence of commercial arbitrations as a method of settling disputes, both domestic and international.
Arbitration as a means of dispute resolution has been widely used in Singapore since the early 1990s for both domestic and international matters and it is growing exponentially. Singapore acceded to the New York Convention on 21 August 1986 and in 1995, the Model Law came into force as the First Schedule to the International Arbitration Act. The Singapore government has been aggressively promoting Singapore as an international arbitration centre. The Singapore Parliament’s readiness to pass bills amending legislation and laws to create conducive conditions for the conduct of international arbitrations in Singapore evidences such intention.
Examples of recent changes include exempting international arbitrators from paying withholding tax (with effect from 3 May 2002), and the government’s swift reaction to the High Court decision in Dermajaya Properties v Premium Properties [2002] 2 SLR 164 in passing a bill within seven months of the decision (to include s 15A of the International Arbitration Act) to clarify beyond doubt party autonomy in the choice of arbitration rules, as well as the enactment of ss 19A and 19B of the International Arbitration Act to clarify that an interim arbitral award, once given, is final and binding and cannot be reviewed by the arbitrator, in response to Jeffrey Tang v Stanley Tan [2001] SGCA 46.
2.1 What are the principal sources of law and regulation relating to domestic and international arbitration? (Describe the role of federal or state laws and relevance of court decisions.)
Domestic and international arbitrations are governed respectively by the Arbitration Act (Cap 10, 2002 Revised Edition and as amended by s 3 of the Statutes (Miscellaneous Amendments) Act 2003 and the International Arbitration Act (Cap 143A, 2002 Revised Edition)).
A former colony of the British Empire, Singapore adopts a common law system, modelled on the English legal system. Hence, there exists the doctrine of judicial precedent. Many of Singapore’s statutes are based on English statutes, and these statutes are interpreted with reference to local case law and Commonwealth decisions.
The Singapore court system consists of the Supreme Court and the Subordinate Courts. The Supreme Court comprises the High Court, and the apex of the judicial hierarchy, the Court of Appeal. The Subordinate Courts include the district courts and the magistrates’ courts.
Singapore’s laws are comprised of legislation enacted by the Singapore Parliament, subsidiary legislation, common law and equitable principles, as decided and applied by the Singapore courts.
2.2 List and briefly describe relevant arbitration statutes, international treaties and conventions.
Every arbitration in Singapore is governed by either the domestic Arbitration Act or the International Arbitration Act. The criteria for an international arbitration are set out in s 5(2) of the International Arbitration Act.
The Arbitration Act is meant to apply to domestic arbitrations but ‘domestic’ is not defined. The Arbitration Act instead acts as the default regime whenever an arbitration in Singapore falls outside the purview of the International Arbitration Act. Parties to international arbitrations can also opt out of the International Arbitration Act, but if they do so, the Arbitration Act instead applies by default (s 3 of the Arbitration Act). Thus, this chapter deals primarily with the provisions of the Arbitration Act and the International Arbitration Act.
The Arbitration Act was enacted in October 2001, and came into force on 1 March 2002. It is largely based on the Model Law and also incorporates provisions from the UK Arbitration Act 1996. It repeals the earlier Arbitration Act which was enacted in 1953.
The International Arbitration Act was enacted on 31 October 1994, and came into force on 27 January 1995. The Act adopts and enacts the Model Law in its First Schedule, and re-enacts the New York Convention in its Second Schedule save that Chapter VIII of the Model Law is specifically excluded to avoid conflict with the provisions of the New York Convention (s 3(1)).
With the 2001 Arbitration Act, the intention of Parliament is to narrow the differences between the two regimes, save that the Arbitration Act allows courts a greater degree of supervision over domestic arbitrations, as compared with the restricted court intervention allowed under the International Arbitration Act.
The Arbitration (International Investment Disputes) Act (Cap 11) empowers the High Court to recognise and enforce arbitral awards made under the International Convention on the Settlement of Disputes between States and Nationals of Other States (ICSID).
The Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) facilitates the reciprocal enforcement of judgments of superior courts and awards in Singapore and other parts of the Commonwealth, namely, the UK, Australia, New Zealand, Hong Kong (judgments before 30 June 1997), Sri Lanka, Malaysia, Windward Islands, Pakistan, Brunei Darussalam, Papua New Guinea and India (except the states of Jammu and Kashmir).
* The preparation of this chapter would have been impossible without the earlier generous assistance of Deborah Koh. The author wishes to acknowledge the input of Christopher Buay of M/s Alban Tay Mahtani & de Silva.
3.1 What are/describe the principal institutions and/or government agencies that assist in the administration or oversight of international and domestic arbitrations?
The two principal institutions are the Singapore International Arbitration Centre (SIAC) and the Singapore Institute of Arbitrators (SIArb).
The SIAC is a non-profit organisation incorporated as a public company limited by guarantee in March 1990. It commenced operations on 1 July 1991. Its aims are: first, to provide facilities for international and domestic commercial arbitration; secondly, to promote arbitration as an alternative to litigation for the settlement of commercial disputes; and, thirdly, to develop a pool of arbitrators in the law and practice of international arbitration. The SIAC Rules are based largely on the UNCITRAL Arbitration Rules and the Rules of the London Court of International Arbitration. On 10 April 2003, the SIAC formed an alliance with the Singapore Business Federation in order to strengthen its ties with the business community and promote arbitration within that community. The range and the value of disputes administered by the SIAC continue to increase. Technology, construction, international investments, maritime and joint venture disputes with claims involving different nationalities and seats are regularly handled by the SIAC. Its website is found at www.siac.org.sg.
The SIArb is a privately managed institute responsible for training and accrediting arbitrators. It was established in 1981 and besides being a centre for promoting knowledge of arbitration, it also acts as an appointing authority for the appointment of arbitrators (where called upon to do so). Its website is found at www.siarb.org.sg.
In 2002, ICC Asia relocated its offices from Hong Kong to Singapore.
On 8 November 2004, the Singapore Chamber of Maritime Arbitration (SCMA) was officially launched to administer maritime disputes, as Singapore is the regional base for over 4,000 international shipping companies. The SCMA was formed under the auspices of the Singapore Maritime Foundation (SMF) and its key stakeholders are the SIAC, the SIArb, the Singapore Maritime Arbitrators Association, the Maritime Law Association of Singapore and the Law Faculty of the National University of Singapore. Any arbitration or reference to arbitration made under the SCMA Rules is deemed to be an arbitration or reference under the International Arbitration Act. The SCMA has its website at www.scma.org.sg.
4.1 What is the relationship between agreements to arbitrate and access to the courts? Is there a presumption of arbitrability/policy support for arbitration? Will the courts stay court actions in favour of agreements to arbitrate?
The Singapore courts have been supportive of the government’s drive to promote Singapore as an international arbitration centre. As of 1 November 2004, three Judges of the High Court have been designated to hear all applications to the High Court arising from arbitration proceedings under the Arbitration Act and the International Arbitration Act.
To this end, pro-arbitration sentiments can be found in recent local decisions wherein stay of local proceedings were ordered in favour of arbitration: Mitsui Engineering & Shipbuilding Co Ltd v PSA Corpn Ltd and anor [2003] 1 SLR 446; SA Shee & Co (Pte) Ltd v Kaki Bukit Industrial Park Pte Ltd [2000] 2 SLR 12; Mancon (BVI) Investment Holding Co Ltd v Heng Holdings (Pte) Ltd & ors [2000] 3 SLR 220; and Dalian Hualiang Enterprise Group Co Ltd and anor v Louis Dreyfus Asia Pte Ltd [2005] SGHC 161.
For arbitrations under the Arbitration Act, the court is given a discretion to grant a stay of proceedings in favour of arbitration pursuant to an arbitration agreement (s 6). In its exercise of the discretion, the court must satisfy itself that, first, there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and, secondly, that the applicant for the stay of proceedings was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration.
