Singapore Arbitratio by Robert Merkin Johan

S I N G APORE AR BITR ATION LEG ISLATION
A NN OTA T ED
LLOYD’S ARBITRATION LAW LIBRARY
Injunctive Relief and International Arbitration

By
Hakeem Seriki
(2015)
Arbitration Act 1996

Fifth Edition
By Robert Merkin and Louis Flannery
(2014)
S ING APORE ARB I T R AT I O N
LEG I SLAT I O N
A N N O T A T ED
Robert Merkin and Johanna Hjalmarsson
ROBERT MERKIN, QC, LLD

Lloyd’s Professor of Commercial Law, University of Exeter;
Special Counsel, DLA Piper
JOHANNA HJALMARSSON, JUR. KAND., LLM

Informa Associate Professor in Maritime and Commercial Law,
University of Southampton
Contributing Editor
MATEUSZ BEK, LLB, LLM
University of Southampton
SECOND EDITION
Second edition published 2016
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge

711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 Robert Merkin and Johanna Hjalmarsson
The right of Robert Merkin and Johanna Hjalmarsson to be identified as authors of this work has been
asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act
1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by
any electronic, mechanical, or other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are
used only for identification and explanation without intent to infringe.
First edition published by Informa Law from Routledge 2009
British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data

Merkin, Robert M., author.
Singapore arbitration legislation : annotated / Robert Merkin, Johanna Hjalmarsson. --Second edition.
pages cm. --(Lloyd’s arbitration law library)
ISBN 978-1-138-80183-7 (hbk) -- ISBN 978-1-315-75467-3 (ebk) 1. Arbitration and award--
Singapore. 2. International commercial arbitration--Singapore. 3. Singapore. International Arbitration
Act. 4. Singapore. Arbitration Act. I. Hjalmarsson, Johanna., author. II. Title.
KPP377.M47 2016
347.5957’09--dc23
2015030612
ISBN: 978-1-138-80183-7 (hbk)

ISBN: 978-1-315-75467-3 (ebk)
Typeset in Plantin by
Servis Filmsetting Ltd, Stockport, Cheshire

P R EFACE
The first edition of this book was published in 2009. In the years since then the law
of arbitration in Singapore has moved on apace. In addition to important amend-
ments to the International Arbitration Act and the Arbitration Act, as well as a new
set of SIAC Rules (with more changes to come in 2016) the courts have handed
down some 100 decisions on arbitration matters. Some of those decisions are illus-
trative of established principles, but many break new ground. A fascinating feature
is that Singapore, while a signatory to the UNCITRAL Model Law, has adopted its
own distinctive approach to a number of issues. The degree to which judges have
undertaken detailed comparative analysis, and examined the origins and purposes
of the Model Law, in reaching their decisions, is a testament to the high quality of
legal research and argument in and by the courts. Probably only England has gener-
ated a greater number of decided cases on arbitration matters.
As with the first edition, we have sought to annotate the legislation so that cases
decided under a particular provision can be easily tracked down. The intention is to
set out the basic principles and any significant modifications to them, and then to
provide a comprehensive list of authorities establishing the points in question. We
have focused on the facts of only a small number of cases, those that we regard as
seminal or otherwise of particular significance. Our primary focus is on local deci-
sions. However, the contribution from other Model Law jurisdictions with common
law systems - notably, Hong Kong, Australia and New Zealand, is reflected in the
annotations. In addition, English authorities - while not always directly relevant by
virtue of the English decision to adopt a regime borrowing from but not based on the
Model Law, are cited insofar as they shed light on provisions of Singaporean legisla-
tion. A number of those provisions have indeed been taken verbatim from the English
Arbitration Act 1996 and, in the context of domestic arbitration, its 1950 predecessor.
The coverage of the second edition has been expanded to include new material
on the State Immunity Act and the Contracts (Rights of Third Parties) Act. Those
new sections were prepared by Mateusz Bek, who also worked on the existing chap-
ters. We are delighted to welcome Mateusz to the editorial team. We were also ably
assisted with research by Eugenia Fazio.
The work is up to date as of August 2015. The usual thanks go to our families
and to our publishers.
Rob Merkin, Sidmouth, Devon
Johanna Hjalmarsson, Southampton, Hampshire
v
Page Intentionally Left Blank
CONTENTS
Prefacev
Table of Casesxvii
Chapter 1 BACKGROUND TO THE SINGAPORE LEGISLATION 1

Structure of the arbitration system in Singapore 1
The two systems 3
Structure of the present work 5
Reception of the Model Law 6
Chapter 2 INTERNATIONAL ARBITRATION ACT 9

part i—preliminary10
Short title 10
part ii—international commercial arbitration11
Interpretation of Part II 11
Definition and form of arbitration agreement 13
Background13
Agreement14
Scope of arbitration clause16
Agreement in writing17
Incorporation18
Bills of lading cases19
Variations and settlements20
Conflicting clauses20
Arbitration and other dispute resolution mechanisms21
Model Law to have force of law 22
Relationship between Model Law and IAA22
“Place” of the arbitration23
Interpretation of Model Law by use of extrinsic material 23
Application of Part II 24
Enforcement of international arbitration agreement 26
Stay of judicial proceedings27
Who decides jurisdictional issues?29
Existence of dispute32
Null and void, inoperative or incapable of being performed34
Loss of right to seek stay36
vii
contents
Ancillary orders38
Delay39
Third parties39
Procedure41
Anti-arbitration injunctions41
Court’s powers on stay of proceedings 41
Authorities specified for purposes of Article 6 of Model Law 43
Application of Limitation Act and Foreign Limitation Periods Act
201243
Effect of section 8A44
Running of time for commencing arbitration proceedings under Singapore
law44
Effect of award being set aside46
Limitation period and enforcement of award46
Number of arbitrators for purposes of Article 10(2) of Model Law 47
Default appointment of arbitrators 47
Appeal on ruling of jurisdiction 48
Legislative structure49
Article 16(3) of the Model Law: scope49
Article 16(3) of the Model Law and other mechanisms50
Article 16(3) of the Model Law: procedure51
IAA, section 1052
Procedure under IAA, section 1052
Appeals under section 10 and article 16(3) of the Model Law53
Nature of judicial proceedings53
Costs54
Public policy and arbitrability 55
Reference of interpleader issue to arbitration 56
Powers of arbitral tribunal 57
The powers of arbitrators58
Enforcement and judicial support59
Security for costs60
Procedure and evidence62
Obtaining evidence64
Language and representation65
Experts65
Security66
Remedies67
Interest68
Court-ordered interim measures 68
Scope of court’s power to grant interim measures68
Geographical scope70
Relationship between court and arbitrators70
Orders for security72
Preservation of assets73
Anti-suit injunctions74
viii
contents
Witnesses may be summoned by subpoena 76
Law of arbitration other than Model Law 78
Application of rules of arbitration 79
Appointment of conciliator 80
Power of arbitrator to act as conciliator 82
Award by consent 83
Enforcement of awards 84
Awards made on different issues 86
Effect of award 88
Authentication of awards and arbitration agreements 90
Interest on awards 91
Taxation of costs 93
Proceedings to be heard otherwise than in open court 96
Privacy and confidentiality96
The position in Singapore97
Exceptions98
Determination of privacy and confidentiality questions99
Restrictions on reporting of proceedings heard otherwise than in
open court 99
Court may set aside award 100
Grounds for setting award aside100
Fraud or corruption101
Breach of the rules of natural justice: prejudice102
Illustrations of natural justice104
Procedure107
Liability of arbitrator 109
Immunity of appointing authority and arbitral institutions, etc. 109
Transitional provisions 111
part iii—foreign awards111
Interpretation of Part III 111
Application of Part III 112
Recognition and enforcement of foreign awards 113
Evidence113
Refusal of enforcement 115
Availability of power to refuse enforcement116
Incapacity118
Invalid arbitration agreement119
Inability to present case120
Substantive jurisdiction121
Breach of agreed procedure122
Appeal against award pending123
Public policy124
Convention countries 127
Enforcement of awards under other provisions of law 128
part iv—general128
Act to bind Government 128
ix
contents
Rules of Court 128

FIRST SCHEDULE, UNCITRAL MODEL LAW ON
INTERNATIONAL COMMERCIAL ARBITRATION 128
CHAPTER I—GENERAL PROVISIONS 128
Article 1. Scope of application 128
Article 2. Definitions and rules of interpretation 130
Article 2A. International origin and general principles 130
Article 3. Receipt of written communications 130
Article 4. Waiver of right to object 131
Article 5. Extent of court intervention 131
Article 6. Court or other authority for certain functions of
arbitration assistance and supervision 132
CHAPTER II—ARBITRATION AGREEMENT 132
Article 7. Definition and form of arbitration agreement 132
Article 8. Arbitration agreement and substantive claim
before court 134
Article 9. Arbitration agreement and interim measures by court 134
CHAPTER III—COMPOSITION OF ARBITRAL TRIBUNAL 135
Article 10. Number of arbitrators 135
Article 11. Appointment of arbitrators 135
Article 12. Grounds for challenge 137
Article 13. Challenge procedure 140
Article 14. Failure or impossibility to act 142
Article 15. Appointment of substitute arbitrator 144
CHAPTER IV—JURISDICTION OF ARBITRAL TRIBUNAL 145
Article 16. Competence of arbitral tribunal to rule on
its jurisdiction 145
Article 17. Power of arbitral tribunal to order interim measures 149
CHAPTER IVA—INTERIM MEASURES AND PRELIMINARY
ORDERS150
Section 1. Interim measures150
Article 17. Power of arbitral tribunal to order interim measures 150
Article 17A. Conditions for granting interim measures 150
Section 2. Preliminary orders150
Article 17B. Applications for preliminary orders and conditions for
granting preliminary orders 150
Article 17C. Specific regime for preliminary orders 151
Section 3. Provisions applicable to interim measures and
preliminary orders151
Article 17D. Modification, suspension, termination 151
Article 17E. Provision of security 151
Article 17F. Disclosure 152
Article 17G. Costs and damages 152
Section 4. Recognition and enforcement of interim measures152
Article 17H. Recognition and enforcement 152
Article 17I. Grounds for refusing recognition or enforcement 152
x
contents
Section 5. Court-ordered interim measures153
Article 17J. Court-ordered interim measures 153
CHAPTER V—CONDUCT OF ARBITRAL PROCEEDINGS 155
Article 18. Equal treatment of parties 155
Article 19. Determination of rules of procedure 155
Article 20. Place of arbitration 156
Article 21. Commencement of arbitral proceedings 157
Article 22. Language 157
Article 23. Statements of claim and defence 158
Article 24. Hearings and written proceedings 158
Article 25. Default of a party 159
Article 26. Expert appointed by arbitral tribunal 160
Article 27. Court assistance in taking evidence 160
CHAPTER VI—MAKING OF AWARD AND TERMINATION
OF PROCEEDINGS 161
Article 28. Rules applicable to substance of dispute 161
The importance of the applicable law161
Express choice of law163
No express choice of law163
Choice other than a system of law164
Article 29. Decision-making by panel of arbitrators 165
Article 30. Settlement 166
Article 31. Form and contents of award 167
Article 32. Termination of proceedings 170
Article 33. Correction and interpretation of award; additional
award171
Correction of errors on application172
Correction without application173
Interpretation of award173
Additional award173
CHAPTER VII—RECOURSE AGAINST AWARD 175
Article 34. Application for setting aside as exclusive recourse
against arbitral award 175
Incapacity176
Arbitration agreement not valid177
Inability to present case177
Dispute not within the arbitration agreement177
Improper composition of tribunal177
Improper procedure178
Subject matter not capable of arbitration178
Public policy of Singapore178
Time limit179
Procedure180
Effect of successful application180
CHAPTER VIII—RECOGNITION AND ENFORCEMENT OF
AWARDS181
xi
contents
SECOND SCHEDULE, CONVENTION ON THE RECOGNITION

AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
CONCLUDED AT NEW YORK ON 10TH JUNE 1958 181
Chapter 3 ARBITRATION ACT 187

part i—preliminary189
Short title and commencement 189
Interpretation189
Application of this Act 192
part ii—arbitration agreement192
Definition and form of arbitration agreement 192
Arbitration agreement not to be discharged by death of party 193
part iii—stay of legal proceedings194
Stay of legal proceedings 194
Court’s powers on stay of proceedings 196
Reference of interpleader issue to arbitration 197
part iv—commencement of arbitral proceedings197
Commencement of arbitration proceedings 197
Powers of Court to extend time for beginning of arbitration
proceedings197
Application of Limitation Act and Foreign Limitation Periods Act
2012200
part v—arbitral tribunal201
Number of arbitrators 201
Appointment of arbitrators 201
Grounds for challenge 203
Challenge procedure 203
Failure or impossibility to act 204
Arbitrator ceasing to hold office 205
Appointment of substitute arbitrator 206
Decision by panel of arbitrators 207
Liability of arbitrator 208
part vi—jurisdiction of arbitration tribunal208
Separability of arbitration clause and competence of arbitral
tribunal to rule on its own jurisdiction 208
Appeal on ruling of jurisdiction 209
part vii—arbitral proceedings210
General duties of arbitral tribunal 210
Determination of rules of procedure 210
Statements of claim and defence 211
Hearings and written proceedings 211
Consolidation of proceedings and concurrent hearings 212
Power to appoint experts 213
General powers exercisable by arbitral tribunal 213
Powers of arbitral tribunal in case of party’s default 215
Witnesses may be summoned by subpoena 217
xii
contents
Court’s powers exercisable in support of arbitration proceedings 217
part viii—award218
Law applicable to substance of dispute 218
Awards made on different issues 219
Remedies220
Interest220
Extension of time for making award 220
Award by consent 222
Form and contents of award 223
Costs of arbitration 224
Fees of arbitrator 225
Power to withhold award in case of non-payment 227
Court may charge property with payment of solicitor’s costs
in arbitration 228
Correction or interpretation of award and additional award 229
Effect of award 230
part ix—powers of the court in relation to award230
Determination of preliminary point of law 230
Enforcement of award 232
No judicial review of award 233
Court may set aside award 234
Appeal against award 235
Criteria for permission to appeal236
Questions of law238
Exclusion by agreement239
Consensual appeals240
Non-consensual appeals241
The grant of permission: considerations242
“Just and proper”244
Determination: remedies244
Procedural matters248
Supplementary provisions to challenge appeal 249
Effect of order of Court upon appeal or challenge against award 252
Application for leave of Court, etc. 253
part x—miscellaneous253
Notice and other requirements in connection with legal
proceedings253
Powers of Court and Registrar 254
Rules of Court 254
Proceedings to be heard otherwise than in open court 254
open court 255
Application to references under statutory powers 255
Immunity of arbitral institutions 256
Authentication of awards and arbitration agreements 256
Service of notices 257
xiii
contents
Reckoning periods of time 258

Appointment of mediator 258
Power of arbitrator to act as mediator 259
Act to bind Government 259
Transitional provisions 260
Chapter 4 OTHER LEGISLATION 261

STATE IMMUNITY ACT 261
General immunity from jurisdiction 261
Arbitration provisions 261
General262
Arbitration263
Injunction relief265
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 266
Right of third party to enforce contractual term 266
Arbitration provisions 266
General267
Arbitration267
Relationship between s. 9(1) and s. 9(2)269
Applicable law270
Chapter 5 RULES OF COURT 271

order 69—arbitration proceedings271
Interpretation271
Matters for Judge in person 271
Matters for Judge or Registrar 272
Preliminary question of law 272
Application to set aside an award 273
Appeals on a question of law arising out of an award 273
Applications for leave to appeal on a question of law arising out of
an award 274
Leave to appeal to Court of Appeal 275
Extension of time: applications under section 10 of the Act 275
Service out of jurisdiction of summons, notice, etc. 275
Requirements as to notice 276
Subpoena276
Enforcement of interlocutory orders or directions 276
Enforcement of arbitration awards 276
Registration in High Court of Commonwealth awards 277
Saving provisions 277
order 69a international arbitration act278
Interpretation278
Matters for a Judge in person 278
Matters for Judge or Registrar 279
Service out of jurisdiction of originating process 279
xiv
contents
Enforcement of interlocutory orders or directions 280
Enforcement of arbitral awards 280
Subpoena281
Taking of evidence 281
Chapter 6 RULES OF THE SINGAPORE INTERNATIONAL

ARBITRATION CENTRE 282
Rule 1: Scope of Application and Interpretation 283
Rule 2: Notice, Calculation of Periods of Time 284
Rule 3: Notice of Arbitration 285
Rule 4: Response to the Notice of Arbitration 285
Rule 5: Expedited Procedure 286
Rule 6: Number and Appointment of Arbitrators 287
Rule 7: Sole Arbitrator 287
Rule 8: Three Arbitrators 287
Rule 9: Multi-party Appointment of Arbitrator(s) 288
Rule 10: Qualifications of Arbitrators 288
Rule 11: Challenge of Arbitrators 289
Rule 12: Notice of Challenge 289
Rule 13: Decision on Challenge 289
Rule 14: Replacement of an Arbitrator 290
Rule 15: Repetition of Hearings in the Event of Replacement
of an Arbitrator 290
Rule 16: Conduct of the Proceedings 290
Rule 17: Submissions by the Parties 291
Rule 18: Seat of Arbitration 292
Rule 19: Language of Arbitration 292
Rule 20: Party Representatives 292
Rule 21: Hearings 292
Rule 22: Witnesses 293
Rule 23: Tribunal-Appointed Experts 293
Rule 24: Additional Powers of the Tribunal 293
Rule 25: Jurisdiction of the Tribunal 294
Rule 26: Interim and Emergency Relief 295
Rule 27: Applicable law, amiable compositeur 295
Rule 28: The Award 296
Rule 29: Correction of Awards and Additional Awards 297
Rule 30: Fees and Deposits 297
Rule 31: Costs of the Arbitration 298
Rule 32: Tribunal’s Fees and Expenses 298
Rule 33: Party’s Legal and Other Costs 299
Rule 34: Exclusion of Liability 299
Rule 35: Confidentiality 299
Rule 36: Decisions of the President, the Court and the Registrar 300
Rule 37: General Provisions 300
xv
contents
SCHEDULE 1, EMERGENCY ARBITRATOR 300

SCHEDULE 2, SPECIAL PROVISIONS FOR SIAC DOMESTIC
ARBITRATION RULES 301
Index303
xvi
TA B L E O F CA S ES
620 Collins St Pty Ltd v. Abigroup Contractors Pty Ltd (No. 3) [2006] VSC 492��94
A Best Floor Sanding Pty Ltd v. Skyer Australia Pty Ltd [1999] VSC 170��56
A Lloyd’s Syndicate v. X [2011] EWHC 2487 (Comm)��99
A T & T Corporation v. Saudi Cable Co [2000] 2 Lloyd’s Rep 127�� 138, 139
A v. B [2007] 1 Lloyd’s Rep. 237�� 36, 89
A v. B (No 2) [2007] 1 Lloyd’s Rep 358�� 39, 75
A v. B [2010] EWHC 3302 (Comm)�� 251, 252
A v. B [2011] EWHC 2345 (Comm)��139
AAY v. AAZ [2009] SGHC 14��96, 97, 98
ABB AG v. Hochtief Airport GmbH [2006] 2 Lloyd’s Rep 1�� 104, 106
ABB Lummus Global Ltd v. Keppel Fels Ltd (formerly Far East Levingston
Shipbuilding Ltd) [1999] 2 Lloyd’s Rep 24��23, 51, 147, 157, 191
ABC Co v. XYZ Co Ltd [2003] 3 SLR 546�� 132, 179, 235
Abigroup Contractors Ltd v. Transfield Pty Ltd [1998] VSC 103��30
Abu Dhabi Gas Liquefaction Co v. Eastern Bechel Corporation [1982] 2 Lloyd’s Rep
425��212
Abuja International Hotels Ltd v. Meridien AS [2012] EWHC 87 (Comm)�� 101, 162
Acclaim Insurance Brokers Pte Ltd v. Navigator Investment Services Ltd [2009]
SGCA 45��80
ACD Tridon Inc v. Tridon Australia Pty Ltd [2002] NSWSC 896�� 27, 31, 37, 56
Ace Capital Ltd v. CMS Energy Corporation [2008] 1 Lloyd’s Rep 93��21
ACN 006 397 413 Pty Ltd v. International Movie Group (Canada) Inc [1996] VSC
5813��115
Acorn Farms Ltd v. Schnuriger [2003] 3 NZLR 121��82
Aden Refinery Co Ltd v. Ugland Management Co Ltd [1986] 2 Lloyd’s Rep 336�� 237, 245
ADG v. ADI [2014] SGHC 73�� 102, 103, 107
Advance v. Kemas Construction [2002] 553 MLJU 1��172
Aectra Refining and Marketing Inc v. Exmare NV, The New Vanguard [1995] 1 Lloyd’s
Rep 191��28
AED Oil Ltd & Anor v. Puffin FPSO Ltd [2010] VSCA 37��59
Aerospatiale Holdings Australia v. Elspan International Ltd (1992) 28 NSWLR 321��6
AES Ust- Kamenogorsk Hydropower Plant JSC v. Ust- Kamenogorsk Hydropower
Plant LLP [2010] EWHC 772 (Comm); [2013] UKSC 35��69, 76, 270
African Fertilisers and Chemicals NIG Ltd (Nigeria) v. BD Shipsnavo GmbH & Co
Reederei KG [2011] EWHC 2452 (Comm)��86
Aggeliki Charis Compania Maritima v. Pagnan SpA, The Angelic Grace [1994] 1
Lloyd’s Rep 168; [1995] 2 Lloyd’s Rep 87�� 16, 74
Agrimex Ltd v. Tradigrain SA [2003] 2 Lloyd’s Rep 537��65, 169, 226
xvii
table of cases
Ahad & anr v. Uddin [2005] EWCA Civ 883��38

Ahong Construction (S) Pte Ltd v. United Boulevard Pte Ltd [1994] 2 SLR 735�� 239, 242
Ahong Construction (S) Pte Ltd v. United Boulevard Pte Ltd [2000] 1 SLR 749�� 239, 243
AIC Ltd v. ITS Testing Services (UK) Ltd, The Kriti Palm [2007] 1 Lloyd’s Rep 555��21
AIC Ltd v. The Federal Government of Nigeria [2003] EWHC 1357 (QB)��263
AIG Capital Partners Inc v. Republic of Kazakhstan [2005] EWHC 2239 (Comm)��263
AIG Europe SA v. QBE International Insurance Ltd [2001] 2 Lloyd’s Rep 268�� 19, 22
Air India v. Caribjet Inc [2002] 1 Lloyd’s Rep 314��127
Airwork Holdings Ltd v. Auckland Regional Rescue Helicopter Trust [2006] NZHC
513�� 238, 244
Aitken v. Ishimaru Ltd [2007] NZHC 1133��15
AJU v. AJT [2011] SGCA 41�� 125, 126, 147
AJWA for Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd (2013)
5 MLJ 625�� 18, 19
AK Kablo Imalat San ve Tic AS v. Intamex SA [2011] EWHC 2970 (Comm)��169
Akexander G Tsavliris & Sons Maritime Co v. Keppel Corporation Ltd [1995] 2 SLR
113��89
AKN v. ALC [2015] SGCA 18�� 53, 103, 105, 106, 121, 122
Al Hadha Trading Co v. Tradigrain SA [2002] 2 Lloyd’s Rep 512�� 105, 107, 172, 240, 250
Al Midani v. Al Midani [1999] 1 Lloyd’s Rep 923��21, 104, 162
Al-Naimi v. Islamic Press Agency Inc [2000] 1 Lloyd’s Rep 522�� 30, 147
Albilt Resources Sdn Bhd v. Casaria Construction Sdn Bhd [2010] 7 CLJ 785�� 7, 132
Albon v. Naza Motor Trading [2007] EWCA Civ 1124��41
Albon v. Naza Motor Trading (No. 3) [2007] 2 Lloyd’s Rep 1�� 30, 147
ALC v. ALF [2010] SGHC 231��77
Alcom Ltd v. Republic of Colombia [1984] 1 AC 580��263
Alec Lobb Partnership v. Aintree Racecourse Co Ltd [2000] BLR 65��15
Alfred C Toepfer International v. Société Cargill France [1998] 1 Lloyd’s Rep 379��74
Alfred McAlpine Construction Ltd v. RMG Electrical Ltd [1998] ADRLJ 53��19
Alfred McAlpine Construction v. Unex Corporation [1994] NPC 16��40
Ali Shipping Corporation v. Shipyard Trogir [1998] 2 Lloyd’s Rep 643�� 98, 99
Allan Scott Wines and Estates Ltd v. Eurowine Fine Wines (1990) Ltd [2008] NZHC 2438
Allianz Versicherungs-Aktiengesellschaft v. Fortuna Co Inc, The Baltic Universal
[1999] 1 Lloyd’s Rep 497��45
Allied Vision v. VPS Film Entertainment GmbH [1991] 1 Lloyd’s Rep 392��15
Allmore Constructions Pty Ltd v. Failli [2004] VSC 60��237
Almare Societa di Navigazione SpA v. Derby Co, The Almare Prima [1989] 2 Lloyd’s
Rep 376��16
Aloe Vera of America Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 17456, 112, 114,
116, 119, 120, 121, 125
Alphapoint Shipping Ltd v. Rotem Amfert Negev Ltd, The Agios Dimitrios [2005] 1
Lloyd’s Rep 23�� 107, 248
Altain Khuder LLC v. IMC Mining Inc & Anor [2011] VSC 1�� 115, 119
Altimo Holdings and Investment Ltd v. Kyrgz Mobil Tel Ltd [2011] UKPC 7��117
Amaltal Corp Ltd v. Maruha (NZ) Corp Ltd [2003] 2 NZLR 92; [2004] NZCA
17�� 125, 126, 244
AMB Generali Holding AB Manches v. Seb Tryg Holding Akt [2006] 1 Lloyd’s
Rep 318��46
Amec Building Ltd v. Cadmus Investment Co Ltd [1997] 5 CL 33��92
Amec Capital Projects Ltd v. Whitefriars City Estates [2005] BLR 1�� 138, 139
xviii
table of cases
Amec Civil Engineering Ltd v. Secretary of State for Transport [2004] EWHC 2339
(TCC), affirmed [2005] EWCA Civ 291�� 33, 53
AMEC Group Ltd v. Secretary of State for Defence [2013] EWHC 110 (TCC)�� 242, 243
American Design Associates v. Donald Insall Associates, QBD (TCC) November
2000, unreported��19
American Home Assurance Co v. Hong Lam Marine Pte Ltd [1999] 3 SLR 682�� 242, 249
American International Speciality Lines Insurance Co v. Abbott Laboratories [2004]
Lloyd’s Rep IR 815��17, 19, 74
An Feng International Trading Ltd v. Honour Link International [1999] 3 HKC 116��18
Andrews v. Bradshaw [2000] BLR 6��106
Aneco Reinsurance Underwriting Ltd v. Johnson Higgins Ltd [1998] 1 Lloyd’s Rep 565�90
The Angelic Grace [1995] 1 Lloyd’s Rep 87��75
Anglia Oils Ltd v. Owners of the Marine Champion [2002] EWHC 2407 (Admin)��40
The Annefield [1971] 1 All ER 394��19
Ansett Australia Ltd v. Malaysian Airline System Bhd [2008] VSC 109�� 27, 39
The Antaios [1984] 3 All ER 229��238
The Antclizo [1988] 2 All ER 514�� 160, 216
Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] SGHC 29; [2007] 2
SLR 500�� 33, 89, 195, 260
Anwar Siraj v. Ting Kang Chung [2003] 2 SLR 287�� 107, 142, 205
AOOT Kalmneft v. Glencore International AG [2002] 1 Lloyd’s Rep 128�� 53, 107
Apex Tech Investment Ltd v. Chuang’s Development (China) Ltd [1996] HKCA
593�� 117, 120
Apis AS v. Fantazia Kereskedelmi KFT [2001] 1 All ER (Comm) 348��85
Apis AS v. Fantazia Kereskedelmi KFT (No.2) 2001, unreported�� 103, 104
AQU v. AQV [2015] SGHC 26�� 104, 105, 106
Aquator Shipping Ltd v. Kleimar NV, The Capricorn I [1998] 2 Lloyd’s Rep 379��90,
103, 212
AQZ v. ARA [2015] SGHC 49�� 2, 14, 17, 50, 52, 53, 54, 80, 117, 264
Arab African Energy Corporation Ltd v. Olieprodukten Nederland BV [1983] 2
Lloyd’s Rep 419��240
Arab National Bank v. El Sharif Saoud Bin Masoud Bin Haza’a El-Abdali [2004]
EWHC 2381 (Comm)�� 156, 191
Arbitration between Hainan Machinery Import & Export Corporation and Donald &
McArthy Pte Ltd, Re an [1996] 1 SLR 34��85, 120, 125, 223, 233
Arden Shipping v. Owners of the Sungei Bulan [1983] 2 MLJ 377��145
Arenson v. Casson Beckman Rutley Co [1975] 3 All ER 901��109
Argomet Motoimport Ltd v. Maulden Engineering Co (Beds) Ltd [1985] 2 All ER
436�� 46, 89
Arnhold & Co Ltd v. Yieldworth Engineers & Suppliers Ltd [1994] 2 HKC 391��242
Arsanovia Ltd v. Cruz City I Mauritius Holdings [2012] EWHC 3702 (Comm)��162
Arta Properties Ltd v. Li Fu Yat Tso [1998] HKCU 721��21
Ascot Commodities NV v. Olam International Ltd [2002] CLC 277�� 103, 105, 168
ASES Havacilic Seris ve Destek Hizmetleri AS v. Delkor UK Ltd [2012] EWHC 3518
(Comm)�� 29, 172
Asghar & Co v. The Legal Services Commission and the Law Society [2004] EWHC
1803 (QB)�� 16, 29
Ashlock William Grover v. SetClearPte Ltd [2012] SGCA 20��75
Ashville Investments Ltd v. Elmer Contractors Ltd [1988] 2 All ER 577��146
ASM Shipping Ltd of India v. TTMI Ltd [2006] 1 Lloyd’s Rep 375��131
xix
table of cases
ASM Shipping Ltd of India v. TTMI Ltd [2006] 1 Lloyd’s Rep 401��85
ASM Shipping Ltd of India v. TTMI Ltd (No. 2) [2007] 2 Lloyd’s Rep 155��85
ASM Shipping Ltd v. Harris [2008] 1 Lloyd’s Rep 61��139
Aspec Construction Wellington Ltd v. Delta Developments Ltd [2013] NZHC 5��120
The Aspen Trader [1981] l Lloyd’s Rep 273��199
Assaubayev v. Michael Wilson & Partners Ltd [2014] EWHC 821 (QB)�� 30, 31
Assimina Maritime Ltd v. Pakistan Shipping Corporation [2005] 1 Lloyd’s Rep 525�� 66, 77
Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co of
Zurich [2003] All ER (Comm); [2003] 1 WLR 1041�� 89, 98
Astel-Peininger Joint Venture v. Argos Engineering & Heavy Industries Co Ltd [1994]
3 HKC 328��18
Astra SA Insurance and Reinsurance Co v. Sphere Drake Insurance Ltd [2000] 2
Astrata (Singapore) Pte Ltd v. Portcullis Escrow Pte Ltd [2011] 3 SLR 386�� 21, 57
Astrata (Singapore) Pte Ltd v. Tridex Technologies Pte Ltd [2010] SGHC��250
Astro Nusantara v. Pt Ayunda Prima Mitra [2015] HKCFI 274�� 121, 179
AT & T Corp v. Saudi Cable Co [2000] 2 All ER (Comm) 625��138
Athletic Union of Constantinople v. National Basketball Association [2002] 1 Lloyd’s
Rep 305�� 51, 222, 228, 232, 237, 239
Atkins v. Secretary of State for Transport [2013] BLR 193; [2013] EWHC 139
(TCC)�� 169, 250
Atlanska Plovidba v. Consignaciones Asturianas SA [2004] 2 Lloyd’s Rep 109��15, 47, 137
Attorney General for the Falkland Islands v. Gordon Forbes Construction (Falklands)
Ltd (No. 2), 2003, unreported��231
Attorney General v. Feary [2007] NZHC 112��50
Attorney General v. Shimizu Corporation [1994] 1 HKC 664��51
Attorney General v. Vianini Lavori SpA [1991] 1 HKC 423��71
Auburn Council v. Austin Australia Pty Ltd [2007] NSWSC 130��216
Aughton v. M F Kent Services Ltd [1992] ADRLJ 83��19
Australian Granites Ltd v. Eissenwerk Hensel Bayreuth [2001] Qld Rep 461��78
Australian Timber Products Pte Ltd v. Koh Brothers Building & Civil Engineering
Contractor (Pte) Ltd [2005] 1 SLR 168��27, 37, 194
Axa Re v. Ace Global Markets Ltd [2006] Lloyd’s Rep IR 683�� 18, 21
Azov Shipping Co v. Baltic Shipping Co (No. 1) [1999] 1 Lloyd’s Rep 68��53–4, 148
Azov Shipping Co v. Baltic Shipping Co (No. 2) [1999] 2 Lloyd’s Rep 39��251
AZT v. AZV [2012] SGHC 116��96
B v. S [2011] EWHC 691 (Comm)��59
Babanaft International Co SA v. Avant Petroleum Inc, The Oltenia [1982] 3 All ER
244�� 198, 231
Badrick v. British Judo Association [2004] EWHC 1891 (Ch)��14
Bahtera Offshore (M) Sdn Bhd v. Sim Kok Beng [2009] SGHC 171��60
Bakri Navigation Co Ltd v. Glorious Shipping SA, The Golden Glory (1991) 217 ALR
152��35
The Baleares [1991] 1 Lloyd’s Rep 349��245
Balfour Beatty Construction Ltd v. Kelston Sparkes Contractors Ltd, June 2001,
unreported��107
Balfour Beatty Construction Northern Ltd v. Modus Corovest (Blackpool) Ltd [2008]
EWHC 3029 (TCC)��81
Ballast Wiltshier plc v. Thomas Barnes & Sons Ltd, 1998, unreported�� 240, 245
Baltimar Aps Ltd v. Nalder & Biddle Ltd [1994] 3 NZLR 129��32
xx
table of cases
Bandwidth Shipping Corp v. Intaari [2008] EWCA Civ 998�� 103, 106
Bank of Credit and Commerce International (Overseas) Ltd v. Price Waterhouse
[1997] 4 All ER 108��264
Bank Mellat v. Helliniki Techniki SA [1984] QB 291��2, 156, 192
Bankers Trust Co v. P T Jakarta International [1999] 1 Lloyd’s Rep 910��74
Banks v. Grey District Council [2003] NZCA 308��140
Bannai v. Erez [2013] EWHC 3689 (Comm)��75
Barnwell Enterprises Ltd v. ECP Africa FII Investments LLC [2013] EWHC 2517
(Comm)��71
Batshita International (Pte) Ltd v. Lim Eng Hock Peter [1997] 1 SLR 241��32, 37, 146
Bawejem v. MC Fabrications Ltd [1999] 1 All ER (Comm) 377��39
Bay Hotel and Resort Ltd v. Cavalier Construction Co Ltd [2001] UKPC 34157, 168, 192
The Bazias 3 [1993] 1 Lloyd’s Rep 101��42
BDMS Ltd v. Rafael Advanced Defence Systems [2014] EWHC 451 (Comm)�� 35, 36
BEA Hotels NV v. Bellway LLC [2007] 2 Lloyd’s Rep 493��14
Behmer and Wright Pty Ltd v. Tom Tsiros Constructions Pty Ltd [1996] VSC 7560��19
Beijing Be Green Import & Export Co Ltd v. Elders International Australia Pty Ltd
[2014] FCA 1375��85
Beijing Jianlong Heavy Industry Group v. Golden Ocean Group [2013] EWHC 1063
(Comm)��55
Beijing Sinozonto Mining Investment Co Ltd v. Goldenray Consortium (Singapore)
Pte Ltd [2013] SGHC 248��125
Bell v. Sun Insurance Office (1927) 29 Ll L Rep 236��196
Ben Barrett v. Henry Boot [1995] CILL 1026��18
Benaim (UK) Ltd v. Davies Middleton & Davies [2005] EWHC 1370 (TCC)��105,
106, 239, 243
Benford Ltd v. Lopecan SL [2004] 2 Lloyd’s Rep 618��28
The Benja Bhum [1994] 1 SLR 88��14
Bernhard Schulte v. Nile Holdings Ltd [2004] 2 Lloyd’s Rep 352��21
Bernuth Lines Ltd v. High Seas Shipping Ltd, The Eastern Navigator [2006] 1 Lloyd’s
Rep 537��178
Beyond the Network Ltd v. Vectone Ltd [2005] HKEC 2075��21
Bharat Aluminium Co v. Kaiser Aluminium Technical Service Inc, November 2012��123
BHPB Freight Pty Ltd v. Cosco Oceania Chartering Pty Ltd (2008) 247 ALR 369��40
Bidois v. Leef [2015] NZCA 176��16
Big Island Construction (Hong Kong) Ltd v. Abdoolally Ebrahim & Co (HongKong)
Ltd [1994] 3 HKC 518��33
Bina Puri Sdn Bhd v. EP Engineering Sdn Bhd [2008] 3 MLJ 564��18
Bintulu Development Authority v. Pilecon Engineering Bhd [2007] 2 MLJ 610��15
Bird v. English Schools Foundation [1997] 2 HKC 294��93
Birkett v. James [1978] AC 297��216
Birse Construction Ltd v. St David Ltd [1999] BLR 194��30
Black & Veatch Singapore Pte Ltd v. Jurong Engineering Ltd [2004] 4 SLR 19�� 6, 80
Black Peppiatt Ltd v. Norwest Holst Construction Ltd [2003] BLR 316��33
Black-Clawson v. Papierwerke [1981] 2 Lloyd’s Rep 446��162
Blackdale Ltd v. McLean Homes South East Ltd 2001, unreported��250
Blanchard v. Sun Fire Office (1890) 6 TLR 365��139
BLC v. BLB [2014] 4 SLR 79; [2014] SGCA 40�� 103, 105, 117, 132, 180
BLCT (13096) Ltd v. J Sainsbury plc [2003] EWCA Civ 884�� 237, 248
Bloor Construction (UK) Ltd v. Bowner & Kirkland (London) Ltd [2000] BLR 314��172
xxi
table of cases
BMBF (No. 12) Ltd v. Harland and Wolff Shipbuilding and Heavy Industries Ltd
[2001] 2 Lloyd’s Rep 227��87, 107, 237
BNP Paribas SA v. Open Joint Stock Company Russian Machines [2012] 1 Lloyd’s
Rep 61��75
BNP Paribas v. Deloitte and Touche LLP [2004] 1 Lloyd’s Rep 233 (Comm)��77
Boardwalk Regency Corporation v. Maalouf (1992) OR (3d) 737��125
Bocotra Construction Pte Ltd v. Attorney General [1995] 2 SLR 523��66
Body Corporate 189855 v. North Shore City Council [2006] NZHC 1267��78
Body Corporate 344862 v. E-Gas Itd [2008] NZHC 1490��28
Bogle v. Day [2005] NZHC 67��86
Bonnin v. Neame [1910] 1 Ch 732��40
Boral Resources (Victoria) Pty Ltd v. Greater Bendigo City [2001] VSC 8769��199
Borneo Samudera Sdn Bhd v. Siti Rahfizah bt Mihaldin [2008] 6 MLJ 817��27
Bottiglieri di Navigatzione SpA v. Cosco Qingdao Ocean Shipping Co, The Bunga
Saga Lima, 2005, unreported��107
Boulos Gad Tourism & Hotels Ltd v. Uniground Shipping Company Ltd, November
Bovis Lend Lease Pte Ltd v. Jay-Tech Marine & Projects Pte Ltd [2005] SGHC 91��46
Braes of Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine Business Services Ltd
[2008] 1 Lloyd’s Rep 608��23, 129, 157, 191, 244
Brake v. Patley Wood Farm LLP, 25 April 2015, unreported (English HC)�� 12, 180
Brandeis (Brokers) Ltd v. Black [2001] 2 Lloyd’s Rep 359��107
Brecon v. Ripa [2004] NSWSC 838��105
Bremer Handelsgesellschaft mbH v. Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep
130��168
Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation
Ltd [1981] 1 All ER 289; [1981] AC 909��14, 160, 216
The Britannia [1998] 1 HKC 221��42
British Gas plc v. Dollar Land Holdings plc [1992] 12 EG 141��245
British Railways Board v. Ringbest Ltd [1996] 30 EG 94��242
British-America Insurance (Kenya) v. Matalec SAL [2013] EWHC 3278 (Comm)��21
Brockton Capital LLP v. Atlantic-Pacific Capital Inc [2014] EWHC 1459 (Comm)��104
Brown v. CBS Contractors [1987] 1 Lloyd’s Rep 279��64
Bruns v. Colocotronis, The Vasso [1979] 2 Lloyd’s Rep 412��90
Brunswick Bowling & Billiards Corp v. Shanghai Zhonglu Industrial Co Ltd [2009]
HKCU 211; [2011] 1 HKLRD 707�� 107, 117, 120, 122
BS Mount Sophia Pte Ltd v. Join-Aim Pte Ltd [2012] SGCA 28��72
BTR Engineering (Aust) v. Dana Corp [2000] VSC 2045��16
Bulfracht (Cyprus) Ltd v. Boneset Shipping Co Ltd, The MV Pamphilos [2002] 2
Lloyd’s Rep 681�� 107, 248
Bulk & Metal Transport (UK) LLP v. Voc Bulk Ultra Handymax Pool LLC [2009]
EWHC 288 (Comm)��45
Bulk Oil (Zug) v. Trans-Asiatic Oil SA [1973] 1 Lloyd’s Rep 129��195
Bunge SA v. Kruse [1979] 1 Lloyd’s Rep 279��80
BV Scheepswerf Damen Gorinchem v. The Marine Institute [2015] EWHC 1810
(Comm)�� 103, 106
C v. D [2008] 1 Lloyd’s Rep 239�� 75, 89, 129, 162
CA Pacific Forex Ltd v. Lei Kuan Leong [1999] 2 HKC 571��55
Cable & Wireless plc v. IMB UK Ltd [2002] EWHC 2059 (Comm)��81
Cadmus Investment Co v. Amec Building Ltd [1998] ADRLJ 72�� 94, 238
xxii
table of cases
Cadogan v. Turner [2013] EWHC 138 (Comm); [2013] 1 Lloyd’s Rep 630��172
Cameron Australasia Pty Ltd v. AED Oil Ltd [2015] VSC 163��120
Cameroon Airlines v. Transnet Ltd [2004] EWHC 1829 (Comm)��105
Canadian Forest Navigation Co Ltd v. Minerals Transportation Ltd 2001, unreported
�� 103, 107
Caparo Group Ltd v. Fagor Arrasate Sociedad Cooperative [2000] ADRLJ 254��51
Cape Lambert Resources Ltd v. MCC Australia Sanjin Mining Pty Ltd [2012] WASC
228��14
Capes (Hatherden) Ltd v. Western Arable Services Ltd [2009] EWHC 3065 (Comm)��18
Capital Trust Investments Ltd v. Radio Design [2002] 1 All ER (Comm) 514��37
Car & Cars Pte Ltd v. Volkswagen AG [2009] SGHC 233��25, 80, 195
Cargill International SA Antigua v. Sociedad Iberica de Molturacion SA [1998] 1
Cargill International SA v. Peabody Australia Mining Ltd [2010] NSWSC 887��117
Cargill v. Kadinopoulos [1992] 1 Lloyd’s Rep 1��12
Carillion Construction Ltd v. Devonport Royal Dockyard [2003] 1 BLR 79��33
Carona Holdings Pte Ltd and Others v. Go Go Delicacy Pte Ltd [2008] SGCA 34�� 36–7
Carr v. Gallaway Cook Allan [2014] NZSC 75��119
Carrier Hong Kong Ltd v. Dickson Construction Co Ltd [2005] 4 HKC 142��14
Carter Holt Harvey Ltd v. Genesis Power Ltd HC AK [2006] NZHC 114�� 41, 132
Carter v. Simpson Associates (Architects) Ltd [2004] 2 Lloyd’s Rep 512�� 225, 226
Carvill America Ltd v. Camperdown UK Ltd [2004] EWHC 2221 (Comm)��33
Casata Ltd v. General Distributors Ltd [2006] NZSC 8��174
Cassa di Risparmio di Parma e Piacenza SpA v Rals International Pte Ltd [2015]
SGHC 264��29, 31, 32
Cathay Pacific Airways Ltd v. Hong Kong Air Cargo Terminals Ltd [2002] 2 HKC
193�� 14, 30
Cetelem SA v. Roust Holdings Ltd [2005] 2 Lloyd’s Rep 494�� 66, 72, 73, 76
Chalbury McCouat v. P G Foils [2010] EWHC 2050 (TCC)��156
Chambers v. CSR Building [2006] NZHC 85��244
Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] AC 334��21,
34, 156, 196
Chantiers de l’Atlantique SA v. Gaztransport & Technigaz SAS [2011] EWHC 3388
(Comm)��101
Charles M Willie Co (Shipping) Ltd v. Ocean Laser Shipping Ltd, The Smaro [1999]
1 Lloyd’s Rep 225�� 12, 45, 64, 250
Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA Civ 84; [2003] 1 EGLR
1�� 103, 105, 107, 168, 178, 237
Cheuk Kin Trading Ltd v. Prudential Mall Ltd [1996] 4 HKC 758�� 136, 195
Chimimport plc v. G D’Alesio SAS, The Paola D’Alesio [1994] 2 Lloyd’s Rep 366��16
China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd’s Rep
76��5, 80, 117, 122, 178
China Insurance (Holdings) Co Ltd v. China Link Construction Co Ltd [2004] 3
HKC 14��39
China Merchants Heavy Industry Co Ltd v. JGC Corporation [2001] 3 HKC
580�� 15, 35
China Nanhai Oil Joint Service Corp Shenzhen Branch v. Gee Tai Holdings Co Ltd
[1994] 3 HKC 375�� 121, 125
China Ocean Shipping Co v. Mitrans Maritime Panama SA [1994] 2 HKC 614��137
China Property Development (Holdings) Ltd v. Mandecly Ltd [2015] HKCFI 493��121
xxiii
table of cases
China Resources Metals & Minerals Co Ltd v. Ananda Non-Ferrous Metals Ltd
[1994] 3 HKC 526��25
China State Construction Engineering Corporation Guangdong Branch v. Madiford
[1992] 1 HKC 320��15
Ching v. Fu Shing Rush Door Joint Venture Co Ltd [2003] HKCU 1084��18
Ching Yick Manufactory v. Tai Ping Insurance [1987] 3 HKC 583��199
Chinney Construction Co Ltd v. Po Kwong Marble Factory Ltd [2005] 3 HKC 262��95
Chong Long Hak Kee Construction Trading Co v. IEC Global Pte [2003] 4 SLR 49��37
Chun Wo Building Construction Ltd v. China Merchants Tower Co Ltd [2000] 2
HKC 255��212
Chun Wo Foundations Ltd v. BPL (HK) Private Ltd [2003] 3 HKC 165��242
Chung Kiu Development Ltd v. Sung Foo Kee Ltd [1995] 2 HKC 777��33
CIB Properties Ltd v. Birse Construction Ltd [2004] EWHC 2365 (TCC)��33
The Cienvik [1996] 2 Lloyd’s Rep 395��66
Cigna Life Insurance Co of Europe NV v. Intercaser SA de Seguros y Reaseguros
[2001] Lloyd’s Rep IR 821��17
City of London v. Sancheti [2008] EWCA Civ 1283�� 36, 40
Claire & Co v. Thames Water Utilities Ltd [2005] BLR 366��148
Clough Engineering v. Oil and Natural Gas Corporation Ltd (2008) 249 ALR 458��30
CMA CGM SA v. Beteiligungs- Kommanditsgesellschaft MS “Northern Pioneer”
Schiffartgesellschaft mbH & Co, The Northern Pioneer [2003] 1 Lloyd’s Rep
212�� 241, 242–3, 248
CMA CGM SA v. Hyundai Mipo Dockyard Co Ltd [2008] EWHC 2791 (Comm)�� 16, 75
CMA-CGM Marseille v. Petro Broker International [2011] EWCA Civ 461��85
Co-operative Wholesale Society v. Birse Construction Ltd (1997) 84 BLR 58��90
Coal Authority v. Davidson [2008] EWHC 2180 (Comm)��243
Coal and Oil Co LLC v. GHCL Ltd [2015] SGHC 65�� 103, 106, 127, 168, 169
Coastal States Trading (UK) Ltd v. Mebro Mineraloelhandelsgesellschaft GmbH
[1986] 1 Lloyd’s Rep 465��115
Cockatoo Dockyard v. Commonwealth of Australia [2004] NSWSC 841��87
Coeclerici Asia (Pte) Ltd v. Gujarat NRE Coke Limited [2013] FCA 882��118
Colliers International Property Consultants v. Colliers Jordan Lee Jafaar Sdn Bhd
[2008] EWHC 1524 (Comm)��86
Collins (Contractors) Ltd v. Baltic Quay Management (1994) Ltd [2004] EWCA Civ
1757��33
Colombo Marketing Ltd v. Palmerston North City Council [2007] NZHC
1502��244
Comandate Marine Corp v. Pan Australia Shipping Pty Ltd [2006] FCAFC 192;
(2006) 238 ALR 457�� 17, 30
Comdel Commodities Ltd v. Siporex Trade SA [1990] 2 All ER 552��199
Command v. Fletcher [1999] VSC 235��12
Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662��97
Compagnie Tunisienne De Navigation SA v. Compagnie D’Armement Maritime SA
[1971] AC 572�� 162, 163
Compania Sud-Americana De Vapores SA v. Nippon Yusen Jaisha [2009] EWHC
1606 (Comm)��104
Compton Beauchamp Estates Ltd v. Spence [2013] EWHC 1101 (Ch)��168
Concordia Agritrading Pte Ltd v. Cornelder Hoogewerff (Singapore) Pte Ltd [2001] 1
SLR 222��18
Conder Structures v. Kvaerner Construction Ltd [1999] ADRLJ 305�� 106, 143
xxiv
table of cases
Construction Diving Services (Queensland) Pty Ltd v. Van Oord ACZ BV [1998] VSC
2936��18
Continental Enterprises Ltd v. Shandong Zhucheng Foreign Trade Group Co [2005]
EWHC 92 (Comm)�� 146, 161, 162
Continental Grain Co v. Bremer Handelsgesellschaft [1984] 2 Lloyd’s Rep 121��115
Continental Grain Co v. China Petroleum Technology Development Corporation,
Continental Transfert Technique Ltd v. Nigeria [2010] EWHC 780 (Comm)��124
Cook International Inc v. Handelsmaatschappij Jean Delvaux BV [1985] 2 Lloyd’s Rep
225��139
Coop International Pte Ltd v. Ebel SA [1998] 3 SLR 670�� 20, 32, 78, 111
Cooper v. Symes (2001) 15 PRNZ 166��246
Coppee-Lavalin SA/NV v. Ken Ren Chemicals and Fertilizers Ltd [1994] 2 WLR 631;
[1994] 2 Lloyd’s Rep 109�� 26, 60, 156, 192
Cornwall Park Trust Board (Inc) v. Brown [2008] NZHC 562��166
Corporacion Transnacional de Inversiones SA de CV v. STET International SpA
(1999) 45 O.R. (3d) 183��100
Cott v. Barber [1997] 3 All ER 540�� 15, 21
Cottonex Anstalt v. Patriot Spinning Mills Ltd [2013] EWHC 236 (Comm)��248
Covington Marine Corp v. Xiamen Shipbuilding Industry Co Ltd [2005] EWHC
291�� 239, 243
Cox v. Group Employment Management Ltd [2005] 1 HKC 199��36
CR Sugar Trading Ltd v. China National Sugar and Alcohol Group [2003] 1 Lloyd’s
Rep 279��105
Crest Nicholson (Eastern) Ltd v. Western [2008] EWHC 1325 (TCC)��54
Crowther v. Rayment [2015] EWHC 427 (Ch)��70, 156, 162
Cruden Construction Ltd v. Commissioner for the New Towns [1995] 2 Lloyd’s Rep
387��33
Cruz City I Mauritius Holdings v. Unitech Ltd [2013] EWCA Civ 1512��124
CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR
305; [2011] SGCA 33�� 103, 117, 121
Cuflet Chartering v. Carousel Shipping Co Ltd, The Marie H [2001] 1 Lloyd’s Rep 707101
Cukurova Holding AS v. Sonera Holding BV (British Virgin Islands) [2014] UKPC
15�� 53, 121
Curacao Trading BV v. Harkisandas & Co [1992] 2 Lloyd’s Rep 186��84
Cypressvale Pty Ltd v. Retail Shop Leases Tribunal [1995] QCA 187��168
Dadourian Group Int Inc v. Simms [2004] EWCA Civ 686; [2006] 2 Lloyd’s Rep
354�� 72, 90
The Dai Yun Shan [1992] 2 SLR 508��15, 32, 38
Daimler South East Asia Pte Ltd v. Front Row Investment Holdings (Singapore) Pte
Ltd [2012] SGHC 157��240
Dalian Hualiang Enterprise Group Co Ltd v. Louis Dreyfus Asia Pte Ltd [2005] 4
SLR 646��31, 32, 34
Dalimpex Ltd v. Janicki (2003) 228 DLR (4th) 179��31
Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs of the
Government of Pakistan [2008] EWHC 1901 (Comm); [2010] UKSC 46�� 53,
117, 118, 119, 120
Dallal v. Bank Mellat [1986] 1 All ER 239��156
Dardana Ltd v. Yukos Oil Co see Yukos Oil Co
David Taylor Son Ltd v. Barnett Trading Co [1953] 1 Lloyd’s Rep 181��146
xxv
table of cases
David Wilson Homes Ltd v. Survey Services Ltd [2001] BLR 267��22
Dawes v. Treasure and Sons Ltd [2010] EWHC 3218 (TCC)��20
DDT Trucks of North America Ltd v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep
213�� 101, 102, 148, 240, 241
The Delos [2001] 1 Lloyd’s Rep 703��19
Delta Reclamation Ltd v. Premier Waste Management Ltd [2008] EWHC B16
(Comm)��28, 35, 38
Demco Investments and Commercial SA v. SE Banken Forsakring Holding Aktiebolag
[2005] 2 Lloyd’s Rep 250�� 63, 238
Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments
Ltd [2010] SGHC 108�� 53, 114, 115, 117, 118, 119, 120, 122
Dennison v. Potts [2006] NZHC 791��121
Department of Economics Policy and Development of the City of Moscow v. Bankers
Trust Co [2004] 2 Lloyd’s Rep 179��98
Department of Transport v. Chris Smaller (Transport) Ltd [1989] 1 All ER 897��216
Derby Resources AG v. Blue Corinth Marine Co Ltd, The Athenian Harmony (No. 2)
[1998] 2 Lloyd’s Rep 425��92
Dermajaya Properties SDN BHD v. Premium Properties SDN BHD [2002] 2 SLR
164�� 25, 61, 78, 79
Desputeaux v. Éditions Chouette (1987) Inc [2003] 1 SCR 178��125
Deutsche Bank AG v. Tongkah Harbour Public Co Ltd [2011] EWHC 2251 (Comm)��15
Deutsche Schachtbau und Tiefbohrgesellschaft mbH v. Shell International Petroleum
Co Ltd (Nos 1 and 2) [1987] 2 Lloyd’s Rep 246, CA; rev’sd [1990] 1 AC 295;
[1988] 2 Lloyd’s Rep 293, HL�� 124, 125, 126
Diag Human Se v. Czech Republic [2013] EWHC 3190 (Comm); [2014] EWHC
1639 (Comm)�� 115, 118, 123
Director General of Fair Trading v. Proprietary Association of Great Britain [2001] 1
WLR 700��138
Dolling-Baker v. Merrett [1990] 1 WLR 1205; [1991] 2 All ER 891��96, 97, 98
Dolphin Tankers SrL v. Westport Petroleum Inc [2011] 1 Lloyd’s Rep 550��248
Domansa v. Derin Shipping and Trading Co, The Sleatral [2001] 1 Lloyd’s Rep 362��16
Dongwoo Mann & Hummel Co Ltd v. Mann & Hummel GmbH [2008] SGHC 67;
[2008] 3 SLR 871�� 101, 104, 107, 120, 125
Doshion Ltd v. Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46��20
Double K Oil Products 1996 Ltd v. Neste Oil OYJ [2010] 1 Lloyd’s Rep 141��101
Dowans Holding SA v. Tanzania Electric Supply Co Ltd [2011] EWHC 1957
(Comm)�� 123, 124
Downer Construction (New Zealand) Ltd v. Silverfield Developments Ltd [2006]
NZHC 486; [2007] NZCA 355�� 237, 244, 246, 249
Downer-Hill Joint Venture v. Government of Fiji [2005] 1 NZLR 554�� 117, 127
Downing v. Al Tameer Establishment [2002] 2 All ER (Comm) 545; [2002] EWCA
Civ 721�� 14, 35, 160, 216
Dragages v. Preservatrice Fonciere [1988] HKC 735��199
Drake Insurance Co v. Provident Insurance Co [2004] 1 Lloyd’s Rep 268��90
Dredging and Construction Co Ltd v. Delta Civil Engineering Ltd (1999) 68 Con LR
87�� 143, 174
Drydocks World-Singapore Pte Ltd v. Jurong Port Pte Ltd [2010] SGHC 185��4, 38, 196
DST v. Rakoil [1987] 1 All ER 769�� 162, 165
Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc [2001] 1 Lloyd’s Rep
65�� 156, 191, 192
xxvi
table of cases
The Duden [2008] 4 SLR 984��38
Duke of Buccleuch v. Metropolitan Board of Works (1870) LR 5 Exch 221��115
Durham County Council v. Darlington Borough Council [2003] EWHC 2598
(Admin)�� 92, 241
Eagle Star Insurance Co v. Yuval Insurance Co Ltd [1978] 1 Lloyd’s Rep 357��38, 165, 262
Eastern Counties Railway Co v. Eastern Union Railway Co (1863) De G J Sm 610��65
Ecom Agroindustrial Corporation Ltd v. Moshataf Composite Textile Mill Ltd [2013]
Econ Piling Pte Ltd v. NCC International AB [2007] SGHC 17��21
Econet Satellite Services v. Vee Networks [2006] 2 Lloyd’s Rep 243��28
Economic Department of City of Moscow v. Bankers Trust Co [2004] 2 Lloyd’s Rep 17997
ED & F Man Sugar Ltd v. Lendoudis [2007] 2 Lloyd’s Rep 579��85
ED & F Man v. Belmont Shipping Ltd [2011] EWHC 2992 (Comm)��106
Egmatra AG v. Marco Trading Corporation [1999] 1 Lloyd’s Rep 862�� 107, 239, 242
Egon Oldendorff v. Libra Corporation [1995] 2 Lloyd’s Rep 64�� 161, 162
El Nasharty v. J Sainsbury plc [2004] 1 Lloyd’s Rep 309; [2008] 1 Lloyd’s 361�� 14, 146
Electra Air Conditioning BV v. Seeley International Pty Ltd ACN 054 687 035 [2008]
FCAFC 169�� 59, 72
Electrim SA v. Vivendi Universal SA (No. 2) [2007] 2 Lloyd’s Rep 8��41
Electrosteel Castings Ltd v. Scan-Trans Shipping & Chartering SDN BHD [2003] 1
Lloyd’s Rep 190��40, 53, 54
The Elizabeth H [1962] 1 Lloyd’s Rep 172��19
Ellerine Brothers (Pty) Ltd v. Klinger [1982] 2 All ER 737��33
Emcor Drake & Skull Ltd v. Costain Construction Ltd and Skanska Central Europe
AB [2004] EWHC 2439 (TCC)��98
Emirates Trading Agency LLC v. Prime Mineral Exports Pte Ltd [2014] EWHC 2104
(Comm)��81
Emirates Trading Agency LLC v. Sociedade De Fomento Industrial Private Ltd [2015]
Emmott v. Michael Wilson & Partners Ltd (No 2) [2009] EWHC 1 (Comm); [2008]
1 Lloyd’s Rep 616�� 16, 20, 28, 59, 66, 72, 76, 97, 98, 99, 218
Enco Civil Engineering v. Zeus International Development Ltd (1991) 28 Con LR 25��196
Enercon GmbH v. Enercon (India) Ltd [2012] 1 Lloyd’s Rep 519��23
The Engedi [2010] SGHC 95�� 39, 42
Engineering Construction Pte Ltd v. Sanchoon Builders Pte Ltd [2010] SGHC
293�� 238, 242
England and Wales Cricket Board v. Kaneria [2013] EWHC 1074 (Comm)��22
Enoch and Zaretsky, Bock Co, Re [1910] 1 KB 327��104
Equinox Offshore Accommodation Ltd v. Richshore Marine Supplies Pte Ltd [2010]
SGHC 122��28, 69–70
Equuscorp Pty Ltd v. Wilmouth Field Warne [2003] VSC 6284�� 29, 38
ESCO Corporation v. Bradken Resources Pty Ltd [2011] FCA 905��124
Essex County Council v. Premier Recycling Ltd [2006] EWHC 3595 (TCC)��239
Esso Australia Resources Ltd v. Minister for Energy and Minerals [1994] ADRLJ 214��97
ETI Euro Telecom International NV v. Republic of Bolivia [2008] EWCA Civ 89l��76
Etri Fans Ltd v. NMB (UK) Ltd [1987] 2 All ER 763��39
Euro-America Insurance Ltd v. Lite Best Co Ltd [1993] 1 HKC 333��196
Evans v. National Pool Equipment Pty Ltd (1972) 2 NSWLR 410��115
Ever Judger Holding Co Ltd v. Kroman Celik Sanayii Anonim Sirketi [2015] HKCFI
602��29, 153–4
xxvii
table of cases
Evergreat Construction Co Pte Ltd v. Presscrete Engineering Pte Ltd [2006] 1 SLR 634�21
Excess Insurance Co v. Mander [1995] LRLR 583��19
Exeter City AFC v. Football Conference Ltd [2004] 4 All ER 1179�� 22, 56
F&D Buildings Services Engineering Co Ltd v. Chevalier (E & M Contracting) Co Ltd
[2001] 3 HKC 403�� 33, 34
F Ltd v. M Ltd [2009] EWHC 275 (TCC); [2009] 1 Lloyd’s Rep 537�� 98, 105, 106,
167, 243
Fahem Co v. Mareb Yemen Insurance Co [1997] 2 Lloyd’s Rep 738��16
Fairmount Development Pte Ltd v. Soh Beng Tee & Co Pte Ltd [2007] 1 SLR 32��108
Fakes v. Taylor Woodrow [1973] 1 All ER 670��195
Far Eastern Shipping Co v. AKP Sovcomflot [1995] 1 Lloyd’s Rep 520�� 85, 127
Fasi v. Speciality Laboratories Asia Pte Ltd [1999] 1 SLR(R) 1138; [1999] 4 SLR
488�� 38, 195
Fastrack Contractors Ltd v. Morrison Construction Ltd [2000] BLR 168��33
Federal Insurance Co v. Transamerica Occidental Life Insurance Co Ltd [1999] 2
Lloyd’s Rep 286�� 144, 207
The Federal Bulker [1989] 1 Lloyd’s Rep 103��19
Fence Gate Ltd v. NEL Construction Ltd (2001) 82 Con LR 41�� 63, 93, 238, 240
Fenton v. Dimes (1840) 9 LJQB 297��178
Ferris v. Plaister (1994) 34 NSWLR 474��145
Fidelitas Shipping Co v. V/O Exportkleb [1965] 1 Lloyd’s Rep 13��89
Fidelity Management SA v. Myriad International Holdings [2005] 2 Lloyd’s Rep
508�� 105, 106
Fifield v. W & R Jack Ltd [2000] UKPC 27��199
Fiona Trust & Holding Corp v. Privalov [2008] 1 Lloyd’s Rep 254��31, 51, 146
First Options of Chicago Inc v. Kaplan 514 US 938 (1995)��118
FirstLink Investment Corporation Ltd v. GT Payment Pte Ltd [2014] SGHCR 12�� 29,
161–2
Fisher & Paykel Financial Services Ltd v. Credit Management Services Inc [2008]
NZHC 707��146
Five Oceans Salvage Ltd v. Wenzhou Timber Group Co [2011] EWHC 3282
(Comm)�� 88, 172
Fleming and Wendeln GmbH v. Sanoi SA/AG [2003] 2 Lloyd’s Rep 473��147
Fletamentos Maritimos SA v. Effjohn International BV (No. 2) [1997] 2 Lloyd’s Rep
302��139
Flight Training International v. International Fire Training Equipment Ltd [2004] 2
All ER (Comm); [2004] EWHC 721 (Comm) 568��21
Foleys Ltd v. City and East London Family and Community Services [1997] ADRLJ
401�� 243, 248
Fortress Value Recovery Fund LLC v. Blue Skye Special Opportunities Fund LP
[2013] EWCA Civ 367�� 40, 41, 268, 269
Four Pillars Enterprises Co Ltd v. Beiersdorf Aktiengesellschaft [1999] 1 SLR 737�� 31,
39, 56
Fox v. P G Wellfair [1982] 2 Lloyd’s Rep 514��107
Francis Travel Marketing Ltd v. Virgin Atlantic Airways (1996) 39 NSWLR 160��55
Front Carriers Ltd v. Atlantic & Orient Shipping Corp [2006] 3 SLR 854�� 70, 135
Front Row Investment Holdings (Singapore) Pte Ltd v. Daimler South East Asia Pte
Ltd [2010] SGHC 80�� 104, 105, 168
Frota Oceanica Brasileira SA v. Steamship Mutual Underwriting Association
(Bermuda) Ltd, The Frotanorte [1996] 2 Lloyd’s Rep 461�� 15, 137
xxviii
table of cases
Fuerst Brothers Co Ltd and Stephenson, Re [1951] 1 Lloyd’s Rep 429��104
Fuga AG v. Bunge AG [1975] 2 Lloyd’s Rep 192��172
Fulham Football Club (1987) Ltd v. Richards [2012] Ch 333��56
Fung Sang Trading Ltd v. Kai Sun Sea Products & Food Co Ltd [1991] 2 HKC 526 26, 30
Fustar Chemicals Ltd v. Sinochem Liaoning Hong Kong Ltd [1996] 2 HKC 407�� 35, 45
Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd [2010]
SGHC 304�� 114, 116, 118, 120, 122, 125
Gannet Shipping Ltd v. Eastrade Commodities Inc [2001] 1 Lloyd’s Rep 713��172
Gao Haiyan v. Keeneye Holdings Ltd [2011] HKCA 459��139
The Garden Co Ltd v. On Lee General Contractors Ltd [1995] 2 HKC 89��242
Garrick Shipping Co v. Euro-Frachtkontor GmbH, The World Agamemnon [1989] 2
Gascor v. Ellicott [1995] VSC 2080��139
Gater Assets Ltd v. NAK Naftogaz Ukrainiy [2007] EWCA Civ 988��115
Gater Assets Ltd v. NAK Naftogaz Ukrainiy (No. 2) [2008] EWHC 1108 (Comm);
[2008] 1 Lloyd’s Rep 479��86, 93, 101
Gateway Land Pte Ltd v. Turner (East Asia) Pte Ltd [1987] 1 SLR 553��61
Gatoil International Incorporated v. National Iranian Oil Company 1990 WL 10622722�35
Gay Constructions Ltd Pty Ltd v. Caledonian Techmore (Building) Ltd [1994] HKC
562��17
Gbangbola v. Smith & Sherriff Ltd [1998] 3 All ER 730��93, 104, 237
General Construction Ltd v. Aegon Insurance Co (UK) Ltd, 1999, unreported��63
General Distributors Ltd v. Melanesian Mission Trust Board [2008] NZHC 1817�� 12, 238
General Feeds Inc Panama v. Slobodna Plovidba Yugoslavia [1999] 1 Lloyd’s Rep 688��169
Geogas SA v. Trammo Gas Ltd, The Baleares [1991] 1 Lloyd’s Rep 349��245
George Moundreasa & Co SA v. Navimpex Central Navala [1985] 2 Lloyd’s Rep 515��90
Geowin Construction Pte Ltd v. Management Corporation Strata Title No. 1256
[2007] 1 SLR 1004��21
Getwick Engineers Ltd v. Pilecon Engineering Ltd (2002) 1020 HKCU 1�� 32, 34
Giant Light Metal Technology (Kunshan) Co Ltd v. Aksa Far East Pte Ltd [2012]
SGHC 257��28
Giedo van der Garde BV v. Sauber Motorsport AG [2015] VSC 80�� 122, 127
Giffen v. Drake and Scull (1993) 37 Con LR 84��19
Gildepath Holdings BV v. Thompson [2004] EWHC 2234 (QB)��72
Gingerbread Investments Ltd v. Wing Hong Interior Contracting Ltd [2008] 2 HKC 29912
Glaxosmithkline UK Ltd v. Department of Health [2007] EWHC 1470 (Comm)��14
Glencore Grain Ltd v. Agros Trading Ltd [1999] 2 Lloyd’s Rep 410; [1999] 2 All ER
(Comm) 288��28, 33–4
Glencot Development and Design Co Ltd v. Ben Barrett & Son (Contractors) Ltd
[2001] BLR 207��82
Glidepath Holdings BV v. Thompson [2005] 2 Lloyd’s Rep 549�� 14, 97
Go Go Delicacy Pte Ltd v. Carona Holdings Pte Ltd [2008] 1 SLR 161��28
Goel v. Amega Ltd [2010] EWHC 2454 (TCC)��104
Gold and Resource Developments (NZ) Ltd v. Doug Hood Ltd [2000] NZCA 131;
[2000] 3 NZLR 318�� 240, 244
Goldenlotus Maritime Ltd v. European Chartering & Shipping Inc [1993] SGHC 25��242
Good Challenger Nevegante SA v. Metalimportexport SA [2004] 1 Lloyd’s Rep 67��118
Goodman v. Winchester Alton Railway Co plc [1984] 3 All ER 594��195
Gordian Runoff Ltd v. Underwriting Members of Lloyd’s Syndicates [2002] NSWSC
1260��144
xxix
table of cases
Gordian Runoff Ltd v. Westport Insurance Corporation [2010] NSWCA 57��168

Goshawk Dedicated Ltd v. ROP Inc [2006] Lloyd’s Rep IR 711��74
Government of Gibraltar v. Kenney [1956] 2 QB 410�� 16, 146
Government of the Lao People’s Democratic Republic v. Sanum Investments Ltd
[2015] SGHC 15�� 53, 77
Government of the Lao People’s Democratic Republic v. Thai-Lao Lignite Co Ltd W-
02(NCC)-1287- 2011��179
Government of the Republic of the Philippines v. Philippine International Air Terminals
Co Inc [2007] 1 SLR 278�� 87, 101, 146, 157, 176, 177
Grand Pacific Holdings Ltd v. Pacific China Holdings Ltd (In Liq) (No 1) [2012] 4
HKLRD 1�� 107, 117
Grandeur Electrical Co Ltd v. Cheung Kee Fung Cheung Construction Co Ltd [2006]
4 HKC 423��35
Grant Constructions Pty Ltd v. Claron Constructions Pty Ltd [2006] NSWSC 369��195
Grant Thornton International Ltd v. JBPB & Co [2013] HKCFI 523��122
Granton Natural Resources Co Ltd v. Armco Metals International Ltd [2012] HKCFI
1938�� 125, 139
Great Ormond Street Hospital NHS Trust v. Secretary of State for Health (1997) 56
Con LR 1��45
Green Star Shipping Co v. London Assurance (1928) 31 Ll L Rep 4��195
Grimaldi Compagnia di Navigazione SpA v. Sekihyo Lines [1998] 2 Lloyd’s Rep 638��199
Groundshire Ltd v. VHE Construction plc [2001] BLR 395�� 104, 143, 172, 250
Grovit v. Doctor [1997] 2 All ER 417��216
Guandong Overseas Shenzhen Co Ltd v. Yao Shun Group International Ltd [1998] 1
HKC 451�� 21, 120
Guandong Water Conservancy & Hydro-Power Engineering Development Co Ltd v.
Ming An Insurance Co (HK) Ltd default [1990] 2 HKLR 557��199
Guangdong Agriculture Co Ltd v. Conagra International (Far East) Ltd [1993]
ADRLJ 100; [1993] 1 HKLR 113�� 32, 33
Guangdong New Technology Import & Export Corporation Jiangmen Branch v. Chiu
Shing [1991] 2 HKC 459�� 17, 177
Guardcliffe Properties Ltd v. City & St James [2003] 2 EGLR 16��63, 104, 238
Guidance Investments Ltd v. Guidance Hotel Investment Co BSC [2013] EWHC
3413 (Comm)��28
Gurney Consulting Engineers v. Pearson Pension Property Fund Ltd [2004] EWHC
1916 (TCC)��14
H P Construction & Engineering Pte Ltd v. Chin Ivan [2014] SGHC 137�� 33, 195
H Smal Ltd v. Goldroyce Garment Ltd [1994] 2 HKC 526��17
Habas Sinai VE Tibbi Gazlar Isthisal Endustri AS v. Sometal SARL [2010] EWHC 29
(Comm)�� 18, 21
Halifax Financial Services Ltd v. Intuitive Systems Ltd [1999] 1 All ER (Comm) 303��81
Halifax Life Ltd v. Equitable Life Assurance Society [2007] 1 Lloyd’s Rep 528��21
Halki Shipping Corporation v. Sopex Oils Ltd [1998] 1 Lloyd’s Rep 49, affirmed
[1998] 1 Lloyd’s Rep 465�� 32, 33
Hall v. Bank of New Zealand [2008] NZHC 1132��15
Halpern v. Halpern [2006] 2 Lloyd’s Rep 83, affirmed [2007] 2 Lloyd’s Rep 56�� 156,
165, 191, 192
Harbour Assurance Co (UK) Ltd v. Kansa General International Insurance Co Ltd
[1992] 1 Lloyd’s Rep 81; rev’sd [1993] 1 Lloyd’s Rep 455�� 145, 146
Harper Versicherungs AG v. River Thames Insurance Co Ltd [2006] 2 Lloyd’s Rep 263��46
xxx
table of cases
Harris Adacom Corporation v. Percom Sdn [1991] 3 MLJ 504��125
Hashwani v. OMV Maurice Energy Ltd [2015] EWHC 1811 (Comm)��30
Haskins v. Brae-Villa Homes Pty Ltd [1995] VSC 7031��143
Hassneh Insurance Co of Israel v. Mew [1993] 2 Lloyd’s Rep 243��96, 97, 98
Hawk Shipping Ltd v. Cron Navigation Ltd [2003] EWHC 1828 (Comm)�� 107, 168, 172
Hayter v. Nelson (No. 1) 1989, unreported��67
Hayter v. Nelson [1990] 2 Lloyd’s Rep 265��32
Healthcare Supply Chain (Pte) Ltd v. Roche Diagnostics Asia Pacific Ltd [2011] 3
SLR 476��238
Hebei Import & Export Corp v. Polytek Engineering Co Ltd [1999] 2 HKC 205�� 120,
121, 124, 125, 126, 139
Hebei Jikai Industrial Group Co Ltd v. Martin [2015] FCA 228��12, 50, 177
The Heidberg [1994] 2 Lloyd’s Rep 287�� 19, 161
Heifer International Inc v. Christiansen [2007] EWHC 3015 (TCC)��18
Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] 1
QB 388�� 222, 228, 232, 237
Hercules Data Comm Co Ltd v. Koywa Communications Ltd [2001] 2 HKC 75�� 18, 33
Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc (1998) 159 ALR 142��16
Hi-Fert Pty Ltd v. United Shipping Adriatic Inc (1998) 165 ALR 265�� 15, 18
Hi-Gene Ltd v. Sunshine Hygiene Franchise Corporation [2010] NZCA 359��120
HIH Casualty and General Insurance Ltd v. R J Wallace [2006] NSWSC 1150�� 21, 35
Hirji Mulji v. Cheong Yue Steamship Co Ltd [1926] AC 497��146
Hiscox Underwriting v. Dickson Manchester & Co Ltd [2004] 2 Lloyd’s Rep 438��72–3, 76
Hiscox v. Outhwaite (No. 1) [1991] 3 All ER 641��170
Hiscox v. Outhwaite (No. 3) [1991] 2 Lloyd’s Rep 524��165
HJ Heinz Co Ltd v. EFL Inc [2010] EWHC 1203 (Comm)��118
HKL Group Co Ltd v. Rizq International Holdings Pte Ltd [2013] SGHCR 08��34, 35, 80
HMV UK v. Propinvest Friar Ltd Partnership [2011] EWCA Civ 1708��242
Ho Fat Sing v. Hop Tai Construction Co Ltd [2008] HKCU 2022�� 18, 21
Hobbs, Padgett Co (Reinsurance) Ltd v. J C Kirkland Ltd [1969] 2 Lloyd’s Rep 547��15
Hodgson v. Railway Passengers Assurance Co [1904] 2 KB 833��196
HOK Sport Ltd v. Aintree Racecourse Co Ltd [2003] BLR 156��248
Holland Leedon Pte Ltd (in liquidation) v. Metalform Asia Pte Ltd [2010] SGHC
280; [2011] SGHC 32; [2012] 3 SLR 377�� 87, 238, 240, 242
Holloway and Holloway v. Chancery Mead Ltd [2007] EWHC 2495 (TCC)��81
Home of Homes Ltd v. Hammersmith and Fulham London Borough Council (2003)
92 Con LR 48�� 142, 169
Home Insurance v. ADAS [1983] 2 Lloyd’s Rep 674��165
Home and Overseas Insurance Co Ltd v. Mentor Insurance Co (UK) Ltd [1989] 3 All
ER 74��165
Hong Huat Development Co Pte Ltd v. Hiap Hong & Co Pte Ltd [2000] 1 SLR(R)
510; [2002] SLR 609�� 106, 143, 169, 238, 242, 246
Hong Kong Golden Source Ltd v. New Elegant Investment Ltd [2014] HKCFI��124
Hong Kong Institute of Education v. Aoki Corporation [2003] 3 HKC 653��212
Hong Kong Institute of Education v. Aoki Corporation (No. 2) [2004] 2 HKC 397��238, 242
Hong v. Hian [2006] HKCU 1663��30
House of Fraser Ltd v. Scottish Widows plc [2011] EWJC 2800 (Comm)��238
How Engineering Services Ltd v. Lindner Ceilings Floors Partitions plc [1996] ADRLN 2��231
How Engineering Services Ltd v. Lindner Ceilings Floors Partitions plc [1996]
ADRLN 2; [1999] All ER (Comm) 374��65
xxxi
table of cases
HSBC Institutional Trust Services (Singapore) Ltd v. Toshin Development Singapore

Pte Ltd [2012] SGCA 48��81
Hsin Chong Construction (Asia) Ltd v. Henble Ltd [2005] 3 HKC 27��72
Hua Xin Innovation Incubator Pte Ltd v. IPCO International Ltd [2012] SGHC
273�� 25, 195
Humphrey v. Dua Contractors & Co Ltd [1997] 3 HKC 368�� 15, 227
Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co [2000] 2 Lloyd’s Rep
83��65, 104, 105, 106, 107, 143, 162, 225, 239
Hussmann (Europe) Ltd v. Pharaon [2003] 1 All ER (Comm) 879�� 103, 106, 143, 181
Huyton SA v. Peter Cremer GmbH & Co [1999] 1 Lloyd’s Rep 620��14
Hyosung (HK) Ltd v. Owners of the Hilal I [2001] 1 SLR 387�� 20, 42
Hyundai Engineering & Construction Co Ltd v. Sembawang Kimtrans (Singapore)
Pte Ltd [2001] 1 SLR 739��242
Hyundai Engineering & Construction Co Ltd v. Vigour Ltd [2004] 440 HKCU 1��81
Hyundai Engineering and Construction Co Ltd v. Shun Shing Construction and
Engineering Co Ltd [1996] 2 HKC 395��199
I-Expo Sdn Bhd v. TNB Engineering Corporation Sdn Bhd [2007] 3 MLJ 53�� 66, 73
IBM Australia v. National Distribution Services (1991) 22 NSWLR 466��145
ICC Chemical Corporation v. Zhuhai Minmetals International Non-Ferrous Metals
Trading Co [1996] 2 HKC 64��18, 30, 136
The ICL Raja Mahendra [1999] 1 SLR 329�� 14, 38
Icon Navigation Corporation v. Sinochem International Petroleum (Bahamas) Co Ltd
[2004] 1 All ER (Comm) 405�� 103, 107, 244, 245
IJM Construction v. Cleveland Development [2002] MLJ 214��38
Incorporated Onwers of Tak Tai Building v. Leung Yau Building Ltd [2005] 1 HKC 530��50
Incorporated Owners of Sincere House v. Sincere Co Ltd [2005] 2 HKC 424��30
Indescon Ltd v. Ogden [2005] 1 Lloyd’s Rep 31��14, 160, 216
India Steamship Co Ltd v. Arab Potash Co Ltd, 1997, unreported��244
Indian Oil Corporation v. Vanol Inc [1992] 2 Lloyd’s Rep 563��21
Insigma Technology Co. Ltd v. Alstom Technology Ltd [2008] SGHC 134, affirmed
[2009] SGCA 24��14, 54, 80, 148, 149
Insurance Company v. Lloyd’s Syndicate [1995] 1 Lloyd’s Rep 272��97
Interbulk Ltd v. Aiden Shipping Co Ltd, The Vimeira [1984] 2 Lloyd’s Rep 66��104
Interbulk Ltd v. Ponte dei Sospiri Shipping Co (The Standard Ardour) [1988] 2
International Bulk Shipping Services Ltd v. Minerals & Metals Trading Corpn of India
& Ors [1996] 2 Lloyd’s Rep 474��46
International Coal Pte Ltd v. Kristle Trading Ltd [2008] SGHC 182��97
International Research Corporation Plc v. Lufthansa Systems Asia Pacific Pte Ltd
[2012] SGHC 226�� 16, 19, 29, 81
International SOS Pte Ltd v. Overton [2001] 2 SLR(R) 777��38
Internaut Shipping Ltd v. Fercometal SARL [2003] EWCA Civ 812; [2003] 2 Lloyd’s
Rep 430�� 40, 181
Interprods Ltd v. De La Rue International Ltd [2014] EWHC 68 (Comm)�� 55, 139
Interserve Industrial Services Ltd v. ZRE Katowice [2012] EWHC 3205�� 20, 21
Invar Realty Pte Ltd v. JDC Corporation [1989] 3 MLJ 13��242
IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp [2005] EWHC 726
(Comm); [2005] 2 Lloyd’s Rep 326�� 123, 125
IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp (No 2) [2008] EWCA Civ
1157��85, 115, 124
xxxii
table of cases
IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp (No 3) [2014] EWHC 576
(Comm)��123
Ipswich Borough Council v. Fisons plc [1990] 1 All ER 730��242
IRB Brasil Resseguros SA v. CX Reinsurance Ltd [2010] Lloyd’s Rep IR 560��169
Irvani v. Irvani [2000] 1 Lloyd’s Rep 412��14, 113, 120
Islamic Republic of Iran Shipping Lines v. Ierax Shipping Co of Panama, The Forum
Craftsman [1991] 1 Lloyd’s Rep 81��238
Islamic Republic of Iran Shipping Lines v. The Royal Bank of Scotland, The Anna Ch
[1987] 1 Lloyd’s Rep 266��238
Jadranska Slobodna Plovidba v. Oleagine SA, The Luka Botic [1983] 3 All ER 602��198
Jamacs Corporation Ltd v. Norfolk Trustee Co Ltd [2008] NZHC 1624��248
James Lazenby & Co v. McNicholas Construction Co Ltd [1995] 2 Lloyd’s Rep 30��216
James Miller Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970] AC
583�� 157, 191
Japan Line Ltd v. Aggeliki Charis Compania Maritima SA, The Angelic Grace [1980]
1 Lloyd’s Rep 288��87
Jardine Birshe Ltd v. Cathedral Works Organisation (Chichester) Ltd [1996] ADRLN 14��19
Jarvis Sons plc v. Galliard Homes Ltd [2000] BLR 33��14
Jaya Offshore Pte Ltd v. World Marine Pte Ltd [1996] SGHC 272��242
JD Wetherspoon plc v. Jay Mar Estates [2007] EWHC 856 (TCC)��176
JDC Corporation v. Lightweight Concrete Pte Ltd [1999] 1 SLR 615��195
JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd [2013] 7 CLJ 249��179
Jialing (Hong Kong) Co Ltd v. J A Moeller (Hong Kong) Ltd [1993] 2 HKC 637��36
Jiang Haiying v. Tan Lim Hui [2009] SGHC 42�� 28, 36, 267, 268
Jiangsu Hantong Ship Heavy Industry Co Ltd v. Sevan Holding I Pte Ltd [2009]
SGHC 285��33
Jiangxi Provincial Metal & Mineral Import and Export Corp v. Sulanser Co Ltd [1995]
2 HKC 373�� 17, 122
JJ Agro Industries (P) Ltd v. Texuna International Ltd [1992] 2 HKLR 391; [1994] 1
HKLR 89�� 115, 127
The Jocelyne [1977] 2 Lloyd’s Rep 121��199
Joel Passlow v. Butmac Pty Ltd [2012] NSWSC 225��14
John Holland Pty Ltd (Fka John Holland Construction & Engineering Pty Ltd) v. Toyo
Engineering Corp (Japan) [2001] 2 SLR 262��25, 78, 101, 102, 104, 127, 178
John Mowlem Construction plc v. Secretary of State for Defence (2001) 82 Con LR
140��221
Joint Stock Company “Aeroflot-Russian Airlines” v. Berezovsky [2013] EWCA Civ
784��30, 31, 34
Jones v. Sherwood Services Ltd [1992] 1 WLR 277��21
The Jordan Nicolov [1990] 2 Lloyd’s Rep 11��39
Joseph Finney plc v. Vickers, 2001, unreported��146
JSC Zestafoni G Nikoladze Ferroalloy Plant v. Ronly Holdings [2004] 2 Lloyd’s Rep
355�� 28, 87, 147, 178
Jugoslavenska Oceanska Plovidba v. Castle Investment Co Inc [1974] QB 292�� 67, 115
Jung Science Information Technology Co Ltd v. ZTE Corporation [2008] HKCU 1127�� 139
K v. S [2015] EWHC 1945 (Comm)��250
Kailay Engineering Co (HK) Ltd v. Farrance [1999] 2 HKC 765��142
Kallang Shipping SA Panama v. Axa Assurance Senegal [2007] 1 Lloyd’s Rep 160;
[2008] EWHC 2761 (Comm)��18, 74, 75
Kaneria v. England and Wales Cricket Board Ltd [2014] EWHC 1348 (Comm)��80
xxxiii
table of cases
Kanoria v. Guinness [2006] 1 Lloyd’s Rep 701�� 117, 118, 121

Kansa General Insurance Co Ltd v. Bishopsgate Insurance plc [1988] 1 Lloyd’s Rep
503, [1988] 1 FTLR 190��165
Karaha Bodas Co LLC v. Pertamina [2008] HKCU 1902�� 116, 125, 127
Karaha Bodas Co LLC v. Perusahaan Perambangan Minydak Dan Gas Bumi Negara
[2003] 2 HKC 200��115
Karaha Bodas Co LLC v. Perusahaan Perambangan Minydak Dan Gas Bumi Negara
(No. 2) [2003] 4 HKC 488�� 120, 122
Kelsey Housing Association Ltd v. Ruddy Developments Ltd [1998] ADRLN 6��143
Kempinski Hotels SA see PT Prima International Development
Kenon Engineering Ltd v. Nippon Kokan Koji Kabushiki Kaisha [2004] 512 HKU 1��30
Keydon Estates Ltd v. Western Power Distribution (South Wales) Ltd [2004] EWHC
996 (Ch)��244
Kimberley Construction Ltd v. Mermaid Holdings Ltd [2004] 1 NZLR 386��125
King v. Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670, affirmed on
other grounds [2005] 1 Lloyd’s Rep 655��90, 162, 163
King v. Thomas McKenna Ltd [1991] 2 QB 480��172
Kitchin, Re (1881) 17 Ch D 668��90
Kiyue Co Ltd v. Aquagen International Pte Ltd [2003] 3 SLR 130��36
Klöckner Pentaplast Gmbh & Co v. Advance Technology (HK) Co Ltd [2011] HKCFI
458��35
KNM Process Systems Sdn Bhd v. Mission Biofuels Sdn Bhd [2012] MLJU 1218��35
Koh Brothers Building and Civil Engineering Contractor Pte Ltd v. Scotts Development
(Saraca) Pte Ltd [2002] SGHC 223; [2002] 4 SLR 748�� 104, 143
Koninklijke Bunge NV v. Sinitrada Co Ltd [1972–1974] 1 SLR 453��18
Konkola Copper Mines see U&M Mining Zambia Ltd
Kotjo Johanes Budisutrisno, Ex Parte International Factors Leasing Pte Ltd, Re [2004]
4 SLR 1��235
Krajina v. Tass Agency [1949] 2 All ER 274��264
Kruppa v. Benedetti [2014] EWHC 1887 (Comm)�� 21, 22
KS Oriental Trading Pte Ltd v. Defmat Aerospace Pte Ltd [1996] 2 SLR 606��61
Kumar and Kumar v. MF Astley [2006] NZHC 1604�� 103, 120, 125
Kuwait Airways Corporation v. Iraqi Airways Company and Republic of Iraq [1995] 3
All ER 694; [1995] 1 Lloyd’s Rep 25�� 262, 264
Kwan Im Tong Chinese Temple v. Fong Choon Hung Construction Pte Ltd [1998] 2
SLR 137��195
Kwan Lee Construction Co. Ltd v. Elevator Parts Engineering Co Ltd [1997] 1 HKC
97��179
Kyrgyz Mobil v. Fellowes International [2005] EWHC 1314 (Comm)��75
L & M Concrete Specialists Pte Ltd v. United Eng Contractors Pte Ltd [2000] 4 SLR
441�� 17, 37
L Brown & Sons Ltd v. Crosby Homes (North West) Ltd [2008] EWHC 817 (TCC)��102
La Donna Pty Ltd v. Wolford AG [2005] VSC 359��35
La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC [2012]
UKPC 27��264
The Lady Muriel [1995] 2 HKC 320��71
Laertis Shipping Corporation v. Exportadora Espanola de Cementos Portland SA, The
Laertis [1982] 1 Lloyd’s Rep 613��47
Laker Airways Inc v. FLS Aerospace Ltd [1999] 2 Lloyd’s Rep 45; [2000] 1 WLR 113��138
Lanna Resources Public Co Ltd v. Tan Beng Phiau Dick [2011] 1 SLR 543��31
xxxiv
table of cases
Larkden Pty Ltd v. Lloyd Energy Systems Pty Ltd [2011] NSWSC 268�� 33, 55
Larsen Oil and Gas Pte Ltd v. Petroprod Ltd [2011] 3 SLR 414; [2011] SGCA
21��31, 55, 146
Law Debenture Trust Corp plc v. Elektrim Finance BV [2005] EWHC 1412��15
Law Society of Singapore v. Kurubalan s/o Manickam Rengaraju [2013] SGHC 135��55
Lawrence v. Hodgson (1826) 1 Y J 16��178
Laxair Ltd v. Edward W Taylor (1993) 65 Build LR 87��19
Lee Chang Ung Chemical Industry Corporation v. PT Dover Chemical Co [1990] 1
HKC 132��242
Lee v. Elkins (1701) 12 Mod Rep 585��178
Lemenda Trading v. AMEPC [1998] 1 Lloyd’s Rep 361��126
The Leonidas D [1985] 1 WLR 925��14
Lesotho Highlands Development Authority v. Impregilo SpA [2003] 2 Lloyd’s Rep
497; [2005] 2 Lloyd’s Rep 310�� 92, 103, 121, 148, 178, 238
Leung Kwok Tim v. Builders Federal (Hong Kong) Ltd [2001] 3 HKC 527��33
Leviathan Shipping Co Ltd v. Sky Sailing Overseas Co Ltd [1998] 4 HKC 347��71
Lewis Emmanuel Sons Ltd v. Sammut [1959] 2 Lloyd’s Rep 629��64
LG Caltex Co Ltd v. China National Petroleum Technology and Development
Corporation [2001] BLR 325��15
Lian Teck Construction Pte Ltd v. Woh Hup (Pte) Ltd [2006] 4 SLR 1�� 28, 37
Libero Commodities SA v. Augustin [2015] EWHC 1815 (Comm)��45
Liberty Reinsurance Canada v. QBE Insurance and Reinsurance (Europe) Ltd, 2002
CanLII 6636 (ON SC)��165
Liew Ter Kwang v. Hurry General Contractor Pte Ltd [2004] 3 SLR 59��242
Lim Kitt Ping v. People’s Insurance Co [1997] 3 SLR 1018��145
Lincoln National Life Insurance Co v. Sun Life Assurance Co of Canada, American
Phoenix Life and Reassurance Co and Phoenix Home Life Mutual Insurance Co
[2004] 1 Lloyd’s Rep 737, reversed on other grounds [2005] 1 Lloyd’s Rep 606��64
Lindner Ceilings Floors Partitions plc v. How Engineering Services Ltd [2001] BLR
90�� 94–5
Linfield Ltd v. Brooke Hillier Parker [2003] 2 HKC 624��212
Linfield Ltd v. Taoho Design Architects Ltd [2001] HKC 548; [2002] 2 HKC 204�� 99, 195
Linnett v. Halliwells LLP [2009] EWHC 319 (TCC)��225
Linpave Building Ltd v. Gillingham FC Ltd, 2002, unreported��93
Lisnave Estaleiros Navias SA v. Chemikalien Seetransport GmbH [2013] EWHC 338
(Comm)��18
Liverpool City Council v. Casbee Pty Ltd [2005] NSWSC 590�� 15, 216
Living Waters Christian Centres Ltd v. Fetherstonaugh [2000] 2 EGLR 1��64
Locabail (UK) v. Bayfield Properties Ltd [2000] 1 All ER 65��138
Logy Enterprises Ltd v. Haikou City Bonded Area Wansen Products Trading Co
[1997] 2 HKC 481�� 138, 143
Lombard North Central plc v. GATX Corporation [2012] EWHC 1067 (Comm)�� 27, 35
Lombard-Knight v. Rainstorm Pictures Inc [2014] EWCA Civ 356��114
London Central and Suburban Developments v. Banger [1999] ADRLJ 119��37
London and Leeds Estates Ltd v. Paribas Ltd (No. 2) [1995] 1 EGLR 102; [1995] 2
EG 134�� 97, 98
London Steamship Owners’ Mutual Insurance Association Ltd v. Kingdom of Spain,
French State [2013] EWHC 3188 (Comm)�� 55, 263
London Steamship Owners’ Mutual Insurance Association Ltd v. Kingdom of Spain,
French State, The “Prestige” [2015] EWCA Civ 333�� 262, 263
xxxv
table of cases
London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749

(TCC)��243
Louis Dreyfus Trading Ltd v. Bonarich International (Group) Ltd [1997] 3 HKC
597�� 33, 34
Lucky-Goldstar International (HK) Ltd v. Ng Moo Kee Engineering Ltd [1993] 1
HKC 404��35
Lum Chang Building Contractors Pte Ltd v. Anderson Land Pte Ltd [2000] 2 SLR 261�17
Luzon Hydro Corp v. Transfield Philippines Inc [2004] 4 SLR 705��104
LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2012] SGCA 57;
[2013] SGHC 264�� 12, 92, 103, 173, 175, 180, 181, 229, 231, 233
M/S Alghanim Industries Inc v. Skandia International Insurance Corporation [2001] 2
All ER (Comm) 30�� 95, 174
Maass v. Musion Events Ltd [2015] EWHC 1346 (Comm)��105
McConnell Dowell Constructors (Aust) Pty Ltd v. National Grid Gas plc [2006]
EWHC 2551 (TCC)��21
Macepark (Whittlebury) Ltd v. Sargeant, 2002, unreported��146
Mackenzie v. Leinor Developments Ltd [2001] NZCA 314��108
Mackley & Co Ltd v. Gosport Marina Ltd [2002] BLR 367�� 51, 148
McNaughton v. Dobson [2006] NZHC 457��136
McNicholas plc v. AEI Cables 1999, unreported (EWHC, TCC)��15
Macob Civil Engineering v. Morrison [1999] BLR 93��58
Macro v. Thompson (No. 3) [2002] BCLC 36��21
Madill & Smeed Ltd v. Ebert Construction Ltd [2006] NZHC 929��199
Mae Engineering Ltd v. Dragages Singapore Pte Ltd [2002] 3 SLR 45��195
Majorboom Ltd v. National House Building Council [2008] EWHC 2672 (TCC)��243
Maldives Airports Co Ltd and another v. GMR Malé International Airport Pte Ltd
[2013] SGCA 16�� 73, 265
Malhotra v. Malhotra [2012] EWHC 3020 (Comm)�� 70, 74
Malicorp Ltd v. Government of the Arab Republic of Egypt [2015] EWHC 361
(Comm)�� 117, 121
Malini Ventura v. Knight Capital Pte Ltd [2015] SGHC 225�� 30, 35
Mancon (BVI) Investment Holding Co Ltd v. Heng Holdings SEA (Pte) Ltd [2000] 3
SLR 220��32
Mangistaumunaigaz Oil Production Association v. United World Trading Inc [1995] 1
Manningham City Council v. Dura (Aust) Constructions Pty Ltd [1999] 3 VR 13�� 15, 29
Mantovani v. Carapelli SPA [1980] 1 Lloyd’s Rep 375�� 27, 59
Manuchar Steel Hong Kong Ltd v. Star Pacific Line Pte Ltd [2014] SGHC 181��116
Manukau City Council v. Fencible Court Howick Ltd [1991] 3 NZLR 410��146
Manzi v. GD Hilton Ltd [2007] NZHC 28��72
Marc Rich & Co AG v. Societa Italiana Impianti PA, The Atlantic Emperor [1989] 1
Marc Rich Agriculture Trading SA v. Agrimex Ltd [2000] 1 All ER (Comm) 951�� 33, 199
Marc Rich Co AG v. Beogradska Plovidba, The Avala [1994] 2 Lloyd’s Rep 363��238
Margulead Ltd v. Exide Technologies [2004] 2 All ER (Comm) 727�� 64, 105, 107, 172
Margulies Brothers Ltd v. Dafnis Thomaides and Co (UK) Ltd [1958] 1 WLR 398��127
Mariana Islands Steamship Corporation v. Marimpex Mineraloel-Handelsgesellschaft
mbH Co KG, The Medusa [1986] 2 Lloyd’s Rep 328��198
Marine Contractors Inc v. Shell Petroleum Development Co of Nigeria Ltd [1984] 2
Lloyd’s Rep 77�� 87, 240
xxxvi
table of cases
Maritime Insurance Co v. Assecuranz-Union-von 1865 (1935) 52 Ll L Rep 16��165
Markel International Co Ltd v. Craft [2007] Lloyd’s Rep IR 403��74
Marklands Ltd v. Virgin Retail Ltd [2004] 2 EGLR 43��64, 238, 241
Marnell Corrao Associates Inc v. Sensation Yachts Ltd (2000) 15 PRNZ 608��71
The Mathew [1990] 2 Lloyd’s Rep 323��243
Mayers v. Dlugash [1994] 1 HKC 755��21
Melville Homes Pty Ltd v. Primes Ceramics Services Pty Ltd [1991] 2 VR 211��212
The Merak [1964] 2 Lloyd’s Rep 527��19
Merrill Lynch Pierce, Fenner & Smith Inc v. Harjani [2009] SGHC 133��34
Mersing Construction & Engineering Sdn Bhd v. Kejuruteraan Bintgai Kindenko Sdn
Bhd [2010] 1 LNS 793��32
The Messiniaki Bergen [1983] 1 Lloyd’s Rep 424��15
Metal Distributors (UK) Ltd v. ZCCM Investment Holdings plc [2005] EWHC 156
(Comm)�� 28, 53
Metalfer Corporation v. Pan Ocean Shipping Co Ltd [1998] 2 Lloyd’s Rep 632��44
Metalform Asia Pte Ltd v. Ser Kim Koi [2008] SGHC 131��97
Metallgesellschaft Hong Kong Ltd v. Chinapart Ltd [1990] 1 HKC 114��32
Methanex Motunui Ltd v. Spellman [2004] 1 NZLR 95 (HC); [2004] 3 NZLR 454�� 16, 33
Metropolitan Property Realizations Ltd v. Atmore Investments Ltd [2008] EWHC
2925 (Ch)��105
MH Alshaya Co WLL v. Retek Information Systems Inc [2001] Masons CLR 99��15
Mi-Space (UK) Ltd v. Lend Lease Construction (EMEA) Ltd [2013] EWH 2001
(TCC)��15
Michael S Evryalos Maritime SA v. China Pac Insurance Co Ltd, The MV Michael S
[2001] All ER (D) 325 (Dec)��19
Michael Wilson & Partners Ltd v. Emmott [2008] EWHC 2684 (Comm)��12
Midgulf International Ltd v. Groupe Chimiche Tunisien [2009] 2 Lloyd’s Rep 411;
[2010] EWCA Civ 66�� 17, 74
Midgulf International Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66��74
Milan Nigeria Ltd v. Angeliki B Maritime Co [2011] EWHC 892 (Comm)��104
Miliangos v. George Frank (Textiles) Ltd [1976] AC 443��67
Miller & Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970] AC 583��162
Miller Construction v. James Moore Earthmoving [2001] 2 All ER (Comm) 598�� 107, 143
Milsom v. Ablyazov [2011] EWHC 955 (Ch)��98
Minermet SpA Milan v. Luckyfield Shipping Corporation SA [2004] 2 Lloyd’s Rep
348�� 136, 148, 178, 222
Minmetals Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315�� 117,
120, 121, 123, 178
Mitsubishi Corporation v. Castletown Navigation Ltd, The Castle Alpha [1989] 2
Mitsui Engineering & Shipbuilding Co Ltd v. Easton Graham Rush [2004] 2 SLR
14�� 132, 141, 143, 180
Mitsui Engineering & Shipbuilding Co Ltd v. PSA Corp Ltd [2003] 1 SLR 446��25
Mitsui OSK Lines Ltd v. Samudera Shipping Line Ltd [2007] SGHC 41��32
Mobil Cerro Negro Ltd v. Petroleos de Venezuela SA [2008] 1 Lloyd’s Rep 684�� 70, 76
Modern Buildings Wales Ltd v. Limmer and Trinidad Co Ltd [1975] 2 All ER 549��19
Modern Engineering (Bristol) Ltd v. C Miskin & Sons Ltd [1981] 1 Lloyd’s Rep
135�� 104, 141
Modern Engineering (Bristol) Ltd v. Gilbert-Ash [1974] AC 689��28
Mond v. Berger [2004] VSC 45��12
xxxvii
table of cases
Monde Petroleum SA v. Westernzagros Ltd [2015] EWHC 67 (Comm)��20

The Montan [1985] 1 All ER 520��172
Montrose Canned Foods Ltd v. Eric Wells (Merchants) Ltd [1965] 1 Lloyd’s Rep 597��178
Moran v. Lloyd’s [1983] 1 Lloyd’s Rep 51��238
Moscow V/O Exportkhleb v. Helmville Ltd, The Jocelyne [l977] 2 Lloyd’s Rep 121��199
Mousaka Inc v. Golden Seagull Maritime Inc [2001] 2 Lloyd’s Rep 657��249
Mousaka Inc v. Golden Seagull Maritime Inc (No. 2) [2002] 1 Lloyd’s Rep 797��42
Mowlem plc v. PHI Group Ltd [2004] BLR 421��238
MRI Trading AG v. Erdenet Mining Corporation LLC [2012] EWHC 1988 (Comm)��243
Multiplex Constructions Pty Ltd v. Sintal Enterprise Pte Ltd [2005] 2 SLR 530��195
Multiplex Constructions Pty Ltd v. Suscindy Management Pty Ltd [2000] NSWSC
484�� 33, 160
Musawi v. R E International (UK) Ltd [2008] 1 Lloyd’s Rep 326�� 162, 165
Myanma Yaung Chi Oo Co Ltd v. Win Win Nu [2003] 2 SLR 547��97
Nanhai West Shipping Co v. Hong Kong United Dockyards Ltd [1996] 2 HKC 639��18
Nanjing Cereals, Oils and Foodstuffs Import & Export Corporation v. Luckmate
Commodities Trading Ltd [1994] 3 HKC 552��120
Nanjing Tainshun Ship Building Co Ltd v. Orchard Tankers Pte Ltd [2011] EWHC
164 (Comm)��44
National Boat Shows Ltd v. Tameside Marine, July 2001, unreported��12
National Insurance and Guarantee Corporation Ltd v. M Young Legal Services Ltd
[2005] 2 Lloyd’s Rep 46�� 16, 72
National Rumour Co SA v. Lloyd-Libra Navegacao SA [1982] 1 Lloyd’s Rep 472��244
National Trust v. Fleming [2009] EWHC 1789 (TCC)��242
National Westminster Bank plc v. Rabobank Netherland (No. 3) [2008] 1 Lloyd’s Rep 16��75
Naviera Amazonica Peruana SA v. Compania Internacional de Seguros del Peru [1988]
1 Lloyd’s Rep 116�� 157, 191
Navigation Sonamar Inc. v. Algoma Steamships Ltd [1987] RJQ 1346��169
Navigator Investments Services Ltd v. Acclaim Insurance Brokers Pty [2009] SGCA
45�� 25, 28
Navigazione Alta Italia SpA v. Concordia Maritime Chartering AC, The Stena Pacifica
[1990] 2 Lloyd’s Rep 234��198
NB Three Shipping Ltd v. Harebell Shipping Ltd [2004] EWHC 2001 (Comm);
[2005] 1 Lloyd’s Rep 509�� 15, 71
NCC International AB v. Alliance Concrete Singapore Pte Ltd [2008] 2 SLR 565�� 3, 25,
47, 71, 218
Nea Agrex SA v. Baltic Shipping Co Ltd, The Aghios Lazaros [1976] 2 Lloyd’s Rep 47��45
Nearmap Ltd v. Spookfish Pty Ltd [2014] NSWSC 1790�� 28, 40
The Nema [1984] 3 All ER 229��249
The Nema, Pioneer Shipping Ltd v. BTP Tioxide Ltd [1981] 2 All ER 1030��242
The Nerano [1994] 2 Lloyd’s Rep 50��19
New Sound Industries Ltd v. Meliga (HK) Ltd [2005] 1 HKC 41�� 20, 30
Newfield v. Tomlinson [2004] EWHC 3051 (TCC)�� 93, 103, 238, 248
Newspeed International Ltd v. Citus Trading Pte Ltd [2003] 3 SLR 1��117
Ng Chin Siau v. How Kim Chuan [2007] SGHC 31; [2007] 2 SLR 789; [2007] 4 SLR
809�� 62, 237, 245, 246
Ng Kin Kenneth v. HK Football Association Ltd [1994] 1 HKC 734��18
Nine Gladys Road Ltd v. Kersh [2004] EWHC 1080 (Ch)��15
Nisshin Shipping Co Ltd v. Cleaves & Co Ltd [2003] EWHC 2602 (Comm); [2004]
1 Lloyd’s Rep 28�� 40, 268
xxxviii
table of cases
Nixon v. Walker [2007] NZHC 649��238
NML Capital Ltd v. Republic of Argentina [2011] UKSC 31�� 262, 263
Noble Assurance Co v. Gerling-Konzern General Insurance Co (UK) [2008] Lloyd’s
Rep IR 1��75
Nokia Corporation v. HTC Corporation [2012] EWHC 3199 (Pat)��38
Norbrook Laboratories Co v. Tank [2006] EWHC 1055 (Comm); [2006] 2 Lloyd’s
Rep 485�� 104, 143
Norscot Rig Management PVT Ltd v. Essar Oilfields Services Ltd [2010] EWHC 195
(Comm)��28
Norsk Hydro ASA v. State Property Fund of Ukraine [2002] EWHC (Comm) 2120��115
North Range Shipping Ltd v. Seatrans Shipping Corporation, The Western Triumph
[2002] 2 Lloyd’s Rep 1�� 237, 245, 249
Northbuild Construction Pty Ltd v. Discovery Beach Project Pty Ltd [2010] QSC 94��168
Northern Elevator Manufacturing Sdn Bhd v. United Engineers (Singapore) Pte Ltd
(No. 2) [2004] 2 SLR 494��238–9, 243
The Northern Pioneer [2003] 1 All ER (Comm) 204; [2003] 1 Lloyd’s Rep 212�� 241,
242–3, 248
Northland Port Corporation (NZ) Ltd v. Flyghtship Construction Ltd [2005] NZHC
446��93
Norwich Union v. Whealing Horton & Toms Ltd [2009] EWHC 370 (TCC)��174
Oakland Metal Co Ltd v. Benaim Co Ltd [1953] 2 QB 261��222
O’Callaghan v. Coral Racing Ltd (1999, unreported)�� 55, 147
Ocean Marine Navigation Ltd v. Koch Carbon Inc, The Dynamic [2003] 2 Lloyd’s
Rep 693��63
Oceanografia SA DE CV v. DSND Subsea AS [2007] 1 Lloyd’s Rep 37��53
O’Connor v. Leaw Pty [1997] 42 NSWLR 285��16
O’Donoghue v. Enterprise Inns plc [2008] EWHC 2273 (Ch)��63
Oei Hong Leong v. Goldman Sachs International [2014] SGHCR 2��31
Oil Basins Ltd v. BHP Billiton Ltd [2007] VSCA 255��168
The Oltenia [1982] 3 All ER 244��232
Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276
(Comm)�� 104, 172, 241, 244
Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd [1999] 2 Lloyd’s Rep
222��126
Open Type Joint Stock Company Efirnoye (EFKO) v. Alfa Trading Ltd [2012] 1 CLJ
323��125
Orascom Telecom Holding SAE v. Republic of Chad [2008] EWHC 1841 (Comm)��263
Orienmet Minerals Co Ltd v. Winner Desire Ltd [1997] 4 HKC 377��30
Oriental Maritime (Pte) Ltd v. Ministry of Food, Government of Bangladesh [1989] 2
Orion Compania Espanola de Seguros v. Belfort Maatschappij Voor Algemene
Verzekringeen [1962] 2 Lloyd’s Rep 257��165
Otech Pakistan Pvt Ltd v. Clough Engineering Ltd [2006] SGCA 46��55
Overseas Union Insurance Ltd v. AA Mutual International Insurance Ltd [1988] 2
Lloyd’s Rep 63; [1988] 1 FTLR 421�� 146, 165
Overseas Union Insurance Ltd v. Turegum Insurance Co [2001] 3 SLR 330��15
Overton Holdings Ltd v. Owens Properties Ltd [2002] NZCA 260��90
Owen Pell Ltd v. Bindi (London) Ltd [2008] EWHC 1420 (TCC)��21
The Owners, Masters and Crew of the Tug “Hamtun” v. Owners of the ship “St John”
[1999] 1 Lloyd’s Rep 883��98
xxxix
table of cases
Oxford Shipping Co v. Nippon Yusen Kaisha, The Eastern Saga [1984] 3 All ER 835��212
Pacific China Holdings Ltd (in liquidation) v. Grand Pacific Holdings Ltd [2012]
HKCA 200�� 117, 120, 121
Pacific Crown Engineering Ltd v. Hyundai Engineering & Construction Co Ltd [2003]
3 HKC 659��30
Pacific International Lines (Pte) Ltd v. Tsinlien Metals and Minerals Co (HK) Ltd
[1993] 2 HKLR 249�� 14, 30
Pacific King Shipping Pte Ltd v. Glory Wealth Shipping Pte Ltd [2010] SGHC 173
�� 103, 113
Pacific Maritime (Asia) Ltd v. Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371��71
Pacol Ltd v. Joint Stock Co Rossakhar [2000] 1 Lloyd’s Rep 109�� 63, 104
Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39�� 65, 107, 117,
118, 124
Paladin Agricultural Ltd v. Excelsior Hotel (Hong Kong) Ltd [2001] 2 HKC 215�� 30, 37
Palmers Corrosion Control v. Tyne Dock Engineering Ltd [1997] EWCA Civ 2776��195
Pan Atlantic Group Inc v. Hassneh Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep
120��140
Pancommerce SA v. Veecheema BV [1983] 2 Lloyd’s Rep 304��172
Pando Compania Naviera SA v. Filmo SAS [1975] QB 742��140
Pang Wai Hak [2012] HKCFI 972��120
Paquito Lima Buton v. Rainbow Joy Shipping Ltd [2008] 4 HKC 14��20
The Parouth [1982] 2 Lloyd’s Rep 351��161
Parsons and Whittemore Overseas Co Inc v. Societe General de Industrie du Papier
(RAKTA) (1974) 508 F 2d 969��125
Parts & Services Ltd v. Brooks [2005] NZHC 293�� 120, 122
Passlow, Joel v. Butmac Pty Ltd [2012] NSWSC 225��14
Patel v. Patel [1999] 1 All ER (Comm) 923��37
Pathak Ltd v. Tourism Transport Ltd [2002] 3 NZLR 681��38, 71, 135
Paul Smith Ltd v. H & S International Holdings Inc [1991] 2 Lloyd’s Rep 127��15, 20, 81
Paul v. Royal and Sun Alliance Insurance Group plc, 1999, unreported��63
PCCW Global Ltd v. Interactive Communications Service Ltd [2007] 1 HKC 327�� 15,
21, 30
Pearson v. Chen Chien Wen Edwin [1991] SGCA 50��246
PEC v. Asia Golden Rice Co Ltd [2013] 1 Lloyd’s Rep 82��250
Pena Copper Mines Ltd v. Rio Tinto Co Ltd (1911) 105 LT 846��74
Peoples’ Insurance Co of China v. Vysanthi Shipping Co Ltd [2003] 2 Lloyd’s Rep 617��53
People’s Insurance Co Ltd v. Akai Pty Ltd [1997] 2 SLR(R) 291��69
Permasteelisa Japan UK v. Bouygesstroi [2007] All ER (D) 97 (TCC)��73
Permasteelisa Pacific Holdings Ltd v. Hyundai Engineering & Construction Co Ltd
[2005] 2 SLR 270�� 104, 239
Peterson Farms Inc v. C & M Farming Ltd [2004] 1 Lloyd’s Rep 603��53, 54, 148,
162, 163, 252
Peterson Farms Inc v. C & M Farming Ltd (No 2) [2004] 1 Lloyd’s Rep 614��252
Petraco (Bermuda) Ltd v. Petromed International SA [1988] 2 Lloyd’s Rep 357��241
Petredec Ltd v. Tokomaru Kaiun Co Ltd, The Sargasso [1994] 1 Lloyd’s Rep 162��137
Petrochemical Industries Co (KSC) v. Dow Chemical Co [2012] EWHC 2739
(Comm); [2012] 2 Lloyd’s Rep 691�� 105, 172
PetroChina International (Hong Kong) Corporation Ltd, Re [2011] 4 HKLRD
604�� 88, 172
Petromec Inc v. Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891��81
xl
table of cases
Petroships Pte Ltd v. Petec Trading and Investment Corporation, The Petro Ranger
[2001] 2 Lloyd’s Rep 348��102–3, 105, 109, 143, 148, 168, 238, 251
Petroval SA v. Stainby Overseas Ltd [2008] 3 SLR 856��70
Phoenix Shipping (Pty) Ltd v. General Feeds Inc [1997] 2 Lloyd’s Rep 703��199
Piallo GmbH v. Yafriro International Pte Ltd [2013] SGHC 260�� 29, 31
Pine Top Insurance Co Ltd v. Unione Italiana Anglo-Saxon Reinsurance Co Ltd
[1987] 1 Lloyd’s Rep 476��19
Pioneer Shipping Ltd v. BTP Tioxide Ltd, The Nema [1981] 2 All ER 1030��242
Pirtek v. Deanswood [2005] EWHC 2301 (Comm); [2005] 2 Lloyd’s Rep 728�� 85, 86,
93, 174
Pittalis v. Sherefettin [1986] 2 All ER 227�� 15, 198
PMT Partners Pty Ltd (In Liq) v. Australian National Parks and Wildlife Service
(1995) 184 CLR 301; (1995) 131 ALR 377�� 15, 29
Pocket Kings Ltd v. Safenames Ltd [2009] EWHC 2529��264
Pollard Construction Co Ltd v. Yung Yat Fan [1999] 3 HKC 109��28
Port Foreign Trade Development Corporation v. New Chemic Ltd [2001] 3 HKC 395�122
Porter v. Magill [2002] 2 AC 357��138
Poseidon Schiffahrt GmbH v. Nomadic Navigation Co Ltd, The Trade Nomad [1998]
Pratley Wood Farm LLP v. Brake [2013] EWHC 4035 (Comm)��59
Pratt v. Swanmore Builders Ltd [1980] 2 Lloyd’s Rep 504��141
Prekons Insaat Sanayi AS v. Rowlands Castle Contracting Group [2007] 1 Lloyd’s Rep
98��28
President of India v. Jadranska Slobodna Plovidba [1992] 2 Lloyd’s Rep 274��241
Press Metal Sarawak Sdn Bhd v. Etiqa Takaful Berhad [2015] 4 CLJ 734��32
Prestige Marine Services Pte Ltd v. Marubeni International Petroleum (S) Pte Ltd
[2011] SGHC 270; [2012] 1 SLR 917�� 168, 239, 241
Price v. Carter [2010] EWHC 1451 (TCC)�� 65, 250
Primera Maritime (Hellas) Ltd v. Jiangsu Eastern Heavy Industries Co Ltd [2013]
EWHC 3066 (Comm)�� 105, 169
Primetrade AG v. Ythan Ltd, The Ythan [2006] 1 Lloyd’s Rep 457�� 54, 148
Profilati Italia Srl v. PaineWebber Inc [2001] 1 All ER (Comm) 1065; [2001] 1 Lloyd’s
Rep 715�� 101, 103, 124
Progen Engineering Pte Ltd v. Chua Aik Kia (trading as Uni Sanitary Electrical
Construction) [2006] SGHC 159; [2006] 4 SLR 419�� 101, 107, 143, 238
Protech Projects Construction v. Al-Kharafi & Sons [2005] 2 Lloyd’s Rep 779�� 101,
105, 168
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2006] SGCA 41; [2007] 1
SLR 597; [2007] SLR(R) 513��12, 50, 89, 125, 127, 132, 176, 177, 250
PT Budi Semesta Satria v. Concordia Agritrading Pte Ltd [1998] SGHC 127��32
PT Central Investindo v. Franciscus Wongso [2014] SGHC 190�� 59, 102, 104, 106,
107, 117, 122, 126, 132, 138, 141, 143, 180
PT First Media TBK v. Astro Nusantara International BV [2013] SGCA 57�� 49, 53,
84, 86, 87, 116, 118, 119, 181
PT Garuda Indonesia v. Birgen Air [2002] 1 SLR 393�� 78, 100, 156, 157
PT Jaya Sumpiles Indonesia v. Kristle Trading Ltd [2009] SGCA 20��12
PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation [2015] SGCA 30��89
PT Prima International Development v. Kempinski Hotels SA [2011] SGHC 171;
[2012] SGCA 35�� 62, 88, 107, 121, 124, 180
PT Pukuafu Indah v. Newmont Indonesia Ltd [2012] SGHC 187��12, 58, 179
xli
table of cases
PT Thiess Contractors Indonesia v. PT Kaltim Prima Coal [2011] EWHC 1842

(Comm)�� 31, 146
PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] SGHC 204; [2003] 4
SLR (R) 257�� 14, 45, 54, 94, 148
PT Wearwell International v. VF Asia Ltd [1994] 3 HKC 344��18
QH Tours Ltd v. Ship Design & Management (Australia) Pty Ltd (1991) 33 FCR
227��145
Qinhuangdao Tongda Enterprise Development Co v. Million Basic Co Ltd [1993] 1
HKLR 173��125
Q’s Estate, Re [1999] 1 Lloyd’s Rep 931�� 58, 59
Quarella Spa v. Scelta Marble Australia Pty Ltd [2012] SGHC 166��122
Quiksilver Greater China Ltd v. Quiksilver Glorious Sun Licensing Ltd (formerly
Named Bright Easy Ltd) [2014] HKCFI 1306��56
Quorum AS v. Schramm (No. 2) [2003] Lloyd’s Rep IR 315��92
R C Pillar & Sons v. Edwards, 2001, unreported��250
R Durtnell and Sons Ltd v. Secretary of State for Trade and Industry [2000] BLR 771��137
R v. Bow Street Magistrate ex parte Pinochet (No. 2) [1999] 2 WLR 272��138
R v. F [2012] HKCFI 1451��169
R v. F (Arbitration: Reasons) [2012] 2 HKLRD 278��169
R v. Gough [1993] AC 646��138
R v. South Devon Railway Co (1850) 15 QB 1043��227
R v. V [2008] EWHC 1531 (Comm)�� 101, 126
R1 International Pte Ltd v. Lonstroff AG [2014] SGHC 69�� 18, 69
Radio Publicity (Universal) Ltd v. Compagnie Luxembourgeoise de Radiodiffusion
[1936] 2 All ER 721��195
Raffles Education Corporation Ltd v. Mills [2007] NZHC 1271��72
Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC [2001]
Lloyd’s Rep IR 460��162
Ranko Group v. Antarctic Maritime SA, The Robin [1998] ADRLN 35�� 12, 50, 107, 250
Recyclers of Australia Pty Ltd v. Hettinga Equipment Inc (2000) 175 ALR 725��27
Regalindo Resources Pte Ltd v. Seatrek Trans Pte Ltd [2008] 3 SLR 930��74
Reliance Industries Ltd v. Enron Oil and Gas India Ltd [2002] 1 Lloyd’s Rep 645� 239, 244
The Rena K [1979] 1 All ER 397�� 19, 35
Republic of India v. India Steamship Co Ltd [1997] 3 WLR 818��42
Republic of the Philippines v. Maler Foundation [2008] SGCA 14��265
Resort Condominiums International Inc v. Bolwell (1993) 118 ALR 655�� 12, 112
Richland Logistics Services Pte Ltd v. Biforst Singapore Pte Ltd [2006] SGHC 137��69
Ridzuan bin Mohd Salleh v. Syarikat Air Terengganu Sdn Bhd [2012] 6 CLJ 156��138
River Plate Products Netherlands BV v. Etablissement Coargrain [1982] 1 Lloyd’s Rep
628��178
Road Regenerating and Repair Services Ltd v. Mitchell Water Board [1990] VSC 2261��143
Robotunits Pty Ltd v. Mennel [2015] VSC 268��14, 34, 106
Roche Products v. Freeman Process Systems (1996) 80 BLR 102��18
Rochester Resources Ltd v. Lebedev [2014] EWHC 2926 (Comm)�� 74, 75
Rockeby Biomed Ltd v. Alpha Advisory Pte Ltd [2011] SGHC 155��126
Roebuck v. Mungovin [1994] 1 All ER 568��216
Ronly Holdings v. JSC Zestafoni G Nikoladze Ferroalloy Plant [2004] EWHC 1354
(Comm); [2004] 2 Lloyd’s Rep 335�� 28, 87, 147, 178
Rosseel NV v. Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep
625��123
xlii
table of cases
Roussel-Uclaf v. Searle Co [1978] 1 Lloyd’s Rep 225��40
Royal & Sun Alliance Insurance plc v. BAE Systems [2008] EWHC 743 (Comm)��240
Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v. Marston
Constructions Pty Ltd [1998] VSC 6286��195
Rumput (Panama) SA v. Islamic Republic of Iran Shipping Lines, The League [1984]
Russel Bros & Co (Builders) Ltd v. Lawrence Breen (t/a L&E Properties) (1997) 1
Practical Arbitration Journal 1(3) July/August 1997��37
Rustal Trading SA v. Gill & Duffus SA [2000] 1 Lloyd’s Rep 14�� 104, 131, 139
Ryoden Engineering Co Ltd v. New India Assurance Co Ltd [2008] 2 HKC 409��39
Ryoden Engineering Co Ltd v. Paul Y Construction Co Ltd [1994] 2 HKC 578��33
S Co v. B Co [2014] HKCFI 1440; [2014] HKEC 1345�� 53, 149
SA Shee & Co (Pte) Ltd v. Kaki Bukit Industrial Park Pte Ltd [2000] 2 SLR 12��146
Sabah Shipyard (Pakistan) Ltd v. Government of Pakistan [2004] 3 SLR 184��146
Sabah Shipyard (Pakistan) Ltd v. Government of Pakistan [2008] 1 Lloyd’s Rep 210��90
Sabmiller Africa v. East African Breweries Ltd [2010] EWCA Civ 1564��70
Sacor Maritima SA v. Repsol Petroleo SA [1998] 1 Lloyd’s Rep 518��90
St George’s Investment Co v. Gemini Consulting Ltd [2005] 1 EG 96�� 103, 107
The Saint Anna [1983] 1 Lloyd’s Rep 637��85
Sam Ming Forestry Economic Co v. Lam Pun Hung [2001] 3 HKC 573��122
Samsun Logix Corporation v. Oceantrade Corporation [2008] 1 Lloyd’s Rep 450��89
Samsung Corp v. Chinese Chamber Realty Pte Ltd [2004] 1 SLR 382��37
Sanghi Polyesters Ltd v. The International Investor KCFC [2000] 1 Lloyd’s Rep 480�� 103,
107, 239, 240
Sanwell Corporation v. Trans Resources Corporation [2002] MLJ 169��38
Sapura-Schulz Hydroforming Sdn Bhd v. Schulz Export GMBH [2013] SGHC
196�� 103, 105, 122
The Sargasso [1994] 1 Lloyd’s Rep 162��45
Savcor Pty Ltd v. State of New South Wales (2001) 52 NSWLR 587��15
Save and Prosper Pensions Ltd v. Homebase Ltd [2001] L & TR 11��139
SC Rolinay Sea Star Srl v. Owners and Charterers of the Ship “Bumbesti”, The
Bumbesti [1999] 2 Lloyd’s Rep 481��85
Scanports Shipping v. Sienna Marine, unreported, September 2001��216
Scenic Circle (Rotorua) Ltd v. Princes Gate Hotels Ltd [2006] NZHC 1629�� 29, 44
Schiffahrtsgesellschaft Detlev von Appen GmbH v. Voest Alpine Intertrading GmbH,
The Jay Bola [1997] 2 Lloyd’s Rep 279�� 39, 74
Schindler Lifts (Hong Kong) Ltd v. Sui Chong Construction and Engineering Co Ltd
[2014] HKDC 1348�� 35, 134
Science Research Council v. Nassé [1980] AC 1028��97
SCOR v. Eras International Ltd [1992] 1 Lloyd’s Rep 570��32
Scott v. Avery (1856) 5 HL Cas 811�� 27, 46, 252–3
Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda)
Ltd, The Athena [2006] 2 Lloyd’s Rep 147��88
Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda)
Ltd, The Athena (No. 2) [2007] 1 Lloyd’s Rep 280��18
Seabridge Shipping AB v. Orsleff’s EFTS A/S [1999] 2 Lloyd’s Rep 685��45
Sealace Shipping Co Ltd v. Ocean Voice Ltd The Alecos M [1990] 1 Lloyd’s Rep 82��245
Secretary of State for Education v. Lexicon Systems Ltd [2006] NZHC 1322�� 242, 244
Secretary of State for Foreign and Commonwealth Affairs v. Percy Thomas (1998) 65
Con LR 11�� 18, 137
xliii
table of cases
Secretary of State for the Home Department v. Raytheon Systems Ltd [2014] EWHC
4375 (TCC)��105
Seele Middle East FZE v. Drake & Scull International Co SA [2014] EWHC 435
(TCC)��73
SEF Construction Pte Ltd v. Skoy Connected Pte Ltd [2010] 1 SLR 733�� 105, 168
Selby v. Whitbread and Co [1917] 1 KB 736��115
Sembawang Engineering Pte Ltd v. Priser Asia Engineering Pte Ltd [1992] 2 SLR 806��61
Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008]
SGHC 229�� 24, 25, 28, 31, 32, 35, 37, 38, 146
Services Europe Atlantique Sud v. Stockholms Rederiaktiebolag Svea, The Folias
[1979] AC 685��67
Shady Express Ltd v. South Star Freightliner Ltd [2008] NZHC 336��126
Shagang South Asia (Hong Kong) Trading Co Ltd v. Daewoo Logistics [2015] EWHC
194 (Comm)��23
Shamil Bank of Bahrain v. Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1�� 162, 164
Shandong Hongri Acron Chem. Joint Stock Co v. PetroChina International (HK)
Corp [2011] HKCA 168��112
Shandong Textiles Import and Export Corporation v. Da Hua Non-Ferrous Metals Co
Ltd [2002] 2 HKC 122�� 119, 120
Shanghai Fusheng Soya Food Co Ltd v. Pulmuone Holdings Co Ltd [2014]
HKCFI�� 124, 125
Shankar Alam, Re [2007] 1 SLR(R) 85��138
Shashoua v. Sharma [2009] 2 Lloyd’s Rep 376��23
Sheffield United Football Club Ltd v. West Ham United Football Club plc [2008]
Shell Egypt West Manzala GmbH v. Dana Gas Egypt Ltd [2009] EWHC 2097
(Comm)��239
Shell International Petroleum Co Ltd v. Coral Oil Co Ltd [1999] 1 Lloyd’s Rep 72�� 20, 74
Shipowners’ Mutual Protection and Indemnity Association (Luxembourg)
v. Containerships Denizcilik Nakliyat Ve Ticaret AS [2015] EWHC 258
(Comm)�� 74, 76
Shirley Sloan Pty Ltd v. Merril Holdings Pty Ltd (t/as Airen Constructions) [2000]
WASC 99��105
Shun Cheong Electrical Engineering Co Ltd v. Cheung Kee Fung Cheung Construction
Co Ltd [1998] 1 HKC 585��136
Shun Shing Construction and Engineering Co Ltd v. Hyundia Engineering and
Construction Co Ltd [1996] 2 HKC 384��51
Shuttari v. Solicitors Indemnity Fund Ltd [2004] EWHC 1537 (Ch)��107
Siboti K/S v. BP France SA [2003] 2 Lloyd’s Rep 364��19
Sierra Fishing Company v. Farran [2015] EWHC 140 (Comm)��139
Sim Chay Koon v. NTUC Income Insurance Co-operative Ltd [2015] SGCA 46�� 30, 195
Sir Lindsay Parkinson & Co v. Triplan [1973] QB 609��61
Sky Mount Investment Ltd v. East West-Umi Insurance Ltd [1995] 1 HKC 342�� 45, 199
Smeaton, Hanscomb & Co Ltd v. Sassoon I Setty, Son & Co (No. 2) [1953] 2 All ER
1588��93
Sobati General Trading LLC v. PT Multistrada Arahsarana [2009] SGHC 245��106
Socadec SA v. Pan Afric Impex Co Ltd [2003] EWHC 2086 (QB)�� 84, 85
Société Nationale d’Operatoins Petrolières de la Côte d’Ivoire-Holding v. Keen Lloyd
Resources Ltd [2004] 3 HKC 452��123
Soeximex SAS v. Agrocorp International Pte Ltd [2011] EWJC 2743 (Comm)��105
xliv
table of cases
Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR(R)
86�� 102, 103, 104, 107, 108, 109, 132, 169, 235
Soinco SACI v. Novokuznetsk Aluminium Plant (No. 1) [1998] 2 Lloyd’s Rep 337��126
Soinco SACI v. Novokuznetsk Aluminium Plant (No. 2) [1998] 2 Lloyd’s Rep 346��126
Sokana Industries Inc v. Freyre & Co [1994] 2 Lloyd’s Rep 57��76
Soleh Boneh International v. Government of the Republic of Uganda [1993] 2 Lloyd’s
Rep 208��123
Soleimany v. Soleimany [1998] 3 WLR 811�� 126, 147
Solvadis Commodity Chemicals GmbH v. Affert Resources Pte Ltd [2014] 1 SLR 174��72
Sonatrach Petroleum Corporation v. Ferrell International Ltd [2002] 1 All ER (Comm)
627��15
Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875 (Comm)��5, 93, 120, 123, 126
Sotrade Denizcilik Sanayi ve Tikaret AS v. Amadou Lo, The Duden [2008] EWHC
2762 (Comm)�� 18, 75
South Australia Superannuation Fund Investment Trust v. Leighton Contractors
(1996) 66 SASR 509��94
South Tyneside Borough Council v. Wickes Building Supplies Ltd [2004] EWHC
2428 (Comm)��77, 97, 98
SP Chua Pte Ltd v. Lee Kim Tah (Pte) Ltd [1993] 3 SLR 122��37
Spectramed Pte Ltd v. Lek Puay Puay [2010] SGHC 112��72
Stanstead Shipping Co Ltd v. Shenzen Nantian Oil Mills Co Ltd, 2000 unreported��17
Star (Universal) Co Ltd v. Private Co “Triple V” Inc [1995] 3 HKC 129!��30
Star-Trans Far East Pte Ltd v. Norske-Tech Ltd [1996] 2 SLR 409��14, 18, 36
Stargas SpA v. Petredec Ltd, The Sargasso [1994] 1 Lloyd’s Rep 412��90
Starlight Shipping Co v. Tai Ping Insurance Co [2007] EWHC 1893 (Comm); [2008]
1 Lloyd’s 230��39, 71, 76
Steamship Catalina and Motor Vessel Norma NV, Re (1938) 61 Ll L Rep 360��139
Steamship Mutual Underwriting Association (Bermuda) Ltd v. Sulpicio Lines Inc
[2008] EWHC 914 (Comm)�� 16, 73
The Stena Pacifica [1990] 2 Lloyd’s Rep 234��15
Stericorp Ltd v. Stericycle Inc [2003] VSC 203��35
Stevens Construction Pty Ltd v. Zorko (2002) 81 SASR 316��29
Stinnes Interoil GmbH v. Halcoussis Co, The Yanxilas [1982] 2 Lloyd’s Rep 445��241
Stockport Metropolitan Borough Council v. O’Reilly [1983] 2 Lloyd’s Rep 70��104
Strandore Invest A/S v. Soh Kim Wat [2010] SGHC 151�� 114, 120
Strandore Invest A/S v. Soh Kim Wat [2010] SGHC 174�� 116, 127
Sucafina v. Rotenberg [2012] 2 Lloyd’s Rep 54��87
Sugar Australia Pty Ltd v. Mackay Sugar Ltd [2012] QSC 38��120
Sui Southern Gas Co Ltd v. Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC
62�� 121, 127, 132
SulAmerica Cia Nacional De Seguros SA v. Enesa Engenharia SA [2012] EWCA Civ
638; [2012] 1 Lloyd’s Rep 671�� 21, 162
Sumitomo Heavy Industries v. Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep
45��157
Sun Life Assurance Company of Canada v. The Lincoln National Life Insurance Co
[2004] EWCA Civ 1660; [2005] 1 Lloyd’s Rep 606�� 90, 238
Sun United Maritime Ltd v. Kasteli Marine Inc [2014] EWHC 1476 (Comm)��20
Sunderland Steamship P&I Association v. Gatoil International Inc, The Lorenzo
Halcoussi [1998] 1 Lloyd’s Rep 180��77
The Sungei Bulan [1982–1983] 1 SLR 461��145
xlv
table of cases
The Sunwind [1998] 3 SLR 954��42

Surefire Systems Ltd v. Guardian ECL Ltd [2005] EWHC 1860 (Comm)��250
Surrendra Overseas Ltd v. Government of Sri Lanka [1977] 1 Lloyd’s Rep 653��45
Sutcliffe v. Thackrah [1974] 1 All ER 859��109
Sutherland Co v. Hannevig Brothers Ltd [1921] 90 LJKB 225��172
Suzhou Quarn-SND Venue Capital Enterprise v. Great East Packaging International
Ltd [2013] 6 HKC 53��32
Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No
1) [2005] 1 Lloyd’s Rep 515�� 117, 119
Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No
2) [2006] EWCA Civ 1529; [2007] 1 Lloyd’s Rep 193�� 17, 263
Swift-Fortune Ltd v. Magnifica Marine SA [2007] 1 SLR 629�� 70, 135
Swift-Fortune Ltd v. Magnifica Marine SA, The Capaz Duckling [2008] 1 Lloyd’s Rep
54��72
Swire Properties Ltd v. Secretary for Justice [2003] 3 HKC 347�� 242, 249
Swiss Banking Corporation v. Novorossiysk Shipping, The Petr Schmidt [1995] 1
Lloyd’s Rep 202�� 15, 29
Swiss Singapore Overseas Enterprises Pte Ltd v. Exim Rajathi India Pvt Ltd [2009]
SGHC 231��125
Sylvia Shipping Co Ltd v. Progress Bulk Carriers Ltd [2010] 2 Lloyd’s Rep 81��248
T v. B [2014] HKCFI 1427��35
TAG Wealth Management v. West [2008] EWHC 1466 (Comm)�� 159, 216
Tai Hing Cotton Mill Ltd v. Glencore Grain Rotterdam BV [1996] 1 HKC 363�� 27, 33
Tajik Aluminium Plant v. Hydro Aluminium AS [2006] EWHC 1135 (Comm); [2006]
1 Lloyd’s Rep 155��77, 78, 252
Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd [2010] 5 CLJ
83�� 7, 132
Tame Shipping Ltd v. Easy Rider Navigation Ltd, The Easy Rider [2004] 2 Lloyd’s
Rep 626�� 107, 251
Tamil Nadu Electricity Board v. ST-CMS Electric Company Private Ltd [2008] 1
Lloyd’s Rep 93�� 125, 162
Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey [2001] 1 SLR 624�� 172, 173
Tan Tong Meng (Pte) Ltd v. Artic Builders & Co (Pte) Ltd (PC) [1986] 1 SLR 7��205
Tang Boon Jek Jeffrey v. Tan Poh Leng Stanley [2001] 3 SLR 237�� 86–7, 89, 171
Tate & Lyle Industries Ltd v. CIA Usina Bulhoes [1997] 1 Lloyd’s Rep 355��66
Taurus Petroleum Ltd v. State Oil Marketing Co of the Ministry of Oil, Iraq [2013]
EWHC 3494 (Comm)��264
Tay Eng Chuan v. Ace Insurance Ltd [2008] 4 SLR 95��27
Tay Eng Chuan v. United Overseas Insurance Ltd [2009] SGHC 193�� 172, 239, 250
Taylor Woodrow Civil Engineering Ltd v. Hutchinson IDH Development Ltd (1998)
75 Con LR 1��240
Taylor Woodrow Construction v. RMD Kwikform Ltd [2008] EWHC 825 (TCC)�� 44,
45
Taylor Woodrow Holdings Ltd v. Barnes & Elliott Ltd [2006] BLR 377��231
TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of
Australia [2013] HCA 5��163
Teambo Engineering Ltd v. Hong Kong Construction (Holdings) Ltd [2005] HKEC
1241��18
Teck Guan SDN BHD v. Beow Guan Enterprises Pte Ltd [2003] 4 SLR 276��15
Tekron Resources Ltd v. Guinea Investment Co Ltd [2004] 2 Lloyd’s Rep 26��126
xlvi
table of cases
Telenor East Holding II AS v. Altimo Holdings & Investments Ltd [2014] EWHC B5
(Comm)��73
Terna Bahrain Holding Company WLL v. Al Shamsi [2012] EWHC 3283 (Comm) 75, 179
The Texaco Melbourne [1994] 1 Lloyd’s Rep 473��68
Thai-Europe Tapioca Service Ltd v. Seine Navigation Co Inc, The Maritime Winner
[1989] 2 Lloyd’s Rep 506�� 160, 216
Thai-Lao Lignite (Thailand) Co Ltd v. Lao People’s Democratic Republic [2013]
EWHC 2466 (Comm)��264
Thaler v. Amzalak [2013] NSWSC 632��169
Theatrelight Electronic Control & Audio Systems Ltd v. Xinyu Charlie Zheng [2005]
NZHC 329�� 89, 125
Thomas Borthwick (Glasgow) Ltd v. Faure Fairclough Ltd [1968] 1 Lloyd’s Rep 16��107
Thomas Co v. Portsea Steamship Co Ltd, The Portsmouth [1912] AC 1��18
Thompson v. Miller (1867) 15 WR 353��168
Thorn Security (Hong Kong) Ltd v. Cheung Kee Fung Cheung Construction Co Ltd
[2005] 1 HKC 252�� 15, 35
Thoroughvision Pty Ltd v. Sky Channel Pty Ltd [2010] VSC 139��168
Through Transport Mutual Insurance Association (Eurasia) Ltd v. New India
Assurance Co Ltd [2005] 1 Lloyd’s Rep 67�� 40, 74
Thye Hin Enterprises Sdn Bhd v. Daimlerchrysler Malaysia Sdn Bhd [2005] 1 MLJ
293�� 66, 73
Thyssen Canada Ltd v. Mariana Maritime SA [2005] 1 Lloyd’s Rep 640��101, 102, 103, 131
Thyssen Inc. v. Calypso Shipping Corp SA [2000] 2 Lloyd’s Rep 243��38
Tianjin Medicine & Health Products Import & Export Corporation v. JA Moeller
(Hong Kong) Ltd [1994] 1 HKC 545�� 15, 33
Ting Kang Chung John v. Teo Hee Lai Building Constructions Pte Ltd [2010] SGHC
20; [2010] 2 SLR 625��107, 221–2
The Titan Unity [2013] SGHCR 28��19, 29–30
The Titan Unity (No 2) [2014] SGHCR 4��29
Tjong Very Sumito v. Antig Instruments Pte Ltd [2009] SGCA 41; [2009] 4 SLR(R)
732��4, 31, 34, 45
TMM (Division Maritime SA de CV v. Pacific Richfield Marine Pte Ltd [2013] SGHC
186; [2013] 4 SLR 972�� 104, 105, 106, 168, 169, 238
Todd Petroleum Mining Co Ltd v. Energy Petroleum Holdings Ltd [2008] NZHC 143�244
Todd Petroleum Mining Co Ltd v. Shell (Petroleum Mining) Co Ltd [2014] NZCA
507�� 174, 250
Todd Taranaki Ltd v. Energy Infrastructure Ltd [2007] NZHC 1516��139
Tommy CP Sze & Co v. Li & Fung (Trading) Ltd & Ors [2003] 1 HKC 418�� 16, 30
Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57�� 30, 56
Tongyuan (USA) International Trading Group v. Uni-Clan Ltd, 2001, unreported�� 23,
106, 117, 122, 127, 178
Tonicstar Ltd v. American Home Assurance Co [2005] Lloyd’s Rep IR 32�� 162, 191
Torch Offshore LLC v. Cable Shipping Inc [2004] 2 All ER (Comm); [2004] 2 Lloyd’s
Rep 446�� 105, 172, 174, 238, 241, 250
Tracomin SA v. Gibbs [1985] 1 Lloyd’s Rep 586��139
Tradax Internacional SA v. Cerrahogullari TAS, The M Eregli [1981] 2 Lloyd’s Rep
169��199
The Trade Fortitude [1992] 1 Lloyd’s Rep 169�� 12, 87
Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda)
Ltd, The Athena [2007] 1 Lloyd’s Rep 280��173
xlvii
table of cases
Tramtrack Croydon Ltd v. London Bus Services [2007] EWHC 107 (Comm)��81
Trans-Tasman v. Gibson [2007] NZHC 293��238
Transcatalana de Commercio SA v. Incobrasa Industrial e Commercial Brazileira SA
(The “Vera”) [1995] 1 Lloyd’s Rep 215�� 168, 169
Transfield Philippines Ltd v. Luzon Hydro Corporation [2002] VSC 4857��77
Transfield Shipping Inc v. Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3629
(QB)��74
Transgrain Shipping BV v. Deiulemar Shipping SpA [2014] EWHC 4202 (Comm)�� 29, 45
Transition Feeds LLP v. Itochu Europe plc [2013] EWHC 3629 (Comm)��105
Transocean Offshore International Ventures Ltd v. Burgundy Global Exploration Corp
[2010] SGHC 31�� 29, 35
Traube v. Perelman [2001] All ER (D) 346; [2003] EWHC 2822 (Ch)��14, 35, 36
Trave Schiffahrtsgesellschaft mbH Co KG v. Ninemia Maritime Corporation, The
Niedersachsen (No. 2) [1986] 1 Lloyd’s Rep 393��168
Travelers Casualty and Surety Co of Europe Ltd v. Sun Life Assurance Co of Canada
(UK) Ltd [2004] Lloyd’s Rep IR 846��163
Travis Coal Restructured Holdings Llc v. Essar Global Fund Ltd [2014] EWHC 2510
(Comm)��123
Traxys Europe SA v. Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276��125
Trayfoot v. Lock [1957] 1 All ER 423��64
Trendtex Trading Corp v. Central Bank of Nigeria [1977] 1 All ER 881��264
Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd [2009] SGHC 13�� 20, 33, 38, 100
Tridon Australia Pty Ltd v. Acd Tridon Inc [2004] NSWCA 146��67
Tritonia Shipping Inc v. South Nelson Forest Products Corporation [1966] 1 Lloyd’s
Rep 114��15
Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220��63, 65, 104,
107, 117, 120, 122, 127, 177
Trustees of the Edmond Stern Settlement v. Levy [2007] EWHC 1187 (TCC)��243
Trustees of the Edmond Stern Settlement v. Levy (No. 2) [2009] EWHC 14
(TCC)�� 238, 242, 244
Trygg Hansa Insurance Co Ltd v. Equitas [1998] 2 Lloyd’s Rep 439�� 18, 19
TS Wong & Co Ltd v. Compagnie Européene d’Assurances Industrielles SA [1993] 1
HKC 397��199
Tsako’s Shipping Trading SA v. Orizon Tanker Co Ltd, The Centauras Mar [1998]
CLC 1003��66
Tsavliris Salvage (International) Ltd v. The Grain Board of Iraq [2008] EWHC 612
(Comm)�� 72, 263
Turner (East Asia) Pte Ltd v. Builders Federal (Hong Kong) Ltd (No. 2) [1988] 1 SLR
532��143
Turville Heath Inc v. Chartis Insurance UK Ltd [2012] EWHC 3019 (TCC)��21
The Tuyuti [1984] 2 All ER 545��42
Twin Advance (M) Sdn Bhd v. Polar Electro Europe BV [2013] 7 MLJ 811�� 132, 176
U & M Mining Zambia Ltd v. Konkola Copper Mines Ltd [2013] 2 Lloyd’s Rep 218;
[2013] EWHC 260 (Comm); [2014] EWHC 2374 (Comm)�� 23, 70, 88–9
UDL Contracting Ltd v. Apple Daily Printing Ltd [2008] 2 HKC 534��146
Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 131�� 116, 119, 120
UMCI Ltd v. Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd [2008]
SGHC 188��47
Uni-Navigation Pte Ltd v. Wei Loong Shipping Pte Ltd [1993] 1 SLR 876�� 33, 195
Union of India v. McDonnell Douglas [1993] 2 Lloyd’s Rep 48�� 23, 157
xlviii
table of cases
Union Marine Classification Services LLC v. The Government of the Union of
Comoros [2015] EWHC 508 (Comm)��172
Union Trans-Pacific Co Ltd v. Orient Shipping Rotterdam BV [2002] EWHC 1451
(Comm)��14
Unistress Building Construction Ltd v. Humphrey’s Estate (Forrestdale) Ltd [1991] 1
HKC 519��231
United Boulevard Pte Ltd v. Ahong Construction (S) Pte Ltd [1996] 2 SLR
656��92
United Eng Contractors Pte Ltd v. L & M Concrete Specialists Pte Ltd [2000] 2 SLR
196��17
United Mexican States v. Cargill Inc [2011] ONCA 622��121
United Railways of the Havana and Regla Warehouses Ltd, Re [1961] AC 1007��67
Unitramp SA v. Jenson Nicholson Pte Ltd, The Baiona [1991] 2 Lloyd’s Rep 121��199
Universal Petroleum Co Ltd v. Handels und Transport GmbH [1987] 1 Lloyd’s Rep
517��168
Urban Small Space Ltd v. Burford Investment (1990) 28 EG 116�� 237, 241
Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust- Kamenogorsk Hydropower
Plant LLP [2013] UKSC 35��29
Vale do Rio Doce Navegacos SA v. Shanghai Bao Steel Ocean Shipping Co Ltd and
Sea Partners Ltd [2000] 2 Lloyd’s Rep 1�� 51, 66
Van Der Giessen-De-Noord Shipbuilding Division BV v. Imtech Marine & Offshore
BV [2009] 1 Lloyd’s Rep 273 �� 105, 166
Van Oord ACZ Ltd v. The Port of Mostyn, 2003, unreported��257
Vanol Far East Marketing Pte Ltd v. Hin Leong Trading (Pte) Ltd [1997] 3 SLR 484��26
The Varenna [1983] 2 Lloyd’s Rep 592��19
Varnsdorf Pty Ltd v. Fletcher Constructions Australia Ltd [1998] VSC 8125�� 199, 212
Vascroft (Contractors) Ltd v. Seeboard plc (1996) 78 BLR 132��240
The Vasiliy Golovnin [2008] SGCA 39�� 15, 43
Vasp Group Pty Ltd v. Service Stream Ltd [2008] NSWSC 1182�� 16, 195
The Vasso [1983] 3 All ER 211��232
Veba Oil Supply and Trading GmbH v. Petrotrade Inc [2002] 1 Lloyd’s Rep 295��21
Vee Networks Ltd v. Econet Wireless International Ltd [2005] 1 Lloyd’s Rep 192�� 103,
104, 146, 147, 149
Verity Shipping SA v. Chartworld Shipping Corporation, The Skier Star [2008] 1
Vertex Data Science Ltd v. Powergen Retail Ltd [2006] 2 Lloyd’s Rep 591�� 15, 67
Vibroflotation AG v. Express Builders Co Ltd [1994] 3 HKC 263��78
Villa Denizcilik Sanayi ve Ticaret SA v. Longen SA, The Villa [1998] 1 Lloyd’s Rep
195��14, 45, 47
Vinava Shipping Co Ltd v. Finelvet AG, The Chrysalis [1983] 1 Lloyd’s Rep
503��240
Virani Ltd v. Manuel Revert y CIA SA [2004] 2 Lloyd’s Rep 14��67
Virdee v. Virdi [2003] EWCA Civ 41�� 222, 225, 228, 232, 237
Vix Marketing Pte Ltd v. Technogym SpA [2008] 4 SLR 256��17
Vocam (Europe) Ltd, Re [1998] BCC 396��56
Vosnoc Ltd v. Transglobal Projects Ltd [1998] 1 Lloyd’s Rep 711��45
VV v. VW [2008] 2 SLR 929�� 94, 178
Wah v. Grant Thornton International Ltd [2012] EWHC 3198��81
Walker v. Rome [2000] 1 Lloyd’s Rep 116�� 85, 93
Walkinshaw v. Diniz [2000] 2 Lloyd’s Rep 165 (arbitration)��22
xlix
table of cases
Warborough Investments Ltd v. S Robinson & Sons (Holdings) Ltd [2003] EWCA Civ
751; [2003] 2 EGLR 149�� 103, 107, 176
Watson v. Prager [1991] 3 All ER 487��139
Wealands v. CLC Contractors Ltd [1999] 2 Lloyd’s Rep 739��32
Webb v. Lewis Silkin [2015] EWHC 687 (Ch)��99
Weissfisch v. Julius [2006] 1 Lloyd’s Rep 716��129
Weldon Plant Ltd v. Commission for the New Towns [2000] BLR 496��105
Welex AG v. Rosa Maritime Ltd, The Epsilon Rosa [2003] 2 Lloyd’s Rep 509��17, 74, 162
Welltime Hong Kong Ltd v. Cosmic Insurance Corporation Ltd [2004] 2 HKC 155��90
Welltime Hong Kong Ltd v. Ken Forward Engineering Ltd [2001] 1 HKC 458��50
Wenden Engineering Service Co Ltd v. Wing Hong Contractors Ltd [1992] 2 HKC
380��199
West of England Ship Owners Mutual Protection and Indemnity Association
(Luxembourg) Ltd v. Hellenic Industrial Development Bank SA [1999] 1 Lloyd’s
Rep 93�� 45, 137
West Tankers Inc v. Allianz SpA [2012] 1 Lloyd’s Rep 398��86
West Tankers Inc v. Ras Riunione Adriatica di Sicurta SpA, The Front Comor [2005]
2 Lloyd’s Rep 257 (appeal [2007] 1 Lloyd’s Rep 391 turned on other issues)�� 40, 74
Westacre Investments Inc v. Jugoimport-SDPR Holding Co Ltd [1999] 2 Lloyd’s Rep
65�� 125, 126
Westco Airconditioning Ltd v. Sui Chong Construction Engineering Co Ltd (1998)
HCA No 12848 of 1997, unreported��134
Westland Helicopters Ltd v. Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523��93,
98, 107, 147, 178
Westport Insurance Corp v. Gordian Runoff Ltd [2011] HCA 37��169
Westwood Shipping Lines Inc v. Universal Schiffahrtsgesellschaft mbH [2012] EWHC
3837 (Comm)�� 98, 99
WH-SGC JV Ltd v. Hong Kong Construction (Holdings) Ltd [2006] HKEC 1492��18
Whiting v. Halverson [2003] EWCA Civ 403�� 15, 29
Wholecrop Marketing Ltd v. Wolds Produce Ltd [2013] EWHC 2079 (Comm)��44
Wicketts and Sterndale v. Brine Builders [2001] CILL 1805�� 61, 83, 109, 131, 144, 205
Wilhelm Finance Inc v. Ente Administrador del Astillero Rio Santiago [2009] EWHC
1074 (Comm)��264
William Co v. Chu Kong Agency Co Ltd [1993] 2 HKC 377�� 15, 21
Winbond Electronics (HK) Ltd v. Achieva Components China Ltd [2007] HKEC
1617��30
Woh Hup (Pte) Ltd v. Lian Teck Construction Pte Ltd [2005] SGCA 26��69
Woh Hup (Pte) Ltd v. Property Development Ltd [1991] 1 SLR 652�� 156, 162
Wong Yu Hing v. Tong Pak Wing [1995] 2 HKC 430��136
Woolf v. Collis Removal Service [1948] 1 KB 11��16
World Good Way Inc v. Wasan International Co Ltd [2008] NZHC 463��37
World Trade Corporation Ltd v. Czarnikow Sugar Ltd [2004] EWHC 2332 (Comm);
[2004] 2 All ER (Comm) 813�� 106, 168, 172, 174
WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka [2002] 3 SLR
603��15, 38, 41, 74, 75–6
Wu Shun Foods Co Ltd v. Ken Ken Food Manufacturing Pte Ltd [2002] 4 SLR 877��126
Wu Yang Construction Group Ltd v. Zhejiang Jinyi Group Co Ltd [2008] 2 SLR
350�� 34, 70
Wuzhou Port Foreign Trade Development Corporation v. New Chemic Ltd [2001] 3
HKC 395��120
l
table of cases
X Chartering v. Y [2014] HKCFI 494�� 117, 125
X Holding AG (Switzerland) v. Y Investments NV (Netherlands Antilles), Swiss
Federal Supreme Court, 25 October 2010, reported in (2011) 36 Yearbook of
Commercial Arbitration 343��36
X v. Y [2013] EWHC 1104 (Comm)��251
The Xanadu [1998] 1 SLR 767��38
Xiamen Xinjingdi Group Ltd v. Eton Properties Ltd [2008] 6 HKC 287�� 124, 127
XL Insurance Ltd v. Owens Corning [2000] 2 Lloyd’s Rep 500�� 74, 76, 147, 162
Xu Yi Hong v. Chen Ming Han [2006] 4 HKC 633�� 16, 30
Y v. S [2015] EWHC 612 (Comm)��85
Yeandle v. Wynn Realisations Ltd (1995) 47 Con LR 1��39
Yee Hong Pte Ltd v. Powen Electrical Engineering Pte Ltd [2005] 3 SLR 512�� 106, 143
Yee Hong Pte Ltd v. Tan Chye Hee Andrew (Ho Bee Development Pte Ltd, Third
Party) [2005] 4 SLR 398��195
Yesodei Hatorah College Inc v. The Trustees of the Elwood Talmud Torah Congregation
[2011] VSC 622��165
Yokogawa Engineering Asia Pte Ltd v. Transtel Engineering Pte Ltd [2009] SGHC 1��20
York International Pte Ltd v. Voltas Ltd [2013] SGHC 124��72
Youell v. Kara Mara Shipping Co [2000] 2 Lloyd’ Rep 102��75
Yukos Capital SARL v. OJSC Rosneft Oil Co [2011] EWHC 1461 (Comm)��118
Yukos Capital SARL v. OJSC Rosneft Oil Co (No.3) [2014] EWHC 2188 (Comm)��117
Yukos Oil Co v. Dardana Ltd [2002] 1 Lloyd’s Rep 225; [2002] 2 Lloyd’s Rep
326�� 114, 117, 119, 121, 123, 124, 177
Zambia Steel & Building Supplies Ltd v. James Clark & Eaton Ltd [1986] 2 Lloyd’s
Rep 225��17
Zaporozhye Production Aluminium Plan Open Shareholders Society v. Ashly Ltd
[2002] EWHC 1410 (comm)��53
Zermalt Holdings SA v. Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14��169
Zhan Jiang E & T Development Area Service v. Head Co An Hau Co Ltd [1994] 1
HKC 539��33
Zhejiang Province Garment Import and Export Co v. Siemssen & Co (HK) Trading
Ltd [1992] ADRLJ 183��125
Zhong da Chemical Development Co Ltd v. Lanco Industries Ltd [2009] SGHC 112��69
Zhong You (China) Design Co v. Fuyuan Landmark (Shenzhen) Ltd [1996] 2 HKC 34230
Zim Integrated Shipping Services Ltd v. European Container KS [2013] EWHC 3581
(Comm)��71, 73–4
Zimbabwe Electricity Supply Authority v. Genius Joel Maposa (2000) 25 Yearbook of
Commercial Arbitration 548��125
li
Page Intentionally Left Blank
CHAPTER 1
Background to the Singapore Legislation
Structure of the arbitration system in Singapore1

Singapore has two parallel arbitral systems. One is for domestic arbitration, the
Arbitration Act 2001 (Cap. 37), published in revised form in 2002 (Cap. 10),
referred to in this work as AA. The other is for international arbitrations, enshrined
in the International Arbitration Act 1994, Act 23 of 1994, referred to in this
work as the IAA. Singapore has, since 1986, been a signatory to the New York
Convention on the Recognition and Enforcement of Foreign Arbitration Awards
1958, Accordingly, Singapore has a legal system fully equipped to allow it to take its
place as a leading forum for hosting international arbitrations.
The IAA was revised in 1995 and amended by the International Arbitration
(Amendment) Act 2001 (Cap. 38) and the International Arbitration (Amendment)
Act 2002 (Cap. 28),2 and then published in revised form in 2002 (Cap. 143A). It
was subsequently amended in 2010 to allow the court to grant interim measures
in support of arbitration. More significant amendments were introduced by the
International Arbitration (Amendment) Act 2012 (No. 12 of 2012), with effect from
1 June 2012, in part the consequence of a Report of the Law Reform Committee
of the Singapore Academy of Law published in 2011. The effects of the 2012
amendments are: to extend the power of arbitrators to award interest; to extend the
definition of arbitration agreement so as to include oral agreements later recorded
in writing; to recognise the use of emergency arbitrators who can act before the
tribunal itself has been constituted; and to give a right of appeal against a ruling by
arbitrators that they do not have jurisdiction to hear a matter.
Transitional provisions for the 2012 Act are set out in s. 12, as follows:
12.—(1) This Act shall apply to arbitral proceedings commenced on or after the date of
commencement of this Act but the parties may in writing agree that this Act shall apply to
arbitral proceedings commenced before that date.
(2) Notwithstanding subsection (1), where the arbitral proceedings were commenced
before the date of commencement of this Act, the law governing the arbitration agreement
and the arbitration shall be the law which would have applied if this Act had not been
enacted.
1 See generally: Leslie K.H. Chew, Law and Practice of Arbitration in Singapore, LexisNexis 2010;
Chan Leng Sun, Singapore Law on Arbitral Awards, Academy Publishing 2012; David Joseph and David
Foxton, Singapore International Arbitration Law and Practice, LexisNexis 2014.
2 To bring it into line with the domestic legislation passed in 2001.
1
singapore arbitration legislation
(3) For the purposes of this section, arbitral proceedings are to be taken as having com-
menced on the date of the receipt by the respondent of a request for the dispute to be
referred to arbitration, or where the parties have agreed in writing that any other date is
to be taken as the date of commencement of the arbitral proceedings, then on that date.
It was held in AQZ v. ARA3 that s. 12(1) extends the operation of the amending
legislation to arbitration agreements entered into before 1 June 2012 if the arbitral
proceedings themselves are commended on or after that date.
There is detailed commentary on the adoption of the Model Law in the Law
Reform Committee’s Review of Arbitration Laws, August 1993, available online
at: www.sal.org.sg/digitallibrary/Lists/Law%20Reform%20Reports/Attachments/1/
review_of_arbitration_laws.pdf. There is detailed commentary on the AA in the
Attorney- General’s Chambers Review of Arbitration Laws, published in 2001,
LRRD No. 3/2001, available online at www.asianlii.org/sg/other/SGLRC/report/
R3/3.pdf.4 All arbitrations with a seat (referred to as “place” in the legislation) in
Singapore are subject to one or other of these regimes.5 IAA is governed by the
Singapore Rules of Court, Ord. 69A, and AA is governed by the Singapore Rules of
Court, Ord. 69.6 Singapore, like many other jurisdictions, has adopted the distinc-
tion between international and domestic arbitration in order to make itself more
attractive as an international arbitral forum. IAA implements into Singapore law
the Model Law 1985. As was said in the 1993 Review, para. 8: “If Singapore aims
to be an international arbitration centre it must adopt a world view of international
arbitration.”7
The Model Law was drafted by UNCITRAL, the international trade law com-
mittee of the United Nations, as a measure laying down minimum standards for an
arbitration regime. The Model Law is a succinct code of arbitration law, designed
by its terms for international commercial arbitration but capable of adaptation for
a domestic code. The principal features of the Model Law are party autonomy over
the arbitration proceedings, the absence of any appeal procedure, the restriction
of judicial intervention in the proceedings to default powers, and the free enforce-
ability of the award other than in cases of want of jurisdiction or clear unfairness
in the procedure. The IAA both supplements and modifies the Model Law, so it is
necessary to read the two measures together: see the Notes to IAA, s. 3. The Model
Law was modified in 2006 to provide alternative definitions of “arbitration agree-
ment” and to allow interim measures: although Singapore has not adopted those
modifications verbatim, the changes to the IAA by the 2012 Amendment Act to
some extent reflect them.
3 [2015] SGHC 49.

4 This document is also the basis for the amendments to the IAA which brought it into line with the
AA in certain respects. Although LRRD No. 3/2001 was only of domestic law, and relates to the AA
only, in the present work there are references to LRRD No. 3/2001 at relevant points in the annotations
to the IAA and to the Model Law where the provisions are identical.
5 LRRD No. 3/2001, para. 2.1.1. Delocalised arbitrations are not recognised by the law: Bank
Mellat v. Helliniki Techniki SA [1984] 1 QB 291.
6 For explanation of Ords 69 and 69A, see the Attorney-General’s Chambers Review of Rules of
Court Relating to Arbitration 2002, LRRD No. 2/2002, and Attorney-General’s Chambers Review of
Rules of Court Relating to Arbitration, Supplementary Report, LRRD No. 6/2002.
7 Both IAA and AA use “claimant” rather than “plaintiff” while the Rules of Court use “plaintiff”—
in this work “claimant” is preferred for uniformity, except where dictated by the circumstances.
2
background to the singapore legislation
The parties to an international arbitration may contract out of the IAA and the
Model Law: see the Notes to IAA, s. 15. Adoption of standard rules ousts the
IAA and the Model Law only insofar as the rules are inconsistent with those leg-
islative measures: see the Notes to IAA, s. 15A. Equally, the parties to a domestic
arbitration may agree to adopt the IAA and the Model Law.8
The two systems

The Model Law, by reason of its non-interventionist approach, was thought not to
be fully appropriate to domestic arbitrations which may involve smaller businesses
and indeed consumers. The 1993 Review, paras 10–13, thus rejected a uniform
system of the type subsequently adopted in England by the Arbitration Act 1996
(AA 1996 (Eng)). There is accordingly separate legislation, AA, which permits
intervention by the courts in a number of ways precluded by IAA and the Model
Law. There is no legislation in Singapore which protects consumers or small busi-
nesses from “unreasonable” contract terms, and partly for that reason AA permits
judicial intervention, e.g., by permitting refusal of a stay of judicial proceedings and
by allowing an extension of contractual time limits for the commencement of arbi-
tral proceedings. That said, much of the AA is based on the Model Law, and many
of the provisions of the latter have been adopted more or less verbatim (albeit with
some structural or drafting differences).
An important feature of the AA is that it has also adopted a number of the
principles enshrined in the AA 1996 (Eng)9 and also the New Zealand Arbitration
Act 1996. Those responsible for the drafting of the AA 1996 (Eng) considered
at length whether the Model Law was appropriate for adoption in England. The
Departmental Advisory Committee on Arbitration Law chaired by Lord Mustill,
reporting in 1989, rejected calls for the adoption of the Model Law into English law.
Instead the Committee recommended that there should be a new Arbitration Act,
incorporating the best features of existing law but redrafted in more user-friendly
terms, filling in the many gaps in the legislation which had been resolved, if at all,
by case law. The DAC felt that, wherever possible, the new Act should reflect the
Model Law, but that wholesale adoption would be detrimental. However, by the
time that legislation was finally adopted, following two further important reports
by the DAC in 1995 and 1996, latterly under the chairmanship of Saville LJ, the
measure had moved English law far closer to the Model Law than had initially been
contemplated in 1989, and there are relatively few differences between the two
measures.10
8 Based on the recommendation of the 1993 Review, para. 16. See NCC International AB v. Alliance
Concrete Singapore Pte Ltd [2008] 2 SLR 565.
9 The Arbitration Act 1996 is an act of the UK Parliament. It applies in its entirety to England and
Wales, and applies with certain exceptions to Northern Ireland. Only selected parts apply to Scotland,
which has its own Arbitration Act. Setting aside the finer constitutional points, it is referred to in this
work as AA 1996 (Eng).
10 (a) the 1996 Act applies to all classes of arbitration, whereas the Model Law (arts 1 and 2) is con-
fined to international commercial arbitration; (b) Model Law, art. 7(2) requires an arbitration agreement
to be signed: there is no equivalent provision in the Arbitration Act 1996. However, the Model Law was
amended in 2006 by the addition of an alternative version of art. 7 which does not require signature;
3
Accordingly, while it is the case that Singapore has two entirely separate arbitral
regimes governed by different rules of court, many of the provisions of the two
regimes are identical in effect if not always identical in wording. There is a general
presumption that the two measures should be construed consistently.11 In this work
the provisions of the IAA and the Model Law are set out first, followed by the
provisions of the AA.
It may be helpful at this point to highlight the most important differences between
the international and domestic codes, as follows:
(a) The courts may intervene in an international arbitration only where the
Model Law or IAA so permits (Model Law, art. 5), whereas the court
appears to retain its general residual powers in respect of domestic
arbitrations.
(b) The waiver principle is statutory in the Model Law (art. 4) and is not
referred to in the AA, although the common law probably has the same
effect.
(c) The death of a party terminates a domestic arbitration (AA, s. 5) but the
effect in an international arbitration is not specified.
(d) A stay of judicial proceedings is mandatory in an international arbitration
(Model Law, art. 8) but discretionary in a domestic arbitration (AA, s. 6).
(e) The court has power to extend contractual time limits for the commence-
ment of arbitration (AA, s. 10), but there is no equivalent power in respect
of international arbitrations.
(f) The AA makes no reference to the language of the arbitration or the power
of the arbitrators to adopt an inquisitorial process, whereas both matters
are provided for in respect of international arbitrations (respectively, Model
Law, art. 22 and IAA, s. 12(3)).
(g) In the case of an international arbitration the arbitrators have a range of
interlocutory powers, and if for any reason those powers cannot be exer-
cised then the court has a more limited range of fallback powers (IAA, ss
12 and 12A). In the case of a domestic arbitration the arbitrators and the
(c) where an action is brought in the English courts in respect of a matter which is the subject of a valid
and subsisting arbitration clause, the English court can only stay its own proceedings; Model Law, art.
8(2), requires the court to refer the matter to arbitration; (d) the 1996 Act provides that, in default of
agreement, there is to be a sole arbitrator: Model Law, art. 10(1) specifies a tribunal of three arbitrators
as the default panel; (e) where each party is required to appoint an arbitrator, English law has retained
the power of a party to treat his arbitrator as the sole arbitrator where the other party has failed to make
an appointment: there is no equivalent provision in the appointment rules in Model Law, art. 11; (f)
Model Law, art. 13 requires a party who wishes to oppose the appointment of an arbitrator to do so
within 15 days: under the 1996 Act, a challenge can be made at any time, subject to general principles
of waiver; (g) Model Law, art. 19 allows the parties to choose the procedure for the arbitration, with
the arbitrators having default powers in the absence of agreement. Under the 1996 Act, the arbitrators
have this right subject only to contrary agreement by the parties; (h) Model Law, art. 23 lays down strict
rules for the exchange of pleadings: there is no equivalent provision in the Arbitration Act 1996, which
permits the arbitrators to decide how to proceed; (i) the Model Law does not contain any provision for
the extension of agreed time limits for the commencement of proceedings; (j) the Model Law does not
contain any mechanism for summary enforcement of awards. These objections were thought not to be
weighty by the 1993 Review, para. 8.
11 Tjong Very Sumito v. Antig Instruments Pte Ltd [2009] 4 SLR(R) 732; Drydocks World-Singapore Pte
Ltd v. Jurong Port Pte Ltd [2010] SGHC 185.
4
courts have concurrent interlocutory powers, in which case the courts must
have regard to what has been done by the arbitrators (AA, s. 31(1)–(3)),
although only the courts can secure the amount in dispute, grant a freezing
order or grant an interim injunction (AA, s. 31(2)).
(h) Domestic arbitrators, but not international arbitrators, have the power to
issue an award striking out a claim if the applicant has allowed the claim to
become stale (AA, s. 29(3)).
(i) A point of law can be referred to the court for a preliminary ruling under
the AA, s. 45, but there is no equivalent provision in the IAA or the Model
Law.
(j) There is no provision for the consolidation of proceedings where an inter-
national arbitration is taking place, although the parties may agree on con-
solidation in the case of two or more domestic arbitrations (AA, s. 26).
(k) Where there is a time limit for the making of an award, the court may
extend that time limit in the case of a domestic arbitration only (AA, s. 36).
(l) The traditional power of arbitrators to withhold their award by way of
security for payment of their fees is retained by the AA, s. 41, but is not
replicated for international arbitrations.
(m) There is provision for an appeal against a domestic award for error of law
(AA, s. 49), but an international award cannot be challenged on this basis.
Structure of the present work

In this work the provisions of IAA and the Model Law are set out, followed by
the provisions of the AA. All of these measures are annotated, but where the AA
repeats what is found in IAA or the Model Law there is in most cases simply a cross-
reference. It will be appreciated that, alongside the decisions of the Singaporean
courts, the bulk of the annotations consists of decisions of the English courts under
AA 1996 (Eng). This is so for three reasons: England is by far the most bountiful
source of case law on arbitration legislation, in the past twenty years producing
over 1,500 judicial authorities; many of the provisions of the Model Law have been
incorporated into the AA 1996 (Eng) so that problems arising under the Model Law
have been heavily litigated; and parts of the AA can be traced directly back to the
AA 1996 (Eng).
The Rules of the Singapore International Arbitration Centre (SIAC) have been
included in this work. Those Rules are regularly adopted in international arbitra-
tions governed by the IAA and there are some important decisions on the relation-
ship between SIAC and the legislation. SIAC was founded in 1991 and has issued
its own Arbitration Rules. The most recent version of the SIAC Rules is 2013,
effective 1 April 2013.12 If the seat of the arbitration is Singapore, and the parties
adopt SIAC Rules, the IAA will govern the arbitration (r. 32): SIAC’s Domestic
Arbitration Rules were abolished in 2007. There is a presumption that the rules in
12 In the absence of express provision to the contrary, the version of the chosen arbitration rules in
force at the time of the dispute are to prevail: China Agribusiness Development Corporation v. Balli Trading
[1998] 2 Lloyd’s Rep 76; Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875 (Comm).
5
force and applicable at the commencement of arbitration apply to a dispute.13 The

SIAC Rules 2013 have made significant changes to the structure of the organisa-
tion, in particular by establishing a SIAC Court of Arbitration along the lines of the
ICC International Court of Arbitration. In addition there is a new power conferred
upon the Registrar, by r. 2.5, to extend any of the time limits established under the
SIAC Rules.
One particular feature of the 2013 Rules is the introduction, in r. 5, of an expe-
dited procedure under which, prior to the full constitution of the Tribunal, a party
may apply to the Registrar for the conduct of the arbitration under the expedited
procedure where either: (a) the amount does not exceed S$5,000,000; or (b) the
parties so agree; or (c) there is exceptional urgency. If the President grants the
application, a number of modifications are made: the Registrar may reduce time
limits; the case shall be referred to a sole arbitrator; the parties may agree that the
arbitration can be on documents only, but if not then a hearing is to be held for
the examination of witnesses and for argument; the award is to be made within
six months unless time is extended by the Registrar; and reasons are to be given in
summary form.
Under art. 36 of the SIAC Rules, also added in 2013, decisions of SIAC other
than on jurisdiction are binding on the parties.
Reception of the Model Law

A large and increasing number of countries or states have adopted the Model Law
verbatim as their arbitration law,14 at least as regards international commercial
arbitration.15 As yet, only a small number have adopted the 2006 amendments.
A number of jurisdictions have taken the same line as Singapore and adopted two
parallel arbitration laws, Model Law rules for international arbitrations and more
interventionist rules for domestic arbitrations.
The annotations in the present work incorporate the leading relevant cases from
Australia, Hong Kong, Malaysia and New Zealand, and the structure of the law in
each of those jurisdictions is worthy of brief comment.
Australia adopted the Model Law in 1989, by means of amendments to the
International Arbitration Act 1974, a Federal measure. The Act conforms to the
Model Law, but contains additional provisions which the parties are free to adopt
and which reflect the position in a domestic arbitration.16 The parties are free to
exclude the operation of the Model Law. If they do so the 1974 Act confers curial
powers on the court, although the procedure of the arbitration is governed by the
law of the state in which the arbitration is held.17 The 1974 Act was amended
by the International Arbitration Amendment Act 2010, in particular to introduce
13 Black & Veatch Singapore Pte Ltd v. Jurong Engineering Ltd [2004] 4 SLR 19.
14 UNCITRAL publishes a global digest of case law on the Model Law. See http://www.uncitral.org/
pdf/english/clout/MAL-digest-2012-e.pdf.
15 The countries or states which have adopted the Model Law are listed on the UNCITRAL website:
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html.
16 S. 24—consolidation of arbitrations, equivalent to AA, s. 26; s. 29—legal representation, no
equivalent in AA.
17 Aerospatiale Holdings Australia v. Elspan International Ltd (1992) 28 NSWLR 321.
6
provisions on the confidentiality of arbitration awards and proceedings. As far as
domestic arbitrations are concerned, each Australian state has its own Commercial
Arbitration Act, which provides for judicial intervention over and above that per-
mitted by the Model Law. The state legislation is uniform and is to be construed
consistently in each state. The State measures were revised in 2010 to bring them
into line with Federal legislation and international developments in arbitration law.
The governing provision in Hong Kong is the Arbitration Ordinance 2011,
Chapter 609, which came into force in June 2011. It replaced the Arbitration
Ordinance 1963, Chapter 341, which set out separate regimes for international
and domestic arbitration, the latter being far more interventionist than the former.
The 2011 Ordinance follows England in providing a unified arbitration regime for
both international and domestic arbitrations, and the 1963 regime was amended in
significant respects in order to bring Hong Kong law into line with modern stand-
ards. Specific features of the 2011 Ordinance are: the introduction of specific rules
on the confidentiality of arbitration awards and arbitration procedures; a regime
for recognising interim measures in support of foreign arbitrations; and removal of
court intervention other than in exceptional circumstances.18
An arbitration with its seat in Malaysia is governed by the Arbitration Act 2005,
which implements the Model Law. There is a single code for domestic and interna-
tional arbitrations, set out in Parts I, II and IV of the Act, but a distinction between
the two is drawn in Part III: the provisions of Part III apply by default in a domestic
arbitration unless the parties agree otherwise, but the provisions of Part III apply
to an international arbitration only if the parties agree to incorporate them (s. 3).19
The legislation was amended by the Arbitration Act 2011, the main features of
which are: to remove the possibility of judicial intervention where the court was
dissatisfied with the substantive outcome of the arbitration;20 to extend the duty to
stay judicial proceedings, following England in removing the right of the court to
determine whether there was a dispute between the parties; restriction on the right
of appeal on point of law; and to give effect to choice of substantive law other than
that of Malaysia.
In New Zealand, the basic structure is similar to that of Malaysia. The Arbitration
Act 1996 sets out a common code for all arbitrations, consisting of basic principles
in the Act itself21 and then the Model Law (Sched. 1 to the 1996 Act). There
are additional provisions in Sched. 2 which extend the powers of the court to
18 S. 2GD—power to extend time for commencement of arbitration (which applies to both domestic
and international arbitrations, equivalent to AA, s. 10; s. 4—death of party, equivalent to AA, s. 5;
s. 6B—consolidation of arbitrations, equivalent to AA, s. 26; s. 9—appointment of party arbitrator as
sole arbitrator where there is default, no equivalent in AA; s. 15—extension of time for making award,
equivalent to AA, s. 36; s. 23A—determination of preliminary point of law, equivalent to AA, s. 45.
19 These provisions are: s. 40—consolidation of proceedings, equivalent to AA, s. 26; s.
41—determination of preliminary point of law, equivalent to AA, s. 45; s. 42—reference on question of law,
equivalent to AA, s. 45; s. 43—appeal on point of law, equivalent to AA, s. 49; s. 44—costs and expenses
of an arbitration, equivalent to AA, ss. 39–41; s. 45—extension of time for commencing proceedings,
equivalent to AA, s. 10; and s. 46—extension of time for making award, equivalent to AA, s. 36.
20 As had been suggested in Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd
[2010] 5 CLJ 83 and Albilt Resources Sdn Bhd v. Casaria Construction Sdn Bhd [2010] 7 CLJ 785.
21 Special protection for consumers; evidential and interlocutory powers; immunity of arbitrators;
and confidentiality.
7
intervene. These apply to an international arbitration only if the parties agree to

incorporate them, and they apply to a domestic arbitration unless the parties agree
otherwise so that the default position is that the additional powers of intervention
are available.22
22 Cl. 1—default appointment of arbitrators, no equivalent in AA (based on English AA 1996 (Eng),
s. 17); cl. 2—consolidation of arbitration proceedings, equivalent to AA, s. 26; cl. 3—powers relating to
conduct of arbitration proceedings, equivalent to IAA, s. 12 and AA ss. 28–31; cl. 4—determination of
preliminary point of law—equivalent to AA, s. 45; cl. 5—appeals on questions of law, equivalent to AA,
s. 49; cl. 6—costs and expenses, equivalent to AA, ss. 39–41; cl. 7—extension of time for commencing
arbitration proceedings, equivalent to AA, s. 10.
8
CHAPTER 2
International Arbitration Act

(Cap. 143A, 2002 Rev. Ed.)
An Act to make provision for the conduct of international commercial arbitra-

tions based on the Model Law on International Commercial Arbitration adopted
by the United Nations Commission on International Trade Law and conciliation
proceedings and to give effect to the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards and for matters connected therewith.
[27th January 1995]
part i—preliminary
1. Short title
part ii—international commercial arbitration

2. Interpretation of Part II
2A. Definition and form of arbitration agreement
3. Model Law to have force of law
4. Interpretation of Model Law by use of extrinsic material
5. Application of Part II
6. Enforcement of international arbitration agreement
7. Court’s powers on stay of proceedings
8. Authorities specified for purposes of Article 6 of Model Law
8A. Application of Limitation Act and Foreign Limitation Periods Act 2012
9. Number of arbitrators for purposes of Article 10(2) of Model Law
9A. Default appointment of arbitrators
10. Appeal on ruling on jurisdiction
11. Public policy and arbitrability
11A. Reference of interpleader issue to arbitration
12. Powers of arbitral tribunal
12A. Court-ordered interim measures
13. Witnesses may be summoned by subpoena
15. Law of arbitration other than Model Law
15A. Application of rules of arbitration
16. Appointment of conciliator
17. Power of arbitrator to act as conciliator
18. Award by consent
19. Enforcement of awards
19A. Awards made on different issues
9
19B. Effect of award

19C. Authentication of awards and arbitration agreements
20. Interest on awards
21. Taxation of costs
22. Proceedings to be heard otherwise than in open court
23. Restrictions on reporting of proceedings heard otherwise than in open court
24. Court may set aside award
25. Liability of arbitrator
25A. Immunity of appointing authority and arbitral institutions, etc.
26. Transitional provisions
part iii—foreign awards

27. Interpretation of Part III
28. Application of Part III
29. Recognition and enforcement of foreign awards
30. Evidence
31. Refusal of enforcement
32. Convention countries
33. Enforcement of awards under other provisions of law
part iv—general
34. Act to bind Government
35. Rules of Court
First Schedule—UNCITRAL Model Law on International Commercial Arbitration

Second Schedule—Convention on the Recognition and Enforcement of Foreign
Arbitral Awards. Concluded at New York on 10th June 1958
NOTES
The International Arbitration Act came into force on 27 January 1995. It was
subsequently amended by the International Commercial Arbitration (Amendment)
Act 2001 (Chapter 38), the International Commercial Arbitration Amendment
Act 2002 (Chapter 28) and the International Arbitration (Amendment) Act 2012
(No.12 of 2012). The amended text is reproduced in what follows.
PART I PRELIMINARY
Short title
1.—This Act may be cited as the International Arbitration Act.
10
international arbitration act
PART II INTERNATIONAL COMMERCIAL ARBITRATION
Interpretation of Part II
2.—(1) In this Part, unless the context otherwise requires—
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators or a permanent
arbitral institution and includes 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 organisation;
“appointing authority” means the authority designated under section 8(2) or
(3);
“arbitration agreement” means an arbitration agreement referred to in
section 2A;
“award” means a decision of the arbitral tribunal on the substance of the dispute
and includes any interim, interlocutory or partial award but excludes any orders or
directions made under section 12;
“Model Law” means the UNCITRAL Model Law on International Commercial
Arbitration adopted by the United Nations Commission on International Trade
Law on 21st June 1985, the text in English of which is set out in the First
Schedule;
“party” means a party to an arbitration agreement or, in any case where an arbi-
tration does not involve all of the parties to the arbitration agreement, means a party
to the arbitration.
(2) Except so far as the contrary intention appears, a word or expression that is
used both in this Part and in the Model Law (whether or not a particular meaning
is given to it by the Model Law) has, in the Model Law, the same meaning as it has
in this Part.
NOTES
Section 2 sets out the basic definitions used in the legislation. These correspond
to the definitions in the Model Law where there is a counterpart. The Model
Law contains definitions which are unnecessary for the purposes of IAA, namely
“arbitration” and “court” (Model Law, arts 2(a) and 2(c)).
The definition of arbitral tribunal is the same as that in Model Law, art. 2(b),
but extended by the 2012 Amendment Act to include emergency arbitrators set
out in r. 26 of, and sched. 1 to, the SIAC Rules. Under that procedure, a party in
need of emergency relief may, concurrent with or following the filing of a Notice
of Arbitration but prior to the constitution of the Tribunal, make an application
for emergency interim relief. The President of SIAC will, if appropriate, make an
appointment within one day, and the emergency arbitrator then has two days to
establish a schedule whereby both parties can be heard. An emergency arbitrator
may not act as arbitrator in the subsequent hearing of the substantive issues.
The definition of appointing authority is relevant to appointment procedures under
IAA, s. 8.
The definition of arbitration agreement was amended in 2001 to match that in the
AA, and was further revised in 2012. See the notes to s. 2A, below.
11
The definition of award has no counterpart in the Model Law, and its main
purpose, following the addition of the words “any orders or directions made under
section 12” in 2001, is to distinguish awards from procedural orders. This is a
matter of some significance, because while there may be a challenge to an award
there is no procedure for any challenge to a procedural order made in the course
of the arbitration1 other than in respect of an attempt to overturn the award itself
on procedural grounds. Accordingly, it is necessary to determine whether what the
arbitrators have done is to make an award, or simply to have made a procedural
decision. The key test is whether the arbitrators have disposed of the issue: if so,
they have made an award no matter how their document is phrased.2 Thus, a ruling
on discovery3 or the admissibility of evidence4 is plainly not an award.
Jurisdictional rulings have given rise to particular difficulty. In PT Asuransi Jasa
Indonesia (Persero) v. Dexia Bank SA5 it was held that a negative determination on
jurisdiction, namely that the matter raised was barred by issue estoppel, did not
relate to the substance of the dispute and was not an award.6 In LW Infrastructure
Pte Ltd v Lim Chin San Contractors Pte Ltd 7 a ruling by tribunal that it was functus
officio was held not to be an award. In Charles M Willie Co (Shipping) Ltd v. Ocean
Laser Shipping Ltd, The Smaro8 Rix J held that a letter to which the arbitrator allowed
amendments to be made was held not to be an award as it was not dispositive of
any issue nor did it relate to the merits of the case. By contrast, in Ranko Group v.
Antarctic Maritime SA, The Robin,9 a letter by the arbitrator in which he stated that
he had made “rulings” as to his jurisdiction was held to be a partial award. A ruling
by the arbitrators which holds that they do possess jurisdiction is challengeable
whether not it amounts to an award in the full sense,10 so in that context the distinc-
tion is unlikely to be significant.
The definition of party has to be read in the light of the Contracts (Rights of
Third Parties) Act 2001, Cap. 53B, 2002 Rev. Ed, which may extend the effect
of an arbitration clause to a third party beneficiary. See the note to IAA, s 6.
Generally, however, a third party is not bound by the arbitration clause or by any
award.11
1 PT Pukuafu Indah v. Newmont Indonesia Ltd [2012] SGHC 187.

2 Cargill v. Kadinopoulos [1992] 1 Lloyd’s Rep 1; The Trade Fortitude [1992] 1 Lloyd’s Rep 169;
Michael Wilson & Partners Ltd v. Emmott [2008] EWHC 2684 (Comm); Resort Condominiums International
Inc v. Bolwell (1993) 118 ALR 655; Command v. Fletcher [1999] VSC 235; Mond v. Berger [2004] VSC 45.
3 General Distributors Ltd v. Melanesian Mission Trust Board [2008] NZHC 1817.
4 Brake v. Patley Wood Farm LLP, 25 April 2015, unreported, Eng HC.
5 [2007] 1 SLR 597.
6 This decision should not be taken to mean that a ruling that there is no jurisdiction can never be an
award. Such a ruling may, for example, relate to the scope of an arbitration clause and therefore plainly
be an award. The decision was distinguished for the purpose of the Australian jurisdiction in Hebei Jikai
Industrial Group Co Ltd v. Martin [2015] FCA 228, on the basis that it turned on the Singapore definition
of “award”.
7 [2013] SGHC 264.
8 [1999] 1 Lloyd’s Rep 225. See also: National Boat Shows Ltd v. Tameside Marine, July 2001, unre-
ported; Gingerbread Investments Ltd v. Wing Hong Interior Contracting Ltd [2008] 2 HKC 299.
9 [1998] ADRLN 35.
10 Model Law, art. 16(3); AA, s. 21(9).
11 PT Jaya Sumpiles Indonesia v. Kristle Trading Ltd [2009] SGCA 20.
12
Subsection (2) ensures that the Model Law and the IAA are interpreted in a
consistent fashion.
Definition and form of arbitration agreement

2A.—(1) In this Act, “arbitration agreement” means an agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which
may arise between them in respect of a defined legal relationship, whether con-
tractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An 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.
(5) The requirement that an arbitration agreement shall be in writing is satisfied
by an electronic communication if the information contained therein is accessible so
as to be useable for subsequent reference.
(6) Where in any arbitral or legal proceedings, a party asserts the existence of an
arbitration agreement in a pleading, statement of case or any other document in
circumstances in which the assertion calls for a reply and the assertion is not denied,
there shall be deemed to be an effective arbitration agreement as between the parties
to the proceedings.
(7) A reference in a contract to any document containing an arbitration clause
shall constitute an arbitration agreement in writing if the reference is such as to
make that clause part of the contract.
(8) A reference in a bill of lading to a charterparty or other document contain-
ing an arbitration clause shall constitute an arbitration agreement in writing if the
reference is such as to make that clause part of the bill of lading.
(9) Article 7 of the Model Law shall not apply to this section.
(10) In this section —
“data message” means information generated, sent, received or stored by elec-
tronic, magnetic, optical or similar means, including, but not limited to, electronic
data interchange (EDI), electronic mail, telegram, telex or telecopy;
“electronic communication” means any communication that the parties make by
means of data messages.
NOTES
Background
The definition of “arbitration agreement” was initially contained in s. 2 of the
IAA, and adopted as its basis the definition in the Model Law, art. 7, with some
additions. It is to be noted that Model Law, art. 7 was modified in 2006 and two
other alternative versions were set out. It was amended in 2009. The International
Arbitration (Amendment) Act 2012 repealed the reference to art. 7 of the Model
Law plus the extensions in s. 2 and replaced them with a definition of “arbitration
13
agreement” in s. 2A, which is far more thorough. Article 7 of the Model Law has
thus been disapplied: IAA, s. 2A(9). It was held in AQZ v. ARA12 that the extended
definition applies where the arbitration proceedings are commenced on or after
1 June 2012 (the commencement date of the 2012 Act) even though the agreement
itself was entered into before that date.
Agreement
As an initial point, there must be a binding “agreement” in accordance with the general
law.13 In particular, an agreement which is “subject to contract” is not binding,14 the
parties must have gone beyond agreeing in principle to arbitrate,15 the parties must
be of full capacity16 and the arbitration agreement itself must be one not vitiated by
misrepresentation, mistake or undue influence.17 Further, the arbitration obligation
must not have been brought to an end by agreement (including the acceptance of a
repudiatory breach of the clause),18 variation,19 frustration or the operation of a statu-
tory insolvency procedure. Those points aside, as long as there is an intention to arbi-
trate, a reference to arbitration in the contract, however slight or opaque, will suffice.20
12 [2015] SGHC 49.

13 See, e.g., Gurney Consulting Engineers v. Pearson Pension Property Fund Ltd [2004] EWHC 1916
(TCC); Glidepath Holdings BV v. Thompson [2005] 2 Lloyd’s Rep 549. See also Glaxosmithkline UK Ltd v.
Department of Health [2007] EWHC 1470 (Comm) where the suggestion that participation in arbitration
was “voluntary” was rejected.
14 Jarvis & Sons plc v. Galliard Homes Ltd [2000] BLR 33. Thus, an agreement that there can be arbi-
tration if both parties subsequently concur in a reference is a mere agreement to agree and not a binding
arbitration clause: Badrick v. British Judo Association [2004] EWHC 1891 (Ch); but see Joel Passlow v.
Butmac Pty Ltd [2012] NSWSC 225.
15 The Benja Bhum [1994] 1 SLR 88; Star-Trans Far East Pte Ltd v. Norske-Tech Ltd [1996] 2 SLR
409; Pacific International Lines (Pte) Ltd v. Tsinlien Metals and Minerals Co (HK) Ltd [1993] 2 HKLR 249;
Cathay Pacific Airways Ltd v. Hong Kong Air Cargo Terminals Ltd [2002] 2 HKC 193; Carrier Hong Kong
Ltd v. Dickson Construction Co Ltd [2005] 4 HKC 142. A clause that the parties “may” by notice to the
other party refer the dispute for resolution by arbitration was a sufficient agreement inproviding that the
parties ‘’ Cape Lambert Resources Ltd v. MCC Australia Sanjin Mining Pty Ltd [2012] WASC 228. In
Robotunits Pty Ltd v. Mennel [2015] VSC 268, the parties “irrevocably and unconditionally” submitted
to “arbitration in accordance with the arbitration guidelines of the Law Institute of Victoria”. The clause
was pathological because such guidelines did not exist. The Supreme Court of Victoria held that the
words irrevocably and unconditionally demonstrated a clear intention to submit disputes to arbitration
and that the agreement was therefore operable.
16 A company which has been removed from the register of companies ceases to be a party to an
arbitration agreement, but if it is restored to the register any arbitration agreement to which it was a party
prior to dissolution is revived: Union Trans-Pacific Co Ltd v. Orient Shipping Rotterdam BV [2002] EWHC
1451 (Comm).
17 Irvani v. Irvani [2000] 1 Lloyd’s Rep 412.
18 The Leonidas D [1985] 1 WLR 925; Bremer Vulkan Schiffbau und Maschinenfabrik v. South India
Shipping Corporation Ltd [1981] AC 909; Villa Denizcilik Sanayi ve Ticaret AS v. Longen SA, The Villa
[1998] 1 Lloyd’s Rep 195; Huyton SA v. Peter Cremer GmbH & Co [1999] 1 Lloyd’s Rep 620; Traube v.
Perelman [2003] EWHC 2822 (Ch); Downing v. Al Taneer Establishment [2002] 2 All ER (Comm) 545;
Indescon Ltd v. Ogden [2005] 1 Lloyd’s Rep 31; BEA Hotels NV v. Bellway LLC [2007] 2 Lloyd’s Rep 493.
19 PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] 4 SLR 257, where no variation was
found. An arbitration clause cannot be varied unilaterally: Downing v. Al Tameer Establishment [2002]
EWCA Civ 721. If the main agreement is varied, it is a matter of the construction of the variation and
indeed of the arbitration clause itself whether the arbitration clause applies to the agreement as varied:
Oriental Maritime (Pte) Ltd v. Ministry of Food, Government of Bangladesh [1989] 2 Lloyd’s Rep 371;
El Nasharty v. J Sainsbury plc [2004] 1 Lloyd’s Rep 309.
20 The ICL Raja Mahendra [1999] 1 SLR 329; Insigma Technology Co Ltd v. Alstom Technology Ltd
14
There can be an arbitration agreement even though only one of the parties is
obliged21 or entitled22 to submit disputes to arbitration. An option to submit to arbi-
tration, once exercised, takes effect as a binding arbitration agreement,23 although
if the option to arbitrate must be exercised within a fixed period and no notice of
arbitration is served, then there is no arbitration agreement.24 If the contract is
entered into by an agent on behalf of one of the parties, he must have the requisite
authority.25 Arbitration clauses may also be limited to particular disputes arising
between the parties, e.g., quantum where liability is admitted or established, or
disputes which can be remedied only in ways open to the arbitrators.26
Although most arbitrations are the result of contractual arbitration clauses, an
agreement to arbitrate can also arise in an ad hoc fashion after the dispute between
the parties has arisen.27 An obligation to arbitrate cannot, however, be unilaterally
imposed.28
[2009] SGCA 24; Tritonia Shipping Inc v. South Nelson Forest Products Corporation [1966] 1 Lloyd’s Rep
114; Hobbs, Padgett Co (Reinsurance) Ltd v. J C Kirkland Ltd [1969] 2 Lloyd’s Rep 547; Swiss Banking
Corporation v. Novorossiysk Shipping, The Petr Schmidt [1995] 1 Lloyd’s Rep 202; Paul Smith Ltd v. H &
S International Holdings Inc [1991] 2 Lloyd’s Rep 127; Mangistaumunaigaz Oil Production Association v.
United World Trading Inc [1995] 1 Lloyd’s Rep 66; Alec Lobb Partnership v. Aintree Racecourse Co
Ltd [2000] BLR 65; McNicholas plc v. AEI Cables 1999, unreported (EWHC, TCC). Contrast Frota
Oceanica Brasileira SA v. Steamship Mutual Underwriting Association (Bermuda) Ltd, The Frotanorte [1996]
2 Lloyd’s Rep 461; Cott v. Barber [1997] 3 All ER 540; Sonatrach Petroleum Corporation v. Ferrell
International Ltd [2002] 1 All ER (Comm) 627; Atlanska Plovidba v. Consigaciones Asturianas SA [2004]
2 Lloyd’s Rep 109; Aitken v. Ishimaru Ltd [2007] NZHC 1133. Contrast Teck Guan SDN BHD v. Beow
Guan Enterprises Pte Ltd [2003] 4 SLR 276, where it was held that the words “any dispute out of this
contract to be governed by the rules of the Cocoa Merchants’ Association of America” did not amount
to an arbitration clause. See also MH Alshaya Co WLL v. Retek Information Systems Inc [2001] Masons
CLR 99, where, wholly exceptionally (and, arguably, incorrectly), an arbitration provision was found to
be incompatible with the contractual arrangements entered into by the parties.
21 Pittalis v. Sherefettin [1986] 2 All ER 227; Nine Gladys Road Ltd v. Kersh [2004] EWHC 1080
(Ch); China Merchants Heavy Industry Co Ltd v. JGC Corporation [2001] 3 HKC 580; PMT Partners Pty
Ltd v. Australian National Parks and Wildlife Service (1995) 131 ALR 377.
22 NB Three Shipping Ltd v. Harebell Shipping Ltd [2005] 1 Lloyd’s Rep 509; Deutsche Bank AG v.
Tongkah Harbour Public Co Ltd [2011] EWHC 2251 (Comm).
23 The Dai Yun Shan [1992] 2 SLR 508; WSG Nimbus Pte Ltd v. Board of Control for Cricket in
Sri Lanka [2002] 3 SLR 603; The Messiniaki Bergen [1983] 1 Lloyd’s Rep 424; The Stena Pacifica
[1990] 2 Lloyd’s Rep 234; Law Debenture Trust Corp plc v. Elektrim Finance BV [2005] EWHC 1412;
William Co v. Chu Kong Agency Co Ltd [1993] 2 HKC 377; Whiting v. Halverson [2003] EWCA Civ
403; Mi-Space (UK) Ltd v. Lend Lease Construction (EMEA) Ltd [2013] EWH 2001 (TCC); China State
Construction Engineering Corporation Guangdong Branch v. Madiford [1992] 1 HKC 320; Tianjin Medicine
& Health Products Import & Export Corporation v. JA Moeller (Hong Kong) Ltd [1994] HKC 545; PCCW
Global Ltd v. Interactive Communications Service Ltd [2007] 1 HKC 327; PMT Partners Pty Ltd (In Liq)
v. Australian National Parks and Wildlife Service (1995) 184 CLR 301; Manningham City Council v.
Dura (Aust) Constructions Pty Ltd [1999] 3 VR 13; Savcor Pty Ltd v. State of New South Wales (2001) 52
NSWLR 587; Liverpool City Council v. Casbee Pty Ltd [2005] NSWSC 590.
24 Thorn Security (Hong Kong) Ltd v. Cheung Kee Fung Cheung Construction Co Ltd [2005] 1 HKC 252.
25 Overseas Union Insurance Ltd v. Turegum Insurance Co [2001] 3 SLR 330; The Vasiliy Golovnin
[2008] SGCA 39.
26 Vertex Data Science Ltd v. Powergen Retail Ltd [2006] 2 Lloyd’s Rep 591.
27 Allied Vision v. VPS Film Entertainment GmbH [1991] 1 Lloyd’s Rep 392; LG Caltex Co Ltd v.
China National Petroleum Technology and Development Corporation [2001] BLR 325; Humphrey v. Dua
Contractors & Co Ltd [1997] 3 HKC 368; Bintulu Development Authority v. Pilecon Engineering Bhd [2007]
2 MLJ 610. Contrast Hi-Fert Pty Ltd v. United Shipping Adriatic Inc (1998) 165 ALR 265. No distinction
is drawn between arbitration clauses and submission agreements by the IAA, although the distinction
does matter for the purposes of AA, s. 10: see the Notes to that section.
28 Hall v. Bank of New Zealand [2008] NZHC 1132.
15
Scope of arbitration clause

Section 2A(1), as does art. 7(1) of the Model Law, refers to disputes arising from a
defined legal relationship, whether or not contractual. There are indeed many cases
in which other forms of dispute have been held to be within the scope of arbitration
agreements, e.g., restitutionary actions29 and claims in tort.30 Section 2A(2), again
reflecting art. 7(1) of the Model Law, states that the agreement may be in the form
of an arbitration clause in the contract or in a separate agreement.
In the New Zealand case Bidois v. Leef [2015] NZCA 176, a question arose as
to the words “in respect of a defined legal relationship” appearing in the definition
of arbitration agreement in art. 7 of the Model Law. The dispute was in respect of
traditional land rights between local peoples dating back to the 1840s, affecting (but
not determining) compensation rights. The trial judge held that the dispute was not
in respect of a defined legal relationship but purely a historical, cultural dispute.
Therefore what had taken place was not an arbitration but something similar such
as an expert determination. While there were financial implications of the decisions
in terms of compensation rights for land deprivation, the panel itself could not have
decided on such allocation. The Court of Appeal relied on authority (Methanex
Motunui Ltd v. Spellman [2004] 1 NZLR 95 (HC)) to the effect that while to avoid
redundancy of the words in the Model Law a “defined legal relationship” could not
be a merely historic, cultural, academic or social one, the expression should be given
a particularly broad meaning and was able to encompass any dispute as long as the
arbitration agreement was not contrary to public policy or incapable of determina-
tion by arbitration. The Court of Appeal added that the lack of authority worldwide
as to the meaning of the words “defined legal relationship” implied that a permissive
interpretation was warranted and noted that an arbitration needed not determine all
issues between the parties. The court also noted that the arbitration had initiated a
process that was determinative of the wider fiscal issue.
It is possible for a series of contracts to be read as a composite whole, so that an
arbitration clause in any one of them is to be treated as applicable to disputes arising
under all of the contracts.31 Such a construction may also be appropriate where
there are different parties to the various contracts, so that all of the relationships are
governed by the arbitration clause.32
29 Government of Gibraltar v. Kenney [1956] 2 QB 410; Tommy CP Sze & Co v. Li & Fung (Trading)
Ltd & Ors [2003] 1 HKC 418; O’Connor v. Leaw Pty [1997] 42 NSWLR 285; Vasp Group Pty Ltd v.
Service Stream Ltd [2008] NSWSC 1182.
30 Woolf v. Collis Removal Service [1948] 1 KB 11; Almare Societa di Navigazione SpA v. Derby Co, The
Almare Prima [1989] 2 Lloyd’s Rep 376; Aggeliki Charis Compania Maritima v. Pagnan SpA, The Angelic
Grace [1994] 1 Lloyd’s Rep 168; Fahem Co v. Mareb Yemen Insurance Co [1997] 2 Lloyd’s Rep 738;
Asghar & Co v. The Legal Services Commission and the Law Society [2004] EWHC 1803 (QB). Whether an
arbitration clause does extend to a claim in tort will depend upon its proper construction: Chimimport plc v.
G D’Alesio SAS, The Paola D’Alesio [1994] 2 Lloyd’s Rep 366; Domansa v. Derin Shipping and Trading Co,
The Sleatral [2001] 1 Lloyd’s Rep 362; National Insurance and Guarantee Corporation Ltd v. M Young Legal
Services Ltd [2005] 2 Lloyd’s Rep 46; Steamship Mutual Underwriting Association (Bermuda) Ltd v. Sulpicio
Lines Inc [2008] EWHC 914 (Comm); CMA CGM SA v. Hyundai Mipo Dockyard Co Ltd [2008] EWHC
2791 (Comm); Xu Yi Hong v. Chen Ming Han [2006] 4 HKC 633; Hi-Fert Pty Ltd v. Kiukiang Maritime
Carriers Inc (1998) 159 ALR 142; BTR Engineering (Aust) v. Dana Corp [2000] VSC 2045.
31 Emmott v. Michael Wilson & Partners Ltd (No 2) [2009] EWHC 1 (Comm).
32 International Research Corporation plc v. Lufthansa Systems Asia Pacific Pte Ltd [2012] SGHC 226;
16
Agreement in writing
Section 2A(3), following art.7(2) of the Model Law, goes on to require the agree-
ment to be in writing. There is no longer any requirement for a signature.33 The
concept of writing is expanded in a number of respects by the following subsections.
First, under s. 2A(4) there is an agreement 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. This provision deals with the situation where
there have been pre-existing oral or written negotiations which together can be
taken as forming a single arbitration agreement.34 The provision is satisfied if one
party to the agreement unilaterally records it in writing, whether or not it is signed
or confirmed by all the parties involved.35As regards joinder of documents, s. 2A(4)
is effectively a clarification of earlier decisions,36 and the real extension relates to
oral discussions which are subsequently recorded in that the pre-existing law did not
recognise purely oral agreements even though subsequently evidenced by writing.37
It remains the case that a purely oral agreement is outside the IAA.38
Secondly, by s. 2A(5) an electronic communication is to be treated as writing
as long as its content is accessible for future reference. The elements of electronic
communication are defined by s. 2A(10).
Thirdly, by s. 2A(6), the assertion of the existence of an arbitration agreement in
a pleading, statement of case or any other document in circumstances in which the
assertion calls for a reply and the assertion is not denied, is deemed to be an effective
arbitration agreement as between the parties to the proceedings. This confirms the
position under the now repealed version of s. 2 of the IAA.39
Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No 2) [2007] 1 Lloyd’s
Rep 193.
33 For the earlier position, see Vix Marketing Pte Ltd v. Technogym SpA [2008] 4 SLR 256, deciding
that signature on every page is not necessary.
34 See Midgulf International Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66.
35 AQZ v. ARA [2015] SGHC 49.
36 Zambia Steel & Building Supplies Ltd v. James Clark & Eaton Ltd [1986] 2 Lloyd’s Rep 225;
Comandate Marine Corporation v. Pan Australia Shipping Pty Ltd (2006) 238 ALR 457; Jiangxi Provincial
Metal & Mineral Import and Export Corp v. Sulanser Co Ltd [1995] 2 HKC 373; Welex AG v. Rosa
Maritime Ltd [2003] 2 Lloyd’s Rep 509. But even with such joinder there may be insufficient evidence
of an arbitration agreement: Cigna Life Insurance Co of Europe NV v. Intercaser SA de Seguros y Reaseguros
[2001] Lloyd’s Rep IR 821; Stanstead Shipping Co Ltd v. Shenzen Nantian Oil Mills Co Ltd, 2000,
unreported; American International Speciality Lines Insurance Co v. Abbott Laboratories [2004] Lloyd’s Rep
IR 815; Guangdong New Technology Import & Export Corporation Jiangmen Branch v. Chiu Shing [1991]
2 HKC 459.
37 Thus where there was already an oral contract and agreement by conduct in place, a “letter
of award” incorporating by reference an unenclosed document containing an arbitration clause and
unsigned by the recipient did not constitute a written agreement to arbitrate, and silence did not signify
acquiescence; United Eng Contractors Pte Ltd v. L & M Concrete Specialists Pte Ltd [2000] 2 SLR 196. See
also L & M Concrete Specialists v. United Eng Contractors [2000] 4 SLR 441, a separate dispute between
the same parties, where a letter of award was signed on each page and referred to standard conditions
which had not been supplied. It was held that an arbitration clause in those conditions was not binding
for want of sufficient notice. A purely oral agreement was held not to suffice, even if it had been embod-
ied in a judgment: Lum Chang Building Contractors Pte Ltd v. Anderson Land Pte Ltd [2000] 2 SLR 261.
38 H Smal Ltd v. Goldroyce Garment Ltd [1994] 2 HKC 526 is an illustration of the situation in which
there was no written evidence of an agreement to go to arbitration.
39 These words are not confined to formal pleadings: Gay Constructions Ltd Pty Ltd v. Caledonian
Techmore (Building) Ltd [1994] HKC 562.
17
Incorporation
Fourthly, under s. 2A(7), a reference in a contract to any document containing an
arbitration clause shall constitute an arbitration agreement in writing if the refer-
ence is such as to make that clause part of the contract. A specific illustration of
this point, in relation to bills of lading, is discussed below. The wording of s. 2A(7)
implies that a mere reference in the contract to an arbitration clause in another
document is sufficient to incorporate the clause.40 However, the English courts
have held under AA 1996 (Eng), s. 6(2) that the common law is unchanged.41 The
common law position is that: (a) a reference in a contract to an arbitration clause in
another document, e.g., rules of an association,42 may have incorporating effect;43
but (b) where there is a contract between X and Y containing an arbitration clause,
and the terms of that contract are incorporated en bloc into a contract between Y
and Z, the incorporating words do not extend to the arbitration clause unless there
is an express reference to it44 or some other agreement that it should apply.45 A mere
statement that the two contracts are “back to back” will not suffice.46 The cases are
largely derived from bills of lading, construction and reinsurance disputes.47 On this
40 In a Malaysian case, in the context of a provision identical to s. 2A(7), the court held that the
words “All other terms, conditions and rules not in contradiction with the above, as per [respondent’s]
terms and conditions” were effective in incorporating into the agreement between the parties the arbitra-
tion clause contained in the standard terms and conditions of the respondent: AJWA for Food Industries
Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd (2013) 5 MLJ 625.
41 Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda) Ltd, The Athena
(No. 2) [2007] 1 Lloyd’s Rep 280; Trygg Hansa Insurance Co Ltd v. Equitas [1998] 2 Lloyd’s Rep 439l
Lisnave Estaleiros Navias SA v. Chemikalien Seetransport GmbH [2013] EWHC 338 (Comm). A differ-
ent view has been adopted in Hong Kong: Astel-Peininger Joint Venture v. Argos Engineering & Heavy
Industries Co Ltd [1994] 3 HKC 328; PT Wearwell International v. VF Asia Ltd [1994] 3 HKC 344;
Hercules Data Comm Co Ltd v. Koywa Communications Ltd [2001] 2 HKC 75; Ching v. Fu Shing Rush
Door Joint Venture Co Ltd [2003] HKCU 1084. Compare An Feng International Trading Ltd v. Honour
Link International [1999] 3 HKC 116 where there was found to be no intention to incorporate.
42 Ng Kin Kenneth v. HK Football Association Ltd [1994] 1 HKC 734.
43 Roche Products v. Freeman Process Systems (1996) 80 BLR 102; Secretary of State for Foreign and
Commonwealth Affairs v. Percy Thomas (1998) 65 Con LR 11; Axa Re v. Ace Global Markets Ltd [2006]
Lloyd’s Rep IR 683; Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda)
Ltd, The Athena (No. 2) [2007] 1 Lloyd’s Rep 280; Heifer International Inc v. Christiansen [2007] EWHC
3015 (TCC); Kallang Shipping SA Panama v. Axa Assurance Senegal [2008] EWHC 2761 (Comm);
Sotrade Denizcilik Sanayi ve Tikaret AS v. Amadou Lo, The Duden [2008] EWHC 2762 (Comm); Nanhai
West Shipping Co v. Hong Kong United Dockyards Ltd [1996] 2 HKC 639; ICC Chemical Corporation v.
Zhuhai Minmetals International Non-Ferrous Metals Trading Co [1996] 2 HKC 64; Ho Fat Sing v. Hop Tai
Construction Co Ltd [2008] HKCU 2022; Bina Puri Sdn Bhd v. EP Engineering Sdn Bhd [2008] 3 MLJ
564. Insofar as Ben Barrett v. Henry Boot [1995] CILL 1026 suggests a stricter approach, it is probably
no longer good authority.
44 Star-Trans Far East Pte Ltd v. Norske-Tech Ltd [1996] 2 SLR 409; Concordia Agritrading Pte Ltd v.
Cornelder Hoogewerff (Singapore) Pte Ltd [2001] 1 SLR 222; Hi-Fert Pty Ltd v. United Shipping Adriatic
Inc (1998) 165 ALR 265; Construction Diving Services (Queensland) Pty Ltd v. Van Oord ACZ BV [1998]
VSC 2936.
45 Koninklijke Bunge NV v. Sinitrada Co Ltd [1972–1974] 1 SLR 453. A course of dealing may
also give rise to incorporation: R1 International Pte Ltd v. Lonstroff AG [2014] SGHC 69 (rejected on
the facts); Capes (Hatherden) Ltd v. Western Arable Services Ltd [2009] EWHC 3065 (Comm); Habas
Sinai VE Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL [2010] EWHC 29 (Comm); AJWA for Food
Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625.
46 Teambo Engineering Ltd v. Hong Kong Construction (Holdings) Ltd [2005] HKEC 1241; WH-SGC
JV Ltd v. Hong Kong Construction (Holdings) Ltd [2006] HKEC 1492.
47 The leading bills of lading authorities are: Thomas Co v. Portsea Steamship Co Ltd, The Portsmouth
18
principle, the wording of the arbitration clause itself is relevant only in a negative
sense: an arbitration clause which contemplates that it may be incorporated from
contract A into contract B will not operate to effect incorporation into contract B as
this is a matter for contract B itself48 although if contract B does purport to incorpo-
rate the arbitration clause then the wording of the arbitration clause may prevent its
incorporation where it makes no sense in contract B unless it can be “manipulated”
to be given effect. The narrow English approach to incorporation was rejected
in International Research Corporation Plc v. Lufthansa Systems Asia Pacific Pte,49 in
favour of an interpretation of the contract based upon its commercial purpose and
context, Chan Seng Onn J recognising that his analysis potentially undermined the
strict rule that express words are required for the incorporation of an arbitration
clause. The court noted that the strict rule lost force if the third party contracted
with knowledge of the arbitration agreement.
In addition, it has been held by a Malaysian court faced with construction of a
national provision implementing art. 7(6) of Model Law, and thus virtually identical
to IAA, s. 2A(7), that the separate document containing the arbitration clause does
not have to be attached to the purported agreement or otherwise published. It is
sufficient that the incorporation is by notice.50
Bills of lading cases

As far as bills of lading are concerned, IAA, s. 2A(8), repeating the repealed words
of s. 2, states that a reference in a bill of lading to a charterparty or other document
containing an arbitration clause shall constitute an arbitration agreement in writing
if the reference is such as to make that clause part of the bill of lading. As seen
above, the English cases have adopted a narrow approach to incorporation in bills
of lading cases. That approach does not apply in Singapore following International
Research Corporation Plc v. Lufthansa Systems Asia Pacific Pte.51 It may be noted that
[1912] AC 1; The Elizabeth H [1962] 1 Lloyd’s Rep 172; The Merak [1964] 2 Lloyd’s Rep 527; The
Annefield [1971] 1 All ER 394; The Rena K [1979] 1 All ER 397; The Varenna [1983] 2 Lloyd’s Rep 592;
The Federal Bulker [1989] 1 Lloyd’s Rep 103; The Nerano [1994] 2 Lloyd’s Rep 50; The Heidberg [1994]
2 Lloyd’s Rep 287; The Delos [2001] 1 Lloyd’s Rep 703; Michael S Evryalos Maritime SA v. China Pacific
Insurance Co Ltd, The MV Michael S [2001] All ER (D) 325 (Dec). The leading construction decisions
are: Modern Buildings Wales Ltd v. Limmer and Trinidad Co Ltd [1975] 2 All ER 549; Aughton v. M F Kent
Services Ltd [1992] ADRLJ 83; Giffen v. Drake and Scull (1993) 37 Con LR 84; Laxair Ltd v. Edward W
Taylor (1993) 65 Build LR 87; Alfred McAlpine Construction Ltd v. RMG Electrical Ltd [1998] ADRLJ
53; Jardine Birshe Ltd v. Cathedral Works Organisation (Chichester) Ltd [1996] ADRLN 14; Behmer and
Wright Pty Ltd v. Tom Tsiros Constructions Pty Ltd [1996] VSC 7560. The reinsurance authorities are: Pine
Top Insurance Co Ltd v. Unione Italiana Anglo-Saxon Reinsurance Co Ltd [1987] 1 Lloyd’s Rep 476; Excess
Insurance Co v. Mander [1995] LRLR 583; Trygg Hansa Insurance Co Ltd v. Equitas [1998] 2 Lloyd’s
Rep 439. See also: American Design Associates v. Donald Insall Associates, QBD (TCC) November 2000,
unreported, HHJ Bowsher QC; AIG Europe SA v. QBE Insurance International Ltd [2001] 2 Lloyd’s Rep
268; American International Speciality Lines Insurance Co v. Abbott Laboratories [2004] Lloyd’s Rep IR 815.
48 See Siboti K/S v. BP France SA [2003] 2 Lloyd’s Rep 364, distinguishing The Merak [1964] 2
Lloyd’s Rep 527 and applying The Federal Bulker [1989] 1 Lloyd’s Rep 103 and The Varenna [1983] 2
Lloyd’s Rep 692.
49 [2012] SGHC 226.
50 AJWA for Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd (2013) 5 MLJ 625.
51 [2012] SGHC 226. See also The Titan Unity [2013] SGHCR 28, where there was express
reference to the charterparty arbitration clause in the bill of lading.
19
IAA, s. 2A(8) specifically provides that the reference must be such as to make the
arbitration clause a part of the bill of lading, a provision originally introduced to
relax the rules on incorporation in shipping cases, to meet the needs of the shipping
community.52
Where specific words of incorporation have been used in a bill of lading to incor-
porate the arbitration clause in a charterparty, incorporation may be effective not-
withstanding that there is a typographical error (the wrong date) in the reference to
the charterparty.53
Variations and settlements

Where the parties have entered into a contract containing an arbitration clause,
and that contract has been varied or replaced by another which does not contain
an arbitration clause, it is a question of construction as to whether the latter is itself
subject to arbitration: if the latter is entirely distinct, e.g., because it is a settlement
of disputes arising under the earlier contract, then there is probably no basis for the
extension of the arbitration clause. However, all turns on the proper construction
of the arbitration clause and the settlement,54 and if proceedings are brought on the
settlement agreement then it is generally appropriate for the court to stay its pro-
ceedings so that the scope of the arbitration clause can be determined by the arbitra-
tors under the Kompetenz-Kompetenz principle.55 A party may also be estopped from
denying the existence of an arbitration agreement if he has represented that arbitra-
tion is to take place on particular terms and that representation has been relied upon
by the other.56 It is not clear whether variations must be in writing, and it would
seem that an agreement to terminate an arbitration clause need not be in writing.
Conflicting clauses
It is an unfortunate feature of contract drafting that contradictory clauses are not
infrequently found side by side. One illustration is the conjunction of an arbitration
clause accompanied by an exclusive or non-exclusive jurisdiction clause nominating
the courts of an identified jurisdiction. The general view is that it is necessary to give
effect to both clauses wherever possible, and that typically means that the arbitration
clause applies to the resolution of the dispute, and that the jurisdiction provisions
relate purely to curial issues57 unless it is clear that the parties intended different
52 LRRD No. 3/2001, para. 2.2.5.

53 Hyosung (HK) Ltd v. Owners of the Hilal I [2001] 1 SLR 387.
54 Coop International Pte Ltd v. Ebel SA [1998] 3 SLR 670; New Sound Industries Ltd v. Meliga (HK)
Ltd [2005] 1 HKC 41; Paquito Lima Buton v. Rainbow Joy Shipping Ltd [2008] 4 HKC 14; Sun United
Maritime Ltd v. Kasteli Marine Inc [2014] EWHC 1476 (Comm); Monde Petroleum SA v. Westernzagros
Ltd [2015] EWHC 67 (Comm). Contrast: Emmott v. Michael Wilson & Partners Ltd [2009] EWHC 1
(Comm), where disputes arising out of an agreement made in 2005 and modifying an agreement made
in 2001 were held to fall within the arbitration clause in the earlier agreement; Dawes v. Treasure and Sons
Ltd [2010] EWHC 3218 (TCC); Interserve Industrial Services Ltd v. ZRE Katowice [2012] EWHC 3205.
55 Doshion Ltd v. Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46.
56 Yokogawa Engineering Asia Pte Ltd v. Transtel Engineering Pte Ltd [2009] SGHC 1.
57 Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd [2009] SGHC 13; Paul Smith Ltd v. H & S
International Holding Inc [1991] 2 Lloyd’s Rep 127; Shell International Petroleum Co Ltd v. Coral Oil Co
20
58
issues to be resolved in different ways. Similarly, where there is an arbitration
clause in conjunction with a service of suit clause under which the insurers agree to
submit to the jurisdiction of any court of competent jurisdiction, the service of suit
clause is to be regarded as confined to providing a forum for enforcement which
cannot be denied by the defendant.59 It is also possible to regard the two clauses as
providing alternative dispute resolution mechanisms, although if one party opts for
arbitration then his decision is binding on the other.60
Arbitration and other dispute resolution mechanisms

Not every agreement which provides for dispute resolution by a third party amounts
to arbitration, although tiered clauses which provide for other dispute resolution
mechanisms prior to arbitration are nevertheless arbitration clauses.61 A distinction
has to be drawn between arbitration and expert determination (requiring deter-
mination of a particular factual matter, e.g., the quality of goods or the amount
of a loss),62 between arbitration and mediation63 (a process with a non-binding
outcome), between arbitration and voluntary non-binding discussion64 and between
arbitration and a judicial process.65 The rules of an association which lay down a
procedure for resolving internal disputes may or may not amount to arbitration,
Ltd [1999] 1 Lloyd’s Rep 72; Axa Re v. Ace Global Markets Ltd [2006] 1 Lloyd’s Rep 682; McConnell
Dowell Constructors (Aust) Pty Ltd v. National Grid Gas plc [2006] EWHC 2551 (TCC); Habbas Sinai Ve
Tibbi Gazlar Isthisal Endustri AS v. Sometal SARL [2010] EWHC 29 (Comm); SulAmerica Cia Nacional
De Seguros SA v. Enesa Engenharia SA [2012] 1 Lloyd’s Rep 671; Interserve Industrial Services Ltd v.
ZRE Katowice [2012] EWHC 3205; British-America Insurance (Kenya) v. Matalec SAL [2013] EWHC
3278 (Comm); Arta Properties Ltd v. Li Fu Yat Tso [1998] HKCU 721; PCCW Global Ltd v. Interactive
Communications Service Ltd [2007] 1 HKC 327. The contrary decisions in Indian Oil Corporation v.
Vanol Inc [1992] 2 Lloyd’s Rep 563, MH Alshaya Company WLL v. Retek Information Systems Inc [2001]
Masons CLR 99 and Beyond the Network Ltd v. Vectone Ltd [2005] HKEC 2075 are to be regarded with
some caution.
58 Econ Piling Pte Ltd v. NCC International AB [2007] SGHC 17; Astrata (Singapore) Pte Ltd v.
Portcullis Escrow Pte Ltd [2011] 3 SLR 386.
59 Ace Capital Ltd v. CMS Energy Corporation [2008] 1 Lloyd’s Rep 93. But contrast HIH Casualty
and General Insurance Ltd v. R J Wallace [2006] NSWSC 1150.
60 William Co v. Chu Kong Agency Co Ltd [1993] 2 HKC 377.
61 Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] AC 334; Guandong Overseas
Shenzhen Co Ltd v. Yao Shun Group International Ltd [1998] 1 HKC 451; Ho Fat Sing v. Hop Tai
Construction Co Ltd [2008] HKCU 2022; Aitken v. Ishimaru Ltd [2007] NZHC 1133; PMT Partners Pty
Ltd v. Australian National Parks and Wildlife Service (1995) 131 ALR 377.
62 For the distinction, see Mayers v. Dlugash [1994] 1 HKC 755. An expert determination can
be overturned only if the expert has exceeded his jurisdiction or if there is manifest error: Evergreat
Construction Co Pte Ltd v. Presscrete Engineering Pte Ltd [2006] 1 SLR 634; Geowin Construction Pte Ltd v.
Management Corporation Strata Title No. 1256 [2007] 1 SLR 1004 Jones v. Sherwood Services Ltd [1992] 1
WLR 277; Cott UK Ltd v. Barber [1997] 3 All ER 540; Veba Oil Supply and Trading GmbH v. Petrotrade
Inc [2002] 1 Lloyd’s Rep 295; Macro v. Thompson (No. 3) [2002] BCLC 36; Bernhard Schulte v. Nile
Holdings Ltd [2004] 2 Lloyd’s Rep 352; Halifax Life Ltd v. Equitable Life Assurance Society [2007] 1
Lloyd’s Rep 528; AIC Ltd v. ITS Testing Services (UK) Ltd, The Kriti Palm [2007] 1 Lloyd’s Rep 555;
Owen Pell Ltd v. Bindi (London) Ltd [2008] EWHC 1420 (TCC); Turville Heath Inc v. Chartis Insurance
UK Ltd [2012] EWHC 3019 (TCC).
63 Flight Training International v. International Fire Training Equipment Ltd [2004] 2 All ER (Comm)
568.
64 Kruppa v. Benedetti [2014] EWHC 1887 (Comm).
65 Al Midani v. Al Midani [1999] 1 Lloyd’s Rep 923.
21
depending upon the substance of the agreed procedure.66 A clause may be one
for arbitration even though that word is not used,67 and equally the description
of a clause as one providing for arbitration is not conclusive if the procedure does
not have the characteristics of arbitration.68 The primary characteristics of arbitra-
tion are: a tribunal selected by the parties and required to operate impartially; a
procedure whereby each party can state its case; an obligation on the tribunal to
resolve the dispute according to the law; and a procedure designed to determine the
substantive rights of the parties by means of a binding decision.69
Model Law to have force of law

3.—(1) Subject to this Act, the Model Law, with the exception of Chapter VIII
thereof, shall have the force of law in Singapore.
(2) In the Model Law—
“State” means Singapore and any country other than Singapore;
“this State” means Singapore.
NOTES
Relationship between Model Law and IAA
The Model Law is by this provision incorporated into the law of Singapore. Section 3
excludes Chapter VIII of the Model Law: that Part regulates the recognition and
enforcement of awards and is based on the New York Convention. In its place, s. 19
provides for summary enforcement of domestic awards, and summary enforcement
is extended to foreign awards by s. 19. Other provisions of the Model Law are nev-
ertheless expressly modified at points by the IAA, including: s. 5, modifying art. 1
on the scope of application; s. 9, modifying art. 10(2) on the number of arbitrators;
s. 9A modifying art. 11(3), consequential on the modification of the number of
arbitrators; and s. 10 modifying art. 16(3) on the right of appeal against a jurisdic-
tional ruling. The IAA also remedies certain of the deficiencies in the Model Law,
e.g., by authorising the courts to grant interim protective measures (now provided
for in the 2006 amendments to the Model Law). The parties may contract out of
either the IAA or the Model Law, or both (s. 15(1)), although an agreement to use
standard arbitration rules is not to amount to such an agreement (s. 15(2)). In the
latter situation the IAA and the Model Law (as the case may be) will continue to
apply to those parts of the arbitration which are not inconsistent with the adopted
arbitration rules (see the Notes to s. 15A). An important feature of the Model Law
is art. 5, which precludes court intervention unless there is express provision in the
Model Law to the contrary. As will be seen from the annotations to the Model Law,
judicial intervention is available only with regard to: the grant of interim measures
66 Walkinshaw v. Diniz [2000] 2 Lloyd’s Rep 165 (arbitration); Exeter City AFC v. Football Conference
Ltd [2004] 4 All ER 1179 (dispute resolution mechanism not amounting to arbitration); England and
Wales Cricket Board v. Kaneria [2013] EWHC 1074 (Comm).
67 David Wilson Homes Ltd v. Survey Services Ltd [2001] BLR 267.
68 AIG Europe SA v. QBE International Insurance Ltd [2001] 2 Lloyd’s Rep 268; Kruppa v. Benedetti
[2014] EWHC 1887 (Comm).
69 Walkinshaw v. Diniz [2000] 2 Lloyd’s Rep 165.
22
(art. 9); assistance with the appointment of the tribunal (art. 11); assistance with the
taking of evidence (art. 27); recourse against the award (art. 34); and recognition
and enforcement of an award (art. 35). However, s. 12A of the IAA does permit the
court to make various orders in respect of the arbitral procedure in addition to the
matters listed in the Model Law.
“Place” of the arbitration

It is important to draw a distinction between the juridical base of the arbitration,
i.e., the “seat”, and the physical location of the arbitration.70 It is only where the arbi-
tration has its juridical seat in Singapore that the IAA and the Model Law apply in full
(see Model Law, art. 1), although both instruments do extend the jurisdiction of the
Singaporean courts to particular aspects of arbitrations seated in another jurisdiction,
e.g., in the grant of a stay (IAA, s. 6; Model Law, art. 8), the grant of interlocutory
measures (IAA, s. 12A), the taking of evidence (IAA, s. 13), p rotective interim meas-
ures (Model Law, arts 17H–17J) and the taking of evidence from a person within the
territory of Singapore (Model Law, art. 27). Unfortunately, the IAA and the Model
Law—and indeed the AA—somewhat confusingly use the word “place” to refer to
both concepts, and it is necessary to exercise care to determine in which context the
word is being used, although there is a presumption that words denoting the physi-
cal location agreed by the parties, such as “place” and “venue”, are intended also to
provide the juridical seat.71 The “seat” of the arbitration is to be agreed between the
parties, failing which it is to be determined by the arbitrators.72 The arbitrators may
nevertheless, and subject to the agreement of the parties, agree to meet at any physi-
cal location which they consider appropriate for the hearing of witnesses or experts,
or for inspections.73 If the parties’ agreement is disregarded, the award is in theory
capable of being set aside under Model Law s. 34(2)(a)(iv) for non-compliance with
the agreed procedure, but it might be thought that the court would be reluctant to
act in the absence of proof of serious injustice as opposed to mere inconvenience.74
Interpretation of Model Law by use of extrinsic material

4.—(1) For the purposes of interpreting the Model Law, reference may be made
to the documents of—
(a) the United Nations Commission on International Trade Law; and
(b) its working group for the preparation of the Model Law, relating to the
Model Law.
70 See LRRD No. 3/2001, para. 2.1.2.