For arbitrations under the International Arbitration Act, a stay of proceedings in favour of arbitration is mandatory, unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed (s 6).
Under both regimes, applications to stay proceedings can be made at any time after appearance but before delivering any pleading or taking any step in the proceedings.
4.2 May an arbitral tribunal rule on a party’s challenge to its own jurisdiction (‘competence-competence’)? Need a tribunal suspend its proceedings if a party seeks to test jurisdiction in the courts?
Under both the Arbitration Act (s 21(1)) and the International Arbitration Act, the arbitral tribunal may rule on its own jurisdiction, in line with art 16 of the Model Law. In PT Tugu Pratama Indonesia v Magma Nusantara Ltd [2003] SGHC 204, the High Court upheld the tribunal’s ruling on its own jurisdiction in an international arbitration. For both arbitrations under the Arbitration Act and International Arbitration Act, parties seeking a review of the tribunal’s decision on its own jurisdiction must apply to court within 30 days of receipt of such decision. A further appeal against the court’s decision is possible only with leave of the court (s 10 of the International Arbitration Act, s 21(9), (10) of the Arbitration Act).
In both arbitrations under the Arbitration Act and International Arbitration Act, the arbitral tribunal may continue arbitral proceedings and make an award while a party requests the court to decide on the jurisdiction of the tribunal (s 21(11) of the Arbitration Act, art 16(3) of the Model Law). In practice, however, parties often request and the tribunal generally accedes to the suspension of hearings.
5.1 Provide a selected bibliography of the most influential publications in or relied upon in the jurisdiction – books, journals, newsletters and pamphlets.
Books
Tackaberry and Marriot Bernstein’s Handbook of Arbitration and Dispute
Resolution Practice (Sweet & Maxwell 4th edn, 2003) Pryles Dispute Resolution in Asia (Kluwer Law International, 2nd edn, 2002) L Boo Halsbury’s Laws of Singapore, Arbitration vol 2 (Butterworths, 2003
reissue) W L Craig, W W Park and J Paulsson International Chamber of Commerce Arbitration (3rd edn, 2003) Y Derains and E A Schwartz A Guide to the New ICC Rules of Arbitration (2nd edn)
H C Alvarez, N Kaplan and D W Rivkin Model Law Decisions: Cases applying the UNCITRAL Model Law on International Commercial Arbitration (1985–2001) (Kluwer Law International, 2003)
Redfern and Hunter Law and Practice of International Commercial Arbitration (Sweet & Maxwell, 4th edn, 2004)
Journals
M Hwang ‘Arbitrators and Barristers: an Unsuccessful Challenge’ (2005) 6 Business Law International 2 at 235, May
6.1 Are there form and/or content requirements for an enforceable agreement to arbitrate? How may they be satisfied?
In both arbitrations under the Arbitration Act (s 4) and International Arbitration Act, the requirements of art 7 of the Model Law are adopted: the arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate arbitration agreement. The arbitration agreement must be in writing contained in a document signed by the parties, otherwise contained in an exchange of letters, telex, fax or other means of communication which records the agreement.
There is no specific form of words required to constitute an arbitration agreement, but the intention to arbitrate must be clear and unequivocal. The issue of an ambiguous arbitration clause came before the court in Teck Guan Sdn Bhd v Beow Guan Enterprises Pte Ltd [2003] 4 SLR 276. In that case, the word ‘arbitration’ did not appear in the clause relied upon. Instead, it read:
‘Any quality dispute would be settle [sic] amicably with reference to an independent surveyor. However, any dispute out of this contract to be governed by the rules of the Cocoa Merchants’ Association of America Inc … in force on that date.’
The court took the view that the reference to the said rules was not specific enough to incorporate the arbitration procedure contained in those rules, and held that there was no arbitration agreement.
Arbitration is not mandated for any type of dispute in Singapore.