71 Union of India v. McDonnell [1993] 2 Lloyd’s Rep 48; ABB Lummus Global Ltd v. Keppel Fels Ltd
[1999] 2 Lloyd’s Rep 24; Shashoua v. Sharma [2009] 2 Lloyd’s Rep 376; Enercon GmbH v. Enercon
(India) Ltd [2012] 1 Lloyd’s Rep 519; U & M Mining Zambia Ltd v. Konkola [2013] 2 Lloyd’s Rep
218; Shagang South Asia (Hong Kong) Trading Co Ltd v. Daewoo Logistics [2015] EWHC 194 (Comm).
The sole authority reaching a different conclusion is Braes of Doune Wind Farm (Scotland) Ltd v. Alfred
McAlpine Business Services Ltd [2008] 1 Lloyd’s Rep 608.
72 Model Law, art. 20(1). See the Note to that provision.
73 Model Law, art. 20(2).
74 Tongyuan (USA) International Trading Group v. Uni-Clan Ltd, 2001, unreported.
23
(2) Subsection (1) shall not affect the application of section 9A of the Interpretation
Act (Cap. 1) for the purposes of interpreting this Act.
NOTES
The UNCITRAL website, www.uncitral.org, contains the relevant General
Assembly resolutions, travaux préparatoires and explanatory Notes on the Model
Law.
Application of Part II
5.—(1) This Part and the Model Law shall not apply to an arbitration which is
not an international arbitration unless the parties agree in writing that this Part or
the Model Law shall apply to that arbitration.
(2) Notwithstanding Article 1(3) of the Model Law, an arbitration is international
if—
(a) at least one of the parties to an arbitration agreement, at the time of the
conclusion of the agreement, has its place of business in any State other
than Singapore; or
(b) one of the following places is situated outside the State in which the parties
have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one country.
(3) For the purposes of subsection (2)—
(a) if a party has more than one place of business, the place of business shall be
that which has the closest relationship to the arbitration agreement;
(b) if a party does not have a place of business, a reference to his place of busi-
ness shall be construed as a reference to his habitual residence.
(4) Notwithstanding any provision to the contrary in the Arbitration Act (Cap. 10),
that Act shall not apply to any arbitration to which this Part applies.
NOTES
Section 5 of the IAA delimits the scope of the Act. If the Act is not applicable, then
the arbitration is governed by AA. The two Acts are by IAA, s. 5(4) rendered mutu-
ally exclusive.
The Model Law applies only to international commercial arbitration. Section 5
of the IAA, by contrast, extends the scope of the application of the Act and the
Model Law in two respects. First, the Act and the Model Law apply to arbitrations
which are not otherwise within their ambit but in respect of which the parties have
agreed in writing that the Act and/or Model Law should apply (IAA, s. 5(1)).75
75 Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229.
24
Such agreement must be express, and it cannot arise simply because the parties
have mistakenly initiated the wrong process.76 In John Holland Pty Ltd (Fka John
Holland Construction & Engineering Pty Ltd) v. Toyo Engineering Corp (Japan)77
the court expressed the view that the legislature could not have intended AA to
be substituted by IAA if the parties had chosen the Model Law without choosing
IAA. In Dermajaya Properties SDN BHD v. Premium Properties SDN BHD78 this
view was rejected, the court suggesting that if one or the other of Part II of IAA
or the Model Law had been explicitly chosen by the parties, both would apply. In
Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd79 it was
held that the choice of SIAC Arbitration Rules, which at the time provided that the
law applicable to the arbitration under the Rules was the IAA, operated as a choice
of the IAA and the Model Law even though the arbitration would otherwise have
been domestic. The SIAC Rules no longer contain this provision, and accordingly
the choice of SIAC Rules no longer renders an arbitration within the IAA unless
it is international on the other criteria in s. 6.80 Secondly, the arbitration need not
be commercial, although it must be international. The definition of “international”
is taken from Model Law, art. 1(3), but modified to refer expressly to Singapore.
The facts that the governing law is that of Singapore and the place of arbitration is
Singapore are irrelevant to the question whether an arbitration is international.81 An
arbitration is international in the following situations.82
(1) At least one of the parties has a place of business outside Singapore (IAA,
s. 5(2)(a)). This means that an arbitration is international if the agreement is
between a Singaporean party and a party with a place of business elsewhere, if the
agreement is between two parties with different places of business outside Singapore
and if the agreement is between two parties with the same place of business outside
Singapore: the last-mentioned possibility would not, but for IAA, s. 5(2)(a), attract
the Model Law, which requires the parties to have places of business in different
states (Model Law, art. 1(2)(a)). Under s. 5(3)(a), if a party has more than one
place of business, the place of business is that which has the closest relationship to
the arbitration agreement and it has to be outside Singapore. The question here is
not which place has the closest relationship to the agreement but rather which place
of business of the party carrying out the substantial performance has the closest rela-
tionship to the agreement, even if that party has a place of business in Singapore.83
(2) The place of the arbitration is situated outside the state in which the parties
have their places of business (IAA, s. 5(2)(b)(i)). The place of the arbitration is its
juridical seat, as recognised by s. 2 of the AA 1996 (Eng), rather than the place
in which the arbitration is physically held (see art. 20 of the Model Law). This
76 China Resources Metals & Minerals Co Ltd v. Ananda Non-Ferrous Metals Ltd [1994] 3 HKC 526.
77 [2001] 2 SLR 262.
78 [2002] 2 SLR 164.
79 [2008] SGHC 229. See also: NCC International AB v. Alliance Concrete Pte Ltd [2008] 2 SLR(R)
565; Navigator Investments Services Ltd v. Acclaim Insurance Brokers Pty [2009] SGCA 45; Car & Cars Pte
Ltd v. Volkswagen AG [2009] SGHC 233.
80 Hua Xin Innovation Incubator Pte Ltd v. IPCO International Ltd [2012] SGHC 273.
81 Mitsui Engineering & Shipbuilding Co Ltd v. PSA Corp Ltd [2003] 1 SLR 446.
82 See 1993 Review, para. 18.
83 Mitsui Engineering & Shipbuilding Co Ltd v. PSA Corp Ltd [2003] 1 SLR 446.
25
rovision is lifted from art. 1(3)(b)(i) of the Model Law, but has only limited effect.
p
If the place of the arbitration is not Singapore, then there is no basis upon which
the Singaporean courts can have overall jurisdiction over the arbitration,84 and this
is indeed stated by art. 1(1) of the Model Law, which restricts intervention to the
staying of Singaporean judicial proceedings (IAA, s. 6 and Model Law, art. 8), the
grant of interim measures (Model Law, art. 9, IAA, s. 12A) and the enforcement of
the award (IAA, s. 29). For the purposes of this provision, if a party has more than
one place of business then the relevant place of business is that which has its closest
relationship to the arbitration agreement (IAA, s. 5(4)(a), Model Law, art. 1(4)(a)),
which is not necessarily the place of business most closely connected to the substan-
tive contract. Alternatively, if there is no relevant place of business, the reference is
to his habitual residence (IAA, s. 5(4)(b), Model Law, art. 14(b)), a concept which
is not defined in either instrument.
(3) Any place where a substantial part of the obligations of the commercial rela-
tionship is to be performed, or the place with which the subject matter is most
closely connected, is other than the state in which the parties have their place of
business (IAA, s. 5(2)(b)(ii), taken from Model Law, art. 1(3)(b)(ii)). Accordingly,
a dispute between two Singaporean parties relating to a foreign matter is within
the legislation. There is no definition of “close connection” for this purpose. It
has been held, in the case of a FOB contract, that each of the various contractual
obligations to be performed by the parties had to be examined in detail and if such
an examination indicated that the place where a substantial part of the obligations
of the commercial relationship between the parties, such as delivery of the cargo,
was to be performed outside Singapore, or the place with which the subject matter
of the dispute was most closely connected was outside Singapore, the provision was
satisfied and IAA applied.85
(4) The parties have expressly agreed that the subject matter of the arbitration
agreement relates to more than one country (IAA, s. 5(2)(c), taken from Model
Law, art. 1(3)(c)).
Enforcement of international arbitration agreement

6.—(1) Notwithstanding Article 8 of the Model Law, where any party to an
arbitration agreement to which this Act applies institutes any proceedings in any
court against any other party to the agreement in respect of any matter which is the
subject of the agreement, any party to the agreement may, at any time after appear-
ance 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.
(2) The court to which an application has been made in accordance with sub-
section (1) 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
84 See Coppee-Lavalin SA/NV v. Ken Ren Chemicals and Fertilizers Ltd [1994] 2 Lloyd’s Rep 109.
85 Vanol Far East Marketing Pte Ltd v. Hin Leong Trading (Pte) Ltd [1997] 3 SLR 484. See also Fung
Sang Trading Ltd v. Kai Sun Sea Products & Food Co Ltd [1991] 2 HKC 526.
26
satisfied that the arbitration agreement is null and void, inoperative or incapable of
being performed.
(3) Where a court makes an order under subsection (2), 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.
(4) Where no party to the proceedings has taken any further step in the proceed-
ings for a period of not less than 2 years after an order staying the proceedings has
been made, the court may, on its own motion, make an order discontinuing the
proceedings without prejudice to the right of any of the parties to apply for the
discontinued proceedings to be reinstated.
(5) For the purposes of this section and sections 7 and 11A—
(a) a reference to a party shall include a reference to any person claiming
through or under such party;
(b) “court” means the High Court, District Court, Magistrates’ Court or any
other court in which proceedings are instituted.
NOTES
Stay of judicial proceedings
The existence of an agreement to arbitrate does not prevent either party from com-
mencing an action. The common law rule is based on the principle that the parties
may not agree to oust the jurisdiction of the court.86 An arbitration clause is not
regarded as ousting the jurisdiction of the court even if it is in Scott v. Avery87 form,
which precludes any action by the claimant unless he has first obtained an arbitra-
tion award.88 The court can nevertheless give effect to the arbitration agreement by
granting a stay of the judicial proceedings, so no ouster of jurisdiction is involved.
This section provides for a mandatory stay of judicial proceedings which are
brought in respect of any matter89 which the parties have agreed to refer to arbitra-
tion.90 The obligation commences after the applicant has entered an “appearance”,
which has been held to mean that the right to apply for a stay commences when the
86 Australian Timber Products Pte Ltd v. Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd
[2005] 1 SLR 168.
87 (1856) 5 HL Cas 811.
88 Mantovani v. Carapelli SPA [1980] 1 Lloyd’s Rep 375; Tai Hing Cotton Mill Ltd v. Glencore Grain
Rotterdam BV [1996] 1 HKC 363; Borneo Samudera Sdn Bhd v. Siti Rahfizah bt Mihaldin [2008] 6 MLJ
817. In Tay Eng Chuan v. Ace Insurance Ltd [2008] 4 SLR 95 the agreement was construed as one which
did not require arbitration as a condition precedent to the commencement of judicial proceedings.
89 Which refers to the main issue, e.g., the sum allegedly owing, rather to than individual aspects of
the dispute: Recyclers of Australia Pty Ltd v. Hettinga Equipment Inc (2000) 175 ALR 725; ACD Tridon v.
Tridon Australia [2002] NSWSC 896; Ansett Australia Ltd v. Malaysian Airline System Bhd [2008] VSC
109. It is necessary to have regard to the substance of the dispute rather than the manner in which it has
been framed in claim: Lombard North Central plc v. GATX Corporation [2012] EWHC 1067 (Comm).
90 Contrast the position under AA, s. 6, where a stay is discretionary. The 1993 Review, para. 29,
rejected the idea that there should be an optional stay even in international cases: “The Committee felt
however that where foreign parties agree to arbitrate in Singapore, they should be assured that their
consent must not be construed as a submission to the jurisdiction of the Singapore courts. To allow one
party to insist on proceeding to the Singapore court for the purpose of determining the issue summarily
would be totally inconsistent with the agreement to arbitrate in Singapore.”
27
defendant responds when a substantive claim has already been crystallised, and not
to a pre-action application to the court for discovery,91 although a claim for discov-
ery under a contractual term is a substantive matter falling within the scope of the
arbitration clause and thus has to be stayed.92 Where an application for summary
judgment is brought, and is met with an application for a stay, the latter should be
determined first.93
Section 6 applies to any arbitration and not merely one whose place is in
Singapore (Model Law, art. 1(2)), although it does not apply to an application to
the Singapore courts to enforce a foreign judgment allegedly obtained in breach of
an arbitration clause.94
Section 6 extends to claims and counterclaims alike.95 Where the parties have
cross-claims arising out of disputes under a single contract, the various claims and
counterclaims will normally all be covered by the arbitration clause and can be
resolved in a single set of proceedings. There may, however, be circumstances in
which either the claim or the counterclaim, but not both, is subject to arbitration.
The approach adopted by the courts in England is that if the claim is to be
arbitrated, but the respondent has a counterclaim arising out of the same or a
closely related transaction (“transaction set-off”) but falling outside the scope of
the arbitration clause, the arbitrator nevertheless has jurisdiction to resolve the
counterclaim on the basis that it operates as a defence to the claim itself.96 By
contrast, if the counterclaim arises out of an entirely separate transaction (“inde-
pendent set-off”) the arbitrator has no jurisdiction to resolve the counterclaim
because it does not operate as a defence to the claim itself and indeed the award
can be enforced without reference to the counterclaim.97 It has been recognised
in Singapore that set-off taking effect as a defence should be considered by the
arbitrators.98
Section 6 is negative and merely stays judicial proceedings.99 If the conditions for
a stay are satisfied, then the dispute can be referred to arbitration by the court under
91 Navigator Investments Services Ltd v. Acclaim Insurance Brokers Pty [2009] SGCA 45. See also
Nearmap Ltd v. Spookfish Pty Ltd [2014] NSWSC 1790.
92 Equinox Offshore Accommodation Ltd v. Richshore Marine Supplies Pte Ltd [2010] SGHC 122.
93 Lian Teck Construction Pte Ltd v. Woh Hup (Pte) Ltd [2006] 4 SLR 1; Body Corporate 344862 v.
E-Gas Ltd [2008] NZHC 1490.
94 Giant Light Metal Technology (Kunshan) Co Ltd v. Aksa Far East Pte Ltd [2012] SGHC 257.
95 Model Law, art. 2(f). See also: Prekons Insaat Sanayi AS v. Rowlands Castle Contracting Group
[2007] 1 Lloyd’s Rep 98; Delta Reclamation Ltd v. Premier Waste Management Ltd [2008] EWHC B16
(Comm); Emmott v. Michael Wilson & Partners Ltd [2009] EWHC 1 (Comm).
96 Modern Engineering (Bristol) Ltd v. Gilbert-Ash [1974] AC 689; Ronly Holdings v. JSC Zestafoni
G Nikoladze Ferroalloy Plant [2004] 2 Lloyd’s Rep 335; Benford Ltd v. Lopecan SL [2004] 2 Lloyd’s
Rep 618; Norscot Rig Management PVT Ltd v. Essar Oilfields Services Ltd [2010] EWHC 195 (Comm);
Guidance Investments Ltd v. Guidance Hotel Investment Co BSC [2013] EWHC 3413 (Comm).
97 Glencore Grain Ltd v. Agros Trading Ltd [1999] 2 All ER (Comm) 288; Aectra Refining and
Marketing Inc v. Exmare NV, The New Vanguard [1995] 1 Lloyd’s Rep 191; Ronly Holdings v. JSC
Zestafoni G Nikoladze Ferroalloy Plant [2004] 2 Lloyd’s Rep 335; Metal Distributors (UK) Ltd v. ZCCM
Investment Holdings plc [2005] EWHC 156 (Comm); Econet Satellite Services v. Vee Networks [2006] 2
Lloyd’s Rep 243; Pollard Construction Co Ltd v. Yung Yat Fan [1999] 3 HKC 109.
98 Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229;
VV v. VW [2008] 2 SLR 929.
99 Go Go Delicacy Pte Ltd v. Carona Holdings Pte Ltd [2008] 1 SLR 161; Jiang Haiying v. Tan Lim
Hui [2009] SGHC 42.
28
100
art. 8 of the Model Law. Normally the proceedings in respect of which the stay is
sought will have been brought in breach of the terms of the arbitration clause,101 but
such a breach is not necessary. The right to seek a stay is equally available where the
arbitration clause confers upon one party (or, for that matter, both parties) the right to
refer any dispute to arbitration and he has chosen to exercise that option,102 in which
case he may restrain pre-emptive judicial proceedings brought—at the time perfectly
legitimately—by the other party.103 A stay is not to be granted if the arbitration clause
is optional and it has not been invoked by the defendant to the proceedings.104
Who decides jurisdictional issues?

There remains a question as to exactly what the court is required to do when there is
an application for a stay. Four separate issues arise: (a) is there an arbitration clause;
(b) is there a dispute; (c) does the arbitration clause apply to the dispute; and (d) is
the arbitration clause null and void, inoperable or incapable of being performed.
The court has no jurisdiction to stay unless there is a valid arbitration clause appli-
cable to the dispute and there is nothing to prevent the clause from operating.
Turning first to (a), the existence of the arbitration agreement, the issue here is
generally whether there is consensus between the parties, particular instances being
whether the arbitration clause has been superseded by subsequent arrangements,105
whether a third person is a party to the arbitration arrangements106 and which of
two conflicting arbitration clauses is to be given priority.107 These matters fall to be
determined by the law applicable to the arbitration clause,108 or the putative proper
law if the very existence of the arbitration clause is in question. It was decided in
The Titan Unity109 that the correct approach in Singapore is to ask whether there is
a prima facie case that there is a valid arbitration clause. That is so in order to give
100 Scenic Circle (Rotorua) Ltd v. Princes Gate Hotels Ltd [2006] NZHC 1629.
101 As put by Lord Mance in Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk
Hydropower Plant LLP [2013] UKSC 35, “[a]n agreement to arbitrate disputes has positive and nega-
tive aspects. A party seeking relief within the scope of the arbitration agreement undertakes to do so in
arbitration in whatever forum is prescribed. The (often silent) concomitant is that neither party will seek
such relief in any other forum”. See also Ever Judger Holding Co Ltd v. Kroman Celik Sanayii Anonim
Sirketi [2015] HKCFI 602.
102 Whiting v. Halverson [2003] EWCA Civ 403.
103 NB Three Shipping Ltd v. Harebell Shipping Ltd [2004] EWHC 2001 (Comm); Ashgar v. Legal
Services Commission [2004] EWHC 1803 (Ch); Manningham City Council v. Dura (Australia) Constructions
Pty Ltd [1999] 3 VR 13.
104 PMT Partners Pty Ltd v. Australian National Parks and Wildlife Service (1995) 184 CLR 301;
Stevens Construction Pty Ltd v. Zorko (2002) 81 SASR 316; Equuscorp Pty Ltd v. Wilmouth Field Warne
[2003] VSC 6284.
105 Transocean Offshore International Ventures Ltd v. Burgundy Global Exploration Corp [2010] SGHC
31.
106 International Research Corporation Plc v. Lufthansa Systems Asia Pacific Pte [2012] SGHC 226; The
Titan Unity (No 2) [2014] SGHCR 4.
107 Swiss Bank Corp v. Novorissiysk Shipping Co, The Petr Shmidt [1995] 1 Lloyd’s Rep 202; ASES
Havacilic Seris ve Destek Hizmetleri AS v. Delkor UK Ltd [2012] EWHC 3518 (Comm); Transgrain
Shipping BV v. Deiulemar Shipping SpA [2014] EWHC 4202 (Comm).
108 Piallo GmbH v. Yafriro International Pte Ltd [2013] SGHC 260; Cassa di Risparmio di Parma e
Piacenza SpA v Rals International Pte Ltd [2015] SGHC 264.
109 [2013] SGHCR 28, applied in The Titan Unity (No 2) [2014] SGHCR 4 and FirstLink Investment
Corporation Ltd v. GT Payment Pte Ltd [2014] SGHCR 12.
29
due deference to the doctrine of Kompetenz-Kompetenz, and in recognition of the

fact that ultimately the matter can be determined by a court on a curial challenge or
in enforcement proceedings. Thus:110
the court only needs to be satisfied that an arbitration agreement exists on a prima facie
level for the purposes of establishing the first precondition under section 6(1). This first
precondition will not be met only in the clearest and most obvious of cases. This is not to
say that the court should accept prima facie evidence of an arbitration agreement when it
is clearly inconsistent with undisputed documentary and contemporaneous evidence, nor
should the court accept uncritically every fact placed on the affidavits in support of the stay
application. Nevertheless . . . there is no need for the court to descend into a protracted
examination of the evidence to make a finding on the merits that an arbitration agreement
exists on a balance of probabilities at the stay stage.
This approach is adopted in other Model Law jurisdictions111 and is at variance

with the English analysis that the applicant for a stay has to show on the balance of
probabilities that there is a binding and effective arbitration clause112 and that an
English court—faced with an argument as to existence or scope—will decide for
itself whether there is a valid and relevant arbitration clause in force and will stay
the proceedings only if reasonably certain that the clause exists. The English courts
have indeed ruled that, if there is no clear answer, the matter can be directed for trial
rather than left to the arbitrators to determine for themselves,113 given that it is likely
to come back to the court on appeal at a later date.
As far as (b) is concerned, the existing of the dispute, it will be seen below that
110 [2013] SGHCR 28, para. 34. See also: Sim Chay Koon v. NTUC Income Insurance Co-operative
Ltd [2015] SGCA 46; Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57. In Malini Ventura v.
Knight Capital Pte Ltd [2015] SGHC 225 it was held by Judith Prakash J that a court, faced with an applica-
tion for a declaration that there was no arbitration agreement, countered by an application for a stay, should
adopt the usual approach of deciding whether there was a prima facie case that the parties had agreed to go
to arbitration. That was found to be the position on the facts and the proceedings were stayed.
111 Fung Sang Trading Ltd v. Kai Sun Sea Products & Food Co Ltd [1991] 2 HKC 526; Pacific
International Lines v. Tsinlien Metals & Minerals [1993] 2 HKLR 249; Star (Universal) Co Ltd v. Private
Co “Triple V” Inc [1995] 3 HKC 129; ICC Chemical v. Zhuhai Minerals [1996] 2 HKC 64; Zhong You
(China) Design Co v. Fuyuan Landmark (Shenzhen) Ltd [1996] 2 HKC 342; Orienmet Minerals Co Ltd v.
Winner Desire Ltd [1997] 4 HKC 377; Paladin Agricultural Ltd v. Excelsior Hotel (Hong Kong) Ltd [2001]
2 HKC 215; Cathay Pacific Airways Ltd v. Hong Kong Air Cargo Terminals Ltd [2002] 2 HKC 193;
Pacific Crown Engineering Ltd v. Hyundai Engineering & Construction Co Ltd [2003] 3 HKC 659; Kenon
Engineering Ltd v. Nippon Kokan Koji Kabushiki Kaisha [2004] 512 HKU 1; New Sound Industries v.
Meliga (HK) Ltd [2005] 1 HKC 41; Incorporated Owners of Sincere House v. Sincere Co Ltd [2005] 2 HKC
424; Xu Yi Hong v. Chen Ming Han [2006] 4 HKC 633; New Sound Industries Ltd v. Meliga (HK) Ltd
[2005] 1 HKC 41; Hong v. Hian [2006] HKCU 1663; PCCW Global Ltd v. Interactive Communications
Service Ltd [2007] 1 HKC 327; Winbond Electronics (HK) Ltd v. Achieva Components China Ltd [2007]
HKEC 1617. Tommy CP Sze & Co v. Li & Fung (Trading) Ltd & Ors [2003] 1 HKC 418, which holds
that the matter is one for the court—the view taken in England—is no longer good law in Hong Kong on
this point; Abigroup Contractors Ltd v. Transfield Pty Ltd [1998] VSC 103; Comandate Marine Corp v. Pan
Australia Shipping Pty Ltd [2006] FCAFC 192; Clough Engineering v. Oil and Natural Gas Corporation Ltd
(2008) 249 ALR 458.
112 Albon v. Naza Motor Trading Sdn Bhd [2007] 2 Lloyd’s Rep 1; Joint Stock Company
“Aeroflot-Russian Airlines” v. Berezovsky [2013] EWCA Civ 784; Assaubayev v. Michael Wilson & Partners
Ltd [2014] EWHC 821 (QB). The difference in the two approaches was emphasised in Malini Ventura
v. Knight Capital Pte Ltd [2015] SGHC 225.
113 This approach was first set out in Birse Construction Ltd v. St David Ltd [1999] BLR 194 per HHJ
Humphrey Lloyd QC and then by the Court of Appeal in Al-Naimi v. Islamic Press Agency Inc [2000]
1 Lloyd’s Rep 522. It has been applied on numerous occasions. See, e.g., Hashwani v. OMV Maurice
Energy Ltd [2015] EWHC 1811 (Comm).
30
the courts have taken the view that in the absence of any reference to a dispute in
IAA, s. 6, there is no jurisdiction to refuse a stay on the basis that no dispute exists.
It is, however, necessary to ascertain the nature of the dispute between the parties in
order to determine whether the arbitration clause applies to it.
As far as (c) is concerned, the scope of the arbitration clause,114 the matter in
dispute must fall within the scope of the clause. The “matter” here means the
main issue or essential dispute between the parties, and is not to be construed in
too broad or too narrow a fashion.115 The Court of Appeal in Tjong Very Sumito v.
Antig Investments Pte Ltd116 determined that it is only in the clearest of cases where
the court proceedings do not fall within the scope of the arbitration clause that the
court has no jurisdiction to grant a stay. It is important to note here the general
principle that arbitration clauses will be construed broadly to avoid fragmentation
of the dispute resolution process.117
Finally, on the question whether the arbitration agreement, assuming that it is
valid and applies to the dispute between the parties. The burden of proving that any
of the grounds in s. 6(2) has been made out is borne by the respondent to the judi-
cial proceedings, and the English courts have taken the view that the case must be
made out on the balance of probabilities if a stay is to be granted.118 The Singapore
standard appears to be whether there is a prima facie case.119
In England it has been held that a stay under points (a), (b) and (c) is not one
under statute but rather under the inherent jurisdiction of the court. That is because
the obligation to stay assumes that there is a valid arbitration clause extending to
the dispute, and only then does the section require a stay if that agreement is null
and void, inoperative or incapable of being performed. That distinction does not
appear to have been adopted in Singapore, although it has been recognised that the
court’s inherent power to stay may be exercised in exceptional cases where s. 6 is
inapplicable.120 One situation in which the court may stay its proceedings is where
the outcome of the judicial proceedings depends upon the outcome of a dispute
being arbitrated, e.g. where C has guaranteed A’s debt to B and an attempt is made
114 No distinction is drawn in English law between the existence of the arbitration clause and its
scope.
115 Silica Investors Ltd v. Tomolugen Holdings Ltd [2014] SGHC 101, applying Larsen Oil and Gas
Pte Ltd v Petroprod Ltd [2011] 3 SLR 414; PT Thiess Contractors Indonesia v PT Kaltim Prima Coal [2011]
EWHC 1842 (Comm); ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896; Dalimpex Ltd v
Janicki (2003) 228 DLR (4th) 179; Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57.
116 [2009] 4 SLR(R) 732. See also: Dalian Hualiang Enterprise Group Co Ltd v. Louis Dreyfus Asia Pte
Ltd [2005] 4 SLR 646; Piallo GmbH v. Yafriro International Pte Ltd [2013] SGHC 260; Oei Hong Leong v.
Goldman Sachs International [2014] SGHCR 2.
117 Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229;
Fiona Trust v. Privalov [2008] 1 Lloyd’s Rep 254. It was held by Belinda Ang J in Piallo GmbH v. Yafriro
International Pte Ltd [2014] 1 SLR 1028 that a claim brought under an autonomous negotiable instru-
ment fell within the arbitration clause. However, in Cassa di Risparmio di Parma e Piacenza SpA v. Rals
International Pte Ltd [2015] SGHC 264 Vinodh Coomaraswamy J refused to extend that principle to a
claim on a negotiable instrument brought by a third party assignee, but noted the inconsistency and give
permission to appeal.
118 Joint Stock Company “Aeroflot- Russian Airlines” v. Berezovsky [2013] EWCA Civ 784;
Assaubayev v. Michael Wilson & Partners Ltd [2014] EWHC 821 (QB).
119 Tjong Very Sumito v. Antig Investments Pte Ltd [2009] 4 SLR(R) 732.
120 Four Pillars Enterprise Co Ltd v. Beiersroft Akt [1999] 1 SLR(R) 382; Lanna Resources Public Co
Ltd v. Tan Beng Phiau Dick [2011] 1 SLR 543
31
by B to sue C on the guarantee before the liability of A to B has been determined

in arbitration.121
Existence of dispute
The list of situations in which a stay can be refused is exhaustive.122 This is particu-
larly significant because there is no mention of the absence of a “dispute” between
the parties in the listed grounds.123 In England, before the passing of AA 1996 (Eng)
it was thought to be possible, based on Hayter v. Nelson,124 for one party to assert
the absence of a dispute and to obtain a stay on that basis.125 However, Clarke J and
a majority of the Court of Appeal in Halki Shipping Corporation v. Sopex Oils Ltd126
held that Hayter had not survived the passing of the 1996 Act and that that a court
could not refuse to stay its proceedings—normally proceedings brought for summary
judgment—simply because the claimant argued that the defendant had no defence.
The position in both England and Singapore is that a stay must be ordered unless the
arbitration agreement is null and void, inoperative or incapable of being performed,
the question whether there is a valid dispute being redundant.127 The quality of the
defence is not, therefore, an issue which can be assessed by a court where there is
an arbitration clause and accordingly the court cannot give summary judgment even
though the outcome of the case is all but inevitable128 but must stay its proceedings
where the applicant for a stay can show prima facie that there is a matter to go to
arbitration so that the arbitrators can resolve the issue between the parties.129
121 Mitsui OSK Lines Ltd v. Samudera Shipping Line Ltd [2007] SGHC 41. There is much authority
on the question whether the guarantee is or is not conditional on B obtaining an award against A.
122 SCOR v. Eras International Ltd [1992] 1 Lloyd’s Rep 570.
123 Although contrast the Malaysian Arbitration Act 2005, s. 10(1)(b), which permits the court to
refuse a stay if “there is in fact no dispute between the parties with regard to the matters to be referred”:
see, for instance, Mersing Construction & Engineering Sdn Bhd v. Kejuruteraan Bintgai Kindenko Sdn Bhd
[2010] 1 LNS 793; Press Metal Sarawak Sdn Bhd v. Etiqa Takaful Berhad [2015] 4 CLJ 734.
124 [1990] 2 Lloyd’s Rep 265.
125 That remains the position in Hong Kong: Suzhou Quarn-SND Venue Capital Enterprise v. Great
East Packaging International Ltd [2013] 6 HKC 53.
126 [1998] 1 Lloyd’s Rep 49, affirmed [1998] 1 Lloyd’s Rep 465. See also Wealands v. CLC
Contractors Ltd [1999] 2 Lloyd’s Rep 739. The position is the same in Hong Kong (Getwick Engineers
Ltd v. Pilecon Engineering Ltd (2002) 1020 HKCU 1) and New Zealand (Baltimar Aps Ltd v. Nalder &
Biddle Ltd [1994] 3 NZLR 129).
127 The Dai Yun Shan [1992] 2 SLR 508; Coop International Pte Ltd v. Ebel SA [1998] 3 SLR 670;
Mancon (BVI) Investment Holding Co Ltd v. Heng Holdings SEA (Pte) Ltd [2000] 3 SLR 220; Dalian Hualiang
Enterprise Group Co Ltd v. Louis Dreyfus Asia Pte Ltd [2005] 4 SLR 646. See also Sembawang Engineers and
Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229; Cassa di Risparmio di Parma e Piacenza
SpA v. Rals International Pte Ltd [2015] SGHC 264. It was said in Dalian that PT Budi Semesta Satria v.
Concordia Agritrading Pte Ltd [1998] SGHC 127 is not good authority for the contary proposition.
128 “In my judgment in this context neither the word ‘disputes’ nor the word ‘differences’ is confined
to cases where it cannot then and there be determined whether one party or the other is in the right.
Two men have an argument over who won the University Boat Race in a particular year. In ordinary
language they have a dispute over whether it was Oxford or Cambridge. The fact that it can be easily and
immediately demonstrated beyond any doubt that the one is right and the other is wrong does not and
cannot mean that that dispute did not in fact exist. Because one man can be said to be indisputably right,
and the other indisputably wrong does not, in my view, entail that there was therefore never any dispute
between them”; The Dai Yun Shan [1992] 2 SLR 508, 511. See also: Guangdong Agriculture v. Conagra
International [1993] ADRLJ 100.
129 Batshita International (Pte) Ltd v. Lim Eng Hock Peter [1997] 1 SLR 241; Metallgesellschaft
32
However, if the parties are not actually in disagreement, there is nothing to
arbitrate. There is much authority on the meaning of “dispute” for this purpose.130
The general definition of dispute requires the making of a claim by one party and
its rejection by the other. Whether this has occurred in the course of lengthy corre-
spondence and negotiation between the parties is not always immediately obvious.
The making of a formal claim with a time limit for response is perhaps the simplest
method of requiring the other party to define his position, but even if this approach
is not used a failure by the other party to respond to a claim does not necessarily
deny the existence of a dispute131 particularly where there are clear unresolved
disagreements following the conclusion of negotiations.132 A dispute may also be
found to arise even though negotiations are still in progress, at least where it is clear
that these are being protracted in an attempt to forestall proceedings.133 By contrast
there is no dispute if a response to the claim is under consideration,134 if the issues
are purely hypothetical or arise between the parties and a third party who is not
subject to the arbitration clause.135
It is unclear from Halki whether an admission of liability and quantum by the
respondent gives the claimant the right to bring judicial proceedings for summary
judgment or whether it remains necessary for the claimant to commence arbitration
proceedings and to seek a summary award. In Glencore Grain Ltd v. Agros Trading
Co,136 the English Court of Appeal held that a dispute did not cease to be a dispute
simply because liability was admitted, as the claimant was entitled to obtain an
Hong Kong Ltd v. Chinapart Ltd [1990] 1 HKC 114; Multiplex Constructions Pty Ltd v. Suscindy Management
Pty Ltd [2000] NSWSC 484; Uni-Navigation Pte Ltd v. Wei Loong Shipping Pte Ltd [1993] 1 SLR 876;
Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] 2 SLR 500; Guangdong Agriculture Co
Ltd v. Conagra International (Far East) Ltd [1993] 1 HKLR 113; Zhan Jiang E & T Development Area
Service v. Head Co An Hau Co Ltd [1994] 1 HKC 539; Ryoden Engineering Co Ltd v. Paul Y Construction
Co Ltd [1994] 2 HKC 578; Big Island Construction (Hong Kong) Ltd v. Abdoolally Ebrahim & Co (Hong
Kong) Ltd [1994] 3 HKC 518; Tianjin Medicine & Health Products Import & Export Corporation v. JA
Moeller (Hong Kong) Ltd [1994] 1 HKC 545; Chung Kiu Development Ltd v. Sung Foo Kee Ltd [1995] 2
HKC 777; Tai Hing Cotton Mill Ltd v. Glencore Grain Rotterdam BV [1996] 1 HKC 363; Louis Dreyfus
Trading Ltd v. Bonarich International (Group) Ltd [1997] 3 HKC 597; Hercules Data Comm Co Ltd v.
Koywa Communications Ltd [2001] 2 HKC 75; Leung Kwok Tim v. Builders Federal (Hong Kong) Ltd
[2001] 3 HKC 527; F&D Buildings Services Engineering Co Ltd v. Chevalier (E & M Contracting) Co Ltd
[2001] 3 HKC 403; H P Construction & Engineering Pte Ltd v. Chin Ivan [2014] SGHC 137 (holding that
an allegation of fraud does not affect the burden of proof).
130 Still relevant to applications for stay under the AA.
131 Ellerine Brothers (Pty) Ltd v. Klinger [1982] 2 All ER 737, per Templeman LJ at 743. See also:
Marc Rich Agriculture Trading SA v. Agrimex Ltd [2000] 1 All ER (Comm) 951; Fastrack Contractors
Ltd v. Morrison Construction Ltd [2000] BLR 168.
132 Black Peppiatt Ltd v. Norwest Holst Construction Ltd [2003] BLR 316; Amec Civil Engineering Ltd v.
Secretary of State for Transport [2004] EWHC 2339 (TCC), affirmed [2005] EWCA Civ 291; Collins
(Contractors) Ltd v. Baltic Quay Management (1994) Ltd [2004] EWCA Civ 1757.
133 CIB Properties Ltd v. Birse Construction Ltd [2004] EWHC 2365 (TCC). Conflicting views, if
unresolved, amount to a dispute: Methanex Motunnui Ltd v. Spellman [2004] NZLR 454.
134 Cruden Construction Ltd v. Commissioner for the New Towns [1995] 2 Lloyd’s Rep 387; Carillion
Construction Ltd v. Devonport Royal Dockyard [2003] 1 BLR 79.
135 Carvill America Ltd v. Camperdown UK Ltd [2004] EWHC 2221 (Comm). This passage was cited
with approval by the Supreme Court of New South Wales in Larkden Pty Ltd v. Lloyd Energy Systems
Pty Ltd [2011] NSWSC 268 where it was held that an “element of futurity” does not make the dispute
purely hypothetical.
136 [1999] 2 Lloyd’s Rep 410. See also: Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd [2009]
SGHC 13; Jiangsu Hantong Ship Heavy Industry Co Ltd v. Sevan Pte Ltd [2009] SGHC 285; Jiangsu
Hantong Ship Heavy Industry Co Ltd v. Sevan Holding I Pte Ltd [2009] SGHC 288; Tai Hing Cotton Mill
33
arbitration award which he could then enforce under the New York Convention.
However, that does not represent the position in Singapore, the Court of Appeal
holding in Tjong Very Sumito v. Antig Investments Pte Ltd137 that where the claimant
can bring compelling evidence of a clear and unequivocal admission of both liability
and quantum there was no dispute, a stay would be refused and summary judgment
could be given.
In Dalian Hualiang Enterprise Group Co Ltd v. Louis Dreyfus Asia Pte Ltd138 it
was said that where a defendant refuses to pay or to admit a debt or remains silent
because he has no money to pay or simply because he is intransigent, there would be
no dispute, although it would be different if the defendant made a positive assertion
that he was disputing the claim, in which case there would be a dispute even though
it could be easily demonstrated that he was wrong. In Tjong Very Sumito v. Antig
Investments Pte Ltd the Court of Appeal, citing Dalian with approval, noted that it
was impossible to generalise on the effect of silence although generally speaking the
court would find that silence and equivocation amounted to a denial of a claim in
all but the clearest of cases.
In the Australian case Robotunits Pty Ltd v. Mennel [2015] VSC 268, the court
held that the proceedings needed to involve a “matter” which was “capable of settle-
ment by arbitration”—the case did not add anything to such definition beyond prior
Australian case law, but the court did dismiss an argument that while there needed
to be an identifiable matter for determination, that did not mean that the matter
also needed to be “sustainable”. There was no requirement that the argument
should have a reasonable prospect of success (Channel Tunnel Group Ltd v. Balfour
Beatty Construction Ltd [1993] AC 334 considered). The expression “dispute or
difference between the parties” should be understood as a reference to whether the
proceedings involved the determination of a “matter”.
Null and void, inoperative or incapable of being performed

Section 6(2) makes a stay mandatory unless the court is satisfied that the arbitration
clause is: (a) null and void; or (b) inoperative; or (c) incapable of being performed,
words taken originally from art. II.3 of the New York Convention, repeated in
Model Law, art. 8(1) and found also in AA 1996 (Eng), s. 9(4).
The phrase “null and void” refers to the situation in which there is a valid arbi-
tration agreement which extends to the dispute between the parties but for one or
other reason the arbitration clause is ineffective.139
Ltd v. Glencore Grain Rotterdam BV [1996] 1 HKC 363; Louis Dreyfus v. Bonarich International (Group)
Ltd [1997] 3 HKC 597; Getwick Engineers Ltd v. Pilecon Engineering Ltd (2002) 1020 HKCU 1.
137 [2009] 4 SLR(R) 732, applied in Merrill Lynch Pierce, Fenner & Smith Inc v. Harjani [2009]
SGHC 133, where the court held that a mere refusal to pay an amount that is indisputably due will
not constitute a dispute entitling the defaulting party to an arbitration and it can amount to an abuse
of process calling for the court’s intervention. See also: F&D Buildings Services Engineering Co Ltd v.
Chevalier (E & M Contracting) Ltd [2001] 3 HKC 403; Wu Yang Construction Group Ltd v. Zhejiang
Jinyi Group Co Ltd [2008] 2 SLR 350; HKL Group Co Ltd v. Rizq International Holdings Pte Ltd [2013]
SGHCR 08.
138 [2005] 4 SLR 646.
139 Judged by the law applicable to the arbitration clause: Joint Stock Company “Aeroflot-Russian
34
140
The phrase “inoperative” may relate to the arbitrability of the subject matter,
the repudiation,141 termination or cancellation of the arbitration clause,142 the
potential bias of the named arbitrator or waiver of the arbitration clause.143 An
agreement is not inoperative simply because a party entitled to refer the dispute
to arbitration has not at that stage done so,144 the arbitration clause refers to a
non-existent arbitration body145 or the contractual time limits for the reference of
a dispute to arbitration have expired and the arbitrator has power to extend those
time limits.146 It has also been held that an arbitration agreement does not become
“inoperative” by virtue of discharge when an award has been issued in relation to a
dispute in circumstances where any further or remaining controversy between the
parties, covered by the agreement, calls for resolution.147
The phrase “incapable of being performed” covers the case in which one
of the parties has been prevented by some external cause from performing his
obligation,148 and not merely that he is insolvent.149 What is required is thus impos-
sibility and not mere inconvenience or difficulty.150 A clause has been held to be
Airlines” v. Berezovsky [2013] EWCA Civ 784. See also Malini Ventura v. Knight Capital Pte Ltd [2015]
SGHC 225.
140 HIH Casualty and General Insurance Ltd v. R J Wallace [2006] NSWSC 1150.
141 BDMS Ltd v. Rafael Advanced Defence Systems [2014] EWHC 451 (Comm), holding that if it is
possible for the arbitration proceedings to be commenced or continued, then whether or not there has
been a repudiation the arbitration agreement is not inoperative. Thus a refusal by one party to pay its
share of the fees to an arbitral institution does not prevent the arbitration from going ahead, because the
other may pay and seek security for repayment in the arbitration.
142 Transocean Offshore International Ventures Ltd v. Burgundy Global Exploration Corp [2010] SGHC
31; Traube v. Perelman [2001] All ER (D) 346; Downing v. Al Taneer Establishment [2002] EWCA
Civ 721; Bakri Navigation Co Ltd v. Glorious Shipping SA, The Golden Glory (1991) 217 ALR 152.
Contrast: Delta Reclamation Ltd v. Premier Waste Management Ltd [2008] EWHC B16 (Comm); Fustar
Chemicals Ltd v. Sinochem Liaoning Hong Kong Ltd [1996] 2 HKC 407; Stericorp Ltd v. Stericycle Inc
[2003] VSC 203. See also the facts of Ishmaru Ltd v. Page [2007] NZHC 571, where the arbitration
clause had been superseded by the date of the application, and the judgment in KNM Process Systems Sdn
Bhd v. Mission Biofuels Sdn Bhd [2012] MLJU 1218, where subsequent agreement between the parties to
submit to court jurisdiction rendered the arbitration clause inoperative.
143 See the judgment of Andrew Smith J in Lombard North Central plc v. GATX Corporation [2012]
EWHC 1067 (Comm)
144 Fustar Chemicals Ltd v. Sinochem Liaoning Hong Kong Ltd [1996] 2 HKC 407; China Merchants
Heavy Industry Co Ltd v. JGC Corporation [2001] 3 HKC 580. Contrast the position if it is clear that he
does not intend to do so and has opted for litigation: La Donna Pty Ltd v. Wolford AG [2005] VSC 359
(where the right to seek a stay could equally have been regarded as lost on the basis that a step in the
proceedings had been taken).
145 Lucky-Goldstar International (HK) Ltd v. Ng Moo Kee Engineering Ltd [1993] 1 HKC 404; HKL
Group Co Ltd v. Rizq International Holdings Pte Ltd [2013] SGHCR 08.
146 Grandeur Electrical Co Ltd v. Cheung Kee Fung Cheung Construction Co Ltd [2006] 4 HKC 423.
Contrast the position if the option to arbitrate terminates if it is not exercised within the agreed period
and there is no power to extend: Thorn Security (Hong Kong) Ltd v. Cheung Kee Fung Cheung Construction
Co Ltd [2005] 1 HKC 252.
147 T v. B [2014] HKCFI 1427. The court noted in this case that although it could be said that the
further dispute arose under the arbitral award, it was nonetheless connected with the underlying contract
agreed by the parties. The sensible and rational business person’s approach required the court to give
effect to the arbitration clause.
149 The Rena K [1978] 1 Lloyd’s Rep 545.
150 Gatoil International Incorporated v. National Iranian Oil Company 1990 WL 10622722; Klöckner
Pentaplast Gmbh & Co v. Advance Technology (HK) Co Ltd [2011] HKCFI 458; Schindler Lifts
(Hong Kong) Ltd v. Sui Chong Construction and Engineering Co Ltd [2014] HKDC 1348.
35
“incurably pathological”, and thus “incapable of being performed”, where despite

being headed “Arbitration” it first required a resolution by communication between
the parties, failing which the dispute was to be submitted to arbitration “or to any
other US court”.151
If the arbitration clause is null and void, inoperative or incapable of being per-
formed when judicial proceedings are commenced, the proceedings do not have to be
stayed even if at a later date the clause becomes capable of enforcement.152 However,
if the clause was enforceable from the outset, but had become irrevocably incapable of
enforcement by the date of the hearing, then a stay may be granted as of that date.153
Loss of right to seek stay

Subsection (1) sets out the basic obligation to stay. The judicial proceedings must
be between parties to the agreement:154 a stay cannot be sought against a person
who has commenced judicial proceedings in respect of a matter falling within the
arbitration clause but who is not himself a party to the arbitration agreement.155
The applicant for a stay may engage s. 6 “at any time after appearance and before
delivering any pleading or taking any other step in the proceedings”; this overrides
Model Law, art. 8(1) which provides a cut-off point for application when the appli-
cant “submits his first statement on the dispute”. It is not clear what art. 8(1) is
referring to in the context of Singaporean procedure, and s. 6(1) aligns the cut-off
point with that in AA 1996 (Eng) by referring to a “step in the proceedings” as well
as the delivery of any pleading. The term “step in the proceedings” appeared in
earlier legislation and has been held to refer to any attempt to defend the claim on
its merits rather than on jurisdiction.156
The authorities were reviewed at length in Carona Holdings Pte Ltd and Others v.
Go Go Delicacy Pte Ltd,157 the Court of Appeal stating that: “It now seems to be
fairly settled that a ‘step’ is deemed to have been taken if the applicant employs
court procedures to enable him to defeat or defend those proceedings on their merits
and/or the applicant proceeds, from a procedural point of view, beyond a mere
acknowledgment of service of process by evincing an unequivocal intention to par-
ticipate in the court proceedings in preference to arbitration . . . firstly, the conduct
of the applicant must be such as to demonstrate an election to abandon his right to
stay, in favour of allowing the action to proceed; and secondly, the act in question
must have the effect of invoking the jurisdiction of the court.”158 In Carona it was
151 X Holding AG (Switzerland) v. Y Investments NV (Netherlands Antilles), Swiss Federal Supreme

Court, 25 October 2010, reported in (2011) 36 Yearbook of Commercial Arbitration 343.
152 Traube v. Perelman [2001] All ER (D) 346. See also A v. B [2007] 1 Lloyd’s Rep. 237.
153 BDMS Ltd v. Rafael Advanced Defence Systems [2014] EWHC 451 (Comm).
154 Star-Trans Far East Pte Ltd v. Norske-Tech Ltd [1996] 2 SLR 409; Kiyue Co Ltd v. Aquagen
International Pte Ltd [2003] 3 SLR 130; Carona Holdings Pte Ltd v. Go Go Delicacy Pte Ltd [2008] SGCA
34; Jiang Haiying v Tan Lim Hui [2009] SGHC 42.
155 City of London v. Sancheti [2008] EWCA Civ 1283. This is expressly the case under IAA, s. 6(1),
but the point was not specifically dealt with by AA 1996 (Eng), s. 9.
156 See, e.g., Jialing (Hong Kong) Co Ltd v. J A Moeller (Hong Kong) Ltd [1993] 2 HKC 637.
157 [2008] SGCA 34.
158 E.g., by applying for a transfer of the proceedings from one court to another: Cox v. Group
Employment Management Ltd [2005] 1 HKC 199.
36
held that an application for a stay of proceedings did not stop the running of the
14-day period for the defendant to file a defence, so that the application for a stay
ought to include an application to stay any actual or anticipated application by the
claimant for a default judgment. Carona further decided that an application by the
defendant for an extension of time for the service of a defence pending the outcome
of the stay application was not a step in the proceedings which precluded reliance
on the arbitration clause.159
In Patel v. Patel160 the English Court of Appeal held that the applicant had not
taken a step in judicial proceedings merely by seeking to have a default judgment
against him set aside and swearing two affidavits stating his intention to seek a
stay of proceedings and also that he intended to apply for permission to defend
the proceedings and issue a counterclaim.161 The court’s view was that (a) if the
claimant succeeded in setting aside the judgment, there would be no need for him
to seek permission to defend, so that the affidavit was to that extent otiose and (b)
the stated intention to seek a stay overrode the stated intention to seek permission
to defend.162 Furthermore, it was held in Patel that an act which would otherwise
constitute a step in the proceedings will not do so where the applicant has specifi-
cally stated at the same time that he intends to apply for a stay.163 For example, an
application for summary judgment followed by an application for a stay will not con-
stitute a step in the proceedings if it is clear from the context that the summary judg-
ment application was conditional on the stay application failing.164 Again, neither
requesting an extension of time to file a defence and counterclaim, nor requesting
further and better particulars, amounts to taking a step in the proceedings, in that
neither invokes the jurisdiction of the court.165 Taking a step in related proceedings
against a person who is not party to the arbitration clause is not a step in the main
proceedings.166
The key question is whether the step in question is such that it impliedly affirms
the correctness of the legal proceedings and the willingness of the applicant to go
159 See also: Batshita International (Pte) Ltd v. Lim Eng Hock Peter [1997] 1 SLR 241; Samsung
Corp v. Chinese Chamber Realty Pte Ltd [2004] 1 SLR 382; Australian Timber Products Pte Ltd v. Koh
Brothers Building & Civil Engineering Contractor (Pte) Ltd [2005] 1 SLR 168. In reaching its conclusions,
the court may take into account earlier proceedings relating to the same subject matter: L & M Concrete
Specialists Pte Ltd v. United Eng Contractors Pte Ltd [2000] 4 SLR 441.
160 [1999] 1 All ER (Comm) 923.
161 See: Chong Long Hak Kee Construction Trading Co v. IEC Global Pte [2003] 4 SLR 499, where a
counterclaim barred a stay.
162 The earlier contrary decision in Russel Bros & Co (Builders) Ltd v. Lawrence Breen (t/a
L&E Properties) (1997) 1 Practical Arbitration Journal 1(3) July/August 1997 pp. l–2, proba-
bly cannot stand in the light of Patel v. Patel. See also London Central and Suburban Developments v.
Banger [1999] ADRLJ 119, where it was held that a step in proceedings need not be a formal step
under the Rules of Court, and Capital Trust Investments Ltd v. Radio Design [2002] 1 All ER (Comm)
514.
163 Sembawang Engineers and Constructors Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229,
where it was made clear that the reply to the counterclaim was not one based on its merits; ACD Tridon
Inc v. Tridon Australia Pty Ltd [2002] NSWSC 896.
164 The application for a stay is in any event to be heard first: Lian Teck Construction Pte Ltd v. Woh
Hup (Pte) Ltd [2006] 4 SLR 1.
165 SP Chua Pte Ltd v. Lee Kim Tah (Pte) Ltd [1993] 3 SLR 122.
166 Paladin Agricultural Ltd v. Excelsior Hotel (Hong Kong) Ltd [2001] 2 HKC 215. Cf. World Good
Way Inc v. Wasan International Co Ltd [2008] NZHC 463.
37
along with a determination by the court instead of by an arbitral tribunal.167 If in

existing proceedings where original claims are brought that fall within the ambit of
an arbitration clause, yet no stay is sought by the defendant, he may not succeed in
staying additional claims brought by way of amendment if such claims are substan-
tially the same as or very closely related to the original claims.168 Where it is alleged
in the context of a s. 6 application that the applicant has answered the substantive
claim in foreign court proceedings, conflict of laws rules mean that if the steps in
question are not regarded as a submission by the foreign court, they will not be so
regarded so far as the domestic court is concerned.169 An application to the court
for interim measures in support of an arbitration, but prior to the commencement of
the arbitration, is not a step in substantive proceedings,170 nor indeed will contesting
such an application,171 although if there is no attempt to stay the judicial proceed-
ings and the case proceeds on its merits then the right to seek a stay will be lost.172
An application for security for costs of the application for a stay is not a step in
the proceedings where the application is limited to such costs.173 Where a contract
confers an option on each party to go to court or to arbitration, and one party com-
mences judicial proceedings in respect of his claim he is not thereby estopped from
seeking a stay of any counterclaim.174
Ancillary orders
The court may impose conditions for a stay, e.g., the waiver of a time-bar clause175
or security.176 It is clear from Drydocks World-Singapore Pte Ltd v. Jurong Port Pte
Ltd 177 that the court will exercise its power to impose conditions in exceptional cir-
cumstances only, e.g. where a time bar affecting the arbitration proceedings would
defeat the claim.178
Section 6(3) empowers the court, on staying its proceedings, to make an interim
order preserving any property which is the subject of the dispute. If an arbitration is
167 Eagle Star v. Yuval [1978] 1 Lloyd’s Rep 357; Nokia Corporation v. HTC Corporation [2012]
EWHC 3199 (Pat); Allan Scott Wines and Estates Ltd v. Eurowine Fine Wines (1990) Ltd [2008] NZHC
24. For the position in Malaysia, see: IJM Construction v. Cleveland Development [2002] MLJ 214; Sanwell
Corporation v. Trans Resources Corporation [2002] MLJ 169.
168 Ahad & anr v. Uddin [2005] EWCA Civ 883.
169 WSG Nimbus v. Sri Lanka Cricket Board [2002] 3 SLR 603; Thyssen Inc. v. Calypso Shipping Corp
SA [2000] 2 Lloyd’s Rep 243.
170 Model Law, art. 9. See, for the same principle in England, Delta Reclamation Ltd v. Premier Waste
Management Ltd [2008] EWHC B16 (Comm).
171 International SOS Pte Ltd v. Overton [2001] 2 SLR(R) 777.
172 Pathak Ltd v. Tourism Transport Ltd [2002] 3 NZLR 681.
173 The Dai Yun Shan [1992] 2 SLR 508; Fasi v. Specialty Laboratories Asia Pte Ltd [1999] 2 SLR(R)
1138.
But contrast the view in Australia: Equuscorp Pty Ltd v. Wilmouth Field Warne [2003] VSC 6284, although
in that case the arbitration clause was optional and the court’s view was that there had not been a timely
decision to invoke it.
175 The Xanadu [1998] 1 SLR 767.
176 The ICL Raja Mahendra [1999] 1 SLR 329; Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd
[2009] SGHC 13.
177 [2010] SGHC 185.
178 The Xanadu [1997] 3 SLR(R) 360; The Duden [2008] 4 SLR 984.
38
pending, it may be that the court has wider powers under IAA, s. 12A to make the
necessary orders, not just in respect of the subject matter. See the Notes to s. 12A.
Delay
Section 6(4) is concerned with the situation in which proceedings have been stayed
and no more has been heard of them for at least two years. If an application for a
stay succeeds, the effect will be that the action is stayed for ever. Accordingly, the
court may of its own motion make an order discontinuing the proceedings, but
without prejudice to the right of any of the parties to apply for the discontinued
proceedings to be reinstated. This is really a housekeeping provision, because if the
matter has gone to arbitration and has been resolved then any future attempt to res-
urrect the judicial proceedings would be regarded as an abuse of process. For that
reason, the usual costs rule is that the person commencing the judicial proceedings
will be ordered to pay the respondent’s costs of the action, and it is now settled in
England that costs will usually be awarded on an indemnity basis.179
Third parties
In general a third party who is involved in the litigation but who is not a party to the
arbitration clause cannot seek a stay of judicial proceedings or be prevented by a stay
from bringing judicial proceedings, even if the outcome is fragmented or overlapping
proceedings in court and before the arbitrators. In The Engedi180 Judith Prakash J
refused a stay of in rem judicial proceedings commenced by the owner of a vessel which
had been arrested following an in personam dispute—which was subject to arbitration—
between the vessel’s charterer and its previous owner. Further, a party to an arbitration
clause who is not a party to the judicial proceedings cannot seek a stay of them.181
An important exception is found in s. 6(5), which extends the section to a person
“claiming through or under” the applicant or respondent. This phrase appears
elsewhere in IAA but is defined only for the purposes of s. 6. The English cases on
this wording establish that an assignee (whether consensual or by operation of law)
is such a person,182 provided that the agreement does not prohibit assignment.183
179 A v. B [2007] 1 Lloyd’s Rep 358. This principle has been rejected in Victoria: Ansett Australia
Ltd v. Malaysian Airline System Bhd [2008] VSC 156.
180 [2011] SGHC 95. See also Cassa di Risparmio di Parma e Piacenza SpA v. Rals International Pte
Ltd [2015] SGHC 264.
181 Four Pillars Enterprises Co Ltd v. Beiersdorf Aktiengesellschaft [1999] 1 SLR 737, following Etri Fans
Ltd v. NMB (UK) Ltd [1987] 2 All ER 763.
182 Rumput (Panama) SA v. Islamic Republic of Iran Shipping Lines, The League [1984] 2 Lloyd’s Rep
259.
183 Yeandle v. Wynn Realisations Ltd (1995) 47 Con LR 1; Bawejem v. MC Fabrications Ltd [1999]
1 All ER (Comm) 377. See also Cassa di Risparmio di Parma e Piacenza SpA v. Rals International Pte
Ltd [2015] SGHC 264. In principle a contract containing an arbitration clause, if assigned, confers
both a right and an obligation on the assignee to arbitrate any disputes arising under the contract, and
he may take over existing arbitration proceedings. See: The Jordan Nicolov [1990] 2 Lloyd’s Rep 11;
Schiffahrtsgesellschaft Detlev Von Appen v. Voest Alpine Intertrading GmbH, The Jay Bola [1997] 2 Lloyd’s
Rep 279; Starlight Shipping Co v. Tai Ping Insurance Co [2007] EWHC 1893 (Comm); China Insurance
(Holdings) Co Ltd v. China Link Construction Co Ltd [2004] 3 HKC 14; Ryoden Engineering Co Ltd v. New
India Assurance Co Ltd [2008] 2 HKC 409.
39
More difficult are the cases of guarantors184 and companies in the same group as
the party,185 and the most recent authority holds that a close economic interest
between a party and a non-party does not render the latter a person who is claiming
through or under a party.186 Mere mortgagees have been held to be excluded.187 In
accordance with the usual principles of agency, a principal is a party to an arbitra-
tion agreement entered into on his behalf by an agent acting within the course of his
authority188 or whose unauthorised conduct has been ratified.189
An insurer exercising subrogation rights is a person claiming under or through
the assured who has been indemnified, and is thus bound by any arbitration clause
affecting the assured’s cause of action against the third party.190
It is also the case that if an agreement between A and B contains an arbitration
clause, and the agreement either requires B to confer a benefit upon a third party,
C, or is stated to be enforceable by C against B, then C may claim that benefit
from B under the Contracts (Rights of Third Parties) Act 2001, Cap. 53B, 2002
Rev. Ed. Section 9 of the 2001 Act provides that: (1) where there is a right to
enforce a substantive term providing for the submission of disputes to arbitration,
the beneficiary is treated as a party to the arbitration clause; and (2) where there
is a right for a beneficiary to enforce a term which is subject to arbitration, the
third party if he exercises that right is to be treated as a party to the arbitration
agreement The equivalent English provision to s. 9(1) has been held to mean that
any claim by the beneficiary against a contracting party to enforce the beneficial
term must be referred to arbitration.191 Where the benefit conferred upon the
beneficiary is a defence to a claim by a contracting party, the effect of s. 9(2) is
that the beneficiary must go to arbitration if he wishes to seek a declaration as
to the enforceability of the term and that, conversely, if judicial proceedings are
brought against the third party the claim itself falls outside the arbitration clause
and cannot be stayed but those aspects of the claim which relate to the defence
must be stayed so that they can be referred to arbitration.192 Such fragmentation
is undesirable, and it was suggested by the English Court of Appeal that, for that
reason, an agreement conferring a defence upon a third party is—in the absence of
184 A guarantor claimed through or under a party only if he had unconditionally agreed to honour
the award: Alfred McAlpine Construction v. Unex Corporation [1994] NPC 16.
185 A subsidiary company has been held to claim through or under its parent for the purpose of
seeking a stay: Roussel-Uclaf v. Searle Co [1978] 1 Lloyd’s Rep 225.
186 City of London v. Sancheti [2008] EWCA Civ 1283, overruling Roussel-Uclaf v. Searle Co [1978]
1 Lloyd’s Rep 225 at least insofar as it sought to establish a general principle that a close economic link
was sufficient; BHPB Freight Pty Ltd v. Cosco Oceania Chartering Pty Ltd (2008) 247 ALR 369. See also
nearmap Ltd v. Spookfish Pty Ltd [2014] NSWSC 1790.
187 Bonnin v. Neame [1910] 1 Ch 732.
188 Internaut Shipping Ltd v. Fercometal SARL [2003] 2 Lloyd’s Rep 430. Contrast Electrosteel Castings
Ltd v. Scan-Trans Shipping & Chartering SDN BHD [2003] 1 Lloyd’s Rep 190.
189 Anglia Oils Ltd v. Owners of the Marine Champion [2002] EWHC 2407 (Admin).
190 Through Transport Mutual Insurance Association (Eurasia) Ltd v. New India Assurance Co Ltd
[2005] 1 Lloyd’s Rep 67; West Tankers Inc v. Ras Riunione Adriatica di Sicurta SpA, The Front Comor
[2005] 2 Lloyd’s Rep 257 (the appeal [2007] 1 Lloyd’s Rep 391 turned on other issues).
191 Nisshin Shipping Co Ltd v. Cleaves & Co Ltd [2004] 1 Lloyd’s Rep 28, construing s. 8 of the
Contracts (Rights of Third Parties) Act 1999 (Eng), which is identical to s. 9 of Cap. 53B.
192 Fortress Value Recovery Fund LLC v. Blue Skye Special Opportunities Fund LP [2013] EWCA Civ
367.
40
clear wording to the contrary—to be construed as not falling within the arbitration
clause.193
Procedure
Any application is to be made to a judge or to the registrar: RC, Ord. 69A, r. 3(1).
If the action is pending the application is to be made by summons in the action, and
in any other case by originating summons: RC, Ord. 69A, r. 3(2). Where the case
is one of urgency such application may be made ex parte on such terms as the court
thinks fit: RC, Ord. 69A, r. 3(3).194 If service out of the jurisdiction is required, it
is necessary to obtain the leave of the court. An application for the grant of leave
under this Rule must be supported by an affidavit stating the ground on which the
application is made and showing in what place or country the person to be served is,
or probably may be found; and no such leave is to be granted unless it shall be made
sufficiently to appear to the court that the case is a proper one for service out of the
jurisdiction: RC, Ord. 69A, r. 4.
Anti-arbitration injunctions
There has been some discussion of the question whether it remains open to a court
to grant an anti-arbitration injunction where it is contended that there is no valid
arbitration clause. That jurisdiction has been asserted in New Zealand195 on the
basis that if there is no arbitration clause then art. 8 of the Model Law is inapplica-
ble and the court is not precluded from exercising its inherent jurisdiction to grant
injunctive relief by reason of the non-intervention principle in art. 5 of the Model
Law. A similar jurisdiction has been recognised in England,196 although doubts
have been expressed as to whether the structure of the arbitration legislation retains
such a discretion and even if it exists it should not be exercised so as to usurp the
functions of the arbitrators.197
Court’s powers on stay of proceedings

7.—(1) Where a court stays proceedings under section 6, the court may, if in
those proceedings property has been arrested or bail or other security has been given
to prevent or obtain release from arrest, order—
193 Fortress Value Recovery Fund LLC v. Blue Skye Special Opportunities Fund LP [2013] EWCA Civ
367.
194 Sufficient urgency was found in WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka
[2002] 3 SLR 603 to justify dealing with an application for an anti-suit injunction and a prohibitive
injunction under r. 3(3) rather than as would normally have been the case under r. 3(1)(c). The defend-
ants had refused to confirm that they would not deal with the subject matter of the dispute; the parties
had been engaged in negotiations to resolve the dispute and had for that reason not made an application
earlier.
195 Carter Holt Harvey Ltd v. Genesis Power Ltd HC AK [2006] NZHC 114.
196 Albon v. Naza Motor Trading Sdn Bdh [2007] EWCA Civ 1124
197 Electrim SA v. Vivendi Universal SA (No. 2) [2007] 2 Lloyd’s Rep 8.
41
(a) that the property arrested be retained as security for the satisfaction of any
award made on the arbitration; or
(b) that the stay be conditional on the provision of equivalent security for the
satisfaction of any such award.
(2) Subject to Rules of Court and to any necessary modification, the same law
and practice shall apply in relation to property retained in pursuance of an order
under this section as would apply if it were held for the purposes of proceedings in
the court which made the order.
NOTES
Section 7, which echoes AA 1996 (Eng), s. 11,198 applies to all security,199 although
it is primarily concerned with the arrest of vessels. The section reverses the previous
rule that a vessel could be arrested only as security for a judgment and not for an
arbitration award. The position was that a vessel which had been arrested as security
pending court proceedings had to be released if the proceedings were stayed in the
light of an arbitration clause, although the arrest could be maintained if the court
took the view that the proceedings would ultimately result in a judgment.200 Given
that a judgment was likely where the owner of the vessel was insolvent, the effect of
the rule was that an arrest could be maintained in the case of an insolvent owner.
Section 7 removes this distinction. The maintenance of an arrest is discretionary.201
Arrest may be discharged if security is provided, either by the respondent or—in
practice—by his P&I Club, generally in the form of letters of undertaking issued by
a bank and with the claimant as named beneficiary.202
An application under s. 7 is ancillary to an application for a stay, and the court
may hear an oral application in the course of the stay proceedings without the need
for a separate formal application.203 An order for security in return for the release of
a vessel cannot be given in the absence of an application for a stay of the proceedings
in favour of arbitration.204
It is necessary for a party who intends to rely on an arbitration agreement to dis-
close this fact to the court in an ex parte application for the arrest of a vessel, so that
if the court grants the arrest it can also consider whether to stay the arrest or make
other appropriate directions, and take appropriate care not to indirectly pronounce
on the merits of the matter or trespass onto the jurisdiction of the arbitral tribunal. If
the validity of the arbitration agreement is likely to be disputed, the court’s attention
198 Derived from s. 12 of the Civil Jurisdiction and Judgments Act 1982.
199 LRRD No. 3/2001, para. 2.4.8.
200 The Tuyuti [1984] 2 All ER 545. See also Republic of India v. India Steamship Co Ltd [1997] 3
WLR 818, the effect of which is that there is no need for separate judicial proceedings in rem in respect
of the vessel because the arrest can be maintained as security for any judgment in personam. However, in
rem and in personam proceedings are possible, e.g., where the arrested vessel belongs to a third party and
cannot be the subject of an order for security under s. 7: The Engedi [2010] SGHC 95.
201 For the exercise of the discretion, see: Hyosung (HK) Ltd v. Owners of the Hilal I [2001] 1 SLR
387; The Bazias 3 [1993] 1 Lloyd’s Rep 101; The Britannia [1998] 1 HKC 221.
202 See Mousaka Inc v. Golden Seagull Maritime Inc (No. 2) [2002] 1 Lloyd’s Rep 797, in which it was
held that letters of undertaking were not discharged by a ruling that the arrest was invalid, as they were
autonomous contracts independent of legal proceedings between the parties to the dispute.
203 Hyosung (HK) Ltd v. Owners of the Hilal I [2001] 1 SLR 387.
204 The Sunwind [1998] 3 SLR 954.
42
must also be drawn to this fact. While the parties are at liberty to commence arbitra-
tion after the application to arrest the vessel has been taken out, they must, as soon
as the decision to commence arbitration has been agreed upon, apply to the court
to stay the subject proceedings without delay. The parties’ agreement should reflect
the consensus reached so that the authority of the arbitration tribunal to deal with
the claim is not fettered by decisions made in the in rem proceedings.205
Authorities specified for purposes of Article 6 of Model Law

8.—(1) The High Court in Singapore shall be taken to have been specified in
Article 6 of the Model Law as courts competent to perform the functions referred to
in that Article except for Article 11(3) and (4) of the Model Law.
(2) The Chairman of the Singapore International Arbitration Centre shall be
taken to have been specified as the authority competent to perform the functions
under Article 11(3) and (4) of the Model Law.
(3) The Chief Justice may, if he thinks fit, by notification published in the Gazette,
appoint any other person to exercise the powers of the Chairman of the Singapore
International Arbitration Centre under subsection (2).
NOTES
Article 6 of the Model Law requires an adopting state to nominate authorities to
perform the functions imposed by its provisions. Those functions, taken with the
allocation in this section are: appointment of arbitrator where the parties cannot
agree or the procedure has failed (Model Law, arts 11(3)–(4))—Chairman of SIAC;
challenge to arbitrator (Model Law, art. 13(3))—High Court; removal of arbitrator
(Model Law, art. 14)—High Court; review of jurisdictional ruling (Model Law,
art. 16(3))—High Court; setting aside an award (Model Law, art. 34)—High Court.
Application of Limitation Act and the Foreign Limitation Periods Act 2012
8A.—(1) 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.
(2) The High Court may order that in computing the time prescribed by the
Limitation Act or the Foreign Limitation Periods Act 2012 for the commencement
of proceedings (including arbitral proceedings) in respect of a dispute which was the
subject-matter of—
(a) an award which the High Court orders to be set aside or declares to be of
no effect; or
(b) the affected part of an award which the High Court orders to be set aside in
part or declares to be in part of no effect,
the period between the commencement of the arbitration and the date of the order
referred to in paragraph (a) or (b) shall be excluded.
205 For these propositions, see The Vasiliy Golovnin [2008] SGCA 39.
43
(3) Notwithstanding any term in an arbitration agreement to the effect that no

cause of action shall accrue in respect of any matter required by the agreement to be
referred until an award is made under the agreement, the cause of action shall, for
the purposes of the Limitation Act (Cap. 163) and the Foreign Limitation Periods
Act 2012, be deemed to have accrued in respect of any such matter at the time when
it would have accrued but for that term in the agreement.
NOTES
Effect of section 8A
Section 8A, which was added in 2002 to match the AA, s. 11, confirms that the
Limitation Act 1996 (Cap. 163) applies to arbitration proceedings, and indeed rep-
licates s. 30 of that Act for the convenience of readers of IAA.206 Section 8A, along
with s. 11 of the AA, was amended by the Foreign Limitation Periods Act 2012
(No 13 of 2012), to reverse the common law rule that limitation was a matter of
procedure to be determined by the law of the forum, so that if the matter was before
a court or arbitrator in Singapore then the relevant limitation period would be that
in the Singapore Limitation Act 1996. The effect of the Foreign Limitation Periods
Act 2012 is that the relevant limitation period is that specified by the law applicable
to the contract and not the law of Singapore (s. 3). However, this provision does
not apply to the extent that there is a conflict with public policy (s. 5(1)),207 which
is deemed to be the case where the application of s. 3 would give rise to undue
hardship (s. 5(2)).
Section 8A is concerned only with statutory time limits and not with contractual
time limits.208
Running of time for commencing arbitration proceedings under Singapore law

The time limit for commencing arbitration proceedings is the same as for judicial
proceedings; in a contract case, the relevant period is six years from the date of the
breach (Limitation Act 1996, Cap. 163, s. 6). Arbitration proceedings are com-
menced, unless otherwise agreed,209 on the date on which a request for that dispute
to be referred to arbitration is actually received210 by the respondent (Model Law,
206 LRRD No. 3/2001, para. 2.5.2.

207 E.g., where a choice of law clause had the purpose of evading principles of Singapore law.
208 A contractual time bar on commencing arbitration is generally to be construed as barring the
claim and not merely barring the right to go to arbitration: Metalfer Corporation v. Pan Ocean Shipping Co
Ltd [1998] 2 Lloyd’s Rep 632; Nanjing Tainshun Ship Building Co Ltd v. Orchard Tankers Pte Ltd [2011]
EWHC 164 (Comm); Wholecrop Marketing Ltd v. Wolds Produce Ltd [2013] EWHC 2079 (Comm).
209 A clause which provides that if there is no agreement on an arbitrator within 14 days of the notice
of arbitration then an arbitration notice may be served does not amount to an agreement as to when the
arbitration has been commenced within s. 14(1): Taylor Woodrow Construction v. RMD Kwikform Ltd
[2008] EWHC 825 (TCC). Contrast Scenic Circle (Rotorua) Ltd v. Princes Gate Hotels Ltd [2006] NZHC
1629, where it was held that the parties had ousted art. 21 by agreeing that the arbitration commenced
when either party sought to refer the dispute to an arbitrator. There is no mechanism in the IAA or the
Model Law for extending contractual time limits. Contrast the position under domestic legislation: see
AA, s. 10.
210 LRRD No. 3/2001, para. 2.5.3.
44
211
art. 21 ), so such a request must be served within six years from the accrual of the
cause of action. The date on which a request for the dispute to be referred to arbitra-
tion is deemed made will vary from case to case. If the arbitration clause requires a
sole arbitrator, then a request for agreement on an appointment will suffice. If the
arbitration clause requires each party to appoint his own arbitrator, then notifica-
tion by one party that he has appointed his arbitrator and that the other party is
requested to make his own appointment will be appropriate. An application to an
arbitral institution for an appointment to be made is not adequate: the wording of
Model Law, art. 21, requires the request for the dispute to be referred to arbitration
to be received by the respondent.
There is also a distinction to be drawn between a request for arbitration and
a statement of intention,212 a notification of the existence of a dispute or the
making of a demand for payment213 or other performance. The English cases have
rejected the suggestion214 that a notice which simply stated that the dispute was
to be referred to arbitration did not “require” the appointment of an arbitrator
and thus did not operate to commence the arbitration, and have instead ruled that
arbitration notices are not necessarily legal documents and are to be construed
broadly. Thus, a notice suffices if it is clear that the claimant intends to commence
arbitration and that the respondent is to make an appointment.215 Even where a
notice has the effect of imposing a requirement on the other party to submit a
dispute to arbitration, the dispute in question must be clearly identified in the
notice.216 In any event, the dispute must be an existing one and not a potential
future dispute.217
Institutional rules may impose a condition precedent to the commencement of
the arbitration of the payment of the fee to the relevant arbitral body. It is possible
to construe art. 3.1 of the SIAC Rules in this way, although the similarly worded
rules of the International Cotton Association have been held not to impose a condi-
tion precedent to that effect218 in that there was—as in the SIAC Rules a distinction
211 PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] 4 SLR 257
212 Surrendra Overseas Ltd v. Government of Sri Lanka [1977] 1 Lloyd’s Rep 653; Taylor Woodrow
Construction v. RMD Kwikform Ltd [2008] EWHC 825 (TCC); Fustar Chemicals Ltd v. Sinochem Liaoning
Hong Kong Ltd [1996] 2 HKC 407,
213 Bulk & Metal Transport (UK) LLP v. Voc Bulk Ultra Handymax Pool LLC [2009] EWHC 288
(Comm).
214 Vosnoc Ltd v. Transglobal Projects Ltd [1998] 1 Lloyd’s Rep 711.
215 Nea Agrex SA v. Baltic Shipping Co Ltd, The Aghios Lazaros [1976] 2 Lloyd’s Rep 47; The Sargasso
[1994] 1 Lloyd’s Rep 162; Villa Denizcilik Sanayi ve Ticaret SA v. Longen SA, The Villa [1998] 1 Lloyd’s
Rep 195; West of England Ship Owners Mutual Protection and Indemnity Association (Luxembourg) Ltd v.
Hellenic Industrial Development Bank SA [1999] 1 Lloyd’s Rep 93; Allianz Versicherungs-Aktiengesellschaft v.
Fortuna Co Inc, The Baltic Universal [1999] 1 Lloyd’s Rep 497; Charles M Willie Co (Shipping) Ltd v.
Ocean Laser Shipping Ltd, The Smaro [1999] 1 Lloyd’s Rep 225; Seabridge Shipping AB v. Orsleff’s EFTS
A/S [1999] 2 Lloyd’s Rep 685; Bulk & Metal Transport (UK) LLP v. Voc Bulk Ultra Handymax Pool LLC
[2009] EWHC 288 (Comm); Transgrain Shipping BV v. Deiulemar Shipping SpA [2014] EWHC 4202
(Comm). The position in Hong Kong is the same: Sky Mount Investment Ltd v. East West-Umi Insurance
Ltd [1995] 1 HKC 342.
216 A positive assertion by a defendant denying the claim is sufficient to give rise to a dispute. The
court is not to examine whether there is “in fact” a dispute, or a genuine dispute. See Tjong Very Sumito
and Others v. Antig Investments Pte Ltd [2009] SGCA 41.
217 Great Ormond Street Hospital NHS Trust v. Secretary of State for Health (1997) 56 Con LR 1.
218 Libero Commodities SA v. Augustin [2015] EWHC 1815 (Comm).
45
between the filing of the request and the filing of accompanying documents and the
fee.
If an arbitration is commenced in the name of the wrong party (as where the name
of the claimant has changed or there has been a merger), the notice is n evertheless
valid as long as the error was due to oversight rather than fundamental error:
in the former case the error can be corrected simply by amending the relevant
documents.219 However, notice to an arbitral institution for the appointment of an
arbitrator where the parties have not agreed to adopt the rules of that institution is
invalid.220
Effect of award being set aside

Section 8A(2) deals with the case in which an arbitration award is set aside, nulli-
fied or modified by the court. In order to allow the matter to go back to arbitration
without falling foul of a statutory time bar, s. 8A(2) empowers the court to disre-
gard, for limitation purposes, the lapse of time between the commencement of the
original proceedings and the date of the court’s order, so that the entire process may
begin again.
Limitation period and enforcement of award

An action for the enforcement of an arbitration award must be brought within six
years of the date on which “the cause of action accrued”. It was held in Argomet
Motoimport Ltd v. Maulden Engineering Co (Beds) Ltd221 that the date of accrual is the
date on which the award ought to have been honoured, and not the date on which
the original cause of action giving rise to the arbitration proceedings arose. In most
cases, the award itself will provide the time within which, e.g., payment of damages
should be made (often 28 days), and it is upon expiry of this period that the cause
of action on the award arises.
Section 8A(3) is concerned with the conceptual difficulty raised by Scott v. Avery
clauses. As seen above, such clauses make arbitration a condition precedent to legal
proceedings, and restrict each party’s right to an action on the award itself. A Scott
v. Avery clause makes a nonsense of the limitation rules, as the action cannot accrue
until the award has been made, so that logically there is no limitation period at all
for the commencement of the arbitration proceedings. This problem is overcome by
s. 13(3), by requiring the Scott v. Avery provision to be disregarded in determining
when the cause of action to be arbitrated arose. In other words, the usual rules of
limitation apply.
219 AMB Generali Holding AB Manches v. Seb Tryg Holding Akt [2006] 1 Lloyd’s Rep 318; Harper
Versicherungs AG v. River Thames Insurance Co Ltd [2006] 2 Lloyd’s Rep 263.
220 Bovis Lend Lease Pte Ltd v. Jay-Tech Marine & Projects Pte Ltd [2005] SGHC 91.
221 [1985] 2 All ER 436. See also International Bulk Shipping Services Ltd v. Minerals & Metals
Trading Corpn of India & Ors [1996] 2 Lloyd’s Rep 474 (party entitled to reasonable time from date of
award to honour it).
46
Number of arbitrators for purposes of Article 10(2) of Model Law

9.—Notwithstanding Article 10(2) of the Model Law, if the number of arbitrators
is not determined by the parties, there shall be a single arbitrator.
NOTES
The Model Law allows the parties to choose the number of arbitrators, failing
which the default number is three: Model Law, art. 10. The IAA departs from the
Model Law by specifying that the default position should be a sole arbitrator.222
The presumption in favour of a single arbitrator may presumably be ousted by
proof of market custom or practice pointing in some other direction, given that
a typical commodity arbitration will involve the appointment of two arbitrators,
one by each party, with a third arbitrator or umpire to be appointed by the arbitra-
tors themselves,223 although in the absence of any contrary custom or practice the
presumption in favour of a sole arbitrator holds good.224
The SIAC Rules, r. 6.1 provide that “A sole arbitrator shall be appointed unless
the parties have agreed otherwise or unless it appears to the Registrar, giving due
regard to any proposals by the parties, the complexity, the quantum involved or other
relevant circumstances of the dispute, that the dispute warrants the appointment of
three arbitrators.” The default provision is, in the absence of agreement, thus for a
sole arbitrator but with a discretion in SIAC to appoint three arbitrators where the
dispute warrants an enlarged tribunal. Rule 6.1 may be ousted by agreement, so that
if the parties have agreed to appoint a sole arbitrator but have also incorporated the
rules of SIAC, there is no discretion to appoint a tribunal of three.225
For the position under the SIAC Rules where the parties have agreed to a sole
arbitrator, see SIAC Rules, r. 7.
If the parties have agreed that there are to be three arbitrators, IAA says nothing
about decision-making, although Model Law, art. 29 provides for majority decision-
making but with authority for a presiding arbitrator (if authorised by the parties or
the arbitrators) to make procedural rulings. See the Notes to Model Law, art. 29.
For the position under the SIAC Rules, see r. 8.
SIAC Rules, r. 9, makes provision for the relatively unusual situation in which
there is a multi-party arbitration.
Default appointment of arbitrators

9A.—(1) Notwithstanding Article 11(3) of the Model Law, in an arbitration
with 3 arbitrators, each party shall appoint one arbitrator, and the parties shall by
agreement appoint the third arbitrator.
222 See also: AA 1996 (Eng), s. 15(3).

223 Cf. Laertis Shipping Corporation v. Exportadora Espanola de Cementos Portland SA, The Laertis
[1982] 1 Lloyd’s Rep 613.
224 Villa Denizcilik Sanayi ve Ticaret AS v. Longen SA, The Villa [1998] 1 Lloyd’s Rep 195; Atlanska
Plovidba v. Consignaciones Asturianas SA [2004] 2 Lloyd’s Rep 109.
225 NCC International AB v. Alliance Concrete Singapore Pte Ltd [2008] 2 SLR 565; UMCI Ltd v.
Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd [2008] SGHC 188.
47
(2) Where the parties fail to agree on the appointment of the third arbitrator
within 30 days of the receipt of the first request by either party to do so, the appoint-
ment shall be made, upon the request of a party, by the appointing authority.
NOTES
Section 9A(1) is something of a curiosity. It is the usual practice for the two party
appointees themselves to decide who the third arbitrator is going to be, with the
parties having little or no say in that decision. This is the principle enshrined in
Model Law, art. 11(3)(a). By rejecting that approach, it is necessary to provide a
mechanism for the appointment of the third arbitrator where the parties themselves
cannot agree, and that is set out in s. 9A(2), which requires an appointment by the
Chairman of SIAC.226
Appeal on ruling of jurisdiction

10.—(1) This section shall have effect notwithstanding Article 16(3) of the Model
Law.
(2) An arbitral tribunal may rule on a plea that it has no jurisdiction at any stage
of the arbitral proceedings.
(3) If the arbitral tribunal rules —
(a) on a plea as a preliminary question that it has jurisdiction; or
(b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction,
any party may, within 30 days after having received notice of that ruling, apply to
the High Court to decide the matter.
(4) An appeal from the decision of the High Court made under Article 16(3) of
the Model Law or this section shall lie to the Court of Appeal only with the leave
of the High Court.
(5) There shall be no appeal against a refusal for grant of leave of the High Court.
(6) Where the High Court, or the Court of Appeal on appeal, decides that the
arbitral tribunal has jurisdiction —
(a) the arbitral tribunal shall continue the arbitral proceedings and make an
award; and
(b) where any arbitrator is unable or unwilling to continue the arbitral proceed-
ings, the mandate of that arbitrator shall terminate and a substitute arbitra-
tor shall be appointed in accordance with Article 15 of the Model Law.
(7) In making a ruling or decision under this section that the arbitral tribunal has
no jurisdiction, the arbitral tribunal, the High Court or the Court of Appeal (as the
case may be) may make an award or order of costs of the proceedings, including the
arbitral proceedings (as the case may be), against any party.
(8) Where an award of costs is made by the arbitral tribunal under subsection (7),
section 21 shall apply with the necessary modifications.
(9) Where an application is made pursuant to Article 16(3) of the Model Law or
this section —
(a) such application shall not operate as a stay of the arbitral proceedings or of
226 This seems to be the effect of the reference to Model Law, art. 11(3) by IAA, s. 8.
48
execution of any award or order made in the arbitral proceedings unless the
High Court orders otherwise; and
(b) no intermediate act or proceeding shall be invalidated except so far as the
High Court may direct.
(10) Where there is an appeal from the decision of the High Court pursuant to
subsection (4) —
(a) such appeal shall not operate as a stay of the arbitral proceedings or of
High Court or the Court of Appeal orders otherwise; and
Court of Appeal may direct.
NOTES
Legislative structure
The question of appeals against arbitral rulings on jurisdiction was, before the adop-
tion of the 2012 amendments to the IAA, governed exclusively by art. 16(3) of the
Model Law: that was the effect of the original version of IAA, s. 10. Article 16(1) of
the Model Law codifies the generally accepted Kompetenz-Kompetenz principle that
arbitrators are entitled to rule on their own jurisdiction, including any issues with
respect to the existence or validity of the arbitration agreement. Article 16(1) goes
on to state that an arbitration clause is to be regarded as an independent undertak-
ing whether it is physically a part of the substantive contract or separate from it, so
that a ruling that the contract itself is void does not affect the validity of the clause.
Article 16(3) of the Model Law provides that, following an award on jurisdiction,
either party may request within 30 days of receiving notice of the ruling that the
court (for these purposes the Singapore High Court) should review the matter, with
no right of further appeal. The right to contest enforcement of the award under
s. 19 remains in place whether or not a challenge to a ruling on jurisdiction has been
made by the award debtor under art. 16(3) of the Model Law227 and in the absence
of express wording to the contrary in s. 10 it may be thought that the same principle
applies where the award debtor has not availed itself of the right to contest jurisdic-
tion under s. 10.
Article 16(3) remains good law, but the recasting of s. 10 of the IAA in 2012 is
likely to supersede art. 16(3) in most cases. The most important change introduced
by s. 10 is the introduction of an appeal against a ruling by the arbitrators that they
do not have jurisdiction. The two provisions operate as follows.
Article 16(3) of the Model Law: scope

Article 16(3) states that the arbitral tribunal may rule on a plea that the tribunal
does not have jurisdiction, either as a preliminary question or in an award on the
merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction,
any party may request, within 30 days after having received notice of that ruling,
227 PT First Media TBK v. Astro Nusantara International BV [2013] SGCA 57.
49
the court specified in art. 6 to decide the matter, which decision shall be subject to
no appeal; while such a request is pending, the arbitral tribunal may continue the
arbitral proceedings and make an award.
It is irrelevant whether a ruling on jurisdiction by the arbitrators under art. 16(3)
is expressed to be a partial award or simply a ruling. In either case, if the ruling is in
favour of jurisdiction, then it falls within art. 16(3)228 and an application to the court
may be made to challenge the decision. It is here important to emphasise that any
binding decision by the arbitrators as to their jurisdiction will take effect as an award
even though it is not classified as such by them: the significance of this is of course
the fact that the time limits for challenging the decision as an award will begin to
run as soon as the arbitrators have made their decision. This was so held in England
by Toulson J in Ranko Group v. Antarctic Maritime SA, The Robin,229 in which the
arbitrator wrote to the parties stating that he had made “rulings” on the validity
of his own appointment, on the existence of an arbitration agreement and on the
validity of the submission of disputes to him. Toulson J decided that the “rulings”
in favour of jurisdiction constituted an award on jurisdiction, and as there had been
no challenge within the statutory period the award was binding on the parties. If the
award is on jurisdiction, Model Law, art. 16(3) permits the arbitrators to continue
the substantive hearings pending the outcome of the appeal on jurisdiction. The
provision does not permit an appeal against an award which deals with both jurisdic-
tion and merits.230
The effect of art. 16(3) is that the jurisdictional ruling may be challenged, pro-
vided of course that the party seeking to make the challenge has complied with the
procedural requirements as to objections, i.e., in accordance with the 30-day time
limit laid down by art. 16(3).
The most important limitation on the operation of art. 16(3) is that there is power
only to review a ruling in favour of jurisdiction, and not an award which denies juris-
diction, and in such a case it would equally seem that there is no available recourse
under Model Law, art. 34.231 That is now governed by the recast version of IAA,
s. 10.
Article 16(3) of the Model Law and other mechanisms

There is overlap between Model Law, arts 16 and 34, in that certain of the grounds
against which an award can be set aside under Model Law, art. 34 are plainly juris-
dictional, i.e., that the arbitration clause is not valid, that the award deals with a
228 Weltime Hong Kong Ltd v. Ken Forward Engineering Ltd [2001] 1 HKC 458; Incorporated Onwers
of Tak Tai Building v. Leung Yau Building Ltd [2005] 1 HKC 530; Nalac Investment Management Ltd v.
Ord [2008] NZHC 1035.
229 [1998] ADRLN 35.
230 AQZ v. ARA [2015] SGHC 49.
231 PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597. This was also the
conclusion obiter in Hebei Jikai Industrial Group Co Ltd v. Martin [2015] FCA 228. The contrary has
been assumed in New Zealand in Attorney General v. Feary [2007] NZHC 112, the court holding that
the appropriate approach following a denial of jurisdiction was to appeal under art 16. English law, in
AA 1996 (Eng), s. 67, allows an appeal against an award on jurisdiction whether jurisdiction has been
asserted or denied.
50
dispute outside the scope of the arbitration clause or reference or that the arbitrators
were not properly appointed. It would seem that Model Law, art. 16, is concerned
only with a preliminary award or ruling on jurisdiction and not with an award on the
merits: such an award is to be challenged under Model Law, art. 34 only. Subject to
different time limits, the procedure is the same.
It would seem that a party who does not participate in the arbitration is entitled to
rely upon Model Law, art. 34. There is no express statutory saving for the common
law right of a person who claims not to be bound by an arbitration clause to refuse
to appear,232 although it could be that the non-intervention rule in Model Law,
art. 5, precludes such a claim. The point remains unresolved. Under English law,
a person who refuses to participate in the arbitration proceedings233 on the basis
that the arbitrators have no jurisdiction over him, retains the right granted to him
at common law to contest the jurisdiction of the arbitrators at any stage, by seeking
injunctive or declaratory234 relief at any stage during the proceedings or thereafter.
It is not possible for a person who wishes to pursue arbitration proceedings to
apply to the court for a declaration that there is235 or there is not236 a binding arbitra-
tion agreement: the proper approach is for that person to participate in the arbitra-
tion in the usual way and to contest any jurisdictional challenge in the arbitration or
to appeal against the arbitrators’ ruling.237
Article 16(3) of the Model Law: procedure

The nominated authority for the purposes of art. 16(3) is the High Court: IAA, s. 8.
An application under this provision is to be made to a judge by means of originating
summons and within 30 days of the receipt by the applicant of the tribunal’s deci-
sion or ruling: RC, Ord. 69A, r. 2(1), (3). The Model Law contemplates that any
appeal should be final, whereas IAA, s. 10 permits a further appeal to the Court of
Appeal, but only with the permission of the High Court.
The supporting affidavit must: (a) state the grounds in support of the application;
(b) have exhibited to it a copy of the arbitration agreement or any record of the
content of the arbitration agreement, the award and any other document relied on
by the claimant; (c) set out any evidence relied on by the claimant; and (d) be served
with the originating summons (RC, Ord. 69A, r. 2(4A)). Within 14 days after
being served with the originating summons, the defendant, if he wishes to oppose
the application, must file an affidavit stating the grounds on which he opposes the
232 Contrast AA 1996 (Eng), s. 72.

233 As to which, see Caparo Group Ltd v. Fagor Arrasate Sociedad Cooperative [2000] ADRLJ 254;
Athletic Union of Constantinople v. National Basketball Association [2002] 1 Lloyd’s Rep 305 (preliminary
objection to jurisdiction not amounting to participation).
234 See Mackley & Co Ltd v. Gosport Marina Ltd [2002] BLR 367.
235 Vale do Rio Doce Navegacos SA v. Shanghai Bao Steel Ocean Shipping Co Ltd and Sea Partners
[2000] 2 Lloyd’s Rep 1. This jurisdiction has been asserted in Hong Kong in the case of a domestic
arbitration (Shun Shing Construction and Engineering Co Ltd v. Hyundai Engineering and Construction Co
Ltd [1996] 2 HKC 384) although it will not be exercised if the question is properly before the arbitrators
(Attorney General v. Shimizu Corporation [1994] 1 HKC 664).
236 ABB Lummus Global Ltd v. Keppel Fels Ltd [1999] 2 Lloyd’s Rep 24.
237 This has since been confirmed as the correct approach by the House of Lords in Fiona Trust &
Holding Corp v. Privalov [2008] 1 Lloyd’s Rep 254.
51
application (RC, Ord. 69A, r. 2(4C)). If service out of the jurisdiction is required,
it is necessary to obtain the leave of the court. An application for the grant of leave
under this Rule must be supported by an affidavit stating the ground on which the
application is made and showing in what place or country the person to be served is,
or probably may be found; and no such leave is to be granted unless it shall be made
sufficiently to appear to the court that the case is a proper one for service out of the
jurisdiction: RC, Ord. 69A, r. 4.
IAA, section 10
IAA s. 10 operates independently of art. 16(3) of the Model Law (s. 10(1)). The
arbitrators are free to rule on their jurisdiction at any stage in the arbitral proceed-
ings (s. 10(2)), and once they have determined that they either have jurisdiction
or do not have jurisdiction, either party may refer the matter to the High Court
within 30 days of receiving the ruling (IAA, s. 10(3)). As with art. 16(3), IAA,
s. 10(3) does not contemplate an appeal against an award which deals with merits
as well as jurisdiction.238 A ruling in favour of jurisdiction requires the arbitrators
to continue the proceedings and make an award, but if the arbitrator is unable
or unwilling to continue then the mandate terminates and the arbitrator is to be
replaced (s. 10(6)). The most important point of the new procedure is that there
is now a mechanism for appealing against a ruling that the arbitrators do not have
jurisdiction.
Procedure under IAA, section 10

Any appeal against the ruling of the arbitral tribunal under s. 10 of the IAA is to be
made by way of originating summons (RC, Ord 69A, r. 2(1)(c)) and (3). The sup-
porting affidavit must: (a) state the grounds in support of the application; (b) have
exhibited to it a copy of the arbitration agreement or any record of the content of the
arbitration agreement, the award and any other document relied on by the claimant;
(c) set out any evidence relied on by the claimant; and (d) be served with the origi-
nating summons (RC, Ord. 69A, r. 2(4A)). Within 14 days after being served with
the originating summons, the defendant, if he wishes to oppose the application,
must file an affidavit stating the grounds on which he opposes the application (RC,
Ord. 69A, r. 2(4C)). If service out of the jurisdiction is required, it is necessary to
obtain the leave of the court. An application for the grant of leave under this Rule
must be supported by an affidavit stating the ground on which the application is
made and showing in what place or country the person to be served is, or probably
may be found; and no such leave is to be granted unless it shall be made sufficiently
to appear to the court that the case is a proper one for service out of the jurisdiction:
RC, Ord. 69A, r. 4.
An application for leave to appeal against a decision of the Court under s. 10
of the Act must be made within seven days of the decision of the Court (RC,
Ord. 69A, r. 2(4D).
238 AQZ v. ARA [2015] SGHC 49.
52
Where the SIAC Rules apply, special provision is made in r. 25.1 for the avoidance
of jurisdictional disputes. Rule 25.1 states that: “If a party objects to the existence or
validity of the arbitration agreement or to the competence of SIAC to administer an
arbitration before the Tribunal is appointed, the Registrar shall determine if refer-
ence of such an objection is to be made to the Court. If the Registrar so determines,
the Court shall decide if it is prima facie satisfied that a valid arbitration agreement
under the Rules may exist. The proceedings shall be terminated if the Court is not
so satisfied. Any decision by the Registrar or the Court is without prejudice to the
power of the Tribunal to rule on its own jurisdiction.” There is thus an initial filter
in the form of the Registrar, and if the Registrar is of the view that there is a serious
issue to be referred to the SIAC Court, then the SIAC Court will resolve the matter.
However, jurisdictional issues not resolved by the SIAC Court fall to the arbitrators,
and r. 36—which makes decision of SIAC binding—by its terms does not apply to
decisions under r. 25 so that a SIAC ruling on jurisdiction can be rejected by the
arbitrators themselves.
Appeals under section 10 and article 16(3) of the Model Law

Restrictions are imposed upon any appeal from a decision of the High Court under
either s. 10 of the IAA or art. 16(3) of the Model Law. In either case an appeal from
the decision of the High Court shall lie to the Court of Appeal only with the leave
of the High Court (s. 10(4)). There is no appeal to the Court of Appeal against a
refusal for grant of leave of the High Court (s. 10(5)). Under either procedure, any
application or appeal to the High Court does not operate as a stay of the arbitral
proceedings or of execution of any award or order made in the arbitral proceedings
unless the High Court orders otherwise, and no intermediate act or proceeding is
invalidated except so far as the High Court may direct (s. 10(9)–(10)).
Nature of judicial proceedings

If there is an appeal or application on jurisdiction to the High Court, the question
is not mere judicial review but a complete retrial.239 As was said by Rix J in Azov
Shipping Co v. Baltic Shipping Co (No. 1),240 where a party seeks to challenge an
239 Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments Ltd [2010]
SGHC 108; PT First Media TBK v. Astro Nusantara International BV [2013] SGCA 57; Government of the
Lao People’s Democratic Republic v. Sanum Investments Ltd [2015] SGHC 15; AQZ v. ARA [2015] SGHC
49; AKN v. ALC [2015] SGCA 18; Electrosteel Castings Ltd v. Scan-Trans Shipping & Chartering Sdn Bhd
[2003] 1 Lloyd’s Rep 190; Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs of
the Government of Pakistan [2010] UKSC 46; Cukurova Holding AS v. Sonera Holding BV (British Virgin
Islands) [2014] UKPC 15; S Co v. B Co [2014] HKEC 1345.
240 [1999] 1 Lloyd’s Rep 68. See also: Astra SA Insurance and Reinsurance Co v. Sphere Drake
Insurance Ltd [2000] 2 Lloyd’s Rep 550; AOOT Kalmneft v. Glencore [2002] 1 Lloyd’s Rep 128;
Zaporozhye Production Aluminium Plan Open Shareholders Society v. Ashly Ltd [2002] EWHC 1410
(Comm); Electrosteel Castings Ltd v. Scan-Trans Shipping & Chartering SDN BHD [2003] 1 Lloyd’s Rep
190; Peoples’ Insurance Co of China v. Vysanthi Shipping Co Ltd [2003] 2 Lloyd’s Rep 617; Peterson Farms
Inc v. C & M Farming Ltd [2004] 2 Lloyd’s Rep 603; Amec Civil Engineering Ltd v. Secretary of State for
Transport [2004] EWHC 2339 (TCC); Metal Distributors (UK) Ltd v. ZCCM Investment Holdings plc
[2005] EWHC 156 (Comm); Oceanografia SA DE CV v. DSND Subsea AS [2007] 1 Lloyd’s Rep 37.
53
award as to jurisdiction, the court should not be placed in a worse position than the
arbitrators for the purpose of determining that challenge. The court’s function is
to decide whether the arbitrators reached the correct result, not whether they were
entitled to reach the decision they did.241
In principle the court’s jurisdiction to decide on the jurisdiction of an arbitral
tribunal is an original jurisdiction and not an appellate one.242 This is a recognised
exception to the principle that, in assessing a challenge to the award, the court is not
concerned with the merits of the arbitrators’ ruling, and it follows that new evidence
can be adduced. However, that does not necessarily mean that witnesses appearing
before the arbitrators will be recalled for cross-examination243: that will happen only
where the court thinks it necessary, and the matter will generally be resolved by affi-
davit evidence.244 There may nevertheless be a limitation on whether new evidence
can be submitted to the court relating to jurisdiction if this was not put before the
tribunal. Although there is no express restriction on admitting new evidence in the
course of a challenge, the parties should not be encouraged “to seek two evidential
bites of the cherry”.245 It has been held that permission to admit the new evidence
could be refused if it would result in substantial prejudice to the other side which
could not fairly be dealt with in costs or by an adjournment.246
Costs
A complex issue as to costs arises where the arbitrators rule that they possess
jurisdiction but the court rules that they do not. While the court is entitled to set
aside any costs order made by the arbitrators,247 it has been held in England that
the court has no jurisdiction to make its own costs order and to award the costs
of the arbitration to the applicant.248 Conversely, if the arbitrators rule that they
do not possess jurisdiction and make an award accordingly, including costs to the
respondent, a theoretical difficulty arises as to whether the award can be valid at
all, given that the arbitrators did not possess jurisdiction to make an award. These
problems are resolved by IAA, s. 10(7), which provides that in making a ruling or
decision that the arbitrators have no jurisdiction, the arbitrators, the High Court
or the Court of Appeal (as the case may be) may make an award or order of costs
of the proceedings, including the arbitral proceedings (as the case may be), against
any party.249
241 Peterson Farms v. C & M Farming Ltd [2004] 1 Lloyd’s Rep 603.
242 Insigma Technology Co. Ltd v. Alstom Technology Ltd [2008] SGHC 134, affirmed [2009] SGCA
24.
243 Under RC, Ord 23.
244 Insigma Technology Co Ltd v. Alstom Technology Ltd [2009] SGCA 24; AQZ v. ARA [2015]
SGHC 49.
245 Per Gross J in Electrosteel Castings Ltd v. Scan-Trans Shipping & Chartering SDN BHD [2003] 1
Lloyd’s Rep 190.
246 Primetrade AG v. Ythan Ltd [2006] 1 Lloyd’s Rep 457.
247 PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] SGHC 204, [2003] 4 SLR 257.
248 Crest Nicholson (Eastern) Ltd v. Western [2008] EWHC 1325 (TCC).
249 The costs may be taxed under IAA, s. 21, in the usual way: IAA, s. 10(8)).
54
Public policy and arbitrability

11.—(1) Any 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.
(2) The fact that any written law confers jurisdiction in respect of any matter on
any court of law but does not refer to the determination of that matter by arbitra-
tion shall not, of itself, indicate that a dispute about that matter is not capable of
determination by arbitration.
NOTES
Section 11 recognises that there may be limits on what is and what is not permissible
to be determined by arbitration.250 There may be some matters not capable of being
arbitrated because they affect the rights of third parties or because they are matters
for the state. The Court of Appeal in Larsen Oil and Gas Pte Ltd v. Petroprod Ltd251
approved the following list as illustrative of non-arbitrable matters: citizenship,
legitimacy of marriage, grants of statutory licences, validity of registration of trade
marks or patents,252 copyrights, winding up of companies, bankruptcy of debtors253
and administration of estates.254 To that list might be added disputes under cham-
pertous contracts,255 custody disputes and rights over property. Criminal matters
may also be beyond the jurisdiction of arbitrators, although the mere fact that the
conduct of a party is allegedly criminal does not go to jurisdiction.256 It has been
held in England that an unenforceable wager is not arbitrable257 and in Hong Kong
that a bill of exchange is void if it contains an arbitration clause.258 Competition and
consumer protection issues, regulated in Australia have been held to be arbitrable.259
The mere fact that an issue is regulated by law, such as whether a company director
250 For a discussion of the concept of public policy, see the note to s. 31(4).
251 [2011] SGCA 21.
252 Larkden Pty Ltd v. Lloyd Energy Systems Pty Ltd [2011] NSWSC 268.
253 In Larsen itself a distinction was drawn between pre-insolvency and post-insolvency rights. The
former remain arbitrable as they are binding on the luquidator, whereas the latter are not because by
the time of insolvency the statutory regimes have attached and the assets are not available for individual
creditors.
254 See LRRD No. 3/2001, para. 2.37.18, which refers to “citizenship or legitimacy of marriage,
grants of statutory licences, validity of registration of trade marks or patents, copyright, winding up of
companies, bankruptcy of debtors, administration of estates”.
255 In Otech Pakistan Pvt Ltd v. Clough Engineering Ltd [2006] SGCA 46 the Court of Appeal held,
obiter, that the purity of justice and the interests of vulnerable litigants are as important in arbitration
proceedings as they are in litigation. As a result, the doctrine of champerty applies to the former as it
does to the latter. In Law Society of Singapore v. Kurubalan s/o Manickam Rengaraju [2013] SGHC 135, at
para. 67, the court recognised that “[i]n international arbitration, third party funding is a significant issue
especially as it is largely unregulated as compared to the position of third party funders in the domestic
sphere”.
256 Beijing Jianlong Heavy Industry Group v. Golden Ocean Group [2013] EWHC 1063 (Comm);
London Steamship Owners Mutual Insurance Association v. Kingdom of Spain (No 2) [2013] EWHC 3188
(Comm); Interprods Ltd v. De La Rue International Ltd [2014] EWHC 68 (Comm).
257 O’Callaghan v. Coral Racing Ltd (1999, unreported). See further the Note to s. 7.
258 CA Pacific Forex Ltd v. Lei Kuan Leong [1999] 2 HKC 571.
259 Francis Travel Marketing Ltd v. Virgin Atlantic Airways (1996) 39 NSWLR 160, which also
assumed a generous construction of the clause to extend to such disputes.
55
is the alter ego of the company does not render the matter incapable of arbitration
in Singapore.260
There is a general principle that inalienable statutory rights cannot be a rbitrated.261
That has given rise to a particular difficulty concerning arbitration clauses in
shareholder agreements, where a shareholder brings proceedings seeking relief—
ultimately, winding up—in the event of oppression or unjust conduct by those con-
trolling the company.262 It was initially held in England that a dispute which might
lead to the winding up of a company could not be resolved by arbitration,263 but
subsequently—in Fulham Football Club (1987) Ltd v. Richards264 the English Court
of Appeal held that the dispute was arbitrable even though the remedy itself was
available only to the court. That conclusion was applied by the Singapore Court
of Appeal Tomolugen Holdings Ltd v Silica Investors Ltd,265 the Court holding
that the inability of the tribunal to grant all of the reliefs available in judicial pro-
ceedings should not override the agreement of the parties to refer their dispute
to arbitration. The Court of Appeal was similarly unpersuaded by the argument
such an outcome would give rise to procedural complexity, the response being that
such complexity was inevitable wherever third parties were involved. Quiksilver
Greater China Ltd v. Quiksilver Glorious Sun Licensing Ltd (Formerly Named Bright
Easy Ltd)266 was the first case in Hong Kong which required the court to consider
the extent to which it is permissible or appropriate to stay a petition to wind up a
company and require the underlying dispute to be determined in the first instance
in accordance with the arbitration agreement in place. Having place some reliance
on Fulham Football Club, the court stayed the proceedings in favour of arbitration,
holding that the fact that relief sought is not available from an arbitrator is “not a
critical consideration, although it is relevant”. The correct approach in the opinion
of the judge is to identify the substance of the dispute between the parties and ask
whether or not that dispute is covered by the arbitration agreement.
Reference of interpleader issue to arbitration

11A.—Where in proceedings before any court relief by way of interpleader is
granted and any issue between the claimants is one in respect of which there is an
arbitration agreement between them, the court granting the relief may direct the
issue between the claimants to be determined in accordance with the agreement.
260 Aloe Vera of America Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174.
261 Four Pillars Enterprises Co Ltd v. Beiersdorf Aktiengesellschaft [1999] 1 SLR 737; ACD Tridon v.
Tridon Australia [2002] NSWSC 896.
262 In Singapore, under the Companies Act, s. 216.
263 Exeter City AFC v. Football Conference Ltd [2004] 4 All ER 1179, following A Best Floor Sanding
Pty Ltd v. Skyer Australia Pty Ltd [1999] VSC 170 and doubting Re Vocam (Europe) Ltd [1998] BCC
396.
264 [2012] Ch 333.
265 [2015] SGCA 57.
266 [2014] HKCFI 1306.
56
NOTES
Interpleader arises where a party A, who is under an obligation to party B or to
party C, but it is not clear which, invokes the protection of the court by asking it to
determine whether B or C is the obligee. This situation will most commonly arise
where A is in possession of property or money to which both B and C claim an
immediate right to possession: accounting to the wrong party will leave A open to an
action by the other. In those circumstances, A has the right to apply to the court for
interpleader relief, usually in the form of an order that B and C either withdraw their
competing claims, or set their competing claims against one another. The effect of
IAA, s. 11A is that if the issue between B and C is one to which an arbitration agree-
ment applies,267 the court may stay its own proceedings and order that the issue be
decided in accordance with the arbitration agreement. A stay is not mandatory.268
The court’s discretion under this provision is unfettered.269
Powers of arbitral tribunal

12.—(1) Without prejudice to the powers set out in any other provision of this
Act and in the Model Law, an arbitral tribunal shall have powers to make orders or
give directions to any party for—
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
(d) the preservation, interim custody or sale of any property which is or forms
part of the subject-matter of the dispute;
(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;
(f) the preservation and interim custody of any evidence for the purposes of the
proceedings;
(g) securing the amount in dispute;
(h) ensuring that any award which may be made in the arbitral proceedings is
not rendered ineffectual by the dissipation of assets by a party; and
(i) an interim injunction or any other interim measure.
(2) An arbitral tribunal shall, unless the parties to an arbitration agreement have
(whether in the arbitration agreement or in any other document in writing) agreed
to the contrary, have power to administer oaths to or take affirmations of the parties
and witnesses.
(3) An arbitral tribunal shall, unless the parties to an arbitration agreement have
(whether in the arbitration agreement or in any other document in writing) agreed
to the contrary, have power to adopt if it thinks fit inquisitorial processes.
267 See Astrata Singapore (Pte) Ltd v. Tridex Technologies Pte Ltd [2011] 3 SLR 386, where the
arbitration clause did not apply to the dispute.
268 Contrast the position under AA 1996 (Eng), s. 10, where a stay is mandatory.
269 LRRD No. 3/2001, para. 2.4.7.
57
(4) The power of the arbitral tribunal to order a claimant to provide security for
costs as referred to in subsection (1)(a) shall not be exercised by reason only that
the claimant is—
(a) an individual ordinarily resident outside Singapore; or
(b) a corporation or an association incorporated or formed under the law of a
country outside Singapore, or whose central management and control is
exercised outside Singapore.
(5) Without prejudice to the application of Article 28 of the Model Law,
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 High
Court if the dispute had been the subject of civil proceedings in that 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 High Court or a Judge thereof, 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.
NOTES
The powers of arbitrators
Section 12 sets out the procedural and substantive powers of the arbitrators, ranging
from the form of evidence, the grant of interim relief and the remedies which may be
awarded. The various issues covered by IAA, s. 12 require separate treatment. The
section is to be read with the relevant provisions of the Model Law, which supple-
ment the statutory principles. Where the arbitrators are unable to act or the matter
is one of urgency, the court has the power under s 12A to make orders falling within
s 12(1)(d)–(i). Accordingly, the court may not on its own motion order security for
costs or order discovery or the giving of evidence: see the notes to s. 12A. Orders
under s. 12 are not awards and there is no procedure for judicial review of them.270
Section 12 is not expressed to be mandatory, and nor are the relevant provisions
of the Model Law which it supplements. Accordingly, the ability of the arbitrators
or the court to intervene is not available where the parties have contracted out of
the exercise of all or some of the listed powers.271 The mere fact that the arbitration
agreement provides that any dispute is to be submitted to the “exclusive jurisdic-
tion” of arbitrators does not operate to exclude the court’s powers under IAA, s. 12,
as a distinction is to be drawn between substantive and procedural matters, and that
an exclusive agreement refers to the former but not to the latter.272 However, an
arbitration clause which confers exclusivity on the arbitrators not only in relation to
270 PT Pukuafu Indah v. Newmont Indonesia Ltd [2012] SGHC 187.

271 But note that the power to take evidence on oath or affirmation, in s. 12(2), is stated to be subject
to contract when there is no such statement in relation to the powers in s. 12(1).
272 Re Q’s Estate [1999] 1 Lloyd’s Rep 931. Cf. Macob Civil Engineering v. Morrison [1999] BLR 93.
58
the substantive issues but also as regards “other legal proceedings” may be c onstrued
as excluding recourse to curial courts.273
There is nothing in IAA or the Model Law which imposes any duty upon the parties
to adhere to the arbitration agreement and not to hinder the arbitral p rocess.274 It
may be that such a term can be implied into the arbitration agreement, although in
practice there are adequate procedural powers vested in the arbitrators to deal with
any failures in these regards. In particular the arbitrators may draw adverse infer-
ences against party from non-compliance with directions275 and ultimately they may
dismiss a claim by a dilatory claimant.
Enforcement and judicial support

Section 12(6) provides that “orders or directions made or given by an arbitral
tribunal in the course of an arbitration shall, by leave of the High Court or a Judge
thereof, 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”.276 Accordingly, arbitral directions can be enforced by means of applica-
tion to the court,277 so that failure to comply is contempt. This power does not
appear to be widely used: it will normally suffice for arbitrators to issue “unless”
directions, requiring compliance: see also SIAC Rules, r. 24. There is an equivalent
provision in AA 1996 (Eng), s. 42, which permits the court to enforce a rbitrators’
“unless” or “peremptory” orders, and it has been held that an application to enforce
such an order will be readily enforced and that the court will not rehear the matter
so that it can substitute its own views for those of the arbitrators.278 There is,
however, nothing in the IAA or in the Model Law which authorises the making
of a default award dismissing the claim where the claimant has failed to comply
with directions.279 The statutory power may be regarded as a fallback for nervous
arbitrators. It is supplemented to a limited extent by Model Law, art. 25(a), which
authorises the termination of the proceedings if no statement of claim is made
and by Model Law, art. 25(c), which permits the arbitrators to issue an award on
273 Mantovani v. Carapelli SpA [1980] 1 Lloyd’s Rep 375, as explained in Re Q’s Estate [1999] 1
Lloyd’s Rep 931; B v. S [2011] EWHC 691 (Comm).
274 Contrast AA 1996 (Eng), s. 40.
275 PT Central Investindo v. Franciscus Wongso [2014] SGHC 190.
276 This is based on the recommendation of the 1993 Review, para. 35, that “when the arbitral tribu-
nal makes interim orders and/or directions . . . curial assistance should be available such that the interim
orders and/or directions may be registered with the courts for enforcement as an administrative process”.
277 AA 1996 (Eng), s. 41, confers express power upon the arbitrators to make a peremptory order
of this type, but arbitrators presumably have the same power independently of any express statutory
authorisation. See, e.g., the Federal Court of Australia judgment in Electra Air Conditioning BV v. Seeley
International Pty Ltd ACN 054 687 035 [2008] FCAFC 169 and the Supreme Court of Victoria AED Oil
Ltd & Anor v. Puffin FPSO Ltd [2010] VSCA 37 relying thereon for that proposition.
278 Emmott v. Michael Wilson & Partners Ltd [2009] EWHC 1 (Comm). Teare J commented that
enforcement would be refused in exceptional circumstances only, e.g., a material change of circum-
stances after the peremptory order was made, the arbitrators failing to act fairly and impartially, and the
arbitrators making an order which they had no power to make. See also Pratley Wood Farm LLP v. Brake
[2013] EWHC 4035 (Comm)
279 Contrast the position under AA, s. 29(5).
59
the available evidence if one party has failed to appear at a hearing or to produce
documentary evidence.280
Any application under s. 12(6) is to be made to a judge or to the registrar: RC,
Ord. 69A, r. 3(1). If the action is pending, the application is to be made by summons
in the action, and in any other case by originating summons: RC, Ord. 69A, r. 3(2).
Where the case is one of urgency such application may be made ex parte on such
terms as the court thinks fit: RC, Ord. 69A, r. 3(3). Full and frank disclosure of all
material facts at the time of application must be made by the applicant.281 If service
out of the jurisdiction is required, it is necessary to obtain the leave of the court.
An application for the grant of leave must be supported by an affidavit stating the
ground on which the application is made and showing in what place or country the
person to be served is, or probably may be found; and no such leave is to be granted
unless it shall be made sufficiently to appear to the court that the case is a proper
one for service out of the jurisdiction: RC, Ord. 69A, r. 4.
An application for leave to enforce an order or direction given by the arbitrators
must be supported by an affidavit exhibiting a copy of the arbitration agreement
or any record of the content of the arbitration agreement and the original order
or direction made by the arbitral tribunal sought to be enforced, and stating the
provisions in the Act or the applicable rules adopted in the arbitration on which
the applicant wishes to rely: RC, Ord. 69A, r. 5(1). Where the order sought to be
enforced is in the nature of an interim injunction under s. 12(1)(e) or (f), leave is
to be granted only if the applicant undertakes to abide by any order the court or the
arbitral tribunal may make as to damages: Ord. 69A, r. 5(2).
Security for costs

The arbitrators are empowered by s. 12(1)(a) to make an order in favour of the
defendant for security for his costs, and see also SIAC Rules, r. 24. If the power
of the arbitrators to award security for costs has been excluded or is otherwise not
capable of being exercised, the court cannot intervene. Under the original version of
IAA, s. 12, the court was empowered to make any order open to the arbitrators, but
the repeal of that provision and its replacement with IAA, s 12A, has removed the
power of the court to order security for costs. Even when the power existed, it was
unlikely to be exercised, certainly in respect of a foreign arbitration.282
The power of the arbitrators to order security for costs is restricted by s. 12(4),
making it clear that an order cannot be made by reason only of the fact that the
claimant is an individual resident outside Singapore or a company controlled outside
Singapore. The purpose of the restriction is to ensure that an order for security for
costs is made without discrimination on the grounds of nationality or residence
280 Both provisions are subject to contrary agreement.

281 Bahtera Offshore (M) Sdn Bhd v. Sim Kok Beng [2009] SGHC 171.
282 See the much criticised decision of the House of Lords in Coppee-Lavalin SA/NV v. Ken-Ren
Chemicals and Fertilizers [1994] 2 WLR 631, where such jurisdiction was asserted. For the purposes of
English arbitration, AA 1996 (Eng) has now removed from the court the power to grant security for
costs in support of an arbitration, although there is a power in respect of judicial proceedings brought to
challenge an award.
60
in a manner which might inhibit a foreign claimant from pursuing arbitration in
Singapore, and is to be based on the usual criteria for such an order. See Rules of
Court, Ord. 23, which—as modified by s. 12(4)283—permits the court to make an
order for security where the claimant is a nominal claimant who may not be able to
pay the costs, where the claimant’s address is not stated or incorrectly stated or where
the claimant has changed his address with a view to evading the consequences of the
proceedings, and it is just in all the circumstances to make such an order. In practice
an order should be made only if there is a strong likelihood that the claimant will not
be able to meet any costs order or if the claimant’s assets are located in a jurisdiction
in which the enforcement of an award against him might be problematic.284 The
power is not to be used to stifle a claim.285 Although the court cannot itself make an
order for security for costs in arbitration proceedings, judicial authority is instructive
on the manner in which the power is to be exercised. In Gateway Land Pte Ltd v.
Turner (East Asia) Pte Ltd286 the judge, following Sir Lindsay Parkinson & Co v.
Triplan,287 ordered that the arbitration proceedings should proceed without security
for costs, because the respondent construction contractor was in financial difficul-
ties and would not be in a position to continue the arbitration if ordered to provide
security, and because there were sub-contractors whose claims were also affected by
the proceedings. In KS Oriental Trading Pte Ltd v. Defmat Aerospace Pte Ltd,288 on
the other hand, in spite of the impecuniosity of the claimants, the judge declined to
order security for costs where at the end of the hearing there remained considerable
doubt as to the bona fides of the respondents’ defence. It is wholly illegitimate for
arbitrators to use the power to order security for costs in a fashion designed purely
to ensure that they are paid,289 although it is permissible for an arbitrator to include
his own fees and those of SIAC in his order for security for costs.290 The power to
order security for costs may be ordered against counterclaimants as well as claim-
ants, but it cannot be used as against the respondent, on the principle that it would
be unjust to enable a tribunal to order security for costs against a respondent as the
price for being allowed to defend himself.
If an order for security is made but not complied with, the arbitrators may pre-
sumably issue directions under which, in the absence of compliance, a default award
dismissing the claim is to be made. At the very least the claim may be stayed pending
compliance. Alternatively, they—or the defendant in the arbitration p roceedings—
may avail themselves of the power in s. 12(6) to obtain a judgment in the terms of
the directions, so that the court can order the dismissal of the claim.
283 Taken from AA 1996 (Eng), s. 38: LRRD No. 3/2001, para. 2.19.3.
284 Glencore International AG v. Tianjan Huarong Mineral Products Co Ltd [1998] 3 HKC 68. The
1993 Review, para. 46, recommended that “the discretion to order security for costs should be limited
to cases where it is shown that the claimant may not be in a position to satisfy an award for costs made
against it”. That recommendation has not been adopted in the legislation, but is is as a matter of practice
followed by the courts.
285 LRRD No. 3/2001, para. 2.19.3.
286 [1987] 1 SLR 553.
287 [1973] QB 609.
288 [1996] 2 SLR 606. See also: Sembawang Engineering Pte Ltd v. Priser Asia Engineering Pte Ltd
[1992] 2 SLR 806.
289 Wicketts and Sterndale v. Brine Builders [2001] CILL 1805.
290 Dermajaya Properties SDN BHD v. Premium Properties SDN BHD [2002] 2 SLR 164.
61
Procedure and evidence

Article 23(1) of the Model Law lays down the mandatory rule that, within the period
of time agreed by the parties or determined by the arbitral tribunal, the claimant
must state the facts supporting his claim, the points at issue and the relief or remedy
sought, and the defendant must state his defence in respect of these particulars, unless
the parties have otherwise agreed as to the required elements of such statements.291 If
he fails to do so, the arbitral tribunal must terminate the proceedings.292 The parties
may submit with their statements all documents they consider to be relevant or may
add a reference to the documents or other evidence they will submit.293 Article 23(2),
which is not mandatory, allows either party to amend or supplement his claim or
defence during the course of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow such amendment having regard to the delay in
making it. If the defendant defaults, the arbitrators must continue the proceedings,
albeit without treating such failure as an admission of the claimant’s allegations.294
Where an arbitration is conducted on the basis of Model Law, art. 23, the case is to
be determined in accordance with the parties’ pleadings. The arbitrator is not entitled
to go beyond the pleadings and decide on points on which the parties have not given
evidence and have not made submissions. If an arbitrator considers that the parties
have not framed their cases correctly and that certain points need to be addressed,
then he must indicate his concerns to the parties and allow them to make such amend-
ments to their pleadings and to adduce such additional evidence as may be necessary
to deal with those concerns.295 Adherence to the pleadings is not a matter of jurisdic-
tion, which is determined by the submission to arbitration, but rather is a procedural
rule which ensures that each party is aware of the case that has to be answered. The
arbitrator may accordingly allow an alteration to pleadings if there is no objection or no
prejudice, as long as the issue falls within the scope of the submission to arbitration.296
As far as the procedure is concerned, the overriding duty of the arbitrators is
to treat the parties with equality and to give them a full opportunity of present-
ing their respective cases (Model Law, art. 18). SIAC Rules, r. 15, add that the
arbitration shall be conducted in a manner as it considers appropriate to ensure the
fair, expeditious, economical and final determination of the dispute, duties which
are not statutory in Singapore.297 It is mandatory that the parties are to be given
291 This provision has not been adopted by AA 1996 (Eng), and was indeed one of the grounds upon
which wholesale adoption of the Model Law was rejected.
292 Model Law, art. 25(a).
293 This provision was one of the reasons for the rejection of the Model Law in England, the proce-
dure being regarded as unduly rigid.
294 Model Law, art. 25(b).
295 Ng Chin Siau v. How Kim Chuan [2007] SGHC 31, [2007] 2 SLR 789, at para. 26.
296 PT Prima International Development v. Kempinski Hotels SA [2012] SGCA 35, a decision codified
in the 2013 revision of the SIAC Rules, r. 17.5: “A party may amend its claim, counterclaim or other
submissions unless the Tribunal considers it inappropriate to allow such amendment having regard
to the delay in making it or prejudice to the other party or any other circumstances. However, a claim
or counterclaim may not be amended in such a manner that the amended claim or counterclaim falls
outside the scope of the arbitration agreement.”
297 Contrast AA 1996 (Eng), s. 33, which is concerned both with a fair hearing and the adoption of
an appropriate procedure.
62
sufficient advance notice of any hearing and of any meeting of the arbitral tribunal
for the purposes of inspection of goods, other property or documents (Model Law,
art. 24(2)) and that all statements, documents or other information supplied to the
arbitral tribunal by one party are to be communicated to the other party, and any
evidentiary document on which the arbitral tribunal may rely in making its decision
is to be communicated to the parties (Model Law, art. 24(3)). See also SIAC Rules,
r. 21. An award which is reached in breach of the overriding duty may be challenged
under Model Law, art. 34(2)(a)(ii): see the Notes to that provision.
The form that the arbitration takes is entirely a matter for the arbitrators. Article
24(1) of the Model Law provides that, “subject to any contrary agreement by the
parties, the arbitrators shall decide whether to hold oral hearings for the presenta-
tion of evidence or for oral argument, or whether the proceedings shall be con-
ducted on the basis of documents and other materials. However, unless the parties
have agreed that no hearings shall be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings, if so requested by a party”. The
effect is to confer a general discretion on the arbitrators to dispense with an oral
hearing, but they are required—because Model Law art. 23(1) is mandatory—to
hold an oral hearing if one party so requests.298 See also SIAC Rules, r 21.1–2. It
is the practice in certain trades to hold arbitrations on a documents-only basis,299
e.g., “look and sniff” arbitrations in which the only issue is the quality of the subject
matter supplied under the main contract. The arbitrators may, unless the parties
have otherwise agreed in writing, adopt an inquisitorial as opposed to the traditional
adversarial style of hearing: IAA, s. 12(3), which implements the recommendation
in paras 59 and 60 of the 1993 Review. It is unclear whether the common law
permits such an approach.300
Within the broad framework of the arbitration, the procedure to be adopted is
in the first instance one for the parties to determine (Model Law, art. 19(1)) but if
they fail to agree a procedure—which will generally be the case unless standard arbi-
tration rules have been agreed to—then the procedure is to be determined by the
arbitrators, and they have the power to determine matters such as the admissibility,
relevance, materiality and weight of any evidence (Model Law, art. 19(2), and see
also SIAC Rules, r. 22). This is an elaborate method of stating that, subject to con-
trary agreement and subject to their duty to act fairly under Model Law art. 18, the
arbitrators have complete discretion as to how they deal with evidence and there is
no recourse against their factual findings.301 Prior to this provision the view was that
298 AA 1996 (Eng) does not require an oral hearing to be held on request, but in Ocean Marine
Navigation Ltd v. Koch Carbon Inc, The Dynamic [2003] 2 Lloyd’s Rep 693 Simon J warned that arbitra-
tors should be flexible and should consider holding a hearing where appropriate. See also Pacol Ltd v.
Joint Stock Co Rossakhar [2000] 1 Lloyd’s Rep 109, O’Donoghue v. Enterprise Inns plc [2008] EWHC
2273 (Ch) and Boulos Gad Tourism & Hotels Ltd v. Uniground Shipping Company Ltd, November 2001,
unreported.
299 See General Construction Ltd v. Aegon Insurance Co (UK) Ltd, 1999, unreported; Paul v. Royal and
Sun Alliance Insurance Group plc, 1999, unreported.
300 It has been adopted in England by AA 1996 (Eng), s. 34(2)(g).
301 Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220. Findings of fact are not
challengeable as errors of law: Demco Investments and Commercial SA v. SE Banken Forsakring Holding
Aktiebolag [2005] 2 Lloyd’s Rep 250, rejecting the contrary views expressed in Fence Gate Ltd v. NEL
Construction Ltd (2001) 82 Con LR 41 and Guardcliffe Properties Ltd v. City & St James [2003] 2 EGLR
63
arbitrators were required to follow rules on admissibility,302 although there was little

authority on the wider question of whether rules of evidence in general were man-
datory in arbitrations. The general power of the arbitrators to determine the pro-
cedure means that they also have the right to lay down the time at which evidence
is presented, and it is therefore perfectly proper for the arbitrators to give the last
word to the respondent rather than the claimant, contrary to the procedure adopted
in litigation.303 The traditional view of the weighting of evidence has been that any
demonstrable failure by the arbitrators to give weight to what the court regarded
as material evidence amounted to grounds for setting aside the award,304 but that
argument has now disappeared subject to the overriding need of the arbitrators to
act fairly. Accordingly, as long as the arbitrators have put their mind to the issue of
weight the award cannot be challenged.305
The principle that the arbitrators are masters of their own procedure means that
they may vary the procedure during the course of the arbitration, and in particular
may reverse any of their own previous procedural rulings provided that in doing so
they adhere to the general fairness principle set out in Model Law, art. 12: issue
estoppel appears not to apply to procedural rulings.306
Obtaining evidence
Under s. 12(1)(b) and (c) the arbitrators have power to give directions and make
orders as regards discovery of documents and interrogatories, and the giving of
evidence by affidavit: these powers are mandatory and are not subject to contrary
agreement. Such orders are not automatic and the appropriate orders have to
be made on application by the parties where appropriate. If discovery has been
ordered, it is subject to the rules of privilege, preventing discovery of documents
which are privileged as between lawyer and client or documents which are confi-
dential, e.g., because they have been prepared for the purposes of some other set
of arbitration proceedings. The arbitrators are entitled to accept at face value an
undertaking given by counsel in the arbitration that full discovery has been made in
compliance with the arbitrators’ order.307 The arbitrators also have, under s. 12(2)
and unless agreed to the contrary power to administer oaths to, or to take affirma-
tions from, parties and witnesses. The attendance of witnesses can be ordered by the
court following an application under IAA, s. 14.
16. Under the IAA there is no appeal on the ground of error of law, so this point does not in any event
arise.
302 See, e.g., Brown v. CBS Contractors [1987] 1 Lloyd’s Rep 279. But see Living Waters Christian
Centres Ltd v. Fetherstonaugh [2000] 2 EGLR 1.
303 Margulead Ltd v. Exide Technologies [2004] 2 All ER (Comm) 727.
304 E.g., Trayfoot v. Lock [1957] 1 All ER 423.
305 Lewis Emmanuel Sons Ltd v. Sammut [1959] 2 Lloyd’s Rep 629; Marklands Ltd v. Virgin Retail
Ltd [2004] 2 EGLR 43.
306 Charles M Willie Co (Shipping) Ltd v. Ocean Laser Shipping Ltd, The Smaro [1999] 1 Lloyd’s Rep
225.
307 Lincoln National Life Insurance Co v. Sun Life Assurance Co of Canada, American Phoenix Life and
Reassurance Co and Phoenix Home Life Mutual Insurance Co [2004] 1 Lloyd’s Rep 737, reversed on other
grounds [2005] 1 Lloyd’s Rep 606.
64
Language and representation

The Model Law allows the parties to agree the language of the arbitration and, in the
absence of agreement, the language is to be determined by the arbitrators (Model
Law, art. 22(1)). The arbitrators also have the right to order that any documentary
evidence is to be accompanied by translation into the language of the arbitration
(Model Law, art. 22(2)). See, to similar effect, SIAC Rules, r. 19.
There is nothing in IAA or the Model Law which touches upon the right of rep-
resentation, but if SIAC Rules are adopted any party may be represented by legal
practitioners or other representatives: SIAC Rules, r. 20.308
Experts
The power of the arbitrators to appoint an expert is set out in the Model Law rather
than in the IAA.309 Article 26(1), which is not mandatory, permits the arbitrators
(a) to appoint one or more experts to report to them on specific issues determined
by them, and (b) to require a party to give the expert any relevant information, doc-
uments or property for the purpose of the opinion. Subject to contrary agreement,
either party may request that the expert, having delivered his report, participates at
a hearing at which the parties are free to put questions to him and to present their
own expert testimony.310 That point aside, the arbitrators must communicate to the
parties any expert report on which they rely in making their decision (Model Law,
art. 24(3)). See also SIAC Rules, r. 23.
The experts who may be appointed may be legal311 or technical. An expert is
a person who can give the arbitrators substantive assistance: a draftsman who is
appointed by the arbitrators to prepare the award according to their instructions
is not an “expert” for these purposes.312 The Model Law does not stipulate that
the arbitrators are given the right to allow any expert to attend the proceedings,
although the issue is invariably resolved by agreement. The authorities on experts
make it clear that the arbitrators cannot delegate their decision-making powers to
an expert without the consent of the parties.313 The costs of any expert are generally
treated as the costs of the arbitration.
308 See also AA 1996 (Eng), s. 36, which permits representation in much the same way. English law
does not allow a party to insist upon a particular individual as his representative and to refuse to partici-
pate until that individual is available, thereby delaying the proceedings. In the event of unavailability, the
implication is that some other person may be chosen. The right to be represented does not necessarily
extend to every aspect of the proceedings. In How Engineering Services Ltd v. Lindner Ceilings Floors
Partitions plc [1999] All ER (Comm) 374 an arbitrator was held not to have acted unfairly by excluding
lawyers from a meeting between experts.
309 It was said in Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220 that it was
arguable that the arbitrators had the power to dispense with expert evidence.
310 A common law requirement: Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39,
noted in LRRD No. 3/2001, para. 2.18.
311 Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83.
312 Agrimex Ltd v. Tradigrain SA [2003] 2 Lloyd’s Rep 537.
313 See, e.g., Eastern Counties Railway Co v. Eastern Union Railway Co (1863) De G J Sm 610; Price v.
Carter [2010] EWHC 1451 (TCC).
65
Security
Section 12(1)(d)–(i) sets out the measures which may be adopted by the arbitra-
tors themselves, or by the courts under s. 12A where the arbitrators cannot act, by
way of security in the arbitration. See also SIAC Rules, r. 24. The section relates
to Model Law, art. 9, which confers upon the courts the power to grant interim
measures of protection, and to Model Law, art. 17, which (subject to agreement)
confers upon the arbitrators the right to grant interim measures in respect of the
subject matter of the dispute.
The first group of provisions is concerned with the subject matter of the
arbitration. The following orders may be made: the preservation, interim custody
or sale of any property which is or forms part of the subject matter of the dispute
(s. 12(1)(d));314 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 (s. 12(1)(e));315 and the preservation and interim custody of
any evidence for the purposes of the proceedings (s. 12(1)(f). Contracts for the sale
of goods—particularly items such as ships—often themselves contain inspection
clauses whereby the decision to purchase rests upon the outcome of an inspec-
tion by the purchaser or an independent third party (e.g., a classification society).
If such provisions do exist, they may render the need for an order under IAA, s.
12(1) superfluous. More significantly, if the inspection provisions are more limited,
the courts will not permit the claimant to use the section to obtain an inspection
beyond that to which he was entitled under the contract.316 If the property is in the
possession of a party, the order can plainly be made by the arbitrators, but if it is
in the possession of a third party then court intervention under IAA, s. 12A will be
required: if the third party is outside the jurisdiction then it will be necessary to seek
the permission of the court under the Rules of Court to serve him outside the juris-
diction on the basis that he is a necessary and proper party to the proceedings.317
An order can be made against a third party where it can be shown that a question
ocuments318 in his hands of a third party as long as those
has arisen in relation to d
documents can be identified either specifically or by class.319
The second group is concerned with the arbitration proceedings themselves.
Three measures may be taken: securing the amount in dispute (s. 12(1)(g); ensuring
314 See Emmott v. Michael Wilson & Partners Ltd [2009] EWHC 1 (Comm), where the order related
to disputed shares. The right to call for payment under a bank guarantee is not “property”: Bocotra
Construction Pte Ltd v. Attorney General [1995] 2 SLR 523.
315 This includes contractual rights, so that interim relief can be granted to restrain breach of
contract: Cetelem SA v. Roust Holdings Ltd [2005] 2 Lloyd’s Rep 494; Thye Hin Enterprises Sdn Bhd v.
Daimlerchrysler Malaysia Sdn Bhd [2005] 1 MLJ 293; I-Expo Sdn Bhd v. TNB Engineering Corporation
Sdn Bhd [2007] 3 MLJ 53.
316 Tsako’s Shipping Trading SA v. Orizon Tanker Co Ltd, The Centauras Mar [1998] CLC 1003.
317 This in turn means that the other party to the arbitration must have been served at the date of
application for service out against the third party, failing which there are no proceedings in respect of
which the third party can be joined. See: The Cienvik [1996] 2 Lloyd’s Rep 395; Tate & Lyle Industries
Ltd v. CIA Usina Bulhoes [1997] 1 Lloyd’s Rep 355; Vale do Rio Doce Navegacos SA v. Shanghai Bao Steel
Ocean Shipping Co Ltd and Sea Partners Ltd [2000] 2 Lloyd’s Rep 1.
318 Including computer material: Assimina Maritime Ltd v. Pakistan Shipping Corporation [2005] 1
Lloyd’s Rep 525.
319 Assimina Maritime Ltd v. Pakistan Shipping Corporation [2005] 1 Lloyd’s Rep 525.
66
that any award which may be made in the arbitral proceedings is not rendered inef-
fectual by the dissipation of assets by a party (s. 12(1)(h)); and an interim injunc-
tion or any other interim measure (s. 12(1)(i)). Section 12(1)(g) and 12(1)(i) both
appear to authorise the grant of freezing injunctions. The 1993 Review, para. 47,
felt that the power to grant injunctions should be confined to the courts, but that
recommendation was not adopted in the IAA.320 However, in practice, it will not be
possible for arbitrators to make orders which bind third parties and the power will
in practice be exercised by the courts under s. 12A.
Remedies
Section 12(5)(a) states that the arbitrators may award any remedy or relief that
could have been ordered by the High Court if the dispute had been the subject of
civil proceedings in that court. For the powers of the High Court, see the Supreme
Court of Judicature Act 1993, Cap. 322. The provision is made subject to Model
Law, art. 28, which empowers the arbitrators to decide the dispute in accordance
with such rules of law as are chosen by the parties. It is unclear whether this means
that the parties can agree that the arbitrators are free to grant remedies which would
not otherwise be available in the common law, e.g., apportionment rather than
avoidance, punitive damages or the recognition of a doctrine of partial repudiation.
Arbitrators do, by virtue of this section, have the power to award damages, rectifi-
cation, injunctive relief, contribution, declarations321 and specific performance.322
The section is nevertheless subject to contrary agreement, so that a clause which
removes from the arbitrators the power to grant injunctive relief also has the effect
of limiting the jurisdiction of the arbitrators to disputes which can be resolved other
than by an injunction.323
An order for the payment of money is plainly the most common remedy. The
courts have power to award money in any currency,324 and at common law arbitra-
tors have the same power.325 Guidelines as to when a claim may be made in a foreign
currency have been laid down by the courts.326 SIAC Rules provide s pecifically for
the remedy of rectification: r. 24.1.
320 But it has been adopted in the AA, ss 29–31.

321 A declaratory award may give rise to conceptual difficulties with the running of the limitation
period, as if it is merely declared that one party has a particular right it is probably the case that the limita-
tion period for the enforcement of such a right runs from the date of its infringement rather than from the
date of the declaration. See generally Hayter v. Nelson (No. 1) 1989, unreported. It is also difficult to see
how a court can enforce a declaration (Tridon Australia Pty Ltd v. Acd Tridon Inc [2004] NSWCA 146),
although such an award is at least to be recognised in subsequent judicial proceedings.
322 For reasons which are not fully clear, English arbitration law has never expressly conferred upon
arbitrators the power to grant specific performance of contracts. That restriction is retained by AA 1996
(Eng), but has been removed from both the international and domestic codes in Singapore: LRRD
No. 3/2001, para. 2.24.1.
323 Vertex Data Science Ltd v. Powergen Retail Ltd [2006] 2 Lloyd’s Rep 591.
324 This power was originally denied to the English courts by the old principle confirmed by the
House of Lords in Re United Railways of the Havana and Regla Warehouses Ltd [1961] AC 1007, but that
case was overturned by their Lordships in Miliangos v. George Frank (Textiles) Ltd [1976] AC 443.
325 Jugoslavenska Oceanska Plovidba v. Castle Investments Co Inc [1974] QB 292.
326 Most recently in Virani Ltd v. Manuel Revert y CIA SA [2004] 2 Lloyd’s Rep 14, applying Services
67
Interest
See the notes to IAA, s. 20, below.
Court-ordered interim measures

12A.—(1) This section shall apply in relation to an arbitration —
(a) to which this Part applies; and
(b) irrespective of whether the place of arbitration is in the territory of Singapore.
(2) Subject to subsections (3) to (6), for the purpose of and in relation to an
arbitration referred to in subsection (1), the High Court or a Judge thereof shall
have the same power of making an order in respect of any of the matters set out in
section 12(1)(c) to (i) as it has for the purpose of and in relation to an action or a
matter in the court.
(3) The High Court or a Judge thereof may refuse to make an order under subsec-
tion (2) if, in the opinion of the High Court or Judge, the fact that the place of arbi-
tration is outside Singapore or likely to be outside Singapore when it is designated
or determined makes it inappropriate to make such order.
(4) If the case is one of urgency, the High Court or a Judge thereof may, on the
application of a party or proposed party to the arbitral proceedings, make such
orders under subsection (2) as the High Court or Judge thinks necessary for the
purpose of preserving evidence or assets.
(5) If the case is not one of urgency, the High Court or a Judge thereof shall make
an order under subsection (2) only on the application of a party to the arbitral pro-
ceedings (upon notice to the other parties and to the arbitral tribunal) made with the
permission of the arbitral tribunal or the agreement in writing of the other parties.
(6) In every case, the High Court or a Judge thereof shall make an order under
subsection (2) only if or to the extent that the arbitral tribunal, and any arbitral or
other institution or person vested by the parties with power in that regard, has no
power or is unable for the time being to act effectively.
(7) An order made by the High Court or a Judge thereof under subsection (2)
shall cease to have effect in whole or in part (as the case may be) if the arbitral
tribunal, or any such arbitral or other institution or person having power to act in
relation to the subject-matter of the order, makes an order which expressly relates
to the whole or part of the order under subsection (2).
NOTES
Scope of court’s power to grant interim measures
Section 12A implements the principle in Model Law, art. 9 that it is not incompat-
ible with an arbitration agreement for a party to request interim measures from a
competent court. This provision was added by amendment in 2010 and closely
resembles AA 1996 (Eng), s. 44. It replaced s. 12(7) of the IAA, under which the
Europe Atlantique Sud v. Stockholms Rederiaktiebolag Svea, The Folias [1979] AC 685. See also The Texaco
Melbourne [1994] 1 Lloyd’s Rep 473.
68
court was empowered to make the same orders as the arbitrators in respect of any
of the matters set out in IAA, s. 12(1)(a)–(i). The section does not sanction the
grant of permanent relief, e.g. in the form of a permanent anti-suit injunction.327
IAA, s. 12A has made two significant changes to the law: by setting out the crite-
ria which have to be satisfied before the court can intervene; and, in s. 12A(2), by
restricting the power of the court to make orders in respect of:
(d) the preservation, interim custody or sale of any property which is or forms
part of the subject matter of the dispute;
(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;
(f) the preservation and interim custody of any evidence for the purposes of the
proceedings;
(g) securing the amount in dispute;
(h) ensuring that any award which may be made in the arbitral proceedings is
(i) an interim injunction or any other interim measure.
The IAA removed the power of the court to grant interim measures in respect
of: (a) security for costs in the arbitration;328 (b) discovery of documents and
interrogatories; and (c) giving of evidence by affidavit. The Singapore approach,
following that of England, is that if the parties have not conferred these powers
upon the arbitrators, or the arbitrators are unwilling to exercise them, then the
court should not intervene. The remaining powers are concerned with the effective
conduct of the arbitration.
Before the passing of s. 12A a question had arisen as to whether a court could
order pre-arbitration discovery. The point was discussed in Woh Hup (Pte) Ltd v.
Lian Teck Construction Pte Ltd,329 where the application was initially in respect of
arbitration but was subsequently modified to relate to judicial proceedings only,
so the point did not actually arise. The Court of Appeal’s view was that a party
to an arbitration agreement had the right to apply to the court for pre-arbitration
discovery, but the court would refuse the application if the arbitration agreement on
the face of things covered the dispute, as such an order would usurp the powers of
the arbitrators—once appointed—in respect of the arbitral proceedings. It was sub-
sequently held in Equinox Offshore Accommodation Ltd v. Richshore Marine Supplies
Pte Ltd330 that there was a jurisdictional bar on the grant of pre-action discovery for
327 R1 International Pte Ltd v. Lonstroff AG [2014] SGHC 69, applying AES Ust-Kamenogorsk
Hydropower Plant JSC v. Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35, where the Supreme
Court ruled that the power to grant injunctions arose under the general law and not under the English
arbitration legislation. As noted in R1 International Pte Ltd v. Lonstroff AG, the power to grant permanent
injunctions arises under s. 4 of the Civil Law Act 1999, but was not to be exercised in respect of foreign
arbitrations: see People’s Insurance Co Ltd v. Akai Pty Ltd [1997] 2 SLR(R) 291.
328 The court may of course order security for costs in respect of applications for the court to chal-
lenge an award under RC, Ord. 23. See, e.g., Zhong da Chemical Development Co Ltd v. Lanco Industries
Ltd [2009] SGHC 112.
329 [2005] SGCA 26, applied in Richland Logistics Services Pte Ltd v. Biforst Singapore Pte Ltd [2006]
SGHC 137.
330 [2010] SGHC 122.
69
the purposes of arbitral proceedings. The implementation of IAA, s. 12A, remov-

ing the power of the courts to order discovery of documents, has confirmed that
an application for pre-action discovery in support of arbitration proceedings is not
within the jurisdiction of the court.
It is uncertain whether the parties can agree to confer upon the courts any powers
beyond those in IAA, s. 12A.331 That is thought to be unlikely for two reasons: in
general terms it is not open to the parties to confer jurisdiction upon a court, that
is a matter for legislation; and art. 5 of the Model Law—which is incorporated into
the IAA, states that a court is not permitted to intervene except where so provided
in the Model Law.
An application for interlocutory orders or directions under s. 12A of the IAA
must be made to a judge or the registrar, and any application must, where an action
is pending, be made by summons in the action, and in any other case by originating
summons (RC, Ord. 69A, r. 3(1)–(2)).
Geographical scope
It was held under the now repealed IAA, s. 12(7), that the courts of Singapore
did not have jurisdiction to grant relief in favour of foreign arbitral proceedings,
i.e., those whose seat was not in Singapore: Swift-Fortune Ltd v. Magnifica Marine
SA.332 However, now, IAA, s. 12A(1) permits the court to act where the arbitration
is governed by IAA, irrespective of whether the place (which presumably means
the seat) of the arbitration is Singapore. However, IAA, s. 12A(3) states that an
order may be refused if, in the opinion of the High Court or judge, the fact that the
place of arbitration is outside Singapore or likely to be outside Singapore when it is
designated or determined makes it inappropriate to make such order. It has been
held in England that it is generally appropriate to intervene only where the seat of
the arbitration is within the jurisdiction333 or where the assets in respect of which
security is sought are located within the jurisdiction.334
Relationship between court and arbitrators

The now repealed IAA, s. 12(7) permitted the court to make the same orders as the
arbitrators but did not attempt to determine the relationship between the powers of
the arbitrators and the powers of the court, so that as framed the legislation appears
to confer concurrent powers. That issue does not arise under AA, where the powers
331 The point was left open in England in Sabmiller Africa v. East African Breweries Ltd [2010] EWCA
Civ 1564, on the basis that the agreement between the parties did not purport to extend the court’s
jurisdiction.
332 [2007] 1 SLR 629 disapproving Front Carriers Ltd v. Atlantic & Orient Shipping Corp [2006] 3
SLR 854. Swift-Fortune was applied in Petroval SA v. Stainby Overseas Ltd [2008] 3 SLR 856 and also in
Wu Yang Construction Group Ltd v. Zhejiang Jinyi Group Co Ltd [2008] 2 SLR 350.
333 Malhotra v. Malhotra [2012] EWHC 3020 (Comm); U & M Mining Zambia Ltd v. Konkola
Copper Mines Ltd [2013] EWHC 260 (Comm). In Crowther v. Rayment [2015] EWHC 427 (Ch) it was
held that there has to be a connection between the jurisdiction and the arbitration, and not between the
jurisdiction and the parties.
334 Mobil Cerro Negro Ltd v. Petroleos de Venezuela SA [2008] 1 Lloyd’s Rep 684.
70
of the arbitrators (AA, s. 28) and those of the courts (AA, s. 31) are separated out
and the courts will act only by having regard to any application to, and order of,
the arbitrators themselves if such an order is possible. It was nevertheless clear from
NCC International AB v. Alliance Concrete Singapore Pte Ltd335 that the courts would
not intervene under IAA, s. 12(7) where the arbitrators themselves could have
acted. It was thus suggested in the first edition of this work that it was only where
the arbitrators themselves had—by virtue of the agreement of the parties—no power
to act,336 or the issue arose before the arbitration had commenced337 or the order
would affect a third party,338 or there was some degree of urgency involved,339 that
recourse could be had to the court.340
The position has now been clarified by IAA, s. 12A. There is an initial jurisdic-
tional threshold in s. 12A(6) that the order may be made only to the extent that the
arbitrators, or any other arbitral institution, cannot act effectively.341 The emergency
arbitrator procedure in the SIAC Rules is therefore likely to cut out pre-arbitration
applications in most cases. Assuming that there is no power to act effectively, the
court’s jurisdiction further depends upon whether the matter is one of urgency. If
so, s. 12A(4) provides that an order may be made for the purpose of preserving
evidence or assets. If the matter is not one of urgency, then under s. 12A(5) the
court may act only where the applicant has given notice to the other party and to the
arbitrators, and the application is made with the permission of the arbitral tribunal
or the agreement in writing of the other parties. In any event, an order will cease to
have effect where the arbitrators or an arbitral body themselves become vested with
the power to make the order: s. 12A(7).
It follows that if an application has been made to the arbitrators there is nothing
in the IAA or the Model Law which permits the court to interfere with the exercise
of the arbitrators’ interlocutory powers, because the court may exercise supervisory
jurisdiction only following the making of an award, although judicial intervention
is possible in an urgent case where the arbitrators have yet to rule on the matter.342
If the arbitrators refuse to exercise their powers, their decision cannot be attacked.
By contrast, if they decide to exercise their powers, that exercise can be challenged
335 [2008] 2 SLR 565. See also: Attorney General v. Vianini Lavori SpA [1991] 1 HKC 423; The
Lady Muriel [1995] 2 HKC 320; Leviathan Shipping Co Ltd v. Sky Sailing Overseas Co Ltd [1998] 4 HKC
347; Marnell Corrao Associates Inc v. Sensation Yachts Ltd (2000) 15 PRNZ 608; Pathak Ltd v. Tourism
Transport Ltd [2002] 3 NZLR 681.
336 Starlight Shipping Co v. Tai Ping Insurance Co [2008] 1 Lloyd’s Rep 230.
337 NB Three Shipping Ltd v. Harebell Shipping Ltd [2005] 1 Lloyd’s Rep 509.
338 Pacific Maritime (Asia) Ltd v. Holystone Overseas Ltd [2008] 1 Lloyd’s Rep 371.
339 These are the tests laid down for judicial intervention in respect of security by AA 1996 (Eng),
s. 44. Security aside, AA 1996 (Eng) has removed the concurrent power of the court to adopt procedural
measures.
340 It is of interest to note that the 1993 Review, para. 31, commented that extended powers “should
be made concurrently exercisable by the arbitral tribunal and (to the extent that curial intervention is
allowed in respect of international arbitrations) by the Court, the liberty being given to either party to
choose to make such applications to the Court or the arbitral tribunal as that party deems expedient”.
This is plainly not an appropriate approach.
341 If the tribunal has not been appointed, but appointment could be speedy, the court has no juris-
diciotn to intervene, as in Zim Integrated Shipping Services Ltd v. European Container KS [2013] EWHC
3581 (Comm), where the parties had appointed their arbitrators and the only missing appointment was
the chairman.
342 Barnwell Enterprises Ltd v, ECP Africa FII Investments LLC [2013] EWHC 2517 (Comm).
71
indirectly by disobedience to the order made by the arbitrators: it is then open to the
party adversely affected by the order to challenge its validity where an application is
made to the court for the enforcement of the order under s. 12(6).
If an application is made to the court for interim relief in support of judicial pro-
ceedings, e.g., for some form of injunction which the court has the power to grant
under its general powers in relation to litigation,343 the court may exercise those
powers even though there is an arbitration agreement between the parties and it
is possible that the defendant may seek a stay of the judicial proceedings. The fact
that a stay is subsequently obtained does not retrospectively invalidate the court’s
order.344
Orders for security

Section 12(1)(g) and 12(1)(i), as applied by s. 12A, authorise the grant of
injunctions,345 most importantly freezing injunctions. A freezing injunction may be
made by the court only where there is reason to believe that the respondent will seek
to shift his assets into a jurisdiction where they cannot be reached,346 or otherwise
dissipate them other than in a bona fide fashion,347 and even then the application
must be made without delay and all material facts must be disclosed to the court
on a without notice application (failing which the order can be set aside).348 IAA,
s. 12(1) is not limited to freezing injunctions in respect of the preservation of evi-
dence and assets, and can be used to prevent the respondent from frustrating the
arbitration in ways other than by the disposal of his assets, e.g., by pre-empting the
outcome of the arbitration or by moving assets following an award.349
The power to make an order ensuring that any award is not rendered ineffectual
may be illustrated by Hiscox Underwriting v. Dickson Manchester & Co Ltd,350 in
343 RC, Ord. 29, r. 1. In Electra Air Conditioning BV v. Seeley International Pty Ltd ACN 054 687 035
[2008] FCAFC 169, it was held that while the parties had agreed to arbitration by a sole arbitrator, the
general presumption of one-stop adjudication had been rebutted by a clause in the agreement stating that
nothing would prevent the parties from seeking injunctive or declaratory relief (without specific reference
in the clause to the arbitrator or the court)—while an arbitrator appointed under the agreement would
have such powers, it did not necessarily follow that the arbitrator should be the sole repository of such
powers.
344 Gildepath Holdings BV v. Thompson [2004] EWHC 2234 (QB).
345 See York International Pte Ltd v. Voltas Ltd [2013] SGHC 124, BS Mount Sophia Pte Ltd v.
Join-Aim Pte Ltd [2012] SGCA 28, and Astrata (Singapore) Pte Ltd v. Tridex Technologies Pte Ltd [2010]
SGHC 250 (a string of recent cases, each involving an application for injunction to restrain enforcement
of performance bond pending outcome of arbitration).
346 Spectramed Pte Ltd v. Lek Puay Puay [2010] SGHC 112; Solvadis Commodity Chemicals GmbH v.
Affert Resources Pte Ltd [2014] 1 SLR 174; Hsin Chong Construction (Asia) Ltd v. Henble Ltd [2005] 3
HKC 27.
347 Manzi v. GD Hilton Ltd [2007] NZHC 28.
348 See, e.g., Swift-Fortune Ltd v. Magnifica Marine SA, The Capaz Duckling [2008] 1 Lloyd’s Rep
54; Emmott v. Michael Wilson & Partners Ltd [2009] EWHC 1 (Comm); Raffles Education Corporation
Ltd v. Mills [2007] NZHC 1271. For the established guidelines on the circumstances in which a freezing
injunction should be enforced, see Dadourian Group Int Inc v. Simms [2006] 2 Lloyd’s Rep 354.
349 Tsavliris Salvage (International) Ltd v. The Grain Board of Iraq [2008] EWHC 612 (Comm).
350 [2004] 2 Lloyd’s Rep 438. See also: National Insurance and Guarantee Corporation Ltd v. Young
Legal Services Ltd [2005] 2 Lloyd’s Rep 46, where the court ordered the handing over of documents to
the claimant in advance of the commencement of an arbitration by the defendant and any application by
the defendant to stay judicial proceedings. Cf. Cetelem SA v. Roust Holdings [2005] 2 Lloyd’s Rep 494.
72
which the court made an order requiring the respondent underwriting agents to
hand over details of insurance policies which they had written on behalf of the
claimant insurers, as the issue in the arbitration was whether the respondents were
seeking to place renewal business with their own parent company rather than the
claimants and it was a matter of urgency for the claimants to know how pending
renewals were being treated. Again, in Permasteelisa Japan UK v. Bouygesstroi351 a
temporary injunction was granted to prevent a call on a performance bond, as the
disputed sums formed a part of the arbitration.
Under the Model Law neither the arbitrators nor the court have power to grant
permanent relief. IAA, s. 12(1) is not so limited, but it is unlikely that permanent
relief is contemplated. Accordingly, if a permanent injunction is sought, it will be
necessary to apply to the court under its general power to grant permanent relief.352
Preservation of assets
The court may make an order preserving assets in the case of urgency.353 It was
held by the English Court of Appeal in Cetelem SA v. Roust Holdings Ltd354 that the
word “assets” included the very contractual rights in dispute between the parties.
That meant that the court could restrain a party from acting in a manner inconsist-
ent with the contract pending the making of any arbitration award. The Singapore
Court of Appeal in Maldives Airports Co Ltd and another v. GMR Malé International
Airport Pte Ltd355 held that IAA, s. 12A(4), which is in more or less identical terms
to the English legislation, was to be construed as conferring upon the Singapore
courts the same power possessed by their English counterparts. However, the Court
of Appeal in Maldives was concerned that exercise of such powers might usurp the
role of the arbitrators, and accordingly the section was to be “confined to such con-
tractual rights as lend themselves to being preserved”. The provision could thus not
be used to order a recalcitrant seller to deliver goods allegedly due under a contract,
and generally should not be used for mundane breaches of contract which could be
resolved by the payment of damages: accordingly, the section was to be confined
to the grant of relief in cases of irreparable harm. The Court of Appeal also held,
following Cetelem, that relief had to be “necessary” to preserve assets, so that if other
remedies were available or the respondent has given suitable undertakings in respect
of the assets356 then the court had no jurisdiction. On the facts the Court of Appeal
held that it had no jurisdiction to grant an injunction preventing the respond-
ent from proceeding with a contractual right to require the claimant to vacate an
international airport which the claimant was occupying under a concession.
It was pointed out by the English High Court in Zim Integrated Shipping Services
351 [2007] All ER (D) 97 (TCC).

352 Permanent relief is in principle freely available for breach of an arbitration clause: Steamship
Mutual Underwriting Association (Bermuda) Ltd v. Sulpicio Lines Inc [2008] EWHC 914 (Comm).
353 See Seele Middle East FZE v. Drake & Scull International Co SA [2014] EWHC 435 (TCC):
urgent need to prevent misuse of claimant’s intellectual property rights in the property.
354 [2005] 2 Lloyd’s Rep 494. See also Thye Hin Enterprises Sdn Bhd v. Daimlerchrysler Malaysia
Sdn Bhd [2005] 1 MLJ 293; I-Expo Sdn Bhd v. TNB Engineering Corporation Sdn Bhd [2007] 3 MLJ 53
355 [2013] SGCA 16.
356 Telenor East Holding II AS v. Altimo Holdings & Investments Ltd [2014] EWHC B5 (Comm).
73
Ltd v. European Container KS357 that the reference to “assets” as opposed to “alleged
assets” meant that the court might be required to make a determination as to
the ownership of disputed property, thereby undermining the role of the arbitra-
tors, and for that reason it was arguable that the court had no jurisdiction unless
ownership was not disputed.
Anti-suit injunctions
One of the most important practical applications of the grant of interim measures
is the anti-suit injunction, by which a party who has agreed to go to arbitration can
be restrained from commencing judicial proceedings in some other jurisdiction in
breach of the agreement.358 The jurisdiction is based upon a breach of contract by
the respondent, conduct which is regarded as vexatious and oppressive. In England
it has been decided that the test for the grant of relief is “whether or not the appli-
cant has shown on the material adduced at the interlocutory hearing a high degree
of probability that there was [an arbitration] agreement”.359 The high level nature of
the test is justified by the consideration that a temporary injunction is likely to have
permanent effect in that it will prevent foreign proceedings until the arbitrators have
been given the opportunity to determine their own jurisdiction. The power to grant
injunctive relief is discretionary, although it will normally be exercised in favour
of the grant of an injunction unless the foreign proceedings are at an advanced
stage or if there is a risk of conflicting decisions.360 The refusal of the foreign court
357 [2013] EWHC 3581 (Comm).

358 WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka [2002] 3 SLR 603; Pena Copper
Mines Ltd v. Rio Tinto Co Ltd (1911) 105 LT 846; Aggeliki Charis Compania Maritima SA v. Pagnan
SA, The Angelic Grace [1995] 2 Lloyd’s Rep 87; Shell International Petroleum Co Ltd v. Coral Oil Co Ltd
[1999] 1 Lloyd’s Rep 72; XL Insurance Ltd v. Owens Corning [2000] 2 Lloyd’s Rep 500; Welex AG v.
Rosa Maritime Ltd [2003] 2 Lloyd’s Rep 509; American International Speciality Lines Insurance Co v.
Abbott Laboratories [2004] Lloyd’s Rep IR 815; Goshawk Dedicated Ltd v. ROP Inc [2006] Lloyd’s Rep IR
711; Kallang Shipping SA v. AXA Assurances Senegal [2007] 1 Lloyd’s Rep 160; West Tankers Inc v. Ras
Riunione Adriatica di Sicurta SpA, The Front Comor [2005] 2 Lloyd’s Rep 257, not addressed on appeal
[2007] 1 Lloyd’s Rep 391 (where the claimant was in reality an insurer exercising subrogation rights).
Contrast Regalindo Resources Pte Ltd v. Seatrek Trans Pte Ltd [2008] 3 SLR 930, where an application was
refused. If the claim is brought by a third party in its own name under legislation which confers a direct
action, but the action as classified by the law of Singapore is derived from the contract rather than from
the legislation, the third party is treated as being in the same position as the original party and thus can be
restrained from overseas proceedings by means of an anti-suit injunction: Shipowners’ Mutual Protection
and Indemnity Association (Luxembourg) v. Containerships Denizcilik Nakliyat Ve Ticaret AS [2015] EWHC
258 (Comm), disapproving the earlier more timid approach in Through Transport Mutual Insurance
Association (Eurasia) Ltd v. New India Assurance Co Ltd [2005] 1 Lloyd’s Rep 67 and Markel International
Co Ltd v. Craft [2007] Lloyd’s Rep IR 403 where the court thought it sufficed to grant a declaration.
359 Transfield Shipping Inc v. Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3629 (QB),
applied in Midgulf International Ltd v. Groupe Chimiche Tunisien [2009] 2 Lloyd’s Rep 411, Malhotra v.
Malhotra [2012] EWHC 3020 (Comm) and Rochester Resources Ltd v. Lebedev [2014] EWHC 2926
(Comm).
360 Aggeliki Charis Compania Maritima SA v. Pagnan SpA, The Angelic Grace [1995] 2 Lloyd’s Rep
87; Schiffahrtsgesellschaft Detlev von Appen GmbH v. Voest Alpine Intertrading, The Jay Bola [1997] 2
Lloyd’s Rep 279; Alfred C Toepfer International v. Société Cargill France [1998] 1 Lloyd’s Rep 379; Shell
International Petroleum Co Ltd v. Coral Oil Co Ltd [1999] 1 Lloyd’s Rep 72; Bankers Trust Co v. P T
Jakarta International [1999] 1 Lloyd’s Rep 910; Verity Shipping SA v. Chartworld Shipping Corporation,
The Skier Star [2008] 1 Lloyd’s Rep 652; Midgulf International Ltd v. Groupe Chimique Tunisien [2010]
74
361
to stay its own proceedings, or the grant of an order preventing the applicant
from seeking anti-suit relief,362 are not decisive considerations. The order may be
extended to third parties connected to the respondent who are capable of frustrating
the injunction by bringing proceedings in their own name.363
An anti-suit injunction may also be used to prevent a party who has lost the arbi-
tration from reopening the issues resolved by the arbitrators in some other forum364
and to prevent a party seeking to invoke curial jurisdiction in a place other than that
of the seat of the arbitration,365 although the arbitrators themselves plainly have no
jurisdiction to make an order once their award has been given.
If the defendant is not within the jurisdiction of the Singapore courts, he may be
served outside the jurisdiction under the Rules of Court. If the arbitration is to be
held in Singapore, then the commencement of foreign proceedings amounts to a
breach in Singapore of the agreement to go to arbitration and the relevant jurisdic-
tion will exist.366
If judicial proceedings are commenced in some other jurisdiction in breach of an
arbitration clause, and those proceedings are successfully stayed by the applicant
or he is awarded an anti-suit injunction, he is entitled to damages for breach of
the arbitration clause, representing the legal costs incurred by him in bringing the
proceedings to an end.367
If a party to an arbitration has a claim against a shipowner, it is perfectly legiti-
mate to arrest the vessel in another jurisdiction by way of security for the arbitration,
but it is not legitimate to do so in a way which confers substantive jurisdiction on the
foreign court.368 It is also the case that any foreign substantive judgment reached in
breach of an arbitration clause will not be recognised or enforced in Singapore.369
An anti-suit injunction granted by the court was continued until further order in
WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka.370 The defendants’
argument that their entitlement to commence the action in the Sri Lanka court was
EWCA Civ 66; Terna Bahrain Holding Company WLL v. Al Shamsi [2012] EWHC 3283 (Comm);
Rochester Resources Ltd v. Lebedev [2014] EWHC 2926 (Comm).
361 Bannai v. Erez [2013] EWHC 3689 (Comm).
362 Ecom Agroindustrial Corporation Ltd v. Moshataf Composite Textile Mill Ltd [2013] EWHC 1276
(Comm)
363 BNP Paribas SA v. Open Joint Stock Company Russian Machines [2012] 1 Lloyd’s Rep 61;
Bannai v. Erez [2013] EWHC 3689 (Comm).
364 Noble Assurance Co v. Gerling-Konzern General Insurance Co (UK) [2008] Lloyd’s Rep IR 1.
365 C v. D [2008] 1 Lloyd’s Rep 239.
366 Youell v. Kara Mara Shipping Co [2000] 2 Lloyd’s Rep 102, construing the English equivalent of
RC, Ord. 11, r. 1(1)(e).
367 Kyrgyz Mobil v. Fellowes International [2005] EWHC 1314 (Comm); A v. B (No. 2) [2007] 1
Lloyd’s Rep 358; National Westminster Bank plc v. Rabobank Netherland (No. 3) [2008] 1 Lloyd’s Rep
16; C v. D [2008] 1 Lloyd’s Rep 239; CMA CGM SA v. Hyundai Mipo Dockyard Co Ltd [2008] EWHC
2791 (Comm). The claim is one which will fall within the jurisdiction of the arbitrators, and there is
no estoppel against them from awarding damages even though the foreign court has held that there is
no arbitration clause: CMA CGM SA v. Hyundai Mipo Dockyard Co Ltd [2008] EWHC 2791 (Comm).
368 Kallang Shipping SA Panama v. Axa Assurance Senegal [2008] EWHC 2761 (Comm); Sotrade
Denizcilik Sanayi ve Tikaret AS v. Amadou Lo, The Duden [2008] EWHC 2762 (Comm).
369 WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka [2002] 3 SLR 603.
370 [2002] 3 SLR 603. In Ashlock William Grover v. SetClearPte Ltd [2012] SGCA 20 the Court of
Appeal, employing the words of Millett LJ in The Angelic Grace [1995] 1 Lloyd’s Rep 87, emphasised that
the court’s jurisdiction in respect of interlocutory anti-suit injunctions should be exercised only sparingly
and with great caution.
75
not the subject of the reference to arbitration was dismissed. Sokana Industries Inc v.
Freyre & Co371 was distinguished on the grounds that in that case, the defendants’
cause of action in the Florida court was a separate settlement agreement which was
not the subject of an arbitration agreement, whereas in WSG Nimbus the action in
the Sri Lanka court was based on the underlying agreement containing the arbi-
tration clause. The judge observed that continuation of the court proceedings in
Sri Lanka would constitute a breach by that state of obligations under the New York
Convention and went on to note that the intention behind the Act is to “promote
the growth of Singapore as a venue for international arbitrations and the courts
must do their part by taking a robust approach when faced with applications under
s. 12(6)”.
At first sight there is a potential overlap between the general power to issue tem-
porary relief in RC, Ord. 29, r. 1 and the specific statutory power in IAA, s. 12A,
to issue a temporary injunction. The most important difference is procedural, in
that an application under s. 12A is made under RC, Ord. 69A whereas a general
application is to be made under RC, Ord. 29, r. 1. A series of English authorities
took the view that the two provisions overlapped372 and that where the application
was made under the general power the court should impose the same restrictions
as were applicable to an arbitration application,373 i.e., under IAA, s. 12A, only
where the arbitrators are themselves unable to act or the matter is one of urgency.
However, the UK Supreme Court in AES Ust-Kamenogorsk Hydropower Plant JSC v.
Ust-Kamenogorsk Hydropower Plant LLP374 held that an application for an anti-suit
injunction was one to restrain a breach of contract by the party bringing the foreign
proceedings and was not one in relation to an arbitration: in that case the applicant
had no intention of bringing arbitration proceedings but merely wished to prevent
itself being sued in a foreign court in breach of an arbitration clause.
Witnesses may be summoned by subpoena

13.—(1) Any party to an arbitration agreement may take out a subpoena to testify
or a subpoena to produce documents).
(2) The High Court or a Judge thereof 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.
(3) The High Court or a Judge thereof may also issue an order under s. 38 of the
371 [1994] 2 Lloyd’s Rep 57.

372 XL Insurance v. Owens Corning [2000] 2 Lloyd’s Rep 500; Hiscox Underwriting Ltd v. Dixon
Manchester Holdings Ltd [2005] 2 Lloyd’s Rep 494; Cetelem SA v. Roust Holdings Ltd [2005] 2 Lloyd’s
Rep 494; ETI Euro Telecom International NV v. Republic of Bolivia [2008] EWCA Civ 89l; Emmott v.
Michael Wilson & Partners Ltd [2008] 1 Lloyd’s Rep 616.
373 So held in England: Starlight Shipping Co v. Tai Ping Insurance Co [2008] 1 Lloyd’s Rep 230;
Mobil Cerro Negro Ltd v. Petroleos de Venezuela SA [2008] 1 Lloyd’s Rep 684. In Sheffield United Football
Club Ltd v. West Ham United Football Club plc [2008] EWHC 2855 (Comm) a temporary injunction was
granted to restrain an attempt to appeal to an appeal tribunal against an arbitration award in circum-
stances where the appeal tribunal did not possess the relevant jurisdiction.
374 [2013] UKSC 35. See also Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v.
Containerships Denizcilik Nakliyat Ve Ticaret AS [2015] EWHC 258 (Comm).
76
Prisons Act (Cap. 247) to bring up a prisoner for examination before an arbitral
tribunal.
(4) No 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.
NOTES
Section 13 supplements Model Law, art. 27, which permits a party with the consent
of the arbitrators, or the arbitrators themselves, to apply for a subpoena to compel a
witness to attend and give evidence. It would not seem to matter that the seat of the
arbitration is not in Singapore.375
Arbitrators have jurisdiction only over the parties themselves, although the assis-
tance of the court has to be invoked where the arbitrators do not have the necessary
powers conferred upon them or where evidence from a third party is necessary
to the arbitration.376 There is no need for the applicant to obtain the consent of
the arbitrators under s. 13, although if the arbitrators have the necessary power
themselves then those powers must in the first instance be exhausted, any applica-
tion to the court behind the backs of the arbitrators risks being treated as abuse of
process.377
Section 13 contains the basic right of a party to use court procedures under the
Rules of Court to secure the attendance of witnesses and the production of docu-
ments or other evidence by that witness. The relevant procedures for subpoenas are
set out in Ord. 38, rr 14–23, as applied by RC, Ord. 69, r. 7. In court proceedings,
a subpoena may be used to secure the attendance of the witness at the trial, or for
examination at a hearing prior to trial, or to require the witness to produce docu-
ments to the court at the trial or at a hearing prior to trial. A witness summons
is used not just to secure the attendance of a witness who is reluctant to come to
court but also, for example, to enable the witness to produce evidence (e.g., to an
employer) of the requirement to attend court or to secure priority so that the witness
is not summonsed to appear elsewhere on the same day.
An order will be made only if the evidence is necessary for a fair disposal of the
issues in the arbitration, so that if equivalent evidence is available from one of the
parties there is no basis for the making of an order.378 Any order must also be con-
fined to requiring the witness to produce specific documents, fishing expeditions
not being permitted.379 In any event the court has no jurisdiction in support of
an arbitration to order general discovery by a third party.380 Documents must be
375 See the Australian decision Transfield Philippines Ltd v. Luzon Hydro Corporation [2002] VSC
4857, which concerned support for a Singaporean arbitration being conducted in Melbourne. Cf. AA
1996 (Eng), s. 2(3)(a), which expressly extends the power of the English court to arbitrations seated
outside England if the witness is England and the arbitration is being physically conducted in England.
376 ALC v. ALF [2010] SGHC 231.
377 ALC v. ALF [2010] SGHC 231.
378 South Tyneside Borough Council v. Wickes Building Supplies Ltd [2004] EWHC 2428 (Comm).
379 Government of the Lao People’s Democratic Republic v. Santum Investments Ltd [2013] SGHC 183;
Sunderland Steamship P&I Association v. Gatoil International Inc, The Lorenzo Halcoussi [1998] 1 Lloyd’s
Rep 180; South Tyneside Borough Council v. Wickes Building Supplies Ltd [2004] EWHC 2428 (Comm);
Assimina Maritime Ltd v. Pakistan Shipping Corporation [2005] 1 Lloyd’s Rep 525; Tajik Aluminium
Plant v. Hydro Aluminium AS [2006] 1 Lloyd’s Rep 155.
380 BNP Paribas v. Deloitte and Touche LLP [2004] 1 Lloyd’s Rep 233 (Comm); Assimina Maritime
77
“described in some compendious manner that enabled the individual documents

falling within the scope of the [order] to be identified”.381
Section 13(4) preserves any rights that a witness may have to withhold evidence,
based on privilege or any duty of confidentiality.382
Law of arbitration other than Model Law

15.—(1) If the parties to an arbitration agreement (whether made before or after
1st November 2001) have expressly agreed either—
(a) that the Model Law or this Part shall not apply to the arbitration; or
(b) that the Arbitration Act (Cap. 10) or the repealed Arbitration Act (Cap. 10,
1985 Ed.) shall apply to the arbitration,
then, both the Model Law and this Part shall not apply to that arbitration but the
Arbitration Act or the repealed Arbitration Act (if applicable) shall apply to that
arbitration.
(2) For the avoidance of doubt, a provision in an arbitration agreement referring
to or adopting any rules of arbitration shall not of itself be sufficient to exclude the
application of the Model Law or this Part to the arbitration concerned.
NOTES
The section was amended by the International Arbitration (Amendment) Act 2001
(No. 38 of 2001) to reverse previous authority on that provision.
Section 15(1) permits the parties to contract out of both the IAA and the Model
Law by agreeing that one or other of them shall not apply or by agreeing that AA
shall apply. The exclusion has to be express and not, as had been held under the
original version of s. 15, implicit by the adoption of inconsistent arbitral rules.383 It
is clear that the exclusion of either the Model Law or IAA will operate to exclude
both of them, because they are to be read together: “Parliament’s intention and
preference was and is that, where Singapore is the place of arbitration and the arbi-
tration is an international one, both the Model Law and Pt II should be read and be
applied together. Even if the arbitration were a domestic one and the parties agree
that the Model Law or Pt II is to apply, then both the Model Law and Pt II should
be read and be applied together.”384 Section 15(2) confirms that the adoption of
arbitration rules does not amount to a contracting out: for the relationship between
adopted rules and the legislative measures, see s. 15A.
Ltd v. Pakistan Shipping Corporation [2005] 1 Lloyd’s Rep 525; Vibroflotation AG v. Express Builders Co
Ltd [1994] 3 HKC 263
381 Tajik Aluminium Plant v. Hydro Aluminium AS [2006] 1 Lloyd’s Rep 155.
382 See Body Corporate No. 189855 v. North Shore City Council [2006] NZHC 1267, where docu-
ments were found not to be protected by confidentiality.
383 Coop International v. Ebel SA [1998] 3 SLR 670; John Holland Pty Ltd (Fka John Holland
Construction & Engineering Pty Ltd) v. Toyo Engineering Corp (Japan) [2001] 2 SLR 262 (adoption of
ICC Rules). This remains the position in Australia: Australian Granites Ltd v. Eissenwerk Hensel Bayreuth
[2001] Qld Rep 461.
384 Dermajaya Properties SDN BHD v. Premium Properties SDN BHD [2002] 2 SLR 164, para. 84,
rejecting the holding in Coop International v. Ebel SA [1998] 3 SLR 670 that, where the parties had
excluded IAA, the domestic arbitration code (now AA) was automatically applicable. See also PT Garuda
Indonesia v. Birgen Air [2002] 1 SLR 393, which makes the point that IAA and the Model Law run together.
78
Application of rules of arbitration

15A.—(1) It is hereby declared for the avoidance of doubt that a provision of
rules of arbitration agreed to or adopted by the parties, whether before or after the
commencement of the arbitration, shall apply and be given effect to the extent that
such provision is not inconsistent with a provision of the Model Law or this Part
from which the parties cannot derogate.
(2) Without prejudice to subsection (1), subsections (3) to (6) shall apply for the
purposes of determining whether a provision of rules of arbitration is inconsistent
with the Model Law or this Part.
(3) A provision of rules of arbitration is not inconsistent with the Model Law or
this Part merely because it provides for a matter on which the Model Law and this
Part is silent.
(4) Rules of arbitration are not inconsistent with the Model Law or this Part
merely because the rules are silent on a matter covered by any provision of the
Model Law or this Part.
(5) A provision of rules of arbitration is not inconsistent with the Model Law or
this Part merely because it provides for a matter which is covered by a provision of
the Model Law or this Part which allows the parties to make their own arrangements
by agreement but which applies in the absence of such agreement.
(6) The parties may make the arrangements referred to in subsection (5) by
agreeing to the application or adoption of rules of arbitration or by providing any
other means by which a matter may be decided.
(7) In this section and section 15, “rules of arbitration” means the rules of arbi-
tration agreed to or adopted by the parties including the rules of arbitration of an
institution or organisation.
NOTES
Section 15A attempts to regulate the position where the parties have adopted their
own rules of arbitration or have incorporated standard rules, e.g., those of SIAC.
Section 15(1) permits the parties to contract out of the IAA and the Model Law,
and s. 15(2) confirms that merely adopting arbitration rules does not operate as a
contracting out. Section 15A deals with the situation in which arbitration rules have
been agreed between the parties. Section 15A was made necessary by the decision in
Dermajaya Properties SDN BHD v. Premium Properties SDN BHD,385 which held that
the new version of s. 15 meant that if the parties adopted institutional rules (there,
the UNCITRAL Rules) inconsistent in any way with the IAA or the Model Law,
none of the chosen institutional rules would operate.
Section 15A(1) sets out the basic rule that if the parties have adopted arbitration
rules, then those rules prevail over any provision of the Model Law or the IAA
other than a provision which is mandatory. By s. 15A(3) there is no inconsistency
if the Model Law or IAA is silent on a matter, and under s. 15A(4) if the rules are
silent then any express provision of the Model Law or the IAA will prevail. Section
15A(5)–(6) deals with the situation in which the Model Law or the IAA provide a
385 [2002] 2 SLR 164.
79
default rule which may be ousted by agreement: arbitration rules may override such
a default rule if they expressly deal with the point. See also SIAC Rules, r. 1.1.
In Insigma Technology Co Ltd v. Alstom Technology Ltd386 the parties opted for
arbitration under ICC Rules, with the arbitration to be administered by SIAC. It
was held that the agreement was not one for an arbitration conducted by the ICC,
but rather was one to be conducted by SIAC in accordance with ICC Rules, as the
parties had agreed.
A reference to rules of arbitration is presumed to be a reference to the procedural
rules current at the date of the commencement of the arbitration.387
Appointment of conciliator
16.—(1) Where an agreement provides for the appointment of a conciliator by a
person who is not one of the parties and that person refuses to make the appoint-
ment or does not make it within the time specified in the agreement or, if no
time is so specified, within a reasonable time of being requested by any party to
the agreement to make the appointment, the Chairman for the time being of the
Singapore International Arbitration Centre may, on the application of any party
to the agreement, appoint a conciliator who shall have the like powers to act in the
conciliation proceedings as if he had been appointed in accordance with the terms
of the agreement.
International Arbitration Centre under subsection (1).
(3) Where an arbitration agreement provides for the appointment of a conciliator
and further provides that the person so appointed shall act as an arbitrator in the
event of the conciliation proceedings failing to produce a settlement acceptable to
the parties—
(a) no objection shall be taken to the appointment of such person as an arbitra-
tor, or to his conduct of the arbitral proceedings, solely on the ground that
he had acted previously as a conciliator in connection with some or all of
the matters referred to arbitration;
(b) if such person declines to act as an arbitrator, any other person appointed
as an arbitrator shall not be required first to act as a conciliator unless a
contrary intention appears in the arbitration agreement.
(4) Unless a contrary intention appears therein, an agreement which provides for
the appointment of a conciliator shall be deemed to contain a provision that in the
386 [2009] SGCA 24. See also HKL Group Co Ltd v. Rizq International Holdings Pte Ltd [2013]
SGHCR 08, noting that SIAC was willing in Insigma to conduct an ICC arbitration and that the same
could occur where, as here, the clause required arbitration under the auspices of the non-existent
“Arbitration Committee at Singapore” under ICC Rules.
387 Black & Veatch Singapore Pte Ltd v. Jurong Engineering Ltd [2004] 4 SLR 19; Acclaim Insurance
Brokers Pte Ltd v. Navigator Investment Services Ltd [2009] SGCA 45; Car & Cars Pte Ltd v. Volkswagen
AG [2009] SGHC 233, where the contract referred to the “rules for the time being in force”, taken
to mean the time the arbitration was commenced; AQZ v. ARA [2015] SGHC 49; Bunge SA v. Kruse
[1979] 1 Lloyd’s Rep 279; China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd’s
Rep 76; Kaneria v. England and Wales Cricket Board Ltd [2014] EWHC 1348 (Comm).
80
event of the conciliation proceedings failing to produce a settlement acceptable to
the parties within 4 months, or such longer period as the parties may agree to, of the
date of the appointment of the conciliator or, where he is appointed by name in the
agreement, of the receipt by him of written notification of the existence of a dispute,
the conciliation proceedings shall thereupon terminate.
(5) For the purposes of this section and section 17—
(a) any reference to “conciliator” shall include a reference to any person who
acts as a mediator;
(b) any reference to “conciliation proceedings” shall include a reference to
mediation proceedings.
NOTES
The IAA is unusual in making express provision for conciliation, defined by s. 16(5)
as including mediation in its various forms: in other jurisdictions conciliation is
regarded as a purely voluntary process to be agreed or arranged by the parties them-
selves, although it is increasingly the case in the common law world that conciliation
and other forms of mediation may be ordered by courts in the exercise of their case
management powers.
Section 16(1) is concerned with conciliation agreements, and provides that
the conciliation agreement can be given effect by an application to the Chairman
of SIAC for the appointment of a conciliator. A distinction has to be drawn
between a binding agreement388 and one which simply expresses the intention389
or desire of the parties to reach a voluntary settlement before instituting arbitra-
tion proceedings. If the provision falls into the latter category, there is simply
an unenforceable agreement to agree390 and s. 16 will not apply to it, although
if proceedings are subsequently brought before a court then whether or not
the agreement is binding the court may stay its proceedings so that the dispute
can be referred to some form of mediation.391 It is doubtful whether arbitrators
have any power of stay in this way. If conciliation has been commenced by the
appointment of a conciliator, either by the parties or by SIAC on application, the
388 Now a wide concept. The Singapore courts have rejected the traditional narrow English approach
to the effect of such clauses (see, e.g., Wah v. Grant Thornton International Ltd [2012] EWHC 3198), and
have ruled that mediation and other ADR clauses negotiated in good faith should be given legal effect:
HSBC Institutional Trust Services (Singapore) Ltd v. Toshin Development Singapore Pte Ltd [2012] SGCA
48; International Research Corporation plc v. Lufthansa Systems Asia Pacific Pte Ltd [2012] SGHC 226.
More recently the English courts have indicated that a wider view of such clauses might be taken: see
Emirates Trading Agency LLC v. Prime Mineral Exports Pte Ltd [2014] EWHC 2104 (Comm), holding that
a clause requiring the parties to seek to resolve any differences by “friendly discussion” was both binding
and a condition precedent to arbitration, so that until the process had been completed the arbitrators
had no jurisdiction.
389 Tramtrack Croydon Ltd v. London Bus Services [2007] EWHC 107 (Comm); Holloway and
Holloway v. Chancery Mead Ltd [2007] EWHC 2495 (TCC).
390 Paul Smith Ltd v. H & S International Holdings Ltd [1991] 2 Lloyd’s Rep 127; Halifax Financial
Services Ltd v. Intuitive Systems Ltd [1999] 1 All ER (Comm) 303; Balfour Beatty Construction Northern
Ltd v. Modus Corovest (Blackpool) Ltd [2008] EWHC 3029 (TCC). But see the wider view adopted in
Petromec Inc v. Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891.
391 Cable & Wireless plc v. IMB UK Ltd [2002] EWHC 2059 (Comm); Flight Training International v.
International Fire Training Equipment Ltd [2004] EWHC 721 (Comm); Hyundai Engineering & Construction
Co Ltd v. Vigour Ltd [2004] 440 HKCU 1.
81
procedure terminates after four months unless the parties agree that it should be
extended: IAA, s. 16(4).
Section 16(3) is concerned with the situation in which conciliation has failed but
the parties have agreed that the conciliator should be appointed as arbitrator.392
That person is allowed to act as arbitrator without any objection by the parties
on that ground alone, although if he declines and another person is appointed
as arbitrator he is not required to repeat the conciliation process. The main dif-
ficulty with a conciliator acting as arbitrator is that the parties may have disclosed
confidential information or made concessions which are designed purely for the
purpose of achieving a voluntary settlement. Plainly the conciliation proceedings
have to be regarded as being “without prejudice” to what may be argued in the
arbitration.
Power of arbitrator to act as conciliator

17.—(1) If all parties to any arbitral proceedings consent in writing and for so
long as no party has withdrawn his consent in writing, an arbitrator or umpire may
act as a conciliator.
(2) An arbitrator or umpire acting as conciliator—
(a) may communicate with the parties to the arbitral proceedings collectively or
separately; and
(b) shall treat information obtained by him from a party to the arbitral proceed-
ings as confidential, unless that party otherwise agrees or unless subsection
(3) applies.
(3) Where confidential information is obtained by an arbitrator or umpire from a
party to the arbitral proceedings during conciliation proceedings and those proceed-
ings terminate without the parties reaching agreement in settlement of their dispute,
the arbitrator or umpire shall before resuming the arbitral proceedings disclose to all
other parties to the arbitral proceedings as much of that information as he considers
material to the arbitral proceedings.
(4) No objection shall be taken to the conduct of arbitral proceedings by a person
solely on the ground that that person had acted previously as a conciliator in accord-
ance with this section.
NOTES
Section 17 allows the parties to agree that the appointed arbitrator may act as con-
ciliator (defined by IAA, s. 16(5), as including a mediator). The major problem,
as commented in the Notes to s. 17, is the need to preserve the confidentiality and
without prejudice nature of any conciliation proceedings. This is provided for by
s. 17(2)–(4).
392 For an illustration of this possibility, see Acorn Farms Ltd v. Schnuriger [2003] 3 NZLR 121. In
the absence of such agreement, it is unlikely that a conciliator would be permitted to act as arbitrator:
Glencot Development and Design Co Ltd v. Ben Barrett & Son (Contractors) Ltd [2001] BLR 207.
82
Award by consent
18.—If the parties to an arbitration agreement reach agreement in settlement
of their dispute and the arbitral tribunal has recorded the terms of settlement in
the form of an arbitral award on agreed terms in accordance with Article 30 of the
Model Law, the award—
(a) shall be treated as an award on an arbitration agreement; and
(b) may, by leave of the High Court or a Judge thereof, 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.
NOTES
Article 30 of the Model Law states that if the parties settle the dispute during the
course of the arbitration, the arbitrators are to terminate the proceedings and—if
required by the parties and not objected to by the arbitrators—produce a consent
award. See also SIAC Rules, r. 28.8. Any such award has the same status as an
award arising from contested proceedings. Section 18 amplifies this point and
provides that the award may be enforced under IAA, s. 19, in the same way as any
other award on the merits of the dispute. Article 30 of the Model Law requires the
award to state that it is a consent award and is to be signed by the arbitrators, but
the usual requirement for reasons to be given under Model Law, art. 31 is waived
(Model Law, art. 31(2). There is nothing in the Model Law about costs and inter-
est, although it is inevitably the case that the parties’ agreement makes specific
provision for these matters. It is difficult to see the basis on which arbitrators might
object to signing a consent award, although there may in exceptional circumstances
be policy reasons for this, e.g., where the arbitrators take the view that the proceed-
ings were designed to evade tax or launder the proceeds of crime. If the settlement
is not embodied in an award, it will nevertheless be an enforceable contract, and any
failure to honour the settlement will permit the innocent party to bring an action on
the settlement itself rather than on the original contract.
The arbitrators have no right, unless invited by the parties, to become involved
in any settlement negotiations. In particular they have no right to give directions
to the parties as to how the settlement negotiations are conducted and what the
scope of the negotiations should be. An attempt by the arbitrator, in Wicketts and
Sterndale v. Brine Builders,393 to control the settlement negotiations by directions in
order to secure payment of his own fee, was described by the court as “outrageous”
and merited the removal of the arbitrator.
Any application to the court to enforce the award is to be made to a judge or to
the registrar: RC, Ord. 69A, r. 3(1). If the action is pending the application is to
be made by summons in the action, and in any other case by originating summons:
RC, Ord. 69A, r. 3(2). Such application may be made ex parte on such terms as
the court thinks fit whether or not it is urgent: RC, Ord. 69A, r. 3(3). If service out
of the jurisdiction is required, it is necessary to obtain the leave of the court. An
application for the grant of leave under this Rule must be supported by an affidavit
393 [2001] CILL 1805.
83
stating the ground on which the application is made and showing in what place or
country the person to be served is, or probably may be found; and no such leave is
to be granted unless it shall be made sufficiently clear to appear to the court that the
case is a proper one for service out of the jurisdiction: RC, Ord. 69A, r. 4.
Enforcement of awards
19.—An award on an arbitration agreement may, by leave of the High Court or
a Judge thereof, 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.
NOTES
Awards made in a New York Convention country other than Singapore are enforce-
able in Singapore under the New York Convention, as implemented by Part III of
IAA, ss 27–33: see below. Section 19 relates to the enforcement of “international
domestic” awards,394 i.e., Singapore awards made under the IAA. That terminology
was used in PT First Media TBK v. Astro Nusantara International BV.395 In Astro the
Court of Appeal held that s. 19 is to be construed as importing all of the defences
to an action for enforcement under the Model Law, as replicated in the New York
Convention and IAA, s. 31(1). Thus, s. 19 may be relied upon to contest an award
for want of jurisdiction even though the award debtor has not first exercised its
statutory right under art. 16(3) of the Model Law (and, presumably, the parallel
right under IAA, s. 10) to challenge the award in the Singapore courts for want of
jurisdiction.
Section 19 encompasses two separate concepts. The first is that an award may, by
the leave of the court, be enforced in the same manner as a judgment. The second
is that the court may enter judgment in terms of the award.
The application for leave for the award to be enforced is to be made under RC,
Ord. 69A, r. 6. The application may be made without notice to the other parties
(RC, Ord. 69A, r. 6(1)), although if this is the case the applicant must in accordance
with general principles relating to without notice orders disclose all material facts to
the court.396 The application 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 thereof
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 transla-
tion 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 abode or business of the applicant (referred to in this Rule as the
creditor) and the person against whom it is sought to enforce the award (referred
to in this Rule as the debtor) respectively; and (c) as the case may require, stating
394 [2013] SGCA 57.

395 [2013] SGCA 57.
396 Curacao Trading BV v. Harkisandas & Co [1992] 2 Lloyd’s Rep 186; Socadec SA v. Pan Afric
Impex Co Ltd [2003] EWHC 2086 (QB).
84
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” (RC, Ord. 69A, r. 6(1)). An order
giving leave must be drawn up by or on behalf of the creditor and must be served
on the debtor by delivering a copy to him personally or by sending a copy to him at
his usual or last known place of abode or business or in such other manner as the
court may direct (RC, Ord. 69A, r. 6(2)). If it is necessary to effect service outside
the jurisdiction, there is no need for the permission of the court to be obtained
(Ord. 69A, r. 6(3)). Service may be set aside on application to the court (RC, Ord.
69A, r. 6(4)), and the order served upon the defendant must state that the right to
so apply exists (RC, Ord. 69A, r. 6(5)). If the order is silent on the point the order
is not thereby nullified and the court retains jurisdiction to hear the application.397
Any application is to be made to a judge or to the registrar: RC, Ord. 69A, r. 3(1).
If the action is pending the application is to be made by summons in the action, and
in any other case by originating summons: RC, Ord. 69A, r. 3(2). Such application
may be made ex parte on such terms as the court thinks fit: RC, Ord. 69A, r. 3(3).
The enforcement order is purely in respect of the award itself: the court cannot
correct deficiencies in the award, e.g., by awarding interest up to the date of payment
if this was not included in the award itself.398 Further, leave under s. 19 does not
amount to a court order in its own right,399 so that if there is a subsequent failure to
honour the award the defaulting party cannot be said to be in contempt of court.400
Leave may, however, be given in respect of only a part of the award.401
The execution of an enforcement order may be stayed by the court under its
general powers, if enforcement would be inexpedient402: this power may be exer-
cised where there are outstanding proceedings between the parties involving a
counterclaim or a challenge to the award.403
It appears from the judgment in SC Rolinay Sea Star Srl v. Owners and Charterers
of the Ship “Bumbesti”, The Bumbesti,404 that the court has no jurisdiction to arrest a
vessel as security for the enforcement of an arbitration award on a charterparty, as
the obligation of the parties to honour the award arises not out of the charterparty
but out of an implied obligation in the award itself.
397 Re An Arbitration Between Hainan Machinery Import & Export Corporation and Donald & McArthy
Pte Ltd [1996] 1 SLR 34
398 Walker v. Rome [2000] 1 Lloyd’s Rep 116; Pirtek v. Deanswood [2005] 2 Lloyd’s Rep 728.
399 ED & F Man Sugar Ltd v. Lendoudis [2007] 2 Lloyd’s Rep 579.
400 ASM Shipping Ltd of India v. TTMI Ltd (No. 2) [2007] 2 Lloyd’s Rep 155.
401 ASM Shipping Ltd of India v. TTMI Ltd [2006] 1 Lloyd’s Rep 401; IPCO (Nigeria) Ltd v.
Nigerian National Petroleum Corporation (No. 2) [2008] EWCA Civ 1157.
402 Far Eastern Shipping Co v. AKP Sovcomflot [1995] 1 Lloyd’s Rep 520.
403 Apis AS v. Fantazia Kereskedelmi KFT [2001] 1 All ER (Comm) 348; Socadec SA v. Pan Afric
Impex Co Ltd [2003] EWHC 2086 (QB); CMA-CGM Marseille v. Petro Broker International [2011]
EWCA Civ 461 where it was thought inappropriate to injunct the award creditor from enforcing the
award where there were sums owing by way of set-off to the award debtor and there was a risk of the
judgment creditor dissipating its available assets. But see Y v. S [2015] EWHC 612 (Comm) where a
stay was refused because on the facts it served no useful purpose. See also Beijing Be Green Import &
Export Co Ltd v. Elders International Australia Pty Ltd [2014] FCA 1375 where a stay was refused although
the claim was bona fide between the same parties under a different transaction, and the respondent had
offered security.
404 [1999] 2 Lloyd’s Rep 481, not following the decision of Sheen J in The Saint Anna [1983] 1
Lloyd’s Rep 637.
85
Section 19 additionally empowers the court to give a judgment in the terms of

the award, thereby allowing the judgment rather than the award to be enforced.
Because the court itself is giving a judgment, it is empowered to make an order for
the payment of interest from the date of the award until payment, in accordance
with RC, Ord. 42, r. 12.405 A judgment entered on the award must be in the terms
of the award, one consequence of which is that if the award specifies payment within
a fixed period and the judgment is given after that period has expired, the judgment
will still specify payment on the date required by the award.406
It has been held in England that the court may grant an enforcement order in
respect of a declaratory award. That procedure effectively enables the arbitrators
to replicate an anti-suit injunction, by issuing an award declaring that there is a
valid and subsisting arbitration clause and that the defendant in the arbitration is
required to indemnity the applicant against any costs or liability arising in foreign
proceedings. An enforcement order from the court in respect of the declaration has
the further consequence of raising an issue estoppel which prevents the enforcement
in Singapore of a foreign judgment denying the existence of the arbitration clause.407
It has been held in New Zealand that, once an order has been made under this
section, the court has no jurisdiction to entertain an application to set aside the
award itself.408 The position in Singapore may well be different as a result of PT First
Media TBK v. Astro Nusantara International BV,409 which treats negative resistance
and positive challenge as independent, but the point is unlikely to arise given the
time limits applicable to challenges to the award itself.
Awards made on different issues

19A.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may make
more than one award at different points in time during the arbitral proceedings on
different aspects of the matters to be determined.
(2) The arbitral tribunal may, in particular, make an award relating to—
(a) an issue affecting the whole claim; or
(b) a part only of the claim, counter-claim or cross-claim, which is submitted to
it for decision.
(3) If the arbitral tribunal makes an award under this section, it shall specify in
its award, the issue, or claim or part of a claim, which is the subject-matter of the
award.
NOTES
Section 19A is expressed in terms identical to AA 1996 (Eng), s. 47, and see also SIAC
Rules, r. 28.3. It was adopted in response to the decision in Tang Boon Jek Jeffrey v.
405 Pirtek v. Deanswood [2005] 2 Lloyd’s Rep 728; Gater Assets Ltd v. NAK Naftogaz Ukrainiy
(No. 2) [2008] EWHC 1108 (Comm).
406 Colliers International Property Consultants v. Colliers Jordan Lee Jafaar Sdn Bhd [2008] EWHC
1524 (Comm).
407 African Fertilisers and Chemicals NIG Ltd (Nigeria) v. BD Shipsnavo GmbH & Co Reederei KG
[2011] EWHC 2452 (Comm); West Tankers Inc v. Allianz SpA [2012] 1 Lloyd’s Rep 398.
408 Bogle v. Day [2005] NZHC 67.
409 [2013] SGCA 57.
86
410
Tan Poh Leng Stanley which held that arbitrators were not functus officio in respect
of any issue in the arbitration until they had made an award dealing with all issues.
Section 19A thus provides that an arbitral tribunal should have the power to make
binding awards at different times in the course of arbitration.411 The phrase “different
points in time” is designed to make it clear that any award is final.412 See also s. 19B,
which confirms that a partial final award is binding and not capable of amendment, so
that it gives rise to res judicata in respect of the matters in the partial award.
It will be noted that the phrase “interim award” is not used. This is to avoid the
common misunderstanding of the phrase which had justifiably grown up and which
took an interim award to be some form of temporary or interlocutory determination
or order by the arbitrators. Nevertheless, the term “interim award” remains in wide-
spread use even though there is no reference to it in IAA. The appropriate terminol-
ogy for an award which disposes of all of the issues in dispute413 is a final award,
whereas an award which is confined to particular matters is a partial award.414
Partial awards are all determinative, albeit that some may be limited to specific
issues,415 and accordingly give rise to issue estoppel in the remaining part of the
proceedings.416 All awards, whenever made, are treated in the same way by the Act,
so that an award may be enforceable or subject to challenge even though issues
remain outstanding between the parties.417 However, it is plainly not appropriate
to challenge a partial award on the basis that it has left open matters in dispute
between the parties.418
Section 19A does no more than confer a discretion upon the arbitrators, and they
may refuse to make more than one award despite a request by one of the parties for
an award to be made in advance of the resolution of all issues. A decision by the
arbitrators not to make an award is not an award in its own right and thus cannot
not be challenged.419
The parties may by agreement remove the right of the arbitrators to treat the
dispute in this way and they may require a single award or a small number of awards.
410 [2001] 3 SLR 237. The arbitrator had not dealt with costs, so the award was held not to be final
and the arbitrator was, in the view of the court, entitled to recall it. That outcome was reversed by the
inclusion of IAA, s. 19B. See the Notes to that section.
411 Holland Leedon Pty Ltd v. Metalform Asia Pte Ltd [2012] 3 SLR 377; PT First Media TBK v. Astro
Nusantara International BV [2013] SGCA 57.
412 LRRD No. 3/2001, para. 2.22.3.
413 Or at least all issues in dispute which fall within the jurisdiction of the arbitrators. It is neverthe-
less not permitted for an arbitrator to refuse to award a final remedy on the basis that there are matters
falling outside his jurisdiction which will have to be resolved in some other forum and accordingly that a
full award of damages is inappropriate: see JSC Zestafoni G Nikoladze Ferroalloy Plant v. Ronly Holdings
[2004] 2 Lloyd’s Rep 355, where Gross J held that the arbitrator must not attempt to anticipate the
outcome of proceedings falling outside his jurisdiction.
414 Sucafina v. Rotenberg [2012] 2 Lloyd’s Rep 54.
415 Government of the Republic of the Philippines v. Philippine International Air Terminals Co Inc [2007]
1 SLR 278.
416 Cockatoo Dockyard v. Commonwealth of Australia [2004] NSWSC 841; Emirates Trading Agency
LLC v. Sociedade De Fomento Industrial Private Ltd [2015] EWHC 1452 (Comm).
417 Marine Contractors Inc v. Shell Petroleum Development Co of Nigeria Ltd [1984] 2 Lloyd’s Rep 77.
418 BMBF (No. 12) Ltd v. Harland and Wolff Shipbuilding and Heavy Industries Ltd [2001] 2 Lloyd’s
Rep 227.
419 Japan Line Ltd v. Aggeliki Charis Compania Maritima SA, The Angelic Grace [1980] 1 Lloyd’s Rep
288; The Trade Fortitude [1992] 1 Lloyd’s Rep 169.
87
Section 19A(2) gives illustrations of the types of matters that may be dealt with
by a final award pending the resolution of the entire dispute between the parties,
and s. 19A(3) requires arbitrators to indicate the issue disposed of in their award.
There may be some dispute as to whether an award is final in respect of all issues,
thereby rendering the tribunal functus officio, or whether it resolves just certain of
the issues in dispute so that the arbitrators retain jurisdiction to resolve outstanding
questions.420 Once a final award has been made, the authority of the arbitrators
terminates.421 It is common for costs to be reserved for a separate award after the
main dispute has been resolved, and the argument that the arbitrators, by issuing
a final award without costs, no longer have jurisdiction to make a costs order, has
been rejected by the courts.422
Effect of award
19B.—(1) An award made by the arbitral tribunal pursuant to an arbitration
agreement is final and binding on the parties and on any persons claiming through
or under them and may be relied upon by any of the parties by way of defence, set-
off or otherwise in any proceedings in any court of competent jurisdiction.
(2) Except as provided in Articles 33 and 34 (4) of the Model Law, upon an
award being made, including an award made in accordance with section 19A, the
arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award.
(3) For the purposes of subsection (2), an award is made when it has been signed
and delivered in accordance with Article 31 of the Model Law.
4) This section shall not affect the right of a person to challenge the award by any
available arbitral process of appeal or review or in accordance with the provisions of
this Act and the Model Law.
NOTES
There is nothing in the IAA which touches upon the form and content of an award
or upon the correction of an award. These matters are addressed by arts 31 and
33 of the Model Law: see the Notes to those provisions, below. Section 19B is
concerned purely with the effects of an award.
Section 19A states that an award is binding. Accordingly, the legislation does not
contemplate the possibility of the arbitrators making provisional awards, granting
provisional relief pending the making of a final award.423 However, in England, in
Konkola Copper Mines v. U&M Mining Zambia Ltd424 the High Court recognised the
420 PT Prima International Development v. Kempinski Hotels SA [2012] SGCA 35, where a series of
awards was held to be partial so that the arbitrators retained jurisdiciton over an unresolved question; Re
PetroChina International (Hong Kong) Corporation Ltd [2011] 4 HKLRD 604.
421 Five Oceans Salvage Ltd v. Wenzhou Timber Group Co [2011] EWHC 3282 (Comm).
422 Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda) Ltd, The
Athena [2006] 2 Lloyd’s Rep 147.
423 This was a deliberate omission: LRRD No. 3/2001, para. 2.23.2 Contrast AA 1996 (Eng), s. 39,
which permits the making of a provisional award, including a provisional order for payment of money
representing anticipated liability or costs where the claimant is bound to win but the amount of liability
has not been established.
424 [2014] EWHC 2374 (Comm).
88
validity of a “provisional” award which took effect according to its terms unless the
award debtor could show cause as to why a different outcome should be reached.
The validity of such an award was also recognised in PT Perusahaan Gas Negara
(Persero) TBK v. CRW Joint Operation,425 although the majority of the Court of
Appeal held that the award was to be read as a final partial award rather than a
provisional award that could be overturned in subsequent proceedings.
The making of a final award terminates the arbitral proceedings: Model Law, art.
32(1). An award cannot be recalled.426 See also SIAC Rules, r. 28.9. It does not
terminate the arbitration agreement, so that future disputes remain referable to arbi-
tration if the arbitration agreement extends to them.427 Under s. 19B(1), the award
is final and binding on the parties or upon any person claiming through or under
them.428 The award may be enforced429 and it may be relied upon in proceedings
between the parties themselves.430 Under s. 19B(1) an award is final and binding. It
cannot be challenged on the ground of error of fact, and may be challenged only on
the limited grounds set out in Model Law, art. 34, and IAA, s. 24.431
The common law regarded the obligation to accept the binding effect of an arbi-
tration award as arising out of an implied term in the arbitration agreement itself
rather than the agreement to which the arbitration clause applied.432 It is for this
reason that the limitation period for the enforcement of an award runs from the
date on which the award should have been honoured rather than from the date on
which the underlying contract was broken,433 and that a vessel cannot be arrested
to enforce an arbitration award arising out of a charterparty. A party who seeks to
challenge the award in a place other than that of the seat is in breach of his statutory
duty under s. 19B434 and is liable in damages.435 Arbitrators have no jurisdiction to
deal with issues previously resolved in an earlier arbitration.436
An award and the evidence adduced in one arbitration is private and may not be
used in later arbitrations if a different party is involved, so that the same questions
have to be determined and the same evidence adduced in a series of separate hearings.
It is also the case that an arbitration award is determinative only of the rights of the
parties as against each other, and will not bind either of the parties in respect of third-
party claims arising out of the same facts.437 Thus if A brings an action against B, and
B is found to be liable to A by reason of a default of C for which B is responsible, then
425 [2015] SGCA 30.

426 Contrast the position reached by the courts in their interpretation of the Model Law, in Tang
Boon Jek Jeffrey v. Tan Poh Leng Stanley [2001] 3 SLR 237. That decision no longer holds good. See
LRRD No. 3/2001, para. 2.33.2.
427 Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] 2 SLR 500.
428 For the meaning of this phrase, see the note to IAA, s. 6(5), above.
429 See IAA, s. 19.
430 Fidelitas Shipping Co v. V/O Exportkleb [1965] 1 Lloyd’s Rep 13.
431 PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597.
432 Alexander G Tsavliris & Sons Maritime Co v. Keppel Corporation Ltd [1995] 2 SLR 113.
433 Argomet Motoimport Ltd v. Maulden Engineering Co (Beds) Ltd [1985] 2 All ER 436.
434 Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co of Zurich [2003] 1
WLR 1041; A v. B [2007] 1 Lloyd’s Rep 237.
435 C v. D [2008] 1 Lloyd’s Rep 239.
437 Samsun Logix Corporation v. Oceantrade Corporation [2008] 1 Lloyd’s Rep 450; Theatrelight
Electronic Control & Audio Systems Ltd v. Xinyu Charlie Zheng [2005] NZHC 329.
89
B must bring separate proceedings against C in order to recover an indemnity from C

and cannot rely upon the arbitration award.438 Again, if A brings an action against B
and B is found not to be liable because the defaulting party was C, A must bring a
separate action against C and cannot rely upon the arbitration award.439 Further, if A
and B have a contract under which C is liable to A if B does not face any liability,440
then an arbitration award which finds that B is not liable to A cannot be relied upon
by A in his proceedings against C: it remains necessary for A to show, in the arbi-
tration proceedings against C, that B did not face liability.441 There are, however,
exceptions to this general principle. An arbitration award which finds that B is liable
to A is binding upon C if C has agreed to indemnify B,442 and an arbitration award
which finds that B has committed a wrongful act against A may be relied upon by C in
proceedings against B where the issue is whether B committed that act.443 It has even
been suggested that a person who is not a party to the arbitration, but is “privy” to it
by reason of his interest in it, may be bound by the award, although there is no clear
authority on the circumstances in which the necessary privity can be established.444
Under s. 19B(2), the finality of an award means that it cannot be varied, amended,
corrected, reviewed, added to or revoked. There are, however, two exceptions.
First, Model Law, art. 33 sets out the “slip rule” under which an award can be cor-
rected in limited respects and under strict conditions: see the Notes to Model Law,
art. 33. Secondly, Model Law, art. 34(4) permits the court to set aside or remit an
arbitration award where it has been successfully challenged: see the Notes to Model
Law, art. 34. Time starts to run for those two procedures when the award has been
signed and delivered: s. 19A(3).
Authentication of awards and arbitration agreements

19C.—(1) For the purposes of the enforcement of an award in any Convention
country, the Minister may by order appoint such persons holding office in such
arbitral institution or other organisation as the Minister may specify in the order, to
authenticate any award or arbitration agreement or to certify copies thereof.
(2) Any person appointed under subsection (1) —
(a) shall comply with any condition imposed by the Minister; and
438 Sacor Maritima SA v. Repsol Petroleo SA [1998] 1 Lloyd’s Rep 518.

439 Aneco Reinsurance Underwriting Ltd v. Johnson Higgins Ltd [1998] 1 Lloyd’s Rep 565; Aquator
Shipping Ltd v. Kleimar NV, The Capricorn [1998] 2 Lloyd’s Rep 379.
440 E.g., a default insurance/reinsurance policy.
441 Drake Insurance Co v. Provident Insurance Co [2004] 1 Lloyd’s Rep 268; Sun Life Assurance
Company of Canada v. The Lincoln National Life Insurance Co [2005] 1 Lloyd’s Rep 606.
442 Under a contract of indemnity, insurance or reinsurance: Stargas SpA v. Petredec Ltd, The
Sargasso [1994] 1 Lloyd’s Rep 412; King v. Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep
670, affirmed on other grounds [2005] 1 Lloyd’s Rep 655. The position may be different in relation to
guarantees: Re Kitchin (1881) 17 Ch D 668; Bruns v. Colocotronis, The Vasso [1979] 2 Lloyd’s Rep 412;
Sabah Shipyard (Pakistan) Ltd v. Government of Pakistan [2008] 1 Lloyd’s Rep 210; Welltime Hong Kong
Ltd v. Cosmic Insurance Corporation Ltd [2004] 2 HKC 155, although contrast Overton Holdings Ltd v.
Owens Properties Ltd [2002] NZCA 260 in which the guarantor had agreed to be bound by the outcome
of the award.
443 George Moundreasa & Co SA v. Navimpex Central Navala [1985] 2 Lloyd’s Rep 515; Co-operative
Wholesale Society v. Birse Construction Ltd (1997) 84 BLR 58.
444 See Dadourian Group International Inc v. Simms [2004] EWCA Civ 686.
90
(b) shall not, without the written consent of the parties, directly or indirectly
disclose any matter, including the identity of any party to the award or
arbitration agreement, to any third party.
(3) An award or arbitration agreement or a copy thereof duly authenticated or
certified by a person appointed under subsection (1) shall be deemed to have been
authenticated or certified by a competent authority in Singapore for the purposes of
enforcement in any Convention country.
(4) For the avoidance of doubt, nothing in this section shall —
(a) prevent any person from authenticating any award or arbitration agreement
or certifying copies thereof in any other manner or method or by any other
person, institution or organisation; or
(b) affect the right of a person to challenge or appeal against any award by any
available arbitral process of appeal or review, or in accordance with the
provisions of this Act and the Model Law.
(5) In this section, “Convention country” has the same meaning as in section 27(1).
NOTES
This provision was inserted by the 2012 Amendments. It relates to art. IV of the
New York Convention 1958 under which an award made in a Convention Country
is to be recognised and enforced in any other Convention Country if the applicant
produces a duly authenticated original award or a duly certified copy thereof, and
the original agreement or a duly certified copy thereof. There was, however, no pro-
cedure for authentication. That lacuna is filled by s. 19C. The section is concerned
with the enforcement of Singapore awards in Convention countries and does not
deal with enforcement of foreign awards in Singapore.
Interest on awards
20.—(1) Subject to subsection (3), unless otherwise agreed by the parties, an
arbitral tribunal may, in the arbitral proceedings before it, award simple or com-
pound 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 —
(a) any sum which is awarded by the arbitral tribunal in the arbitral proceedings;
(b) any sum which is in issue in the arbitral proceedings but is paid before the
date of the award; or
(c) costs awarded or ordered by the arbitral tribunal in the arbitral proceedings.
(2) Nothing in subsection (1) shall affect any other power of an arbitral tribunal
to award interest.
(3) Where 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.
NOTES
This provision was introduced by the International Arbitration (Amendment) Act
2012, replacing the more limited and now repealed provisions in IAA, s. 12(5), The
91
Model Law is silent on interest, and the lacuna is filled by IAA. Section 20 provides
that, unless otherwise agreed by the parties, the arbitrators may award simple or
compound interest at the rate and with the rests that they consider appropriate.
Interest may be awarded on the sum in the award itself, any sum in dispute and
paid before the award, and costs. The earlier provision did not permit the award of
interest on costs. The discretion is a general one, although any award is to be com-
pensatory rather than punitive.445 See also SIAC Rules, r. 28,7. By s. 20(3), unless
the award otherwise provides, the sum awarded carries interest at the same rate as a
judgment debt, although it is not clear whether compound interest can be awarded
by the arbitrators as well as interest at a higher or lower rate than the judgment debt
rate. The statutory rate is 6%.446
Interest is not a matter of substance governed by the law applicable to the main
contract, but is rather a matter of procedure governed by the law applicable to the
arbitral procedure, so that s. 20 applies irrespective of the law applicable to the main
contract.447
There is nothing in s. 20 which limits the arbitrators’ discretion on the award of
interest and it is unlikely that their discretion will lightly be interfered with by the
courts.448 As far as judicial proceedings are concerned, interest will normally run
from the date of the breach of duty complained of, though it is not uncommon for
courts in Singapore to use the date of commencement of the court action as the
starting date.449 The courts will refuse to award interest, or may vary the rate of
interest, for any period in respect of which the claimant has been the architect of his
own loss, e.g., by dilatory conduct in pursuing the legal proceedings.450 Arbitrators
may not award interest for any period prior to the date on which the cause of action
arose.451 Where an award is made without interest by reason of any failure to claim
interest, it will not be open to the arbitrators to make an additional award, as they
are functus officio as soon as their award is made unless the matter of interest has
been expressly held over for a further award.452
If the claimant does not make any claim for interest, the arbitrators are not
empowered to award interest as it does not form a part of the reference, although if a
445 LRRD No. 3/2001, para. 2.25.1.

446 RC, Ord. 42, r. 12.
447 Lesotho Highlands Development Authority v. Impregilo SpA [2005] 2 Lloyd’s Rep 310.
448 Amec Building Ltd v. Cadmus Investment Co Ltd [1997] 5 CL 33. For the position in Singapore
prior to the passing of the legislation, see United Boulevard Pte Ltd v. Ahong Construction (S) Pte Ltd
[1996] 2 SLR 656, which recognised an implied right to award interest independently of statute (a ruling
now codified) and which also more or less required arbitrators to act in the same way as courts (a ruling
now reversed).
449 See Final Award in Case No. 11509, reported in (2012) 37 Yearbook Commercial Arbitration 43,
where due to the constantly changing rates of interest over the period in question the tribunal awarded
pre-award interest of 5%, this being the average of the rate prevailing on the date of request for arbitra-
tion and that prevailing on the date of the partial award plus a 1% margin to reflect the client-customer,
rather than inter-bank, nature of the parties’ relationship. The post-award interest was awarded at 6%
from the date of the request for arbitration. In both instances, assuming the date of the request for
arbitration as the starting point was said to reflect the approach of Singapore courts in awarding interest
on judgment debts.
450 Derby Resources AG v. Blue Corinth Marine Co Ltd, The Athenian Harmony (No. 2) [1998] 2
Lloyd’s Rep 425; Quorum AS v. Schramm (No. 2) [2003] Lloyd’s Rep IR 315.
451 Durham County Council v. Darlington Borough Council [2003] EWHC 2598 (Admin).
452 LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2012] SGCA 57.
92
claim for interest is subsequently added and the respondent does not object then the
arbitrator’s jurisdiction may be regarded as having been extended accordingly.453
If post-award interest is not awarded by the arbitrators the court itself cannot,
when giving permission to enforce the award, itself award interest: that is because
the order is confined to the enforcement of obligation of the parties to honour the
award.454 However, the court can award interest on its own judgment if it enters
judgment in terms of the award under IAA, s. 19.455
An application under s. 20 of the IAA to enforce the award may be made ex parte
on such terms as the court thinks fit: RC, Ord. 69A, r. 3(3).
Taxation of costs
21.—(1) Any costs directed by an award to be paid shall, unless the award other-
wise directs, be taxable by the Registrar of the Singapore International Arbitration
Centre (referred to in this section as the Registrar).
(2) Unless the fees of the arbitral tribunal have been fixed by a written agreement
or such agreement has provided for determination of the fees by a person or an
institution agreed to by the parties, any party to the arbitration may require that
such fees be taxed by the Registrar.
(3) A certificate signed by the Registrar on the amount of costs or fees taxed shall
form part of the award of the arbitral tribunal.
appoint any other person to exercise the powers of the Registrar under this section.
NOTES
The position in Singapore, as in England, is that unless the parties agree to the con-
trary the arbitrators are entitled to award costs, and that costs follow the event.456
The arbitrators themselves may depart from it where they consider that the general
rule is inappropriate,457 although it may be that a failure by the arbitrators to take
into account ordinary judicial principles in awarding costs is not something capable
of challenge under the Singapore system for international arbitration.458 For the
operation of the principle in judicial proceedings, see RC, Ord. 59. There is nothing
in the IAA or the Model Law which refers to the award of costs, other than s. 21,
453 Westland Helicopters Ltd v. Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523.
454 Walker v. Rome [2000] 1 Lloyd’s Rep 116; Pirtek v. Deanswood [2005] 2 Lloyd’s Rep 728.
455 Pirtek v. Deanswood [2005] 2 Lloyd’s Rep 728; Gater Assets Ltd v. NAK Naftogaz Ukrainiy (No. 2)
[2008] EWHC 1108 (Comm); Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875 (Comm).
456 Smeaton, Hanscomb & Co Ltd v. Sassoon I Setty, Son & Co (No. 2) [1953] 2 All ER 1588. See
now AA 1996 (Eng), s. 61, which provides for costs following the event as the default rule, as applied in
Newfield v. Tomlinson [2004] EWHC 3051 (TCC). Costs also follow the event in Hong Kong: Bird v.
English Schools Foundation [1997] 2 HKC 294.
457 If they do depart from the rule, the English courts are of the view that the parties have the right to
be heard: Gbangbola v. Smith & Sherriff Ltd [1998] 3 All ER 730; Fence Gate Ltd v. NEL Construction Ltd
(2001) 82 Con LR 41; Linpave Building Ltd v. Gillingham FC Ltd, 2002, unreported, which also held that
any departure from the usual rule should be accompanied by reasons for so doing). In New Zealand the
courts have similarly taken the view that arbitrators do not need to follow the High Court rules on costs:
Northland Port Corporation (NZ) Ltd v. Flyghtship Construction Ltd [2005] NZHC 446.
458 Because the error is purely one of law: Fence Gate Ltd v. NEL Construction Ltd (2001) 82 Con
LR 41.
93
which is concerned with their taxation.459 SIAC Rules, r. 31, authorises the award of
costs, but is subject to the agreement of the parties. Thus, if the parties have agreed
that each party has to bear the costs of its own appraiser, an award ordering one
party to pay the costs of the other exceeds the arbitrators’ procedural jurisdiction.460
In practice, it may be difficult to determine whether a party has “won”, i.e., to
determine what the “event” is that should be followed. In some cases, a party will
have brought several discrete claims, and succeeded in some and failed in others.
In those circumstances, if the tribunal has not already made individual issue-based
costs orders, it may consider it appropriate either to reduce the successful claimant’s
costs as proportionately as it can to reflect the measure of success, or in fact order
that there should be no order as to costs, so that each side will end up bearing its
own costs. Even where the “event” is clear, in that a party can easily be said to have
“won”, arbitrators may deem it appropriate to order that costs should not follow
the event. In particular, where it considers that one party has behaved unreasonably
during the reference, particularly in a way in which costs have been incurred by the
other party unnecessarily, e.g., by raising frivolous issues, or pursuing a number of
hopeless claims or defences to the end. In those circumstances, the tribunal may
regard itself as entirely justified in penalising the badly behaving party with an
appropriate order, usually by discounting the amount of costs that would otherwise
be payable to that party. If the badly behaving party has lost the arbitration, the tri-
bunal may regard itself as entitled to award costs against that party on an indemnity
basis.461 In every case, the tribunal ought to have regard to the overall result, and to
all the surrounding circumstances, in determining the appropriate and ultimate costs
result, and ought to express in clear terms why it has reached the result it has. If it
does so, the award (at least insofar as regards costs) is likely to be unimpeachable.462
Subject to the above, costs will ordinarily “follow the event” provided that a party
has been at least partially successful. A respondent to a monetary sum should there-
fore be concerned about the risk of having an award made against them for at least
some of the amount claimed, with a consequent adverse costs penalty. In arbitration
proceedings, a party may still protect itself to some extent in two ways. The first
method is by making a sealed offer (sealed in the sense that an offer is made to the
other party, communicated in writing, and a copy of the offer, contained in a sealed
envelope, is passed to the arbitrators). The envelope may not then be opened until
the arbitrators have made all their findings on the merits and before the decision as
to costs is made, so as to see whether the offer has been “beaten” by the claimant
or not (i.e., whether the claimant has been awarded a higher sum than that offered,
when interest is taken into account). If the offer has not been beaten, the arbitrators
may take the view that the claiming party should bear the whole of the costs of the
arbitration: see Cadmus Investment Ltd v. Amec Building Ltd463 and Lindner Ceilings
459 The English terminology is now “adjustment”.