7.2 Is arbitration prohibited for certain types of dispute (restraints of fundamental public policy)?
Section 11 of the International Arbitration Act prohibits arbitrations which are contrary to public policy. Generally, criminal matters, and those which affect the status of individuals or corporations, such as bankruptcy and insolvency, are not arbitrable.
8.1 May an arbitral clause be considered valid even if the rest of the contract in which it is embedded is invalid?
Both arbitrations under the Arbitration Act (s 21(2), (3)) and the International Arbitration Act adopt art 16(1) of the Model Law: 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 does not, as a matter of law, entail the invalidity of the arbitration clause.
9. QUALIFICATION/APPOINTMENT/LIABILITY OF ARBITRATORS
9.1 Are there specific provisions regulating the qualifications of arbitrators? Are there requirements (including disclosure) for ‘impartiality’ and ‘independence’, and do such requirements differ as between domestic and international arbitrations?
Apart from qualifications contractually agreed to between parties, and those set by arbitral institutions, there are no special qualifications required of arbitrators.
Both arbitrations under the Arbitration Act (ss 13, 14(1), (2)) and the International Arbitration Act adopt the requirements of art 12(1) of the Model Law. An arbitrator, when approached for a possible appointment, must disclose any circumstances likely to give rise to justifiable doubts as to his or her independence or impartiality. An arbitrator, from the time of his or her appointment and throughout the arbitration proceedings, must also without delay disclose any such circumstances to the parties unless they have already been so informed by him or her.
9.2 Are there provisions governing the challenge or removal of arbitrators? Do the courts or other jurisdictions play/have a role in any such challenge?
Both arbitrations under the Arbitration Act (ss 14(3), (4), 15) and the International Arbitration Act adopt the grounds of challenge and challenge procedure set out in arts 12(2) and 13 of the Model Law. An arbitrator may be challenged only if: (a) circumstances give rise to justifiable doubts as to his or her impartiality or independence; or (b) he or she does not possess the qualifications agreed by the parties. A party may challenge an arbitrator appointed by him or her only for reasons which he or she becomes aware of after the appointment is made.
Subject to parties’ agreement on the challenge procedure, a party may apply to the court to determine the challenge where the party’s challenge before the tribunal has been unsuccessful. No appeal against the court’s decision is possible. While the application to the court is pending, the arbitral tribunal, inclusive of the challenged arbitrator, may continue arbitral proceedings and make an award.
In both arbitrations under the Arbitration Act (s 16) and the International Arbitration Act (art 14 of the Model Law), a party can apply to the court to remove an arbitrator who is unable to conduct the arbitration, or fails to conduct proceedings with reasonable dispatch. Again, the decision of the court cannot be appealed against.
For examples of applications to the court to remove arbitrators, see Anwar Siraj and anor v Ting Kang Chung and anor [2003] SGHC 64 and Koh Bros Building and Civil Engineering Contractor Pte Ltd v Scotts Development (Saraca) Pte Ltd [2002] 4 SLR 748, decisions under similar provisions of the earlier Arbitration Act, and Yee Hong Pte Ltd v Powen Electrical Engineering Pte Ltd [2005] SGHC 114.
9.3 Does legislation govern, or have the courts developed rules regarding the liability of arbitrators for acts related to their decision-making function?
Both the Arbitration Act and International Arbitration Act state that an arbitrator shall not be liable for: (a) negligence in respect of anything done or omitted to be done in the capacity of an arbitrator; or (b) any mistake in law, fact or procedure made in the course of arbitration proceedings or in the making of the arbitral award (s 20 of the Arbitration Act, s 25 of the International Arbitration Act).
10. PARTY REPRESENTATION
10.1 Are there particular qualification requirements for representatives (‘counsel’) appearing in the jurisdictions?
Restrictions on foreign lawyers representing parties in arbitration in Singapore have been removed with the amendment to s 35 of the Legal Profession Act (Cap 161) in late 2004. Save for court proceedings, the giving of advice, preparation of documents and any other assistance in relation to or arising out of arbitration proceedings by foreign lawyers is now permitted.