460 PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] 4 SLR 257.
461 But not in Australia: South Australia Superannuation Fund Investment Trust v. Leighton Contractors
(1996) 66 SASR 509; 620 Collins St Pty Ltd v. Abigroup Contractors Pty Ltd (No. 3) [2006] VSC 492.
462 VV v. VW [2008] 2 SLR 929, which decides that a costs order cannot be challenged on the basis
of error of law.
463 [1998] ADRLJ 72.
94
464
Floors Partitions plc v. How Engineering Services Ltd. A much more common alter-
native to a sealed offer is the making of an offer “without prejudice save as to costs”
(known as a “Calderbank” offer). Calderbank offers are not copied to the arbitra-
tors, who are therefore unaware of any such offer having been made until after their
findings on the merits, when the existence of the offer will be drawn to their atten-
tion (though only if the maker has beaten the claim against him, i.e., offered more
than the award provided by way of damages, etc). In those circumstances, the better
view is that the arbitrators should treat the Calderbank offer in the same way as a
sealed offer, so that costs should not follow the event if the offer is better than the
amount awarded.465 If an offer is made and revealed to the arbitrators after making
their findings, and betters the amount they have awarded, there appears to be no
objection in principle to arbitrators awarding costs to the offeror from the latest time
of acceptance on an indemnity basis, although it is unclear whether arbitrators have
the equivalent power in terms of awarding enhanced rates of interest on any sum
awarded or on costs.466
Where the arbitrators have the power to determine recoverable costs but have
failed to do so in their award, it is a matter of the construction of the award whether
they have finally declined or whether they have reserved the right to revisit the issue
in the event that the parties cannot agree. An award might typically provide “costs
to be agreed or determined in default of agreement” or “costs determined if not
agreed”: both forms of wording have been held to mean that the arbitrators had
reserved the right to determine recoverable costs if the parties themselves could not
reach agreement.467 It would seem sensible in principle for arbitrators to make clear
in any award that they are reserving the right to determine costs, e.g., in the absence
of agreement by the parties.
Section 21(1) is concerned with the party costs awarded by the arbitrators. The
award may itself provide for taxation of the costs by the arbitrators in the event
of any dispute, but in the absence of such a provision the costs are to be taxed by
the Registrar of SIAC. This is based on para. 42 of the 1993 Review, which was
of the opinion that judicial taxing registrars might not be sufficiently familiar with
the arbitral process to be entrusted with taxation.
Section 21(2) governs the fees of the arbitral tribunal. Such fees may have been
fixed by agreement, or by the scales of an arbitral body (see SIAC Rules, rr 30 and
32). Alternatively, taxation may have been delegated to a third party or to an institu-
tion. Failing any of these possibilities, the arbitrators’ determination of their own
fees is to be taxed by the Registrar of SIAC on the application of any party.
AA 1996 (Eng), s. 65, which is not replicated in either IAA or the Model Law,
contains what might be thought to be a useful power. Subject to contrary agreement
by the parties, the arbitrators are empowered to limit the recoverable costs of the
464 [2001] BLR 90.

465 Chinney Construction Co Ltd v. Po Kwong Marble Factory Ltd [2005] 3 HKC 262.
466 There certainly does not seem to be an objection in principle to arbitrators awarding interest on
costs already paid, if claimed by the successful party, regardless as to whether this is in the context of
offers to settle or generally.
467 M/S Alghanim Industries Inc v. Skandia International Insurance Corporation [2001] 2 All ER
(Comm) 30.
95
proceedings to a specified amount. The stated objective of the provision is to make

arbitration more cost-effective than might otherwise be the case. It is thought that
this power is aimed at the legal and other costs of the ultimately successful party,
which the arbitrators fear may prove to be excessive. The arbitrators have the power
to issue a direction at any stage in the proceedings limiting the recoverable party
costs (of the whole arbitration or for any part of the proceedings, e.g., discovery)
to a given amount, provided that the parties are made aware of the limit and are
thereby able to adjust their affairs accordingly. The most obvious stage at which this
power might be exercised is at the outset of the arbitration, once the arbitrators have
been able to assess the issues involved and what evidence might be needed, although
doubtless an order can be made at any later stage if the costs of one or both parties
look as though they might be getting out of hand.
Proceedings to be heard other than in open court

22.—Proceedings under this Act in any court shall, on the application of any
party to the proceedings, be heard otherwise than in open court.
NOTES
Privacy and confidentiality
This section seeks to support the established principle of the common law that
arbitrations, documents used in them and any resulting awards are private and con-
fidential.468 This principle is express in SIAC Rules, rr 21.4 and 35. For that reason,
an application to the court—which is necessarily public—can on the request of
either party be heard otherwise than in open court. Any application is to be made to
a judge or to the registrar: RC, Ord. 69A, r. 3(1). If the action is pending the appli-
cation is to be made by summons in the action, and in any other case by originating
summons: RC, Ord. 69A, r. 3(2). Where the case is one of urgency such application
may be made ex parte on such terms as the court thinks fit: RC, Ord. 69A, r. 3(3).469
The effect of the section is to require judicial proceedings to be heard in private,
by contrast to the position in England where the privacy of judicial proceedings is a
matter for the court.470
The principles of privacy and confidentiality, long assumed but until recently not
the subject of detailed authority, were established in a series of cases, in particular
Dolling-Baker v. Merrett,471 Hassneh Insurance v. Mew,472 Insurance Company v. Lloyd’s
468 These two terms are in principle distinct: privacy relates to personal information whereas confi-
dentiality relates to business information. To some extent, however, the terms overlap.
469 The 1993 Review, para. 62, had recommended that “(a) court hearing of proceedings arising
from arbitrations to be held in chambers with power to forbid the publication of information relating to
such proceedings; and (b) the ‘sanitised’ publication of court decisions arising from arbitration proceed-
ings in law reports and journals; but where it is not possible for the identities of parties to be hidden, such
publication should be embargoed for 10 years.” See AZT v. AZV [2012] SGHC 116 for the conidentiali-
ity off arbitration documents in judicial proceedings.
470 AAY v. AAZ [2009] SGHC 14.
471 [1991] 2 All ER 891.
472 [1993] 2 Lloyd’s Rep 243.
96
473 474
Syndicate and London Leeds Estates Ltd v. Paribas Ltd (No. 2). In those cases, it
was made clear that confidentiality, which operated as an implied term in the arbi-
tration agreement, could be lifted in exceptional circumstances only. In Australia a
rather different view was taken of this issue and confidentiality was to some extent
eroded475 before the confirmation of the principle of confidentiality by legislation.
The English courts have considered the principles applicable to confidentiality
on a number of occasions and have confirmed that the principle applies to docu-
ments generated for the purposes of the arbitration, evidence in the arbitration and
the award itself. In the leading authority, the English Court of Appeal in Emmott
v. Michael Wilson & Partners Ltd,476 Lawrence Collins LJ identified the various
situations in which the issue might arise:
(1) where a party to litigation sought discovery of documents generated in an
arbitration;477
(2) where a party to an arbitration sought a witness summons from the court to
obtain material used in another arbitration;478
(3) where the issue was whether court documents relating to an arbitration
should be published;479and
(4) where a party to an arbitration had an interest (commercial or otherwise)
in disclosing documents generated in an arbitration (including the award
itself) to third parties, for example in a reinsurance case, or where the docu-
ments are relevant to some other arbitration.480
The position in Singapore

The courts of Singapore have adopted the English approach to confidentiality.481 In
AAY v. AAZ482 Chan Seng Onn J reviewed the law at length and classified confiden-
tiality as a principle developed by the common law and applied as a default principle
even where the parties had not specified that the arbitration should be confidential
and private.483 However, a breach of the duty of confidentiality did not amount to a
repudiation of the agreement to arbitrate so as to discharge the innocent party from
any further obligations in the arbitration
473 [1995] 2 Lloyd’s Rep 272.

474 [1995] 2 EG 134.
475 Esso Australia Resources Ltd v. Minister for Energy and Minerals [1994] ADRLJ 214: Commonwealth
of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662.
476 [2008] 1 Lloyd’s Rep 616.
477 Science Research Council v. Nassé [1980] AC 1028; Dolling-Baker v. Merrett [1990] 1 WLR 1205.
478 London and Leeds Estates Ltd v. Paribas Ltd (No. 2) [1995] 1 EGLR 102; South Tyneside Borough
Council v. Wickes Building Suppliers Ltd [2004] EWHC 2428 (Comm).
479 Glidepath BV v. Thompson [2005] 2 Lloyd’s Rep 549; Economic Department of City of Moscow v.
Bankers Trust Co [2004] 2 Lloyd’s Rep 179.
480 Hassneh Insurance Co of Israel v. Mew [1993] 2 Lloyd’s Rep 243; Insurance Co v. Lloyd’s Syndicate
[1995] 1 Lloyd’s Rep 272.
481 Myanma Yaung Chi Oo Co Ltd v. Win Win Nu [2003] 2 SLR 547; International Coal Pte Ltd v.
Kristle Trading Ltd [2008] SGHC 182; Metalform Asia Pte Ltd v. Ser Kim Koi [2008] SGHC 131.
482 [2009] SGHC 14.
483 The concepts of confidentiality and privacy are potentially distinct, although in the present
context the distinction may not matter: see AAY v. AAZ [2009] SGHC 14, para. 58.
97
Note also that r. 28.10 of the SIAC Rules empowers SIAC to publish arbitration
awards but with the names of the parties redacted. The consent of the parties is not
required, although in practice it might be thought that SIAC would not publish in
the face of strong objections by one party.
Exceptions
The duty is subject to limited exceptions, although it was noted in AAY v. AAZ that
the categories were not closed but that there was no general discretion in the court
to lift confidentiality in the following cases:
(a) The parties may waive the implied term, as where one party refers to arbi-
tral documents in later proceedings and the other then seeks discovery of
those documents: this was the position in Emmott itself. There may also be
consent implied from the circumstances,484 including waiver by a failure to
seek a private hearing under s. 22 of the IAA.485
(b) Legal compulsion, where the court orders the production of arbitra-
tion documents for use in later proceedings,486 e.g., an appeal487 or where
there is a subsequent dispute between the parties involving the same
facts.488
(c) Discovery with the leave of the court.
(d) Where there is a duty to the public requiring discovery.489
(e) Where discovery is reasonably necessary490 for the protection of an
arbitrating party’s rights as against a third party.491
484 See on this point The Owners, Masters and Crew of the Tug “Hamtun” v. Owners of the ship “St
John” [1999] 1 Lloyd’s Rep 883, in which Aikens J held that it was customary in the salvage market for
the level of salvage awarded in an arbitration to be made available to later arbitrators and the courts, in
order to achieve a level of consistency. Consent was thus implicit from the custom and practice of the
market.
485 AAY v. AAZ [2009] SGHC 14.
486 Dolling-Baker v. Merrett [1990] 1 WLR 1205; London & Leeds Estates v. Paribas (No. 2) [1995] 1
EGLR 102; Ali Shipping Corporation v. Shipyard Trogir [1998] 2 Lloyd’s Rep 643; South Tyneside Borough
Council v. Wickes Building Suppliers Ltd [2004] EWHC 2428 (Comm).
487 Department of Economics Policy and Development of the City of Moscow v. Bankers Trust Co [2004]
2 Lloyd’s Rep 179; F Ltd v. M Ltd [2009] EWHC 275 (TCC).
488 There is an issue estoppel where an issue arising in a subsequent arbitration formed a key part
of the reasoning in the first arbitration: Associated Electric & Gas Insurance Services Ltd v. European
Reinsurance Co of Zurich [2003] 1 All ER (Comm) 253; Department of Economics Policy and Development
of the City of Moscow v. Bankers Trust Co [2004] 2 Lloyd’s Rep 179; Emcor Drake & Skull Ltd v. Costain
Construction Ltd and Skanska Central Europe AB [2004] EWHC 2439 (TCC); Westland Helicopters Ltd v.
Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523.
489 London & Leeds Estates v. Paribas (No. 2) [1995] 1 EGLR 102. This ground is to be understood
as applying operates only where the interests of justice so require: Ali Shipping Corporation v. Shipyard
Trogir [1998] 2 Lloyd’s Rep 643; Westwood Shipping Lines Inc v. Universal Schiffahrtsgesellschaft mbH
[2012] EWHC 3837 (Comm); AAY v. AAZ [2009] SGHC 14.
490 AAY v. AAZ [2009] SGHC 14; Milsom v. Ablyazov [2011] EWHC 955 (Ch).
491 Hassneh Insurance Co of Israel v. Mew [1993] 2 Lloyd’s Rep 243; Emmott v. Michael Wilson &
Partners Ltd [2008] 1 Lloyd’s Rep 616; Westwood Shipping Lines Inc v. Universal Schiffahrtsgesellschaft mbH
[2012] EWHC 3837 (Comm).
98
Determination of privacy and confidentiality questions

Ali Shipping Corporation v. Shipyard Trogir492 and Emmott have confirmed that the
duty of confidentiality in relation to arbitration awards and documents used in arbi-
trations takes effect as a term implied in arbitration agreements as a matter of law
and not on the basis of the presumed intention of the parties, although it is subject
to exceptions. The implied term precludes the parties from using or disclosing for
any other purpose documents prepared for or disclosed in the arbitration, including
evidence or the award. That classification is important, because if the question of
the scope of the duty arises while the arbitration is still in existence, the arbitrators
have jurisdiction to resolve that question,493 although it has been held in England
that a party who wishes to avail itself of the exception allowing the use of arbitra-
tion documents in third-party proceedings does not need to obtain the consent of
the arbitrators to do so.494 In any event, the court can become involved only if the
arbitration has come to an end and one or other of the parties wishes to use the
documents for his own purposes.495

open court
23.—(1) This section shall apply to proceedings under this Act in any court heard
otherwise than in open court.
(2) A court hearing any proceedings to which this section applies shall, on the
application of any party to the proceedings, give directions as to whether any and, if
so, what information relating to the proceedings may be published.
(3) A court shall not give a direction under subsection (2) permitting information
to be published unless—
(a) all parties to the proceedings agree that such information may be published;
or
(b) the court is satisfied that the information, if published in accordance with
such directions as it may give, would not reveal any matter, including the
identity of any party to the proceedings, that any party to the proceedings
reasonably wishes to remain confidential.
(4) Notwithstanding subsection (3), where a court gives grounds of decision for
a judgment in respect of proceedings to which this section applies and considers
that judgment to be of major legal interest, the court shall direct that reports of the
judgment may be published in law reports and professional publications but, if any
party to the proceedings reasonably wishes to conceal any matter, including the fact
that he was such a party, the court shall—
(a) give directions as to the action that shall be taken to conceal that matter in
those reports; and
492 [1998] 2 Lloyd’s Rep 643. See also Linfield Ltd v. Taoho Design Architects Ltd [2001] HKC 548.
493 The view of Thomas LJ in Emmott v. Michael Wilson & Partners Ltd [2008] 1 Lloyd’s Rep 616.
See also A Lloyd’s Syndicate v. X [2011] EWHC 2487 (Comm).
494 Webb v. Lewis Silkin [2015] EWHC 687 (Ch).
495 Westwood Shipping Lines Inc v. Universal Schiffahrtgesellschaft mbH [2012] EWHC 3837 (Comm).
99
(b) if it considers that a report published in accordance with directions given

under paragraph (a) would be likely to reveal that matter, direct that no
report shall be published until after the end of such period, not exceeding
10 years, as it considers appropriate.
Court may set aside award

24.—Notwithstanding Article 34(1) of the Model Law, the High Court may, in
addition to the grounds set out in Article 34(2) of the Model Law, set aside the
award of the arbitral tribunal if—
(a) the making of the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the
making of the award by which the rights of any party have been prejudiced.
NOTES
Grounds for setting award aside
The grounds upon which an award made in Singapore496 can be set aside by the
Singapore courts are laid down in Model Law, art. 34. Those grounds replicate the
grounds upon which the recognition or enforcement of a New York Convention
award can be refused:497 see the New York Convention 1958, appended to the
IAA as the Second Schedule. The effect of s. 24 is to establish two further grounds
upon which an award may be set aside on application to the court, based on a
recommendation of the 1993 Review, para. 24. It is to be noted that these grounds
of challenge are directed against an award, and cannot be utilised in the course of
an arbitration, as such intervention would give rise to the possibility of delay, if not
abuse. In general terms legal systems permit awards to be set aside for one of four
reasons: want of jurisdiction; procedural irregularity; error of law; and public policy.
Section 24 and Model Law, art. 34, are closely linked: if art. 34 is not applicable to
an arbitration, then s. 24 will also not be applicable.498 The two heads in s. 24 are
both concerned with procedural irregularity. The heads in Model Law, art. 34, are
confined to jurisdictional, procedural and public policy issues, namely: the claimant
was under some incapacity (jurisdiction); the arbitration agreement was not valid
(jurisdiction); the claimant was not given proper notice of the appointment of the
arbitrators or was otherwise unable to present his case (procedural irregularity); the
award deals with a dispute not falling within the submission to arbitration (jurisdic-
tion); the arbitral tribunal was not in accordance with the agreement of the parties
(jurisdiction); the dispute was not capable of being arbitrated (public policy); and
496 The arbitration must have its seat in Singapore. It is not enough that the arbitration was
physically held in Singapore: PT Garuda Indonesia v. Birgen Air [2002] 1 SLR 393; Tri-MG Intra Asia
Airlines v. Norse Air Charter Ltd [2009] SGHC 13.
497 In Corporacion Transnacional de Inversiones SA de CV v. STET International SpA (1999) 45 O.R.
(3d) 183, at para. 26, the Ontario Supreme Court confirmed that “[t]he grounds for challenging an
award under the Model Law are derived from Article V of the New York Convention” and therefore
“authorities relating to Article V of the New York Convention are applicable to the corresponding provi-
sions in Articles 34 and 36 of the Model Law”.
498 PT Garuda Indonesia v. Birgen Air [2002] 1 SLR 393.
100
the award is in conflict with the public policy of Singapore (public policy). Those
grounds are considered in the annotations to Model Law, art. 34. The most impor-
tant point, however, is that there is no basis for challenging a Singapore award on
the grounds that the arbitrators have misunderstood the law, or misapplied the law,
or reached a conclusion that a court would not have reached.499 It has to be shown
either that under the agreement between the parties they had no power to make
their award, or that the award is fatally flawed by reason of the serious deficiencies
in the conduct of the arbitration.
Fraud or corruption
Section 24(a) applies where the making of the award was induced or affected by
fraud or corruption. It is to be noted that there is no need for the claimant to prove
that the fraud or corruption has caused any prejudice or that the result would have
been different without that conduct: contrast s. 24(b). Some guidance on the scope
of this provision may be obtained from AA 1996 (Eng), s. 68(2)(g), which empow-
ers the English courts to set aside an award if it was “obtained by fraud”.500 The
subsection is concerned with procedural fraud in the manner in which the award
was obtained: it does not allow a court to rehear an allegation of fraudulent conduct
affecting the substantive issues which was made before the arbitrators but rejected
by them.501 What is required to trigger this head of appeal is fraud on the part of
the successful party in the arbitration, e.g., the deliberate withholding of mate-
rial evidence or abuse of the arbitral process.502 A negligent or innocent failure to
produce evidence,503 or the absence of unconscionable behaviour in the conduct of
the arbitration,504 will not suffice. Equally, a deliberate failure to obey directions as
to the discovery of evidence is insufficient, because the arbitrators have sufficient
power to deal with such breaches.505 A dishonest intention to mislead the tribunal is
required.506 The test to be applied to show grounds for overturning an award which
is alleged to have been obtained by fraud in the shape of perjury is that the claimant
has to produce evidence newly discovered since the trial which could not have been
produced at the trial with reasonable diligence and which was so material that its
499 John Holland Pty Ltd (Fka John Holland Construction & Engineering Pty Ltd) v. Toyo Engineering
Corp (Japan) [2001] 2 SLR 262; Progen Engineering Pte Ltd v. Chua Aik Kia (Trading As Uni Sanitary
Electrical Construction) [2006] 4 SLR 419; Government of the Republic of the Philippines v. Philippine
International Air Terminals Co Inc [2007] 1 SLR 278. There are many English authorities for the same
proposition, e.g., Abuja International Hotels Ltd v. Meridien AS [2012] EWHC 87 (Comm).
500 See Double K Oil Products 1996 Ltd v. Neste Oil OYJ [2010] 1 Lloyd’s Rep 141; Chantiers de
l’Atlantique SA v. Gaztranport & Technigaz SAS [2011] EWHC 3388 (Comm). IAA, s. 24 refers, in the
alternative, to the award being procured being contrary to public policy, but this appears to add nothing
to the fraud ground. To be contrary to public policy, the impugned conduct has to involve more than
inadvertence and generally has to involve something which can readily be described as unconscionable or
reprehensible: Protech Projects Construction v. Al-Kharafi & Sons [2005] 2 Lloyd’s Rep 779.
501 R v. V [2008] EWHC 1531 (Comm).
502 An allegation of this type was made in Thyssen Canada Ltd v. Mariana Maritime SA in [2005]
1 Lloyd’s Rep 640 and DDT Trucks of North America v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213.
503 Profilati Italia Srl v. Paine Webber Inc [2001] 1 Lloyd’s Rep 715.
504 Cuflet Chartering v. Carousel Shipping Co Ltd, The Marie H [2001] 1 Lloyd’s Rep 707.
505 Dongwoo Mann & Hummel Co Ltd v. Mann & Hummel GmbH [2008] 3 SLR 871.
506 Gater Assets v. Nak Naftogaz Ukrainy (No. 2) [2008] 1 Lloyd’s Rep 479.
101
production at the trial would probably have affected the result and (when the fraud
consists of perjury) was so strong that it would reasonably be expected to be deci-
sive at the rehearing.507 A failure in memory on the part of the lawyers or the party
applying under this section or a failure to obtain a document which could otherwise
have been obtained before the arbitration hearing is a lack of due diligence.508 An
allegation of perjury against another party to the arbitration is not enough in itself,
particularly if the credibility of the witnesses was in issue before the arbitrators.509
Breach of the rules of natural justice: prejudice

Section 24(b) applies where there has been a breach of the rules of natural justice
which has caused prejudice to the claimant. This ground is a general one, and
encompasses the Model Law ground that the claimant was unable to present his case
for any reason. It is identical in effect to art. 34(2)(a)(ii) of the Model Law,510 itself
replicated in IAA, s. 31(2)(c), discussed below. There is a good deal of authority on
the concept of “misconduct”, which featured in earlier legislation as the ground for
overturning an award on procedural grounds, and although this no longer features
many of the old cases remain useful illustrations of what is and what is not permis-
sible. It was decided in John Holland Pty Ltd v. Toyo Engineering Corp (Japan)511 that
a party challenging an arbitration award as having contravened the rules of natural
justice must establish first, which rule of natural justice was breached; secondly,
how it was breached; thirdly, in what way the breach was connected to the making
of the award; and fourthly, how the breach prejudiced its rights.
In England the test for setting aside is “serious irregularity” which gives rise to
“substantial injustice”,512 tests which are applied in the following way:513
The test [of substantial injustice] is not what would have happened had the matter been
litigated. To apply such a test would be to ignore the fact that the parties have agreed to
arbitrate, not litigate. Having chosen arbitration, the parties cannot validly complain of
substantial injustice unless what has happened simply cannot on any view be defended as
an acceptable consequence of that choice. In short [the remedy] is really designed as a long
stop, only available in extreme cases where the tribunal has gone so wrong in its conduct
of the arbitration that justice calls out for it to be corrected.
The general principle which underlies the cases, as stated by Cresswell J in Petroships
Pte Ltd v. Petec Trading and Investment Corporation, The Petro Ranger,514 is that there
can be intervention only “where it can be said that what has happened is so far
507 Thyssen Canada Ltd v. Mariana Maritime SA in [2005] 1 Lloyd’s Rep 640. See also DDT Trucks
of North America Ltd v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213.
508 DDT Trucks of North America Ltd v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213.
509 Thyssen Canada Ltd v. Mariana Maritime SA in [2005] 1 Lloyd’s Rep 640. See also L Brown &
Sons Ltd v. Crosby Homes (North West) Ltd [2008] EWHC 817 (TCC).
510 ADG v. ADI [2014] SGHC 73.
511 [2001] 2 SLR 262, applied in Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007]
3 SLR(R) 86, ADG v. ADI [2014] SGHC 73 and PT Central Investindo v. Franciscus Wongso [2014]
SGHC 190.
512 AA 1996 (Eng), s. 68.
513 The words of the Departmental Advisory Committee.
514 [2001] 2 Lloyd’s Rep 348.
102
515
removed from what can reasonably be expected of the arbitral process”. The
House of Lords in Lesotho Highlands Development Authority v. Impregilo SpA516 con-
firmed that the philosophy underlying the English legislation is that of minimal judi-
cial intervention. In other words, only the most extreme cases will succeed under
s. 68.517 This appears to be borne out by the statistics, in that the vast majority of
s. 68 challenges fail. What has to be shown is that, by reason of the serious irregular-
ity, the applicant has not been given an adequate opportunity to present his case
and as a result it is possible that a different decision had thereby been reached.518
The Singapore courts have rejected the “substantial injustice” approach, and
have held that the test of prejudice lays down a lower threshold. In Soh Beng Tee &
Co Pte Ltd v. Fairmount Development Pte Ltd519 the need for “an arid breach of the
rules of natural justice as an essential prerequisite to ground a successful challenge”
was rejected, and it was held that what was required is proof by the applicant of
some actual or real prejudice caused by the alleged breach in that the irregularity
could reasonably have made a difference to the outcome.520 Thus mere technical
or procedural irregularities that cause no harm are insufficient, and curial interven-
tion requires a breach of the rules of natural justice which has actually altered the
final outcome of the arbitral proceedings in some meaningful way. If the same
result could or would ultimately have been attained, or if it could be shown that the
complainant could not have presented any groundbreaking evidence or submissions
regardless, the bare fact that the arbitrator might have inadvertently denied one or
both parties some technical aspect of a fair hearing would almost invariably be insuf-
ficient to set aside the award.521 Thus, delay in producing the award does not give
rise to the type of prejudice required, because delay cannot affect the outcome.522
515 For very similar formulations, see: Hussmann (Europe) Ltd v. Pharaon [2003] 1 All ER (Comm)
879; Warborough Investments Ltd v. S Robinson & Son (Holdings) Ltd [2003] 2 EGLR 149.
516 [2005] 2 Lloyd’s Rep 310.
517 For a recent reaffirmation of this principle by the English Court of Appeal, see Bandwidth
Shipping Corp v. Intaari [2008] EWCA Civ 998.
518 See: Aquator Shipping Ltd v. Kleimar NV, The Capricorn I [1998] 2 Lloyd’s Rep 379; Sanghi
Polyesters Ltd v. The International Investor KCSC [2000] 1 Lloyd’s Rep 480; Canadian Forest Navigation
Co Ltd v. Minerals Transportation Ltd, 2001, unreported; Apis AS v. Fantazia Kereskedelini KFT (No.
2) 2001, unreported; Profilati Italia Srl v. Paine Webber Inc [2001] 1 All ER (Comm) 1065; Ascot
Commodities NV v. Olam International [2002] CLC 277; Warborough Investments Ltd v. S Robinson & Sons
(Holding) Ltd [2003] 2 EGLR 149; Checkpoint Ltd v. Strathclyde Pension Fund [2003] 1 EGLR 1; Icon
Navigation Corporation v. Sinochem International Petroleum (Bahamas) Ltd [2004] 1 All ER (Comm) 405;
St George’s Investment Co v. Gemini Consulting Ltd [2005] 1 EG 96; Newfield v. Tomlinson [2004] EWHC
3051 (TCC); Vee Networks Ltd v. Econet Wireless International Ltd [2005] 1 Lloyd’s Rep 192; Thyssen
Canada Ltd v. Mariana Maritime SA [2005] 1 Lloyd’s Rep 640; BV Scheepswerf Damen Gorinchem v. The
Marine Institute [2015] EWHC 1810 (Comm).
519 [2007] 3 SLR 86, applied in Pacific King Shipping Pte Ltd v. Glory Wealth Shipping Pte Ltd [2010]
SGHC 173, CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33, BLC v.
BLB [2014] SGCA 40 and AKN v. ALC [2015] SGCA 18. See also the test in New Zealand: Kumar and
Kumar v. MF Astley [2006] NZHC 1604.
520 LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2013] SGHC 264; Sapura-Schulz
Hydroforming Sdn Bhd v. Schulz Export GMBH [2013] SGHC 196; ADG v. ADI [2014] SGHC 73.
521 [2007] 3 SLR 86, at para. 91. See also LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte
Ltd [2012] SGCA 57, where the failure of the arbitrator to adhere to the rules of natural justice in making
an additional award was found to be prejudicial, in that argument might have affected the decision as to
whether there was jurisdiction to make an additional award.
522 Coal and Oil Co LLC v. GHCL Ltd [2015] SGHC 65.
103
Illustrations of natural justice

The established heads of breach of the rules of natural justice are as follows.
(1) Treating the parties in a discriminatory fashion,523 e.g., where the arbitrator
shows his draft award to one party only.524
(2) Failing to hear one of the parties, e.g., by refusing to admit his primary
evidence.525
(3) Denying one of the parties a right to reply, e.g., by accepting evidence in
his absence,526 and accepting late evidence527 including at the post-hearing
stage.528
(4) Giving weight to evidence not presented by the parties and not disclosed
to them,529 e.g., by having direct contact with witnesses without the
parties or their representatives being present530 or discussing one side’s
expert evidence with the expert in question.531 There is a breach of the
rules of natural justice if a tribunal decides a case on the basis of a point
not argued before it,532 unless the issue in question was “in play” in the
arbitration.533
(5) Delegating judicial functions to a third party, e.g., an expert,534 although
there is a distinction between delegating decision-making power and relying
upon the advice of an independent expert.535
(6) Adopting an approach as to the manner in which the case was presented
523 PT Central Investindo v. Franciscus Wongso [2014] SGHC 190; Stockport Metropolitan Borough
Council v. O’Reilly [1983] 2 Lloyd’s Rep 70; Rustal Trading SA v. Gill & Duffus SA [2000] 1 Lloyd’s Rep
14; Goel v. Amega Ltd [2010] EWHC 2454 (TCC). The fact that the parties have not been given equal
time does not mean that they have not been treated equally: Triulzi Cesare SRL v. Xinyi Group (Glass)
Co Ltd [2014] SGHC 220.
Corp (Japan) [2001] 2 SLR 262.
525 Re Enoch and Zaretsky, Bock Co [1910] 1 KB 327; Modern Engineering (Bristol) Ltd v. C Miskin &
Sons Ltd [1981] 1 Lloyd’s Rep 135; Koh Bros Building and Civil Engineering Contractor Pte Ltd v. Scotts
Development (Saraca) Pte Ltd [2002] SGHC 223; Dongwoo Mann & Hummel Co Ltd v. Mann & Hummel
Gmbh [2008] 3 SLR 871; Front Row Investment Holdings (Singapore) Pte Ltd v. Daimler South East Asia
Pte Ltd [2010] SGHC 80; TMM (Division Maritime SA de CV) v. Pacific Richfield Marine Pte Ltd [2013]
4 SLR 972; PT Central Investindo v. Franciscus Wongso [2014] SGHC 190.
526 Re Fuerst Brothers Co Ltd and Stephenson [1951] 1 Lloyd’s Rep 429.
527 Compania Sud-Americana De Vapores SA v. Nippon Yusen Jaisha [2009] EWHC 1606 (Comm).
528 Brockton Capital LLP v. Atlantic-Pacific Capital Inc [2014] EWHC 1459 (Comm).
529 Permasteelisa Pacific Holdings Ltd v. Hyundai Engineering & Construction Co Ltd [2005] 2 SLR
270; Interbulk Ltd v. Aiden Shipping Co Ltd, The Vimeira [1984] 2 Lloyd’s Rep 66; Gbangbola v. Smith
& Sheriff Ltd [1998] 3 All ER 730; Pacol Ltd v. Joint Stock Co Rossakhar [2000] 1 Lloyd’s Rep 109; Apis
AS v. Fantazia Kereskedelmi KFT (No. 2) 2001, unreported; Groundshire Ltd v. VHE Construction plc
[2001] BLR 395; Guardcliffe Properties Ltd v. City & St James [2003] 2 EGLR 16; Vee Networks Ltd v.
Econet Wireless International Ltd [2005] 1 Lloyd’s Rep 192; Omnibridge Consulting Ltd v. Clearsprings
(Management) Ltd [2004] EWHC 2276 (Comm).
530 Norbrook Laboratories Co v. Tank [2006] EWHC 1055 (Comm).
531 Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co and Ors [2000] 2 Lloyd’s Rep 83.
532 Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR(R) 86; AQU v. AQV
[2015] SGHC 26; Milan Nigeria Ltd v. Angeliki B Maritime Co [2011] EWHC 892 (Comm).
533 ABB AG v. Hochtief Airport GmbH [2006] 2 Lloyd’s Rep 1.
535 Luzon Hydro Corp v. Transfield Philippines Inc [2004] 4 SLR 705; Hussmann (Europe) Ltd v. Al
Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83.
104
536
through the evidence and submissions without warning or giving the
complainant an opportunity to address the way the majority were thinking
or came to think.537
(7) Failure by the arbitrators to deal with all of the issues put to them, which
requires proof that the issues were put to the arbitrators and that they
failed to deal with them. This forms a specific head of natural justice in
England.538 While there is no such head of challenge in Model Law, art.
34, it has nevertheless been regarded by the Singapore courts as an aspect
of breach of the rules of natural justice.539 That said, there is provision in
Model Law, art. 33(3), for an application to the arbitrators to make an
additional award on claims presented to them but omitted from the award,
and if no such application is made, then the court might refuse to lend
its assistance on the basis of the waiver principle.540 There is a distinction
between failing to deal with major issues541 and failing to deal in the award
with every argument in detail which was put to the arbitrators: the latter
allegation will fail unless the claimant can show that, on a fair reading of
the award, key issues were not considered at all.542 Further, an “issue” for
these purposes is one which is of decisive effect on the outcome, and not an
incidental or peripheral matter whose resolution was largely immaterial to
the overall result or which fell away in the light of other holdings.543 This
head of challenge cannot be used where the reality of the allegation is that
536 TMM (Division Maritime SA de CV) v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972;
Maass v. Musion Events Ltd [2015] EWHC 1346 (Comm).
537 Cameroon Airlines v. Transnet Ltd [2004] EWHC 1829 (Comm); Shirley Sloan Pty Ltd v. Merril
Holdings Pty Ltd (t/as Airen Constructions) [2000] WASC 99; Brecon v. Ripa [2004] NSWSC 838.
538 Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA Civ 84; Soeximex SAS v. Agrocorp
International Pte Ltd [2011] EWJC 2743 (Comm); Petrochemical Industries Co (KSC) v. Dow Chemical Co
[2012] EWHC 2739 (Comm); Primera Maritime (Hellas) Ltd v. Jiangsu Eastern Heavy Industries Co Ltd
[2013] EWHC 3066 (Comm); Transition Feeds LLP v. Itochu Europe plc [2013] EWHC 3629 (Comm);
Secretary of State for the Home Department v. Raytheon Systems Ltd [2014] EWHC 4375 (TCC).
539 SEF Construction Pte Ltd v. Skoy Connected Pte Ltd [2010] 1 SLR 733; Front Row Investment
Holdings (Singapore) Pte Ltd v. Daimler South East Asia Pte Ltd [2010] SGHC 80; Sapura-Schulz
Hydroforming Sdn Bhd v. Schulz Export GMBH [2013] SGHC 196; BLC v. BLB [2014] SGCA 40; AQU
v. AQV [2015] SGHC 26; AKN v. ALC [2015] SGCA 18. There is a specific ground of challenge on
this basis in AA 1996 (Eng), s. 68(2)(d).
540 The correctness of this approach was left open in BLC v. BLB [2014] SGCA 40.
541 TMM (Division Maritime SA de CV) v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972. For
the English authorities applied in Singapore, see: Petroships Pte Ltd of Singapore v. Petec Trading and
Investment Corporation of Vietnam [2001] 2 Lloyd’s Rep 348; Ascot Commodities NV v. Olam International
Ltd [2002] CLC 277; Ronly Holdings v. JSC Zestafoni G Nikoladze Ferroalloy Plant [2004] EWHC 1354
(Comm); Van Der Giessen-De-Noord Shipbuilding Division BV v. Imtech Marine & Offshore BV [2009] 1
Lloyd’s Rep 273; Metropolitan Property Realizations Ltd v. Atmore Investments Ltd [2008] EWHC 2925
(Ch); F Ltd v. M Ltd [2009] EWHC 275 (TCC).
542 Allegations of this type, based on the reasoning in the award, were made and rejected in:
Hussmann (Europe) v. Al Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83; Al Hadha Trading
Co v. Tradigrain SA [2002] 2 Lloyd’s Rep 512; CR Sugar Trading Ltd v. China National Sugar and
Alcohol Group [2003] 1 Lloyd’s Rep 279; Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s
Rep 446; Margulead Ltd v. Exide Technologies [2004] 2 All ER (Comm) 727; Benaim (UK) Ltd v. Davies
Middleton & Davies [2005] EWHC 1370 (TCC); Fidelity Management SA v. Myriad International
Holdings [2005] 2 Lloyd’s Rep 508; Protech Projects Construction v. Al-Kharafi & Sons [2005] 2 Lloyd’s
Rep 779; Van Der Giessen-De-Noord Shipbuilding Division BV v. Imtech Marine & Offshore BV [2009] 1
Lloyd’s Rep 273.
543 Weldon Plant Ltd v. Commission for the New Towns [2000] BLR 496; Checkpoint Ltd v. Strathclyde
105
the issue was resolved, but not to the satisfaction of the claimant,544 e.g.,
because the findings were expressed briefly or even unclearly545 or because
the issue was not properly put by the claimant.546
It is important to stress that the courts are not concerned with the merits of the
dispute, only with the fairness of the procedure adopted by the arbitrators in reach-
ing their conclusions. A party is not entitled to expect the tribunal to accept its
arguments on the merits, however strong and credible those arguments may appear
to him to be.547 Even where the appeal relates to procedure, care must be taken to
ensure that the real issue is merits and not procedure. It was said in AKN v ALC548
that allegations that the arbitrators misunderstood the case, did not mention in their
award all of the arguments raised by the parties and must have overlooked a part of
the case, relate to the merits and not to natural justice. It has also been held that an
assertion that a party has lost confidence in the arbitrator,549 and a minor divergence
from the procedural rules established by the parties themselves,550 is not of itself
sufficient to justify a remedy. Further, the arbitrators are not required to draw the
attention of a party to any points that he may have missed.551
Failure by the arbitrators to act as efficiently as they might is not of itself an
infringement of the rules of natural justice.552 In Coal and Oil Co LLC v. GHCL
Ltd553 the award was issued 19 months after the parties had made their final submis-
sions. It was held by Steven Chong J that delay did not amount to an infringement
of the rules of natural justice, and even if that was wrong then it was not possible
to show prejudice of the type required for an award to be set aside because the
outcome could not have been affected.554 The only situation where an award would
be set aside is where the arbitrators were under a contractual mandate to issue an
Pension Fund [2003] 1 EGLR 1. See also Fidelity Management SA v. Myriad International Holdings [2005]
2 Lloyd’s Rep. 508.
544 World Trade Corporation Ltd v. Czarnikow Sugar Ltd [2004] 2 All ER (Comm) 813, cited with
approval by HHJ Peter Coulson QC in Benaim v. (UK) Ltd v. Davie’Middleton & Davies [2005] EWHC
1370 (TCC).
545 ABB AG v. Hochtief Airport GmbH [2006] 2 Lloyd’s Rep 1.
546 Sobati General Trading LLC v. PT Multistrada Arahsarana [2009] SGHC 245.
547 TMM Division Maritima SA de CV v. Pacific Richfield Marine Pte Ltd [2013] SGHC 186; AQU v.
AQV [2015] SGHC 26; AKN v. ALC [2015] SGCA 18.
548 [2015] SGCA 18; cited with approval in the Australian case Robotunits Pty Ltd v. Mennel [2015]
VSC 268.
549 Yee Hong Pte Ltd v. Powen Electrical Engineering Pte Ltd [2005] 3 SLR 512; Hussmann (Europe)
Ltd v. Pharaon [2003] 1 All ER (Comm) 879; Conder Structures v. Kvaerner Construction Ltd [1999]
ADRLJ 305; Hussmann (Europe) Ltd v. Al-Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83; PT
Central Investindo v. Franciscus Wongso [2014] SGHC 190.
550 Tongyuan (USA) International Trading Group v. Uni-Clan Ltd, 2001, unreported, but a full
summary is available at (2001) 26 Yearbook of Commercial Arbitration 886 (physical location of arbitration).
551 Dicta to the contrary effect in Bandwidth Shipping Corp v. Intaari [2008] EWCA Civ 998 were
rejected in F Ltd v. M Ltd [2009] 1 Lloyd’s Rep 537 and ED & F Man v. Belmont Shipping Ltd [2011]
EWHC 2992 (Comm).
552 Conder Structures v. Kvaerner Construction Ltd [1999] ADRLJ 305; Andrews v. Bradshaw [2000]
BLR 6.
553 [2015] SGHC 65.
554 See also Hong Huat Development Co (Pte) Ltd v. Hiap Hong & Co Pte Ltd [2000] 1 SLR(R) 510,
where the delay was 10 years. The English courts have taken the same view. In BV Scheepswerf Damen
Gorinchem v. The Marine Institute [2015] EWHC 1810 (Comm) it was held that delay in producing the
award did not give rise to the substantial injustice required to justify the setting aside of the award.
106
award within a given deadline, which was missed: in such a case, the ground for
setting aside the award would be that it was issued at a time when they had no
jurisdiction.555
It is important to appreciate that the arbitrators are masters of their own proce-
dure subject to the constraints of the agreement of the parties and of adherence to
basic principles of natural justice,556 a principle specifically adopted by art. 19 of
the Model Law. Thus they have the same case management powers as a court557
he arbitrators are perfectly entitled to limit the amount of evidence put to them on
particular issues,558 to assess the evidence for themselves without being forced to
hear evidence on every possible inference that they might draw from it when further
representations would add nothing,559 to take account of their own expertise (in
many cases the reason for their appointment) to analyse the evidence put to them560
as long as fresh material is not introduced without giving the parties the opportunity
to comment on it561 and to adhere to procedural rules agreed to by the parties or
adopted by the arbitrators within their powers.562
Procedure
An application under this provision is to be made to a judge by means of originat-
ing summons and within three months from the date of receipt by the claimant of
555 Ting Kang Chung John v. Teo Hee Lai Building Constructions Pte Ltd [2010] 2 SLR 625.
556 Anwar Siraj v. Ting Kang Chung [2003] 2 SLR 287; Soh Beng Tee & Co Pte Ltd v. Fairmount
Development Pte Ltd [2007] 3 SLR(R) 86; Dongwoo Mann & Hummel Co Ltd v. Mann & Hummel Gmbh
[2008] 3 SLR 871; Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220; ADG v. ADI
[2014] SGHC 73.
557 Grand Pacific Holdings Ltd v. Pacific China Holdings [2012] 4 HKLRD 1; PT Central Investindo v
Franciscus Wongso [2014] SGHC 190.
558 Ranko Group v. Antarctic Maritime SA, The Robin, 1998, unreported; Egmatra AG v. Marco Trading
Corporation [1999] 1 Lloyd’s Rep 862; Canadian Forest Navigation Co Ltd v. Minerals Transportation Ltd,
2001, unreported.
559 Progen Engineering Pte Ltd v. Chua Aik Kia (t/a Uni Sanitary Electrical Construction) [2006] 4
SLR 419; ADG v. ADI [2014] SGHC 73; Hussmann (Europe) v. Al Ameen Development & Trade Co
[2000] 2 Lloyd’s Rep 83; BMBF (No. 12) Ltd v. Harland and Wolff Shipbuilding and Heavy Industries
Ltd [2001] 2 Lloyd’s Rep 227; Balfour Beatty Construction Ltd v. Kelston Sparkes Contractors Ltd, June
2001, unreported; Bulfracht (Cyprus) Ltd v. Boneset Shipping Co, The MV Pamphilos [2002] 2 Lloyd’s
Rep 681; Al Hadha Trading v. Tradigrain SA [2002] 2 Lloyd’s Rep 512; Miller Construction v. James
Moore Earthmoving [2001] 2 All ER (Comm) 598; Tame Shipping Ltd v. Easy Rider Navigation Ltd, The
Easy Rider [2004] 2 Lloyd’s Rep 626; Shuttari v. Solicitors Indemnity Fund Ltd [2004] EWHC 1537 (Ch);
Alphapoint Shipping Ltd v. Rotem Amfert Negev Ltd, The Agios Dimitros [2005] 1 Lloyd’s Rep 23; Icon
Navigation Corporation v. Sinochem International Petroleum (Bahamas) Co Ltd [2004] 1 All ER (Comm)
405; PT Prima International Development v. Kempinski Hotels SA [2012] SGCA 35.
560 Thomas Borthwick (Glasgow) Ltd v. Faure Fairclough Ltd [1968] 1 Lloyd’s Rep 16; Sanghi
Polyesters Ltd v. The International Investor KBSC [2000] 1 Lloyd’s Rep 480; Checkpoint Ltd v. Strathclyde
Pension Fund [2003] 1 EGLR 1; Warborough Investments Ltd v. S Robinson & Sons (Holding) Ltd [2003]
2 EGLR 149; Hawk Shipping Ltd v. Cron Navigation Ltd [2003] EWHC 1828 (Comm); Alphapoint
Shipping Ltd v. Rotem Amfert Negev Ltd, The Agios Dimitrios [2005] 1 Lloyd’s Rep 23; Bottiglieri di
Navigatzione SpA v. Cosco Qingdao Ocean Shipping Co, The Bunga Saga Lima, 2005, unreported.
561 Fox v. P G Wellfair [1982] 2 Lloyd’s Rep 514; St George’s Investment Co v. Gemini Consulting Ltd
[2005] 1 EG 96; Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39; Brunswick Bowling
& Billiards Corporation v. Shanghai Zhonglu Industrial Co Ltd [2009] HKCU 211.
562 Brandeis (Brokers) Ltd v. Black [2001] 2 Lloyd’s Rep 359; AOOT Kalmneft v. Glencore International
AG [2002] 1 Lloyd’s Rep 128; Westland Helicopters Ltd v. Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep
523; Margulead Ltd v. Exide Technologies [2004] 2 All ER (Comm) 727.
107
the award or the corrected award: RC, 69A, r. 2(1), (4). The supporting affidavit
must: (a) state the grounds in support of the application; (b) have exhibited to it
a copy of the arbitration agreement or any record of the content of the arbitration
agreement, the award and any other document relied on by the claimant; (c) set
out any evidence relied on by the plaintiff; and (d) be served with the originating
summons (RC, Ord. 69A, r. 2(4A)). Within 14 days after being served with the
originating summons, the defendant, if he wishes to oppose the application, must
file an affidavit stating the grounds on which he opposes the application (RC,
Ord. 69A, r. 2(4C)). If service out of the jurisdiction is required, it is necessary to
RC, Ord. 69A, r. 4. If service out of the jurisdiction is required, it is necessary to
RC, Ord. 69A, r. 4.
It is important to bear in mind the principle of waiver set out in Model Law,
art. 4. A party who is aware that any requirement of the arbitration agreement has
not been complied with but nevertheless proceeds with the arbitration without
stating his objection without undue delay is deemed to have waived his right to
object. The claimant is not, therefore, permitted to attempt to reopen jurisdictional
or procedural issues by an application to the court when those issues were known to
him at the time but were not voiced.
The remedy where an award is found to contravene the requirements of s. 24 is
for the award to be set aside. If the award is set aside, a further question is whether
the same arbitrators are to be retained: that depends upon whether they can be
expected to rehear the matter properly. There is no express statutory power to
remit the award to the arbitrators for further consideration, although it is generally
assumed that remission is possible and the authority of the arbitrators is thereby
reinstated where the award is remitted.563 Where the breach is in respect of only a
single isolated or stand-alone issue or point, it is normally not sensible or appropri-
ate to set aside the entire award. Instead, the policy of minimal curial intervention
implies that the court’s focus should be on the proportionality between the harm
caused by the breach and how that can be remedied. In a case where breach of
natural justice has been argued on the basis that the arbitrator had made a decision
on a point that had been neither pleaded nor argued, the appropriate remedy is
therefore to remit the matter to the arbitrator for him to receive further evidence
563 Fairmount Development Pte Ltd v. Soh Beng Tee & Co Pte Ltd [2007] 1 SLR 32. The arbitrator
cannot be removed and replaced in the absence of a real risk that the remission will not be dealt with
fairly: Mackenzie v. Leinor Developments Ltd [2001] NZCA 314.
108
564
rather than setting aside the whole award. If there has been a partial remission,
it is uncertain whether the entire award is suspended, so that none of it can be
enforced, pending reconsideration.565
Liability of arbitrator
25.—An arbitrator shall not be liable for—
(a) negligence in respect of anything done or omitted to be done in the capacity
of arbitrator; and
(b) any mistake in law, fact or procedure made in the course of arbitral
proceedings or in the making of an arbitral award.
NOTES
The Model Law does not refer to arbitral immunity, and the 1993 Review, para.
58, felt that this was a matter which should be addressed in implementing legisla-
tion. The immunity of arbitrators is derived from the immunity of judges from
negligence liability to the parties. Judicial immunity is based upon three consid-
erations: the need for the independence of the judiciary; the need to avoid threats
to judicial decision-making; and the avoidance of the rehearing of actions, which
follows inevitably from an allegation of negligence. The extension of immunity
to arbitrators was confirmed with some reservations by the House of Lords in
Sutcliffe v. Thackrah566 and Arenson v. Casson Beckman Rutley Co,567 and is based on
more or less the same considerations. Immunity is confined to negligence: it does
not extend to bad faith.
The section is concerned only with immunity in respect of matters done or
omitted by the arbitrator in the discharge or purported discharge of his functions.
An arbitrator who fails to act at all is likely to be guilty of breach of contract and
can be sued accordingly (subject to the terms of the contract) whether or not he had
acted in bad faith. Equally, an arbitrator may be stripped of his entitlement to fees
if he is removed for a cause under Model Law, art. 14, and he may also face liability
and the loss of fees if he resigns, in both cases irrespective of bad faith. The section
seemingly does not operate to give the arbitrator immunity from a costs order made
against him in successful proceedings brought by one party for his removal.568
Immunity of appointing authority and arbitral institutions, etc.

25A.—(1) The appointing authority, or an arbitral or other institution or person
designated or requested by the parties to appoint or nominate an arbitrator, shall
564 Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR 86.
565 The view in England is that a part of the award can be remitted, with the remaining parts being
valid and enforceable: see Petroships Pte Ltd of Singapore v. Petec Trading and Investment Corporation of
Vietnam [2001] 2 Lloyd’s Rep 348. That was not the position prior to the passing of AA 1996 (Eng):
Huyton SA v. Jakil SpA [1999] 2 Lloyd’s Rep 83.
566 [1974] 1 All ER 859.
567 [1975] 3 All ER 901.
568 Wicketts and Sterndale v. Brine Builders [2001] CILL 1805, although the point was not there
argued.
109
not be liable for anything done or omitted in the discharge or purported dis-
charge of that function unless the act or omission is shown to have been in bad
faith.
(2) The appointing authority, or an arbitral or other institution or person by
whom an arbitrator is appointed or nominated, shall not be liable, by reason only of
having appointed or nominated him, for anything done or omitted by the arbitrator,
his employees or agents in the discharge or purported discharge of his functions as
arbitrator.
(3) This section shall apply to an employee or agent of the appointing authority or
of an arbitral or other institution or person as it applies to the appointing authority,
institution or person himself.
NOTES
The common law did not make any provision for arbitration institutions respon-
sible for appointing arbitrators and otherwise exercising functions in relation to
the arbitration. Section 25A of the IAA responds to the market’s general view that
immunity should be extended to institutions given that many of them do not have
the funds to meet claims against them or to take out the requisite liability insurance,
and the imposition of liability could thus hamper the undoubtedly beneficial opera-
tions of such institutions. The section is based on AA 1996 (Eng), s. 74.569 It is open
to the parties to agree to such immunity, and in practice this is typically done: see
SIAC Rules, r. 34.
Section 25A(1) excludes the personal liability of an arbitration institution for
any failings in the discharge or purported discharge of its functions, e.g., in the
appointment of arbitrators and in providing subsequent assistance to the arbitra-
tion under the institution’s rules. No immunity is conferred for failing to comply
with contractual obligations, e.g., for failing to appoint arbitrators at the required
time or failing to supervise the proceedings: the immunity arises only for mis-
guided attempts to adhere to the contract. If liability is to be excluded for other
matters, this must be provided for in the contract between the institution and the
parties.
Section 25A(2) excludes any possible liability of an arbitration institution for the
acts or omissions of the arbitrators in the discharge or purported discharge of their
functions, where the liability arises purely from the appointment. The intention of
s. 25A(2) is to limit the immunity to this particular form of liability: any other liabili-
ties which might attach to the arbitration institution flowing from its conduct are
expressly preserved. The section as drafted means that the institution is not liable
simply because it has appointed the arbitrator, but that the institution remains liable
for any other conduct of its own, e.g. collusion with the arbitrator.
Section 25A(3) extends the immunity of the institution to the institution’s employ-
ees or agents, thereby preventing the side-stepping of immunity by the bringing of
actions against culpable individuals.
569 LRRD No. 3/2001, para. 2.11.4.
110
Transitional provisions
26.—(1) This Part shall not apply in relation to an international arbitration
between parties to an arbitration agreement that was commenced before 27 January
1995 unless the parties have (whether in the agreement or in any other document in
writing) otherwise agreed.
(2) Subject to subsection (1), where the arbitral proceedings were commenced
before 27 January 1995, the law governing the arbitration agreement and the
arbitration shall be the law which would have applied if this Act had not been
enacted.
(3) In any written law, agreement in writing or other document, a reference to
arbitration under the Arbitration Act (Cap. 10) shall, so far as relevant and unless
the contrary intention appears, be construed to include a reference to arbitration
under this Act.
(4) For the purposes of this section, arbitral proceedings are to be taken as having
commenced on the date of the receipt by the respondent of a request for the dispute
to be referred to arbitration, or, where the parties have agreed in writing that any
other date is to be taken as the date of commencement of the arbitral proceedings,
then on that date.
NOTES
The Act does apply to an arbitration agreement made before that date, as long as
proceedings had not started.570
PART III FOREIGN AWARDS
Interpretation of Part III

27.—(1) In this Part, unless the context otherwise requires—
“agreement in writing” includes an agreement contained in an exchange of letters,
telegrams, telefacsimile or in a communication by teleprinter;
“arbitral award” has the same meaning as in the Convention, but also includes an
order or a direction made or given by an arbitral tribunal in the course of an arbitra-
tion in respect of any of the matters set out in section 12(1)(c) to (i);
“arbitration agreement” means an agreement in writing of the kind referred to in
paragraph 1 of Article II of the Convention;
“Convention” means the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on
International Commercial Arbitration at its twenty-fourth meeting, the English text
of which is set out in the Second Schedule;
“Convention country” means a country (other than Singapore) that is a
Contracting State within the meaning of the Convention;
“court” means the High Court in Singapore;
570 Coop International Pte Ltd v. Ebel SA [1998] 3 SLR 670.
111
“foreign award” means an arbitral award made in pursuance of an arbitration

agreement in the territory of a Convention country other than Singapore.
(2) In this Part, where the context so admits, “enforcement”, in relation to a
foreign award, includes the recognition of the award as binding for any purpose, and
“enforce” and “enforced” have corresponding meanings.
(3) For the purposes of this Part, a body corporate shall be taken to be habitually
resident in a country if it is incorporated or has its principal place of business in that
country.
NOTES
Part III of the IAA governs the enforcement in Singapore of “foreign awards”, i.e.,
any award made in a country which is a party to the New York Convention 1958.
The full text of the Convention is set out in the Second Schedule to the IAA, but
is nevertheless reproduced almost verbatim in Part III of the IAA. The Convention
lays down common principles for the enforcement of foreign arbitration awards.
An award is treated as having been “made” in the place of the arbitration, i.e., the
juridical seat: see the Notes to Model Law, art. 20.
The term “arbitration agreement” is defined for the purposes of Part III by
reference to New York Convention, art. II. That definition requires an agree-
ment in writing but does not require a signature. By contrast, the definition of
“arbitration agreement” for the purposes of Part II of the IAA is that of the Model
Law, art. 7 (incorporated by IAA, s. 2), which does require a signed document.
In Aloe Vera of America Inc v. Asianic Food (S) Pte Ltd571 it was held that the
New York Convention definition was applicable, and that there was a valid arbi-
tration agreement if the “wider and looser” definition in New York Convention
was satisfied.
The term “award” was amended in 2012 to extend to an order or a direction
made or given by an arbitral tribunal in the course of an arbitration in respect of
any of the matters set out in s. 12(1)(c)–(i), namely, interim orders for security.
This reverses the previous understanding that an award for this purpose referred
to a dispositive decision, and not merely an interim procedural ruling.572 An argu-
ment that letters from the arbitral tribunal constituted additional or supplemental
awards for the purposes of enforcement was rejected by the Hong Kong Court of
Appeal.573
Application of Part III

28.—(1) This Part shall apply to arbitration agreements made before 27th January
1995 as it applies to arbitration agreements made on or after that date.
(2) This Part shall not apply to foreign awards made before 19th November 1986.
571 [2006] 3 SLR 174.

572 Resort Condominiums International Inc v. Bolwell (1993) 118 ALR 655.
573 Shandong Hongri Acron Chem. Joint Stock Co v. PetroChina International (HK) Corp [2011]
HKCA 168.
112
Recognition and enforcement of foreign awards

29.—(1) Subject 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.
(2) Any foreign award which is enforceable under subsection (1) shall be recog-
nised 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.
NOTES
Section 29 provides that a Convention award is to be recognised574 in Singaporean
proceedings and may be enforced in the same way as a domestic or foreign award is
enforced under s. 19 of the Act.
The filing of a winding-up petition does not constitute proceedings to recognise
or enforce an award, and accordingly the court may wind up a company that is
an award debtor under a foreign award where there are no substantial grounds
for contesting the validity of the award, e.g. where the award has become final in
the country where it was made and has not been challenged.575 The defences to
enforcement under IAA, s. 31 thus have no application to a winding-up petition
Evidence
30.—(1) In any proceedings in which a person seeks to enforce a foreign award by
virtue of this Part, he shall produce to the court—
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement under which the award purports to have
been made, or a duly certified copy thereof; and
(c) where the award or agreement is in a foreign language, 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.
(2) A document produced to a court in accordance with this section shall, upon
mere production, be received by the court as prima facie evidence of the matters to
which it relates.
NOTES
Section 30 lays down the formalities required for the enforcement of a New York
Convention award. Any application is to be made to a judge or to the registrar: RC,
Ord. 69A, r. 3(1). If the action is pending, the application is to be made by summons
in the action, and in any other case by originating summons: RC, Ord. 69A, r. 3(2).
Where the case is one of urgency such application may be made ex parte on such
574 See Irvani v. Irvani [2000] 1 Lloyd’s Rep 412.

575 Pacific King Shipping Pte Ltd v. Glory Wealth Shipping Pte Ltd [2010] SGHC 173.
113
terms as the court thinks fit: RC, Ord. 69A, r. 3(3). The procedure is supplemented
by RC, Ord. 69A, r. 6.
The application must be supported by an affidavit: “(a) exhibiting the arbitra-
tion agreement and the duly authenticated original award or, in either case, a duly
certified copy thereof 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 abode or business of the applicant (referred to
in this Rule as the creditor) and the person against whom it is sought to enforce the
award (referred to in this Rule as 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” (RC, Ord. 69A,
r. 6(1)).
There is no mechanism for a copy of an award or arbitration agreement to be
“duly certified”. It has been held that any certification of a copy need not be inde-
pendent but could be by the party seeking enforcement576 and that the authenti-
cation requirement applies to the award but not to the arbitration clause.577 IAA
s. 19C was added in 2012 to provide a certification procedure for Singapore awards
to allow them to be enforced in other Convention countries, but it appears not to
apply to awards made in Convention countries which are sought to be enforced in
Singapore.
An order giving leave must be drawn up by or on behalf of the creditor and must
be served on the debtor by delivering a copy to him personally or by sending a
copy to him at his usual or last known place of abode or business or in such other
manner as the court may direct (RC, Ord. 69A, r. 6(2)). If it is necessary to effect
service outside the jurisdiction, there is no need for the permission of the court to
be obtained (RC, Ord. 69A, r. 6(3)). Service may be set aside on application to the
court (RC, Ord. 69A, r. 6(4)), and the order served upon the defendant must state
that the right to so apply exists (RC, Ord. 69A, r. 6(5)).
Once the applicant has satisfied these procedural requirements, he has fulfilled
his duties under the Act. The application is valid as long as the documents appear
to show on the face of things that there is an arbitration agreement and an award.
The Singapore courts have recognised that the enforcement process at this stage578
is “mechanistic”, so that if the procedural requirements are made out, in that the
respondent is mentioned in the arbitration agreement and there is an award against
him, there is a prima facie right to enforcement and the burden of proof switches to
the defendant to establish more of the defences set out in IAA, s. 31.579
SGHC 108; Yukos Oil Co v. Dardana Ltd [2002] 2 Lloyd’s Rep 326; Lombard-Knight v. Rainstorm Pictures
Inc [2014] EWCA Civ 356.
577 Lombard-Knight v. Rainstorm Pictures Inc [2014] EWCA Civ 356.
578 Aloe Vera of America Inc v. Asiatic Food (S) Pte Ltd [2006] 3 SLR(R) 174; Strandore Invest A/S v.
Soh Kim Wat [2010] SGHC 151; Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000
Investments Ltd [2010] SGHC 108; Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte
Ltd [2010] SGHC 304.
579 Yukos Oil Co v. Dardana Ltd [2002] 2 Lloyd’s Rep 326; Aloe Vera of America Inc v. Asianic
114
The applicant cannot seek any wider order from the court. Thus, if the award
is made against a named defendant, the award may be enforced only against that
defendant and not against some third party who is alleged by the applicant to be
the principal of the defendant.580 However, the applicant may seek partial enforce-
ment of the award, i.e., in respect of separate heads of claim in the award which
are either unchallenged or unchallengeable, where for example other parts of the
award are being challenged either in the supervisory courts of the arbitral seat or as
part of the defence to enforcement proceedings in Singapore.581 It has been held in
England that the court normally should not—assuming that the necessary jurisdic-
tion exists—order security for the defendant’s costs where an application is made to
enforce an award.582
Refusal of enforcement
31.—(1) In any proceedings in which the enforcement of a foreign award is
sought by virtue of this Part, the party against whom the enforcement is sought may
request that the enforcement be refused, and the enforcement in any of the cases
mentioned in subsections (2) and (4) may be refused but not otherwise.
(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—
(a) a party to the arbitration agreement in pursuance of which the award was
made was, under the law applicable to him, under some incapacity at the
time when the agreement was made;
(b) the arbitration agreement is not valid under the law to which the parties
have subjected it or, in the absence of any indication in that respect, under
the law of the country where the award was made;
(c) he was not given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his case in the
arbitration proceedings;
(d) subject to subsection (3), the award deals with a difference not c ontemplated
Food (S) Pte Ltd [2006] 3 SLR 174 (termed “very significant persuasive authority” in Altain Khuder
LLC v. IMC Mining Inc & Anor [2011] VSC 1 with the conclusion that “a party resisting enforcement
of an award bears the burden of establishing a ground for resisting enforcement”); Denmark Skibstekniske
Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments Ltd [2010] SGHC 108.
580 Norsk Hydro ASA v. State Property Fund of Ukraine [2002] EWHC (Comm) 2120.
581 IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp (No. 2) [2008] EWCA Civ 1157; Diag
Human Se v. Czech Republic [2014] EWHC 1639 (Comm). An award may also be severed where parts of
it were made without jurisdiction: Duke of Buccleuch v. Metropolitan Board of Works (1870) LR 5 Exch 221;
Selby v. Whitbread and Co [1917] 1 KB 736; Jugoslavenska Oceanska Plovidba v. Castle Investment Co Inc
[1974] QB 292; Evans v. National Pool Equipment Pty Ltd (1972) 2 NSWLR 410. Severance is also pos-
sible if a part of the award has already been performed: Continental Grain Co v. Bremer Handelsgesellschaft
[1984] 2 Lloyd’s Rep 121; Coastal States Trading (UK) Ltd v. Mebro Mineraloelhandelsgesellschaft GmbH
[1986] 1 Lloyd’s Rep 465. Equally a part of the award contrary to public policy may be severed: JJ
Agro Industries (P) Ltd v. Texuna International Ltd [1992] 2 HKLR 391. See also ACN 006 397 413 Pty
Ltd v. International Movie Group (Canada) Inc [1996] VSC 5813, where a severable part of the award
was uncertain.
582 Gater Assets Ltd v. NAK Naftogaz Ukrainiy [2007] EWCA Civ 988; Diag Human SE v. Czech
Republic [2013] EWHC 3190 (Comm). But contrast the position in Hong Kong, where such an order
has been made: Karaha Bodas Co LLC v. Perusahaan Perambangan Minydak Dan Gas Bumi Negara
[2003] 2 HKC 200.
115
by, or not falling within the terms of, the submission to arbitration or
contains a decision on the matter beyond the scope of the submission to
arbitration;
(e) the composition of the arbitral authority or the arbitral procedure was not
in accordance with the agreement of the parties or, failing such agreement,
was not in accordance with the law of the country where the arbitration
took place; or
(f) the award has not yet become binding on the parties to the arbitral award
or has been set aside or suspended by a competent authority of the country
in which, or under the law of which, the award was made.
(3) When a foreign award referred to in subsection (2)(d) contains decisions on
matters not submitted to arbitration but those decisions can be separated from deci-
sions on matters submitted to arbitration, the award may be enforced to the extent
that it contains decisions on matters so submitted.
(4) In any proceedings in which the enforcement of a foreign award is sought by
virtue of this Part, the court may refuse to enforce the award if it finds that—
(a) the subject-matter of the difference between the parties to the award is not
capable of settlement by arbitration under the law of Singapore; or
(b) enforcement of the award would be contrary to the public policy of
Singapore.
(5) Where, in any proceedings in which the enforcement of a foreign award is
sought by virtue of this Part, the court is satisfied that an application for the setting
aside or for the suspension of the award has been made to a competent authority of
the country in which, or under the law of which, the award was made, the court may—
(a) if the court considers it proper to do so, adjourn the proceedings or, as the
case may be, so much of the proceedings as relates to the award; and
(b) on the application of the party seeking to enforce the award, order the other
party to give suitable security.
NOTES
Availability of power to refuse enforcement
Section 31(1) lays down the basic rule that a Singapore court cannot refuse the
enforcement of a Convention award unless the party against whom enforcement is
sought583 establishes one of the grounds in s. 31(2)584 to the satisfaction of the court,
a phrase which has been held to mean the balance of probabilities.585 The list of
583 PT First Media TBK v. Astro Nusantara International BV [2013] SGCA 57. Enforcement cannot
be sought against a third-party company associated with the award debtor, in that Singapore law does
not recognise the concept of “single economic entity”: Manuchar Steel Hong Kong Ltd v. Star Pacific Line
Pte Ltd [2014] SGHC 181.
584 Aloe Vera of America Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174 decides that the court
has no residual discretion to refuse enforcement and a statutory ground must be made out: there is to
be no investigation of the merits. Cf. Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 131.
Karaha Bodas Co LLC v. Pertamina [2008] HKCU 1902 also makes the point that enforcement cannot
be refused on substantive grounds, e.g., because the award was not one that could rationally have been
reached.
585 Strandore Invest A/S and others v. Soh Kim Wat [2010] SGHC 174; Galsworthy Ltd of the Republic
116
defences in s. 31(2) is taken almost verbatim from the New York Convention itself.
The same list of defences, with minor variations, appears as grounds for challeng-
ing an award under Model Law, art. 34. Even if a defence is made out, the court
has a discretion to enforce an award. In some cases, such as want of jurisdiction,
it is plain that a finding of breach means that enforcement and recognition must
inevitably be refused, but in other cases, e.g. breach of the rules of natural justice,
minor and inconsequential infringements may presumably be disregarded where
there is no prejudice.586 The burden is on an applicant to show that he had or might
have been prejudiced. Similarly, in Hong Kong, the courts have taken the view that
the discretion to enforce the award may be exercised if the court is satisfied that the
arbitral tribunal could not have reached a different conclusion, though ultimately it
depends on the seriousness of the breach.587 A stricter approach has been adopted in
England, namely that the discretion of the court to grant enforcement even though
a defence has been made out is limited to cases in which the respondent has, by
reason of waiver, lost the right to contest the award.588
A general warning issued by the Court of Appeal in BLC v. BLB589 is that these
provisions are not to be used to allow the complainant to have a “second bite of the
cherry” by repackaging in a different form before the court the case presented to the
arbitrators.
A party can apply for the setting aside of the award to the courts of the country
where the award was made, and if that happens then there will be an issue estoppel
as to whether the award is or is not valid arising from the decision of that court and
binding on the enforcing court:590 only in the most exceptional circumstances—
involving basic principles of honesty, natural justice and domestic concepts of public
policy—will the judgment of the curial court be disregarded.591 However, there is
of Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304; Denmark Skibstekniske Konsulenter A/S I
Likvidation v. Ultrapolis 3000 Investments Ltd [2010] SGHC 108.
586 China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd’s Rep 76; Minmetals
Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315; Tongyuan (US) International Trading
Group v. Uni-Clan Ltd, 2001, unreported, but a full summary is available at (2001) 26 Yearbook of
Commercial Arbitration 886; Downer-Hill Joint Venture v. Government of Fiji [2005] 1 NZLR 554; Cargill
International SA v. Peabody Australia Mining Ltd [2010] NSWSC 887; CRW Joint Operation v. PT
Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305; Grand Pacific Holdings Ltd v. Pacific China
Holdings Ltd (in liq) (No 1) [2012] 4 HKLRD 1; Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014]
SGHC 220; X Chartering v. Y [2014] HKCFI 494; AQZ v. ARA [2015] SGHC 49.
587 Paklito Investment Ltd v. Klockner East Asia Ltd [1993] HKLR 39; Apex Tech Investment Ltd v.
Chuang’s Development (China) Ltd [1996] HKCA 593; Brunswick Bowling & Billiards Corp v. Shanghai
Zhonglu Industrial Co Ltd [2011] 1 HKLRD 707; Pacific China Holdings Ltd (in liquidation) v. Grand
Pacific Holdings Ltd [2012] HKCA 200.
588 Yukos Oil Co v. Dardana Ltd [2002] 2 Lloyd’s Rep 326; Kanoria v. Guinness [2006] 1 Lloyd’s
Rep 701; Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No. 1) [2005] 1
Lloyd’s Rep 515; Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs, Government of
Pakistan [2010] UKSC 46.
589 [2014] 4 SLR 79, repeated in Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC
220.
590 Newspeed International Ltd v. Citus Trading Pte Ltd [2003] 3 SLR 1; PT Central Investindo v.
Franciscus Wongso [2014] SGHC 190. But the estoppel will relate only to the matters decided by the
curial court.
591 Altimo Holdings and Investment Ltd v. Kyrgz Mobil Tel Ltd [2011] UKPC 7; Yukos Capital SarL v.
OJS Oil Company Rosneft [2014] EWHC 2188 (Comm); Malicorp Ltd v. Government of the Arab Republic
of Egypt [2015] EWHC 361 (Comm).
117
no bar on a party contesting enforcement without first having challenged the award
in the curial courts or having lost the right to do so under the domestic law of that
country:592 in PT First Media TBK v. Astro Nusantara International BV593 the Court of
Appeal stated “that ‘choice of remedies’ is not just a facet of the Model Law enforce-
ment regime; it is the heart of its entire design”.
The refusal of enforcement of the award in the courts of another jurisdiction may
in principle give rise to an issue estoppel which prevents enforcement in Singapore,
but only in respect of the points determined by the foreign court.594 Determination
by the English High Court, the court of the seat, of the issue whether a party had
been given the opportunity to present its case was held to give rise to an issue estop-
pel “and probably also res judicata” in the Australian case Coeclerici Asia (Pte) Ltd v.
Gujarat NRE Coke Limited [2013] FCA 882.
It was held by the UK Supreme Court in Dallah Real Estate and Tourism Holding
Co v. Ministry of Religious Affairs, Government of Pakistan595 that the New York
Convention does not extend to partial awards on jurisdiction only, although the
point was left open by the Singapore Court of Appeal in PT First Media TBK v. Astro
Nusantara International BV.596
Incapacity
Section 31(2)(a) provides a defence where the defendant was, under the law appli-
cable to him, under some incapacity. This would appear to refer to incapacity under
the law of the place of the defendant’s domicile. Although there is some debate as
to whether the incapacity referred to is physical or legal, the better view is that it
ought to be referable to some legal incapacity. Any physical incapacity (e.g., that
would prevent the party from participating in the proceedings) would be covered by
s. 31(2)(c). There is also some doubt as to whether the incapacity must relate to the
time of entering into the agreement, or the time of commencement of the proceed-
ings. On balance it ought to refer to the former, but there are no reported decisions
on this ground.597
SGHC 108; Dallah Estate & Tourism Holding Co v. Ministry of Religious Affairs, Government of Pakistan
[2010] UKSC 46; Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39.
593 [2013] SGCA 57, para 65. The Court of Appeal referred to “active” curial challenges and
“passive” enforcement defences. Earlier authority was equivocal: see Galsworthy Ltd of the Republic of
Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304, where the court saw force in the argument
that contesting enforcement in Singapore was an abuse of process given the abandonment of a curial
challenge in England following non-compliance with an order for security for costs.
594 Good Challenger Nevegante SA v. Metalimportexport SA [2004] 1 Lloyd’s Rep 67; HJ Heinz Co
Ltd v. EFL Inc [2010] EWHC 1203 (Comm); Yukos Capital SARL v. OJSC Rosneft Oil Co [2011]
EWHC 1461 (Comm); Diag Human Se v. Czech Republic [2014] EWHC 1639 (Comm).
595 [2010] UKSC 46, following First Options of Chicago Inc v. Kaplan 514 US 938 (1995). Lord
Mance noted that the requirement in IAA, s 30(1)(b) for the arbitration agreement to be produced could
not be satisifed if the award was to the effect that there was no such agreement.
596 [2013] SGCA 57.
597 In Kanoria v. Guinness [2006] 1 Lloyd’s Rep 701, the Court of Appeal referred to the decision
of Gloster J at first instance (unreported) in which she accepted the fact that the English respondent in
person to the arbitration was apparently suffering from severe cancer and therefore unable to attend hear-
ings in India as sufficient to mean that he was under an incapacity for the purposes of s. 103(2 (a), AA
1996 (Eng). However, this must be regarded as open to question, since the preferable basis for relying
118
Invalid arbitration agreement

Section 31(2)(b)—invalid arbitration agreement—provides a defence where the
arbitration agreement was invalid under the law applicable to it598 (whether by
express or implied agreement of the parties) or, by way of fallback, under the law
of the place where the award was made (i.e., the place of the arbitration). In either
case the phrase “arbitration agreement” has been held to refer to the arbitration
clause599 and not to the submission to arbitration,600 and it has also been decided
that the term “invalid” includes jurisdiction and thus encompasses the situation in
which the award is contested on the ground that the applicant was not a party to the
arbitration clause.601
If there is no indication as to the law applicable to the arbitration agreement then
the award must be valid under the law of the country where the award was made. In
Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs, Government
of Pakistan602 the UK Supreme Court held that the validity of an award was to be
tested under the substantive law of the country in which the award was made and
not under the law of some other country pointed to by the conflict of laws rules of
the country where the award was made. However, the substantive law included any
principles of that law which related to international arbitration. Thus, in Dallah
itself, the validity of an award made in France was to be assessed under French
domestic law as would have been applied by a French court to the dispute and not
by the law of the country pointed to by French conflict of laws rules.
The subsection does not require the applicant to be put to proof that the arbitra-
tion agreement was valid: once the applicant has produced the arbitration agree-
ment or a copy of it under s. 102, AA 1996 (Eng), the burden then switches to the
respondent to show that the agreement was invalid.603 However, the respondent is
required to prove that a defence to enforcement and recognition exists, and that
on physical incapacity in terms of participation in the arbitration would be s. 103(2)(c), AA 1996 (Eng)
(inability to present case).
SGHC 108. In Carr v. Gallaway Cook Allan [2014] NZSC 75, the arbitration agreement purported to
permit appeals on questions of fact as well as law, which was impermissible under New Zealand arbitra-
tion law. The award was as a result so flawed that the Supreme Court set it aside.
599 See Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 131, where the (unsuccessful)
allegation was that the arbitration clause was void for uncertainty.
600 Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs, Government of Pakistan
[2008] EWHC 1901 (Comm) (Aikens J).
SGHC 108; PT First Media TBK v. Astro Nusantara International BV [2013] SGCA 57; Dardana Ltd v.
Yukos Oil Co [2002] 2 Lloyd’s Rep 326; Svenska Petroleum Exploration AB v. Government of the Republic
of Lithuania [2005] 1 Lloyd’s Rep 515; Shandong Textiles Import and Export Corporation v. Da Hua
Non-Ferrous Metals Co Ltd [2002] 2 HKC 122. This reasoning was nevertheless doubted in Dallah Real
Estate and Tourism Holding Co v. Ministry of Religious Affairs, Government of Pakistan [2008] EWHC 1901
(Comm), where Aikens J expressed the view that the provision was confined to formal invalidity. See
also Aloe Vera of America inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174, where the Singapore High
Court did not reject the argument that the question whether the respondent was a party to the arbitration
agreement fell outside s. 31(2)(b), but held that there was no basis to review the arbitrator’s findings
under the law applicable to the contract (that of Arizona) in the absence of exceptional circumstances.
602 [2010] UKSC 46; Altain Khuder LLC v. IMC Mining Inc & Anor [2011] VSC 1.
603 Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174, Yukos Oil Co v. Dardana
Ltd [2002] 2 Lloyd’s Rep 326; Altain Khuder LLC v. IMC Mining Inc & Anor [2011] VSC 1.
119
requires a full rehearing, although the views of the arbitrators may be taken into
account.604
Inability to present case

Section 31(2)(c)—inability to present case605—is concerned only with the situ-
ation in which the defendant has not been afforded a reasonable opportunity to
present his case.606 This is very much a question of fact and degree, focusing on the
overall conduct of the proceedings, with particular attention paid to the conduct
of the tribunal and the parties themselves.607 The tribunal does not need to ensure
that a party takes the best advantage of the opportunity to which he is entitled.608
Therefore, if the defendant could have made submissions to the arbitrators but
failed to do so, or has made a strategic concession, there is no basis for refusing
enforcement.609 By contrast, if he has not been afforded the opportunity to put his
case, then the court may refuse enforcement where the outcome of the award might
have been affected.610 It has been held in England that the requisite standard of
natural justice is that recognised by the courts of the enforcing jurisdiction rather
SGHC 108; Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304;
Dallah Real Estate and Tourism Holding Co v. Ministry of Religious Affairs, Government of Pakistan [2010]
UKSC 46; Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875 (Comm). Dicta to the contrary in
Aloe Vera of America, Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174, to the extent that they indicate
that the s 31 inquiry is “mechanistic” are no longer good law.
605 This ground is subsumed by the rather wider concept of public policy, discussed below. Although
both grounds may be used to justify refusal of enforcement, the principles applicable to each of them
insofar as they relate to natural justice are the same: Hi-Gene Ltd v. Sunshine Hygiene Franchise Corporation
[2010] NZCA 359; Aspec Construction Wellington Ltd v. Delta Developments Ltd [2013] NZHC 5.
606 Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220; Cameron Australasia Pty
Ltd v. AED Oil Ltd [2015] VSC 163; Pacific China Holdings Ltd (In Liquidation) v. Grand Pacific Holdings
Ltd [2012] HKCA.
607 Dongwoo Mann+Hummel Co Ltd v. Mann+Hummel GmbH [2008] SGHC 67; Uganda Telecom
Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 131 where the arbitrator was appointed ex parte under
Uganda law and no submissions were received from the other party.
608 Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220; Sugar Australia Pty Ltd v.
Mackay Sugar Ltd [2012] QSC 38.
609 Re an Arbitration between Hainan Machinery Import and Export Corporation and Donald &
McArthy Pte Ltd [1996] 1 SLR 34; Strandore Invest A/S v. Soh Kim Wat [2010] SGHC 151; Minmetals
Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315; Nanjing Cereals, Oils and Foodstuffs
Import & Export Corporation v. Luckmate Commodities Trading Ltd [1994] 3 HKC 552; Hebei Import &
Export Corp v. Polytek Engineering Co Ltd [1999] 2 HKC 205; Wuzhou Port Foreign Trade Development
Corporation v. New Chemic Ltd [2001] 3 HKC 395; Karaha Bodas Co LLC v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara (No. 2) [2003] 4 HKC 488; Sugar Australia Pty Ltd v. Mackay Sugar Ltd
[2012] QSC 38; Pacific China Holdings Ltd (In Liquidation) v. Grand Pacific Holdings Ltd [2012] HKCA;
Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220; Cameron Australasia Pty Ltd v. AED
Oil Ltd [2015] VSC 163
610 Irvani v. Irvani [2000] 1 Lloyd’s Rep 412; Apex Tech Investment Ltd v. Chuang’s Development
(China) Ltd [1996] 2 HKC 293; Guandong Overseas Shenzhen Co Ltd v. Yao Shun Group International Ltd
[1998] 1 HKC 451; Shandong Textiles Import and Export Corporation v. Da Hua Non-Ferrous Metals Co
Ltd [2002] 2 HKC 122; Brunswick Bowling & Billiards Corporation v. Shanghai Zhonglu Industrial Co Ltd
[2009] HKCU 211; Parts & Services Ltd v. Brooks [2005] NZHC 293; Kumar and Kumar v. MF Astley
[2006] NZHC 1604. In Pang Wai Hak v. Hua Yunjian [2012] HKCFI 972 the Hong Kong Court of
First Instance suggested that the party seeking to set aside the arbitral award does not have to show that
the outcome would have been different had there been no violation of the duty to afford it a reasonable
opportunity to present its case; it suffices for that party to show that the outcome could or might have
120
611
than the law of the curial jurisdiction. For instance, it was held in Hong Kong that
for a party to be “otherwise unable to present his case” the conduct complained of
must be sufficiently serious or egregious so as to deny him due process. It was also
recognised that some breaches may be so egregious that an award would be set aside
although the result could not be different.612 There is no free-standing principle that
the court can refuse to enforce an award if the reasons given are inadequate.613
Where allegations of fraud or dishonesty are put forward as the basis for a claim
against a respondent apparently too ill to attend an arbitration, but not brought to
his attention in any way, enforcement of the award may be refused.614 As with other
grounds of challenge, a failure to raise an objection before the arbitrators is generally
fatal to an attempt to oppose enforcement of the award.615
Substantive jurisdiction
Section 31(2)(d)—jurisdictional issues—is concerned with substantive jurisdiction616
rather than an excess of procedural powers,617 so that an objection to procedure falls
within s. 31(2)(c) or the general public policy rules rather than this provision.618
Courts have to be circumspect and take a narrow view when determining whether
a matter falls within that provision and is a true question of pure jurisdiction. In
doing so, they are to limit the issue they address to ensure that they do not stray into
the merits of the tribunal’s decision.619 It has been suggested that this head applies
only to a jurisdictional issue arising under a valid arbitration, as opposed to a juris-
dictional issue which prevents the arbitration agreement from operating at all.620 It
been different. On the facts, the court decided not to set aside the award despite a clear breach of that
duty, as the outcome would have been the same for different reasons.
611 Cukurova Holdings AS v. Sonera Holding BV [2014] UKPC 15; Malicorp Ltd v. Government of the
Arab Republic of Egypt [2015] EWHC 361 (Comm).
612 Pacific China Holdings Ltd (In Liquidation) v. Grand Pacific Holdings Ltd [2012] HKCA. See also
China Property Development (Holdings) Ltd v. Mandecly Ltd [2015] HKCFI 493 where the court held
that a party was unable to present its case to address issues on which the tribunal might have based the
award. This was a sufficiently serious breach of due process to merit setting aside of the award. The court
also noted that whether the outcome of the award would have been the same is a speculation not for the
court to share.
613 Cukurova Holding AS v. Sonera Holding BV (British Virgin Islands) [2014] UKPC 15.
614 Kanoria v. Guinness [2006] 1 Lloyd’s Rep 701.
615 China Nanhai Oil Joint Service Corp Shenzhen Branch v. Gee Tai Holdings Co Ltd [1994] 3 HKC
375; Hebei Import & Export Corp v. Polytek Engineering Co Ltd [1999] 2 HKC 205; Astro Nusantara v. Pt
Ayunda Prima Mitra [2015] HKCFI 274.
616 See, e.g.: Dennison v. Potts [2006] NZHC 791; PT Prima International Development v. Kempinski
Hotels SA [2012] SGCA 35, where the issue was the scope of the reference to arbitration and it was there
stated by the Court of Appeal that, in determining the scope of the submission, it is necessary to refer to
the pleaded case of each party and the issues of fact and law raised by the pleadings. See also Sui Southern
Gas Co Ltd v. Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC 62.
617 CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33, applying
Lesotho Highlands Development Authority v. Impregilo SpA [2005] 2 Lloyd’s Rep 310. See AKN v. ALC
[2015] SGCA 18.
618 Minmetals Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315.
619 United Mexican States v. Cargill Inc [2011] ONCA 622; Z v. A [2015] HKCFI 228.
620 Aloe Vera of America Inc v. Asianic Food (S) Pte Ltd [2006] 3 SLR 174, where the court held that
the question whether a particular person was a party to the arbitration agreement fell under subs. (b)
and not subs. (d). Cf. Yukos Oil Co v. Dardana Ltd [2002] 1 Lloyd’s Rep 225, although the point did
not arise on appeal.
121
does not apply to an allegation that the arbitrators have failed to apply the correct
substantive law to the main agreement,621 but it will apply to an award on interest
and costs which the arbitrator was not empowered to make.622 By virtue of s. 31(4),
when a foreign award 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 sub-
mitted.623 The fact that enforcement of an award regarding the duties of a Formula
One racing team to permit a particular driver to race also affected the racing oppor-
tunities of other drivers in the team, who were not parties to the arbitration, did not
give rise to the conclusion that the award was beyond the scope of the submission to
arbitration and therefore unenforceable.624 It has been suggested that the provision
extends to a failure to consider matters which were put to the arbitrators.625 If no
objection has been taken to the jurisdiction of the arbitrators in the arbitration itself,
the applicant is estopped from relying upon this ground of challenge.626
As discussed in the notes to IAA, s. 10, in determining jurisdiction, the court is
required to look at the matter afresh, so that the award is no more than guidance.
Breach of agreed procedure

Section 31(2)(e) deals with a breach in agreed composition or procedure.627 Such
a breach may be disregarded if it is not the fault of the arbitrators,628 if it is trivial
in the sense that no prejudice has been suffered629 or if it has been waived by the
defendant by failing to object at the appropriate time.630 It was suggested in PT
Central Investindo v. Franciscus Wongso631 that proof of actual or potential bias on
the part of the arbitrator justifies the setting aside of the award under this provision.
621 Quarella Spa v. Scelta Marble Australia Pty Ltd [2012] SGHC 166; Karaha Bodas Co LLC v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (No. 2) [2003] 4 HKC 488. The allegation is
not that the arbitrators have exceeded their jurisdiction, but that they have erred in law in their choice, a
matter beyond review under the IAA.
622 Parts & Services Ltd v. Brooks [2005] NZHC 293; Grant Thornton International Ltd v. JBPB &
Co [2013] HKCFI 523.
623 AKN v. ALC [2015] SGCA 18.
624 Giedo van der Garde BV v. Sauber Motorsport AG [2015] VSC 80.
625 Sapura-Schulz Hydroforming Sdn Bhd v. Schulz Export GMBH [2013] SGHC 196.
626 Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304;
Jiangxi Provincial Metal & Mineral Import and Export Corp v. Sulanser Co Ltd [1995] 2 HKC 373; Wuzhou
Port Foreign Trade Development Corporation v. New Chemic Ltd [2001] 3 HKC 395; Sam Ming Forestry
Economic Co v. Lam Pun Hung [2001] 3 HKC 573.
627 Denmark Skibstekniske Konsulenter A/S I Likvidation v. Ultrapolis 3000 Investments Ltd [2010] SGHC
108 (allegation that tribunal was not constituted in accordance with the parties’ agreement—dismissed on
the facts); Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220 (alleged agreement to
dispense with expert evidence, not shown on the facts). Issues as to the applicable law are not procedural:
Brunswick Bowling & Billiards Corporation v. Shanghai Zhonglu Industrial Co Ltd [2009] HKCU 211.
628 Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220.
629 China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd’s Rep 76; Tongyuan
(US) International Trading Group v. Uni-Clan Ltd, 2001, unreported, but a full summary is available
at (2001) 26 Yearbook of Commercial Arbitration 886; Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd
[2014] SGHC 220.
630 Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304;
Minmetals Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315.
631 [2014] SGHC 190.
122
Appeal against award pending

Section 31(2)(f)— the award has not become binding or as been set aside or sus-
pended by a competent authority of the country in which, or under the law of which,
the award was made order to set aside/suspend award made or pending—deals with
three different possibilities: (a) the award is not yet binding; (b) the award has been
set aside by a competent authority of the country in which the award was made;
and (c) the award has been set aside by a competent authority of the country under
whose law the award was made.
As regards (a), it has been held in England that there is no reference in the
New York Convention to the law of place where the award was made, so that the
sole issue is whether, as a matter of the law of the enforcing court, the award has
become binding. The principle of “double exequatur”, whereby the award had to
be regarded as binding under both the law of the seat and the law of the enforcing
court had been removed by the New York Convention.632
The Supreme Court of India held in Bharat Aluminium Co v. Kaiser Aluminium
Technical Service Inc633 that possibility (c) arose only where the court of (b) had no
power to set aside an award, so that it had not been intended by the drafters of the
New York Convention that an award could be set aside by the courts of any country
other than those of the seat of the arbitration. Accordingly, s. 31(2)(f) is concerned
with an order which has been made or an appeal which is pending under the curial
law634 when enforcement is sought.635
If the award is under curial review at the time of the hearing of the application for
recognition or enforcement, the court may, in accordance with s. 31(5),636 adjourn
any decision on the recognition or enforcement of the award,637 although it may
order the respondent to provide security for the award.638 Enforcement may also
be granted of those parts of the award that are either unchallenged or in respect
632 Rosseel NV v. Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625; Dowans
Holding SA v. Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm).
633 November 2012.
634 See Diag Human Se v. Czech Republic [2014] EWHC 1639 (Comm), where it was held that the
nature of the process had to be determined by reference to the curial law, and that a ruling on the point
by the curial court created an issue estoppel.
635 In Société Nationale d’Operatoins Petrolières de la Côte d’Ivoire-Holding v. Keen Lloyd Resources Ltd
[2004] 3 HKC 452 it was held that award is binding if it is not open to review on substantive grounds
but merely capable of being challenged on technical grounds (including want of due process and lack of
jurisdiction).
636 See generally: Soleh Boneh International v. Government of the Republic of Uganda [1993] 2 Lloyd’s
Rep 208; Minmetals Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315; IPCO (Nigeria)
Ltd v. Nigerian National Petroleum Corp [2005] 2 Lloyd’s Rep 326 (and see the later proceedings, IPCO
(Nigeria) Ltd v. Nigerian National Petroleum Corp (No 3) [2014] EWHC 576 (Comm), where the court
refused to vary its order in the light of alleged changed circumstances); Dowans Holding SA v. Tanzania
Electric Supply Co Ltd [2011] EWHC 1957 (Comm); Travis Coal Restructured Holdings Llc v. Essar Global
Fund Ltd [2014] EWHC 2510 (Comm). The court has no jurisdiction under s. 103(5) to order secu-
rity for any reason other than that the enforcement proceedings have been adjourned: Yukos Oil Co v.
Dardana Ltd [2002] 2 Lloyd’s Rep 326.
637 Based upon: the bona fides of the challenge in the curial courts; whether the challenge has a real-
istic prospect of success; and prejudice caused by delay. An award is not suspended in the curial courts
for this purpose if execution has been stayed pending an appeal against the award: Sonatrach v. Statoil
Natural Gas LLC [2014] EWHC 875 (Comm).
638 Based upon the strength of the argument that the award is invalid and effect of any delay on
123
of which there is no realistic prospect of challenge in the supervisory courts of the

arbitral seat.639 Relevant considerations in a decision on the adjournment of the
proceedings and on the grant of security will include the likelihood of the award
being overturned, the manner in which the respondent has pursued his application
to challenge the award and the risk that the respondent may dissipate his assets in
the absence of an order for security.640 The applicant may also be ordered to provide
security for the respondent’s future costs, as there is a risk that the applicant may
discontinue the enforcement proceedings if the award is successfully challenged.641
Section 31(5) does not deal with the unlikely situation in which an enforcement
order has been made by the Singapore courts and thereafter a curial challenge
against the award is brought. This situation is not dealt with by the New York
Convention, and it can be dealt with only by a stay of enforcement under the Rules
of Court. In Continental Transfert Technique Ltd v. Nigeria642 the English High Court
regarded the matter as one to be treated by analogy with s. 31(5), and that if there
is a real prospect of a successful challenge then a stay may be granted, albeit subject
to an order for security for the amount of the award.
Public policy
Section 31(4) sets out two defences, arbitrability and public policy. Arbitrability
is discussed in the note to s. 11, above. It is incumbent on the arbitrators to raise
public policy issues themselves, even if they have not been argued, given that such
issues may go to the enforcement of the award.643 However, if they have failed to do
so, the question becomes one for the enforcing court.
The public policy defence refers to the public policy of Singapore,644 so that
failure to raise a public policy issue before the curial court will not preclude the
respondent from opposing enforcement in Singapore.645 It is important to empha-
sise, however, that the worldwide jurisprudence on the Model Law has confirmed
that “public policy” for the purposes of the New York Convention has an interna-
tional focus, and is really concerned with the most serious forms of transgression.
As a matter of principle, considerations of public policy can never be exhaustively
defined.646 The phrase “contrary to public policy” is to be narrowly construed.647
enforcement: Cruz City I Mauritius Holdings v. Unitech Ltd [2013] EWCA Civ 1512. See also ESCO
Corporation v. Bradken Resources Pty Ltd [2011] FCA 905
639 IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp (No. 2) [2008] EWCA Civ 1157; Dowans
Holding SA v. Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm); Xiamen Xinjingdi Group
Ltd v. Eton Properties Ltd [2008] 6 HKC 287.
640 Yukos Oil Co v. Dardana Ltd [2002] 2 Lloyd’s Rep 326.
642 [2010] EWHC 780 (Comm).
643 PT Prima International Development v. Kempinski Hotels SA [2012] SGCA 35.
644 The 1993 Review, para. 28, recommended that it would be preferable not to seek to define public
policy by legislation and to leave the matter to the courts.
645 So held in Hong Kong: Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39; Hebei
Import & Export Corp v. Polytek Engineering Co Ltd [1999] 2 HKC 205.
646 Deutsche Schachtbau und Tiefbohr-Gesellschaft mbH v. Shell Petroleum Ltd [1990] 1 AC 295;
Profilati Italia SRL v. Painewebber Inc [2001] 1 All ER (Comm) 1065; Hong Kong Golden Source Ltd v.
New Elegant Investment Ltd [2014] HKCFI.
647 Shanghai Fusheng Soya Food Co Ltd v. Pulmuone Holdings Co Ltd [2014] HKCFI.
124
It is not intended to be a “catch-all” provision to be used whenever convenient; it
is meant to be limited in scope and applied sparingly, in exceptional cases only.648
As has been said on a number of occasions by the Singapore courts, echoed by
numerous others, the phrase implies “something more in the nature of sovereign
importance—that the award threatens a state’s welfare or is truly injurious to the
public good or its enforcement would be wholly offensive to the ordinary, reason-
able and fully informed member of the public on whose behalf the powers of the
state are exercised”.649 The leading authority is now AJU v. AJT,650 where the arbi-
trators had concluded that the agreement between the parties—which involved the
discontinuance of a criminal complaint in Thailand—did not infringe public policy.
The cases recognise public policy issues in the following situations. The burden
of proof is on the party contesting enforcement and the standard of proof that
enforcement would be contrary to public policy is, by reason of the words “if [the
court] finds”, the balance of probabilities,651 although very rarely has the allegation
of infringement of public policy been made out.
(a) The award has been obtained by652 perjury or fraud.653 This ground is made
out where the applicant can show that the evidence of perjury or fraud
648 See, for instance, PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2006] SGCA 41;
Parsons and Whittemore Overseas Co Inc v. Société General de Industrie du Papier (RAKTA) (1974) 508 F
2d 969; Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v. Ras al-Khaimah National Oil Co [1987] 2
Lloyd’s Rep 246; Qinhuangdao Tongda Enterprise Development Co v. Million Basic Co Ltd [1993] 1 HKLR
173; Zimbabwe Electricity Supply Authority v. Genius Joel Maposa (2000) 25 Yearbook of Commercial
Arbitration 548; Desputeaux v. Éditions Chouette (1987) Inc [2003] 1 SCR 178; Amaltal Corp Ltd v.
Maruha (NZ) Corp Ltd [2003] 2 NZLR 92; Kimberley Construction Ltd v. Mermaid Holdings Ltd [2004]
1 NZLR 386; IPCO (Nigeria) Ltd v. Nigerian National Petroleum Corp [2005] EWHC 726 (Comm);
Shanghai Fusheng Soya Food Co Ltd v. Pulmuone Holdings Co Ltd [2014] HKCFI; and Traxys Europe SA
v. Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276.
649 In Re An Arbitration Between Hainan Machinery Import and Export Corporation and Donald &
McArthy Pte Ltd [1996] 1 SLR 34. See also LRRD No. 3/2001, para. 2.37.18; Aloe Vera of America Inc v.
Asianic Food (S) Pte Ltd [2006] 3 SLR 174; PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007]
1 SLR 597; Galsworthy Ltd of the Republic of Liberia v. Glory Wealth Shipping Pte Ltd [2010] SGHC 304;
Beijing Sinozonto Mining Investment Co Ltd v. Goldenray Consortium (Singapore) Pte Ltd [2013] SGHC
248; Harris Adacom Corporation v. Percom Sdn [1991] 3 MLJ 504; Open Type Joint Stock Company Efirnoye
(EFKO) v. Alfa Trading Ltd [2012] 1 CLJ 323; Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v. Shell
Petroleum Ltd [1987] 2 Lloyd’s Rep 246, 354, per Lord Donaldson MR. See also: Amaltal Corporation
Ltd v. Maruha (NZ) Corporation Ltd [2003] NZLR 92; Theatrelight Electronic Control & Audio Systems
Ltd v. Xinyu Charlie Zheng [2005] NZHC 329; Kumar and Kumar v. MF Astley [2006] NZHC 1604;
Boardwalk Regency Corporation v. Maalouf (1992) OR (3d) 737; Zhejiang Province Garment Import and
Export Co v. Siemssen & Co (HK) Trading Ltd [1992] ADRLJ 183; China Nanhai Oil Joint Service Corp
Shenzhen Branch v. Gee Tai Holdings Co Ltd [1994] 3 HKC 375; Hebei Import & Export Corp v. Polytek
Engineering Co Ltd [1999] 2 HKC 205; Karaha Bodas Co LLC v. Pertamina [2008] HKCU 1902; Granton
Natural Resources Co Ltd v. Armco Metals International Ltd [2012] HKCFI 1938; Shanghai Fusheng Soya
Food Co Ltd v. Pulmuone Holdings Co Ltd [2014] HKCFI; X Chartering v. Y [2014] HKCFI 494.
650 [2011] SGCA 41.
651 Beijing Sinozonto Mining Investment Co Ltd v. Goldenray Consortium (Singapore) Pte Ltd [2013]
SGHC 248. Although the burden remains the same in fraud cases, and does not change to the criminal
standard of beyond all reasonable doubt, the evidence of fraud must be sufficiently cogent to match the
seriousness of the allegation. See the discussion in Beijing Sinozonto.
652 See Swiss Singapore Overseas Enterprises Pte Ltd v. Exim Rajathi India Pvt Ltd [2009] SGHC 231.
653 Dongwoo Mann & Hummel Co Ltd v. Mann & Hummel Gmbh [2008] 3 SLR 871; Beijing
Sinozonto Mining Investment Co Ltd v. Goldenray Consortium (Singapore) Pte Ltd [2013] SGHC 248;
Westacre Investments Inc v. Jugoimport-SDPR Holding Co Ltd [1999] 2 Lloyd’s Rep 65; Tamil Nadu
Electricity Board v. ST-CMS Electric Company Private Ltd [2008] 1 Lloyd’s Rep 93.
125
was not available with the exercise of reasonable diligence at the date of
the hearing, and the evidence is decisive in that it would have affected the
outcome. Mere negligence does not suffice.
(b) The losing party is at risk of having to make payment in some other jurisdic-
tion as well as in Singapore.654
(c) The award is tainted by illegality.655 If the arbitrators have jurisdiction under
the arbitration clause to determine the legality of the underlying contract,656
and have concluded that the contract is valid under its applicable law, the
award is generally enforceable657 even though the contract was illegal in the
place of its performance, although in exceptional circumstances the court
may go behind the award and apply overriding principles of public policy,
e.g., the prevention of corruption,658 or to save the law of the place of perfor-
mance from being flouted.659 Equally, if the arbitrators have ignored “pal-
pable and indisputable illegality” the award will not be enforced.660 It is not
open to the court to go behind the arbitrators’ findings of fact.661 By contrast,
if illegality under the applicable law has not been raised before the arbitrators,
the court may consider whether the underlying contract was illegal under its
applicable law although the presumption is in favour of enforcement.662
(d) The award was obtained in breach of the rules of natural justice. This is a
limited defence, requiring something far removed from what is required of
the arbitral process is required,663 e.g., bias.664
654 Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v. Shell Petroleum Ltd [1990] 1 AC 295; Soinco
SACI v. Novokuznetsk Aluminium Plant (No. 2) [1998] 2 Lloyd’s Rep 346 (where enforcement was granted).
655 The applicable principles were set out by Colman J at first instance in Westacre, a judgment which
was, with minor modifications suggested by Waller LJ, approved by the Court of Appeal in Westacre itself
and also in Soleimany v. Soleimany [1998] 3 WLR 811. If the alleged illegality is not causally linked to
the contract, it may be disregarded: Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875 (Comm).
656 Public policy does not object to such jurisdiction if there is some overriding principle of domestic
law involved: Westacre Investments, principles (ii) and (iii).
657 Westacre Investments, principle (v): Soinco SACI v. Novokuznetsk Aluminium Plant (No. 1) [1998]
2 Lloyd’s Rep 337; Omnium de Traitement et de Valorisation SA v. Hilmarton Ltd [1999] 2 Lloyd’s Rep
222; R v. V [2008] EWHC 1531 (Comm); Wu Shun Foods Co Ltd v. Ken Ken Food Manufacturing Pte
Ltd [2002] 4 SLR 877.
658 Westacre Investments, principle (i), as modified by Waller LJ in Westacre and in Soleimany. In
the Court of Appeal in Westacre Mantell LJ and Sir David Hirst were of the view that the decision of
arbitrators as to legality under the applicable law was not to be reopened in the absence of negligence
or collusion on the part of the arbitrators. That generous approach will not be relevant in the case of a
foreign judgment: Lemenda Trading v. AMEPC [1998] 1 Lloyd’s Rep 361; Tekron Resources Ltd v. Guinea
Investment Co Ltd [2004] 2 Lloyd’s Rep 26. It was in any event rejected by the Singapore Court of Appeal
in AJU v. AJT [2011] SGCA 41 as being inconsistent with Kompetenz-Kompetenz, so that the arbitrators’
own views are not to be disregarded.
659 Lemenda Trading v. AMEPC [1998] 1 Lloyd’s Rep 361.
660 AJU v. AJT [2011] SGCA 41; Westacre Investments, principle (iv); Soleimany v. Soleimany [1998]
3 WLR 811. The fact that the rule against penalties may have been infringed is not enough: Amaltal
Corporation v. Maruha (NZ) Corporation Ltd [2004] NZCA 17.
661 AJU v. AJT [2011] SGCA 41, overruling Rockeby Biomed Ltd v. Alpha Advisory Pte Ltd [2011]
SGHC 155.
662 Westacre Investments, principle (vi); Sonatrach v. Statoil Natural Gas LLC [2014] EWHC 875
(Comm).
663 Hebei Import & Export Corp v. Polytek Engineering Co Ltd [1999] 2 HKC 205; Shady Express Ltd v.
South Star Freightliner Ltd [2008] NZHC 336.
126
(f) The award is unclear as to the obligations imposed on the parties and is
accordingly incapable of enforcement.665
It is not enough that an award contains an error of law,666 including an error of law
relating to an international convention to which Singapore is a signatory.667 The fact
that circumstances have altered after the award, rendering enforcement potentially
unfair, is not a valid public policy ground upon which enforcement can be refused.
Equally, it has been held that an assertion that it is impossible to perform the award
is not sufficient justification for the court to go behind the award.668 Delay by the
arbitrators in producing the award is not a ground of public policy.669 The mere fact
that there are non-parties interested in the outcome of the arbitration does not make
it any less arbitrable or cause the enforcement of a resulting award to be against
public policy.670
It would seem that the court has a general discretion to stay the execution of a
judgment enforcing an award on the ground of expediency, e.g. when an appeal is
pending.671 This discretion is exercisable in exceptional circumstances only.672
Convention countries
32.—(1) Where the Minister by an order published in the Gazette declares that
any State specified in the order is a Convention country, the order, while in force,
shall be evidence of that fact.
(2) For the purposes of this Part, a certificate signed by the Minister stating that
a State specified in the certificate but not specified in any order made under subsec-
tion (1) which is in force is, or was at a time specified in the certificate, a Convention
country shall, upon mere production, be prima facie evidence of that fact.
NOTES
The list of New York Convention countries is to be found on the UNCITRAL
website, www.uncitral.org.
665 Margulies Brothers Ltd v. Dafnis Thomaides and Co (UK) Ltd [1958] 1 WLR 398; Tonguyan
(USA) International Trading Group v. Uni-Clan Ltd, 2001, unreported, but a full summary is available at
(2001) 26 Yearbook of Commercial Arbitration 886.
Corp (Japan) [2001] 2 SLR 262; PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR
597; Sui Southern Gas Co Ltd v. Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC 62; Downer-Hill
Joint Venture v. Government of Fiji [2005] 1 NZLR 554; JJ Agro Industries (P) Ltd v. Texuna International
Ltd [1994] 1 HKLR 89; Karaha Bodas Co LLC v. Pertamina [2008] HKCU 1902.
667 Triulzi Cesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220
668 Xiamen Xinjingdi Group Ltd v. Eton Properties Ltd [2008] 6 HKC 287.
670 Giedo van der Garde BV v. Sauber Motorsport AG [2015] VSC 80; endorsed upon appeal.
671 Far Eastern Shipping Co v. AKP Sovcomflot [1995] 1 Lloyd’s Rep 520; Strandore Invest A/S v. Soh
Kim Wat [2010] SGHC 174.
672 Air India v. Caribjet Inc [2002] 1 Lloyd’s Rep 314; .
127
Enforcement of awards under other provisions of law

33.—(1) Nothing in this Part shall affect the right of any person to enforce an
arbitral award otherwise than as is provided for in this Part.
(2) Notwithstanding section 3(5) of the Reciprocal Enforcement of Commonwealth
Judgments Act (Cap. 264), where a foreign award is both enforceable under this
Part and registrable as a judgment under that Act, proceedings to enforce the award
under this Part may be commenced without any disentitlement to recover any costs
of the proceedings, unless otherwise ordered by the court.
(3) Notwithstanding section 7 of the Reciprocal Enforcement of Foreign
Judgments Act (Cap. 265), proceedings to enforce a foreign award under this Part
may be commenced where the award is both enforceable under this Part and regis-
trable as a judgment under that Act.
PART IV GENERAL
Act to bind Government

34.—This Act shall bind the Government.
Rules of Court
35.—The Rules Committee constituted under section 80 of the Supreme Court
of Judicature Act (Cap. 322) may make Rules of Court regulating the practice and
procedure of any court in respect of any matter under this Act.
NOTES
The relevant rules are RC, Ord. 69A. The Order is set out in full in this work and
referred to at appropriate places in the annotations to the IAA.
FIRST SCHEDULE
UNCITRAL MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION
CHAPTER I—GENERAL PROVISIONS 673
Article 1. Scope of application

(1) This Law applies to international commercial arbitration, subject to any
agreement in force between this State and any other State or States.
673 There is guidance on the Model Law prepared by the UNCITRAL Secretariat, published on
the UNCITRAL website as an appendix to the Model Law, www.uncitral.org. Reference may also be
128
(2) The provisions of this Law, except Articles 8, 9, 35 and 36, apply only if the
place of arbitration is in the territory of this State.
(3) An arbitration is international if:
(a) the parties to an arbitration agreement have, at the time of the conclusion
of that agreement, their places of business in different States; or
(b) one of the following places is situated outside the State in which the parties
have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitra-
tion agreement;
(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one country.
(4) For the purposes of paragraph (3) of this Article:
(a) if a party has more than one place of business, the place of business is that
which has the closest relationship to the arbitration agreement;
(b) if a party does not have a place of business, reference is to be made to his
habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which certain
disputes may not be submitted to arbitration or may be submitted to arbitration
only according to provisions other than those of this Law.
NOTES
The IAA applies if the arbitration is international: there is no requirement that
it also be commercial: IAA, s. 5. Article 1(2) makes it clear that the Model Law
applies only where the place of the arbitration is in Singapore,674 subject to the
exceptions relating to stay, the grant of interim measures (although see the Notes to
Model Law, art. 9 on this point), and enforcement. It may be noted that the revised
version of art. 1(2), adopted in 2006 by UNCITRAL but not yet by Singapore,
extends the exceptions to the provisions added in 2006 in arts 17H–17J relating to
court-ordered interim measures. The revised version of art. 1(2) reads:
(2) The provisions of this Law, except articles 8, 9, 17H, 17I, 17J, 35 and 36,
apply only if the place of arbitration is in the territory of this State.
made to the UNCITRAL Commentary on the Model Law, published 25 March 1985 on what was then
the draft Model Law. The relevant parts of the Commentary are reproduced in the annotations to the
Model Law.
674 Similarly, under the AA 1996 (Eng) the court can, subject to statutory exceptions, intervene
only where the seat of the arbitration is in England: Weissfisch v. Julius [2006] 1 Lloyd’s Rep 716; C v. D
[2008] 1 Lloyd’s Rep 239; Braes of Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine Business Services
Ltd [2008] 1 Lloyd’s Rep 608.
129
Article 2. Definitions and rules of interpretation

For the purposes of this Law:
(a) “arbitration” means any arbitration whether or not administered by a per-
manent arbitral institution;
(b) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(c) “court” means a body or organ of the judicial system of a State;
(d) where a provision of this Law, except Article 28, leaves the parties free to
determine a certain issue, such freedom includes the right of the parties to
authorise a third party, including an institution, to make that determination;
(e) where a provision of this Law refers to the fact that the parties have agreed
or that they may agree or in any other way refers to an agreement of the
parties, such agreement includes any arbitration rules referred to in that
agreement;
(f) where a provision of this Law, other than in Articles 25(a) and 32(2)(a),
refers to a claim, it also applies to a counter-claim, and where it refers to a
defence, it also applies to a defence to such counter-claim.
NOTES
The 2006 amendments to the Model Law added the following article on interpreta-
tion. This appears to be largely aspirational. The 2006 amendments have not been
enacted in Singapore legislation.
Article 2A. International origin and general principles

(1) In the interpretation of this Law, regard is to be had to its international origin
and to the need to promote uniformity in its application and the observance of good
faith.
(2) Questions concerning matters governed by this Law which are not expressly
settled in it are to be settled in conformity with the general principles on which this
Law is based.
Article 3. Receipt of written communications

(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have been received if it is deliv-
ered to the addressee personally or if it is delivered at his place of busi-
ness, habitual residence or mailing address; if none of these can be found
after making a reasonable inquiry, a written communication is deemed to
have been received if it is sent to the addressee’s last-known place of busi-
ness, habitual residence or mailing address by registered letter or any other
means which provides a record of the attempt to deliver it;
(b) the communication is deemed to have been received on the day it is so
delivered.
(2) The provisions of this Article do not apply to communications in court
proceedings.
130
NOTES
This provision governs the date of receipt of any decision, ruling, award or corrected
award: RC Ord. 69, r. 2(5). See also SIAC Rules, r. 2.
Article 4. Waiver of right to object

A party who knows that any provision of this Law from which the parties may dero-
gate or any requirement under the arbitration agreement has not been complied
with and yet proceeds with the arbitration without stating his objection to such non-
compliance without undue delay or, if a time-limit is provided therefor, within such
period of time, shall be deemed to have waived his right to object.
NOTES
The waiver principle is an important aspect of arbitration. The general principle
is that a party who is aware of his right to object but does not exercise it while the
arbitration is ongoing, will lose that right if he subsequently seeks to challenge the
award. Article 4 has two important limitations. First, it applies only to provisions
from which the parties may derogate or express terms of the arbitration agreement:
any provision of the Model Law which is incapable of being excluded by agreement
cannot be lost by way of waiver. Secondly, the claimant must actually be aware that
the relevant requirement has not been complied with: there is no issue of construc-
tive knowledge,675 other than—in accordance with the general definition of actual
knowledge—“blind eye” knowledge where the party has deliberately shut his eyes
to an obvious problem.
Any objection must be raised “without undue delay” or, where appropriate, within
agreed time limits. The phrase “undue delay” is not defined. The English legislation
uses the term “forthwith”, a word which has been held to mean “acting promptly”
or “without unnecessary delay” given the circumstances.676 The threat of objec-
tion cannot be held over the head of the tribunal until they made their decision,
and could be seen as an attempt to put unfair and undue pressure upon them.677
Unless a party makes it clear that he is withdrawing from the arbitral proceedings,
he continues to take part in them until they reach their conclusion, normally in the
publication of a final award, even if in, e.g., the period between the hearing and the
award nothing actually happens.678
Article 5. Extent of court intervention

In matters governed by this Law, no court shall intervene except where so provided
in this Law.
675 Contrast the position under AA 1996 (Eng), s. 73.

676 Wicketts and Sterndale v. Brine Builders [2001] CILL 1805.
677 ASM Shipping Ltd v. TTMI Ltd [2006] 1 Lloyd’s Rep 375.
678 Rustal Trading SA v. Gill & Duffus SA [2000] 1 Lloyd’s Rep 14. See also Thyssen Canada Ltd v.
Mariana Maritime [2005] 1 Lloyd’s Rep 640.
131
NOTES
The principle of non-intervention underlies the Model Law and permeates the
decisions of the courts.679 The courts may intervene to give their support (the
appointment and removal of arbitrators and to grant interim measures), to hear a
challenge to an award on the limited grounds set out in Model Law, art. 34, and to
enforce the award. IAA extends the grounds of support and intervention contained
in the Model Law. Those matters aside, the court may not intervene680 unless the
issue is one not governed by the Model Law.681 The court thus does not have an
inherent jurisdiction, or any general or residual competence in a domestic system,
to exercise powers not conferred by the Model Law,682 e.g., the power to set aside
an award where the court regards the award as perverse, manifestly unreasonable
or irrational,683 or where the court has removed the arbitrator for actual or potential
bias after the making of the award.684
Article 6. Court or other authority for certain functions of arbitration

assistance and supervision
The functions referred to in Articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall
be performed by. . . [Each State enacting this Model Law specifies the court, courts
or, where referred to therein, other authority competent to perform these functions.]
NOTES
The nominated authority for the purposes of arts 11(3) and 11(4) is the chairman
of the Singapore International Arbitration Centre. The nominated authority for all
other purposes is the High Court. See the Notes to IAA, s. 8.
CHAPTER II—ARBITRATION AGREEMENT
Article 7. Definition and form of arbitration agreement

(1) “Arbitration agreement” is an agreement by the parties to submit to arbitra-
tion all or certain disputes which have arisen or which may arise between them in
679 PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] SLR(R) 513; Son Beng Tee & Co
Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR(R) 86; BLC v. BLB [2014] SGCA 40; AKN v.
ALC [2015] SGCA 18.
680 ABC Co v. XYZ Co Ltd [2003] 3 SLR 546; Mitsui Engineering & Shipbuilding Co Ltd v. Easton
Graham Rush [2004] 2 SLR 14; PT Central Investindo v. Franciscus Wongso [2014] SGHC 190.
681 Carter Holt Harvey Ltd v. Genesis Power Ltd HC AK [2006] NZHC 114, where it was held that if
there is no arbitration agreement then the Model Law is not engaged at all and it is open to the court to
grant an injunction staying the arbitration. See the Notes to IAA, s. 6.
682 Twin Advance (M) Sdn Bhd v. Polar Electro Europe BV [2013] 7 MLJ 811. Contrast with the
position prior to the enactment of the Arbitration (Amendment) Act 2011 Taman Bandar Baru Masai
Sdn Bhd v. Dindings Corporations Sdn Bhd [2010] 5 CLJ 83 (judicial intervention may be permitted in a
case of “patent injustice”) and Albilt Resources Sdn Bhd v. Casaria Construction Sdn Bhd [2010] 7 CLJ 785
(judicial intervention by way of invoking “inherent jurisdiction” to prevent injustice).
683 Sui Southern Gas Co Ltd v. Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC 62.
132
respect of a defined legal relationship, whether contractual or not. An arbitration
agreement may be in the form of an arbitration clause in a contract or in the form
of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing
if it is contained in a document signed by the parties or in an exchange of letters,
telex, telegrams or other means of telecommunication which provide a record of
the agreement, or in an exchange of statements of claim and defence in which the
existence of an agreement is alleged by one party and not denied by another. The
reference in a contract to a document containing an arbitration clause constitutes
an arbitration agreement provided that the contract is in writing and the reference is
such as to make that clause part of the contract.
NOTES
The Model Law was amended in 2006 to add two further optional definitions of
“arbitration agreement”, set out below. Singapore, in the IAA s. 2, initially adopted
the version set out above, but the International Arbitration (Amendment) Act 2012
added a new s. 2A to the IAA, containing a definition of “arbitration agreement”.
That section is greatly extended and picks up certain of the points in Option I below.
The point, however, is that none of the three definitions of “arbitration agreement”
in the Model Law has been adopted in Singapore. See the note to s. 2A of the IAA.
Option I
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitra-
tion all or certain disputes which have arisen or which may arise between them in
respect of a defined legal relationship, whether contractual or not. An arbitration
agreement may be in the form of an arbitration clause in a contract or in the form
of a separate agreement.
(2) The arbitration agreement shall be in writing.
conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an
electronic communication if the information contained therein is accessible so as to
be useable for subsequent reference; “electronic communication” means any com-
munication that the parties make by means of data messages; “data message” means
information generated, sent, received or stored by electronic, magnetic, optical or
similar means, including, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an
exchange of statements of claim and defence in which the existence of an agreement
is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause
constitutes an arbitration agreement in writing, provided that the reference is such
as to make that clause part of the contract.
133
Option II
Article 7. Definition of arbitration agreement
“Arbitration agreement” is 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.
Article 8. Arbitration agreement and substantive claim before court

(1) A court before which an action is brought in a matter which is the subject of an
arbitration agreement shall, if a party so requests not later than when submitting his
first statement on the substance of the dispute, refer the parties to arbitration unless it
finds that the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this Article has been brought,
arbitral proceedings may nevertheless be commenced or continued, and an award
may be made, while the issue is pending before the court.
NOTES
This provision is implemented in modified form by IAA, s. 6, although art 8 is
subject to the conditions for a stay in s 6 being satisfied, a point made by the opening
words of s. 6 “Notwithstanding Article 8 of the Model Law . . .”. Where a stay is
granted under s. 6, the court does not have power under that provision to refer the
parties to arbitration, a deficiency corrected by art. 8. The provision may be used in
respect of an arbitration with its seat outside Singapore. In Hong Kong, it was held
that the phrase “refer the parties to arbitration” does not mean “refer the dispute to
the arbitrators”, but rather “refer the parties to the process of arbitration” that they
have agreed to undertake.685 Accordingly, if this involves taking a preliminary steps,
such as mediation, the arbitration agreement will not be “null and void, inoperative
or incapable of being performed” within the meaning of art. 8.686
Article 9. Arbitration agreement and interim measures by court

It 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.
NOTES
This provision is designed to protect a party to an arbitration clause who wishes to
seek interim measures to protect the arbitration clause. If interim measures are com-
menced other than for the purposes of protecting any present or future arbitration,
e.g., without reference to the arbitration clause and without any attempt to stay the
judicial proceedings, then the applicant will be regarded as having taken steps in the
685 Westco Airconditioning Ltd v. Sui Chong Construction Engineering Co Ltd (1998) HCA No 12848
of 1997, unreported.
686 Schindler Lifts (Hong Kong) Ltd v. Sui Chong Construction and Engineering Co Ltd [2014] HKDC
1348.
134
judicial proceedings on the merits of the case and will lose the right to seek a stay of
those proceedings at a later date.687
At first sight art. 9 seems to confer the jurisdiction on the courts of Singapore to
grant interim measures in support of an arbitration with its seat outside Singapore.
For the powers of the Singapore courts to grant interim measures, see the Notes to
IAA, s. 12(7). However, in Swift-Fortune Ltd v. Magnifica Marine SA688 the Court of
Appeal held that the provision was not jurisdictional but merely permissive, in that
it permitted a party to apply to the court for interim measures without infringing
the arbitration agreement. Thus, although Model Law, art. 1(2) extended art. 9 to
foreign arbitrations, those provisions did not of themselves confer any jurisdiction
upon the Singapore courts.
CHAPTER III—COMPOSITION OF ARBITRAL TRIBUNAL
Article 10. Number of arbitrators

(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
NOTES
The IAA, s. 9, has rejected the default in art. 10(2) and has opted for a default
arbitral tribunal of one.
Article 11. Appointment of arbitrators

(1) No person shall be precluded by reason of his nationality from acting as an
arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or
arbitrators, subject to the provisions of paragraphs (4) and (5) of this Article.
(3) Failing such agreement—
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator,
and the two arbitrators thus appointed shall appoint the third arbitrator; if a
party fails to appoint the arbitrator within thirty days of receipt of a request to
do so from the other party, or if the two arbitrators fail to agree on the third arbi-
trator within thirty days of their appointment, the appointment shall be made,
upon request of a party, by the court or other authority specified in Article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on
the arbitrator, he shall be appointed, upon request of a party, by the court
or other authority specified in Article 6.
(4) Where, under an appointment procedure agreed upon by the parties—
(a) a party fails to act as required under such procedure; or
687 Pathak Ltd v. Tourism Transport Ltd [2002] 3 NZLR 681.

688 [2007] 1 SLR 629 disapproving Front Carriers Ltd v. Atlantic & Orient Shipping Corp [2006] 3
SLR 854.
135
(b) the parties, or two arbitrators, are unable to reach an agreement expected of
them under such procedure; or
(c) a third party, including an institution, fails to perform any function entrusted
to it under such procedure,
any party may request the court or other authority specified in Article 6 to take the
necessary measure, unless the agreement on the appointment procedure provides
other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this Article to the
court or other authority specified in Article 6 shall be subject to no appeal. The court or
other authority, in appointing an arbitrator, shall have due regard to any qualifications
required of the arbitrator by the agreement of the parties and to such considerations as
are likely to secure the appointment of an independent and impartial arbitrator and, in
the case of a sole or third arbitrator, shall take into account as well the advisability of
appointing an arbitrator of a nationality other than those of the parties.
NOTES
Article 11(1) sets out an obvious proposition. The saving for agreement between the
parties is designed to ensure that the tribunal is seen to be neutral.
As to the appointment of arbitrators, the Model Law default position in rela-
tion to an arbitration with three arbitrators, in art. 11(3)(a), is that each party is to
appoint an arbitrator and the two arbitrators are to appoint a third. This principle
has not been accepted by IAA, s. 9A, which provides instead that each party shall
appoint one arbitrator, and the parties shall by agreement appoint the third arbi-
trator within 30 days: the selection of a third arbitrator by the parties themselves
might be thought to be out of line with accepted practice. If there are to be three
arbitrators, and one party has failed to make an appointment within 30 days689 or
has failed to agree to the third arbitrator, the appointment is to be made by the
nominated authority, the Chairman of SIAC: art. 11(3)(a), as modified by IAA,
s. 9A. Presumably the Chairman has to be satisfied that there is a prima facie case
that an arbitration agreement exists.690 If there is to be a sole arbitrator and the
parties have failed to agree,691 the appointment is to be made under art. 11(3)(b) by
the Chairman of SIAC: IAA, s. 8. In all other cases, if the appointment procedure
has failed, the nominated authority for the purposes of art. 11(4) is the Chairman
689 Attention may here be drawn to AA 1996 (Eng), s. 17, which provides that if each party is to
appoint an arbitrator but one party defaults, the other may treat his appointee as the sole arbitrator.
This procedure is regarded as a highly convenient one, and its absence from the Model Law was another
reason for the non-adoption of the Model Law in England. See Minermet SpA Milan v. Luckyfield Shipping
Corporation SA [2004] 2 Lloyd’s Rep 348; LRRD No. 3/2001, paras 2.6.2–2.6.3. Note that the English
provision might compromise the perceived independence of the tribunal, and indeed there have on occa-
sion been objections to the enforcement of English awards made by a sole arbitrator in such circumstances.
690 The test used for appointment by a court in Hong Kong: Wong Yu Hing v. Tong Pak Wing
[1995] 2 HKC 430; Cheuk Kin Trading Ltd v. Prudential Mall Ltd [1996] 4 HKC 758; ICC Chemical
Corporation v. Zhuhai Minmetals International Non-Ferrous Metals Trading Co [1996] 2 HKC 64. Compare
McNaughton v. Dobson [2006] NZHC 457, where the court undertook a full examination of the validity
and scope of the arbitration clause. As the validity of the arbitration clause is a matter of jurisdiction for
the arbitrators themselves, there is no basis for a definitive ruling at this stage.
691 As in Shun Cheong Electrical Engineering Co Ltd v. Cheung Kee Fung Cheung Construction Co Ltd
[1998] 1 HKC 585.
136
of SIAC: IAA, s. 8. The default powers operate only where the agreed appointment
procedure has failed. If the agreed procedure has not been implemented in the first
place, it cannot be said to have failed and there is no jurisdiction to intervene.692
By reason of art. 11(5), in the event that an appointment is made by SIAC, there
is no right of appeal. However, in making the appointment, SIAC is required to
have due regard to the qualifications required by the parties and the need for a sole
arbitrator to be independent and impartial. SIAC has no discretion to refuse to make
an appointment under art. 11(3): the use of the word “shall” puts the point beyond
doubt. That word is not used in art. 11(4), leaving open the argument that SIAC
has the discretion to refuse to make an appointment. It may be that the argument
is incorrect, but there is English authority for the proposition that the court has a
power but not an obligation to appoint an arbitrator when the agreed procedure
has failed. The English cases show that the application will be granted other than
in exceptional circumstances693 and in particular will not be refused today simply
because arbitration may be inconvenient given the existence of third-party and other
claims outside the scope of the arbitration clause,694 but that the court may refuse to
act where the delay by the applicant has been such as to cause serious prejudice to
the respondent695 or if the claim would obviously be time-barred.696 The question
appears to be whether the dispute could be fairly resolved in the arbitration.697 If
costs are incurred in the appointment process, it has been held in Hong Kong that
the defaulting party should pay costs on an indemnity basis.698
Under SIAC Rules, all appointments have to be confirmed by the President of
SIAC: SIAC Rules, r. 6.3.
Article 12. Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an
arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as
to his impartiality or independence. An arbitrator, from the time of his a ppointment
and throughout the arbitral proceedings, shall without delay disclose any such circum-
stances to the parties unless they have already been informed of them by him.
692 Secretary of State for Foreign and Commonwealth Affairs v. Percy Thomas Partnership (1998) 65 Con
LR 11.
693 West of England Ship Owners Mutual Protection and Indemnity Association (Luxembourg) Ltd v.
Hellenic Industrial Development Bank SA [1999] 1 Lloyd’s Rep 93; R Durtnell and Sons Ltd v. Secretary of
State for Trade and Industry [2000] BLR 771.
694 Petredec Ltd v. Tokomaru Kaiun Co Ltd, The Sargasso [1994] 1 Lloyd’s Rep 162.
695 Frota Oceanica Brasileira SA v. Steamship Mutual Underwriting Association (Bermuda) Ltd, The
Frotanorte [1996] 2 Lloyd’s Rep 461, which makes it clear that inexcusable and inordinate delay is not
required, as would be the case for a striking out for want of prosecution. In that case the delay was
described as “awe inspiring”. See also Secretary of State for Foreign and Commonwealth Affairs v. Percy
Thomas Partnership (1998) 65 Con LR 11. Contrast R Durtnell and Sons Ltd v. Secretary of State for Trade
and Industry [2000] BLR 771; Atlanska Plovidba v. Consignaciones Asturianas SA [2004] 2 Lloyd’s Rep 109.
696 In West of England Ship Owners Mutual Protection and Indemnity Association (Luxembourg) Ltd v.
Hellenic Industrial Development Bank SA [1999] 1 Lloyd’s Rep 93, the court appointed an arbitrator as the
time-bar defence was arguable rather than established and the court’s view was that the matter should be
resolved by the arbitrator once appointed.
697 Atlanska Plovidba v. Consignaciones Asturianas SA [2004] 2 Lloyd’s Rep 109, per Moore-Bick J.
698 China Ocean Shipping Co v. Mitrans Maritime Panama SA [1994] 2 HKC 614.
137
(2) An 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. 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.
NOTES
The Model Law attempts to ensure that arbitrators are independent, impartial and
possess the qualifications required by the parties. This is achieved by means of a
challenge procedure. Under art. 12(1), where a person is approached to act as an
arbitrator he must disclose any circumstance which gives rise to justifiable doubts as
to his impartiality or independence. It has been said that like Caesar’s wife, a pro-
spective arbitrator must be above suspicion, and thus the golden rule for an arbitra-
tor caught in such a circumstance is “When in doubt, disclose!”.699 The obligation
of discovery continues throughout the currency of the arbitration.
Article 12(1) refers to justifiable doubts about impartiality or independence.
These are quite different things:700 it is perfectly possible for an arbitrator to be
impartial even though he is not independent, and in relatively small markets where
the number of expert arbitrators is limited, finding arbitrators who have no links
with either party may be all but impossible.701 The authorities make it clear that all
arbitrators have to be impartial, including party-appointed arbitrators.
It was said by Belinda Ang J in PT Central Investindo v. Franciscus Wongso702
that there are three types of bias: actual bias; imputed bias (where the arbitrator
is acting in his own cause); and apparent bias, where there is a real likelihood of
bias or grounds for reasonable suspicion of bias. In the latter situation there is a
two-step process: the applicant has to establish factual circumstances that would
have a bearing on suggestion that there was a lack of partiality; and it must then
be asked whether a hypothetical, fair-minded and informed observer would view
the circumstances as bearing on impartiality.703 The cases may be classified under
several heads.704
699 Ridzuan bin Mohd Salleh v. Syarikat Air Terengganu Sdn Bhd [2012] 6 CLJ 156.
700 Although LRRD No. 3/2001, paras 2.7.2 felt that the distinction was too fine to be justified in
the legislation. See the note to AA, s. 14.
701 Another reason that England did not opt for the Model Law. See A T & T Corporation v. Saudi
Cable Co [2000] 2 Lloyd’s Rep 127.
702 [2014] SGHC 190.
703 PT Central Investindo v. Franciscus Wongso [2014] SGHC 190, applying a series of cases involv-
ing alleged bias of judges, including Re Shankar Alam [2007] 1 SLR(R) 85. The English authorities are
similarly derived from decisions involving judges: R v. Gough [1993] AC 646; R v. Bow Street Magistrate,
ex parte Pinochet (No. 2) [1999] 2 WLR 272; Director General of Fair Trading v. Proprietary Association
of Great Britain [2001] 1 WLR 700; Porter v. Magill [2002] 2 AC 357; Amec Capital Projects Ltd v.
Whitefriars City Estates [2005] BLR 1; Logy Enterprises Ltd v. Haikou City Bonded Area Wansen Products
Trading Co [1997] 2 HKC 481. The test for apparent bias of judges was held applicable to arbitrators in
Laker Airways Inc v. FLS Aerospace Ltd [2000] 1 WLR 113 and AT & T Corp v. Saudi Cable Co [2000] 2
All ER (Comm) 625. See also Locabail (UK) v. Bayfield Properties Ltd [2000] 1 All ER 65, in which the
Court of Appeal discussed a number of situations in which a judge or other person with judicial functions
was to be regarded either as automatically disqualified (direct pecuniary or personal interest) or capable
of being removed (risk or appearance of bias).
704 See also the SIAC Code of Ethics for arbitrators, http://siac.org.sg/our- rules/
code-of-ethics-for-an-arbitrator.
138
(a) There is the potential for bias where there is a commercial relationship
between the arbitrator and one of the parties, although this depends upon
the nature and continuing nature of that relationship.705 In Laker Airways
Inc v. FLS Aerospace Ltd706 it was held that there was no objection to a
barrister acting as arbitrator even though he was in the same chambers as
a barrister acting for one of the parties. The question was whether there
were circumstances which raised justifiable doubts as to the arbitrator’s
impartiality, but as barristers were not partners or fellow employees and
had their own interests and reputations to further, no such doubts could be
demonstrated.707
(b) The arbitrator and one of the parties have in the past been involved in a
dispute or have competing commercial interests: there is normally a need
for a clear link between the dispute and the arbitration for this ground to
be of significance.708 It is not enough to show bias against arbitrators A and
B that the applicant party has previously sought the removal of arbitrator
C on the ground of bias and arbitrators A and B had given their support to
arbitrator C remaining a member of the panel.709
(c) The arbitrator has a personal interest in the outcome of the arbitration.710
(d) The arbitrator has indicated that his mind is closed as to the outcome or on
particular issues or evidence in the arbitration.711
If the arbitrator is not precluded from acting as such by reason of potential bias,
then he may be removed or his award may nevertheless be challenged if actual bias is
shown in the conduct of the proceedings. In the Hong Kong Court of Final Appeal
case Hebei Import & Export Corporation v Polytek Engineering Co Ltd712 Bokhary PJ
drew a distinction between actual bias and apparent bias and seems to have sug-
gested that the latter, unlike the former, is not sufficient to justify a refusal of the
court to enforce an arbitral award. This suggestion has subsequently been watered
down, with the courts holding that the difference between the two is a matter of
degree and in some cases the line between them may not be readily drawn.713
705 Cook International Inc v. Handelsmaatschappij Jean Delvaux BV [1985] 2 Lloyd’s Rep 225; Save
and Prosper Pensions Ltd v. Homebase Ltd [2001] L & TR 11; Jung Science Information Technology Co Ltd v.
ZTE Corporation [2008] HKCU 1127; A v. B [2011] EWHC 2345 (Comm); Sierra Fishing Company v.
Farran [2015] EWHC 140 (Comm). It is not enough that the arbitrator might wish to obtain further
work from one of the parties: Interprods Ltd v. De La Rue International Ltd [2014] EWHC 68 (Comm).
706 [1999] 2 Lloyd’s Rep 45.
707 The DAC Report, para. 102, had anticipated this result on these very facts.
708 Fletamentos Maritimos SA v. Effjohn International BV (No. 2) [1997] 2 Lloyd’s Rep 302; Rustal
Trading SA v. Gill Duffus SA [2000] 1 Lloyd’s Rep 14; A T & T Corporation v. Saudi Cable Co [2000] 2
Lloyd’s Rep 127.
709 ASM Shipping Ltd v. Harris [2008] 1 Lloyd’s Rep 61.
710 Blanchard v. Sun Fire Office (1890) 6 TLR 365; Watson v. Prager [1991] 3 All ER 487.
711 Re Steamship Catalina and Motor Vessel Norma NV (1938) 61 Ll L Rep 360; Tracomin SA v.
Gibbs [1985] 1 Lloyd’s Rep 586; it was held in Amec Capital Projects Ltd v. Whitefriars City Estates Ltd
[2005] BLR 1 that an arbitrator is not biased simply because he has previously heard the matter and is
required to hear it afresh. See also Gascor v. Ellicott [1995] VSC 2080 and Todd Taranaki Ltd v. Energy
Infrastructure Ltd [2007] NZHC 1516, where allegations of predetermination were dismissed.
712 [1999] HKCFA 40.
713 Gao Haiyan v. Keeneye Holdings Ltd [2011] HKCA 459; Granton Natural Resources Co Ltd v.
Armco Metals International Ltd [2012] HKCFI 1938.
139
As far as qualifications are concerned, there are no statutory requirements so that

the qualifications referred to are those specified in the arbitration agreement itself or
otherwise separately agreed. The mere fact that one party intended an arbitrator to
possess particular qualifications is not a ground for removal, as a unilateral mistake
of this type does not vitiate what has actually been agreed as opposed to what one
party might have intended.714 Where qualifications are required, in practice they
tend to relate to the experience of the arbitrator in the industry in question.715
Under art. 12(2), once an appointment is made, then at any stage during the cur-
rency of the arbitration (subject to the waiver principle in Model Law, art. 4, which
requires prompt action), the arbitrator may be challenged if circumstances exist that
give rise to justifiable doubts as to his impartiality or independence, or if he does
not possess the necessary qualifications. The article goes on to say that a party may
challenge an arbitrator that he has appointed. It has been held in New Zealand that
these words do not preclude a party from challenging the other party’s appointee on
the grounds set out in art. 12(2).716 The effect is, therefore, that a challenge may be
made by either party, although the party making the appointment can make a chal-
lenge only for reasons not known to him after the appointment was made.
If the appointment is under SIAC Rules, these matters are governed by r. 9.
Article 13. Challenge procedure

(1) The parties are free to agree on a procedure for challenging an arbitrator,
subject to the provisions of paragraph (3) of this Article.
(2) Failing such agreement, a party who intends to challenge an arbitrator shall,
within fifteen days after becoming aware of the constitution of the arbitral tribunal
or after becoming aware of any circumstance referred to in Article 12(2), send a
written statement of the reasons for the challenge to the arbitral tribunal. Unless
the challenged arbitrator withdraws from his office or the other party agrees to the
challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the
procedure of paragraph (2) of this Article is not successful, the challenging party
may request, within thirty days after having received notice of the decision reject-
ing the challenge, the court or other authority specified in Article 6 to decide on
the challenge, which decision shall be subject to no appeal; while such a request is
pending, the arbitral tribunal, including the challenged arbitrator, may continue the
NOTES
Where an arbitrator is to be challenged on the grounds set out in the Model Law,
art. 12, the parties are free to agree on the challenge procedure. This may be
delegated to an arbitral institution.717 If they have failed to do so, the default provi-
714 Continental Grain Co v. China Petroleum Technology Development Corporation, 1998, unreported.
715 See Pando Compania Naviera SA v. Filmo SAS [1975] QB 742: Pan Atlantic Group Inc v. Hassneh
Insurance Co of Israel Ltd [1992] 2 Lloyd’s Rep 120.
716 Banks v. Grey District Council [2003] NZCA 308.
717 LRRD No. 3/2001, para. 2.7.3.
140
sion in art. 13 provides that a challenge must be made to the arbitrator themselves
within 15 days of becoming aware of the construction of the tribunal or of any
ground for challenge. It is obvious from this wording that a challenge can be made
during the currency of the arbitration: this is one of only two illustrations718 of the
ability of a court to intervene in the arbitral process before the issue of an award.719
It was held obiter in PT Central Investindo v. Franciscus Wongso720 that if the award
has been issued before the removal of the arbitrator under art. 13(3), the court has
no jurisdiction under art.13(3) to make a consequential order nullifying the award
and that a separate application in respect of the award itself has to be made under
art. 34.
If a challenge is unsuccessful, then an allegation of bias on appeal or enforce-
ment is likely to fall foul of the principles of issue estoppel and abuse of process.721
Under art. 13(3) there is an appeal within 30 days to the High Court, which is
the nominated authority for these purposes: IAA, s. 8. There is no automatic
right for a challenged arbitrator to appear, although the court may permit him to
do so.722 An application under this provision is to be made to a judge by means
of originating summons and within 30 days of the receipt by the applicant of the
tribunal’s decision or ruling: RC, Ord. 69A, r. 2(1), (3). The supporting affidavit
must: (a) state the grounds in support of the application; (b) have exhibited to it
a copy of the arbitration agreement or any record of the content of the arbitration
agreement, the award and any other document relied on by the claimant; (c) set
out any evidence relied on by the claimant; and (d) be served with the originating
summons (RC, Ord. 69A, r. 2(4A)). Within 14 days after being served with the
originating summons, the defendant, if he wishes to oppose the application, must
file an affidavit stating the grounds on which he opposes the application (RC, Ord.
69A, r. 2(4C)). If service out of the jurisdiction is required, it is necessary to obtain
the leave of the court. An application for the grant of leave under this Rule must
be supported by an affidavit stating the ground on which the application is made
and showing in what place or country the person to be served is, or probably may
be found; and no such leave is to be granted unless it shall be made sufficiently to
appear to the court that the case is a proper one for service out of the jurisdiction:
RC, Ord. 69A, r. 4.
The powers of the court set out in the Model Law, art. 13, are exhaustive: see
Model Law, art. 5. The court thus has no jurisdiction to issue an interim injunc-
tion preventing an arbitrator from acting pending the outcome of the challenge
procedure. Such an injunction would in any event usurp the power of the arbitrators
under Model Law, art. 13(3) to decide whether or not to stay the proceedings.723
For the challenge procedure under SIAC Rules, see rr 11–14.
718 The other being Model Law, art. 14, in respect of an arbitrator who cannot or will not act.
719 For that reason intervention will be confined to the most exceptional circumstances. See: Pratt v.
Swanmore Builders Ltd [1980] 2 Lloyd’s Rep 504; Modern Engineering (Bristol) Ltd v. C Miskin & Sons
Ltd [1981] 1 Lloyd’s Rep 135.
720 [2014] SGHC 190
722 LRRD No. 3/2001, para. 2.7.6.
723 Mitsui Engineering & Shipbuilding Co Ltd v. Easton Graham Rush [2004] 2 SLR 14; PT Central
Investindo v. Franciscus Wongso [2014] SGHC 190.
141
Article 14. Failure or impossibility to act

(1) If an arbitrator becomes de jure or de facto unable to perform his functions
or for other reasons fails to act without undue delay, his mandate terminates if he
withdraws from his office or if the parties agree on the termination. Otherwise, if
a controversy remains concerning any of these grounds, any party may request the
court or other authority specified in Article 6 to decide on the termination of the
mandate, which decision shall be subject to no appeal.
(2) If, under this Article or Article 13(2), an arbitrator withdraws from his office
or a party agrees to the termination of the mandate of an arbitrator, this does not
imply acceptance of the validity of any ground referred to in this Article or Article
12(2).
NOTES
Article 14 provides for the termination of an arbitrator’s mandate if he is unable
to perform his functions or fails to act without undue delay. There is no auto-
matic termination: the mandate terminates only if he withdraws from office or if
the parties agree to the termination. Note that there is no provision for unilateral
resignation.724
There is no authority on de jure or de facto incapacity. The former presumably
includes the situation where the arbitrator is prevented by law from exercising his
jurisdiction, e.g., due to imprisonment. The latter inevitably encompasses death.725
There is authority on the question of an arbitrator failing to act without undue
delay. The delay in question can relate to any material aspect of the proceedings,
including refusal to sign the award726 in circumstances in which the validity of the
award depends upon his signature. The jurisdiction is to be exercised sparingly. The
principle guiding the English courts is that set out by the Departmental Advisory
Committee in 1996:
We trust that the Courts will not allow [the arbitrators’ failure properly to conduct the pro-
ceedings] to be abused by those intent on disrupting the arbitral process . . . We have every
confidence that the Courts will carry through the intent of this part of the [Act], which
is that it should only be available where the conduct of the arbitrator is such as to go so
beyond anything that could reasonably be defended that substantial injustice has resulted
or will result. The provision is not intended to allow the Court to substitute its own view
as to how the arbitral proceedings should be conducted. Thus the choice by an arbitrator
of a particular procedure, unless it breaches the duty laid on arbitrators . . . should on no
view justify the removal of an arbitrator, even if the Court would not itself have adopted
that procedure.
This approach has been one adopted in both England and Singapore727 regarding
applications for the removal of allegedly dilatory,728 incompetent (in the sense that
724 LRRD No. 3/2001, paras 2.8.7–2.8.8.

725 Specific provision is made for this eventuality in AA 1996 (Eng), s. 26.
726 Cargill International SA Antigua v. Sociedad Iberica de Molturacion SA [1998] 1 Lloyd’s Rep 489
(dissenting arbitrator refused to sign unless allowed to give reasons for dissent).
727 See LRRD No. 3/2001, para. 2.8.3 on the general approach of the courts.
728 Anwar Siraj v. Ting Kang Chung [2003] 2 SLR 287; Home of Homes Ltd v. Hammersmith and
Fulham London Borough Council (2003) 92 Con LR 48; Kailay Engineering Co (HK) Ltd v. Farrance
142
729 730
a fair hearing has not been afforded) or biased arbitrators. The mere fact that
the parties have lost confidence in the arbitrator does not justify removal.731 The
only means of challenging arbitral proceedings during their currency and before an
award has been issued732 is by way of an application to remove the arbitrator. It is
not possible to challenge an arbitrator under Model Law, s. 34 or under IAA, s. 24,
prior to the making of an award.733
In the absence of voluntary withdrawal or agreement, either party can apply to
the nominated authority for his removal. The nominated authority for the purposes
of article 14(1) is the High Court: IAA, s. 8. An application under this provision
is to be made to a judge by means of originating summons and within 30 days of
the receipt by the applicant of the tribunal’s decision or ruling: RC, Ord. 69A, rr
2(1), (3). The supporting affidavit must: (a) state the grounds in support of the
application; (b) have exhibited to it a copy of the arbitration agreement or any
record of the content of the arbitration agreement, the award and any other docu-
ment relied on by the claimant; (c) set out any evidence relied on by the claimant;
and (d) be served with the originating summons (RC, Ord. 69A, r. 2(4A)). Within
14 days after being served with the originating summons, the defendant, if he wishes
to oppose the application, must file an affidavit stating the grounds on which he
opposes the application (RC, Ord. 69A, r. 2(4C)). If service out of the jurisdiction
is required, it is necessary to obtain the leave of the court. An application for the
[1999] 2 HKC 765; Koh Brothers Building and Civil Engineering Contractor Pte Ltd v. Scotts Development
(Saraca) Pte Ltd [2002] 4 SLR 748; Hong Huat Development Co Pte Ltd v. Hiap Hong & Co Pte Ltd [2002]
SLR 609.
729 Progen Engineering Pte Ltd v. Chua Aik Kia (Trading As Uni Sanitary Electrical Construction)
[2006] 4 SLR 419; Kelsey Housing Association Ltd v. Ruddy Developments Ltd [1998] ADRLN 6; Conder
Structures v. Kvaerner Construction Ltd [1999] ADRLJ 305; Dredging and Construction Co Ltd v. Delta
Civil Engineering Ltd (2000) 68 Con LR 87; Petroships Pte of Singapore v. Petec Trading and Investment
Corporation of Vietnam [2001] 2 Lloyd’s Rep 348; Miller Construction v. James Moore Earthmoving
[2001] 2 All ER (Comm) 598; Groundshire v. VHE Construction [2001] BLR 395; AOOT Kalmneft v.
Glencore International AG [2002] 1 Lloyd’s Rep 128; Sinclair v. Woods of Winchester (2006) 109 Con
LR 14. See also Charteryard Industrial Ltd v. Incorporated Owners of Bo Fung Gardens [1998] 4 HKC
171 (arbitrator asserting powers he did not have and refusing to afford a right to be heard in respect
of them). Contrast: Damond Lock Grabowski v. Laing Investments (Bracknell) Ltd (1993) 60 BLR 112;
Wicketts and Sterndale v. Brine Builders [2001] CILL 1805; Norbrook Laboratories Ltd v. Tank [2006] 2
Lloyd’s Rep 485.
730 Yee Hong Pte Ltd v. Powen Electrical Engineering Pte Ltd [2005] 3 SLR 512; Turner (East Asia)
Pte Ltd v. Builders Federal (Hong Kong) Ltd (No. 2) [1988] 1 SLR 532, where the case was success-
fully made for the removal of the arbitrator on the grounds of bias, breach of natural justice—having
made up his mind on an issue without hearing the parties—and refusal to give consent to refer an
issue upon which he had decided that he was unable to rule to the court for decision; Haskins v.
Brae-Villa Homes Pty Ltd [1995] VSC 7031. Contrast Road Regenerating and Repair Services Ltd v.
Mitchell Water Board [1990] VSC 2261, where the arbitrator was in constant contact with one of the
parties only; Logy Enterprises Ltd v. Haikou City Bonded Area Wansen Products Trading Co [1997] 2
HKC 481.
731 Yee Hong Pte Ltd v. Powen Electrical Engineering Pte Ltd [2005] 3 SLR 512, applying the
English principle set out in: Hussmann (Europe) Ltd v. Pharaon [2003] 1 All ER (Comm) 879; Conder
Structures v. Kvaerner Construction Ltd [1999] ADRLJ 305; Hussmann (Europe) Ltd v. Al-Ameen
Development & Trade Co [2000] 2 Lloyd’s Rep 83; PT Central Investindo v. Franciscus Wongso [2014]
SGHC 190.
732 Other than in respect of jurisdictional matters, under Model Law, art. 16,
733 Mitsui Engineering & Shipbuilding Co Ltd v. Easton Graham Rush [2004] 2 SLR 14. These two
sentences were cited with approval by Belinda Ang J in PT Central Investindo v. Franciscus Wongso [2014]
SGHC 190.
143
grant of leave under this Rule must be supported by an affidavit stating the ground
on which the application is made and showing in what place or country the person
to be served is, or probably may be found; and no such leave is to be granted unless
it shall be made sufficiently to appear to the court that the case is a proper one for
service out of the jurisdiction: RC, Ord. 69A, r. 4. There is no appeal from the
decision of the High Court.
Article 14(2) protects the arbitrator from a claim for breach of contract, by provid-
ing that the mere fact that his mandate has been terminated does not of itself estab-
lish any failure on his part. Presumably if an arbitrator is removed for cause he may
be required to repay fees earned by him, although the English courts—which have
a statutory discretion to strip a dismissed arbitrator of his fees734—have reserved
the exercise of that discretion for the most extreme cases.735
Article 15. Appointment of substitute arbitrator

Where 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.
NOTES
Article 15 governs the consequences of an arbitrator’s loss of office. This can
happen because: there has been a successful challenge on the ground of lack of
independence, impartiality or agreed qualifications (Model Law, art. 13); the
arbitrator’s mandate has been terminated voluntarily, by agreement or by court
order on the grounds of inability or failure to act (Model Law, art. 14); the
arbitrator has withdrawn from office:736 or the parties have agreed to terminate
his mandate. In any of these situations a substitute is to be appointed according
to the rules that were applicable to the appointment of the ex-arbitrator. The
wording of the agreement between the parties may not be appropriate to extend
to replacements, but in Federal Insurance Co v. Transamerica Occidental Life
Insurance Co Ltd737 Rix J held that wherever possible it was necessary to extend
the agreement between the parties for the appointment of the first arbitrators to
the appointment of replacement arbitrators even if that meant some manipulation
of the wording of the arbitration clause. SIAC Rules, r. 14 replicates the effect of
art. 15. SIAC Rules, r. 15 states that if the sole or presiding arbitrator is replaced
any hearings shall be repeated unless the parties agree otherwise, and if any other
734 AA 1996 (Eng), s. 24(4).

735 See Wicketts and Sterndale v. Brine Builders [2001] CILL 1805, where the arbitrator’s main
concern appears to have been to secure his own payment and his conduct was described by the judge as
“quite the most outrageous that I have ever seen”.
736 Where an arbitrator has been appointed by one party, and offers to withdraw from office, his
mandate may be terminated by the agreement of that party without the consent of the other: Gordian
Runoff Ltd v. Underwriting Members of Lloyd’s Syndicates [2002] NSWSC 1260.
737 [1999] 2 Lloyd’s Rep 286.
144
arbitrator is removed it is a matter for the tribunal to decide whether hearings
should be repeated.738
CHAPTER IV—JURISDICTION OF ARBITRAL TRIBUNAL
Article 16. Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including any objec-
tions 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.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defence. A party is not precluded from
raising such a plea by the fact that he has appointed, or participated in the appoint-
ment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its
authority shall be raised as soon as the matter alleged to be beyond the scope of
its authority is raised during the arbitral proceedings. The arbitral tribunal may, in
either case, admit a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this
Article either as a preliminary question or in an award on the merits. If the arbi-
tral tribunal rules as a preliminary question that it has jurisdiction, any party may
request, within thirty days after having received notice of that ruling, the court
specified in Article 6 to decide the matter, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal may continue the
NOTES
Article 16 encompasses two separate concepts, namely separability and Kompetenz-
Kompetenz.739 The separability principle740 means that an arbitration clause is
capable of surviving allegations that the substantive contract is terminated,741
738 The 1993 Review, para. 25, considered this matter and was of the view that the replacement
tribunal should be given the discretion to decide whether there should be a rehearing or whether the
arbitration should be continued from existing records.
739 LRRD No. 3/2001, para. 2.12.1. The adoption of these principles was recommended by the
1993 Review, paras 37–38.
740 First recognised in England by the Court of Appeal in Harbour Assurance Co (UK) Ltd v. Kansa
General International Insurance Co Ltd [1993] 1 Lloyd’s Rep 455 and enshrined in AA 1996 (Eng), s. 7.
The principle is now generally accepted independently of legislation: see: IBM Australia v. National
Distribution Services (1991) 22 NSWLR 466; QH Tours Ltd v. Ship Design & Management (Australia) Pty
Ltd (1991) 33 FCR 227; Ferris v. Plaister (1994) 34 NSWLR 474.
741 The Sungei Bulan [1982–1983] 1 SLR 461. Prior to the adoption of the Model Law, the prin-
ciple was not fully recognised in Singapore: New India Assurance Co v. Lewis [1967] 1 MLJ 156; Arden
Shipping v. Owners of the Sungei Bulan [1983] 2 MLJ 377; Lim Kitt Ping v. People’s Insurance Co [1997]
3 SLR 1018.
145
voidable, frustrated,743 void744 or illegal.745 The principle in these cases was con-
742
firmed by the House of Lords in Fiona Trust & Holding Corp v. Privalov,746 which
makes it clear that nice distinctions in the formulation of the arbitration clause as to,
e.g., scope are no longer relevant,747 in that very clear words would be needed before
a court could be satisfied that it had been accorded some sort of residual jurisdiction
to consider, e.g., restitutionary or tortious claims arising out of an agreement,748
whereas strictly “contractual” claims were within the sole province of the arbitra-
tors.749 Furthermore, to be outside the scope of the arbitration clause, the issue
of illegality would have to be directed at the arbitration clause itself, which would
obviously be rare. Even before Fiona Trust, in Vee Networks Ltd v. Econet Wireless
International Ltd750 Colman J had held that the principle of separability empowered
the arbitrator to decide whether or not a contract of supply was void for being ultra
vires the customer. El Nasharty v. J Sainsbury plc751 was decided as the House of
Lords decision in Fiona Trust was emerging, and (in reliance in part on the decision
in Fiona Trust) confirmed that a challenge to the existence of an arbitration agree-
ment based on duress had to be based on facts specific to the arbitration agreement,
and not simply parasitic upon a challenge to the validity of the contract containing
it.752 Issues as to the variation753 and rectification754 of the main agreement may on
the same basis be determined by the arbitrators. There is a possible modification
742 Overseas Union Insurance Ltd v. AA Mutual International Insurance Ltd [1988] 2 Lloyd’s Rep 63,
although see the doubts expressed as late as 1988 in Ashville Investments Ltd v. Elmer Contractors Ltd
[1988] 2 All ER 577.
743 Government of Gibraltar v. Kenney [1956] 2 QB 410, rejecting the earlier view in Hirji Mulji v.
Cheong Yue Steamship Co Ltd [1926] AC 497.
1 SLR 278; Harbour Assurance Co (UK) Ltd v. Kansa General International Insurance Co Ltd [1992] 1
Lloyd’s Rep 81.
745 Harbour Assurance Co (UK) Ltd v. Kansa General International Insurance Co Ltd [1993] 1 Lloyd’s
Rep 455, taking the step which Steyn J at first instance felt to be constrained by the authority of David
Taylor Son Ltd v. Barnett Trading Co [1953] 1 Lloyd’s Rep 181.
746 [2008] 1 Lloyd’s Rep 254. The principle is now accepted: Sembawang Engineers and Constructors
Pte Ltd v. Covec (Singapore) Pte Ltd [2008] SGHC 229; UDL Contracting Ltd v. Apple Daily Printing Ltd
[2008] 2 HKC 534. For the same principle in New Zealand, see Manukau City Council v. Fencible Court
Howick Ltd [1991] 3 NZLR 410; Fisher & Paykel Financial Services Ltd v. Credit Management Services Inc
[2008] NZHC 707.
747 An approach adopted in Larsen Oil and Gas Pte Ltd v. Petroprod Ltd [2011] SGCA 21.
748 As in PT Thiess Contractors Indonesia v. PT Kaltim Prima Coal [2011] EWHC 1842 (Comm).
749 There are numerous authorities on the meaning of phrases such as “connected with”, “arising
out of”, “under”, “in respect of” and the like. In England those authorities are no longer good law. For
illustrations in Singapore, see: Batshita International (Pte) Ltd v. Lim Eng Hock Peter [1997] 1 SLR 241
(dispute as to whether there was a separate oral agreement outside a tenancy agreement was “connected”
with the tenancy agreement); Sabah Shipyard (Pakistan) Ltd v. Government of the Islamic Republic if Pakistan
[2004] 3 SLR 184 (the issue of costs arising from a previous arbitration was one “in connection with the
contract”). Contrast SA Shee & Co (Pte) Ltd v. Kaki Bukit Industrial Park Pte Ltd [2000] 2 SLR 12.
750 [2005] 1 Lloyd’s Rep 192. See also Continental Enterprises Limited v. Shandong Zhucheng Foreign
Trade Group Co [2005] EWHC 92 (Comm). Before the adoption of the Model Law this question had not
been considered in Singapore: LRRD No. 3/2001, para. 2.12.6.
751 [2008] 1 Lloyd’s Rep 361.
752 Note that the issue in El Nasharty did not turn on the scope of the arbitration clause, which was
a widely-drafted standard ICC arbitration clause.
753 Joseph Finney plc v. Vickers, 2001, unreported; El Nasharty v. J Sainsbury plc [2004] 1 Lloyd’s
Rep 309.
754 Macepark (Whittlebury) Ltd v. Sargeant, 2002, unreported.
146
of the separability principle as regards contracts which plainly have no effect. In
Harbour (above) the English Court of Appeal noted that there were categories of
illegality which rendered contracts void, with the result that there could be nothing
to arbitrate. In Soleimany v. Soleimany755 Waller LJ repeated this proposition (albeit
in the context of an application to enforce a foreign arbitral award) as regards con-
tracts which were palpably illegal or contrary to public policy, such as an agreement
between criminals to divide the proceeds of their activities. These dicta were relied
upon by the English Court of Appeal in O’Callaghan v. Coral Racing Ltd,756 in which
it was held that a wagering contract rendered illegal757 or void758 by the Gaming
Act 1845759 was simply non-existent and the arbitration clause in it was itself of no
effect. However, it is doubtful in the light of Fiona Trust whether the case would now
be decided the same way. Indeed, in AJU v. AJT760 the Singapore Court of Appeal
rejected Waller LJ’s suggestion that a court could second-guess any dismissal of an
illegality defence by the arbitrators unless there had been a deliberate disregard by
the arbitrators of palpable and indisputable illegality.
The Kompetenz-Kompetenz761 principle is related to but distinct from separabil-
ity: the latter gives the arbitration clause a life of its own; and the former gives the
arbitrators the right to determine whether or not the arbitration clause is valid. An
allegation that a contract is voidable is not a jurisdictional challenge at all, because
it relates to the contract and not to the arbitration clause: Model Law, art. 16, is
concerned only with an allegation that the arbitration clause itself is of no effect762
or does not extend to the dispute.763 One of the areas of difficulty in this context is
where the respondent alleges that there is no valid agreement between the parties.
If the allegation relates solely to the arbitration agreement, then any ruling by the
tribunal on the validity or otherwise of the arbitration agreement is a matter of juris-
diction. By contrast, where the allegation is that there is no main agreement between
the parties and thus nothing to go to arbitration, then the severability principle allows
the tribunal to deal with that allegation under the independent arbitration clause and
may thereafter issue an award on the consequences of finding an agreement (e.g., an
action for breach) or of not finding an agreement (e.g., a restitutionary or tortious
claim), as the case may be: no jurisdictional issue is at stake in such a case.764 There
is an intermediate possibility, namely an allegation that there is no main agreement
and no arbitration clause: in such a case the severability principle allows the tribunal
755 [1998] 3 WLR 811.

756 1999, unreported.
757 Per Hirst LJ, Sir Christopher Slade concurring.
758 Per May LJ, Sir Christopher Slade concurring.
759 Now repealed by the Gambling Act 2005.
760 [2011] SGCA 41.
761 Embodied in AA 1996 (Eng), s. 30.
762 ABB Lummus Global Ltd v. Keppel Fels Ltd [1999] 2 Lloyd’s Rep 24; XL Insurance Ltd v. Owens
Corning [2000] 2 Lloyd’s Rep 500.
763 Al-Naimi v. Islamic Press Agency Inc [2000] 1 Lloyd’s Rep 522; Fleming and Wendeln GmbH v.
Sanoi SA/AG [2003] 2 Lloyd’s Rep 473; Ronly Holdings v. JSC Zestafoni G Nikoladze Ferroalloy Plant
[2004] 2 Lloyd’s Rep 335; Westland Helicopters Ltd v. Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523.
764 Vee Networks Ltd v. Econet Wireless International Ltd [2005] 1 Lloyd’s Rep 192. See also Albon v.
Naza Motor Trading (No. 3) [2007] 2 Lloyd’s Rep 1, where the issue was the validity of a joint venture
agreement, but in reality the existence of that agreement had been alleged only because it was said to
contain an arbitration clause: Albon was thus about jurisdiction and not about the existence of a contract.
147
to rule on the validity of the main issue, but any preliminary ruling made by it in
respect of the arbitration clause itself is one which goes to jurisdiction.
It may also be thought that a dispute as to whether a tribunal has been properly
constituted goes to jurisdiction765 as does whether the issues referred to the tribu-
nal fall within the arbitration agreement. Other jurisdictional issues may include
whether a reference to arbitration was, in the light of other agreed dispute resolu-
tion mechanisms which had not been exhausted, premature.766 It was held in Azov
Shipping Co v. Baltic Shipping Co (No. 1)767 that the justiciability of an issue was a
question which went to jurisdiction. In other cases, the identity of the correct claim-
ant or respondent may also be an issue which goes to jurisdiction.768 An arbitrator
who exceeds his powers in conducting an arbitration is not to be regarded as having
exceeded his jurisdiction: the former relates only to procedure, and the rules on
jurisdiction are inapplicable.769 Further, the questions whether a compromise agree-
ment has been entered into which has removed any right to compensation under
another agreement containing an arbitration clause,770 or an allegation that an issue
formerly in dispute between the parties had been conceded by one party during the
arbitration,771 do not go to jurisdiction.
It is important to note that an arbitral tribunal cannot be allowed to have the final
say as to whether or not it possesses jurisdiction over a particular matter and thus
whether it can alter the rights of a person under a procedure to which he has not
agreed. Any ruling on jurisdiction given by the tribunal is provisional only, in the
sense that it is always challengeable by the disaffected party. The court thus makes
an independent determination on the issue of jurisdiction and is not constrained in
any way by the findings or the reasoning of the tribunal.772 If it were otherwise (a) the
court could find itself reviewing a decision of a tribunal that had no jurisdiction to
make such a finding, (b) the ability of a party that took no part in the arbitral pro-
ceedings to present its case would be greatly undermined, and (c) the court would
be in a worse position than the tribunal when faced with a challenge on an issue of
fact.773
The manner of the challenge depends upon the respondent’s attitude to the
arbitration. The respondent may simply refuse to have anything to do with the arbi-
tration, in which case he has the right to await the award itself and then challenge
it under Model Law, art. 34. A further possibility is that the respondent may use
the mechanism in Model Law, art. 16(2),774 and appear in the arbitration under
protest. The complainant must raise an objection to jurisdiction no later than the
765 This is expressly the case in England under AA 1996 (Eng), s. 30: Minermet SpA Milan v.
Luckyfield Shipping Corporation SA [2004] 2 Lloyd’s Rep 348.
766 Mackley & Co Ltd v. Gosport Marina Ltd [2002] BLR 367.
767 [1999] 1 Lloyd’s Rep 68.
768 See, e.g., Peterson Farms Inc v. C & M Farming [2004] 1 Lloyd’s Rep 603; Primetrade AG v. Ythan
Ltd, The Ythan [2006] 1 Lloyd’s Rep 457.
769 Petroships Pte Ltd of Singapore v. Petec Trading & Investment Corporation [2001] 2 Lloyd’s Rep
348; Lesotho Highlands Development Authority v. Impregilo SpA [2005] 2 Lloyd’s Rep 310.
770 DDT Trucks of North America v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213.
771 Claire & Co v. Thames Water Utilities Ltd [2005] BLR 366.
772 PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2004] 4 SLR (R) 257.
773 Insigma Technology Co Ltd v. Alstom Technology Ltd [2008] SGHC 134.
774 Adopted by AA 1996 (Eng), s. 31.
148
submission of the statement of defence, although the arbitrators are free to extend
time in the event of a justifiable delay. The mere fact that the complainant has
submitted to the jurisdiction of the arbitrators on some matters does not mean
that he has done so in respect of those matters for which jurisdiction is contested.
Making an objection preserves his right to challenge the substantive award on the
jurisdictional point at some later stage. If, by contrast, no objection is taken at the
right time, then there are two independent but overlapping reasons to prevent a
subsequent challenge: there is no jurisdictional issue before the arbitrators against
which an appeal can be made,775 and the party contesting jurisdiction will be taken
to have waived any irregularity by virtue of Model Law, art. 4.776 The result is
that if a party has not objected to the arbitrators’ assertion of jurisdiction but has
proceeded with the hearing on the merits, the award cannot be challenged on juris-
dictional grounds. In this context, it has been held in Insigma Technology Co Ltd v.
Alstom Technology Ltd777 that a party is entitled to raise an objection to jurisdiction
before the judge that it had not raised and argued before the arbitrator, though
“a failure to raise a specific point before the arbitrator is likely to be relevant as to
weight”.778 The other party is however still entitled to argue that the challenging
party has waived its right to contest jurisdiction of the arbitral tribunal. These views
were endorsed in Hong Kong.779
SIAC Rules, r. 25, also permits the arbitrators to determine their own jurisdiction
on much the same terms.
For discussion of challenges to a ruling by the arbitrators as to their jurisdiction,
see IAA, s 10 and the notes thereto.
Article 17. Power of arbitral tribunal to order interim measures

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of
a party, order any party to take such interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject-matter of the dispute. The
arbitral tribunal may require any party to provide appropriate security in connection
with such measure.
NOTES
For the interim measures which may be applied by the Singapore courts, see the
Notes to IAA, s. 12. Article 17 of the Model Law in this original form does not specify
exactly what interim measures could be adopted and how they are to be applied.
The 2006 amendments to the Model Law replace art. 17 with a new Chapter
IVA, consisting of arts 17 to 17J, the full text of which is as follows. These provisions
have not yet been adopted in Singapore.
775 Vee Networks Ltd v. Econet Wireless International Ltd [2004] EWHC 2909 (Comm).
776 See, for instance, S Co v. B Co [2014] HKCFI 1440.
777 [2008] SGHC 134.
778 See also PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2004] 4 SLR (R) 257.
779 S Co v. B Co [2014] HKCFI 1440.
149
CHAPTER IVA—INTERIM MEASURES AND

PRELIMINARY ORDERS
Section 1. Interim measures
Article 17. Power of arbitral tribunal to order interim measures

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request
of a party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an
award or in another form, by which, at any time prior to the issuance of the award
by which the dispute is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely
to cause, current or imminent harm or prejudice to the arbitral process
itself;
(c) Provide a means of preserving assets out of which a subsequent award may
be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the
dispute.
Article 17A. Conditions for granting interim measures

(1) The party requesting an interim measure under Article 17(2)(a), (b) and (c)
shall satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely to result if
the measure is not ordered, and such harm substantially outweighs the harm
that is likely to result to the party against whom the measure is directed if
the measure is granted; and
(b) There is a reasonable possibility that the requesting party will succeed on
the merits of the claim. The determination on this possibility shall not
affect the discretion of the arbitral tribunal in making any subsequent
determination.
(2) With regard to a request for an interim measure under Article 17(2)(d), the
requirements in paragraphs (1)(a) and (b) of this article shall apply only to the
extent the arbitral tribunal considers appropriate.
Section 2. Preliminary orders
Article 17B. Applications for preliminary orders and conditions for

granting preliminary orders
(1) Unless otherwise agreed by the parties, a party may, without notice to any
other party, make a request for an interim measure together with an application
for a preliminary order directing a party not to frustrate the purpose of the interim
measure requested.
150
(2) The arbitral tribunal may grant a preliminary order provided it considers that
prior disclosure of the request for the interim measure to the party against whom it
is directed risks frustrating the purpose of the measure.
(3) The conditions defined under Article 17A apply to any preliminary order,
provided that the harm to be assessed under Article 17A(1)(a), is the harm likely to
result from the order being granted or not.
Article 17C. Specific regime for preliminary orders

(1) Immediately after the arbitral tribunal has made a determination in respect
of an application for a preliminary order, the arbitral tribunal shall give notice to
all parties of the request for the interim measure, the application for the prelimi-
nary order, the preliminary order, if any, and all other communications, including
by indicating the content of any oral communication, between any party and the
arbitral tribunal in relation thereto.
(2) At the same time, the arbitral tribunal shall give an opportunity to any party
against whom a preliminary order is directed to present its case at the earliest
practicable time.
(3) The arbitral tribunal shall decide promptly on any objection to the p
reliminary
order.
(4) A preliminary order shall expire after twenty days from the date on which
it was issued by the arbitral tribunal. However, the arbitral tribunal may issue an
interim measure adopting or modifying the preliminary order, after the party against
whom the preliminary order is directed has been given notice and an opportunity
to present its case.
(5) A preliminary order shall be binding on the parties but shall not be subject
to enforcement by a court. Such a preliminary order does not constitute an award.
Section 3. Provisions applicable to interim measures and

preliminary orders
Article 17D. Modification, suspension, termination

The arbitral tribunal may modify, suspend or terminate an interim measure or a
preliminary order it has granted, upon application of any party or, in exceptional
circumstances and upon prior notice to the parties, on the arbitral tribunal’s own
initiative.
Article 17E. Provision of security

(1) The arbitral tribunal may require the party requesting an interim measure to
provide appropriate security in connection with the measure.
(2) The arbitral tribunal shall require the party applying for a preliminary order to
provide security in connection with the order unless the arbitral tribunal considers it
inappropriate or unnecessary to do so.
151
Article 17F. Disclosure

(1) The arbitral tribunal may require any party promptly to disclose any material
change in the circumstances on the basis of which the measure was requested or
granted.
(2) The party applying for a preliminary order shall disclose to the arbitral tribu-
nal all circumstances that are likely to be relevant to the arbitral tribunal’s determi-
nation whether to grant or maintain the order, and such obligation shall continue
until the party against whom the order has been requested has had an opportunity
to present its case. Thereafter, paragraph (1) of this article shall apply.
Article 17G. Costs and damages

The party requesting an interim measure or applying for a preliminary order shall be
liable for any costs and damages caused by the measure or the order to any party if
the arbitral tribunal later determines that, in the circumstances, the measure or the
order should not have been granted. The arbitral tribunal may award such costs and
damages at any point during the
Section 4. Recognition and enforcement of interim measures
Article 17H. Recognition and enforcement

(1) An interim measure issued by an arbitral tribunal shall be recognized as
binding and, unless otherwise provided by the arbitral tribunal, enforced upon
application to the competent court, irrespective of the country in which it was
issued, subject to the provisions of Article 17I.
(2) The party who is seeking or has obtained recognition or enforcement of an
interim measure shall promptly inform the court of any termination, suspension or
modification of that interim measure.
(3) The court of the State where recognition or enforcement is sought may, if it
considers it proper, order the requesting party to provide appropriate security if the
arbitral tribunal has not already made a determination with respect to security or
where such a decision is necessary to protect the rights of third parties.
Article 17I. Grounds for refusing recognition or enforcement

(1) Recognition or enforcement of an interim measure may be refused only:
(a) At the request of the party against whom it is invoked if the court is satisfied
that:
(i) Such refusal is warranted on the grounds set forth in Article 36(1)(a)
(i), (ii), (iii) or (iv); or
(ii) The arbitral tribunal’s decision with respect to the provision of secu-
rity in connection with the interim measure issued by the arbitral
tribunal has not been complied with; or
152
(iii) The interim measure has been terminated or suspended by the
arbitral tribunal or, where so empowered, by the court of the State
in which the arbitration takes place or under the law of which that
interim measure was granted;
or
(b) If the court finds that:
(i) The interim measure is incompatible with the powers conferred upon
the court unless the court decides to reformulate the interim measure
to the extent necessary to adapt it to its own powers and proce-
dures for the purposes of enforcing that interim measure and without
modifying its substance; or
(ii) Any of the grounds set forth in Article 36(1)(b)(i) or (ii), apply to the
recognition and enforcement of the interim measure.
(2) Any determination made by the court on any ground in paragraph (1) of this
article shall be effective only for the purposes of the application to recognize and
enforce the interim measure. The court where recognition or enforcement is sought
shall not, in making that determination, undertake a review of the substance of the
interim measure.
Section 5. Court- o rdered interim measures
Article 17J. Court-ordered interim measures

A court shall have the same power of issuing an interim measure in relation to
arbitration proceedings, irrespective of whether their place is in the territory of this
State, as it has in relation to proceedings in courts. The court shall exercise such
power in accordance with its own procedures in consideration of the specific fea-
tures of international arbitration.
NOTES
The effects of the changes to the Model Law may be summarised as follows.
New Model Law, art. 17 states that the arbitral tribunal may, at the request of
a party, grant interim measures, whether in the form of an award of any other
form, which may order a party to: (a) maintain or restore the status quo pending
determination of the dispute; (b) take action that would prevent, or refrain from
taking action that is likely to cause, current or imminent harm or prejudice to
the arbitral process itself; (c) provide a means of preserving assets out of which a
subsequent award may be satisfied; or (d) preserve evidence that may be relevant
and material to the resolution of the dispute. In the Hong Kong case, Ever Judger
Holding Co Ltd v. Kroman Celik Sanayii Anonim Sirketi,780 Lam J expressed dif-
ficulty in understanding how an anti-suit injunction falls within the meaning of
“interim measure”, which is defined in art. 17(2). It was suggested by the counsel
for the claimant that an anti-suit injunction is an order to a party to “refrain from
780 [2015] HKCFI 602.
153
taking action that is likely to cause, current or imminent harm or prejudice to the
arbitral process itself” (art. 17(2)(b)). The judge, however, could not see how
foreign proceedings would cause harm or prejudice to the arbitral process itself. In
his opinion, “the purpose of an anti-suit injunction, whether based on an arbitra-
tion clause or exclusive jurisdiction clause, is not to protect a local process from
harm or prejudice but to enforce a contract breached by the pursuit of foreign
proceedings”.
The conditions for the grant of an interim measure, as set out in Model Law, art.
17A, are that: “(a) harm not adequately reparable by an award of damages is likely
to result if the measure is not ordered, and such harm substantially outweighs the
harm that is likely to result to the party against whom the measure is directed if
the measure is granted; and (b) there is a reasonable possibility that the requesting
party will succeed on the merits of the claim. The determination on this possibil-
ity shall not affect the discretion of the arbitral tribunal in making any subsequent
determination.”
The Model Law also makes provision for the recognition and enforcement of
interim measures, art. 17H providing that any such measure is to be recognised as
binding and enforceable by any competent court. Recognition and enforcement
may be refused only in the situations listed in art. 17I, namely, that: (1) any of the
grounds for the refusal of the enforcement of an award is made out (incapacity, lack
of fair hearing or want of jurisdiction relating to the appointment of the arbitrators
and the scope of the reference); (2) the arbitrators have required the applicant
to provide security for the respondent’s costs but he has failed to do so; (3) the
measure has ceased to be operative; (4) the court itself could not have made the
interim order; or (5) the matter was not capable of being resolved by arbitration or
enforcement would be contrary to public policy.
The 2006 amendments also introduce the “preliminary order”. The purpose of a
preliminary order is to preserve the status quo while the arbitrators are contemplat-
ing whether or not to grant an interim order. At the same time as the application for
an interim order, the claimant may under art. 17B and without notice to the other
party request the arbitrators to make a preliminary order directing the other party
not to frustrate the purpose of the interim measure requested. The preliminary
order may be granted if the arbitrators consider that prior discovery of the request
for the interim measure creates a risk that it might be frustrated. In accordance with
art. 17C, a preliminary order may last for only 20 days, and once a preliminary order
has been made the arbitrators are to give the respondent the opportunity to present
its case. The order is not enforceable by a court but simply holds the ring pending a
decision on the interim order itself.
Articles 17D to 17F of the Model Law lay down principles common to each of
these types of order. Thus:
(1) The arbitrators may modify, suspend or terminate an interim measure or a

preliminary order it has granted, upon application of any party or, in excep-
tional circumstances and upon prior notice to the parties, on the arbitral
tribunal’s own initiative (art. 17D).
(2) The arbitrators may require the applicant to provide appropriate security in
154
connection with the measure, and in particular the arbitrators must require
an applicant for a preliminary order to provide security in connection with
the order unless the arbitral tribunal considers it inappropriate or unneces-
sary to do so (art. 17E).
(3) The arbitrators may require any party promptly to disclose any mate-
rial change in the circumstances on the basis of which the measure was
requested or granted, and the applicant for a preliminary order must dis-
close to them all circumstances that are likely to be relevant to their deter-
mination whether to grant or maintain the order, and such obligation shall
continue until the party against whom the order has been requested has had
an opportunity to present its case (art. 17F).
(4) The applicant is liable for any costs and damages caused by the measure
or the order to any party if the arbitrators later determine that, in the cir-
cumstances, the measure or the order should not have been granted. The
arbitrators may award such costs and damages at any point during the
proceedings (art. 17G).
The 2006 amendments confer upon the curial courts the power to grant interim
measures where the arbitrators are themselves unable to do so. This is the effect of
art. 17J.
CHAPTER V—CONDUCT OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment of parties

The parties shall be treated with equality and each party shall be given a full oppor-
tunity of presenting his case.
NOTES
The principles of equality and natural justice are at the heart of arbitrations. Any
failure by the arbitrators to adhere to them renders the award subject to challenge
under Model Law, art. 34(2)(a)(ii): see the Notes to that provision. The manner
in which the arbitration is to be conducted within these broad guidelines is set
out in IAA, s. 12, and Model Law, arts 18–24. See generally the Notes to those
provisions.
Article 19. Determination of rules of procedure

(1) Subject to the provisions of this Law, the parties are free to agree on the pro-
cedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) 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.
155
NOTES
This provision entitles the parties to agree on the procedure to be adopted, but
if they fail to do so then the procedure is to be determined by the arbitrators,
including all issues relating to evidence. For further discussion, see the Notes to
IAA, s. 12.
Article 20. Place of arbitration

(1) The parties are free to agree on the place of arbitration. Failing such
a greement, the place of arbitration shall be determined by the arbitral tribunal
having regard to the circumstances of the case, including the convenience of the
parties
(2) Notwithstanding the provisions of paragraph (1) of this Article, the arbitral
tribunal may, unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses, experts or
the parties, or for inspection of goods, other property or documents.
NOTES
As commented in the Notes to IAA, s. 2, a distinction has to be drawn between
the juridical seat of the arbitration and the physical location of the arbitration.
Confusingly, both are referred to as the “place” of the arbitration by the Model
Law, although it is clear that the “place” of the arbitration referred to in art. 20(1)
is the juridical seat.781 The former is important because, with exceptions in respect
of stay, interim measures and enforcement, the Model Law applies to an arbitration
only if it has its seat in Singapore: see Model Law, art. 1.782
The question addressed in art. 20(1) is the seat of the arbitration.783 This is a
matter for the agreement of the parties. If they have failed to agree then the seat is to
be determined by the arbitrators having regard to the circumstances of the case and
the convenience of the parties. There is seemingly no provision for an appeal against
the arbitrators’ ruling on the seat, although the matter may well come before the
courts if there is an issue as to whether judicial intervention is possible: it is unclear
whether, but unlikely that, the court could go behind the arbitrators’ designation of
the seat.784 It is uncertain whether Model Law, art. 20(1) contemplates an implied
agreement of the seat, but it might be thought that there is agreement of the seat
781 The English concept of “seat of arbitration” is the same as “place of arbitration” under the
Model Law; PT Garuda Indonesia v. Birgen Air [2002] 1 SLR 393 (at paras 23 and 24).
782 For the common law principle, see Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd
[1993] AC 334.
783 Every arbitration must have a juridical seat, and cannot simply “float” in the international fir-
mament: Bank Mellat v. Helliniki Techniki SA [1984] 1 QB 291; Dallal v. Bank Mellat [1986] 1 All ER
239; Coppee-Lavalin SA/NV v. Ken-Ren Chemicals and Fertilizers Ltd [1994] 2 Lloyd’s Rep 109; LRRD
No. 3/2001, para. 2.1.1.
784 For the approach of the courts in determining the seat in the absence of agreement by the
parties or designation by the arbitrators, see: Woh Hup (Pte) Ltd v. Property Development Ltd [1991] 1
SLR 652; Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc [2001] 1 Lloyd’s Rep 65; Arab
National Bank v. El Sharif Saoud Bin Masoud Bin Haza’a El-Abdali [2004] EWHC 2381 (Comm);
Halpern v. Halpern [2006] 2 Lloyd’s Rep 83, affirmed [2007] 2 Lloyd’s Rep 56; Chalbury McCouat v. P
G Foils [2010] EWHC 2050 (TCC); Crowther v. Rayment [2015] EWHC 427 (Ch).
156
785
where the parties have said that the procedural law is to be that of Singapore or
that the physical location of the arbitration is to be Singapore.786
Article 20(2) is concerned with the physical location of the arbitration. Even
though the seat is in one jurisdiction, the arbitrators may conduct some or all of
the proceedings elsewhere, according to what is appropriate. It is recognised by the
authorities that seat and physical location are separate issues, and that an agreement
to hold hearings in one jurisdiction does not necessarily convert that jurisdiction
into the juridical seat of the arbitration,787 but as commented above this is clearly a
powerful indication of the seat.
Where SIAC Rules are adopted, the default seat of the arbitration is Singapore:
r. 18.
Article 21. Commencement of arbitral proceedings

Unless 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.
NOTES
Article 21 provides that arbitration proceedings are commenced when a request to
refer a particular dispute to arbitration is received by the respondent. In an English
case the court held that in order to determine whether an arbitral tribunal has
jurisdiction to decide a particular dispute it is necessary to look objectively at what
passed between the parties to the reference, and on that basis to assess whether or
not any particular matter is included in that reference. On the facts, the respond-
ent’s counterclaim was not referred to arbitration by the mere notification of the
appointment of their arbitrator “under the dispute”.788 For further discussion of
art. 21, see the Notes to IAA, s. 8A. See also SIAC Rules, r. 3, which lays down a
commencement date of the date on which the notice is received by the Registrar,
and r. 4, which requires a response by the respondent within 14 days of his receipt
of the notice.
Article 22. Language

(1) The parties are free to agree on the language or languages to be used in the
arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine
785 Naviera Amazonica Peruana SA v. Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s
Rep 116.
786 ABB Lummus Global Ltd v. Keppel Fels Ltd [1999] 2 Lloyd’s Rep 24; Braes of Doune Wind Farm
(Scotland) Ltd v. Alfred McAlpine Business Services Ltd [2008] 1 Lloyd’s Rep 608.
787 PT Garuda Indonesia v. Birgen Air [2002] 1 SLR 393; Government of the Republic of the Philippines v.
Philippine International Air Terminals Co Inc [2007] 1 SLR 278; James Miller Partners Ltd v. Whitworth
Street Estates (Manchester) Ltd [1970] AC 583; Naviera Amazonica Peruana SA v. Compania Internacional
de Seguros del Peru [1988] 1 Lloyd’s Rep 116; Union of India v. McDonnell Douglas [1993] 2 Lloyd’s Rep
48; Sumitomo Heavy Industries v. Oil and Natural Gas Commission [1994] 1 Lloyd’s Rep 45; Bay Hotel and
Resort Ltd v. Cavalier Construction Co Ltd [2001] UKPC 34.
788 Interbulk Ltd v. Ponte dei Sospiri Shipping Co (The Standard Ardour) [1988] 2 Lloyd’s Rep 159.
157
the language or languages to be used in the proceedings. This agreement or deter-

mination, unless otherwise specified therein, shall apply to any written statement by
a party, any hearing and any award, decision or other communication by the arbitral
tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon by the
parties or determined by the arbitral tribunal.
NOTES
The parties are free in the first instance to agree the language of the arbitration, but
if they fail to do so then the matter is to be determined by the arbitrators: Model
Law, art. 22(1). Whichever prevails, the arbitrators have the right to insist (irrespec-
tive of what the parties may have agreed) that documents are to be translated into
the language of the arbitration.
Article 23. Statements of claim and defence

(1) Within the period of time agreed by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his claim, the points at issue
and the relief or remedy sought, and the respondent shall state his defence in respect
of these particulars, unless the parties have otherwise agreed as to the required ele-
ments of such statements. The parties may submit with their statements all docu-
ments they consider to be relevant or may add a reference to the documents or other
evidence they will submit.
(2) Unless otherwise agreed by the parties, either party may amend or supplement
his claim or defence during the course of the arbitral proceedings, unless the arbitral
tribunal considers it inappropriate to allow such amendment having regard to the
delay in making it.
NOTES
Article 23(1) lays down the mandatory rule that the claimant is to issue points
of claim and the remedy sought, and the defendant must submit his defence. If
the claimant defaults, the arbitrators may terminate the proceedings: Model Law,
art. 25(a). If the defendant defaults, the arbitrators are to continue the proceed-
ings without treating such failure as an admission of the claimant’s allegations.
Article 23(2), which is not mandatory, allows either party to supplement the claim
or defence during the course of the arbitration unless the arbitrators consider such
amendment inappropriate in the light of any delay. See generally the Notes to IAA,
s. 12. See also SIAC Rules, r. 17, which require the exchange of statements of claim
and defence.
Article 24. Hearings and written proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall
decide whether to hold oral hearings for the presentation of evidence or for oral
argument, or whether the proceedings shall be conducted on the basis of documents
158
and other materials. However, unless the parties have agreed that no hearings shall
be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the
proceedings, if so requested by a party.
(2) The parties shall be given sufficient advance notice of any hearing and of
any meeting of the arbitral tribunal for the purposes of inspection of goods, other
property or documents.
(3) All statements, documents or other information supplied to the arbitral tribu-
nal by one party shall be communicated to the other party. Also any expert report or
evidentiary document on which the arbitral tribunal may rely in making its decision
shall be communicated to the parties.
NOTES
For the operation of this provision, see the Notes to IAA, s. 12.
Article 25. Default of a party

Unless otherwise agreed by the parties, if, without showing sufficient cause—
(a) the claimant fails to communicate his statement of claim in accordance with
Article 23(1), the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accord-
ance 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;
(c) any party fails to appear at a hearing or to produce documentary evidence,
the arbitral tribunal may continue the proceedings and make the award on
the evidence before it.
NOTES
Article 25 deals with three different situations. In each case the default rule can be
ousted or varied by agreement.
Article 25(a) contemplates that the claimant has failed to communicate his state-
ment of claim in accordance with Model Law, art. 23(1). The arbitrators here are
required to terminate the proceedings. It is to be noted that they are not making
an award dismissing the claim, but only closing the existing proceedings, so that
it remains open to the claimant to commence fresh arbitration proceedings within
the limitation period: contrast the position under AA 1996 (Eng), s. 41, where an
award dismissing the claim may be made, thereby removing any possible future
action.789 It is also to be noted that the power to terminate the proceedings is limited
to breach of Model Law, art. 23(1). In the event of some other default there is no
statutory power in the IAA or the Model Law to dismiss the claim, and this is in
effect precluded by art. 25(c) if the failure relates to appearance or the submission of
evidence, although the arbitrators can issue directions which may be enforced by the
court under IAA, s. 12(6). It is most unlikely that the arbitrators could, at common
789 See TAG Wealth Management v. West [2008] EWHC 1466 (Comm).
159
law, treat a failure by the claimant to proceed with his claim as a repudiation of the
arbitration clause.790
Article 25(b) deals with the other side of the coin, namely, the respondent failing
to comply with his obligation under Model Law, art. 23(1) to submit a defence. The
sanction in art. 25(b) is more or less non-existent: the arbitrators must continue the
proceedings, but without treating the failure as any admission of the claims.
Article 25(c) is a general provision, relating to the failure of a party to appear or to
produce documentary evidence. The arbitrators are not permitted to terminate the
proceedings, but must continue and issue an award on the evidence before them,
and see also SIAC Rules, r. 21.3. This is, however, subject to their general power in
IAA, s. 12 to issue directions which may be enforced by the court.
Article 26. Expert appointed by arbitral tribunal

(1) Unless otherwise agreed by the parties, the arbitral tribunal—
(a) may appoint one or more experts to report to it on specific issues to be
determined by the arbitral tribunal;
(b) may require a party to give the expert any relevant information or to
produce, or to provide access to, any relevant documents, goods or other
property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral
tribunal considers it necessary, the expert shall, after delivery of his written or oral
report, participate in a hearing where the parties have the opportunity to put ques-
tions to him and to present expert witnesses in order to testify on the points at issue.
NOTES
See the Notes to IAA, s. 12.
Article 27. Court assistance in taking evidence

The arbitral tribunal or a party with the approval of the arbitral tribunal may request
from a competent court of this State assistance in taking evidence. The court may
execute the request within its competence and according to its rules on taking
evidence.
NOTES
See the Notes to IAA, s. 14. RC, Ord. 39, is applicable to any such application:
RC, Ord. 69A, r. 8. In the Australian case Esposito Holdings Pty Ltd v. UDP Holdings
Pty Ltd [2015] VSC 183, the judge in considering an application from the arbitral
tribunal for issue of subpoenas endorsed this statement of the arbitrator: “In my
view, the determination of an application for permission is not to be treated as a de
facto hearing of the application to the Court for the issue of a subpoena. Parliament
790 The Bremer Vulkan [1981] 1 All ER 289; The Antclizo [1988] 2 All ER 514; Thai-Europe Tapioca
Service Ltd v. Seine Navigation Co Inc, The Maritime Winner [1989] 2 Lloyd’s Rep 506; Downing v. Al
Tameer Establishment [2002] 2 All ER (Comm) 545; Indescon Ltd v. Ogden [2005] 1 Lloyd’s Rep 31;
Multiplex Constructions Pty Ltd v. Suscindy Management Pty Ltd [2000] NSWSC 484.
160
has given that role to the Court not to the arbitral tribunal. I see no support in the
language of s. 23 for any conclusion that the application to the court proceeds in the
nature of a merits review of the decision of the tribunal.”
CHAPTER VI—MAKING OF AWARD AND TERMINATION OF

PROCEEDINGS
Article 28. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such rules of
law as are chosen by the parties as applicable to the substance of the dispute. Any
designation of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that State and not
to its conflict of laws rules
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only
if the parties have expressly authorised it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to the
transaction.
NOTES
The importance of the applicable law
Article 28 is concerned with the law applicable to the substance of the dispute. It
is not concerned with the law applicable to the arbitration agreement or the law
applicable to the arbitral procedure. The law applicable to the arbitration agree-
ment is a matter which falls within the jurisdiction of the arbitrators and governs
all substantive issues arising under the arbitration clause.791 In the absence of an
express choice of law for the arbitration clause, conflict of laws rules point to the law
with which the arbitration clause is most closely connected. In FirstLink Investment
Corporation Ltd v. GT Payment Pte Ltd792 Shaun Leong Liong AR held that, if
there is no express choice of law to govern the arbitration clause, then there is an
implication that the applicable law follows the law of the seat rather than the law
of the substantive contract. That was because the arbitration clause only came into
play when the relationship under the main agreement had broken down irretriev-
ably, so there was no basis for drawing upon the main agreement to determine the
791 Including the validity of the clause. If there is a dispute as to whether the arbitration clause is
valid, the approach adopted by the common law is to apply the “putative” applicable law, i.e., to deter-
mine which law would apply if the clause was valid and then to apply the rules of that law to determine
whether or not it is valid: The Parouth [1982] 2 Lloyd’s Rep 351; Marc Rich & Co AG v. Societa Italiana
Impianti PA, The Atlantic Emperor [1989] 1 Lloyd’s Rep 548; Egon Oldendorff v. Libra Corporation [1995]
2 Lloyd’s Rep 64; The Heidberg [1994] 2 Lloyd’s Rep 287; Continental Enterprises Ltd v. Shandong
Zhucheng Foreign Trade Group Co [2005] EWHC 92 (Comm).
792 [2014] SGHCR 12.
161
law applicable to the arbitration clause. Further, a presumption in favour of the

law of the seat meant that both the substantive issues and procedural matters were
governed by a single applicable law. In so doing the court rejected a lengthy line
of authority, affirmed most recently by the English Court of Appeal in SulAmerica
Cia Nacional De Seguros SA v. Enesa Engenharia SA,793 that an express choice of a
governing law for the main contract would generally operate as an express—or at
the very least implied—choice of the law of the arbitration agreement despite the
severability principle.
The general common law principles for the determination of the applicable law of
the substantive contract are that: (a) the parties are free to choose the applicable law,
more or less without restraint, although it must be the law of a country;794 (b) in the
absence of an express choice, the courts will look for a necessary implication based
on the provisions of the contract, e.g., the language in which it is written795 or any
express choice of the seat of the arbitration;796 and (c) in the absence of any express
or implied choice, all surrounding circumstances.
The law applicable to the procedure of the arbitration is governed by the IAA
and the Model Law: if the place of the arbitration is Singapore, then the mandatory
provisions of these pieces of legislation will apply, and the non-mandatory default
provisions will apply unless the parties agree to the contrary.
Article 28 is, by contrast, concerned with the law applicable to the main agree-
ment, and that law is relevant to all matters relating to the substance of the dispute
between the parties, including validity, interpretation, performance, nullity,797
termination, the identity of the parties,798 and the validity of any assignment of
contractual rights.799
793 [2012] EWCA Civ 638. See also: Woh Hup (Pte) Ltd v. Property Development Ltd [1991] 1 SLR
652; XL Insurance Ltd v. Owens Corning [2000] 2 Lloyd’s Rep 500; Tonicstar Ltd v. American Home
Assurance Co [2005] Lloyd’s Rep IR 32; Peterson Farms Inc v. C & M Farming Ltd [2004] 2 Lloyd’s Rep
603; Arsanovia Ltd v. Cruz City I Mauritius Holdings [2012] EWHC 3702 (Comm); Crowther v. Rayment
[2015] EWHC 427 (Ch). Contrast: Tamil Nadu Electricity Board v. ST-CMS Electric Co Private Ltd
[2008] 1 Lloyd’s Rep 93 where different laws for the substantive agreement and for the arbitration clause
had been chosen expressly; Abuja International Hotels Ltd v. Meridien AS [2012] EWHC 87 (Comm).
794 Al Midani v. Al Midani [1999] 1 Lloyd’s Rep 923 holds that an arbitration agreement may be
governed by religious law rather than the law of a country, but this decision cannot stand with Shamil
Bank of Bahrain v. Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1 and Musawi v. R E International
(UK) Ltd [2008] 1 Lloyd’s Rep 326.
796 DST v. Rakoil [1987] 1 All ER 769; King v. Brandywine Reinsurance Co (UK) Ltd [2005] 1
Lloyd’s Rep 655. The cases indicate that the law applicable to the arbitration clause will generally follow
the law of the seat of the arbitration rather than the law applicable to the substantive agreement if they
are different: Compagnie Tunisienne De Navigation SA v. Compagnie D’Armement Maritime SA [1971]
AC 572; Black-Clawson v. Papierwerke [1981] 2 Lloyd’s Rep 446; C v. D [2008] 1 Lloyd’s Rep 239. Cf.
Miller & Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970] AC 583.
797 Egon Oldendorff v. Libra Corporation [1995] 2 Lloyd’s Rep 64; Welex AG v. Rosa Ltd, The Epsilon
Rosa (No. 2) [2003] 2 Lloyd’s Rep 509; Continental Enterprises Ltd v. Shandong Zhucheng Foreign Trade
Group Co [2005] EWHC 92 (Comm).
798 Peterson Farms Inc v. C & M Farming Ltd [2004] 2 Lloyd’s Rep 603.
799 Hussmann (Europe) Ltd v. Al Ameen Development and Trading Establishment of Saudi Arabia
[2000] 2 Lloyd’s Rep 83; Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC [2001]
Lloyd’s Rep IR 460.
162
Express choice of law

Article 28(1) requires the arbitrators to decide the dispute in accordance with the
law chosen by the parties as applicable to the substance of the dispute. The common
law principles set out above are relevant to the determination of the applicable law.
An express choice of Singapore as the place of arbitration operates as a choice of
applicable law for this purpose.800 It is the duty of the arbitrators to comply with any
such choice, and their failure to do so goes to their jurisdiction801 so that a challenge
may be made under Model Law, art. 34. The purpose of the second sentence of art.
28(1) is to make it clear that an express choice of law incorporates the substantive
rules of the system of law chosen and not its conflict of laws rules. Were the latter
the case, the conflict of laws rules of the chosen country might provide that the
applicable law is to be some other law. This process, known as renvoi, is excluded
by art. 28(1).
It has been argued that art. 28(1), or an implied term of the arbitration agreement,
requires the arbitral award to be correct in law.802 This argument was uncondition-
ally rejected as running counter to the principle of party autonomy which per-
vades the Model Law. Art. 28(1), being a particular guarantee of that principle, is
directed to the rules of law to be applied, not the correctness of their application.803
The authority of an arbitrator under a relevant agreement is thus not confined to
determining a dispute correctly.
No express choice of law

Article 28(2) is concerned with the situation in which there is no express choice of
law. The arbitrators are empowered to determine the conflict of laws rules which
should govern the position, and then to apply those conflict of laws rules to decide
which law should apply to the contract: such authorisation is in any event com-
monly found in arbitration agreements. Two potential legal issues arise here: is the
arbitrators’ choice of the relevant conflict of laws rules correct; and is their applica-
tion of those rules to determine the law applicable to the contract correct? The first
question would, under the wording of art. 28(2), appear not to be problematic, as
the arbitrators are given a completely free hand in this regard. The second question,
which will arise when the arbitrators decide that Singapore conflict of laws rules
apply, is whether the arbitrators’ decision as to the applicable law indicated by those
rules is correct. If the arbitrators choose an applicable law which has no relationship
800 Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de Navigation SA [1971] 2 AC 572.

Contrast: Mitsubishi Corporation v. Castletown Navigation Ltd, The Castle Alpha [1989] 2 Lloyd’s Rep
383; King v. Brandywine Reinsurance Co (UK) Ltd [2004] 2 Lloyd’s Rep 670, affirmed on other grounds
[2005] 1 Lloyd’s Rep 655; Travelers Casualty and Surety Co of Europe Ltd v. Sun Life Assurance Co of
Canada (UK) Ltd [2004] Lloyd’s Rep IR 846.
801 Peterson Farms Inc v. C & M Farming Ltd [2004] 2 Lloyd’s Rep 603.
802 TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of Australia [2013]
HCA 5. See also CLOUT case No. 375 [Bayerisches Oberstes Landesgericht, Germany, 4 Z Sch 23/99,
15 December 1999], (2001) 26 Yearbook of Commercial Arbitration 330.
803 TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of Australia [2013]
HCA 5, para. 15.
163
to the contract or to the parties, it is far from obvious that their decision can be
challenged under the Model Law.
Choice other than a system of law

Article 28(3) is expressed in very general terms, and deals with the situation in which
there is a choice of law which is not recognised by ordinary conflicts rules. Two
separate concepts are here referred to: arbitration in the form of “amiable composi-
tion”; and arbitration “ex aequo et bono”. The 1993 Review, paras 67–76, considered
the definition and desirability of adopting these concepts. As regards the former, the
Review stated that
The distinctive difference between arbitrators and amiable compositeurs is that the latter need
not apply strict rules of legal interpretation to the obligation of the parties contractual or
otherwise, if a strict legalistic approach would lead to an inequitable result. In particular,
amiable compositeurs may take a more flexible approach to the quantification of damages
rather than regarding themselves as bound by the rules of law governing the measure of
compensation. Nonetheless, the powers of amiable compositeurs are not unlimited nor indeed
should they be; they must observe due process in giving equality of treatment to the parties
and they are bound by the public policy rules, and any mandatory provision of the lex arbitri.
The Review recognised that there were both wide and narrow definitions, ranging
from the view that amiable compositeurs may apply lex mercatoria to settle disputes to the
view that they have a complete, subjective discretion to choose the applicable rules of law.
It is not necessary that they choose a national system and apply its principles. They could
choose to apply an amorphous body of principles such as rules of equity or natural justice
as they understand it.
The Review recommended that

the settlement of disputes by amiable compositeurs be accepted in Singapore provided the
parties to an international commercial arbitration desire it. However, amiable composition
should be defined in its narrower sense in the legislation as meaning the power of the
arbitrator to deviate from strict principles of the law where equity and fairness require such
a deviation.
The Review then considered an award ex aequo et bono, which it defined as “an award
based on equitable standards of justice”, and recommended that “awards ex aequo et
bono should be permitted in international commercial arbitration, provided that (1)
the parties agree and (2) the arbitrator indicates some objective basis for the stand-
ards of equity and good sense that he applied in reaching his decision. This recom-
mendation is made in the expectation that, in any arbitration agreement permitting
awards ex aequo et bono, the parties would identify criteria to guide the arbitrator in
choosing standards of equity and good sense”.
The restrictions contemplated by the 1993 Review have not been adopted, and
instead the Model Law has been implemented in full. Arbitrators may thus depart
from general principles of law. This may arise because the parties have chosen
lex mercatoria, religious law or some system of law other than that of a country,
or because the arbitrators have been relieved from applying strict rules of law.
The principle, that the chosen law must be that of a country, does not apply to
164
804
arbitrations, and art. 28(3) permits a choice which would not otherwise be
valid.805 As regards lex mercatoria, it has long been recognised that such a choice is
valid for an arbitration,806 and this is confirmed by art. 28(3). A choice of religious
law is also valid.807 Arbitration which is expressed to be “ex aequo et bono”, “amiable
composition” or “equitable” is at present encountered at best rarely. It has in the
past been used in certain reinsurance agreements which authorise the arbitrators
to disregard express contract wordings or rules of construction, and to reach equi-
table results.808 There is no standard wording in use, and other clauses go even
further and permit the arbitrators to ignore substantive rules of law. Equity clauses
have come before the English courts on a number of occasions, and their validity
has been held to rest upon their width. Thus, while it is permissible to oust strict
construction wordings,809 any attempt to oust substantive rules of law threatens the
validity of the clause itself for want of certainty,810 and possibly even the entire con-
tract for ousting the jurisdiction of the courts.811 Article 28(3) appears to indicate a
change in the law, although ironically the use of this type of clause appears to have
disappeared in recent years.
The provisions of art. 28 are replicated by the SIAC Rules, r. 27.
Article 29. Decision-making by panel of arbitrators

In arbitral proceedings with more than one arbitrator, any decision of the arbitral
tribunal shall be made, unless otherwise agreed by the parties, by a majority of
all its members. However, questions of procedure may be decided by a presiding
arbitrator, if so authorised by the parties or all members of the arbitral tribunal.
NOTES
In most situations involving a three-member arbitral tribunal, there will be a chair-
man or umpire. In other cases, the parties will generally make provision for the
appointment of a chairman or umpire, and it would be difficult in practice for a
tribunal to operate in the absence of such appointment. Article 29 does not in terms
804 Shamil Bank of Bahrain v. Beximco Pharmaceuticals Ltd [2004] 2 Lloyd’s Rep 1.
805 LRRD No. 3/2001, para. 2.22.3.
806 DST v. Rakoil [1987] 1 All ER 769.
807 Halpern v. Halpern [2006] 2 Lloyd’s Rep 83, affirmed [2007] 2 Lloyd’s Rep 56; Musawi v. R E
International (UK) Ltd [2008] 1 Lloyd’s Rep 326.
808 For example, see the Canadian case Liberty Reinsurance Canada v. QBE Insurance and Reinsurance
(Europe) Ltd, 2002 CanLII 6636 (ON SC) (authorisation under art. 28(3) held to have been given where
arbitration agreement in a contract required the contract to be interpreted as an “honourable agree-
ment and not merely as a legal obligation” and provided for the tribunal to be “relieved of all judicial
formalities”).
809 Eagle Star Insurance Co v. Yuval Insurance Co Ltd [1978] 1 Lloyd’s Rep 357; Kansa General
Insurance Co Ltd v. Bishopsgate Insurance plc [1988] 1 Lloyd’s Rep 503, [1988] 1 FTLR 190; Overseas
Union Inc v. AA Mutual International Ltd [1988] 1 FTLR 421; Home and Overseas Insurance Co Ltd v.
Mentor Insurance Co (UK) Ltd [1989] 3 All ER 74; Hiscox v. Outhwaite (No. 3) [1991] 2 Lloyd’s Rep 524.
810 Orion Compania Espanola de Seguros v. Belfort Maatschappij Voor Algemene Verzekringeen [1962] 2
Lloyd’s Rep 257; Home Insurance v. ADAS [1983] 2 Lloyd’s Rep 674; Yesodei Hatorah College Inc v. The
Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622 where leave to appeal on a question
of law was allowed when the arbitrator had failed to resolve the dispute ex aequo et bono and applied the
common law instead.
811 Maritime Insurance Co v. Assecuranz-Union-von 1865 (1935) 52 Ll L Rep 16.
165
address this matter, but simply provides that the arbitrators may—unless the parties
otherwise agree—make majority decisions. Procedural questions may, however,
be made by the “presiding arbitrator” if so authorised by the parties or the other
arbitrators. The presiding arbitrator is, in English parlance, a chairman. There is
nothing in art. 29 as to how the presiding arbitrator is to be appointed: the default
position in England is that the third arbitrator appointed by the parties’ own arbi-
trators is to be the chairman,812 although that principle is inapplicable in Singapore
because the third arbitrator, if any, is a joint appointment of the parties—the third
arbitrator is nevertheless probably the most appropriate chairman.
A chairman is to be distinguished from an umpire. The use of umpires is very
much an English practice, and a dying one:813 even though umpires do operate in
other jurisdictions, particularly the US, the word is there used as meaning chairman
of arbitrators.
Where the agreement provides for the appointment of an umpire, such appoint-
ment is to be made only in the event that the two party-appointed arbitrators have
disagreed, at which point the umpire enters onto the reference and becomes the
tribunal. Major conceptual problems arise with the very notion of two arbitrators
disagreeing and then renouncing their authority in favour of an umpire, as at this
point the arbitrators become advocates for the respective appointing parties and the
principle of impartiality of arbitrators disappears. It is common for the umpire to be
appointed from the outset so that he can attend the hearings, albeit without playing
any role in the process: should the parties disagree, the umpire can then take over
the arbitration without the need for the entire case to be reheard.814 Umpires are
not provided for by AA,815 so in domestic arbitrations an umpire can be appointed
only if the parties so agree.816
It has been commented that the provision does not deal with the situation in
which a three-arbitrator tribunal does not reach a majority on a substantive decision
because each arbitrator takes a different view: the presiding arbitrator is empowered
to deal with questions of procedure only. Should that arise, the parties themselves
must resolve the problem.817
Article 30. Settlement

(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribu-
nal shall terminate the proceedings and, if requested by the parties and not objected
to by the arbitral tribunal, record the settlement in the form of an arbitral award on
agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of
812 AA 1996 (Eng), s. 16.

813 See Cornwall Park Trust Board (Inc) v. Brown [2008] NZHC 562. The concept of umpire was
deliberately omitted from AA: LRRD No. 3/2001, paras 2.1.5 and 2.10.4.
814 See Van Der Giessen-De-Noord Shipbuilding Division BV v. Imtech Marine & Offshore BV [2009]
1 Lloyd’s Rep 273.
815 LRRD No. 3/2001, para. 2.1.5.
816 A suggestion that an agreement for an umpire should be taken to be referring to a chairman was,
however, rejected: LRRD No. 3/2001, para. 2.10.4.
817 LRRD No. 3/2001, para. 2.10.
166
Article 31 and shall state that it is an award. Such an award has the same status and
effect as any other award on the merits of the case.
NOTES
See the Notes to IAA, s. 18.
Article 31. Form and contents of award

(1) The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of
the majority of all members of the arbitral tribunal shall suffice, provided that the
reason for any omitted signature is stated.
(2) The award 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.
(3) The award shall state its date and the place of arbitration as determined in
accordance with Article 20(1). The award shall be deemed to have been made at
that place.
(4) After the award is made, a copy signed by the arbitrators in accordance with
paragraph (1) of this Article shall be delivered to each party.
NOTES
There is little in art. 31 as to the substantive requirements of an award, although
there is much authority for the propositions that an award must: (a) resolve all issues
referred to the arbitrators; (b) disregard extraneous issues going beyond the jurisdic-
tion of the arbitrators; (c) be final and unconditional; (d) be certain and capable of
performance by the parties; and (e) be capable of enforcement by the courts. It is
the duty of the arbitrators to draft their own award. In Agrimex Ltd v. Tradigrain
SA818 it was held that a legally-qualified draftsman appointed by the arbitrators to
attend the proceedings and thereafter to draft the award in accordance with their
instructions did not qualify as an “expert” within the English equivalent of IAA,
s. 12 and Model Law, art. 26, as his functions were purely administrative, so that
his appointment—in the absence of exceptional circumstances, e.g. where there
were language difficulties—was probably not authorised. On the facts of that case
the sole issue was whether the fees charged by the draftsman were excessive (no
point being taken as to the validity of the appointment), the court concluding that
this was the case.
Article 31(1) requires the award to be in writing and signed by or on behalf of
all arbitrators or all those assenting to the award. Where SIAC Rules apply, the
award must be approved by the Registrar before it is issued: r. 27.1. A dissenting
arbitrator may sign the award if he so wishes,819 but he has the right to refuse to do
so without threatening the validity of the award, and see also SIAC Rules, r. 28.4.
818 [2003] 2 Lloyd’s Rep 537.

819 LRRD No. 3/2001, para. 2.28.1. A dissenting award does not of itself render the award suscep-
tible to challenge: F Ltd v. M Ltd [2009] EWHC 275 TCC.
167
The common law position is that an oral award is valid,820 although it is rare for oral
awards to be made these days. Such an award is invalid under the Model Law and
thus the IAA.
Article 31(2) is concerned with the reasons for an award. Article 31(2) imposes a
prima facie obligation on the arbitrators to give reasons, on the basis of the principle
that persons whose legal rights have been affected are entitled to be told why this
is the case.821 The arbitrators are under no duty to provide reasons to the standard
equivalent to that of a judge.822 It is open to the parties to contract out of the obli-
gation of the arbitrators to give reasons, or to restrict the obligation to one which
merely explains the award.823 There is no provision in the IAA or the Model Law for
the court to order better reasons where they are inadequate: this lacuna may be sig-
nificant where there is a challenge to the award under Model Law, art. 34(2)(a (iii),
where it is contended that the award does deals with the matters not in dispute
between the parties. Rule 27 of the SIAC Rules requires the award to be submitted
in draft form to the Registrar, but it has been held that there is no obligation on the
arbitrators to close their proceedings before doing so.824
There is no attempt to define exactly what is meant by “reasons”. It is a basic
duty of arbitrators to understand the submissions put to them, but the mere fact
that the reasoning is opaque is not necessarily evidence of breach of duty in this
regard.825 The cases demonstrate that a reasoned award should set out the arbitra-
tors’ findings and their conclusions based upon those findings with sufficient clarity
for a court to determine what those conclusions actually were.826 It has been empha-
sised that it is not necessarily helpful for an award to contain a great deal of detail
as to the conflicting assertions of the parties which have no real relevance to the
820 Thompson v. Miller (1867) 15 WR 353.

821 Prestige Marine Services Pte Ltd v. Marubeni International Petroleum (S) Pte Ltd [2012] 1 SLR
917; TMM (Division Maritime SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972; Compton
Beauchamp Estates Ltd v. Spence [2013] EWHC 1101 (Ch).
822 Gordian Runoff Limited v. Westport Insurance Corporation [2010] NSWCA 57, disapproving of
the decision in Oil Basins Ltd v. BHP Billiton Ltd [2007] VSCA 255 which decided the opposite. See
also Bremer Handelsgesellschaft mbH v. Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep 130; Universal
Petroleum Co Ltd v. Handels und Transport GmbH [1987] 1 Lloyd’s Rep 517; Transcatalana de Commercio
SA v. Incobrasa Industrial Commercial Brazileira SA (The “Vera”) [1995] 1 Lloyd’s Rep 215; Petroships
Pte Ltd v. Petec Trading & Investment Corp of Vietnam (The “Petro Ranger”) [2001] 2 Lloyd’s Rep 348;
Hawk Shipping Ltd v. Cron Navigation Ltd [2003] EWHC 1828 (Comm); Ascot Commodities NV v.
Olam International Ltd [2002] CLC 277; Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA
Civ 84; World Trade Corp Ltd v. C Czarnikow Sugar Ltd [2004] EWHC 2332 (Comm); Protech Projects
Construction (Pty) Ltd v. Al-Kharafi & Sons [2005] 2 Lloyd’s Rep 779; Bay Hotel and Resort Ltd v. Cavalier
Construction Co Ltd [2001] UKPC 34; Cypressvale Pty Ltd v. Retail Shop Leases Tribunal [1995] QCA
187; Northbuild Construction Pty Ltd v. Discovery Beach Project Pty Ltd [2010] QSC 94; Thoroughvision Pty
Ltd v. Sky Channel Pty Ltd [2010] VSC 139. In Thoroughvision Pty Ltd v. Sky Channel Pty Ltd & Anor
[2010] VSC 139, the judge stated at para. 54 that “a principle of proportionality applies with respect
to the nature and extent of reasons which an arbitrator is obliged to provide in an arbitration award”.
823 As in Bay Hotel and Resort Ltd v. Cavalier Construction Co Ltd [2001] UKPC 34, where it was held
that the explanation did not satisfy the requirements of a reasoned award but was nevertheless sufficient
to comply with the terms of the arbitration clause.
825 Front Row Investment Holdings (Singapore) Pte Ltd v. Daimler South East Asia Pte Ltd [2010]
SGHC 80; TMM (Division Maritime SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972.
826 SEF Construction Pte Ltd v. Skoy Connected Pte Ltd [2010] 1 SLR 733; Trave Schiffahrtsgesellschaft
mbH Co KG v. Ninemia Maritime Corporation, The Niedersachsen (No. 2) [1986] 1 Lloyd’s Rep 393.
168
827
ultimate conclusion. Since arbitration is meant to be “cost effective, and shorn
of complexities and technicalities”, depending on how the issues are contended,
the reasons do not necessarily need to be elaborate or lengthy, provided they could
be understood in their proper context.828 It has been held that the arbitrators were
not in breach of the duty to give reasons when the reason for a ruling on quantum
of losses was not stated in the award but was clear and obvious to the parties in
the context of the arbitral proceedings.829 It is not expected that reasons given by
arbitrators, particularly trade arbitrators, are to display “the accuracy of wording or
the cogency of expression that is required of a judgment”.830 In particular there is
no justification for the arbitrators to appoint a legally qualified draftsman to produce
a formal detailed award akin to a work of literature,831 and if legal advice has been
taken there is no need for that advice to be appended to the award if the reasons for
the award are otherwise clear.832 The principle, therefore, is that an award is to be
read fairly and generously, not with a view to finding errors and inconsistencies.833
Article 31(2) excludes the obligation to give reasons where the award is an agreed
award or where the parties have agreed that no reasons are required.
Article 31(3) requires the award to state its date. Irrespective of the date of the
award, the arbitrators are required to deliver a signed copy of the award to each
party (Model Law, art. 31(4)), and it is that act which triggers the running of time
for an application to the arbitrators to correct their award under art. 33 or for an
application to the court to review the award under art. 34: IAA, s. 19B(2)–(3). The
fact that the award must be notified to both parties prevents the situation in which
the award has been notified to the successful party only, and he has sat on it until
the time limits for review or appeal have passed before disclosing its existence to
the losing party. The date of the award is, however, relevant for other purposes,
e.g., the running of the limitation period for its enforcement. It may also be relevant
as regards the time fixed by the parties for the making of the award. The award may
also give the losing party a given period in which to honour the award, running from
the date on which the award was made. In the absence of an agreed period for the
making of the award, delay in so doing does not offend either public policy or the
rules of natural justice so as to justify its setting aside or refusal of enforcement.834
827 Transcatalana de Commercio SA v. Incobrasa Industrial e Commercial Brazileira SA [1995] 1 Lloyd’s

Rep 215.
828 R v. F [2012] HKCFI 1451.
829 R v. F [2012] HKCFI 1451.
830 Per Colman J in General Feeds Inc Panama v. Slobodna Plovidba Yugoslavia [1999] 1 Lloyd’s
Rep 688, 695. See also Navigation Sonamar Inc. v. Algoma Steamships Ltd [1987] RJQ 1346; Westport
Insurance Corp v. Gordian Runoff Ltd [2011] HCA 37; Thaler v. Amzalak [2013] NSWSC 632
831 Agrimex Ltd v. Tradigrain SA [2003] 2 Lloyd’s Rep 537; R v. F (Arbitration: Reasons) [2012] 2
HKLRD 278.
832 Home of Homes Ltd v. Hammersmith and Fulham London Borough Council (2003) 92 Con LR 48.
833 Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR(R) 86; TMM
(Division Maritime SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972; Zermalt Holdings SA v.
Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14; IRB Brasil Resseguros SA v. CX Reinsurance Ltd [2010]
Lloyd’s Rep IR 560; AK Kablo Imalat San ve Tic AS v. Intamex SA [2011] EWHC 2970 (Comm);
Primera Maritime (Hellas) Ltd v. Jiangsu Eastern Heavy Industries Co Ltd [2013] EWHC 3066 (Comm);
Atkins v. Secretary of State for Transport [2013] BLR 193.
834 Hong Huat Development Co (Pte) Ltd v. Hiap Hong & Co Pte Ltd [2000] 1 SLR(R) 510; Coal and
Oil Co LLC v. GHCL Ltd [2015] SGHC 65.
169
Article 31(3) also provides that the award must state the place of the arbitration,
and the award is then deemed to have been made at that place. The “place” of the
arbitration is its juridical seat rather than the physical location at which the hearing
was conducted: see the Notes to Model Law, art. 20. If the place of the award is
Singapore, the Singaporean courts have jurisdiction over the award and may respond
to challenges to it, whereas if the place of the award is a country which is party to the
New York Convention the award must be enforced in Singapore more or less without
question. The focus of the place of the arbitration as being the place of the award
overcomes the problem raised in Hiscox v. Outhwaite (No. 1),835 where the House of
Lords held that an award is made where it is signed. That gave rise to the curious
situation in which an arbitration between English parties concerning English liabili-
ties and held in London was held to be a French award merely because the arbitra-
tor signed the award while on a short visit to France. By opting for the place of the
arbitration as the place at which the award is to be regarded as having been made, the
curial powers of the Singaporean courts over what is in essence a Singapore arbitra-
tion are preserved wherever the award happens to be signed.836 The principle is of
course of much greater relevance in the context of international arbitrations, where
enforcement under the New York Convention may require confirmation of the seat.
The award will also contain a costs order in respect of the arbitrators’ fees and
expenses, and the costs of the parties: see SIAC Rules, rr 31 and 33.
Article 32. Termination of proceedings

(1) The arbitral proceedings are terminated by the final award or by an order of
the arbitral tribunal in accordance with paragraph (2) of this Article.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and
the arbitral tribunal recognises a legitimate interest on his part in obtaining
a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation of the proceedings has for
any other reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of the
arbitral proceedings, subject to the provisions of Articles 33 and 34(4).
NOTES
Article 32(1) codifies the accepted principle that the making of the final award ter-
minates the arbitration proceedings. Until a final award on all issues has been given,
835 [1991] 3 All ER 641.

836 In Hiscox v. Outhwaite it had been possible to argue that, given that the award was a French
award, it had to be enforced in England as a New York Convention award, rather than an English
award, thereby precluding any judicial review of the award. The House of Lords, by a construction of the
Arbitration Act 1975 which was little short of judicial sleight of hand, rejected this argument and held
that the English courts did not lose curial jurisdiction despite the fact that the award was not made in
England. The need for such artificiality has now been circumvented.
170
837
the arbitral tribunal does not become functus officio. It is necessary to ascertain
whether a final award has in fact been made or whether the arbitrators are reserving
to themselves the right to make a further award. Thus a substantive award often
contains a reservation that a further award on costs or interest may be necessary if
the parties have not themselves been able to agree those issues.
Article 32(2) lists the ways in which arbitral proceedings can be brought to an end
other than by means of a final award.
Under art. 32(3), the termination of the arbitration proceedings brings the juris-
diction of the arbitrators to an end, subject to: (a) an application to them under the
slip rule in Model Law, art. 33; or (b) any obligation imposed on them to rehear
the dispute if the award is overturned on appeal under Model Law, art. 34 (and
also—although this is perhaps by oversight not expressly stated in IAA itself—under
IAA, s. 24).
Article 33. Correction and interpretation of award; additional award

(1) Within thirty days of receipt of the award, unless another period of time has
been agreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to
correct in the award any errors in computation, any clerical or typographi-
cal errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, may
request the arbitral tribunal to give an interpretation of a specific point or
part of the award.
If the arbitral tribunal considers the request to be justified, it shall make the cor-
rection or give the interpretation within thirty days of receipt of the request. The
interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph
(1)(a) of this Article on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party,
may request, within thirty days of receipt of the award, the arbitral tribunal to make
an additional award as to claims presented in the arbitral proceedings but omitted
from the award. If the arbitral tribunal considers the request to be justified, it shall
make the additional award within sixty days
(4) The arbitral tribunal may extend, if necessary, the period of time within which
it shall make a correction, interpretation or an additional award under paragraph (1)
or (3) of this Article.
(5) The provisions of Article 31 shall apply to a correction or interpretation of the
award or to an additional award.
NOTES
Article 33 of the Model Law, often known as the “slip rule”, is concerned to allow
the arbitrators themselves to correct errors in their award. Initiating the art. 33
837 Cf. Tang Boon Jek Jeffrey v. Tan Poh Leng Stanley [2001] 3 SLR 237, which goes further and
holds that an award can be recalled. This is no longer possible under IAA, s. 19B.
171
838
rocedure is not a condition precedent to a party seeking recourse against the
p
award under art. 34,839 but if art. 33 is invoked then time for an application under
art. 34 runs from the date on which the art. 33 procedure has been completed rather
than from the date of the award: Model Law, art. 34(3). See also SIAC Rules, r. 29.
Article 33 contemplates four separate procedures.
Correction of errors on application

Under the first procedure, in art. 33(1)(a) a party may on giving notice to the other
apply to the arbitrators to correct errors in computation, any clerical or typographi-
cal error or any errors of a similar nature.840 This procedure deals with the situa-
tion in which the arbitrators have failed to write what was intended by them.841 It
extends to errors in computation, where the figures have either been incorrectly
transcribed or incorrectly calculated.842 It also covers the accidental omission of a
part of the award,843 including a deficiency in, or a total absence of, the reasons for
the award.844 The slip rule does not, however, entitle the arbitrators to review their
award on its merits in order to decide whether their original views were right or to
review the evidence845 or to introduce new matters into their award.846 On the same
basis, the slip rule cannot be used by a party to seek to overturn the arbitrators’ rea-
soning.847 The relevant distinction here is between an award the reasons for which
are opaque so that the evidential route cannot be traced (within the slip rule), and
an award the reasons for which are clear but unfavourable to the applicant (outside
the slip rule). The application must be made within 30 days of the applicant receiv-
ing the award, unless the parties have agreed a different period. The arbitrators, if
838 Contrast the position in England: AA 1996 (Eng), s. 70(2).