Prior to this amendment, foreign counsel could only represent parties in arbitration proceedings in Singapore where Singapore law was not applicable to the dispute. Where Singapore law applied, foreign counsel were previously required to appear jointly with an advocate and solicitor who had in force a Singapore practising certificate, or a legal officer with the Singapore Legal Service.
11. PLACE OF ARBITRATION/PROCEDURES
11.1 Are there provisions governing the place (seat) of arbitration, or any requirement for arbitral proceedings to be held at the seat?
Both the Arbitration Act and the International Arbitration Act adopt art 20 of the Model Law: parties are free to agree on the place of arbitration (defined in s 2(1) of the Arbitration Act as the juridical seat of the arbitration). Should parties fail to agree on the place of the arbitration, the arbitral tribunal may determine the place of arbitration, subject to the circumstances of the case, including parties’ convenience. The Arbitration Act also allows parties to authorise any arbitral or other institution or third party to decide the place of arbitration.
In PT Garuda v Birgen Air [2002] 1 SLR 393, the Court of Appeal distinguished between the ‘place of arbitration’ and the ‘venue of the hearing’. The ‘place of arbitration’ was a matter to be agreed between the parties, and it does not change even though the tribunal holds its hearings at a different venue or venues – the laws of that state or territory of the seat of arbitration will govern the arbitral process.
11.2 Are specific procedures mandated in particular cases, or in general?
Both the Arbitration Act (s 23) and the International Arbitration Act adopt art 19 of the Model Law: parties are free to agree on the procedure to be followed by the arbitral tribunal in the conduct of proceedings. Failing such agreement, the arbitral tribunal may, subject to provisions of the Model Law, conduct the arbitration in such manner as it considers appropriate.
12. EVIDENCE GATHERING
12.1 What is the general approach to the gathering and tendering of evidence at the pleading stage and at the hearing stage (production, discovery, privilege, use of witness statements etc)? Are there differences between domestic and international arbitrations?
As the Evidence Act does not apply to both domestic and international arbitrations, rules against hearsay and extrinsic evidence have no applicability. The power to determine the admissibility, relevance, materiality and weight of the evidence lies with the arbitral tribunal (art 19 of the Model Law, s 23(3) of the Arbitration Act). Rather than order blanket disclosure, the tribunal will generally be guided by three criteria. First, relevance of the evidence to the issues; secondly, evidence which is privileged should be excluded; and, thirdly, findings of fact should be supported by evidence.
There is no difference between arbitrations under the Arbitration Act or the International Arbitration Act:
12.2 What powers of compulsion or court assistance are there for arbitrators to require attendance of witnesses or production of documents, either prior to or at the substantive hearing? Is there a difference between domestic and international tribunals or as between parties and non-parties? Do special provisions exist for arbitrators appointed pursuant to international treaties (ie bilateral or multilateral investment treaties)?
Prior to the substantive hearing, under both the Arbitration Act (s 28) and the International Arbitration Act (s 12), the arbitral tribunal has power to order discovery of documents against any party to the arbitration. With leave of the court, such orders of the tribunal are enforceable in the same manner as if they were orders made by the court.
Where evidence is in the custody or possession of non-parties, parties to both arbitrations under the Arbitration Act (s 30) and the International Arbitration Act (s 13) may apply to court for a writ of subpoena ad testificandum (writ to compel witness to attend and give evidence) or a writ of subpoena ducus tecum (writ to compel witness to attend and give evidence and produce specified documents) to compel attendance before the arbitral tribunal of a witness in Singapore.
Under the ICSID (enacted as the Schedule to the Arbitration (International Investment Disputes) Act (Cap 11)), except if parties otherwise agree, the arbitral tribunal may order discovery if it deems it necessary at any stage of the proceedings (art 43).
13. INTERIM MEASURES/ROLE OF THE TRIBUNAL
13.1 Are there special provisions relating to the granting of interim and preliminary relief? Have the courts recognised and/or limited any such authority? Do the courts themselves play a role in interim relief in arbitration proceedings?