839 Although it might be argued that a party who fails to avail himself of art. 33 could be denied relief
under art. 34 on the basis of the waiver principle.
840 LRRD, No. 3/2001, para. 2.32.1: “miscalculations, use of wrong data in calculations, omission
of data in calculations, and clerical or typographical errors made in the course of typing or drafting the
award.” The errors need not have been the fault of the arbitrators: ibid.
841 A “slip of the pen”. See Gannet Shipping Ltd v. Eastrade Commodities Inc [2001] 1 Lloyd’s Rep
713.
842 Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm); Par
Advance v. Kemas Construction [2002] 553 MLJU 1.
843 Pancommerce SA v. Veecheema BV [1983] 2 Lloyd’s Rep 304; The Montan [1985] 1 All ER 520.
844 Groundshire v. VHE Construction [2001] BLR 395; Al Hadha Trading Co v. Tradigrain SA [2002]
2 Lloyd’s Rep 512; Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep 446.
845 Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey [2001] 1 SLR 624; Tay Eng Chuan v. United
Overseas Insurance Ltd [2009] SGHC 193; Sutherland Co v. Hannevig Brothers Ltd [1921] 90 LJKB 225;
Fuga AG v. Bunge AG [1975] 2 Lloyd’s Rep 192; King v. Thomas McKenna Ltd [1991] 2 QB 480; Bloor
Construction (UK) Ltd v. Bowner & Kirkland (London) Ltd [2000] BLR 314; Al Hadha Trading Co v.
Tradigrain SA [2002] 2 Lloyd’s Rep 512; Hawk Shipping Ltd v. Cron Navigation Ltd [2003] EWHC 1828
(Comm); Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep 446.
846 Re PetroChina International (Hong Kong) Corporation Ltd [2011] 4 HKLRD 604.
847 Al-Hadha v. Tradigrain [2002] 2 Lloyd’s Rep 512; Torch Offshore v. Cable Shipping [2004] 2 All
ER (Comm) 365; World Trade Corporation Ltd v. Czarnikow Sugar Ltd [2004] 2 All ER (Comm) 813;
Margulead v. Excide [2004] 2 All ER 727; Five Oceans Salvage v. Wenzhou Timber [2011] EWHC 3282
(Comm); ASES Havacilic Seris ve Destek Hizmetleri AS v. Delkor UK Ltd [2012] EWHC 3518 (Comm);
Petrochemical v. The Dow Chemical Company [2012] 2 Lloyd’s Rep 691; Cadogan v. Turner [2013] 1
Lloyd’s Rep 630; Union Marine Classification Services LLC v. The Government of the Union of Comoros
[2015] EWHC 508 (Comm).
172
they consider the request to be justified, may make the necessary correction within
30 days (although they may extend that period under art. 33(4)). The correction is
to be in writing and reasoned (art.33(5), bringing in the requirements of art. 31).
Correction without application

The second procedure, in art. 33(2), empowers the arbitrators on their own volition
and without application to correct errors in computation, any clerical or typographi-
cal error or any errors of a similar nature. The arbitrators must make the neces-
sary correction within 30 days (although they may extend that period under art.
33(4)).848 The correction is to be in writing and reasoned (art. 33(5), bringing in
the requirements of art. 31).
Interpretation of award
The third procedure, in art. 33(1)(b), requires the agreement of the parties (which
may presumably be in the arbitration clause itself or reached at any other time). One
party, with notice to the other, may request the arbitrators to give an interpretation
of a specific point or part of the award. The application must be made within 30
days of the applicant receiving the award, unless the parties have agreed a different
period. The arbitrators, if they consider the request to be justified, may make the
necessary correction within 30 days (although they may extend that period under
art. 33(4)). The interpretation forms a part of the original award, and is to be in
writing and reasoned (art. 33(5), bringing in the requirements of art. 31).
Additional award
Finally, under art. 33(3), unless otherwise agreed by the parties, a party may with
notice to the others request the arbitrators to make an additional award as to claims
presented to the arbitrators but omitted from their award. Matters finally resolved
in the earlier award cannot be revisited.849 Failure to make an award on a particular
matter850 should be distinguished from the situation in which the arbitrators have
made a final substantive award but have reserved costs for a further award:851 in that
situation the arbitrators retain power to make that award under IAA, s. 19A and
there is no need to invoke art. 33.852
The word “claim” for this purpose refers to a claim in respect of which a remedy
848 But not where the award is a nullity: Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey [2001] 1 SLR
624.
849 LRRD, No. 3/2001, para. 2.32.2.
850 As in LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2012] SGCA 57 where no
application for pre-award interest had been made, and was wrongly made under the slip rule at a time
when the tribunal was functus officio. It was further held that such an award can be set aside under art.
34(2)(a)(v) of the Model Law (although LW was a decision on the equivalent provisions of the IA, ss
43 and 49).
851 Cadogan Maritime Inc v. Turner Shipping Inc [2013] EWHC 138 (Comm).
852 Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association (Bermuda) Ltd, The
Athena [2007] 1 Lloyd’s Rep 280.
173
is sought, and not a particular feature of a claim. Thus if the arbitrators have failed
to decide whether a contract can be avoided for misrepresentation a claim has
been left unresolved, but if they have decided that the contract cannot be avoided
then art. 33(3) does not empower them to reconsider the evidence on the question
whether there was sufficient inducement853 as inducement is not a “claim” in its
own right.854 Article 33(3) has no application to the case in which the arbitrators
have held over a particular matter for consideration in the event that the parties have
failed to reach agreement themselves.855 It should be emphasised that art. 33(3)
applies only if the claim was one presented to the arbitrators: it is not available if the
claim is one which was not originally presented to arbitrators.856 If the tribunal has
ruled that it has no jurisdiction, it has no power to hear an application under the slip
rule to reverse that initial award.857
The application must be made within 30 days of receipt of the original award and
the arbitrators may if they consider the request to be justified make an additional
award within 60 days (although they may extend that period under art. 33(4)). As
an additional award is involved, that award is to be in writing and reasoned (art.
33(5), bringing in the requirements of art. 31). The possibility of recourse to the
court under IAA, s. 24 in such circumstances, and the distinction between a failure
to consider claims presented and a failure to reason the award full, was discussed in
the Notes to that section.
The time frames applicable to an appeal under art. 33(3) and art. 34(3) were con-
sidered in the New Zealand case Todd Petroleum Mining Company Limited v. Shell
(Petroleum Mining) Company Limited [2014] NZCA 507. Todd filed within 30 days of
receipt of the award a request under art. 33(3) for a further award seeking determina-
tion of a question of law which it considered that the arbitrator had declined to address.
Both parties appealed the award to the High Court, but Todd did not appeal the issue
that was before the arbitrator. The arbitrator declined Todd’s request and Todd then
sought recourse to the High Court under art. 34(3), outside the 60-day limit from
receipt of the original award. The High Court declined leave to appeal. Upon appeal of
that decision, the NZ Court of Appeal held that the second decision by the arbitrator
triggered a new 60-day period of appeal, although it was not a decision on substance.
There was no scope for adding a qualitative requirement to the words of art. 33, so that
a request for determination of a further issue had to be a “proper” request.
Where an application for a new award is unsuccessful, there is no obvious basis
upon which the arbitrators can make a costs order in favour of the party successfully
contesting the making of a new award,858 unless an overall costs order is withheld
until all challenges have been exhausted.
853 Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep 446.
854 See also World Trade Corporation Ltd v. Czarnikow Sugar Ltd [2004] 2 All ER (Comm) 813.
855 Cf. M/S Alghanim Industries Inc v. Skandia International Insurance Corporation [2001] 2 All ER
(Comm) 30.
856 Pirtek v. Deanswood [2005] 2 Lloyd’s Rep 728 (no claim made for interest—not awardable):
Casata Ltd v. General Distributors Ltd [2006] NZSC 8 (no claim for costs—not awardable under the
Model Law, but awardable in a domestic arbitration under the New Zealand Arbitration Act 1996,
Sched. 2, cl. 6).
857 Dredging and Construction Co Ltd v. Delta Civil Engineering Ltd (1999) 68 Con LR 87.
858 Norwich Union v. Whealing Horton & Toms Ltd [2009] EWHC 370 (TCC).
174
In determining whether an application under art 33(4) should be considered,
the arbitrators must afford the parties the right to be heard. However, the rules of
natural justice do not necessarily apply in their full force in the consideration of the
merits of whether an additional award should be made, and it is a matter for the
arbitrators whether they receive further evidence or proceed on the material previ-
ously before them.859
CHAPTER VII—RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive recourse against

arbitral award
(1) Recourse to a court against an arbitral award may be made only by an applica-
tion for setting aside in accordance with paragraphs (2) and (3) of this Article.
(2) An arbitral award may be set aside by the court specified in Article 6 only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in Article 7 was under
some incapacity; or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication thereon,
under the law of this State; or
(ii) the party making the application was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration, or contains deci-
sions on matters beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted to arbitration can
be separated from those not so submitted, only that part of the award
which contains decisions on matters not submitted to arbitration may
be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties, unless such
agreement was in conflict with a provision of this Law from which
the parties cannot derogate, or, failing such agreement, was not in
accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this State.
(3) 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.
859 LW Infrastructure Pte Ltd v. v Lim Chin San Contractors Pte Ltd [2012] SGCA 57.
175
(4) The court, when asked to set aside an award, may, where appropriate and
so requested by a party, suspend the setting aside proceedings for a period of time
determined by it in order to give the arbitral tribunal an opportunity to resume the
arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion
will eliminate the grounds for setting aside.
NOTES
It is an entrenched principle accepted internationally that under art. 34(2) it is the
relevant court of the seat of arbitration which has the exclusive jurisdiction to set
aside an arbitral award.860 The grounds upon which an arbitral award can be set
aside by the Singapore courts are modelled on those in the New York Convention,
discussed in the Notes to IAA, s. 31. Those grounds relate to procedure, jurisdic-
tion and public policy. In addition to the grounds set out in Model Law, art. 34,
there are two additional grounds set out in IAA, s. 24: award obtained by fraud;
and breach of the rules of natural justice. The latter encompasses certain of the
more specific grounds set out in Model Law, art. 34. Model Law, art. 16, also pro-
vides a mechanism for challenging an arbitration award on jurisdictional grounds.
However, that provision relates only to preliminary awards confined to jurisdiction:
any award on the merits is to be challenged under Model Law, art. 34 and not
Model Law, art. 16.
It is to be emphasised that the ability to challenge an award is limited to jurisdic-
tional, procedural and public policy issues: there is no basis for a challenge based
on error of law,861 and there is a need to ensure that challenges are genuinely made
on the permitted grounds rather than amounting to disguised attempts to attack
awards on their merits.862 Article 34(2), which lists the grounds for recourse, does
not require the court to grant a remedy if an application falls within one of the
relevant grounds: the court may act, and it will refuse to do so in particular where
there has been waiver in the form of a failure to object, under Model Law, art. 4,
and where the breach has had little or no impact on the outcome of the arbitration.
Incapacity
As commented in the Notes to IAA, s. 31(2)(a), the relevant incapacity would
appear to refer to a legal incapacity under the law of the place of the applicant’s
domicile. It was suggested in PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank
SA863 that any negative finding on jurisdiction may not be set aside under this
provision even if it is wrong in law.
860 Twin Advance (M) Sdn Bhd v. Polar Electro Europe BV [2013]7 MLJ 811.
1 SLR 278.
862 Warborough Investments Limited v. S Robinson and Sons Holdings Limited [2003] EWCA Civ 751;
JD Wetherspoon plc v. Jay Mar Estates [2007] EWHC 856 (TCC).
863 [2007] 1 SLR 597.
176
Arbitration agreement not valid

As commented in the Notes to IAA, s. 31(2)(b), the invalidity must relate to the
arbitration clause rather than the submission to arbitration, and invalidity encom-
passes the question whether the applicant was a party to the arbitration agreement.
Inability to present case

As commented in the Notes to IAA, s. 31(2)(c), this ground is concerned with the
situation in which the applicant has not been afforded a reasonable opportunity to
present his case, so his own defaults in that regard are clearly material. Prejudice is
required.864 It is likely that this ground of application is wholly subsumed by IAA,
s. 24(b). Such a conclusion may be reached based on the judgment in Triulzi Cesare
SRL v. Xinyi Group (Glass) Co Ltd.865
In Hebei Jikai Industrial Group Co Ltd v. Martin [2015] FCA 228, an Australian
case based on the Model Law, the court held, considering art. 34(2)(a)(ii), that the
arbitrator’s decision on a threshold issue, which effectively brought the arbitration
to a close so that subsequent issues were not addressed on the merits, did not give
rise to a conclusion that the applicant had been unable to present its case.
Dispute not within the arbitration agreement

As commented in the Notes to IAA, s. 31(2)(d), this ground is confined to sub-
stantive jurisdiction866 and does not extend to procedural matters. It is uncertain
whether the ground extends to the assertion that there is no arbitration agreement
at all, as opposed to there being a valid arbitration agreement which does not extend
to the dispute in question.867 Whether or not that is the case, the question of validity
falls within art. 34(2)(a)(i). A finding by the arbitrators that there is an issue estop-
pel preventing them from dealing with a particular matter because it should have
been raised in earlier arbitral proceedings is not capable of challenge under this
provision.868 Where the award contains decisions on matters not submitted to arbi-
tration but those decisions can be separated from decisions on matters submitted to
arbitration, the award may be set aside only to that extent.
Improper composition of tribunal

See the Notes to IAA, s. 31(2)(e).
864 Guangdong New Technology Import & Export Corporation Jiangmen Branch v. Chiu Shing [1991]
2 HKC 459.
865 [2014] SGHC 220.
866 E.g., the law applicable to the substantive agreement: see Government of the Republic of the
Philippines v. Philippine International Air Terminals Co Inc [2007] 1 SLR 278, where the arbitrators were
held to have acted within the scope of their mandate.
177
Improper procedure
As commented in the Notes to IAA, s. 31(2)(e), this provision deals with a breach in
agreed composition or procedure. Such a breach may be disregarded if it is trivial869
or if it has been waived by the defendant by failing to object at the appropriate
time.870 This provision is concerned with excess of procedural powers, e.g., the
arbitrators have applied the wrong system of law to particular issues871 or refused to
grant a final remedy despite finding for the claimant.872 The ground does not apply
where the procedure adopted by the arbitrator has been requested by one party
and concurred in by the other,873 nor is it relevant to cases where the tribunal has
exceeded its substantive jurisdiction.874 A statement by the arbitrators as to how the
arbitration is to be conducted must be adhered to by them.875
Subject matter not capable of arbitration

See the Notes to IAA, s. 31(4).
Public policy of Singapore

Public policy is considered at length in the Notes to IAA, s. 31(4). It is there
commented that public policy for the purposes of the enforcement of a New York
Convention award is not concerned purely with local issues, but is a far narrower
concept which relates to conduct which is reprehensible by any standard. As far as a
challenge to a domestic award is concerned, public policy may be a wider concept.
However, the principles set out in the Notes to IAA, s. 31(4) hold good, and it is not
open to the court to reopen a decision by the arbitrators that there was no relevant
illegality. One aspect of public policy is that the award must be clear and capable of
performance and enforcement in order to be valid.876 Minor ambiguity not affecting
the substance of the award is excluded from challenge, but can in any event be cor-
rected under Model Law, art. 33. An error of law is not a matter on which an award
can be overturned.877 A costs order not made in accordance with judicial principles
is not contrary to public policy.878
869 China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd’s Rep 76; Tongyuan
(US) International Trading Group v. Uni-Clan Ltd, 2001, unreported (English High Court, Moore-Bick J)
but a full summary is available at (2001) 26 Yearbook of Commercial Arbitration 886.
870 Minmetals Germany GmbH v. Ferco Steel Ltd [1999] 1 All ER (Comm) 315.
871 Lesotho Highlands Authority v. Impregilo SpA [2003] 2 Lloyd’s Rep 497 (interest).
872 Ronly Holdings v. JSC Zestafoni G Nikoladze Ferroalloy Plant [2004] EWHC 1354 (Comm).
873 Minermet SpA Milan v. Luckyfield Shipping Corporation SA [2004] 2 Lloyd’s Rep 348; Westland
Helicopters Ltd v. Sheikh Salah Al-Hejailan [2004] 2 Lloyd’s Rep 523.
874 Bernuth Lines Ltd v. High Seas Shipping Ltd, The Eastern Navigator [2006] 1 Lloyd’s Rep 537.
875 Checkpoint Ltd v. Strathclyde Pension Fund [2003] 1 EGLR 1 (no promise of the type alleged, on
the facts).
876 Lee v. Elkins (1701) 12 Mod Rep 585; Lawrence v. Hodgson (1826) 1 Y J 16; Fenton v. Dimes
(1840) 9 LJQB 297; Montrose Canned Foods Ltd v. Eric Wells (Merchants) Ltd [1965] 1 Lloyd’s Rep 597;
River Plate Products Netherlands BV v. Etablissement Coargrain [1982] 1 Lloyd’s Rep 628.
Corp (Japan) [2001] 2 SLR 262.
878 VV v. VW [2008] 2 SLR 929.
178
Time limit
An application is to be made within three months from the date on which the appli-
cant received the award. If the applicant has first sought relief from the arbitrators
under Model Law, art. 33, the running of time is postponed to the date on which the
application was disposed of by the arbitrators (art. 34(2)). There appears to be no
extension of time in any circumstances. In ABC Co v. XYZ Co Ltd879 Judith Prakash J
held that although the words used in art. 34(3) are “may not”, these must be inter-
preted as “cannot” as it is clear that the intention is to limit the time during which
an award may be challenged. This reasoning was followed recently in PT Pukuafu
Indah v. Newmont Indonesia Ltd, 880 where the court added that such interpretation
is consistent with RC, Ord. 69A, r. 2(4), which provides that an application to set
aside an award under s. 24 of the IAA and art. 34 of the Model Law “shall be made
within 3 months from the date of receipt by the plaintiff of the award”. The judge also
considered a definitive time limit for challenging an arbitral award to be necessary to
ensure the expeditious and effective resolution of parties’ disputes. In this context, it is
worth noting the judgment of the Malaysian Court of Appeal in the Government of the
Lao People’s Democratic Republic v. Thai-Lao Lignite Co Ltd, A Thai Company saga.881
It was held there that the court has an unfettered discretion to grant an extension
of time under the national provision implementing art. 34(3). In an application for
extension of time of this nature, the court needs to consider all circumstances of the
case, in particular: (a) the length of the delay;882 (b) the reason for the delay; (c) the
prospect of success; and (d) the degree of prejudice to the other party if the extension
is granted.883 Relying on the judgment of the Hong Kong Court of Appeal in Kwan
Lee Construction Co. Ltd v. Elevator Parts Engineering Co Ltd,884 the court further held
that the proper approach to the question whether an extension of time should be
granted is to consider also the merits of the challenge to the award.885 The decision
in Thai-Lao Lignite is in conflict with the philosophy of minimal judicial intervention
underpinning the Model Law, as expressed in art. 5 which explicitly precludes court
intervention unless there is an express provision in the Model Law to the contrary.
879 [2003] 3 SLR 546. ABC Co v. XYZ Co Ltd was recently followed by the Malaysian High Court
in JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd [2013] 7 CLJ 249, where the court held that
“may” should be read as “must” or “shall” in order to give effect to the intention of the draftsman.
880 [2012] SGHC 187.
881 W-02(NCC)-1287-2011. This case is a part of a complex litigation which thus far involved deci-
sions of the courts in Malaysia, the UK and the US.
882 The length of delay must be judged against the yardstick of the time provided for in the Model
Law, ie three months: Terna Bahrain Holding Company WLL v. Al Shamsi [2012] EWHC 3283 (Comm).
883 These criteria are generally in line with those under English and Hong Kong laws: Terna Bahrain
Holding Company WLL v. Al Shamsi [2012] EWHC 3283 (Comm); Astro Nusantara v. Pt Ayunda Prima
Mitra [2015] HKCFI 274.
884 [1997] 1 HKC 97. This case concerned an application for a leave to appeal against a domestic
arbitral award which was launched only eight days after the expiry of the “extremely short” statutory time
limit for brining such action. It is worth noting that at the time Hong Kong applied the Model Law to
international arbitrations only.
885 Under English and Hong Kong laws, the courts will not normally conduct a substantial inves-
tigation into the merits of the challenge application unless on the material before them the challenge
involves an intrinsically weak case or the application for an extension of time is heard at the same time as
the challenge application itself: Terna Bahrain Holding Company WLL v. Al Shamsi [2012] EWHC 3283
(Comm); Astro Nusantara v. Pt Ayunda Prima Mitra [2015] HKCFI 274.
179
Procedure
The nominated authority for the purposes of an application under art. 34(2) is the
High Court: IAA, s. 8. An application under this provision is to be made to a judge
by means of originating summons and within three months from the date of receipt
by the claimant of the award or the corrected award: RC, Ord. 69A, r. 2(1), (4).
The supporting affidavit must: (a) state the grounds in support of the application;
content of the arbitration agreement, the award and any other document relied on
by the claimant; (c) set out any evidence relied on by the claimant; and (d) be served
with the originating summons (RC, Ord. 69A, r. 2(4A)). Within 14 days after
being served with the originating summons, the defendant, if he wishes to oppose
the application, must file an affidavit stating the grounds on which he opposes the
application (RC, Ord. 69A, r. 2(4C)).
Effect of successful application

The remedy where an application is upheld is the setting aside of the award.
However, the court may as an alternative remit the award to the same arbitrators for
further consideration (art. 34(4)). If the court is of the view that the arbitrators are
unfit to continue the hearing, the correct approach is the setting aside of the award
and the appointment of a fresh tribunal.886 If the court decides to remit the matter
to the arbitrators, it is a matter for them to decide how to proceed.887 The court has
the power to refuse to remit an award, and in particular might do so where a party
has failed to seek an additional award under art. 33(3) where it is alleged that the
arbitrators have failed to deal with all of the issues before them.888
A bare order to set aside an award, without any consequential order remitting
the award does not necessarily revive the jurisdiction of the arbitrators.889 In LW
Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd890 a distinction was drawn
between three situations: (a) an award made within the jurisdiction of the arbitra-
tors but set aside for error; (b) an award made without jurisdiction: and (c) an award
on issues falling within the jurisdiction of the arbitrators but issued in the wrong
form and invalid. In case (a) the role of the arbitrators is complete and their powers
are not revived, and it is then for the parties to commence a fresh arbitration.891 In
886 This passage was quoted with approval by Judith Prakash J in Kempinski Hotels SA v. PT Prima
International Development [2011] SGHC 171, where the judge also added that “[t]here is no direct case
authority on the point but it is sensible to remit the matter back to the same arbitrator as long as he has
not been disqualified from hearing the proceedings for any reason”. For instance, evidence of apparent
bias on the part of the tribunal would be a sufficient reason to order the appointment of a fresh tribunal.
Although the Court of Appeal subsequently overturned the High Court decision, it agreed with the first
instance judge that on the facts there was no basis for the removal of the arbitrator: PT Prima International
Development v. Kempinski Hotels SA [2012] SGCA 35.
887 Mitsui Engineering & Shipbuilding Co Ltd v. Easton Graham Rush [2004] 2 SLR 14.
888 BLC v. BLB [2014] SGCA 40.
889 Neither does it automatically terminate the appointment of the tribunal: Brake v. Patley Wood
Farm LLP, 25 April 2015, unreported (English HC).
890 [2013] SGHC 264.
180
case (b) there never was jurisdiction so there is nothing to revive. In case (c), the
setting aside of the award means that the arbitrators have yet to complete their task,
so that their jurisdiction revives.892 In LW Infrastructure it was held that a decision by
the arbitrators not to make a supplementary award following the setting aside of an
earlier determinative award was not one that could be reviewed for correctness by
the court, because the proceedings had terminated and the arbitrators were functus
officio at that point: the case was of type (a) above.
CHAPTER VIII—RECOGNITION AND ENFORCEMENT OF

AWARDS
NOTES
Articles 35 and 36 of the Model Law, which are concerned with refusal of enforce-
ment, have no application in Singapore and are not reproduced here. It was noted
in PT First Media TBK v. Astro Nusantara International BV893 that “It is therefore
evident that the specific object of Parliament in excluding Chapter VIII of the
Model Law, i.e., arts 35 and 36 of the Model Law, was to enable the enforcement
of foreign awards to be governed by only one set of rules, namely, the New York
Convention and not have to deal with the question of how to address the matter of
reciprocity if arts 35 and 36 were retained.”
SECOND SCHEDULE
CONVENTION ON THE RECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS CONCLUDED AT NEW
YORK ON 10TH J UNE 1958
NOTES
The New York Convention is implemented in Singapore by Part III the IAA, ss
27–33. See the Notes to those sections.
Article I
1. This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State where the rec-
ognition and enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic awards in the State where their
recognition and enforcement are sought.
2. The term “arbitral awards” shall include not only awards made by arbitra-
tors appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted.
892 The English decisions in Hussmann (Europe) Ltd v. Pharaon [2003] EWCA Civ 266 and Internaut
Shipping GmbH v. Fercometal SARL [2003] EWCA Civ 812 were explained as being cases of this type.
893 [2013] SGCA 57, para. 86.
181
3. When signing, ratifying or acceding to this Convention, or notifying exten-

sion under Article X hereof, any State may on the basis of reciprocity
declare that it will apply the Convention to the recognition and enforce-
ment of awards made only in the territory of another Contracting State. It
may also declare that it will apply the Convention only to differences arising
out of legal relationships, whether contractual or not, which are considered
as commercial under the national law of the State making such declaration.
Article II
1. Each Contracting State shall recognise an agreement in writing under
which the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a defined
legal relationship, whether contractual or not, concerning a subject-matter
capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a con-
tract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in
respect of which the parties have made an agreement within the meaning
of this Article, shall, at the request of one of the parties, refer the parties to
arbitration, unless it finds that the said agreement is null and void, inopera-
tive or incapable of being performed.
Article III
Each Contracting State shall recognise arbitral awards as binding and enforce them
in accordance with the rules of procedure of the territory where the award is relied
upon, under the conditions laid down in the following Articles. There shall not be
imposed substantially more onerous conditions or higher fees or charges on the
recognition or enforcement of arbitral awards to which this Convention applies than
are imposed on the recognition or enforcement of domestic arbitral awards.
Article IV
1. To obtain the recognition and enforcement mentioned in the preceding
Article, the party applying for recognition and enforcement shall, at the
time of the application, supply—
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original agreement referred to in Article II or a duly certified copy
thereof.
2. If the said award or agreement is not made in an official language of the
country in which the award is relied upon, the party applying for recogni-
tion and enforcement of the award shall produce a translation of these
documents into such language. The translation shall be certified by an
official or sworn translator or by a diplomatic or consular agent.
182
Article V
1. Recognition and enforcement of the award may be refused, at the request of
the party against whom it is invoked, only if that party furnishes to the compe-
tent authority where the recognition and enforcement is sought, proof that—
(a) the parties to the agreement referred to in Article II were, under the law
applicable to them, under some incapacity, or the said agreement is not
valid under the law to which the parties have subjected it or, failing any indi-
cation thereon, under the law of the country where the award was made; or
(b) the party against whom the award is invoked was not given proper notice
of the appointment of the arbitrator or of the arbitration proceedings or
was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling within
the terms of the submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration, provided that,
if the decisions on matters submitted to arbitration can be separated from
those not so submitted, that part of the award which contains decisions on
matters submitted to arbitration may be recognised and enforced; or
(d) the composition of the arbitral authority or the arbitral procedure was
not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the
arbitration took place; or
(e) the award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which, or
under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the
competent authority in the country where recognition and enforcement is
sought finds that—
(a) the subject-matter of the difference is not capable of settlement by arbi-
tration under the law of that country; or
(b) the recognition or enforcement of the award would be contrary to the
public policy of that country.
Article VI
If an application for the setting aside or suspension of the award has been made to
a competent authority referred to in Article V(1)(e), the authority before which the
award is sought to be relied upon may, if it considers it proper, adjourn the deci-
sion on the enforcement of the award and may also, on the application of the party
claiming enforcement of the award, order the other party to give suitable security.
Article VII
1. The provisions of the present Convention shall not affect the validity of
multilateral or bilateral agreements concerning the recognition and enforce-
ment of arbitral awards entered into by the Contracting States nor deprive
183
any interested party of any right he may have to avail himself of an arbitral
award in the manner and to the extent allowed by the law or the treaties of
the country where such award is sought to be relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva
Convention on the Execution of Foreign Arbitral Awards of 1927 shall
cease to have effect between Contracting States on their becoming bound
and to the extent that they become bound, by this Convention.
Article VIII
1. This Convention shall be open until 31st December 1958 for signature on
behalf of any Member of the United Nations and also on behalf of any other
State which is or hereafter becomes a member of any specialised agency of
the United Nations, or which is or hereafter becomes a party to the Statute
of the International Court of Justice, or any other State to which an invita-
tion has been addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be
deposited with the Secretary-General of the United Nations.
Article IX
1. This Convention shall be open for accession to all States referred to in
Article VIII.
2. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.
Article X
1. Any State may, at the time of signature, ratification or accession, declare
that this Convention shall extend to all or any of the territories for the inter-
national relations of which it is responsible. Such a declaration shall take
effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification
addressed to the Secretary-General of the United Nations and shall take
effect as from the ninetieth day after the day of receipt by the Secretary-
General of the United Nations of this notification, or as from the date of
entry into force of the Convention for the State concerned, whichever is the
later.
3. With respect to those territories to which this Convention is not extended
at the time of signature, ratification or accession, each State concerned shall
consider the possibility of taking the necessary steps in order to extend the
application of this Convention to such territories, subject, where neces-
sary for constitutional reasons, to the consent of the Governments of such
territories.
184
Article XI
In the case of a federal or non-unitary State, the following provisions shall apply:
(a) with respect to those Articles of this Convention that come within the
legislative jurisdiction of the federal authority, the obligations of the federal
Government shall to this extent be the same as those of Contracting States
which are not federal States;
(b) with respect to those Articles of this Convention that come within the leg-
islative jurisdiction of constituent States or provinces which are not, under
the constitutional system of the federation, bound to take legislative action,
the federal Government shall bring such articles with a favourable recom-
mendation to the notice of the appropriate authorities of constituent States
or provinces at the earliest possible moment;
(c) a federal State Party to this Convention shall, at the request of any other
Contracting State transmitted through the Secretary-General of the United
Nations, supply a statement of the law and practice of the federation and its
constituent units in regard to any particular provision of this Convention,
showing the extent to which effect has been given to that provision by
legislative or other action.
Article XII
1. This Convention shall come into force on the ninetieth day following the
date of deposit of the third instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of
the third instrument of ratification or accession, this Convention shall enter
into force on the ninetieth day after deposit by such State of its instrument
of ratification or accession.
Article XIII
1. Any Contracting State may denounce this Convention by a written notifi-
cation to the Secretary-General of the United Nations Denunciation shall
take effect one year after the date of receipt of the notification by the
Secretary-General.
2. Any State which has made a declaration or notification under Article X
may, at any time thereafter, by notification to the Secretary-General of the
United Nations, declare that this Convention shall cease to extend to the
territory concerned one year after the date of the receipt of the notification
by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in
respect of which recognition or enforcement proceedings have been insti-
tuted before the denunciation takes effect.
185
Article XIV
A Contracting State shall not be entitled to avail itself of the present Convention
against other Contracting States except to the extent that it is itself bound to apply
the Convention.
Article XV
The Secretary-General of the United Nations shall notify the States contemplated
in Article VIII of the following:
(a) signatures and ratifications in accordance with Article VIII;
(b) accessions in accordance with Article IX;
(c) declarations and notifications under Articles I, X and XI;
(d) the date upon which this Convention enters into force in accordance with
Article XII;
(e) denunciations and notifications in accordance with Article XIII.
Article XVI
1. This Convention, of which the Chinese, English, French, Russian and
Spanish texts shall be equally authentic, shall be deposited in the archives
of the United Nations.
2. The Secretary-General of the United Nations shall transmit a certified copy
of this Convention to the States contemplated in Article VIII.
186
CHAPTER 3
Arbitration Act
(Cap. 10, 2002 Rev. Ed.)
part i—preliminary
1. Short title and commencement
2. Interpretation
3. Application of this Act
part ii—arbitration agreement

4. Definition and form of arbitration agreement
5. Arbitration agreement not to be discharged by death of party
part iii—stay of legal proceedings

6. Stay of legal proceedings
7. Court’s powers on stay of proceedings
8. Reference of interpleader issue to arbitration
part iv—commencement of arbitral proceedings

9. Commencement of arbitration proceedings
10. Powers of Court to extend time for beginning of arbitration proceedings
11. Application of Limitation Act and Foreign Limitation Periods Act 2012
part v—arbitral tribunal

12. Number of arbitrators
13. Appointment of arbitrators
14. Grounds for challenge
15. Challenge procedure
16. Failure or impossibility to act
17. Arbitrator ceasing to hold office
18. Appointment of substitute arbitrator
19. Decision by panel of arbitrators
20. Liability of arbitrator
part vi—jurisdiction of arbitration tribunal

21. Separability of arbitration clause and competence of arbitral tribunal to rule
on its own jurisdiction
21A. Appeal on ruling of jurisdiction
187
part vii—arbitral proceedings

22. General duties of arbitral tribunal
23. Determination of rules of procedure
24. Statements of claim and defence
25. Hearings and written proceedings
26. Consolidation of proceedings and concurrent hearings
27. Power to appoint experts
28. General powers exercisable by arbitral tribunal
29. Powers of arbitral tribunal in case of party’s default
30. Witnesses may be summoned by subpoena
31. Court’s powers exercisable in support of arbitration proceedings
part viii—award
32. Law applicable to substance of dispute
33. Awards made on different issues
34. Remedies
35. Interest
36. Extension of time for making award
37. Award by consent
38. Form and contents of award
39. Costs of arbitration
40. Fees of arbitrator
41. Power to withhold award in case of non-payment
42. Court may charge property with payment of solicitor’s costs in arbitration
43. Correction or interpretation of award and additional award
44. Effect of award
part ix—powers of the court in relation to award

45. Determination of preliminary point of law
46. Enforcement of award
47. No judicial review of award
48. Court may set aside award
49. Appeal against award
50. Supplementary provisions to challenge appeal
51. Effect of order of Court upon appeal or challenge against award
52. Application for leave of Court, etc.
part x—miscellaneous
53. Notice and other requirements in connection with legal proceedings
54. Powers of Court and Registrar
55. Rules of Court
56. Proceedings to be heard otherwise than in open court
57. Restrictions on reporting of proceedings heard otherwise than in open court
58. Application to references under statutory powers
59. Immunity of arbitral institutions
59A. Authentication of awards and arbitration agreements
188
arbitration act
60. Service of notices
61. Reckoning periods of time
62. Appointment of mediator
63. Power of arbitrator to act as mediator
64. Act to bind Government
65. Transitional provisions
An Act to provide for the conduct of arbitration.

Be it enacted by the President with the advice and consent of the Parliament of
Singapore, as follows:
PART I—PRELIMINARY
Short title and commencement

1.—This Act may be cited as the Arbitration Act.
NOTES
AA came into force on 1 March 2002.
Interpretation
2.—(1) In this Act, unless the context otherwise requires:
“appointing authority” means the appointing authority designated under section
13(8) or (9);
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators or an arbitral
institution, and includes 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 organisation;
“arbitration agreement”means an arbitration agreement referred to in section 4;
“award” means a decision of the arbitral tribunal on the substance of the dispute
and includes any interim, interlocutory or partial award but excludes any orders or
directions made under section 28;
“Court” means the High Court in Singapore;
“court”, for the purposes of sections 6, 7, 8, 11(1), 55, 56 and 57, means the
High Court, District Court, Magistrates’ Court or any other court in which the
proceedings referred to in those sections are instituted or heard;
“party” means a party to an arbitration agreement or, in any case where an arbi-
tration does not involve all of the parties to the arbitration agreement, means a party
to the arbitration;
“the place of the arbitration” means the juridical seat of the arbitration designated by
(a) the parties to the arbitration agreement;
(b) any arbitral or other institution or person authorised by the parties for that
purpose; or
(c) the arbitral tribunal as authorised by the parties,
189
or determined, in the absence of such designation, having regard to the arbitration

agreement and all the relevant circumstances.
(2) Where any provision in this Act allows the parties to determine any issue, the
parties may authorise a third party, including an arbitral institution, to make that
determination.
(3) Where any provision in this Act refers to the fact that the parties have agreed
or that they may agree or in any other way refers to an agreement of the parties, such
agreement includes any arbitration rules incorporated in that agreement.
(4) Where any provision in this Act refers to a claim, it shall also apply to a cross-
claim or counter-claim, and where such provision refers to a defence, it shall also
apply to a defence to such cross-claim or counter-claim.
NOTES
The definitions in s. 2(1) are for the most part the same as in IAA, s. 2, although the
following points may be made.
The appointing authority is the Chairman of SIAC: AA, s. 13(8)–(9).
The definition of arbitral tribunal was extended by the 2012 Act, in recognition
of the emergency arbitration procedure in the SIAC Rules. See the note to IAA,
s. 2.
An award is a ruling on substantive issues, including any partial award (AA, s. 33)
and any interlocutory award. A distinction is to be drawn between an award proper
and procedural rulings falling within AA, s. 28, for the conduct of the arbitration.
It is not always easy to distinguish between an award and a procedural ruling falling
outside s. 28, e.g., where the arbitrators decide that they possess jurisdiction to
hear a dispute: the distinction is crucial because available recourse depends upon
how the ruling is classified. The authorities were discussed in the Notes to IAA,
s. 2.
The court with supervisory authority is the High Court, although other courts have
jurisdiction to deal with arbitration issues arising out of proceedings brought before
them, in particular by staying proceedings (AA, ss. 6–8) and applying limitation
periods (AA, s. 11).1
The place of an arbitration is its juridical seat. The term “seat” is not used in IAA
or the Model Law, but it is clear from Model Law, art. 20 that the same concept
is intended. The definition of seat is almost identical to that in AA 1996 (Eng),
s. 3. The seat is significant for a number of reasons: (a) if the seat is in Singapore,
AA applies to the arbitration (AA, s. 3); and (b) an award is deemed to be made
in the place of the seat of the arbitration (AA, s. 38(4)). The concept of the seat of
an arbitration had been recognised by the common law. The “juridical” seat of the
arbitration is defined by s. 2 as the seat or place expressly or impliedly designated
as such: the seat may be identified by express agreement, impliedly by choice of
Singapore law or procedure for the arbitration, by the arbitrators themselves or
by an arbitral institution (if applicable) under powers delegated by the parties, or,
in default of all of the above, by implication from the surrounding circumstances.
The seat provides the focus for the arbitration, but it is not necessary for the entire
1 LRRD No. 3/2001, para. 2.1.3.
190
arbitration act
proceedings to be conducted in a particular place for that place to be regarded as
the seat.2 In many cases the seat will be the subject of express agreement, or desig-
nated by the relevant arbitral institution or, if the power is delegated to them, by the
arbitrators. An express choice of seat will generally be taken to mean what it says,
although if the parties have chosen the law of Singapore to govern the procedure
of the arbitration and they have also chosen some other country as the seat of the
arbitration, the outcome could be that neither jurisdiction has effective control over
the arbitration—in that scenario AA would have no application at all. In Braes of
Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine Business Services Ltd3 Scotland
was nominated as the seat but English law was stated to govern the procedure, and
the court’s view was that the agreement was intelligible only if the word “seat” was
to be taken as referring to the physical location of the arbitration and not its juridical
seat, the outcome being that the seat of the arbitration was England. A theoreti-
cal difficulty arises if one party contests the validity of the arbitration agreement,
although it has been held that the agreement and the arbitrator’s designation of the
seat are to be presumed to be valid for the purpose of determining the seat of the
arbitration.4 If there is no express agreement as to the seat, and if neither the arbitral
institution nor the arbitrators have been given the power to determine the seat, then
(despite the absence of any such express reference) the court may itself ascertain the
seat by reference to the parties’ agreement and to all other relevant circumstances.
This general statement in effect means that common law rules continue to apply
to the determination of the issue. Under those rules, there is a presumption that
the seat follows any express choice of procedural law,5 and indeed the converse
proposition—that any express choice of seat will dictate the applicable procedural
law—is also valid. In ABB Lummus Global Ltd v. Keppel Fels Ltd6 Clarke J accepted
the close link between the seat and the curial law, and held that only in exceptional
cases was it appropriate for the two to be regarded as different, so that an agreement
to arbitrate in London was all but conclusive that the seat of the arbitration was
England. Other relevant considerations in the determination of the seat include:
the nationality of the parties; the location of the dispute; the procedures adopted in
the arbitration; and (for those arbitrations which have been concluded) the place
where the award was issued.7 In the event of a dispute as to the seat of the arbitra-
tion, it is likely that the Singapore court would assert jurisdiction over the question
where the dispute has its closest connection with Singapore.8 The common law has
refused to recognise an arbitration which does not have a seat but which is regarded
2 James Miller Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970] AC 583; DAC
Report, para. 26.
3 [2008] 1 Lloyd’s Rep 608.
4 Arab National Bank v. El Sharif Saoud Bin Masoud Bin Haza’a El-Abdali [2004] EWHC 2381
(Comm); C v. D [2008] 1 Lloyd’s Rep 239.
5 Naviera Amazonica Peruana SA v. Compania Internacional de Seguros del Peru [1988] 1 Lloyd’s
Rep 116.
6 [1999] 2 Lloyd’s Rep 24. See also Braes of Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine
Business Services Ltd [2008] 1 Lloyd’s Rep 608.
7 Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc [2001] 1 Lloyd’s Rep 65; Arab
National Bank v. El Sharif Saoud Bin Masoud Bin Haza’a El-Abdali [2004] EWHC 2381 (Comm);
Halpern v. Halpern [2006] 2 Lloyd’s Rep 83, affirmed [2007] 2 Lloyd’s Rep 56.
8 Tonicstar Ltd v. American Home Assurance Co [2005] Lloyd’s Rep IR 32.
191
as “floating” or “delocalised”,9 and this position is unaffected by AA.10 In practice

entirely delocalised arbitrations are rare, as any arbitration which is governed by the
rules of an arbitral body will be recognised as taking place under those rules and
support may be granted accordingly.11
Application of this Act

3.—This Act shall apply to any arbitration where the place of arbitration is
Singapore and where Part II of the International Arbitration Act (Cap. 143A) does
not apply to that arbitration.
NOTES
See the Notes to AA, s. 2.
Notwithstanding that domestic arbitration does not fall within the ambit of “inter-
national” arbitration as defined under the IAA, the parties can expressly opt to have
the IAA apply by either agreeing in writing to this effect or adopting institutional
rules which expressly stipulate that the IAA shall apply.
As regards applications to the court under the various provisions of the AA,
service out of the jurisdiction is permissible with the leave of the court where the
place of the arbitration is Singapore. An application for the grant of leave must be
supported by an affidavit stating the ground on which the application is made and
showing in what place or country the person to be served is, or probably may be
found; and no such leave will be granted unless it is made sufficiently to appear to
the court that the case is a proper one for service out of the jurisdiction. See RC,
Ord. 69, r. 10.
PART II—ARBITRATION AGREEMENT
Definition and form of arbitration agreement

4.—(1) In this Act, “arbitration agreement” means an agreement by the parties
to submit to arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
9 Bank Mellat v. Helliniki Techniki SA [1984] QB 291; Coppee-Lavalin SA/NV v. Ken-Ren Chemicals
and Fertilizers Ltd [1994] 2 Lloyd’s Rep 109.
10 Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc [2001] 1 Lloyd’s Rep 65; Halpern v.
Halpern [2006] 2 Lloyd’s Rep 83, affirmed [2007] 2 Lloyd’s Rep 56.
11 Bay Hotel and Resort Ltd v. Cavalier Construction Co Ltd [2001] UKPC 34. The Rules of
Arbitration of the LCIA (1998 Rules, art. 16.1), the ICC (1998 Rules, art. 14.1) and the AAA (1997
Rules, art. 13.1) all delegate the determination of the seat (in the absence of agreement between the
parties) to the arbitral institution concerned (though under the AAA Rules the determination is subject
to the power of the tribunal to determine the seat within 60 days of its constitution). The UNCITRAL
Rules of Arbitration (1998) delegate the determination to the arbitral tribunal (art. 16.1).
192
arbitration act
conduct or by other means.
(5) The requirement that an arbitration agreement shall be in writing is satisfied
by an electronic communication if the information contained therein is accessible so
as to be useable for subsequent reference.
(6) Where in any arbitral or legal proceedings, a party asserts the existence of an
arbitration agreement in a pleading, statement of case or any other document in
circumstances in which the assertion calls for a reply and the assertion is not denied,
there shall be deemed to be an effective arbitration agreement as between the parties
to the proceedings.
(7) A reference in a contract to any document containing an arbitration clause
shall constitute an arbitration agreement in writing if the reference is such as to
make that clause part of the contract.
(8) A reference in a bill of lading to a charterparty or other document contain-
ing an arbitration clause shall constitute an arbitration agreement in writing if the
reference is such as to make that clause part of the bill of lading.
(9) In this section —
“data message” means information generated, sent, received or stored by elec-
tronic, magnetic, optical or similar means, including, but not limited to, electronic
data interchange (EDI), electronic mail, telegram, telex or telecopy;
“electronic communication” means any communication that the parties make by
means of data messages.
NOTES
This section was substituted by the 2012 Amendment Act. It is identical to IAA,
s. 2A, See the notes to that section, above.
Arbitration agreement not to be discharged by death of party

5.—(1) An arbitration agreement shall not be discharged by the death of any party
to the agreement but shall continue to be enforceable by or against the personal
representative of the deceased party.
(2) The authority of an arbitrator shall not be revoked by the death of any party
by whom he was appointed.
(3) Nothing in this section shall be taken to affect the operation of any written
law or rule of law by virtue of which any right of action is extinguished by the death
of a person.
NOTES
Section 5(1) is mandatory and operates automatically.12 As stated, by s. 5(3), the
section does not operate to revive a cause of action which is extinguished on death,
e.g., libel.13 The effect of bankruptcy or liquidation on an arbitration clause is
12 Contrast AA 1996 (Eng), s. 8(1), which permits the parties to reach agreement on the matter.
13 LRRD No. 3/2001, para. 2.3.1.
193
g overned by the bankruptcy and companies legislation, the general effect of which
is to suspend arbitration proceedings: see the Bankruptcy Act 2000, Cap. 2014 and
the Companies Act 1994, Cap. 50.
PART III—STAY OF LEGAL PROCEEDINGS
Stay of legal proceedings

6.—(1) Where any party to an arbitration agreement institutes any proceedings
in any court against any other party to the agreement in respect of any matter which
is the subject of the agreement, any party to the agreement may, at any time after
appearance and before delivering any pleading or taking any other step in the pro-
ceedings, apply to that court to stay the proceedings so far as the proceedings relate
to that matter.
(2) The court to which an application has been made in accordance with subsec-
tion (1) may, if it is satisfied that:
(a) there is no sufficient reason why the matter should not be referred in accord-
ance with the arbitration agreement; and
(b) the applicant 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,
make an order, upon such terms as the court thinks fit, staying the proceedings so
far as the proceedings relate to that matter.
(3) Where a court makes an order under subsection (2), the court may, for the
purpose of preserving the rights of parties, make such interim or supplementary
orders as the court thinks fit in relation to any property which is or forms part of the
subject of the dispute to which the order under that subsection relates.
(4) Where no party to the proceedings has taken any further step in the proceed-
ings for a period of not less than 2 years after an order staying the proceedings has
been made, the court may, on its own motion, make an order discontinuing the
proceedings without prejudice to the right of any of the parties to apply for the
discontinued proceedings to be reinstated.
(5) For the purposes of this section and section 8, a reference to a party includes
a reference to any person claiming through or under such party.
NOTES
Section 6 marks the most significant difference between IAA and AA. Under the
former, a stay of proceedings is mandatory where there is a valid and applicable
arbitration clause. Under the latter, a stay is purely optional.15
Section 6(1) confers upon a party to an arbitration agreement the right to apply to
the court seised of the matter16 for a stay of the proceedings. The application must
14 LRRD No. 3/2001, paras 2.3.2–2.3.3.

15 LRRD No. 3/2001, para. 2.4.1; Australian Timber Products Pte Ltd v. Koh Brothers Building &
Civil Engineering Contractor (Pte) Ltd [2005] 1 SLR 168.
16 This can be any court, and not just the High Court: LRRD No. 3/2001, para. 2.4.2.
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be made before “delivering any pleading or taking any other step in the proceed-
ings”. The meaning of this phrase is discussed in the Notes to IAA, s. 6(1).
Section 6(2) confers upon the court the discretion to stay the proceedings. A
stay is to be granted if: (a) there is no sufficient reason why the matter should not
be referred in accordance with the arbitration agreement; and (b) the applicant
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.
The presumption is in favour of a stay, and the party opposing the stay bears the
burden of showing that there is no sufficient reason why the matter should not be
referred to arbitration.17 In practice there are very few grounds which have been
held to justify a refusal of a stay.18 Perhaps the most significant have proved to be
that: the claimant in the judicial proceedings has been forced into liquidation by
the defendant’s breach of contract and cannot afford to arbitrate;19 not all of the
issues raised between the parties fall within the arbitration clause so that the matter
should be disposed of in a single, judicial, forum20 or the dispute involves several
parties but the arbitration clause does not apply to all of them.21 It is also the case
that if the court is not satisfied that there is a dispute between the parties a stay
will be refused:22 under IAA there is no power to refuse a stay on that ground. The
second condition is that the applicant was and remains “ready and willing to go to
arbitration”,23 a condition which cannot not be met if the applicant is party to other
outstanding proceedings involving matters within the clause24 or if the applicant
17 Fasi v. Speciality Laboratories Asia Pte Ltd (No. 1) [1999] 4 SLR 488. In England, the view taken of
the Arbitration Act 1950, s. 4, which was in the same terms as AA, s. 6(2), was that the burden of proof lay
on the party asserting the arbitration clause to show a good reason why the proceedings should be stayed.
That is the view taken in Hong Kong: Cheuk Kin Trading Ltd v. Prudential Mall Ltd [1996] 4 HKC 758.
18 See, e.g., Kwan Im Tong Chinese Temple v. Fong Choon Hung Construction Pte Ltd [1998] 2 SLR
137; JDC Corporation v. Lightweight Concrete Pte Ltd [1999] 1 SLR 615; Fasi v. Speciality Laboratories
Asia Pte Ltd (No. 1) [1999] 4 SLR 488; Multiplex Constructions Pty Ltd v. Sintal Enterprise Pte Ltd [2005]
2 SLR 530; Car & Cars Pte Ltd v. Volkswagen AG [2009] SGHC 233. In Sim Chay Koon v. NTUC
Income Insurance Co-operative Ltd [2015] SGCA 46 the Court of Appeal restated the guiding principle
that, absent exceptional circumstances, jurisdictional questions should in the first instance be left to the
arbitrators and that the discretion to refuse a stay would rarely be exercised.
19 Fakes v. Taylor Woodrow [1973] 1 All ER 670, subsequently restricted to its special facts by
Goodman v. Winchester Alton Railway Co plc [1984] 3 All ER 594. Cf Grant Constructions Pty Ltd v. Claron
Constructions Pty Ltd [2006] NSWSC 369.
20 Green Star Shipping Co v. London Assurance (1928) 31 Ll L Rep 4 and Palmers Corrosion Control v.
Tyne Dock Engineering Ltd [1997] EWCA Civ 2776. But see Bulk Oil (Zug) v. Trans-Asiatic Oil SA
[1973] 1 Lloyd’s Rep 129 where the court’s view was that the parties must live with what they have
agreed, however inconvenient, and cf. Yee Hong Pte Ltd v. Tan Chye Hee Andrew (Ho Bee Development Pte
Ltd, Third Party) [2005] 4 SLR 398.
21 Hua Xin Innovator Incubator Pte Ltd v. IPCO International Ltd [2012] SGHC 273; Linfield Ltd v.
Taoho Design Architects Ltd [2002] 2 HKC 204; Vasp Group Pty Ltd v. Service Stream Ltd [2008] NSWSC
1182.
22 For the meaning of “dispute”, see the Notes to IAA, s. 6. Uni-Navigation Pte Ltd v. Wei Loong
Shipping Pte Ltd [1993] 1 SLR 876; Kwan Im Tong Chinese Temple v. Fong Choon Hung Construction Pte
Ltd [1998] 2 SLR 137; Mae Engineering Ltd v. Dragages Singapore Pte Ltd [2002] 3 SLR 45; Multiplex
Constructions Pty Ltd v. Sintal Enterprise Pte Ltd [2005] 2 SLR 530. But if there is a prima facie dispute
a stay will be granted: Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] 2 SLR 500; H P
Construction & Engineering Pte Ltd v. Chin Ivan [2014] SGHC 137.
23 See Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] 2 SLR 500, where the
condition was satisfied; Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v. Marston
Constructions Pty Ltd [1998] VSC 6286.
24 Radio Publicity (Universal) Ltd v. Compagnie Luxembourgeoise de Radiodiffusion [1936] 2 All ER 721.
195
has, by his earlier conduct in relation to the arbitration (in particular delay or want
of co-operation), demonstrated an intention not to go to arbitration.25 The appli-
cant does not fall foul of this condition merely by participating in initial mediation
proceedings, although delay in initiating those proceedings may amount to evidence
that the applicant is not ready and willing to go to arbitration.26
The court has power to impose conditions upon the grant of a stay. It was held
in Drydocks World-Singapore Pte Ltd v. Jurong Port Pte Ltd27 that the same approach
should prevail under each of the AA and the IAA despite the fact that stays under
the former are discretionary and under the latter stays are mandatory. The principle
is that a stay should be unconditional other than in exceptional circumstances, e.g.,
where there is a risk that the defendant will have a limitation defence in the arbitra-
tion proceedings.
Section 6(3) permits the court to make a supplementary order preserving the
property which is the subject of the dispute pending the outcome of the arbitration.
Section 6(4) permits the court to bring the judicial proceedings to an end after
two years following the stay, on the basis that the arbitration will have by that time
been completed or the parties would otherwise have settled the dispute.28 Any such
order is not final: it is open for an application for the reinstatement of the proceed-
ings to be made. Such an order plainly cannot be made if the arbitration has led
to an award. Any application must be made to a judge or registrar: RC, Ord. 69,
r. 3(1). If the action is pending, the application is to be made by summons in the
action, and in other cases it is to be made by originating summons: RC, Ord. 69,
r. 3(2). Where the case is one of urgency, the application can be made ex parte on
such terms as may be ordered by the court: RC, Ord. 69, r. 3(1).
For the meaning of “claiming through or under” in s. 6(5), see the Notes to IAA,
s. 6(5).
Court’s powers on stay of proceedings

7.—(1) Where a court stays proceedings under section 6, the court may, if in
those proceedings property has been arrested or bail or other security has been given
to prevent or obtain release from arrest, order that:
(a) the property arrested be retained as security for the satisfaction of any
award made on the arbitration; or
(b) the stay be conditional on the provision of equivalent security for the satis-
faction of any such award.
(2) Subject to the Rules of Court and to any necessary modification, the same law
and practice shall apply in relation to property retained in pursuance of an order
under this section as would apply if it were held for the purposes of proceedings in
the court which made the order.
25 Bell v. Sun Insurance Office (1927) 29 Ll L Rep 236; Euro-America Insurance Ltd v. Lite Best Co
Ltd [1993] 1 HKC 333, although contrast Hodgson v. Railway Passengers Assurance Co [1904] 2 KB 833.
26 Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] AC 334, adopting the ruling
in Enco Civil Engineering v. Zeus International Development Ltd (1991) 28 Con LR 25.
27 [2010] SGHC 185.
28 LRRD No. 3/2001, para. 2.4.3.
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arbitration act
NOTES
Section 7 is in more or less identical terms to IAA, s. 7: see the Notes to that section.
The power is not restricted to admiralty proceedings,29 and also it is not confined
to the High Court, but is extended to the court seised of the proceedings which are
to be stayed under s. 6.30
Reference of interpleader issue to arbitration

8.—Where in proceedings before any court relief by way of interpleader is
granted and any issue between the claimants is one in respect of which there
is an arbitration agreement between them, the court granting the relief may
direct the issue between the claimants to be determined in accordance with the
agreement.
NOTES
Section 8 is identical to IAA, s. 11A: see the Notes to that section.
PART IV—COMMENCEMENT OF LEGAL PROCEEDINGS
Commencement of arbitration proceedings

9.—Unless otherwise agreed by the parties, the arbitral proceedings in respect of
a particular dispute shall commence on the date on which a request for that dispute
to be referred to arbitration is received by the respondent.
NOTES
Section 9 is identical to Model Law, art. 21. The provision, which requires actual
receipt, is significant in that it is the trigger for the running of time for any statutory
or contractual limitation period: see the Notes to AA, s. 11.
Powers of Court to extend time for beginning of arbitration proceedings

10.—(1) Where the terms of an arbitration agreement to refer future disputes to
arbitration provide that a claim to which the arbitration agreement applies shall be
barred unless:
(a) some step has been taken to begin other dispute resolution procedures
which must be exhausted before arbitral proceedings can be begun;
(b) notice to appoint an arbitrator is given;
(c) an arbitrator is appointed; or
(d) some other step is taken to commence arbitral proceedings,
within a time fixed by the agreement and a dispute to which the agreement applies
has arisen, the Court may, if it is of the opinion that in the circumstances of the case
29 Although, probably by way of oversight, references to “arrest” remain in place.

30 LRRD No. 3/2001, para. 2.4.8.
197
undue hardship would otherwise be caused, extend the time for such period and on
such terms as the Court thinks fit.
(2) An order of extension of time made by the Court under subsection (1):
(a) may be made only after any available arbitral process for obtaining an
extension of time has been exhausted;
(b) may be made notwithstanding that the time so fixed has expired; and
(c) shall not affect the operation of section 9 or 11 or any other written law
relating to the limitation of actions.
NOTES
Section 10 empowers the court to extend contractual time limits for the com-
mencement of arbitrations. Its purpose is to ensure that a party to a standard form
arbitration agreement is not caught out by time limits in a document which, in the
ordinary course of business, would not be read by him or to which he was in some
way induced to agree. There is no equivalent power for international arbitrations
under IAA or the Model Law, presumably on the basis that party autonomy is
paramount.31 The power to extend time applies only to arbitration agreements32
and not to submission agreements, so that if the parties agree to go to arbitration
after a dispute has arisen there is no jurisdiction to extend time. Also, by virtue of
s. 10(2)(c), it is confined to contractual limitation periods and does not authorise
the enlargement of time for statutory limitation periods. The application may be
made at any time, and is commonly made after the contractual period has expired
(expressly permitted by s. 10(2)(b)), often coupled with a request for the court to
appoint an arbitrator.
Time may be extended where the arbitration agreement requires any of the steps
in s. 10(1) to be taken within a given period. The nature of the step depends upon
the type of arbitration clause employed. Section 10(1)(a) deals with tiered dispute
resolution clauses under which arbitration may be the last resort. Section 10(1)(b)
is appropriate where there is to be a sole arbitrator. Section 10(1)(c) applies to the
case where each party is to appoint their own arbitrator. Section 10(1)(d) is a catch-
all provision, picking up other possibilities. The authorities draw a sometimes dif-
ficult distinction between steps to commence proceedings (normally to appoint an
arbitrator) and steps to establish the existence of a dispute between the parties, e.g.,
giving written notice of a claim. In a number of cases it has been held that steps of
the latter type are not sufficiently proximate to the commencement of proceedings
to be protected by s. 10.33
The test for intervention is undue hardship to the claimant if an extension is
31 By contrast, AA 1996 (Eng), s. 12 extends that power to all forms of arbitration, albeit in terms
less generous than those laid down by AA, s. 10.
32 An agreement which confers an option to arbitrate remains an agreement to refer future disputes:
Navigazione Alta Italia SpA v. Concordia Maritime Chartering AC, The Stena Pacifica [1990] 2 Lloyd’s
Rep 234.
33 Babanaft International Co SA v. Avant Petroleum Inc, The Oltenia [1982] 3 All ER 244; Mariana
Islands Steamship Corporation v. Marimpex Mineraloel-Handelsgesellschaft mbH Co KG, The Medusa [1986]
2 Lloyd’s Rep 328. Contrast Pittalis v. Sherefettin [1986] 2 All ER 227 and Jadranska Slobodna Plovidba v.
Oleagine SA, The Luka Botic [1983] 3 All ER 602, in each of which the various steps were closely

interrelated and could not be distinguished.
198
arbitration act
34
refused. The large number of authorities on the phrase “undue hardship” illus-
trates a very liberal view of the power. In Moscow V/O Exportkhleb v. Helmville
Ltd, The Jocelyne35 and The Aspen Trader36 Brandon LJ laid down the principles as
follows: “(1) The words ‘undue hardship’ should not be construed too narrowly.
(2) ‘Undue hardship’ means excessive hardship and, whether hardship is due to
the fault of the claimant, it means hardship the consequences of which are out of
all proportion to such fault. (3) In deciding whether to extend the time or not, the
court should look at all the relevant circumstances of the particular case. (4) In
particular, the following matter should be considered; (a) the length of the delay;
(b) the amount at stake; (c) whether the delay was due to the fault of the claimant
or to circumstances outside his control; (d) if it was due to the fault of the claimant,
the degree of such fault; (e) whether the claimant was misled by the other party;
(f) whether the other party has been prejudiced by the delay, and, if so, the degree
of such prejudice.”37
Clauses which confer upon the arbitrators the right to extend time do not pre-
clude reliance upon s. 10 in the event that the arbitrators refuse to extend time,38
although it is all but inconceivable that the court would reverse the decision of the
arbitrators in this regard.39 Whether or not such a clause exists, the question of
whether proceedings have been commenced in time is generally one for the arbitra-
tors, so that if the arbitrators have yet to resolve the question any application to
the court will be premature. Guidelines to overcome this problem were laid down
by Mance J in Grimaldi Compagnia di Navigazione SpA v. Sekihyo Lines.40 If the
respondent agrees that the time bar issue can be resolved by the court, no problem
arises. However, if the respondent objects, two alternative possibilities arise: either
34 AA 1996 (Eng), s. 12 has laid down a more limited test, namely: “(a) that the circumstances
are such as were outside the reasonable contemplation of the parties when they agreed the provision in
question, and that it would be just to extend the time, or (b) that the conduct of one party makes it unjust
to hold the other party to the strict terms of the provision in question”. LRRD No. 3/2001, para. 2.5.4
shows that the decision to retain the older, more interventionist approach, was a considered one, in that
AA applies only to domestic arbitrations whereas AA 1996 (Eng) applies to all arbitrations including
international arbitrations, so that a less interventionist approach is thereby justified.
35 [l977] 2 Lloyd’s Rep 121.
36 [1981] l Lloyd’s Rep 273.
37 The Jocelyne [1977] 2 Lloyd’s Rep 121. Of the many cases illustrating a generous approach, see:
Tradax Internacional SA v. Cerrahogullari TAS, The M Eregli [1981] 2 Lloyd’s Rep 169; Garrick Shipping
Co v. Euro- Frachtkontor GmbH, The World Agamemnon [1989] 2 Lloyd’s Rep 316 (size of claim);
Unitramp SA v. Jenson Nicholson Pte Ltd, The Baiona [1991] 2 Lloyd’s Rep 121 (fault of claimant’s legal
advisers); Phoenix Shipping (Pty) Ltd v. General Feeds Inc [1997] 2 Lloyd’s Rep 703 (fault of claimant’s
legal advisers). The same provision, governed by the same principles, exists in Hong Kong: Ching Yick
Manufactory v. Tai Ping Insurance [1987] 3 HKC 583; Dragages v. Preservatrice Fonciere [1988] HKC
735; Guandong Water Conservancy & Hydro-Power Engineering Development Co Ltd v. Ming An Insurance
Co (HK) Ltd default [1990] 2 HKLR 557; Wenden Engineering Service Co Ltd v. Wing Hong Contractors
Ltd [1992] 2 HKC 380; TS Wong & Co Ltd v. Compagnie Européene d’Assurances Industrielles SA [1993]
1 HKC 397; Sky Mount Investment Ltd v. East West-Umi Insurance Ltd [1995] 1 HKC 342; Hyundai
Engineering and Construction Co Ltd v. Shun Shing Construction and Engineering Co Ltd [1996] 2 HKC 395;
Varnsdorf Pty Ltd v. Fletcher Constructions Australia Ltd [1998] VSC 8125.
38 Comdel Commodities Ltd v. Siporex Trade SA [1990] 2 All ER 552. See also the same provision,
and the same approach, in New Zealand: Fifield v. W & R Jack Ltd [2000] UKPC 27; Madill & Smeed
Ltd v. Ebert Construction Ltd [2006] NZHC 929.
39 Marc Rich Agriculture Trading Co v. Agrimex Ltd [2000] 1 All ER (Comm) 951. Cf Australia:
Boral Resources (Victoria) Pty Ltd v. Greater Bendigo City [2001] VSC 8769.
40 [1998] 2 Lloyd’s Rep 638.
199
(a) the claimant can agree to the arbitrators determining the time bar issue, with the
arbitration application being stayed pending the outcome; or (b) the claimant can
request the court to proceed to decide the arbitration application concurrently with
the arbitrators resolving the time bar issue itself, and the court may decide to do so
on the assumption that the time bar is applicable.
Any application for an extension of time must be made to a judge or registrar: RC,
Ord. 69, r. 3(1). If the action is pending, the application is to be made by summons
in the action, and in other cases it is to be made by originating summons: RC, Ord.
69, r. 3(2). Where the case is one of urgency, the application can be made ex parte
on such terms as may be ordered by the court: RC, Ord. 69, r. 3(1). An application
for an extension of time may include, as an alternative, an application for a declara-
tion that such an order is not needed: RC, Ord. 69, r. 9. This permits the applicant
to seek a determination on the proper construction of the time limit and to apply for
an extension only if the court has ruled that time has run against him.
Application of Limitation Act and Foreign Limitation Periods Act 2012

11.—(1) The Limitation Act (Cap. 163) and the Foreign Limitation Periods Act
2012 shall apply to arbitration proceedings as they apply to proceedings before any
court and a reference in both Acts to the commencement of any action shall be
construed as a reference to the commencement of arbitral proceedings.
(2) The Court may order that in computing the time prescribed by the Limitation
Act or the Foreign Limitation Periods Act 2012 for the commencement of pro-
ceedings (including arbitration proceedings) in respect of a dispute which was the
subject-matter of:
(a) an award which the Court orders to be set aside or declares to be of no
effect; or
(b) the affected part of an award which the Court orders to be set aside in part
or declares to be in part of no effect,
the period between the commencement of the arbitration and the date of the order
referred to in paragraph (a) or (b) shall be excluded.
(3) Notwithstanding any term in an arbitration agreement to the effect that no
cause of action shall accrue in respect of any matter required by the agreement to be
referred until an award is made under the agreement, the cause of action shall, for
the purposes of the Limitation Act and the Foreign Limitation Periods Act 2012,
be deemed to have accrued in respect of any such matter at the time when it would
have accrued but for that term in the agreement.
NOTES
Section 11 is identical to IAA, s. 8A: see the Notes to that section.
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PART V—ARBITRAL TRIBUNAL
Number of arbitrators
12.—(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, there shall be a single arbitrator.
NOTES
The default position under s. 12 in the absence of agreement is that there is to be a
sole arbitrator.41 The suggestion that there should be a sole arbitrator even where
the parties had agreed on a larger tribunal, unless the agreement for three arbitrators
was made after the dispute had arisen: the suggestion, designed to ensure that the
tribunal was not unnecessarily large, was ultimately rejected on grounds of party
autonomy.42
Appointment of arbitrators
13.—(1) Unless otherwise agreed by the parties, no person shall be precluded by
reason of his nationality from acting as an arbitrator.
(2) The parties are free to agree on a procedure for appointing the arbitrator or
arbitrators.
(3) Where the parties fail to agree on a procedure for appointing the arbitrator or
arbitrators:
(a) in an arbitration with 3 arbitrators, each party shall appoint one arbitrator,
and the parties shall by agreement appoint the third arbitrator; or
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on
the arbitrator, the arbitrator shall be appointed, upon the request of a party,
by the appointing authority.
(4) Where subsection (3)(a) applies:
(a) if a party fails to appoint an arbitrator within 30 days of receipt of a first
request to do so from the other party; or
(b) if the 2 parties fail to agree on the appointment of the third arbitrator within
30 days of the receipt of the first request by either party to do so,
the appointment shall be made, upon the request of a party, by the appointing
authority.
(5) If, under an appointment procedure agreed upon by the parties:
(a) a party fails to act as required under such procedure;
(b) the parties are unable to reach an agreement expected of them under such
procedure; or
(c) a third party, including an arbitral institution, fails to perform any function
entrusted to it under such procedure,
41 Cf AA 1996 (Eng), s. 15.

42 LRRD No. 3/2001, paras 2.6.4–2.6.5.
201
any party may apply to the appointing authority to take the necessary measure
unless the agreement on the appointment procedure provides other means for
securing the appointment.
(6) Where a party makes a request or makes an application to the appointing
authority under subsection (3), (4) or (5), the appointing authority shall, in appoint-
ing an arbitrator, have regard to the following:
(a) the nature of the subject-matter of the arbitration;
(b) the availability of any arbitrator;
(c) the identities of the parties to the arbitration;
(d) any suggestion made by any of the parties regarding the appointment of any
arbitrator;
(e) any qualifications required of the arbitrator by the arbitration agreement; and
(f) such considerations as are likely to secure the appointment of an independ-
ent and impartial arbitrator.
(7) No appointment by the appointing authority shall be challenged except in
accordance with this Act.
(8) For the purposes of this Act, the appointing authority shall be the Chairman
of the Singapore International Arbitration Centre.
appoint any other person to exercise the powers of the appointing authority under
this section.
NOTES
Section 13 is fashioned on Model Law, art. 11 as modified by IAA, s. 9A. Section
13(1)–(4) more or less re-enact Model Law, art. 11(1)–(3) and IAA, s. 9A, by
providing that: no person is to be precluded from acting as an arbitrator by reason
of nationality (unless the parties have agreed otherwise, e.g., for reasons of impar-
tiality); the parties may agree on an appointment procedure; and if they fail to do
so the default position is that for a three-person tribunal each party is to appoint an
arbitrator and they are then to agree on a third, and if there is to be a sole arbitrator
then they are required to agree on his identity. In the event that the parties fail to
agree on a sole arbitrator an appointment is to be made by the appointing authority
(not the court, but the Chairman of SIAC—see s. 13(8)–(9)).43 In the event that
there are to be three arbitrators and one party fails to appoint his arbitrator, or the
parties cannot agree on the third arbitrator, then the appointment is to be made by
the Chairman of SIAC. In all other cases, if there is a failure of the appointment
procedure, the appointment is to be made as a matter of last resort by the Chairman
of SIAC (s. 13(6), adopting Model Law, art. 11(4)). It was commented in the Notes
to Model Law, art. 11, that the English rule, which was shared by earlier Singapore
legislation, that if one party fails to appoint his arbitrator then the other can treat his
appointee as the sole arbitrator, has been rejected, on the ground that it threatens to
compromise the independence and impartiality of the tribunal.44
In making an appointment, the Chairman of SIAC must have regard to the
43 See LRRD No. 3/2001, para. 2.6.7.

44 LRRD No. 3/2001, paras 2.6.2–2.6.3.
202
arbitration act
criteria listed in s. 13(6): (a) the nature of the subject matter of the arbitration; (b)
the availability of any arbitrator; (c) the identities of the parties to the arbitration;
(d) any suggestion made by any of the parties regarding the appointment of any
arbitrator; (e) any qualifications required of the arbitrator by the arbitration agree-
ment; and (f) such considerations as are likely to secure the appointment of an
independent and impartial arbitrator. By contrast, under Model Law, art. 11(5),
the Chairman of SIAC is to have regard only to agreed qualifications, independ-
ence and impartiality. Where the Chairman of SIAC has made an appointment, the
only permissible challenge is on the ground of lack of independence, impartiality or
agreed qualifications under AA, ss 14 and 15: by contrast, under Model Law, art.
11(5), there is no possible appeal at all.
Grounds for challenge

14.—(1) Where any person is approached in connection with his possible appoint-
ment as an arbitrator, he shall disclose any circumstance likely to give rise to justifi-
able doubts as to his impartiality or independence.
(2) An arbitrator shall, from the time of his appointment and throughout the
arbitral proceedings, without delay disclose any such circumstance as is referred to
in subsection (1) to the parties unless they have already been so informed by him.
(3) Subject to subsection (4), an arbitrator may be challenged only if:
(a) circumstances exist that give rise to justifiable doubts as to his impartiality
or independence; or
(b) he does not possess the qualifications agreed to by the parties.
(4) A party who has appointed or participated in the appointment of any arbitra-
tor may challenge such arbitrator only if he becomes aware of any of the grounds of
challenge set out in subsection (3) as may be applicable to the arbitrator after the
arbitrator has been appointed.
NOTES
Section 14 reproduces verbatim, but with a slightly different structure, Model Law,
art. 12: see the Notes to that provision. Attention is drawn to the phrase “impartial-
ity or independence” and to the fact that AA 1996 (Eng) is concerned only with
impartiality rather than independence. These concepts are quite different, the latter
reflecting the fact that many commercial markets are quite small and that finding
an independent arbitrator may be difficult, hence the only need being impartiality.
That reasoning has been specifically rejected in Singapore.45
Challenge procedure
15.—(1) Subject to subsection (3), the parties are free to agree on a procedure for
challenging an arbitrator.
(2) If the parties have not agreed on a procedure for challenge, a party who
intends to challenge an arbitrator shall:
45 LRRD No. 3/2001, paras 2.7.2.
203
(a) within 15 days after becoming aware of the constitution of the arbitral
tribunal; or
(b) after becoming aware of any circumstance referred to in section 14(3),
send a written statement of the grounds for the challenge to the arbitral tribunal.
(3) The arbitral tribunal shall, unless the challenged arbitrator withdraws from
his office or the other party agrees to the challenge, decide on the challenge.
(4) If a challenge before the arbitral tribunal is unsuccessful, the aggrieved party
may, within 30 days after receiving notice of the decision rejecting the challenge,
apply to the Court to decide on the challenge and the Court may make such order
as it thinks fit.
(5) No appeal shall lie against the decision of the Court under subsection (4).
(6) While an application to the Court under subsection (4) is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitral proceedings
and make an award.
NOTES
Section 15 reproduces verbatim, but with a slightly different structure, Model Law,
art. 13: see the Notes to that provision. An application to the judge under s. 15(4)
must be made by originating summons: RC, Ord. 69, r. 2(1).
Failure or impossibility to act

16.—(1) A party may request the Court to remove an arbitrator:
(a) who is physically or mentally incapable of conducting the proceedings or
where there are justifiable doubts as to his capacity to do so; or
(b) who has refused or failed
(i) to properly conduct the proceedings; or
(ii) to use all reasonable despatch in conducting the proceedings or making
an award,
and where substantial injustice has been or will be caused to that party.
(2) If there is an arbitral or other institution or person vested by the parties with
power to remove an arbitrator, the Court shall not exercise its power of removal
unless it is satisfied that the applicant has first exhausted any available recourse to
that institution or person.
(3) While an application to the Court under this section is pending, the arbitral
tribunal, including the arbitrator concerned may continue the arbitral proceedings
and make an award.
(4) Where the Court removes an arbitrator, the Court may make such order as
it thinks fit with respect to his entitlement, if any, to fees or expenses, or the repay-
ment of any fees or expenses already paid.
(5) The arbitrator concerned is entitled to appear and be heard by the Court
before it makes any order under this section.
(6) No appeal shall lie against the decision of the Court made under subsection
(4).
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arbitration act
NOTES
Section 16 is modelled upon AA 1996 (Eng), s. 24 and Model Law, art. 14. The
grounds for removal under s. 16 are incapacity and failure to conduct the proceed-
ings properly or with reasonable despatch. “Reasonable despatch” is a matter of
degree to be determined according to the particular facts of the case and the conten-
tious nature of the dispute.46 Mere procedural error does not suffice, and what is
required is that the arbitrator’s conduct undermines the arbitration.47 As is the case
under the Model Law, a different regime exists for problems arising from lack of
independence, lack of impartiality or lack of agreed qualifications: that is set out in
AA, ss 14 and 15, namely the Model Law challenge procedure whereby a complaint
is to be made initially to the arbitrators themselves before the court can become
involved. For the meanings of delay and incapacity, see the Notes to Model Law,
art. 14.
Section 16(2) places a restriction on the right of a party to apply to the court under
s. 16(1) where there is an arbitration body empowered to remove an arbitrator: the
procedure involving recourse to that body has to be exhausted before an application
may be made. However, as was pointed out by the DAC in its drafting of the AA
1996 (Eng), “it is likely to be a very rare case indeed where the court will remove an
arbitrator notwithstanding that that process has reached a different conclusion”.48
Section 16(3) allows the arbitration to continue even though there is a pending
application for removal. In the event that the application is dismissed, the arbitra-
tion will not have been delayed: the existence of this provision removes the ability of
a party to seek removal for purely tactical reasons, thereby delaying the arbitration.
Section 16(4) provides that the question of fees and expenses is a general one,
relevant to all cases of removal, and adopts the rule that the court may make an
order in respect of this matter. Removal by the court does not, therefore, operate
as an automatic disentitlement to fees. Doubtless, in taking into account its discre-
tion under s. 16(4), the contract and the reason for removal will be crucial to the
court.49 There is no appeal against any decision under this subsection: s. 16(6).
Section 16(5), in the interests of justice, entitles an arbitrator to be heard by the
court in an application against him for his removal.
An application to the judge under this section must be made by originating
summons: RC, Ord. 69, r. 2(1).
Arbitrator ceasing to hold office

17.—(1) The authority of an arbitrator shall cease upon his death.
(2) An arbitrator shall cease to hold office if:
(a) he withdraws from office under section 15(3);
46 Anwar Siraj v. Ting Kang Chung [2003] 2 SLR 287.

47 LRRD No. 3/2001, para. 2.8.3. The case for misconduct was not made out in Tan Tong Meng
(Pte) Ltd v. Artic Builders & Co (Pte) Ltd (PC) [1986] 1 SLR 7, where the arbitrator had misinterpreted
the rules on showing the parties his notes, but had acted even-handedly.
48 Echoed by LRRD No. 3/2001, para. 2.8.4
49 See Wicketts and Sterndale v. Brine Builders [2001] CILL 1805 and the Notes to Model Law,
art. 14.
205
(b) an order is made under section 15(4) for the termination of his mandate or
his removal;
(c) he is removed by the Court under section 16 or by an institution referred to
in section 16(2); or
(d) the parties agree on the termination of his mandate.
(3) The withdrawal of an arbitrator or the termination of an arbitrator’s mandate
by the parties shall not imply acceptance of the validity of any ground referred to in
section 14(3) or 16(1).
NOTES
Section 17 is also based on Model Law, art. 14. It provides that an arbitrator
ceases to hold office: on death (AA, s. 17(1)); by withdrawal from office under
the challenge procedure in AA, s. 15 in respect of independence, impartiality or
qualifications (AA, ss 15(3) and 17(2)(a)); by reason of his removal from office
under a court order following the challenge procedure (AA, ss 15(4) and 17(2)(b));
or following the agreement of the parties (AA, s. 17(2)(d)). There is no provision
for unilateral resignation, on the basis that if an arbitrator really wishes to leave
then he should be able to reach agreement with the parties failing which he can be
removed.50
Section 17(2), echoing Model Law, art. 14(2), safeguards the arbitrator by pro-
viding that the withdrawal of an arbitrator or the termination of his mandate by
the parties does not imply acceptance of any allegation of lack of independence,
impartiality or qualifications, inability to act or failure to conduct the proceedings
properly or with reasonable despatch.
Appointment of substitute arbitrator

18.—(1) Where an arbitrator ceases to hold office, the parties are free to agree:
(a) whether and if so how the vacancy is to be filled;
(b) whether and if so to what extent the previous proceedings should stand; and
(c) what effect (if any) his ceasing to hold office has on any appointment made
by him (alone or jointly).
(2) If or to the extent that there is no such agreement, the following subsections
shall apply.
(3) Section 13 (appointment of arbitrators) shall apply in relation to the filling of
the vacancy as in relation to an original appointment.
(4) The arbitral tribunal (when reconstituted) shall determine whether and if so
to what extent the previous proceedings should stand.
(5) The reconstitution of the arbitral tribunal shall not affect any right of a party
to challenge the previous proceedings on any ground which had arisen before the
arbitrator ceased to hold office.
(6) The ceasing to hold office by the arbitrator shall not affect any appointment
by him (alone or jointly) of another arbitrator, in particular any appointment of a
presiding arbitrator.
50 LRRD No. 3/2001, paras 2.8.7–2.8.8.
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arbitration act
NOTES
Section 18 closely follows AA 1996 (Eng), s. 27, which is itself based on Model
Law, art. 15. It was decided to adopt the English model on the ground that the
provisions of the Model Law were “an uneasy mixture of rules”.51 In the case of a
casual vacancy or judicial removal of an arbitrator, s. 18(1) states that the parties
are free to set out a procedure for replacement, or to agree on non-replacement,
whether the proceedings are to stand and what the effect is of his removal of any
appointment made by him. It is relatively unusual for arbitration clauses to deal
with the appointment of replacement arbitrators, and in Federal Insurance Co v.
Transamerica Occidental Life Insurance Co Ltd52 Rix J held that wherever possible
it was necessary to extend the agreement between the parties for the appointment
of the first arbitrators to the appointment of replacement arbitrators, even if that
meant some manipulation of the wording of the arbitration clause. In the absence of
express agreement, s. 18(2) introduces fallback provisions.
Section 18(3) refers back to AA, s. 13 for the appointment of replacement arbitra-
tors and for the default procedure in the event that no appointment is made. The
original procedures apply even where an arbitrator has been removed by the court
under AA, s. 17. In Federal Insurance Co v. Transamerica Occidental Life Insurance Co
Ltd Rix J construed s. 18(3) as requiring the court to look at the agreement between
the parties for the appointment of the original arbitrators, and that it was legitimate
to import whatever aspects of the default provisions in the equivalent of AA 1996
(Eng) to AA, s. 13 as were necessary to render the arbitration clause applicable to
the appointment of a replacement. It was there decided that a clause which required
each party to make an appointment within 30 days of the other requesting arbitra-
tion could be given effect by importing AA, s. 13(3)(a)—a request for an appoint-
ment to be made—as the trigger for the running of the 30-day appointment period
for a replacement.
Section 18(4) is a logical statement of the position where the tribunal has been
reconstituted.
The purpose of s. 18(5) is to preserve the right of a party to challenge those
aspects of the arbitration which the newly constituted panel has allowed to stand.
Accordingly, the fact that the arbitrators have been replaced does not prevent the
applicant from challenging the final award.
Section 18(6) is a saving provision, protecting the validity of the appointment of
any arbitrator or umpire made by the arbitrator in question prior to his ceasing to
hold office.
Decision by panel of arbitrators

19.—(1) In arbitral proceedings with more than one arbitrator, any decision of
the arbitral tribunal shall be made, unless otherwise agreed by the parties, by all or
a majority of all its members.
51 LRRD No. 3/2001, para. 2.9.

52 [1999] 2 Lloyd’s Rep 286.
207
(2) Any question of procedure may be decided by a presiding arbitrator if so

authorised by the parties or all members of the arbitral tribunal.
NOTES
Section 19 reproduces Model Law, art. 29: see the Notes to that provision.
Liability of arbitrator
20.—An arbitrator shall not be liable for:
(a) negligence in respect of anything done or omitted to be done in the capacity
of the arbitrator; or
(b) any mistake of law, fact or procedure made in the course of arbitral pro-
ceedings or in the making of an arbitral award.
NOTES
Section 20 is identical to IAA, s. 25: see the Notes to that section.
PART VI—JURISDICTION OF ARBITRAL TRIBUNAL
Separability of arbitration clause and competence of arbitral tribunal to

rule on its own jurisdiction
21.—(1) The arbitral tribunal may rule on its own jurisdiction, including a plea
that it has no jurisdiction and any objections to the existence or validity of the arbi-
tration agreement, at any stage of the arbitral proceedings.
(2) For the purpose of subsection (1), an arbitration clause which forms part of
a contract shall be treated as an agreement independent of the other terms of the
contract.
(3) A decision by the arbitral tribunal that the contract is null and void shall not
entail ipso jure (as a matter of law) the invalidity of the arbitration clause.
(4) A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defence.
(5) A party shall not be precluded from raising the plea that the arbitral tribunal
does not have jurisdiction by the fact that he has appointed, or participated in the
appointment of, an arbitrator.
(6) A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings.
(7) Notwithstanding any delay in raising a plea referred to in subsection (4) or
(6), the arbitral tribunal may admit such plea if it considers the delay to be justified
in the circumstances.
(8) The arbitral tribunal may rule on a plea referred to in this section either as a
preliminary question or in an award on the merits.
(9) If the arbitral tribunal rules —
(a) on a plea as a preliminary question that it has jurisdiction; or
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arbitration act
(b) on a plea at any stage of the arbitral proceedings that it has no jurisdiction,
any party may, within 30 days after having received notice of that ruling, apply to
the Court to decide the matter.
NOTES
Section 21, following Model Law, art. 16, combines the twin concepts of the sepa-
rability of the arbitration clause and the right of the arbitrators to determine their
own jurisdiction. Section 21(1)–(3) reproduce Model Law, art. 16(1), s. 21(4)–(7)
reproduce Model Law, art. 16(2) and s. 21(8), (9) and (11) reproduce Model Law,
art. 16(3). See the Notes to Model Law, art. 16. Section 21(1) was amended by
the 2012 Act to make it clear that the arbitrators’ ruling can be at any stage in the
arbitration.
It is to be emphasised that the review of rulings under s. 21 is confined to those
which relate purely to jurisdiction. If the applicant has not appeared in the arbitra-
tion at all to contest jurisdiction, or if the arbitrators have made an award on the
merits which encompasses an issue of jurisdiction, the appropriate challenge proce-
dure is under AA, s. 49.
Section 21(9) was amended by the 2012 Act to extend the right of appeal to
decisions of the arbitrators that they do not have jurisdiction, as well as to decisions
that they do have jurisdiction. An application to the judge under s. 21(9) must be
made by originating summons: RC, Ord. 69, r. 2(1). Note that, consistently with
the Model Law
Appeal on ruling of jurisdiction

21A.—(1) An appeal from the decision of the High Court made under section 21
shall lie to the Court of Appeal only with the leave of the High Court.
(2) There shall be no appeal against a refusal for grant of leave of the High Court.
(3) Where the High Court, or the Court of Appeal on appeal, decides that the
arbitral tribunal has jurisdiction —
(a) the arbitral tribunal shall continue the arbitral proceedings and make an
award; and
(b) where any arbitrator is unable or unwilling to continue the arbitral proceed-
ings, the mandate of that arbitrator shall terminate and a substitute arbitra-
tor shall be appointed in accordance with section 18.
(4) In making a ruling or decision under this section or section 21 that the arbi-
tral tribunal has no jurisdiction, the arbitral tribunal, the High Court or the Court
of Appeal (as the case may be) may make an award or order of costs of the
proceedings, including the arbitral proceedings (as the case may be), against any
party.
(5) Where an award of costs is made by the arbitral tribunal under subsection (4),
section 39(1) shall apply with the necessary modifications.
(6) Where an application is made pursuant to section 21 —
(a) such application shall not operate as a stay of the arbitral proceedings or of
High Court orders otherwise; and
209

High Court may direct.
(7) Where there is an appeal from the decision of the High Court pursuant to
subsection (1) —
(a) such appeal shall not operate as a stay of the arbitral proceedings or of
High Court or the Court of Appeal orders otherwise; and
Court of Appeal may direct.
NOTES
Section 21A was added by the 2012 Amendment Act, replacing the more limited
provisions on appeals previously contained in the now repealed IA, s. 21(10)–
(11). It replicates s. 10 of the IAA. See the Notes to that section. Any application
to the judge must be made within seven days of the judge’s decision: RC, Ord.
69, r. 8.
PART VII—ARBITRAL PROCEEDINGS
General duties of arbitral tribunal

22.—The arbitral tribunal shall act fairly and impartially and shall give each party
a reasonable opportunity of presenting his case.
NOTES
Section 22, which is adapted from AA 1996 (Eng), s. 33, is a modified version of
Model Law, art. 18, and sets out a basic principle of arbitration law. The word
“reasonable” is preferred to the Model Law formulation of “full opportunity”.53
Determination of rules of procedure

23.—(1) Subject to the provisions of this Act, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of
this Act, conduct the arbitration in such manner as it considers appropriate.
(3) The power conferred on the arbitral tribunal under subsection (2) includes
the power to determine the admissibility, relevance, materiality and weight of any
evidence.
NOTES
Section 23 reproduces Model Law, art. 19. Section 23(1) corresponds to Model
Law, art. 19(1) and s. 23(2)–(3) correspond to Model Law, art. 19(2). See the
Notes to IAA, s. 12. In practice, unless standard rules have been adopted, the
53 LRRD No. 3/2001, para. 2.13.1.
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arbitration act
54
parties will rarely have very much to say as to how the arbitration is conducted.
Section 23 is subject to the provisions of the AA, including s. 22, so the latter provi-
sion sets out a minimum mandatory standard.55 The Evidence Act 2002 (Cap. 97)
does not apply to arbitrations.56
Statements of claim and defence

24.—(1) Within the period of time agreed by the parties or, failing such agree-
ment, as determined by the arbitral tribunal, the claimant shall state:
(a) the facts supporting his claim;
(b) the points at issue; and
(c) the relief or remedy sought,
and the respondent shall state his defence in respect of the particulars set out in
this subsection, unless the parties have otherwise agreed to the required elements of
such statements.
(2) The parties may submit to the arbitral tribunal with their statements, all
documents they consider to be relevant or other documents which refer to such
documents, or other evidence.
(3) Except as otherwise agreed by the parties, either party may amend or supple-
ment his claim or defence during the course of the arbitral proceedings, unless the
arbitral tribunal considers it inappropriate to allow such amendment, having regard
to the delay in making the amendment.
NOTES
Section 24 reproduces Model Law, art. 23. Section 24(1)–(2) corresponds to Model
Law, art. 23(1), and s. 24(3) corresponds to Model Law, art. 23(2). See the Notes
to IAA, s. 12. In the event of the claimant’s default under s. 24(1), the arbitrators
may terminate the proceedings, but in the event of the defendant’s default the
proceedings continue as before: AA, s. 29(1), discussed below. The extension of
this provision to domestic arbitrations was justified on the basis that it is primarily
designed for ad hoc arbitrations (institutional arbitrations having their own rules on
these matters) where a measure of certainty is desirable. The provisions also apply
to counterclaims.57
Hearings and written proceedings

25.—(1) Subject to any contrary agreement by the parties, the arbitral tribunal
shall determine if proceedings are to be conducted by oral hearing for the pres-
entation of evidence or oral argument or on the basis of documents and other
materials.
(2) Unless the parties have agreed that no hearings shall be held, the arbitral
54 AA 1996 (Eng), s. 34 indeed recognises this by placing procedural decisions in the hands of the
arbitrators subject to contrary agreement by the parties.
55 LRRD No. 3/2001, para. 2.14.1.
56 LRRD No. 3/2001, para. 2.14.2.
57 See LRRD No. 3/2001, paras 2.15.1–2.15.3.
211
tribunal shall, upon the request of a party, hold such hearings at an appropriate
stage of the proceedings.
(3) The parties shall be given sufficient notice in advance of any hearing and of
any meeting of the arbitral tribunal for the purposes of inspection of goods, other
property or documents.
(4) All statements, documents or other information supplied to the arbitral tribu-
nal by one party shall be communicated to the other party.
(5) Any expert report or evidentiary document on which the arbitral tribunal may
rely in making its decision shall be communicated to the parties.
NOTES
Law, art. 24(1), s. 25(3) corresponds to Model Law, art. 24(2) and s. 25(4)–(5)
corresponds to Model Law, art. 24(3). See the Notes to IAA, s. 12.58
Consolidation of proceedings and concurrent hearings

26.—(1) The parties may agree:
(a) that the arbitral proceedings shall be consolidated with other arbitration
proceedings; or
(b) that concurrent hearings shall be held,
on such terms as may be agreed.
(2) Unless the parties agree to confer such power on the arbitral tribunal, the
tribunal has no power to order consolidation of arbitral proceedings or concurrent
hearings.
NOTES
Section 26 is based, almost verbatim, on AA 1996 (Eng), s. 35. One of the major
weaknesses of the use of arbitration as opposed to the courts is that, as arbitral
proceedings are consensual, it is not possible for a series of distinct but identical or
related claims between different parties to be disposed of in the same proceedings.59
There may be many situations in which consolidation makes good sense: one is where
there is a chain of contracts (particularly sales) involving the same subject matter,
where the point in issue is quality; another is where the question is the construction
of a contract which has been used in a related transaction (reinsurance being a good
illustration of the point). Under earlier legislation, unless the parties agreed, the arbi-
trators themselves could not order concurrent hearings, even if the same arbitrators
had been appointed to resolve each individual dispute.60 This remains the case under
58 See also LRRD No. 3/2001, paras 2.16.1–2.16.3.

59 Contrast the position in Hong Kong under s. 6B of the Arbitration Ordinance: Chun Wo Building
Construction Ltd v. China Merchants Tower Co Ltd [2000] 2 HKC 255; Linfield Ltd v. Brooke Hillier Parker
[2003] 2 HKC 624; Hong Kong Institute of Education v. Aoki Corporation [2003] 3 HKC 653. See also
the position under Australian state legislation: Melville Homes Pty Ltd v. Primes Ceramics Services Pty Ltd
[1991] 2 VR 211; Varnsdorf Pty Ltd v. Fletcher Construction Australia Ltd [1998] VSC 8125.
60 Oxford Shipping Co v. Nippon Yusen Kaisha, The Eastern Saga [1984] 3 All ER 835; Abu Dhabi
Gas Liquefaction Co v. Eastern Bechel Corporation [1982] 2 Lloyd’s Rep 425; Aquator Shipping Ltd v.
Kleimar NV, The Capricorn I [1998] 2 Lloyd’s Rep 379.
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arbitration act
AA. Although the Singapore courts may refuse to stay judicial proceedings in favour
of arbitration, closely related disputes between different parties may nevertheless
have to be heard in parallel in judicial proceedings and in arbitration unless the court
refuses a stay and consolidates the two actions into one set of judicial proceedings.
Section 26(1) merely codifies the common law by allowing consolidation or con-
current hearings if all the parties agree to it.61 The adoption of standard form
arbitration rules which do provide for consolidation or concurrent hearings is suf-
ficient to amount to an agreement for the purposes of s. 26(1). The further option
would have been to confer upon the arbitrators the power to consolidate arbitra-
tions in certain circumstances unless the parties had agreed to the contrary, but any
such approach—however sensible in terms of speed and efficiency—would plainly
have undermined the principle of party autonomy, and the possibility is expressly
excluded by s. 26(2).62 The effect of the section is, therefore, to act as a prompt to
the parties to investigate the possibility of consolidation.
Power to appoint experts

27.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may:
(a) appoint one or more experts to report to it on specific issues to be deter-
mined by the tribunal; and
(b) require a party to give the expert any relevant information or to produce, or
to provide access to, any relevant documents, goods or other property for
his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral
tribunal considers it necessary, the expert shall, after delivery of his written or oral
report, participate in a hearing where the parties have the opportunity to put ques-
tions to him and to present other expert witnesses in order to testify on the points
at issue.
NOTES
Section 27 is identical to Model Law, art. 26: see the Notes to that provision.
General powers exercisable by arbitral tribunal

28.—(1) The parties may agree on the powers which may be exercised by the
arbitral tribunal for the purposes of and in relation to the arbitral proceedings.
(2) Without prejudice to the powers conferred on the arbitral tribunal by the
parties under subsection (1), the tribunal shall have powers to make orders or give
directions to any party for:
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
61 LRRD No. 3/2001, paras 2.17.1–2.17.2.

62 The 1993 Review, para. 52, similarly recommended that there should be no consolidation in the
case of an international arbitration, given the risk that any award might not be enforceable under the
New York Convention.
213
(d) a party or witness to be examined on oath or affirmation, and may for that
purpose administer any necessary oath or take any necessary affirmation;
(e) the preservation and interim custody of any evidence for the purposes of the
proceedings;
(f) samples to be taken from, or any observation to be made of or experiment
conducted upon, any property which is or forms part of the subject-matter
of the dispute; and
(g) the preservation, interim custody or sale of any property which is or forms
part of the subject-matter of the dispute.
(3) The power of the arbitral tribunal to order a claimant to provide security for
costs as referred to in subsection (2)(a) shall not be exercised by reason only that
the claimant is:
(b) a corporation or an association incorporated or formed under the law of a
country outside Singapore, or whose central management and control is
(4) All orders or directions made or given by an arbitral tribunal in the course of
an arbitration shall, by leave of the Court, be enforceable in the same manner as if
they were orders made by the Court and, where leave is so given, judgment may be
entered in terms of the order or direction.
NOTES
Section 28, insofar as it relates to interlocutory powers and security, is closely based
on IAA, s. 12(1), (2), (4) and (6), and extends the available powers of arbitrators
under earlier legislation.63 There are, however, three major differences. The first is
that certain of the powers available to arbitrators under IAA, s. 12—specifically, the
powers to secure the amount in dispute, to grant freezing injunctions and to grant
other interim injunctions—are exercisable exclusively by the court under AA, s. 31.
The second is that arbitrators sitting under the AA, unlike those sitting under IAA,
have no power to adopt inquisitorial procedures. The third is that the concurrent
power of the court under IAA, s. 12 to make the relevant orders is separated and
dealt with in a separate provision, AA, s. 31, with an attempt to regulate the rela-
tionship between arbitral and judicial exercise of powers missing from IAA, s. 12. It
is anticipated that agreed powers will be resolved at the outset, e.g., at any prelimi-
nary meeting summoned by the arbitrators.64
Security for costs under s. 28(2)(b) and (3) corresponds to IAA, s. 12(1)(a) and
(4): see the Notes to IAA, s. 12.
Discovery of documents and interrogatories under s. 28(2)(b) corresponds to IAA,
s. 12(1)(b): see the Notes to IAA, s. 12.
Giving evidence by affidavit under s. 28(2)(c) corresponds to IAA, s. 12(1)(c): see
the Notes to IAA, s. 12.
Examination on oath or affirmation under s. 28(2)(d) corresponds to IAA, s. 12(2):
see the Notes to IIA 1995, s. 12.
63 LRRD No. 3/2001, para. 2.19.2.

64 LRRD No. 3/2001, para. 2.19.1.
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arbitration act
Preservation and interim custody of evidence under s. 28(2)(e) corresponds to IAA,
s. 12(1)(f): see the Notes to IAA, s. 12.
The taking of samples under s. 28(2)(f) corresponds to IAA, s. 12(1)(e): see the
Notes to IAA, s. 12.
Preservation and interim custody of the subject matter under s. 28(2)(g) corresponds
to IAA, s. 12(1)(d): see the Notes to IAA, s. 12.
The enforcement of orders made by the arbitrators may be ordered by the court
under s. 12(4), a provision which corresponds to IAA, s. 12(6): see the Notes to
IAA, s. 12. Any application must be made to a judge or registrar: RC, Ord. 69,
such terms as may be ordered by the court: RC, Ord. 69, r. 3(1). An application
must be supported by an affidavit exhibiting a copy of the arbitration agreement
or any record of the content of the arbitration agreement and the original order
or direction made by the arbitral tribunal sought to be enforced, and stating the
provisions of the AA or the applicable rules adopted in the arbitration on which the
applicant relies: RC, Ord. 60, r. 13.
Powers of arbitral tribunal in case of party’s default

29.—(1) The parties may agree on the powers which may be exercised by the
arbitral tribunal in the case of a party’s failure to take any necessary action for the
proper and expeditious conduct of the proceedings.
(2) Unless otherwise agreed by the parties, if, without showing sufficient cause:
(a) the claimant fails to communicate his statement of claim in accordance with
section 24, the arbitral tribunal may terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance
with section 24, the arbitral tribunal may continue the proceedings without
treating such failure in itself as an admission of the claimant’s allegations; and
(c) any party fails to appear at a hearing or to produce documentary evidence,
the arbitral tribunal may continue the proceedings and make the award on
the evidence before it.
(3) If the arbitral tribunal is satisfied that there has been inordinate and inexcus-
able delay on the part of the claimant in pursuing his claim, and the delay:
(a) gives rise, or is likely to give rise, to a substantial risk that it is not possible
to have a fair resolution of the issues in that claim; or
(b) has caused, or is likely to cause, serious prejudice to the respondent,
the tribunal may make an award dismissing the claim.
NOTES
The powers of the arbitrators conducting an international arbitration when faced
with the default of a party are set out in IAA, s. 12, and Model Law, art. 25.65
Section 29(2) reproduces Model Law, art. 25, by giving the arbitrators the limited
65 LRRD No. 3/2001, paras 2.20.1–2.20.3.
215
right to determine the proceedings if a statement of claim is not served under AA,
s. 24, by requiring them in effect to disregard a failure by the defendant to issue a
statement of defence, and by requiring the arbitrators to proceed to an award on
the available evidence in default of appearance or the submission of evidence. The
parties are, however, free to vary these default rules.
If a defendant fails to appear or to submit evidence, he can scarcely complain
if an adverse award is reached. The major difficulty facing arbitrators, however, is
dilatory behaviour on the part of the claimant. An arbitration notice may be issued
at an early state, in order to prevent the claim from becoming time-barred, but
the claimant may then lose interest in the proceedings or pursue them at an unac-
ceptably slow pace. At common law there is nothing that the arbitrators can do
about this: the argument that construing failure to proceed as an offer to terminate
the arbitration agreement which was accepted by the respondent’s inactivity, has
proved to be abortive other than in exceptional circumstances.66 The arbitrators’
directions may be enforced by means of an application to the court under AA,
s. 28(4), but this power appears not to have been used and could only lead to
further delay. What is required is some remedy open to the arbitrators themselves.
This is conferred by s. 29(3),67 which reflects the power of the court to strike out
an action for want of prosecution.68 It is to be noted that the power under s. 29(3)
is not a striking out, as is the case in judicial proceedings, but rather is a power to
make an award dismissing the action. There are detailed judicial guidelines on the
striking out power for court proceedings,69 and these provide that the courts may
take into account the cumulative effect of a number of small delays and the exist-
ence of any justifications for delay. Further, it is rarely appropriate for an award to
be made within the limitation period applicable to the claim, as it is always open to
the claimant to commence fresh arbitration proceedings. Delay will rarely be inor-
dinate if it is still within the limitation period.70 The effect of an award is uncertain,
although the view of Rix J in James Lazenby & Co v. McNicholas Construction Co
Ltd71 was that an award under the English equivalent of AA, s. 29(3), even though
it is not on the merits, is to be treated as precluding, by virtue of some form of
estoppel, a further action by the claimant either in arbitration or in the courts. This
principle is irrelevant where the award is (exceptionally) made within the limita-
tion period because the claimant can restart, and is likely only to be of significance
where the award is made after the contractual limitation period for commencing
66 The Bremer Vulkan [1981] 1 All ER 289; The Antclizo [1988] 2 All ER 514; Thai-Europe Tapioca
Service Ltd v. Seine Navigation Co Inc, The Maritime Winner [1989] 2 Lloyd’s Rep 506; Downing v. Al
Tameer Establishment [2002] 2 All ER (Comm) 545; Indescon Ltd v. Ogden [2005] 1 Lloyd’s Rep 31;
Auburn Council v. Austin Australia Pty Ltd [2007] NSWSC 130.
67 Echoing AA 1996 (Eng), s. 41(3).
68 RC, Ord. 2, r. 1(2). Australian state legislation authorises the court to bring an end to arbitration
proceedings in the event of delay by the applicant. For an illustration, see Liverpool City Council v. Casbee
Pty Ltd [2005] NSWSC 590.
69 See, in particular: Birkett v. James [1978] AC 297; Department of Transport v. Chris Smaller (Transport)
Ltd [1989] 1 All ER 897; Roebuck v. Mungovin [1994] 1 All ER 568; Grovit v. Doctor [1997] 2 All ER 417.
70 Birkett v. James [1978] AC 297; James Lazenby & Co v. McNicholas Construction Co Ltd [1995] 2
Lloyd’s Rep 30; Scanports Shipping v. Sienna Marine September 2001; TAG Wealth Management v. West
[2008] EWHC 1466 (Comm).
71 [1995] 2 Lloyd’s Rep 30.
216
arbitration act
an arbitration has expired but the ordinary statutory limitation period for judicial
proceedings is unaffected.72
Witnesses may be summoned by subpoena

30.—(1) Any party to an arbitration agreement may take out a subpoena to testify
or a subpoena to produce documents.
(2) The 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.
(3) The Court may also issue an order under section 38 of the Prisons Act (Cap.
247) to bring up a prisoner for examination before an arbitral tribunal.
(4) No 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.
NOTES
Section 30 reproduces IAA, s. 13: see the Notes to that section. Both provisions
were amended by the 2012 Amendment Act to bring the terminology up to date.
Any application must be made to a judge or registrar: RC, Ord. 69, r. 3(1). If the
action is pending, the application is to be made by summons in the action, and in
other cases it is to be made by originating summons: RC, Ord. 69, r. 3(2). Where
the case is one of urgency, the application can be made ex parte on such terms as
may be ordered by the court: RC, Ord. 69, r. 3(1). For the procedure, see RC, Ord.
38, as applied by RC, Ord. 69, r. 12.
Court’s powers exercisable in support of arbitration proceedings

31.—(1) The Court shall have the following powers for the purpose of and in
relation to an arbitration to which this Act applies:
(a) the same power to make orders in respect of any of the matters set out in
section 28 as it has for the purpose of and in relation to an action or matter
in the Court;
(b) securing the amount in dispute;
(c) ensuring that any award which may be made in the arbitral proceedings is
(d) an interim injunction or any other interim measure.
(2) An order of the Court under this section shall cease to have effect in whole
or in part (as the case may be) if the arbitral tribunal or any such arbitral or other
institution or person having power to act in relation to the subject-matter of the order
makes an order which expressly relates to the whole or part of that order of the Court.
(3) The Court, in exercising any power under this section, shall have regard to:
(a) any application made before the arbitral tribunal; or
(b) any order made by the arbitral tribunal,
in respect of the same issue.
72 In fact, most arbitration clauses which impose time limits are construed as barring the claim
itself, and not simply barring a claim in arbitration, so the point is likely to be academic.
217
(4) Provision may be made by Rules of Court for conferring on the Registrar of
the Supreme Court (within the meaning of the Supreme Court of Judicature Act
(Cap. 322)) or other officer of the Court all or any of the jurisdiction conferred by
this Act on the Court.
NOTES
Section 31(1) reproduces the general effect of IAA, s. 17, by conferring upon the
court the concurrent power to make the orders open to arbitrators under AA, s. 28
(see the Notes to that section) plus three additional orders which are not within
the powers of the arbitrators: securing the amount in dispute; ensuring that assets
available to meet an award are not dissipated (freezing injunction); or any interim
injunction. The most important measures which may be adopted by a court are
freezing injunctions and anti-suit injunctions.
Unlike IAA, s. 12(7), there is a clear attempt to regulate the relationship between
the power of the courts and the power of the arbitrators. Under s. 31(1), the court
is to have regard to (a) any application made before the arbitral tribunal; or (b) any
order made by the arbitral tribunal, in respect of the same issue. The section does
not actually say that the court is not to intervene if the arbitrators themselves have the
power to deal effectively with the issue, or if they have already done so, but that is the
clear implication.73 In NCC International AB v. Alliance Concrete Singapore Pte Ltd74
it was said that the court is more likely to intervene in a domestic arbitration than
in an international arbitration, although the court’s greater role “still remains . . .
unequivocally premised on the same principle that the court must intervene only in
the limited circumstances where curial intervention will support arbitration”. Even
in the case of a domestic arbitration, there will be no intervention if the parties have
conferred the relevant powers on the arbitrators or if the parties have chosen to apply
IAA and the Model Law to their arbitration. In practice it is much more likely that
the court will act only where the arbitrators are unable to do so,75 e.g., because they
cannot do so effectively or the issue has arisen before they have been appointed. As
regards the latter, s. 31(2), which is taken from AA 1996 (Eng), s. 44(6),76 states at
a court order ceases to have effect once an order has been made by the arbitrators,
consistently with the principle that the court’s order is merely designed to hold the
ring until the arbitrators can reach their own conclusions.77
PART VIII—AWARD
Law applicable to substance of dispute

32.—(1) The arbitral tribunal shall decide the dispute in accordance with the law
chosen by the parties as applicable to the substance of the dispute.
73 LRRD No. 3/2001, para. 2.21.2.

74 [2008] 2 SLR 565.
75 As suggested in the notes to IAA, s. 12.
76 LRRD No. 3/2001, para. 2.21.3.
77 For an illustration, see Emmott v. Michael Wilson Partnership (No. 2) [2009] EWHC 1 (Comm),
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arbitration act
(2) If or to the extent that the parties have not chosen the law applicable to the
substance of their dispute, the arbitral tribunal shall apply the law determined by
the conflict of laws rules.
(3) The arbitral tribunal may decide the dispute, if the parties so agree, in accord-
ance with such other considerations as are agreed by them or determined by the
tribunal.
NOTES
Section 32 is based on Model Law, art. 28, but with some variations.
Section 32(1) imposes on the arbitrators the obligation to decide the dispute in
accordance with the law chosen by the parties. There is no reference here to the
exclusion of the renvoi principle, whereby any choice of law relates to the substantive
law of the chosen country and not its conflict of laws rules, but it may be thought
that there is no need to make such a reference here because renvoi is not recognised
by Singapore law in any event.
Section 32(2) regulates the position if there is no choice of law, in which case the
arbitrators shall apply the law determined by the conflict of laws rules. Those rules
are presumably Singaporean rules but the point is not clear.78 Contrast the position
under Model Law, art. 28, which permits the arbitrators to determine the relevant
conflict of laws rules for themselves.
Section 32(3) authorises the arbitrators to decide the dispute, if the parties so
agree, in accordance with other considerations. This authorises them to disregard
strict rules of law. See the Notes to Model Law, art. 28.
Awards made on different issues

33.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may make
more than one award at different points in time during the proceedings on different
aspects of the matters to be determined.
(2) The arbitral tribunal may, in particular, make an award relating to:
(a) an issue affecting the whole claim; or
(b) a part only of the claim, counter-claim or cross-claim, which is submitted to
the tribunal for decision.
(3) If the arbitral tribunal makes an award under this section, it shall specify in
its award, the issue, or claim or part of a claim, which is the subject-matter of the
award.
NOTES
Section 33 reproduces IAA, s. 19A: see the Notes to that section.
where the court made a freezing order but authorised the arbitrators to discharge it should they think it
appropriate to do so.
78 See LRRD No. 3/2001, para. 2.22.2, which is opaque but seems to so suggest.
219
Remedies
34.—(1) The parties may agree on the powers exercisable by the arbitral tribunal
as regards remedies.
(2) Unless otherwise agreed by the parties, the arbitral tribunal may award any
remedy or relief that could have been ordered by the Court if the dispute had been
the subject of civil proceedings in that Court.
NOTES
Section 34 reproduces the effect of IAA, s. 12(5)(a): see the Notes to IAA, s. 12.
Interest
35.—(1) The arbitral tribunal may award interest, including interest on a
c ompound basis, on the whole or any part of any sum that:
(a) is awarded to any party; or
(b) is in issue in the arbitral proceedings but is paid before the date of the
award,
for the whole or any part of the period up to the date of the award or payment,
whichever is applicable.
(2) A sum directed to be paid by an award shall, unless the award otherwise
directs, carry interest as from the date of the award and at the same rate as a judg-
ment debt.
(3) Where 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.
NOTES
Section 35(1) is equivalent to IAA, s. 12(5)(b). Section 35(2) is equivalent to IAA,
s. 20. Section 35(3) was added by the 2012 Amendment Act, to match an equiva-
lent amendment to IAA, s. 20, and makes it clear that there is a presumption that
the award carries interest as from its date, at the judgment debt rate, unless the
award otherwise provides. IA s. 35 and IAA s. 20 differ in that IAA, s. 20 permits
the award of interest on costs
Extension of time for making award

36.—(1) Where the time for making an award is limited by the arbitration agree-
ment, the Court may by order, unless otherwise agreed by the parties, extend that
time.
(2) An application for an order under this section may be made:
(a) upon notice to the parties, by the arbitral tribunal; or
(b) upon notice to the arbitral tribunal and the other parties, by any party to the
proceedings.
(3) An application under this section shall not be made unless all available tribu-
nal processes for application of extension of time have been exhausted.
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(4) The Court shall not make an order under this section unless it is satisfied that
substantial injustice would otherwise be done.
(5) The Court may extend the time for such period and on such terms as it thinks
fit, and may do so whether or not the time previously fixed by or under the arbitra-
tion agreement or by a previous order has expired.
(6) The leave of the Court shall be required for any appeal from a decision of the
Court under this section.
NOTES
Section 36 permits the court to extend the agreed period for making an arbitration
award. There is no equivalent provision in IAA or the Model Law. Section 36 is
closely modelled on AA 1996 (Eng), s. 50. Its purpose is to remove the need for the
parties to commence a fresh arbitration following what would otherwise have been
the termination of the arbitrators’ mandate.79
Section 36(1) confers upon the court the basic power to extend time. It is non-
mandatory, and the parties are free to contract out of its provisions. A provision in
the arbitration agreement whereby the parties or the arbitrators may extend time
does not operate as an exclusion of the fallback power of the court to do so.80
Section 36(2) allows the application to be made by the arbitrators themselves, or
by any party on giving notice to the arbitrators and the other parties. Section 36(2)
of the 1996 Act is no more than a statement of the obvious, although it does contain
the important procedural point that an application by a party must have been noti-
fied to the other party and the arbitrators. Notice is to be given by way of service of
the originating process: RC, Ord. 69, r. 11.
If the parties have agreed on their own procedure for extending time (e.g., by
conferring an express power on the arbitrators in this respect), it is necessary under
s. 36(3) for that procedure to have been exhausted before application may be made
to the court. This provision also implies that the mere existence of an express
contractual procedure for extending time is not to be taken as ousting the power of
the court to extend time (as is allowed by s. 36(1)),81 although in relation to AA
1996 (Eng), s. 50, it has been commented by the DAC that “it would be a rare case
indeed where the court extended the time notwithstanding that this had not been
done through an available arbitral process”.
Section 36(4) lays down the governing criterion for the enlargement of time,
namely, substantial injustice. It is unclear what the test involves in the present
context. It might be speculated that if the time has expired due to the success-
ful delaying tactics of one party, or for other reasons beyond the control of the
arbitrators, time will be extended. By contrast, if the delay is that of the arbitra-
tors themselves, it might be thought that requiring the parties to bring breach of
contract proceedings against the arbitrators in lieu of obtaining their award would
amount to “substantial injustice”. In Ting Kang Chung John v. Teo Hee Lai Building
Construction Pte Ltd82 Quentin Loh JC ruled that the trend towards narrowing the
79 LRRD No. 3/2001, paras 2.26.1–2.26.2.