The arbitral tribunal is empowered to order or direct the provision of security for costs, interim injunctions, the taking of samples, any observation or experimentation. With the leave of court, all such orders or directions made by the arbitral tribunal shall be enforceable as if they were orders made by the court (s 28 of the Arbitration Act and s 12 of the International Arbitration Act).
By s 31 of the Arbitration Act and s 12(7) of the International Arbitration Act, the court may exercise similar powers in support of arbitration proceedings.
14. TAXATION OF ARBITRATORS’ FEES
14.1 Does the state, or any of its sub-divisions, purport to tax domestically the fees of foreign arbitrators conducting hearings in the state? Is there a difference if the arbitration is ‘seated’ in the state or elsewhere?
Income derived by an individual not resident in Singapore from acting as an arbitrator where the arbitration is held in Singapore on or after 3 May 2002 is exempt from tax (s 13(1)(r) of the Income Tax Act (Cap 134)).
15. DEFAULT PROCEEDINGS
15.1 Are there provisions governing a tribunal’s ability to determine the controversy in the absence of a party who, on appropriate notice, fails to appear at or seek adjournment of the arbitral proceedings?
Where any party fails to appear at the hearing or to produce documentary evidence, the tribunal may continue the proceedings and make the award on the evidence before it (s 29(2) of the Arbitration Act and art 25 of the Model Law).
16. THE ARBITRAL AWARD
16.1 Must an award take any particular form, eg in writing, signed, dated, place, the need for reasons, delivery etc?
Both under the Arbitration Act (s 38) and the International Arbitration Act (art 31 of the Model Law), the award must be made in writing and must be signed by all the arbitrators or the majority of the arbitrators provided that the reason for omission of the signature of any arbitrator is stated. The award must state the reasons upon which it was based, unless parties have agreed that no grounds are to be stated or the award is on agreed terms pursuant to a settlement. The date of the award and place of arbitration shall be stated, the award being deemed to have been made at the place of the arbitration. After the award is made, a copy of the award signed by the arbitrators shall be delivered to each party.
16.2 Are there limits on arbitrators’ powers to fashion appropriate remedies, eg punitive or exemplary damages, rectification, injunctions, interest and costs?
In both arbitrations under the Arbitration Act and the International Arbitration Act, the powers of the arbitrator are those conferred upon him or her by the arbitral agreement and the arbitration legislation. Thus, the power of the arbitrator is limited contractually and by statutes and arbitral rules.
Under s 34 of the Arbitration Act and s 12(5)(a) of the International Arbitration Act, the arbitrator may award any remedy or relief that could have been awarded by the High Court if the dispute had been the subject of civil proceedings in that court unless otherwise agreed by the parties. See section 13.1 above.
The arbitrator may award interest, including compound interest, on the whole or any part of any sum that is awarded to any party or is in issue in the arbitration but paid before the award, for the whole or any part of the period up to the date of the award or payment (s 35 of the Arbitration Act, s 12(5)(b) of the International Arbitration Act).
All orders or directions made by the arbitral tribunal shall, by leave of the court, be enforceable in the same manner as if they were orders made by the court, and where leave is so given, judgment may be entered in terms of the order or the direction (s 28(4) of the Arbitration Act, s 12(6) of the International Arbitration Act).
17. RECOURSE FROM AN AWARD
17.1 Are there provisions governing modification, clarification or correction of an award?
Both the Arbitration Act (s 43) and International Arbitration Act adopt the provisions of art 33 of the Model Law.
17.2 May an award be appealed to or set aside by the courts? If so, on what grounds and by what procedures?
Arbitration Act – setting aside the award (s 48)
An award may be set aside by the High Court if the applicant satisfies the court that:
A party to arbitration proceedings may appeal to the High Court on a question of law arising out of a reasoned award made in the proceedings, upon agreement of all parties or by leave of the court. However, parties may agree to exclude the jurisdiction of the court to hear the appeal (s 49(2)). Parties must first exhaust any available arbitral process of appeal or review (s 50). Leave to appeal will be granted by the court only if the court is satisfied that:
Leave of the court is required for any appeal from a decision of the court to grant or refuse leave to appeal. On appeal, the court may confirm, vary, remit the award to the arbitral tribunal in whole or part, or set aside the award in whole or in part. Leave to appeal against the decision of the court will only be granted if the question of law is one of general importance, or there is some special reason which should be considered by the Court of Appeal (s 49 (11)).
International Arbitration Act – setting aside the award (s 24)
Under s 24 of the International Arbitration Act, read with art 34 of the Model Law, the High Court may set aside an award on the same grounds as under s 48 of the Arbitration Act. Setting aside the award is the only recourse against an award under this Act. Again, there is a three-month time bar for setting aside the award. The court has no power to remit an award to the arbitral tribunal for reconsideration. There is no right to appeal against an award on a question of law.
18. ENFORCEMENT OF AWARD
18.1 What are the procedures and standards for enforcing an award? Is there a difference between ‘domestic’ and ‘non-domestic’ awards?
An award made by the arbitral tribunal under the Arbitration Act or International Arbitration Act may, with leave of the High Court, be enforced in the same manner as a judgment or order of the court (s 46 of the Arbitration Act, s 19 of the International Arbitration Act). The application for leave may be ex parte, but must be supported by an affidavit. Thus, the High Court has a discretion whether to enforce an award made in Singapore.
Foreign awards are enforceable in Singapore under the International Arbitration Act only if the awards are made in a country which is party to the New York Convention or under the Reciprocal Enforcement of Commonwealth Judgments Act where the award has been registered as a judgment in that foreign country.
A foreign award may be enforced by action or by leave of the High Court, and be enforced in the same manner as a judgment from the court (s 29(1)of the International Arbitration Act). The duly authenticated original award or the certified copy thereof, the original arbitration agreement and a certified translation in English, if the award is in a foreign language, are necessary (s 30). The party against whom enforcement of the award is sought may request that the enforcement be refused (s 31). The court will refuse enforcement of the award if the party seeking enforcement satisfies the court that:
19. CONFIDENTIALITY OF PROCEEDINGS
19.1 What are the confidentiality requirements of the arbitral process, ie existence of the arbitration, pleadings, documents produced, hearing, award?
Parties in arbitration proceedings have a duty to maintain confidentiality of the proceedings and its documents.
The High Court in Myanma Yaung Chi Oo Co Ltd v Win Win Nu and anor [2003] SGHC 124 held that this is in keeping with the parties’ expectations that arbitral proceedings are confidential. The exceptions to this are where the parties consent, leave of court is obtained, where it is reasonably necessary, or where it is in the interests of justice.
Similarly, ss 56 and 57 of the Arbitration Act and ss 22 and 23 of the International Arbitration Act allow parties to apply for proceedings to be heard otherwise than in open court, and request that the resulting judgments not be published or restrict publication to specified information.
20.1 Is there any particular aspect of the approach to arbitration in the jurisdiction which bears special mention?
The emphasis on party autonomy in arbitration was highlighted by the enactment of a new s 15A of the International Arbitration Act which declares that arbitration rules adopted by the parties will be given full effect. Where there is a conflict between the chosen arbitration rules and the International Arbitration Act or the Model Law, the rules will prevail unless the conflict is with a mandatory provision of the International Arbitration Act or the Model Law. Hence, in effect, with this narrow exception, parties to a Singapore arbitration will have the full freedom to adopt arbitration rules of their choice. That is but one instance of the overwhelming government support for arbitration and its efforts to make Singapore the location of choice for international arbitrations.
Further, while the courts do not interfere with the arbitration process, they play a supportive role in offering interim measures of protection which are not incompatible with arbitration, and assist in the enforcement process.
Arbitrators can act as mediators or conciliators, and vice versa (ss 62 and 63 of the Arbitration Act and ss 16 and 17 of the International Arbitration Act).