80 John Mowlem Construction plc v. Secretary of State for Defence (2001) 82 Con LR 140.
81 Cf. the analysis of the same provision in s. 12: see the Notes to s. 12, above.
82 [2010] SGHC 20, decided on a differently worded earlier provision, but referring to English
221
scope of judicial intervention meant that the power to extend time should not be
exercised to override a clearly expressed contractual time limit other than in excep-
tional circumstances, that time should not be extended if it had expired by a large
margin at the date of the application and that in determining whether there had
been substantial injustice any prejudice to the respondent was relevant. On the facts
an extension of time was refused: there was a clear contractual time limit; there had
been delay in making an application; and there were no good grounds for delay, the
complexity of the dispute and the obstructive tactics of one party being regarded as
insufficient.
Section 36(5) gives the court the power to extend time for such period and on
such terms as it thinks fit. Time may be extended whether or not it has expired.
While it would make sense for an application to be made prior to the expiry of time,
so that the award when finally made is known to be valid, it is possible that time has
expired and an award has been made without any attempt to extend time having
been made. This occurred in Oakland Metal Co Ltd v. Benaim Co Ltd,83 where it
was held that the court retained power to extend time retrospectively in proceedings
to enforce the award.
Any application must be made to a judge or registrar: RC, Ord. 69, r. 3(1). If the
action is pending, the application is to be made by summons in the action, and in
other cases it is to be made by originating summons: RC, Ord. 69, r. 3(2). Where
the case is one of urgency, the application can be made ex parte on such terms as
may be ordered by the court: RC, Ord. 69, r. 3(1). Notice is to be given under
s. 36(2) by way of service of the originating process: AA, s. 53(2) and RC, Ord.
69, r. 11.
Section 36(6) requires the permission of the court for any appeal from its decision
whether or not to extend time. The “court” means the trial judge and not the Court
of Appeal.84 Any application to the judge must be made within seven days of the
judge’s decision: RC, Ord. 69, r. 8.
Award by consent
37.—(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral
tribunal shall terminate the proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the settlement in the form of an arbitral
award on agreed terms.
(2) An arbitral award on agreed terms:
(a) shall be made in accordance with section 38;
(b) shall state that it is an award; and
(c) shall have the same status and effect as any other award on the merits of the
case.
cases on the equivalent new wording, Pirtek (UK) Ltd v. Deanswood Ltd [2005] EWHC 2301 (Comm)
and Minermet SpA Milan v. Luckyfield Shipping Corporation SA [2004] 2 Lloyd’s Rep 348.
83 [1953] 2 QB 261.
84 Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388; Athletic
Union of Constantinople v. National Basketball Association [2002] 1 Lloyd’s Rep 305; Virdee v. Virdi [2003]
EWCA Civ 41.
222
arbitration act
(3) An award on agreed terms may, with the leave of the Court, be enforced in the
same manner as a judgment or order to the same effect, and where leave is so given,
judgment may be entered in terms of the award.
NOTES
Section 37 is drawn from s. 18 of the IAA and from s. 51 of the AA 1996 (Eng). The
power to give a consent award is discretionary, and the arbitrators may refuse if, for
example, they take the view that the arbitration was a sham or designed to defraud
the revenue.85
An application under s. 37(3) must be made to a judge or registrar: RC, Ord. 69,
r. 3(2). The application can be made ex parte on such terms as may be ordered by the
court, whether or not the matter is one of urgency: RC, Ord. 69, r. 3(3). The further
procedural requirements for an application for permission to enforce the award are
set out in RC, Ord. 69, r. 14. An application must be supported by an affidavit
exhibiting the arbitration agreement or any record of the content of the arbitration
agreement and the original award or, in either case, a copy thereof, stating the name
and the usual or last known place of residence or business of the applicant and
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. The order is to be drawn up
by the applicant and must be served on the respondent by delivering a copy to him
personally or by sending a copy to him at his usual or last known place of residence
or business or in such other manner as the court may direct. Service outside the
jurisdiction is permissible without leave, and if it is served abroad then the respond-
ent may apply within 14 days (or such longer period as the court may fix) to set
aside the order. The order must state that the defendant has 14 days to apply to set
it aside (RC, Ord. 69, r. 14(5)), but if the order is silent on the point the order is not
thereby nullified and the court retains jurisdiction to hear the application.86
Form and contents of award

38.—(1) The award shall be made in writing and shall be signed:
(a) in the case of a single arbitrator, by the arbitrator himself; or
(b) in the case of 2 or more arbitrators, by all the arbitrators or the majority
of the arbitrators provided that the reason for any omitted signature of any
arbitrator is stated.
(2) The award shall state the reasons upon which it is based, unless the parties
have agreed that no grounds are to be stated or the award is an award on agreed
terms under section 37.
(3) The date of the award and place of arbitration shall be stated in the award.
(4) The award shall be deemed to have been made at the place of arbitration.
85 Cf LRRD No. 3/2001, para. 2.27.1.

Pte Ltd [1996] 1 SLR 34.
223
(5) After the award is made, a copy of the award signed by the arbitrators in
accordance with subsection (1) shall be delivered to each party.
NOTES
Section 38 closely follows Model Law, art. 31: see the Notes to that provision.
Reasons were not previously required under the domestic code.
Costs of arbitration
39.—(1) Any costs directed by an award to be paid shall, unless the award other-
wise directs, be taxed by the Registrar of the Supreme Court within the meaning of
the Supreme Court of Judicature Act (Cap. 322).
(2) Subject to subsection (3), any provision in an arbitration agreement to the
effect that the parties or any party shall in any event pay their or his own costs of the
reference or award or any part thereof shall be void; and this Act shall, in the case of
an arbitration agreement containing any such provision, have effect as if there were
no such provision.
(3) Subsection (2) shall not apply where a provision in an arbitration agreement
to the effect that the parties or any party shall in any event pay their or his own costs
is part of an agreement to submit to arbitration a dispute which has arisen before
the making of such agreement.
(4) If no provision is made by an award with respect to the costs of the reference,
any party to the reference may, within 14 days of the delivery of the award or such
further time as the arbitral tribunal may allow, apply to the arbitral tribunal for an
order directing by and to whom such costs shall be paid.
(5) The arbitral tribunal shall, after giving the parties a reasonable opportunity
to be heard, amend its award by adding thereto such directions as it thinks fit with
respect to the payment of the costs of the reference.
NOTES
Section 39(1) replicates IAA, s. 21, which provides that the arbitrators may decide
to tax the costs of the parties (the costs of the reference) and of the arbitration
(the costs of the award), failing which they are to be taxed by the Registrar of the
Supreme Court.87 Where the award fails to make any reference to costs, any party
may under s. 39(2) apply88 to the arbitrators within 14 days for a costs order, and
under s. 39(3) the arbitrators must amend their award accordingly. The award of
costs is one for the discretion of the arbitrators.89
Section 39(2)–(3) negative any pre-dispute agreement between the parties allo-
cating costs between them by requiring one or more of the parties to pay all or part
of their own costs. The purpose of the section is to prevent the situation in which
a party who wishes to pursue his claim in arbitration finds that he is unable to do
so because whatever the result, he has agreed to bear some or all of his own costs.
87 Under IAA the taxing authority is the Registrar of SIAC.

88 LRRD, No. 3/2001, para. 2.29.2.
89 LRRD, No. 3/2001, para. 2.29.1.
224
arbitration act
These provisions were at one time common in insurance policies. Although clauses
of this type have necessarily fallen into disuse, the provision is there in case such
clauses re-emerge. The prohibition is concerned only with agreement as to the ulti-
mate liability for costs: an agreement that the parties are to pay the fees of the arbi-
trators equally does not contravene s. 39(2), as such an agreement is concerned only
with the act of payment of fees rather than the manner in which liability for them
is ultimately to be allocated between the parties.90 Section 39(3) does, however,
permit an agreement on the allocations of costs to be made where the decision to
go to arbitration is taken after the dispute has arisen, as it is to be assumed that in
such a case there can be no pressure or obligation to arbitrate and the costs agree-
ment can be at arm’s length.91 It has been suggested that the prohibition in s. 39(2)
should be revisited.92
Fees of arbitrator
40.—(1) The parties are jointly and severally liable to pay to the arbitrators such
reasonable fees and expenses as are appropriate in the circumstances.
(2) Unless the fees of the arbitral tribunal have been fixed by written agreement or
such agreement has provided for determination of the fees by a person or institution
agreed to by the parties, any party to the arbitration may require that such fees be
taxed by the Registrar of the Supreme Court within the meaning of the Supreme
Court of Judicature Act (Cap. 322).
NOTES
Arbitrators are entitled to be paid, by way of fees and expenses, the amount (or
on the basis) agreed by them with the parties: s. 40(2). The section does not refer
expressly to fees as determined by an arbitral body, but it must be assumed that
acceptance of the terms of such a body amounts to an agreement to pay fees and
expenses in accordance with those terms.93
Any agreement with the arbitrator under s. 40 need not be made with both
parties. If one party alone accepts the arbitrator’s terms and conditions, that party
must remain liable contractually regardless as to the liability of the other party.94
It should be noted that s. 40(2) is not at all concerned with the issue as to where
the burden of the costs of the arbitration should lie as between the parties. The
allocation of any agreed sums between the parties is a matter for the award as to
costs.
90 Carter v. Simpson Associates (Architects) Ltd [2004] 2 Lloyd’s Rep 512. Such an agreement ousts
the principle in AA, s. 40: see below.
91 See Virdee v. Virdi [2003] EWCA Civ 41, in which the trial judge ruled that the parties had
entered into a post-dispute agreement each to bear the costs of their legal representation. The Court of
Appeal disagreed, holding that the effect of the agreement was to exclude legal representation entirely so
that no question of costs arose.
92 LRRD, No. 3/2001, para. 2.29.3.
93 This was so held in Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co [2000] 2
Lloyd’s Rep 83, a rare case in which the expenses (though not the fees) of the arbitrators were reduced
on an application under the equivalent of s. 40(2).
94 Linnett v. Halliwells LLP [2009] EWHC 319 (TCC).
225
In the absence of any agreement on amount of the arbitrators’ fees and expenses,
s. 40(1) provides that the parties are liable to pay the arbitrators “such reasonable
fees and expenses (if any) as are appropriate in the circumstances”. Section 40(1)
will apply to any determination of fees in the award itself, and to any quantum meruit
claim where the proceedings do not lead to an award by reason of early settlement or
other termination of the proceedings by the parties. It is unclear whether s. 40(1) is
impliedly subject to any written agreement between the parties and the arbitrators.
It is suggested that the section can be interpreted as providing that regardless of any
agreement, the parties are jointly and severally liable for the arbitrators’ reasonable
fees and expenses, though any party who has contractually obligated itself to pay
what may be regarded as excessive or unreasonable fees (e.g., based on an unreason-
ably high hourly rate) will be liable in contract to pay to the arbitrators (or to its
appointed member of the tribunal if, e.g., a three-arbitrator panel is appointed) such
excess fees. However, in order to protect the position whereby one party agrees an
unreasonably high level of fees and expenses with its appointed arbitrator, the other
party’s liability is to pay only the arbitrator’s reasonable fees and expenses, but not
the surplus sum.
Other arrangements on this matter may legitimately be made, e.g., that the parties
are each to pay one half of the fees.95 Any agreement as to how the arbitrators are
to be paid is necessarily without prejudice to the rights of the parties between them-
selves. Thus, if the parties have agreed that the fees are to be distributed between
them in a particular way (permitted under s. 39(3) provided that the agreement is
made after the dispute has arisen), or if the allocation of the costs of the arbitration
has been included in the award and the party making payment to the arbitrators is
not liable for the full amount as between the parties, that party may make a claim
against the other for reimbursement of any sums paid by him in excess of the
agreement or award, as the case may be.
Section 40(2) addresses the difficult question as to how the reasonableness of
the arbitrators’ fees is to be determined in the absence of any express agreement.
Any party may apply to the court for an order taxing the amount of fees on such
basis as the court may direct. This power is available whether or not the arbitrators
have asserted their lien over the award under AA, s. 41, and whether or not the fees
have been paid in order to secure the release of the award. The result is, therefore,
a general power in the court to determine the arbitrators’ fees and expenses where
a party objects to the determination by the arbitrators themselves.96 It would seem
that the court’s power of taxation may be exercised even after fees and expenses
have been paid to the arbitrators, as where they have been paid in advance of a
hearing which is subsequently truncated. That does not of course imply that any
repayment will be ordered in such a case.
95 Carter v. Simpson Associates (Architects) Ltd [2004] 2 Lloyd’s Rep 512.
96 See Agrimex Ltd v. Tradigrain SA [2003] 2 Lloyd’s Rep 537, where there was a successful chal-
lenge to the level of fees charged by the arbitrators for their use of a legally-qualified draftsman employed
to prepare the award.
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arbitration act
Power to withhold award in case of non-payment

41.—(1) The arbitral tribunal may refuse to deliver an award to the parties if the
parties have not made full payment of the fees and expenses of the arbitrators.
(2) Where subsection (1) applies, a party to the arbitral proceedings may, upon
notice to the other parties and the arbitral tribunal, apply to the Court, which may
order that:
(a) the arbitral tribunal shall deliver the award upon payment into Court by the
applicant of the fees and expenses demanded, or such lesser amount as the
Court may specify;
(b) the amount of the fees and expenses demanded shall be taxed by the Registrar
of the Supreme Court; and
(c) out of the money paid into Court, the arbitral tribunal shall be paid such
fees and expenses as may be found to be properly payable and the balance
of such money (if any) shall be paid out to the applicant.
(3) A taxation of fees under this section shall be reviewed in the same manner as
a taxation of costs.
(4) The arbitrator shall be entitled to appear and be heard on any taxation or
review of taxation under this section.
(5) For the purpose of this section, the amount of fees and expenses properly
payable is the amount the applicant is liable to pay under section 40 or under any
agreement relating to the payment of fees and expenses of the arbitrators.
(6) No application to the Court may be made unless the Court is satisfied that the
applicant has first exhausted any available arbitral process for appeal or review of the
amount of the fees or expenses demanded by the arbitrators.
(7) This section shall apply to any arbitral or other institution or person vested
with powers by the parties in relation to the delivery of the award by the tribunal
and any reference to the fees and expenses of the arbitrators shall be construed as
including the fees and expenses of that institution or person.
Court under this section.
NOTES
This section is modelled on AA 1996 (Eng), s. 56. Section 41(1) codifies the
common law right of arbitrators to retain the award, by way of lien, as security for
payment of outstanding fees and expenses.97 This provision takes priority over the
normal duty of the arbitrators to release copies of the award to the parties once it has
been made. The arbitrator is free to waive the lien if he so wishes.98
Section 41(2) deals with the situation in which the arbitrators have exercised their
right of lien under s. 41(1) and the party seeking the release of the award wishes to
contest the level of fees or expenses. This extends both to the arbitrators’ fees and
expenses and those of any arbitral institution: s. 41(7). In such a case, an application
may be made to the court, following which the award is to be released on condition
97 R v. South Devon Railway Co (1850) 15 QB 1043.

98 Humphrey v. Dua Contractors & Co Ltd [1997] 3 HKC 368.
227
that the fees or expenses demanded are paid into court. The court must direct a
review and adjustment of the fees or expenses in the usual way, in accordance with
s. 41(2)(b) and (3), and depending upon the outcome order payment of such fees as
it regards as reasonable out of the money paid into court. The arbitrators themselves
have, under s. 41(4), a right to be heard. Any agreement as to the sum payable to
the arbitrators is, however, to be honoured, so that AA, s. 40 overrides any taxation:
this is the effect of s. 41(5). The effect, therefore is that s. 41(2) is a default provision
preventing overcharging by arbitrators where there has been no previous agreement.
Section 41 does not protect the applicant where the arbitrators have been willing
to release the award prior to payment, relying on action to enforce their right to fees
rather than the statutory lien—nevertheless, AA, s. 40(2) permits an application to
the court for the arbitrators’ fees and expenses to be considered and adjusted even
though the award has been released without any insistence on payment. In the same
way, s. 41 can be used only where the party seeking release of the award refuses to
pay—once payment is made, the right to challenge under s. 41 is lost, although an
independent right to apply to the court for the arbitrators’ fees and expenses to be
considered and adjusted under s. 40 can be pressed into use.
Section 41(7) precludes any application to the court if there is some other agreed
method for assessing the arbitrators’ fees and expenses: although this might be
thought to be where the arbitration has taken place under the auspices of an arbi-
tral institution, none of the main bodies has any formal process for reviewing the
tribunal’s fees.
Section 41(8) precludes an appeal from any decision of the court under s. 53(2)
without the permission of the court. The “court” means the trial judge and not the
Court of Appeal.99
An application under s. 41(2) must be made to a judge or registrar: RC, Ord. 69,
such terms as may be ordered by the court: RC, Ord. 69, r. 3(1).
Court may charge property with payment of solicitor’s costs in arbitration

42.—Section 117 of the Legal Profession Act (Cap. 161) (which empowers a
Court in which a solicitor has been employed in any proceeding to charge property
recovered or preserved in the proceeding with the payment of his costs) shall apply
as if an arbitration were a proceeding in the Court, and the Court may make decla-
rations and orders accordingly.
NOTES
Section 117 of the Legal Profession Act 1981 empowers a court to declare that a
solicitor (engaged in legal proceedings before it) is entitled to a charge on property
99 Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388; Athletic
Union of Constantinople v. National Basketball Association [2002] 1 Lloyd’s Rep 305; Virdee v. Virdi [2003]
EWCA Civ 41.
228
arbitration act
recovered or preserved in the proceedings, by way of security for his taxed costs.
This section extends that power to arbitration proceedings.
Correction or interpretation of award and additional award

43.—(1) A party may, within 30 days of the receipt of the award, unless another
period of time has been agreed upon by the parties:
(a) upon notice to the other parties, request the arbitral tribunal to correct in
the award any error in computation, any clerical or typographical error, or
other error of similar nature; and
(b) upon notice to the other parties, request the arbitral tribunal to give an
interpretation of a specific point or part of the award, if such request is also
agreed to by the other parties.
(2) If the arbitral tribunal considers the request in subsection (1) to be justi-
fied, the tribunal shall make such correction or give such interpretation within 30
days of the receipt of the request and such interpretation shall form part of the
award.
(3) The arbitral tribunal may correct any error of the type referred to in subsec-
tion (1)(a) or give an interpretation referred to in subsection (1)(b), on its own
initiative, within 30 days of the date of the award.
(4) Unless otherwise agreed by the parties, a party may, within 30 days of receipt
of the award and upon notice to the other party, request the arbitral tribunal to
make an additional award as to claims presented during the arbitral proceedings but
omitted from the award.
(5) If the arbitral tribunal considers the request in subsection (4) to be justified,
the tribunal shall make the additional award within 60 days of the receipt of such
request.
(6) The arbitral tribunal may, if necessary, extend the period of time within which
it shall make a correction, interpretation or an additional award under this section.
(7) Section 38 shall apply to an award in respect of which a correction or interpre-
tation has been made under this section and to an additional award.
NOTES
Law, art. 33(1). Section 43(3) corresponds to Model Law, art. 33(2) with the modi-
fication that the own-initiative power of the arbitrators extends under s. 43(3) to a
point of interpretation under s. 43(1)(b). Section 43(4)–(5) corresponds to Model
Law, art. 33(3). Section 43(6) corresponds to Model Law, art. 33(4). Section 43(7)
corresponds to Model Law, art. 33(5). An additional award made in purported reli-
ance on s 43, but which is in relation to a matter not raised in the original arbitration
and thus outside the scope of s 43, can be set aside under AA, s 48(1)(a)(v) as in
breach of the parties’ agreement.100
229
Effect of award
44.—(1) An award made by the arbitral tribunal pursuant to an arbitration agree-
ment shall be final and binding on the parties and on any person claiming through
or under them and may be relied upon by any of the parties by way of defence, set-
off or otherwise in any proceedings in any court of competent jurisdiction.
(2) Except as provided in section 43, upon an award being made, including an
award made in accordance with section 33, the arbitral tribunal shall not vary,
amend, correct, review, add to or revoke the award.
(3) For the purposes of subsection (2), an award is made when it has been signed
and delivered in accordance with section 38.
(4) This section shall not affect the right of a person to challenge the award by any
available arbitral process of appeal or review or in accordance with the provisions
of this Act.
NOTES
This section corresponds to IAA, s. 19B: see the Notes to that section.
PART IX—POWERS OF COURT IN RELATION TO AWARD
Determination of preliminary point of law

45.—(1) Unless otherwise agreed by the parties, the Court may, on the applica-
tion of a party to the arbitral proceedings who has given notice to the other parties,
determine any question of law arising in the course of the proceedings which the
Court is satisfied substantially affects the rights of one or more of the parties.
(2) The Court shall not consider an application under this section unless:
(a) it is made with the agreement of all parties to the proceedings; or
(b) it is made with the permission of the arbitral tribunal and the Court is
satisfied that
(i) the determination of the question is likely to produce substantial
savings in costs; and
(ii) the application is made without delay.
(3) The application shall identify the question of law to be determined and,
except where made with the agreement of all parties to the proceedings, shall state
the grounds on which it is said that the question should be decided by the Court.
(4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the
arbitral proceedings and make an award while an application to the Court under
this section is pending.
(5) Except with the leave of the Court, no appeal shall lie from a decision of the
Court on whether the conditions in subsection (2) are met.
(6) The decision of the Court on a question of law shall be a judgment of the
Court for the purposes of an appeal to the Court of Appeal.
(7) The Court may give leave to appeal against the decision of the Court in
230
arbitration act
s ubsection (6) only if the question of law before it is one of general importance, or is
one which for some other special reason should be considered by the Court of Appeal.
NOTES
This section is based on AA 1996 (Eng), s. 45. There is no equivalent in the Model
Law or IAA. The objective is to allow a point of law which arises in the course of the
arbitration to be referred to the court for its determination,101 and was thought to
be consistent with the greater degree of judicial intervention permitted in a domestic
arbitration.102 The court’s power to make a preliminary ruling may be excluded by
agreement, in accordance with s. 45(1).103
Section 45(1) sets out the basic right of a party to apply to the court for a prelimi-
nary determination. The use of the word “may” means that the court has a discre-
tion whether or not to hear an application, and the English authorities indicate that
it will be exercised sparingly even if the parties have agreed that there should be a
reference.104 The point of law must arise in the course of the proceedings. In LW
Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd105 it was held that once the
tribunal has issued a final award and become functus officio, s 45 no longer has any
application and it is not possible for there to be a challenge under s 45 to the refusal
of the tribunal to make an additional award.
Under s. 45(2), the application must be consensual, in that it must be with
the approval of the arbitrators or with the written consent of the other parties to
the arbitration. Although AA is silent on the matter, it may be thought that the
term “question of law” is confined to issues of the law of Singapore, both as a
matter of principle and also for the narrower reason that proof of foreign law is a
matter of fact. Procedural matters cannot be the subject of preliminary rulings.106
The right of the parties to seek a preliminary ruling under s. 45 is confined to the
case in which the place of the arbitration is Singapore.
For the court to have jurisdiction to hear an application under s. 45(1), it must
be satisfied that the question of law raised “substantially affects the rights of one or
more of the parties”.
There is a distinction drawn in s. 45(2) between applications with the consent of
all parties (s. 45(2)(a)), and applications with the consent of the arbitrators (s. 45(2)
(b), where, presumably, one party objects). In the latter case the conditions set out
in s. 45(2) have to be satisfied in order for the court to have jurisdiction to deal with
101 AA 1996 (Eng), s. 32 contains a similar provision in respect of jurisdictional issues, but this has
not been adopted by AA.
102 LRRD No. 3/2001, para. 2.34.
103 AA 1996 (Eng), s. 45 goes on to state that an agreement between the parties that the award is to
be unreasoned also excludes the jurisdiction of the court, but that provision has not been enacted into
the Singapore legislation. This omission is somewhat curious, given that an agreement for an unreasoned
award operates to exclude judicial review under AA, s. 49.
104 Babanaft International Co SA v. Avant Petroleum Inc, The Oltenia [1982] 3 All ER 244; Taylor
Woodrow Holdings Ltd v. Barnes & Elliott Ltd [2006] BLR 377.
105 [2013] SGHC 264.
106 Unistress Building Construction Ltd v. Humphrey’s Estate (Forrestdale Ltd [1991] 1 HKC 519. But
see How Engineering Services Ltd v. Lindner Ceilings Floors Partitions plc [1996] ADRLN 2 and Attorney
General for the Falkland Islands v. Gordon Forbes Construction (Falklands) Ltd (No. 2), 2003, unreported,
where apparently procedural issues were held to fall within this wording.
231
the issue. In addition, an application under s. 45(2)(b) must satisfy the procedural
requirements in s. 43(3). First, under s. 45(2)(b)(i) the savings in costs must be
“likely”.107 The threshold for applications has thus been raised. Secondly, s. 45(2)
(b)(ii) requires that the application has been made without delay.
In the requirement of the permission of the court itself for an appeal against its
decision whether or not to entertain an application, in s. 45(5), the “court” means
the trial judge and not the Court of Appeal.108
Section 45(6) deems the court’s decision on the point of law referred to it to be
an enforceable judgment, and s. 45(7) goes on to deal with the possibility of an
appeal on the substantive issue. Such an appeal is available where the court itself
gives permission109 in circumstances that it is satisfied that the point is one either
of general importance or which should for some other special reason be considered
by the Court of Appeal.110
Section 45(4) states that the arbitrators are free (subject to contrary agreement by
the parties) to continue the proceedings and, if appropriate, to proceed to an award,
pending the outcome of the application under s. 45.
Applications under s. 45 are subject to the procedural requirements in AA, s. 50.
Certain of those requirements appear not to be relevant to s. 45, e.g., that appeal
procedures within the arbitration must be exhausted and that the application must
be brought within 28 days of the award. Further, the court’s power to order addi-
tional reasons is inappropriate. The only relevant provision appears to be that in
AA, s. 50(6)–(7), namely the power of the court to order security for the costs of
the hearing.
An application to the judge under s. 45 must be made by originating summons: RC,
Ord. 69, r. 2(1). Notice is to be given to the other parties as required by s. 45(1) by way
of service of the originating process: RC, Ord. 69, r. 11. It must be served within 14
days after the agreement of all the parties to the arbitral proceedings or the permission
of the arbitral tribunal has been obtained as the case may be: RC, Ord. 69, r. 4(1). Any
agreement or permission must be in writing (RC, Ord. 69, r. 4(2). If the application
is made only with the permission of the arbitrators, the affidavits filed by the parties
must set out any evidence relied on by the parties in support of their contention that
the court should, or should not, allow the application: RC, Ord. 69, r. 4(3).
Enforcement of award
46.—(1) An award made by the arbitral tribunal pursuant to an arbitration agree-
ment may, with leave of the Court, be enforced in the same manner as a judgment
or order of the Court to the same effect.
107 Under the 1979 Act it was enough that savings in costs “might” have resulted from the applica-
tion: The Vasso [1983] 3 All ER 211.
108 Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388;
Athletic Union of Constantinople v. National Basketball Association [2002] 1 Lloyd’s Rep 305; Virdee v. Virdi
[2003] EWCA Civ 41.
109 See DAC Supplementary Report, para. 27, emphasising that there is no appeal to the Court of
Appeal against a refusal of leave to appeal.
110 Leave will be given in exceptional circumstances only, and in particular where the resolution of
the issue would resolve the dispute: The Oltenia [1982] 3 All ER 244.
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arbitration act
(2) Where leave of the Court is so granted, judgment may be entered in the terms
of the award.
(3) Notwithstanding section 3, subsection (1) shall apply to an award irrespective
of whether the place of arbitration is Singapore or elsewhere.
NOTES
This section reproduces IAA, s. 19.
Any application must be made to a judge or registrar: RC, Ord. 69, r. 3(1). If
the action is pending, the application is to be made by summons in the action, and
in other cases it is to be made by originating summons: RC, Ord. 69, r. 3(2). The
application can be made ex parte on such terms as may be ordered by the court,
whether or not the matter is one of urgency: RC, Ord. 69, r. 3(3). The further
procedural requirements for an application for permission to enforce the award
are set out in RC, Ord. 69, r. 14. An application must be supported by an affidavit
exhibiting the arbitration agreement or any record of the content of the arbitration
agreement and the original award or, in either case, a copy thereof, stating the name
and the usual or last known place of residence or business of the applicant and
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. The order is to be drawn up
by the applicant and must be served on the respondent by delivering a copy to him
personally or by sending a copy to him at his usual or last known place of residence
or business or in such other manner as the court may direct. Service outside the
jurisdiction is permissible without leave, and if it is served abroad then the respond-
ent may apply within 14 days (or such longer period as the court may fix) to set
aside the order. The order must state that the defendant has 14 days to apply to set
it aside (RC, Ord. 69, r. 14(5)), but if the order is silent on the point the order is not
thereby nullified and the court retains jurisdiction to hear the application.111
No judicial review of award

47.—The Court shall not have jurisdiction to confirm, vary, set aside or remit an
award on an arbitration agreement except where so provided in this Act.
NOTES
Section 47 corresponds to Model Law, art. 34(1). It has been held to preclude the
grant of a declaration in respect of the invalidity of an additional award, the only
remedy being an application to set the award aside under s 48.112 The only sub-
stantial difference between the scheme for international arbitrations and the scheme
for domestic arbitrations is that an appeal on a point of law is permissible under the
latter regime.
Pte Ltd [1996] 1 SLR 34.
233
Court may set aside award

48.—(1) An award may be set aside by the Court:
(a) if the party who applies to the Court to set aside the award proves to the
satisfaction of the Court that
(i) a party to the arbitration agreement was under some incapacity;
(ii) the arbitration agreement is not valid under the law to which the parties
have subjected it, or failing any indication thereon, underthe laws of
Singapore;
(iii) the party making the application was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case;
(iv) the award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration, or contains deci-
sions on matters beyond the scope of the submission to arbitration,
except that, if the decisions on matters submitted to arbitration can
be separated from those not so submitted, only that part of the award
which contains decisions on matters not submitted to arbitration may
be set aside;
(v) the composition of the arbitral tribunal or the arbitral procedure
is not in accordance with the agreement of the parties, unless such
agreement is contrary to any provisions of this Act from which the
parties cannot derogate, or, in the absence of such agreement, is
contrary to the provisions of this Act;
(vi) the making of the award was induced or affected by fraud or
corruption;
(vii) a breach of the rules of natural justice occurred in connection with
the making of the award by which the rights of any party have been
prejudiced; or
(b) if the Court finds that
(i) the subject-matter of the dispute is not capable of settlement by arbi-
tration under this Act; or
(ii) the award is contrary to public policy.
(2) An application for setting aside an award may not be made after the expiry of
3 months from the date on which the party making the application had received the
award, or if a request has been made under section 43, from the date on which that
request had been disposed of by the arbitral tribunal.
(3) When a party applies to the Court to set aside an award under this section, the
Court may, where appropriate and so requested by a party, suspend the proceedings
for setting aside an award, for such period of time as it may determine, to allow the
arbitral tribunal to resume the arbitral proceedings or take such other action as may
eliminate the grounds for setting aside an award.
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arbitration act
NOTES
Section 48 reproduces the combined effect of IAA, s. 24, and Model Law, art. 34.113
See the Notes to those provisions. The grounds relate to jurisdiction, procedure and
public policy. It was said of the natural justice ground, s. 48(1)(a)(vii) in Soh Beng
Tee & Co Pte Ltd v. Fairmount Development Pte Ltd114 that the provisions had been
enacted to reflect international practice and the same approach should be employed
in the interpretation of the two provisions.
As far as procedure is concerned, s. 48 is to be read with AA, s. 50. This provides
that: no appeal can be brought unless internal mechanisms have been exhausted,
including any possible application to the arbitrators under the slip rule in AA, s. 43;
the appeal must be brought within 28 days of the date when the award was made or
the applicant was notified of the outcome of any internal appeal process; the court
may require the arbitrators to state additional reasons if the reasons are inadequate
to permit the appeal to be considered in detail; the court may make an order as to
additional costs of the arbitration where additional reasons are ordered; the court
may require the applicant to provide security for costs; and the court may order that
any money payable under the award is paid into court or otherwise secured.
An application to the judge must be made by originating summons: RC, Ord.
69, r. 2(1). The originating summons must be supported by an affidavit stating the
grounds on which it is contended that the award should be set aside: RC, Ord. 69,
r. 5(1). Any application to amend the grounds upon which the application is made
is governed by the general provisions of RC, Ord. 20, so that the usual three-month
limitation period will preclude an amendment which amounts to a new cause of
action.115 The supporting affidavit must have exhibited to it a copy of the arbitra-
tion agreement, the award or any other document relied on by the applicant, it
must set out any evidence relied on by the applicant and it must be served with the
originating summons: RC, Ord. 69, r.5(2). Within 14 days after being served with
the originating summons, the defendant, if he wishes to oppose the application,
must file an affidavit stating the grounds on which he opposes the application: RC,
Ord. 69, r. 5(3).
Appeal against award

49.—(1) A party to arbitration proceedings may (upon notice to the other parties
and to the arbitral tribunal) appeal to the Court on a question of law arising out of
an award made in the proceedings.
(2) Notwithstanding subsection (1), the parties may agree to exclude the juris-
diction of the Court under this section and an agreement to dispense with reasons
for the arbitral tribunal’s award shall be treated as an agreement to exclude the
jurisdiction of the Court under this section.
113 The decision was taken to follow those provisions rather than AA 1996 (Eng), s. 68, in the
interests of consistency between the two Singapore arbitration codes: LRRD No. 3/2001, para. 2.37.2.
114 [2007] 3 SLR 86.
115 ABC Co v. XYZ Co Ltd [2003] 3 SLR 546. In Re Kotjo Johanes Budisutrisno, Ex Parte International
Factors Leasing Pte Ltd [2004] 4 SLR 1, the court declined to extend the application of the reasoning in
ABC v. XYZ to insolvency cases.
235
(3) An appeal shall not be brought under this section except:

(a) with the agreement of all the other parties to the proceedings; or
(b) with the leave of the Court.
(4) The right to appeal under this section shall be subject to the restrictions in
section 50.
(5) Leave to appeal shall be given only if the Court is satisfied that:
(a) the determination of the question will substantially affect the rights of one
or more of the parties;
(b) the question is one which the arbitral tribunal was asked to determine;
(c) on the basis of the findings of fact in the award
(i) the decision of the arbitral tribunal on the question is obviously wrong;
or
(ii) the question is one of general public importance and the decision of
the arbitral tribunal is at least open to serious doubt; and
(d) despite the agreement of the parties to resolve the matter by arbitration, it
is just and proper in all the circumstances for the Court to determine the
question.
(6) An application for leave to appeal under this section shall identify the question
of law to be determined and state the grounds on which it is alleged that leave to
appeal should be granted.
Court under this section to grant or refuse leave to appeal.
(8) On an appeal under this section, the Court may by order:
(a) confirm the award;
(b) vary the award;
(c) remit the award to the arbitral tribunal, in whole or in part, for reconsidera-
tion in the light of the Court’s determination; or
(d) set aside the award in whole or in part.
(9) The Court shall not exercise its power to set aside an award, in whole or in
part, unless it is satisfied that it would be inappropriate to remit the matters in ques-
tion to the arbitral tribunal for reconsideration.
(10) The decision of the Court on an appeal under this section shall be treated
as a judgment of the Court for the purposes of an appeal to the Court of Appeal.
(11) The Court may give leave to appeal against the decision of the Court in
subsection (10) only if the question of law before it is one of general importance,
or one which for some other special reason should be considered by the Court of
Appeal.
NOTES
Criteria for permission to appeal

IAA and the Model Law do not permit an appeal against the merits of the award.
By contrast, AA does permit such appeals for non-international arbitrations, but
subject to the very restrictive conditions in s. 49. The section is closely modelled on
AA 1996 (Eng), s. 69. The decision to retain an appeal for error of law was regarded
236
arbitration act
as being “consistent with the parties’ desire to have the matter decided in accord-
ance with the law as properly understood and applied in Singapore”.116
Section 49(1) sets out the basic right of any party to apply to the court for permis-
sion to appeal against the award on a question of law. The section applies to any
award, including a partial award, but not to procedural directions even if they are
described as an award,117 although an application based on the incompleteness of a
partial award is almost doomed to fail given that the arbitrators have the opportunity
to deal with further issues in their final award.118 The alleged error of law must arise
“out of the award”,119 and it has been held that an error which became apparent in
post-award correspondence between the parties and the arbitrator falls within the
section.120 Directions given by the arbitrators are not awards and are not within
s. 49.121
Section 49(4) brings in the procedural requirements of AA, s. 50. Under AA,
s. 50(2), the applicant must exhaust any internal appeal or other arbitral procedure
before applying to the court. In the case of a commodity arbitration, for example,
any procedure involving a Board of Appeal must be conducted prior to the applica-
tion, and any ambiguity must first be resolved by an application to the arbitrators
under the slip rule in AA, s. 43.122 Section 50(3) imposes a 28-day time limit for
the application to the court, running from the date of the award or of the outcome
of any internal appeal. There is seemingly no judicial power to extend that period.
Permission may be given subject to a condition as to security for costs (AA,
s. 50(6)–(7)), the payment into court of sums due under the award (AA, s. 50(8))
and any other conditions which the court in its discretion determines to impose
(AA, s. 50(9)).
Section 49(7) provides that any appeal from the decision of the court to give
or refuse permission has to have the permission of the court: for this purpose the
“court” means the trial judge and not the Court of Appeal.123 Any application to
the judge must be made within seven days of the judge’s decision: RC, Ord. 69,
r. 8. The Court of Appeal has no jurisdiction to challenge the judge’s refusal to
give permission,124 other than in exceptional circumstances.125 Permission will be
116 LRRD No. 3/2001, para. 2.38.1.

117 Allmore Constructions Pty Ltd v. Failli [2004] VSC 60.
118 BMBF (No. 12) Ltd v. Harland and Wolff Shipbuilding and Heavy Industries Ltd [2001] 2 Lloyd’s
Rep 227.
119 Downer Construction (New Zealand) Ltd v. Silverfield Developments Ltd [2006] NZHC 486.
120 Checkpoint Ltd v. Strathclyde Pension Fund [2002] EWHC 432 (Ch); the point did not arise on
appeal, [2003] 1 EGLR 1.
121 Urban Small Space Ltd v. Burford Investment (1990) 28 EG 116. Such an issue cannot in any
event satisfy the requirement in s. 49(5)(a).
122 Gbangbola v. Smith & Sheriff Ltd [1998] 3 All ER 730.
123 Ng Chin Siau v. How Kim Chuan [2007] 4 SLR 809, applying the English authorities: Henry
Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388; Athletic Union of
Constantinople v. National Basketball Association [2002] 1 Lloyd’s Rep 305; Virdee v. Virdi [2003] EWCA
Civ 41.
124 Aden Refinery Co Ltd v. Ugland Management Co Ltd [1986] 2 Lloyd’s Rep 336; North Range
Shipping Ltd v. Seatrans Shipping Corporation, The Western Triumph [2002] 2 Lloyd’s Rep 1. See also Ng
Chin Siau v. How Kim Chuan [2007] 4 SLR 809 where a similar point was made.
125 Where the trial judge had failed to act judicially in considering whether or not permission to
appeal should be granted: see North Range Shipping Ltd v. Seatrans Shipping Corporation [2002] 2 Lloyd’s
Rep 1 and BLCT (13096) Ltd v. J Sainsbury plc [2003] EWCA Civ 884 in each of which the issue was
237
given in exceptional circumstances only,126 and it has been said in England that
permission is not to be given unless some elucidation of the statutory guidelines is
required.127 The section does not require an application for leave to seek permission
to appeal.128
Section 49(3) specifies the two situations in which an appeal can be heard by the
court: the agreement of the parties or the permission of the court.
Questions of law
In general, and at risk of over-simplification, questions concerning the scope or
meaning of a contract,129 or the meaning of an earlier arbitration award130 are
questions of law, whereas questions concerning the performance of the parties to
a contract or the application of the contract are questions of fact.131 It has been
held that factual findings made by the arbitrators which have no basis whatsoever
in the evidence amount to errors of law,132 although this approach seems to be
inconsistent with the principle that arbitrators alone are entitled to find the facts133
and has been rejected.134 The point has been left open in Singapore.135 A failure to
give reasons is not an error of law.136 The courts have deprecated attempts to dress
up factual findings137 or procedural errors138 as errors of law for the purpose of an
application to the courts. There is no definition of “question of law” in AA. In the
leading authority on the meaning of the phrase, Northern Elevator Manufacturing Sdn
the procedures to be adopted in the handling of applications for permission to appeal against the award
and permission to appeal against a substantive judgment given under the section.
126 Holland Leedon Pte Ltd (in liquidation) v. Metalform Asia Pte Ltd [2011] SGHC 32.
127 The Antaios [1984] 3 All ER 229.
128 Hong Huat Development Co (Pte) Ltd v. Hiap Hong & Co Pte Ltd [2002] 2 SLR 609.
129 Islamic Republic of Iran Shipping Lines v. The Royal Bank of Scotland, The Anna Ch [1987] 1
Lloyd’s Rep 266; Islamic Republic of Iran Shipping Lines v. Ierax Shipping Co of Panama, The Forum
Craftsman [1991] 1 Lloyd’s Rep 81; Healthcare Supply Chain (Pte) Ltd v. Roche Diagnostics Asia Pacific
Ltd [2011] 3 SLR 476.
130 Sun Life Assurance Company of Canada v. The Lincoln National Life Insurance Co [2004] EWCA
Civ 1660; Trustees of the Edmond Stern Settlement v. Levy (No. 2) [2009] EWHC 14 (TCC).
131 Moran v. Lloyd’s [1983] 1 Lloyd’s Rep 51; Marc Rich Co AG v. Beogradska Plovidba, The Avala
[1994] 2 Lloyd’s Rep 363; Cadmus Investment Co v. Amec Building Ltd [1998] ADRLJ 72.
132 Fence Gate Ltd v. NEL Construction Ltd (2001) 82 Con LR 41; Guardcliffe Properties Ltd v. City &
St James [2003] 2 EGLR 16; Newfield v. Tomlinson [2004] EWHC 3051 (TCC).
133 See s. 34(2)(f). The root case, Fence Gate, draws a distinction between insufficient evidence
(no error of law) and an absence of evidence (potentially an error of law). The problem, however, is that
there has to be a review of the award and of the evidence in order to discover which category is involved.
134 Demco Investments and Commercial SA v. SE Banken Forsakrings Holding Aktiebolaget [2005] 2
Lloyd’s Rep 250; House of Fraser Ltd v. Scottish Widows plc [2011] EWJC 2800 (Comm); Hong Kong
Institute of Education v. Aoki Corporation (No. 2) [2004] 2 HKC 397.
135 TMM Division Maritima SA de CV v. Pacific Richfield Marine Pte Ltd [2013] SGHC186; AQU v.
AQV [2015] SGHC 26.
136 Engineering Construction Pte Ltd v. Sanchoon Builders Pte Ltd [2010] SGHC 293.
137 Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep 446; Mowlem plc v. PHI Group
Ltd [2004] BLR 421; Progen Engineering Pte Ltd v. Chua Aik Kia (trading as Uni Sanitary Electrical
Construction) [2006] SGHC 159; Trans-Tasman v. Gibson [2007] NZHC 293; Nixon v. Walker [2007]
NZHC 649.
138 Petroships Pte Ltd of Singapore v. Petec Trading & Investment Corporation [2001] 2 Lloyd’s Rep 348;
Lesotho Highlands Development Authority v. Impregilo SpA [2003] 2 Lloyd’s Rep 497; Marklands Ltd v.
Virgin Retail Ltd [2004] 2 EGLR 43; General Distributors Ltd v. Melanisian Mission Trust Board [2008]
NZHC 1817; Airwork Holdings Ltd v. Auckland Regional Rescue Helicopter Trust [2006] NZHC 513.
238
arbitration act
139
Bhd v. United Engineers (Singapore) Pte Ltd (No. 2) the Court of Appeal approved
the statement made by GP Selvam PC in Ahong Construction (S) Pte Ltd v. United
Boulevard Pte Ltd140 that: “A question of law means a point of law in controversy
which has to be resolved after opposing views and arguments have been consid-
ered. It is a matter of substance the determination of which will decide the rights
between the parties. If the point of law is settled and not something novel and it is
contended that the arbitrator made an error in the application of the law there lies
no appeal against that error for there is no question of law which calls for an opinion
of the court.” There is accordingly a distinction between misapplying the correct
law141 and failing to apply the correct law.142 In the English legislation, the term is
defined as meaning domestic law so that the English courts will not seek to deal with
issues of foreign law,143 and this is the case even if the foreign law is the same as (or
treated as identical to) English law.144 It is likely that the same principle applies in
Singapore, if only because proof of foreign law is a matter of fact.
Exclusion by agreement
As indicated by s. 49(2), the right to appeal can be excluded by agreement. The
concluding words of the subsection deal with the situation in which the parties have
agreed that reasons for the award are not to be given. If reasons are excluded, but
are nevertheless given, s. 49(2) continues to prevent review of the award for error
of law. An agreement to exclude judicial review does not have to be in writing,
although if it forms a part of the arbitration clause (and there is nothing in the leg-
islation to say that it cannot be separate) then the entire clause must be in writing,
under AA, s. 4. It remains possible under AA for the arbitration clause to refer to
standard institutional rules which contain exclusion provisions. A statement that the
award is to be “final and binding” or “conclusive” does not constitute an exclusion
agreement and is merely a statement of the duties of the parties under the AA,145
although the presence of such wording shows that the parties wished to avoid litiga-
tion and on that basis may be an important consideration in determining whether
it is just and proper to give permission for appeal.146 Again, an exclusion of a right
139 [2004] 2 SLR 494, following Ahong Construction (Singapore) Pte Ltd v. United Boulevard Pte Ltd
[1994] 2 SLR 735, and applied in Permasteelisa Pacific Holdings Ltd v. Hyundai Engineering & Construction
Co Ltd [2005] 2 SLR 270, Tay Eng Chuan v. United Overseas Insurance Ltd [2009] SGHC 193 and
Prestige Marine Services Pte Ltd v. Marubeni International Petroleum (S) Pte Ltd [2011] SGHC 270.
140 [2000] 1 SLR 749, para. 7.
141 A distinction apparently not consistently recognised. See, e.g., Sklenars v. Pollock [2007] NZHC
319.
142 This restricted meaning of question of law has also been adopted in England: Benaim (UK)
Ltd v. Davies Middleton & Davies [2005] EWHC 1370 (TCC); Covington Marine Corp v. Xiamen
Shipbuilding Industry Co Ltd [2005] EWHC 291.
143 Egmatra AG v. Marco Trading Corporation [1999] 1 Lloyd’s Rep 862; Hussmann (Europe) Ltd
v. Al Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83; Sanghi Polyesters Ltd v. The International
Investor KCSC [2000] 1 Lloyd’s Rep 480; Athletic Union of Constantinople v. National Basketball Association
[2001] 1 Lloyd’s Rep 305.
144 Reliance Industries Ltd v. Enron Oil and Gas Ltd [2002] 1 Lloyd’s Rep 645.
145 Essex County Council v. Premier Recycling Ltd [2006] EWHC 3595 (TCC); Shell Egypt West
Manzala GmbH v. Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm).
146 Prestige Marine Services Pte Ltd v. Marubeni International Petroleum (S) Pte Ltd [2011] SGHC 270.
239
to apply to the court “to determine any question of law arising in the course of the
proceedings” refers only to applications for rulings on preliminary points of law,
and not to appeals against awards.147 By contrast, the ICC formulation that “the
parties “shall be deemed to have waived their right to any form of recourse” suffices
to exclude the right of appeal.148
Consensual appeals
First, the appeal may be consensual. It would seem from the unqualified wording
of s. 49(2)(a) that an agreement to appeal can be included in the arbitration clause
itself149 or made at any stage in the arbitration proceedings, and not just made
after the award has been issued.150 However, an agreement to permit an appeal
does not necessarily give any right to appeal as far as the courts are concerned, as
the remaining conditions of ss. 49 and 50 still have to be met.151 An agreement
will operate as one excluding the right of appeal if it purports to waive all rights
of appeal insofar as this is permissible,152 and it was held in Al Hadha Trading Co
v. Tradigrain SA153 that a statement that the award is to be “final, conclusive and
binding” also operates as an exclusion agreement. One type of wording which is
clearly intended to exclude any judicial review is the adoption by the parties of an
“equity” arbitration clause, whereby the arbitrators are free to disregard strict rules
of law or construction. The validity of such clauses is confirmed by AA, s. 32. In
such a case there is no point of law involved in respect of which an appeal can be
brought. It is also almost certainly the case that there can be no appeal against an
agreed award made under AA, s 37, representing a settlement between the parties,
147 Holland Leedon Pte Ltd (in liquidation) v. Metalform Asia Pte Ltd [2010] SGHC 280.
148 Daimler South East Asia Pte Ltd v. Front Row Investment Holdings (Singapore) Pte Ltd [2012]
SGHC 157.
149 Or incorporated from some other document: Arab African Energy Corporation Ltd v. Olieprodukten
Nederland BV [1983] 2 Lloyd’s Rep 419; Marine Contractors Inc v. Shell Petroleum Development Co of
Nigeria Ltd [1984] 2 Lloyd’s Rep 77.
150 Vinava Shipping Co Ltd v. Finelvet AG, The Chrysalis [1983] 1 Lloyd’s Rep 503; Vascroft
(Contractors) Ltd v. Seeboard plc (1996) 78 BLR 132; Poseidon Schiffahrt GmbH v. Nomadic Navigation
Co Ltd, The Trade Nomad [1998] 1 Lloyd’s Rep 57; Ballast Wiltshier v. Thomas Barnes & Sons, 1998,
unreported; Taylor Woodrow Civil Engineering Ltd v. Hutchinson IDH Development Ltd (1998) 75 Con LR
1; Fence Gate Ltd v. NEL Construction Ltd (2001) 82 Con LR 41. See also Royal & Sun Alliance Insurance
plc v. BAE Systems [2008] EWHC 743 (Comm), where an express contractual term permitting an appeal
was held to override the exclusion of any right of appeal under the LCIA Rules.
151 See Royal & Sun Alliance Insurance plc v. BAE Systems [2008] EWHC 743 (Comm) at [8].
152 Arab African Energy Corporation Ltd v. Olieprodukten Nederland BV [1983] 2 Lloyd’s Rep 419;
Sanghi Polyesters Ltd v. The International Investor KCSC [2000] 1 Lloyd’s Rep 480. There is a valid agree-
ment to this effect contained in the ICC Rules of Arbitration (1998 edition, art. 28.6) and the LCIA
Rules (1998 edition, art. 26.9), as these each contain an express waiver of the right of appeal.
153 [2002] 2 Lloyd’s Rep 512. It is nevertheless unclear whether the formula by which the parties
agree to treat the award as “final and binding” (found in both the UNCITRAL Rules of Arbitration (art.
32.2) and the AAA Arbitration Rules (1997 edition, art. 27.1) is sufficient to amount to an exclusion of
the right of appeal on a point of law under this section, although there is authority from New Zealand to
suggest that the inclusion of similar wording in the arbitration agreement is a matter the court is likely to
take into account in deciding whether to exercise its discretion to permit an appeal to be made: Gold and
Resource Developments (NZ) Ltd v. Doug Hood Ltd [2000] NZCA 131. In DDT Trucks of North America v.
DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213, permission would have been granted for an appeal on a
point of law notwithstanding fact that the arbitration was subject to the AAA Rules (but was refused on
other grounds).
240
arbitration act
because no reasons for the award can be given (for by definition in most cases there
will be no reasons).
Non-consensual appeals
Secondly, the appeal may be non-consensual, in which case the leave of the court is
required. The claim must, under s. 49(6), identify the question of law and state the
ground on which the claimant alleges that permission should be granted.154 Section
49(5)(a) requires that the determination of the question of law will substantially affect
the rights of the parties. This goes to the jurisdiction of the court.155 However, if an
appeal is brought under s. 49 against an arbitral award in conjunction with a challenge
under AA, s. 48, permission may presumably be refused on the basis that the rights
of the parties would not be substantially affected in the light of the s. 48 application
failing.156 This particular jurisdictional condition precedent applies only to applica-
tions for permission made without the consent of one or more of the parties. The
requirement will not be satisfied if the issue is purely hypothetical because the award
was determined by reference to other issues157 or if the disputed matter is one of
procedure only which does not affect the substantive outcome.158 The word “rights”
refers to the rights of the parties in respect of the dispute, and not to any extraneous
considerations: the applicant for permission to appeal cannot, therefore, pray in aid
considerations which have nothing to do with the dispute, e.g., its financial position.159
Section 49(5)(b) requires the point of law which has been appealed to be one
which not only was dealt with in the award, but also one which has been raised in
the proceedings. The effect of s. 49(5)(b) is to impose an estoppel on the parties
from seeking permission to appeal a point which they did not argue before the
arbitrators,160 confirmed by the wording of s 49(1) which requires the point of law
to arise out of the award. If a point of law has not been raised before the arbitrators
but they have nevertheless chosen to deal with it, s. 49(5)(b) does seemingly not—
despite its express wording—preclude a challenge under s. 49 where they have erred
in their conclusions in relation to that point of law and it has a significant impact on
the outcome.161
154 AA 1996 (Eng), s. 69(4) and CPR PD 62, para. 12.1.

155 The point of law must affect the outcome of the arbitration, and must not merely affect one
small and severable part of the award: Prestige Marine Services Pte Ltd v. Marubeni International Petroleum
(S) Pte Ltd [2011] SGHC 270; Stinnes Interoil GmbH v. Halcoussis Co, The Yanxilas [1982] 2 Lloyd’s Rep
445; President of India v. Jadranska Slobodna Plovidba [1992] 2 Lloyd’s Rep 274.
156 DDT Trucks of North America v. DDT Holdings Ltd [2007] 2 Lloyd’s Rep 213.
157 Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep 446.
158 Urban Small Space Ltd v. Burford Investment (1990) 28 EG 116.
159 CMA CGM SA v. Beteiligungs-Kommanditsgesellschaft MS “Northern Pioneer” Schiffartgesellschaft
mbH & Co, The Northern Pioneer [2003] 1 Lloyd’s Rep 212.
160 Prestige Marine Services Pte Ltd v. Marubeni International Petroleum (S) Pte Ltd [2011] SGHC
270. The provision reverses the decision in Petraco (Bermuda) Ltd v. Petromed International SA [1988]
2 Lloyd’s Rep 357, where it was held that this point went to discretion rather than jurisdiction. See,
for the position under the present legislation: CMA CGM SA v. Beteiligungs-Kommanditsgesellschaft
MS “Northern Pioneer” Schiffartgesellschaft mbH & Co, The Northern Pioneer [2003] 1 Lloyd’s Rep 212;
Durham County Council v. Darlington Borough Council [2003] EWHC 2598 (Admin); Marklands Ltd v.
Virgin Retail Ltd [2004] 2 EGLR 43.
161 Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm).
241
The grant of permission: considerations

Section 49(5)(c) appears on its face to purport to codify guidelines laid down in
The Nema,162 decided under the English Arbitration Act 1979. Those guidelines
have been consistently applied by the Singapore courts.163 However, it is clear from
the later decision of the English Court of Appeal in The Northern Pioneer164 that in
England at least the guidelines have not survived and that there is now potentially
greater scope for the grant of permission to appeal in England under AA 1996 (Eng)
than was the case under those guidelines, which have to date been embraced in
Singapore as applicable to AA, s. 50. The initial distinction to be drawn is between
a point of law of general public importance, where the test is whether the conclusion
is “open to serious doubt”, and other (one-off) cases, where the test is whether the
tribunal is “obviously wrong”.165 A point of law is of general public importance
where it raises the construction of a standard form contract or where the facts are
commonly encountered.166 By contrast, a case is “one off” if the contract is indi-
vidually negotiated, or contains unusual provisions, or has arisen for construction in
the light of unique facts.167
The principles established by The Nema hold good in most circumstances,168 so
that the mere fact that the court might have reached a different conclusion does not
render an award open to serious doubt.169 However, in The Northern Pioneer170 the
Court of Appeal held that the equivalent of AA, s. 49(5)(c)(ii) was not a straight
codification of the earlier law, and that permission to appeal could appropriately be
granted where the question of law was not covered by any previous judicial decision
162 Pioneer Shipping Ltd v. BTP Tioxide Ltd, The Nema [1981] 2 All ER 1030.
163 LRRD No. 3/2001, para. 2.38.2; Invar Realty Pte Ltd v. JDC Corporation [1989] 3 MLJ 13;
Goldenlotus Maritime Ltd v. European Chartering & Shipping Inc [1993] SGHC 25; Ahong Construction
(Singapore) Pte Ltd v. United Boulevard Pte Ltd [1994] 2 SLR 735; Jaya Offshore Pte Ltd v. World Marine
Pte Ltd [1996] SGHC 272; American Home Assurance Co v. Hong Lam Marine Pte Ltd [1999] 3 SLR
682.
164 [2003] 1 Lloyd’s Rep 212.
165 An award is not obviously wrong simply because the court might have reached a different con-
clusion, and the error must be readily apparent from the award: National Trust v. Fleming [2009] EWHC
1789 (TCC); HMV UK v. Propinvest Friar Ltd Partnership [2011] EWCA Civ 1708.
166 Hong Huat Development Co (Pte) Ltd v. Hiap Hong & Co Pte Ltd [2002] 2 SLR 609; Holland
Leedon Pte Ltd (in liquidation) v. Metalform Asia Pte Ltd [2010] SGHC 280; Trustees of the Edmond Stern
Settlement v. Levy (No. 2) [2009] EWHC 14 (TCC).
167 Jaya Offshore Pte Ltd v. World Marine Pte Ltd [1996] SGHC 272; American Home Assurance Co v.
Hong Lam Marine Pte Ltd [1999] 3 SLR 682; Hyundai Engineering & Construction Co Ltd v. Sembawang
Kimtrans (Singapore) Pte Ltd [2001] 1 SLR 739; AMEC Group Ltd v. Secretary of State for Defence [2013]
EWHC 110 (TCC); Liew Ter Kwang v. Hurry General Contractor Pte Ltd [2004] 3 SLR 59; Engineering
Construction Pte Ltd v. Sanchoon Builders Pte Ltd [2010] SGHC 293; Lee Chang Ung Chemical Industry
Corporation v. PT Dover Chemical Co [1990] 1 HKC 132; Arnhold & Co Ltd v. Yieldworth Engineers &
Suppliers Ltd [1994] 2 HKC 391; The Garden Co Ltd v. On Lee General Contractors Ltd [1995] 2 HKC 89;
Chun Wo Foundations Ltd v. BPL (HK) Private Ltd [2003] 3 HKC 165; Swire Properties Ltd v. Secretary
for Justice [2003] 3 HKC 347; Hong Kong Institute of Education v. Aoki Corporation (No. 2) [2004] 2 HKC
397; Secretary of State for Education v. Lexicon Systems Ltd [2006] NZHC 1322.
168 As the post-Act cases show. See, e.g., Egmatra AG v. Marco Trading Corporation [1999] 1
Lloyd’s Rep 862.
169 See generally Ipswich Borough Council v. Fisons plc [1990] 1 All ER 730; British Railways Board v.
Ringbest Ltd [1996] 30 EG 94.
170 [2003] 1 Lloyd’s Rep 212.
242
arbitration act
or was subject to differing opinions which had not been resolved by judicial deci-
sion. The test was summarised by Lord Phillips MR:
The guideline of Lord Diplock which has been superseded by section [49(5)(c)(ii)] was
calculated to place a particularly severe restraint on the role of the Commercial and higher
courts in resolving issues of commercial law of general public importance. This is because
the likelihood of conflicting decisions in relation to such issues, where they related to
standard clauses in widely used charterparties containing arbitration clauses, was greatly
reduced by the guideline itself. We consider that the facts of this case demonstrate that
changing circumstances can raise issues of general public importance in relation to such
clauses that are not covered by judicial decision.
One of the most difficult and recurring questions concerns the construction of
documents. In Trustees of Edmond Stern Settlement v. Levy,171 HHJ Peter Coulson
QC stated:
Questions of construction are often a matter of impression. Whilst I can see how and why
the arbitrator could have come to a different view, I am unable to say that he was obviously
wrong in reaching the conclusion he did. It seems to me that either interpretation was
available to him and, as he was bound to do, he chose one over the other. I do not consider
that he was obviously wrong in the choice he made. Furthermore, given that this is a ques-
tion of construction that had to be answered against the background of the relevant factual
material in accordance with the well-known principles in Investors Compensation Scheme v.
West Bromwich Building Society,172 it should only be in the clearest cases that a judge con-
sidering a [s. 49] application, who has not heard such evidence, should substitute his own
construction for that of the arbitrator, who has.
It is accepted that the construction of a document is a question of law (or at least a

mixed question of fact and law). Ordinarily, in non one-off cases where documents
are being construed, i.e., the “obviously wrong” test, the threshold should be high
and permission rarely granted. This is consistent with the principle that an error of
law does not arise if the tribunal, having identified the correct legal principle, goes
on to apply it incorrectly.173 Where there is a question of mixed fact and law the
test to be applied is whether the result was one which was in the range of possibili-
ties open to the arbitrator, and not whether the court would have reached the same
conclusion.174
A dissenting award may be given weight by the court in determining whether the
majority award was obviously wrong, although it is not determinative.175
171 [2007] EWHC 1187 (TCC)

172 [1998] 1 WLR 896.
173 Northern Elevator Manufacturing v. United Engineers (Singapore) [2004] 2 SLR 494, applying
Ahong Construction (Singapore) Pte Ltd v. United Boulevard Pte Ltd [2000] 1 SLR 749, approved in
Benaim v. Davies Middleton & Davies [2005] EWHC 1370 (TCC), and see also Coal Authority v.
Davidson [2008] EWHC 2180 (Comm). It is difficult to reconcile this analysis with the result in
Covington Marine Corp v. Xiamen Shipbuilding Industry Co Ltd [2005] EWHC 291, where the arbitrator’s
decision that no binding agreement had been reached, based on the construction of an exchange of
letters, was overturned.
174 The Mathew [1990] 2 Lloyd’s Rep 323; Foleys Ltd v. City and East London Family and Community
Services [1997] ADRLJ 401; London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC
1749 (TCC); Majorboom Ltd v. National House Building Council [2008] EWHC 2672 (TCC); MRI
Trading AG v. Erdenet Mining Corporation LLC [2012] EWHC 1988 (Comm).
175 F Ltd v. M Ltd [2009] 1 Lloyd’s Rep 537; AMEC Group Ltd v. Secretary of State for Defence
[2013] EWHC 110 (TCC).
243
“Just and proper”

Section 49(5)(d) adds a “just and proper” criterion. This has been described as
an overall “catch-all” provision “albeit an important one”.176 In Gold and Resource
Developments (NZ) Ltd v. Doug Hood Ltd177 the New Zealand court laid down non-
exhaustive guidelines as to how the court should exercise its discretion. Relevant
considerations (leaving aside the statutory criteria on permission to appeal) include:
how the question arose before the arbitrators; the qualifications of the arbitrators;
the importance of the dispute to the parties; the amount of money involved; and the
amount of delay involved in going through the courts. Thus, if it was clear from the
arbitration agreement that a quick resolution of disputes was required, permission
would not be given.178 If the parties had selected an experienced senior counsel as
arbitrator, permission is less likely to be given.179 The purpose of s. 49(5)(d) is to
permit the court to take into account such matters. Decided cases show that the key
consideration will be that if the parties have agreed to submit their dispute to an
expert arbitrator there is good reason not to grant permission for an appeal, given
the underlying desire of the parties for speedy resolution and finality.180 If it is the
case that the grant of permission to appeal would of itself cause serious injustice to
the successful party in the arbitration, by depriving him of the right to challenge
the award for serious irregularity under s. 68 in the event that the award is varied
under s. 69 in favour of the losing party, there may be some basis for contesting the
application for permission to appeal.181 More generally, if an application falls within
both ss. 68 and 69, the court will wherever possible deal with the matter under s. 68
so that the award can more readily be remitted to the arbitrators as opposed to being
overturned for error of law.182
Determination: remedies
Section 49(8) sets out the options open to the court following its determination
of the substantive appeal (confirm, vary, remit, set aside). By virtue of s. 49(9),
176 Per Akenhead J in Braes of Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine Business Services
Ltd [2008] 1 Lloyd’s Rep 608 at [31].
177 [2000] 3 NZLR 318. See also: Amaltal Corporation v. Maruha (NZ) Corporation Ltd [2004] NZCA
17; Airwork Holdings Ltd v. Auckland Regional Rescue Helicopter Trust [2006] NZHC 513; Chambers v.
CSR Building [2006] NZHC 85; Secretary of State for Education v. Lexicon Systems Ltd [2006] NZHC
1322; Colombo Marketing Ltd v. Palmerston North City Council [2007] NZHC 1502; Downer Construction
(New Zealand) Ltd v. Silverfield Developments Ltd [2006] NZHC 486; Todd Petroleum Mining Co Ltd v.
Energy Petroleum Holdings Ltd [2008] NZHC 143.
178 National Rumour Co SA v. Lloyd-Libra Navegacao SA [1982] 1 Lloyd’s Rep 472.
179 See the English cases on Queen’s Counsel: Keydon Estates Ltd v. Western Power Distribution
(South Wales) Ltd [2004] EWHC 996 (Ch); Braes of Doune Wind Farm (Scotland) Ltd v. Alfred McAlpine
Business Services Ltd [2008] 1 Lloyd’s Rep 608.
180 India Steamship Co Ltd v. Arab Potash Co Ltd, 1997, unreported; Reliance Industries Ltd v. Enron
Oil and Gas India Ltd [2002] 1 Lloyd’s Rep 645; Keydon Estates Ltd v. Western Power Distribution (South
Wales) Ltd [2004] EWHC 996 (Ch); Trustees of the Edmond Stern Settlement v. Levy (No. 2) [2009]
EWHC 14 (TCC).
181 Icon Navigation Corporation v. Sinochem International Petroleum (Bahamas) Co Ltd [2004] 1 All
ER (Comm) 405.
182 Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd, 2004, EWHC 2276 (Comm).
244
arbitration act
r emission rather than setting aside is the preferred remedy if the award is found to
be incorrect in law. If the court remits the award, AA, s. 51(3) empowers the court
to require the arbitrators to make a fresh award within three months of the date of
the order (or such shorter or longer period as the court may direct). Even if the court
finds that the appellant has demonstrated an error of law in the award, the court is
not required to provide a remedy, as s. 49(8) specifically uses the word “may”. The
effect is that the court can refuse relief if it takes the view that the arbitrator would
have come to the same conclusion or that the error was insignificant.183 However,
the court cannot take account of matters falling outside the scope of the appeal in
deciding which remedy should be granted: the court cannot, therefore, refuse a
remedy on the ground that the winning party in the arbitration would be prejudiced
by the overturning of the award and the loss of his ability to assert serious irregular-
ity under s. 68 in that the point of law in question should never have been admitted
in the first place. Extraneous matters are to be considered at the stage of application
for permission to appeal, under s. 49(5)(d).184
Section 49(10) states that a judgment of the court on the substantive appeal is to
be treated as any other judgment and is enforceable as such.
Under s. 49(11) any appeal to the Court of Appeal against the judge’s decision on
the merits is possible only with the permission of the judge himself, if he considers
that the relevant criteria are met. The Court of Appeal cannot give its permission,
although that court does have general jurisdiction (other than under AA) to hear an
appeal where it is alleged that the trial judge has failed to come to a proper decision
on the grant of permission.185 Any application to the judge must be made within
seven days of the judge’s decision: RC, Ord. 69, r. 8. A point of law will qualify
for permission to appeal if it is of general importance,186 or if there is some other
special reason for allowing the matter to go to the Court of Appeal, e.g., because a
point of law of wider interest is raised in respect of which consideration by a higher
tribunal would be to the public advantage187 or because a large amount of money
is at stake in the case itself.188 Permission is to be given only if there is some doubt
as to the court’s ruling.189 “The policy behind the enactment of s. 49 of the Act is
that curial intervention in the arbitral process is to be minimised. That is why there
is no appeal as of right against the arbitrator’s decision or against the decision of
the High Court on such an appeal. That is also why the first precondition specified
183 Ballast Wiltshier plc v. Thomas Barnes & Sons Ltd, 1998, unreported.
184 Icon Navigation Corporation v. Sinochem International Petroleum (Bahamas) Co Ltd [2004] 1 All
ER (Comm) 405.
185 Ng Chin Siau v. How Kim Chuan [2007] 4 SLR 809; Aden Refinery Co Ltd v. Ugland Management
Co Ltd [1986] 2 Lloyd’s Rep 336; North Range Shipping Ltd v. Seatrans Shipping Corporation, The Western
Triumph [2002] 2 Lloyd’s Rep 1.
186 See generally, Geogas SA v. Trammo Gas Ltd, The Baleares [1991] 1 Lloyd’s Rep 349 where
the Court of Appeal indicated that a certificate was appropriate in cases which would not be regarded as
“one-off” under the guidelines in The Nema.
187 Ng Chin Siau v. How Kim Chuan [2007] 2 SLR 789; Sealace Shipping Co Ltd v. Ocean Voice Ltd,
The Alecos M [1990] 1 Lloyd’s Rep 82.
188 British Gas plc v. Dollar Land Holdings plc [1992] 12 EG 141.
189 It remains to be determined what degree of uncertainty is required. In The Baleares [1991] 1
Lloyd’s Rep 349 differing views were expressed about the degree of doubt necessary to justify the giving
of leave.
245
in s. 49(11) is that the legal point at issue should be of general importance rather
than something that is only relevant to the parties or a very limited situation.”190 In
Downer Construction (New Zealand) Ltd v. Silverfield Developments Ltd191 it was said
that “(a) The appeal must raise some question of law . . . capable of bona fide and
serious argument in a case involving some interest, public or private, of sufficient
importance to outweigh the cost and delay of the further appeal; (b) upon a second
appeal, the Court of Appeal is not engaged in the general correction of error. Its
primary function is then to clarify the law and to determine whether it has been
properly construed and applied by the Court below; (c) not every alleged error
of law is of such importance either generally or to the parties as to justify further
pursuit of litigation that has been twice considered and ruled upon by a Court.”
As far as procedure is concerned, s. 49 is to be read with AA, s. 50. This provides
that: no appeal can be brought unless internal mechanisms have been exhausted,
including any possible application to the arbitrators under the slip rule in AA, s. 43;
the appeal must be brought within 28 days of the date when the award was made
or the applicant was notified of the outcome of any internal appeal process;192
the court may require the arbitrators to state additional reasons if the reasons are
inadequate to permit the appeal to be considered in detail; the court may make an
order as to additional costs of the arbitration where additional reasons are ordered;
the court may require the applicant to provide security for costs; and the court
may order that any money payable under the award is paid into court or otherwise
secured.
Any application to the judge for leave to appeal must be made by originating
summons: RC, Ord. 69, r. 2(1). Notice is to be given to the other parties and to the
arbitrators (as to which, see AA, s. 53(2)), as required by s. 49(1), by way of service
of the originating process: RC, Ord. 69, r. 11. The Rules of Court then set out
alternative procedures where the appeal is consensual under s. 49(3)(a) and when
the permission of the court is sought under s. 49(3)(b).
A consensual appeal must be made by originating summons, which must state
that that appeal is being brought with agreement, identify the award and state the
issues of law which will be raised: RC, Ord. 69, rr 2(2) and 6(1). Within 28 days
after the originating summons is filed, the applicant must serve on the respond-
ent the case (in the form of a statement in numbered paragraphs referring to the
part of the award where the error is to be found) and a core bundle of documents
(containing a copy of the award, other relevant documents and an index): RC, Ord.
69, r. 6(3), (4) and (8). Any authorities relied on must be referred to: RC, Ord.
69, r. 6(7). The applicant must also at the time of filing the originating summons
lodge $5,000 by way of security for the respondent’s costs: RC, Ord. 69, r. 6(10).
The respondent is required to serve a reply within 28 days of being served with
190 Ng Chin Siau v. How Kim Chuan [2007] 2 SLR 789, at para. 34, a dictum approved on appeal
in Ng Chin Siau v. How Kim Chuan [2007] 4 SLR 809, at para. 52.
191 [2007] NZCA 355, applying Cooper v. Symes (2001) 15 PRNZ 166.
192 The court may extend time, taking into account the length of the delay, the reasons for the
delay, the prospects of a successful appeal and any prejudice to the respondent if an extension of time is
granted: Hong Huat Development Co (Pte) Ltd v. Hiap Hong & Co Pte Ltd [2002] 2 SLR 609, applying
Pearson v. Chen Chien Wen Edwin [1991] SGCA 50.
246
arbitration act
the applicant’s case, and he must provide a statement in numbered paragraphs of
the grounds on which he contends that the award should be upheld, also referring
to any authorities to be relied upon; RC, Ord. 69, r. 6(5), (7). It is of interest to
note that it is open to the court to uphold an award on other grounds even though
it contains an error of law: that is expressly recognised by RC, Ord. 69, r. 6(6),
which requires the respondent to set out such grounds in his case. If the respondent
intends to refer to any document not in the core bundle, he must file a supplemental
indexed core bundle: RC, Ord. 69, r. 6(9). The hearing itself must take place no
earlier than three months from the date of the filing of the original summons: RC,
Ord. 69, r. 6(2).
If there is an application for permission to appeal which is not agreed by the
parties, there is in essence a two-step process, namely the application for permis-
sion to appeal and the appeal itself. The originating summons is in respect of both
matters: RC, Ord. 69, r. 7(1). The originating summons must identify the award
and state as briefly as possible the questions of law which will be raised in the appeal:
RC, Ord. 69, r. 7(2). Within 28 days, the applicant is under RC, Ord. 69, r. 7(3),
to serve on the defendant: an affidavit in support of the application setting out any
evidence relied on by the claimant for the purpose of satisfying the court that the
criteria in s. 49(5) have been met and satisfying the court that permission should
be granted (RC, Ord. 69, r. 7(4)). The application for permission to appeal is to
be heard no earlier than three months from the date of the filing of the original
summons (RC, Ord. 69, r. 7(5), applying RC, Ord. 69, r. 6(2)). The respondent,
if he wishes to contest the application must within 28 days of being served with the
originating summons and the affidavit, file and serve his own affidavit stating the
grounds on which he opposes the grant of leave and setting out any evidence relied
on by him relating to the criteria in for leave s. 49(5): RC, Ord. 69, r. 7(6). Where
leave to appeal is granted by the Court, RC, Ord. 69, r. 7(7) applies the following
automatic directions.
First, the hearing of the appeal is not to be earlier than three months from the date
of the grant of leave to appeal (RC, Ord. 69, r. 7(7)(a)).
Secondly, within 28 days after the date of the granting of leave to appeal, the
appellant must serve on the respondent the following documents (RC, Ord. 69, r.
7(7)(b)): (i) the appellant’s case, consisting of a statement in numbered paragraphs
of each ground on which it is sought to contend that the tribunal erred in law, and
referring to the paragraph or passage of the award where each alleged error is to be
found (RC, Ord. 69, r. 7(7)(c), including specific reference to any authority relied
upon (RC, Ord. 69, r. 7(7)(f)); and (ii) a core bundle of documents consisting of a
copy of the award, other documents that are relevant to any question in the appeal
or which are referred to in the Appellant’s Case, and an index of the documents
included therein (RC, Ord. 69, r. 7(7(g)).
Thirdly, within 28 days after being served with the Appellant’s Case and the core
bundle of documents, the respondent shall file and serve a Respondent’s Case,
which must contain a statement in numbered paragraphs of the grounds on which
the respondent contends that the relevant part or parts of the award should be
upheld (RC, Ord. 69, r. 7(7)(d)), including specific reference to any authority relied
upon (RC, Ord. 69, r. 7(7)(f)). If the respondent intends to refer to any document
247
in the Respondent’s Case and such document is not included in the core bundle,
the respondent must file, at the same time as he files his Case, a supplemental core
bundle which shall contain such documents and an index (RC, Ord. 69, r. 7(7)(h)).
Where the respondent contends that the relevant part or parts of the award should
be upheld on grounds not or not fully expressed in the award, those grounds should
be included in the Respondent’s Case (RC, Ord. 69, r. 7(7)(e)).
Fourthly, the appellant must, within seven days after the Court grants leave to
appeal, deposit a sum of $5,000, or such other sum as may be fixed from time to
time by the Chief Justice, by way of security for the respondent’s costs of the appeal,
in the Registry or with the Accountant-General and obtain a certificate in Form 115
(RC, Ord. 69, r. 7(7)(i)).
An appeal may be withdrawn in the form required by RC, Ord. 55D, r. 10, with
any necessary modifications (RC, Ord. 69, r. 7(7)(j)).
Procedural matters
It has been held in England that the formalities laid down by the statute and by the
Rules of Court are exhaustive, so that the applicant is not allowed to submit further
documents, in particular the pleadings or evidence used in the arbitration. It was
decided in Foleys Ltd v. City and East London Family and Community Services193 and
confirmed in HOK Sport Ltd v. Aintree Racecourse Co Ltd194 that, because the only
question is whether the arbitrators have erred in law, such material is irrelevant.
Indeed, in The Northern Pioneer195 the Court of Appeal warned against exces-
sive paperwork, and stated that any written submissions placed before the court
in support of an application for permission to appeal from findings in an arbitral
award should normally be capable of being read and digested by the judge within a
half-hour.
As far as the application for permission to appeal is concerned, the English
approach is to lay down a strong presumption that the issue will be resolved on
paper, and that leave to appeal will not be granted unless the court can conclude on
the written material alone that the award is obviously wrong or at the very least open
to serious doubt; oral hearings are exceptional only,196 although in practice there
will be an oral hearing where an appeal on procedural or jurisdictional grounds is
combined with an application for permission to appeal, as it provides a mechanism
whereby the determinative question can be considered first.197 These principles are
reflected in Singapore, the legislative intention being that there should not normally
be an oral hearing and that if lengthy argument is needed then it cannot be said that
193 [1997] ADRLJ 401. See also: Sylvia Shipping Co Ltd v. Progress Bulk Carriers Ltd [2010] 2 Lloyd’s
Rep 81; Dolphin Tankers Srl v. Westport Petroleum Inc [2011] 1 Lloyd’s Rep 550; Cottonex Anstalt v. Patriot
Spinning Mills Ltd [2013] EWHC 236 (Comm).
194 [2003] BLR 156. See also Jamacs Corporation Ltd v. Norfolk Trustee Co Ltd [2008] NZHC 1624.
195 [2003] 1 All ER (Comm) 204.
196 BLCT (13096) Ltd v. J Sainsbury plc [2003] EWCA Civ 884.
197 Bulfracht (Cyprus) Ltd v. Boneset Shipping Co Ltd, The MV Pamphilos [2002] 2 Lloyd’s Rep 681;
HOK Sport Ltd v. Aintree Racecourse Co Ltd [2003] BLR 156; Newfield v. Tomlinson [2004] EWHC 3051
(TCC); Alphapoint Shipping Ltd v. Rotem Amfert Negev Ltd, The Agios Dimitros [2005] 1 Lloyd’s Rep 23.
248
arbitration act
198
the award is open to serious doubt, let alone obviously wrong. English practice at
one time did not require reasons to be given for the dismissal of an application for
leave to appeal, although that was subsequently modified so that sufficient reasons
to show why the application was dismissed have to be provided.199 If permission
is granted, the substantive hearing is usually at a later date and before a different
judge.
Supplementary provisions to challenge appeal

50.—(1) This section shall apply to an application or appeal under section 45,
48 or 49.
(2) An application or appeal may not be brought if the applicant or appellant has
not first exhausted:
(a) any available arbitral process of appeal or review; and
(b) any available recourse under section 43 (correction or interpretation of
award and additional award).
(3) Any application or appeal shall be brought within 28 days of the date of the
award or, if there has been any arbitral process of appeal or review, of the date when
the applicant or appellant was notified of the result of that process.
(4) If on an application or appeal it appears to the Court that the award
(a) does not contain the arbitral tribunal’s reasons; or
(b) does not set out the arbitral tribunal’s reasons in sufficient detail to enable
the Court to properly consider the application or appeal,
the Court may order the arbitral tribunal to state the reasons for its award in suf-
ficient detail for that purpose.
(5) Where the Court makes an order under subsection (4), it may make such
further order as it thinks fit with respect to any additional costs of the arbitration
resulting from its order.
(6) The Court may order the applicant or appellant to provide security for the
costs of the application or appeal, and may direct that the application or appeal be
dismissed if the order is not complied with.
(7) The power to order security for costs shall not be exercised by reason only that
the applicant or appellant is
(b) a corporation or association incorporated or formed under the law of a
country outside Singapore or whose central management and control is
(8) The Court may order that any money payable under the award shall be
198 LRRD No. 3/2001, para. 106. See American Home Assurance Co v. Hong Lam Marine Pte Ltd
[1999] 3 SLR 682.
199 North Range Shipping Ltd v. Seatrans Shipping Corporation [2002] 2 Lloyd’s Rep 1, accepting
(with minor modification) the view of David Steel J in Mousaka Inc v. Golden Seagull Maritime Inc [2001]
2 Lloyd’s Rep 657 that the implementation of the European Convention on Human Rights in England
overrode the previous principle, laid down in The Nema [1984] 3 All ER 229, that no reasons at all were
to be given. The position is the same in Hong Kong: Swire Properties Ltd v. Secretary for Justice [2003] 3
HKC 347. Contrast the position in New Zealand, where the court may refuse to give reasons: Downer
Construction (NZ) Ltd v. Silverfield Developments Ltd [2006] NZHC 60.
249
brought into Court or otherwise secured pending the determination of the applica-
tion or appeal, and may direct that the application or appeal be dismissed if the
order is not complied with.
(9) The Court may grant leave to appeal subject to conditions to the same or
similar effect as an order under subsection (6) or (8) and this shall not affect the
general discretion of the Court to grant leave subject to conditions.
NOTES
Section 50, which is closely modelled on AA 1996 (Eng), s. 79, applies to appli-
cations and appeals in respect of jurisdiction, serious irregularity, public policy
and errors of law under AA, ss. 45, 48 and 49. However, as commented in the
Notes to AA, s. 45 (application for determination of preliminary point of law), the
requirements of s. 50—other than those relating to security for costs—seem to be
completely inappropriate to an application under AA, s. 45.
Section 50(2) lays down the principle that application for appeal may be made
only where any available arbitral process of appeal or review has been exhausted.200
Section 50(3) lays down a 28-day period from the date of the award or from the
date the parties are notified of the outcome of any appeal process under s. 43. A
problem might arise where the arbitrators withhold the award under AA, s. 41 as
security for payment of their fees and expenses, for by the time the award is released
the 28-day period may have expired. It is also to be noted that there may be a fine
line between an award and an interlocutory decision, and what may appear to be
the latter (e.g., by virtue of its description) may prove to be the former if it deals
with the merits of an issue and disposes of that issue.201 Where an award has been
reconsidered by the arbitrators under the slip rule in s. 43, the 28-day time limit
runs from the date on which the arbitrators have amended, or refused to amend, the
award, and not from the date of the original award.202
Section 50(4) is concerned with reasons. Clearly it is not possible for the court to
review an award if the reasons for the award are not given or are inadequate. AA,
s. 38 imposes a general obligation on the arbitrators to give reasons, enforceable by
an initial application to the arbitrators under s. 57.203 The court may still require
200 This refers to internal appeal procedures within an arbitral institution, as typically found in
shipping and commodity arbitrations: PEC v. Asia Golden Rice Co Ltd [2013] 1 Lloyd’s Rep 82; Atkins v.
Secretary of State for Transport [2013] EWHC 139 (TCC).
201 PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] SLR 597; Charles M Willie
Co (Shipping) Ltd v. Ocean Laser Shipping Ltd, The Smaro [1999] 1 Lloyd’s Rep 225; Ranko Group v.
Antarctic Maritime SA, The Robin, 1998, unreported.
202 Tay Eng Chuan v. United Overseas Insurance Ltd [2009] SGHC 193, following Blackdale Ltd v.
McLean Homes South East Ltd 2001, unreported. See also: Al Hadha Trading Co v. Tradigrain SA [2002]
2 Lloyd’s Rep 512; Surefire Systems Ltd v. Guardian ECL Ltd [2005] EWHC 1860 (Comm). R C Pillar &
Sons v. Edwards, 2001, unreported, is to the contrary, but was rejected in Blackdale and not referred to in
Al Hadha. Price v. Carter [2010] EWHC 1451 is also the contrary but the point was not there determined.
The position in Singapore is as stated in the text. Section 50(3) was considered by the New Zealand
Court of Appeal in Todd Petroleum Mining Company Limited v. Shell (Petroleum Mining) Co Ltd [2014]
NZCA 507 and Tay Eng Chuan was distinguished. Note also that in K v. S [2015] EWHC 1945 (Comm)
it was held that an application to the arbitrators for correction of the award which is unrelated to the
grounds of appeal to the court does not affect the running of time for the appeal.
203 See: Groundshire v. VHE Construction [2001] 1 Lloyd’s Rep 395; Al Hadha Trading Co v.
Tradigrain [2002] 2 Lloyd’s Rep 512; Torch Offshore LLC v. Cable Shipping Inc [2004] 2 Lloyd’s Rep
250
arbitration act
reasons, or adequate reasons where the reasons given are inadequate, for the pur-
poses of exercising its various jurisdictions under AA, ss. 48 and 49, and s. 50(4) (5)
so provides.204 The interesting feature of s. 50(4) is the court’s ability to order
reasons beyond appeal on a point of law under AA, s. 49 to applications under AA,
s. 48. At this point a serious ambiguity arises. If the parties have contracted out of
the arbitrators’ obligation to give reasons, as they are entitled to do, such an agree-
ment operates as agreement to exclude the right of the court to review an award on
point of law, by virtue of s. 49(1). It is unclear, however, whether the arbitrators may
still be required to give reasons for the purposes of an application under AA, s. 48. If
the issue is jurisdictional there may be no problem, because the court is required to
rehear the matter rather than merely review the arbitrators’ award. The issue arises
where the challenge is procedural. In Tame Shipping Ltd v. Easy Navigation Ltd, The
Easy Rider,205 it was held that the court could insist upon reasons being given for
the purpose of determining whether there had been a procedural irregularity even
though the parties had agreed that there were to be no reasons for the award itself
and that reasons were to be contained in a separate document not forming part of
the award. It must be doubtful whether the same reasoning can extend to the case
where no reasons at all were required by the parties, although in Tame Moore-Bick J
was of the view that even in that situation the arbitrators could be ordered to provide
reasons. It is nevertheless suggested, therefore, that s. 50(4) will be relevant only
where the arbitrators were obliged to give reasons in some or other form: s. 50(4)
can then be used to order better reasons from arbitrators for the purpose of an
appeal under AA, ss. 48 or 49, where the reasons given by them are inadequate to
allow the court to determine whether there has been an error of law or procedural
irregularity. Section 50(5) allows the court to make an order for costs in the arbitra-
tion given the consequences of the request for more reasons.
Section 50(6)–(7) permits the court to make an order for security for costs in the
event of an application or appeal under any of AA, ss 45, 48 or 49. The grounds
upon which the court may order security for costs generally include, most impor-
tantly, that the claimant is a company which may not be able to pay its debts. As
is the case with ordinary judicial proceedings, there is no basis for making an order
as to costs if the applicant or appellant has sufficient assets to meet the costs and
those assets are readily available to pay costs in the event that the respondent is
successful.206 The usual criteria are the strength of the claimant’s case and the risk
that the claimant may dissipate its assets.207
Section 50(8) authorises the court to order that, in the event of a challenge to an
award, any money payable under the award is to be brought into court or o therwise
446. The ability of the court to order additional reasons is not to be used as the basis for reopening the
arbitrators’ analysis of the evidence put to them: Navios International Inc v. Sangamon Transportation
Group [2012] EWHC 166 (Comm).
204 See Petroships Pte Ltd of Singapore v. Petec Trading and Investment Corporation of Vietnam [2001]
2 Lloyd’s Rep 348.
205 [2004] 2 Lloyd’s Rep 626.
206 See Azov Shipping Co v. Baltic Shipping Co (No. 2) [1999] 2 Lloyd’s Rep 39, where the appli-
cant’s assets were thought not to be readily accessible as they were located in a jurisdiction from which
they could not easily be extricated.
207 A v. B [2010] EWHC 3302 (Comm); X v. Y [2013] EWHC 1104 (Comm).
251
secured. The purpose of the provision is to help avoid the risk that, while the
appeal is pending, the ability of the losing party to honour the award is, by design
or otherwise, diminished. The power is nevertheless to be exercised sparingly and
is based on the risk of the sum being dissipated. That said, in a AA, s. 49 case the
appeal can go ahead only if there is a strong likelihood of success in the first place,
and in an application on jurisdictional grounds the applicant’s argument is that he
should never have been involved in the arbitration. The power to order security
would, therefore, in practice seem to be largely confined to application under AA,
s. 49 relating to procedural issues.208 It has been suggested that there is a threshold
requirement to the effect that security may be ordered only where the grounds of
appeal are “flimsy”,209 although it has also been said that there is no such require-
ment, that the discretion is unfettered and that the conduct of the award debtor was
a highly relevant consideration.210
Effect of order of Court upon appeal or challenge against award

51.—(1) Where the Court makes an order under section 45, 48 or 49 with respect
to an award, subsections (2), (3) and (4) shall apply.
(2) Where the award is varied by the Court, the variation shall have effect as part
of the arbitral tribunal’s award.
(3) Where the award is remitted to the arbitral tribunal, in whole or in part, for
reconsideration, the tribunal shall make a fresh award in respect of the matters
remitted within 3 months of the date of the order for remission or such longer or
shorter period as the Court may direct.
(4) Where the award is set aside or declared to be of no effect, in whole or in part,
the Court may also order that any provision that an award is a condition precedent
to the bringing of legal proceedings in respect of a matter to which the arbitration
agreement applies, shall be of no effect as regards the subject-matter of the award
or, as the case may be, the relevant part of the award.
NOTES
Section 51, which is modelled on AA 1996 (Eng), s. 71, applies to application and
appeals under AA, ss. 45, 48 and 49. Once again, it is difficult to see the relevance
of this provision to applications under AA, s. 45
Section 51(2) makes an obvious point as regards the variation of the award by
the court. Section 51(3) gives the arbitrators three months or such other period as
the court may direct to produce a new award on remission, also re-enacts earlier
legislation.
Section 51(4) allows the court to override a Scott v. Avery arbitration clause where
an award is questioned on the ground of substantive jurisdiction, serious irregularity
or error of law. Under a Scott v. Avery arbitration clause, arbitration is a condition
208 Peterson Farms v. C & M Farming Ltd [2004] 2 Lloyd’s Rep 603; Peterson Farms v. C & M
Farming Ltd (No. 2) [2004] 2 Lloyd’s Rep 614.
209 Peterson Farms v. C & M Farming Ltd [2004] 2 Lloyd’s Rep 603; A v. B [2010] EWHC 3302
(Comm).
210 Tajik Aluminium Plant v. Hydro Aluminium AS [2006] EWHC 1135 (Comm).
252
arbitration act
precedent to the bringing of judicial proceedings, and the parties may sue each other
only on the award itself. If the award is set aside, the clause prevents any further
legal proceedings: for this reason, the court has a discretion to set aside the clause
itself in order to allow the entire issue to be resolved in court by refusing a stay of its
own proceedings if judicial proceedings are commenced.
Application for leave of Court, etc.

52.—(1) An application for the leave of the Court to appeal or make an applica-
tion referred to in section 21A(1), 36(6) or 49(3)(b) or (7) shall be made in such
manner as may be prescribed in the Rules of Court.
(2) The Court shall determine an application for leave to appeal without a hearing
unless it appears to the Court that a hearing is required.
(3) For the purposes of this section
(a) an application for leave of the Court may be heard and determined by a
Judge in Chambers; and
(b) the Court of Appeal shall have the like powers and jurisdiction on the
hearing of such applications as the High Court or any Judge in Chambers
has on the hearing of such applications.
NOTES
The relevant rule is RC, Ord. 69, r. 8, which requires an application for permission
to appeal to the Court of Appeal to be made within seven days of the decision of
the court.
PART X—MISCELLANEOUS
Notice and other requirements in connection with legal proceedings

53.—(1) References in this Act to an application, appeal or other step in relation
to legal proceedings being taken upon notice to the other parties to the arbitral pro-
ceedings, or to the arbitral tribunal, are references to such notice of the originating
process as is required by the Rules of Court.
(2) Subject to any provision made by Rules of Court, a requirement to give notice
to the arbitral tribunal of legal proceedings shall be construed
(a) if there is more than one arbitrator, as a requirement to give notice to each
of them; and
(b) if the arbitral tribunal is not fully constituted, as a requirement to give
notice to any arbitrator who has been appointed.
(3) References in this Act to making an application or appeal to the Court within
a specified period are references to the issue within that period of the appropriate
originating process in accordance with the Rules of Court.
(4) Where any provision of this Act requires an application or appeal to be made
to the Court within a specified time, the Rules of Court relating to the reckoning of
periods, the extending or abridging of periods, and the consequences of not taking
253
a step within the period prescribed by the Rules, shall apply in relation to that
requirement.
(5) Provision may be made by Rules of Court amending the provisions of this
Act
(a) with respect to the time within which any application or appeal to the Court
must be made;
(b) so as to keep any provision made by this Act in relation to arbitral proceed-
ings in step with the corresponding provision of the Rules of Court applying
in relation to proceedings in the Court; or
(c) so as to keep any provision made by this Act in relation to legal proceedings
in step with the corresponding provision of the Rules of Court applying
generally in relation to proceedings in the Court.
(6) Nothing in this section shall affect the generality of the power to make Rules
of Court.
Powers of Court and Registrar

54.—Provision may be made by Rules of Court for conferring on the Registrar
of the Supreme Court or other officer of the Court all or any of the jurisdiction
conferred by this Act on the Court.
Rules of Court
55.—The Rules Committee constituted under section 80 of the Supreme Court
of Judicature Act (Cap. 322) may make Rules of Court regulating the practice and
procedure of any court in respect of any matter under this Act.
NOTES
The relevant rules are the Rules of Court, Ord. 69. The Order is set out in full in
this work and referred to at appropriate places in the annotations to the AA.
Proceedings to be heard otherwise than in open court

56.—Proceedings under this Act in any court shall, on the application of any
party to the proceedings, be heard otherwise than in open court.
NOTES
This section is modelled on IAA, s. 22: see the Notes to that section. Any applica-
tion must be made to a judge or registrar: RC, Ord. 69, r. 3(1). If the action is
pending, the application is to be made by summons in the action, and in other cases
it is to be made by originating summons: RC, Ord. 69, r. 3(2). Where the case is one
of urgency, the application can be made ex parte on such terms as may be ordered
by the court: RC, Ord. 69, r. 3(1).
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arbitration act

open court
57.—(1) This section shall apply to proceedings under this Act in any court heard
otherwise than in open court.
(2) A court hearing any proceedings to which this section applies shall, on the
application of any party to the proceedings, give directions as to whether any and, if
so, what information relating to the proceedings may be published.
(3) A court shall not give a direction under subsection (2) permitting information
to be published unless
(a) all parties to the proceedings agree that such information may be published;
or
(b) the court is satisfied that the information, if published in accordance with
such directions as it may give, would not reveal any matter, including the
identity of any party to the proceedings, that any party to the proceedings
reasonably wishes to remain confidential.
(4) Notwithstanding subsection (3), where a court gives grounds of decision for
a judgment in respect of proceedings to which this section applies and considers
that judgment to be of major legal interest, the court shall direct that reports of the
judgment may be published in law reports and professional publications but, if any
party to the proceedings reasonably wishes to conceal any matter, including the fact
that he was such a party, the court shall
(a) give directions as to the action that shall be taken to conceal that matter in
those reports; and
(b) if it considers that a report published in accordance with directions given
under paragraph (a) would be likely to reveal that matter,
direct that no report shall be published until after the end of such period, not
exceeding 10 years, as it considers appropriate.
NOTES
This section is modelled on IAA, s. 23: see the Notes to that section. Any applica-
tion must be made to a judge or registrar: RC, Ord. 69, r. 3(1). If the action is
pending, the application is to be made by summons in the action, and in other cases
it is to be made by originating summons: RC, Ord. 69, r. 3(2). Where the case is one
of urgency, the application can be made ex parte on such terms as may be ordered
by the court: RC, Ord. 69, r. 3(1).
Application to references under statutory powers

58.—This Act shall apply in relation to every arbitration under any other written
law (other than the International Arbitration Act (Cap. 143A)), as if the arbitration
were commenced pursuant to an arbitration agreement, except in so far as this Act
is inconsistent with that other written law.
255
Immunity of arbitral institutions

59.—(1) The appointing authority, or an arbitral or other institution or person
designated or requested by the parties to appoint or nominate an arbitrator, shall
not be liable for anything done or omitted in the discharge or purported discharge of
that function unless the act or omission is shown to have been in bad faith.
(2) The appointing authority, or an arbitral or other institution or person by
whom an arbitrator is appointed or nominated, shall not be liable, by reason only of
having appointed or nominated him, for anything done or omitted by the arbitrator,
his employees or agents in the discharge or purported discharge of his functions as
arbitrator.
(3) This section shall apply to an employee or agent of the appointing authority or
of an arbitral or other institution or person as it applies to the appointing authority,
institution or person himself.
NOTES
This section corresponds to IAA, s. 25A: see the Notes to that section.
Authentication of awards and arbitration agreements

59A.—(1) For the purposes of the enforcement of an award in any Convention
country, the Minister may by order appoint such persons holding office in such
arbitral institution or other organisation as the Minister may specify in the order, to
authenticate any award or arbitration agreement or to certify copies thereof.
(2) Any person appointed under subsection (1) —
(a) shall comply with any condition imposed by the Minister; and
(b) shall not, without the written consent of the parties, directly or indirectly
disclose any matter, including the identity of any party to the award or
arbitration agreement, to any third party.
(3) An award or arbitration agreement or a copy thereof duly authenticated or
certified by a person appointed under subsection (1) shall be deemed to have been
authenticated or certified by a competent authority in Singapore for the purposes of
enforcement in any Convention country.
(4) For the avoidance of doubt, nothing in this section shall —
(a) prevent any person from authenticating any award or arbitration agreement
or certifying copies thereof in any other manner or method or by any other
person, institution or organisation; or
(b) affect the right of a person to challenge or appeal against any award by any
available arbitral process of appeal or review, or in accordance with the
provisions of this Act.
(5) In this section, “Convention country” has the same meaning as in section 27(1)
of the International Arbitration Act (Cap. 143A.
NOTES
This was added by the 2010 Amendment Act, and replicates IAA, s 19C: see the
notes to that section.
256
arbitration act
Service of notices
60.—(1) The parties are free to agree on the manner of service of any notice or
other document required or authorised to be given or served in pursuance of the
arbitration agreement or for the purposes of the arbitral proceedings.
(2) If or to the extent that there is no such agreement as is referred to in subsec-
tion (1), subsections (3) and (4) shall apply.
(3) A notice or other document may be served on a person by any effective
means
(4) If a notice or other document is addressed, prepaid and delivered by post
(a) to the addressee’s usual or last known place of residence or, if he is or has
been carrying on a trade, profession or business, his usual or last known
place of business; or
(b) if the addressee is a body corporate, to the body corporate’s registered
office, it shall be treated as effectively served.
(5) This section shall not apply to the service of documents for the purposes of
legal proceedings, for which provision is made by Rules of Court.
(6) References in this Part to a notice or other document include any form of
communication in writing and references to giving or serving a notice or other
document shall be construed accordingly.
NOTES
Section 60 is modelled on AA 1996 (Eng), s. 76 and also reflects Model Law, art.
3. Section 60 is of general application, although it is of the greatest significance
in fixing the date of service and thus whether arbitration proceedings have been
commenced within the limitation period.
Section 60(1) allows the parties to agree on the method of service of any notice
or other document, defined widely in s. 60(6), other than documents relating to
judicial proceedings which are covered by the Rules of Court (s. 60(5)). There is
no restriction on electronic service. Section 60(1) provides also that the parties may
agree that documents are to be given rather than “served”, which serves to maximise
flexibility. If there is no valid or sustainable agreement on service, then there are
default rules. Those rules may be utilised only if there is no agreement on service:
where the procedure for service is laid down but not complied with, the court
cannot apply the default rules.211
Assuming that the default rules are available, s. 60(3) states that a document
may be served by any effective means. The purpose of s. 60(4) is to assist the
person seeking to serve, by laying down methods of service which are deemed
to be valid (provided that there is no agreement within s. 60(1)), although this
does not preclude the use of s. 60(3) to justify any other method which is effec-
tive. The two cases of deemed effective service are, in the case of a company its
registered office, and in any case the addressee’s last known residence or business
address.
211 Van Oord ACZ Ltd v. The Port of Mostyn, 2003, unreported.
257
Reckoning periods of time

61.—(1) The parties may agree on the method of reckoning periods of time for
the purposes of
(a) any provision agreed by them; or
(b) any provision of this Act having effect in default of such agreement.
(2) If or to the extent that the parties have not agreed on the method of reckoning
time, periods of time shall be reckoned in accordance with this section.
(3) Where the act is required to be done within a specified period after or from a
specified date, the period shall begin immediately after that date.
(4) Where an act is required to be done within or not less than a specified period
before a specified date, the period shall end immediately before that date.
(5) Where the act is required to be done, a specified number of clear days after a
specified date, at least that number of days shall intervene between the day on which
the act is done and that date.
(6) Where the period in question being a period of 7 days or less would include a
Saturday, Sunday or a public holiday, that day shall be excluded.
NOTES
This section is modelled on AA 1996 (Eng), s. 79.
Appointment of mediator
62.—(1) In any case where an agreement provides for the appointment of a
mediator by a person who is not one of the parties and that person refuses to make
the appointment or does not make the appointment within the time specified in the
agreement or, if no time is so specified, within a reasonable time of being requested
by any party to the agreement to make the appointment, the Chairman of the
Singapore Mediation Centre may, on the application of any party to the agreement,
appoint a mediator who shall have the like powers to act in the mediation proceed-
ings as if he had been appointed in accordance with the terms of the agreement.
Mediation Centre under subsection (1).
(3) Where an arbitration agreement provides for the appointment of a mediator
and further provides that the person so appointed shall act as an arbitrator in the
event of the mediation proceedings failing to produce a settlement acceptable to the
parties
(a) no objection shall be taken to the appointment of such person as an arbitra-
tor, or to his conduct of the arbitral proceedings, solely on the ground that
he had acted previously as a mediator in connection with some or all of the
matters referred to arbitration; and
(b) if such person declines to act as an arbitrator, any other person appointed as
an arbitrator shall not be required first to act as a mediator unless a contrary
intention appears in the arbitration agreement.
(4) Unless a contrary intention appears therein, an agreement which provides for
258
arbitration act
the appointment of a mediator shall be deemed to contain a provision that in the
event of the mediation proceedings failing to produce a settlement acceptable to
the parties within 4 months, or such longer period as the parties may agree to, of the
date of the appointment of the mediator or, where he is appointed by name in the
agreement, of the receipt by him of written notification of the existence of a dispute,
the mediation proceedings shall thereupon terminate.
NOTES
Section 62 is modelled on IAA, s. 16. The only significant variation is that appoint-
ing authority is the Chairman of the Singapore Mediation Centre rather than the
Chairman of SIAC.
Power of arbitrator to act as mediator

63.—(1) If all parties to any arbitral proceedings consent in writing and for so
long as no party has withdrawn his consent in writing, an arbitrator may act as a
mediator.
(2) An arbitrator acting as a mediator
(a) may communicate with the parties to the arbitral proceedings collectively or
separately; and
(b) shall treat information obtained by him from a party to the arbitral proceed-
ings as confidential, unless that party otherwise agrees or unless subsection
(3) applies.
(3) Where confidential information is obtained by an arbitrator from a party
to the arbitral proceedings during mediation proceedings and those proceedings
terminate without the parties reaching agreement in settlement of their dispute, the
arbitrator shall before resuming the arbitral proceedings disclose to all other parties
to the arbitral proceedings as much of that information as he considers material to
the arbitral proceedings.
(4) No objection shall be taken to the conduct of arbitral proceedings by a person
solely on the ground that that person had acted previously as a mediator in accord-
ance with this section.
(5) For the purposes of this section and section 62
(a) any reference to a mediator shall include a reference to any person who acts
as a conciliator;
(b) any reference to mediation proceedings shall include a reference to concili-
ation proceedings.
NOTES
This section is modelled on IAA, s. 17: see the Notes to that section.
Act to bind Government

64.—This Act shall bind the Government.
259
Transitional provisions
65.—(1) This Act shall apply to arbitration proceedings commenced on or after
1 March 2002 but the parties may in writing agree that this Act shall apply to arbi-
tration proceedings commenced before that date.
(2) Notwithstanding the repeal of the Arbitration Act (Cap. 10, 1985 Ed.), where
the arbitration proceedings were commenced before 1 March 2002, the law govern-
ing the arbitration agreement and the arbitration shall be the law which would have
applied if this Act had not been enacted.
(3) Where an arbitration agreement made or entered into before 1 March 2002
provides for the appointment of an umpire or an arbitral tribunal comprising two
arbitrators, the law to the extent that it governs the appointment, role and function
of the umpire shall be the law which would have applied if this Act had not been
enacted.
(4) For the purposes of this section, arbitration proceedings are to be taken as
having commenced on the date of the receipt by the respondent of a request for the
dispute to be referred to arbitration, or, where the parties have agreed in writing
that any other date is to be taken as the date of commencement of the arbitration
proceedings, then on that date.
NOTES
Where an arbitrator had published his award on a dispute under a contract he was
functus officio and any new arbitration commenced under the same contract would
be subject to the 2001 Act.212
212 Anwar Siraj v. Teo Hee Lai Building Construction Pte Ltd [2007] SGHC 29, [2007] 2 SLR 500
(appeal to the Court of Appeal dismissed).
260
CHAPTER 4
Other Legislation
This chapter provides a brief annotation of the most relevant provisions of the other
two important statutes with regard to arbitration, ie the State Immunity Act (Cap.
313, 2014 Rev. Ed.) and the Contracts (Rights of Third Parties) Act 1999 (Cap.
53B, 2002 Rev. Ed.). Due to the fact that both pieces of legislation are virtually
identical to their UK counterparts and given the scarcity of Singaporean case law on
these matters, reliance will be placed on English case law.
STATE IMMUNITY ACT

(Cap. 313, 2014 Rev. Ed.)
General immunity from jurisdiction

3.—(1) A State is immune from the jurisdiction of the courts of Singapore except as
provided in the following provisions of this Part.
(2) A court shall give effect to the immunity conferred by this section even though
the State does not appear in the proceedings in question.
Arbitration provisions
9.—(1) Where —
(a) a right under section 2 to enforce a term (referred to in this section as
the substantive term) is subject to a term providing for the submission of
disputes to arbitration (referred to in this section as the arbitration agree-
ment); and
(b) the arbitration agreement is an agreement in writing for the purposes of the
Arbitration Act (Cap. 10) or Part II of the International Arbitration Act
(Cap. 143A),
the third party shall be treated for the purposes of the Arbitration Act or the
International Arbitration Act, as the case may be, as a party to the arbitration agree-
ment as regards disputes between himself and the promisor relating to the enforce-
ment of the substantive term by the third party.
(2) Where —
(a) a third party has a right under section 2 to enforce a term providing for one
261
or more descriptions of dispute between the third party and the promisor
to be submitted to arbitration (referred to in this section as the arbitration
agreement);
Arbitration Act or Part II of the International Arbitration Act; and
(c) the third party does not fall to be treated under subsection (1) as a party to
the arbitration agreement,
the third party shall, if he exercises the right, be treated for the purposes of
the Arbitration Act (Cap. 10) or the International Arbitration Act (Cap. 143A), as
the case may be, as a party to the arbitration agreement in relation to the matter with
respect to which the right is exercised, and be treated as having been so immediately
before the exercise of the right.
NOTES
The State Immunity Act (SIA) enshrines in Singaporean law the international
principle of sovereign immunity and reflects the restrictive theory of the doctrine. It
came into force on 26 October 1979.
General
In accordance with s. 3, a state is immune from the jurisdiction of the courts of
Singapore which must give effect to the immunity conferred by the Act even though
the state does not appear in the proceedings to contest jurisdiction. This provision
gives rise to a presumption of immunity, subject to a number of exceptions set out
elsewhere in the legislation.1 First of all, a state is not immune in relation to pro-
ceedings in respect of which it has submitted to the jurisdiction of the Singaporean
courts (s. 4(1)), whether after the dispute giving rise to the proceedings has arisen
or by a prior written agreement (s. 4(2)). Such submission is deemed if the state has
instituted the proceedings (s. 4(3)(a)) or has intervened or taken any step in them (s.
4(3)(b))2 other than for the purpose of claiming immunity only (s. 4(4)(a)).3 Equally,
a state is not immune in respect of proceedings relating to4 a commercial transac-
1 Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No 2) [2006]

EWCA Civ 1529.
2 In Eagle Star Insurance Co Ltd. v. Yuval Insurance Co Ltd [1978] 1 Lloyd’s Rep. 357 the English
Court of Appeal held that a “step in the proceedings” is a step of a kind which evidences an unequivo-
cal election to waive immunity and allow the court to determine the claim on its merits. This test was
adopted in the context of State immunity by Nourse LJ, at p. 32, in Kuwait Airways Corporation v. Iraqi
Airways Company and Republic of Iraq [1995] 1 Lloyd’s Rep 25 and the Court of Appeal in The London
Steamship Owners’ Mutual Insurance Association Ltd v. The Kingdom of Spain, The French State, The
“Prestige” [2015] EWCA Civ 333.
3 In The London Steamship Owners’ Mutual Insurance Association Ltd v. The Kingdom of Spain, The
French State, The “Prestige” [2015] EWCA Civ 333, Moore-Bick LJ, with whom the other judges agreed,
stated at para. 50 that “the acid test by which to determine whether it has taken a step in the proceed-
ings otherwise than for the sole purpose of claiming immunity is whether it has acted in such a way as to
demonstrate that it is willing to allow the court to determine the substance of the dispute”. On the facts
of the case, it was held that an application for relief under the Arbitration Act 1996 was such a step, and
thus Spain and France were deemed to have submitted to the jurisdiction of English courts.
4 On the meaning of “relating to” within the meaning of s. 5(1), see the English Supreme Court
judgment in NML Capital Ltd v. Republic of Argentina [2011] UKSC 31.
262
other legislation
5
tion entered into (s. 5(1)(a)) or relating to an obligation arising under a contract
(whether commercial or not) which falls to be performed wholly or partly in Singapore
(s. 5(1)(b)).6 Other exceptions include proceedings in relation to contracts of employ-
ment (s. 6), personal injuries or damage to property caused by an act or omission in
Singapore (s. 7), ownership, possession and use of property in Singapore (s. 8), intel-
lectual property rights (s. 9), memberships of bodies corporate (s. 10), ships used for
commercial purposes (s. 12)7 and customs duties and certain taxes (s. 13).
Arbitration
It has been held that there is no general rule of international law whereby a state
is bound by an arbitration clause only if it has given its express consent to be so
bound.8 SIA, s. 11(1)9 expressly provides that where a state has agreed to submit
a dispute to arbitration, it is not immune as respects proceedings in the courts of
Singapore relating to that arbitration.10 Such agreement must be “in writing”. It has
been held in the context of maritime salvage that a signature of a contract contain-
ing an arbitration clause, on behalf of a party bound by that signature, will amount
to a submission to arbitration, serving to exclude state immunity.11 Furthermore,
in The Prestige12 the Court of Appeal stated obiter that a pursuit of a claim against
a P&I Club in foreign court proceedings by the governments of Spain and France
amounted to adoption by each of them of the arbitration agreement contained in the
5 “Commercial transaction” is defined in s. 5(3). It includes: (a) any contract for the supply
of goods or services; (b) any loan or other transaction for the provision of finance and any guaran-
tee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any
transaction or activity, whether of a commercial, industrial, financial, professional or other similar
character, in which a State is involved otherwise than in the exercise of sovereign authority. See Alcom
Ltd v. Republic of Colombia [1984] 1 AC 580; AIC Ltd v. The Federal Government of Nigeria [2003] EWHC
1357 (QB); AIG Capital Partners Inc v. Republic of Kazakhstan [2005] EWHC 2239 (Comm); Svenska
Petroleum Exploration AB v. Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529;
Orascom Telecom Holding SAE v. Republic of Chad [2008] EWHC 1841 (Comm); NML Capital Ltd v.
Republic of Argentina [2011] UKSC 31.
6 See The London Steamship Owners’Mutual Insurance Association Ltd v. The Kingdom of Spain, The
French State, The “Prestige” [2013] EWHC 3188 (Comm).
7 See, for instance, Tsavliris Salvage (International) Ltd v. Grain Board of Iraq [2008] EWHC 612
(Comm), where the court considered obiter whether SIA, s. 12(4)(b) is applicable if the ‘cargo was in use
or intended for use for commercial purposes’.
8 Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No 2) [2006]
EWCA Civ 1529.
9 At first instance in The London Steamship Owners’ Mutual Insurance Association Ltd v. The Kingdom
of Spain, The French State, The “Prestige” [2013] EWHC 3188 (Comm) it was argued that Spain and
France have lost their immunity by reason of either SIA, s. 11(1) or s. 5(1)(b). The latter stipulates that
a state is not immune as respects proceedings relating to an obligation of the state which by virtue of a
contract falls to be performed wholly or partly in Singapore. Burton J expressed a tentative view that in
matters relating to arbitration it is s. 11(1) alone which governs loss of immunity under SIA. In the view
of the judge, it cannot have been intended that a state could lose its immunity under s. 5 even though
the requirements of s. 11 were not met. This issue was not discussed upon appeal. The majority of the
Supreme Court in NML Capital Ltd v. Argentina [2011] UKSC 31 appeared to express a similar view
to Burton J.
10 SIA, s. 11(1) is “a provision capable of providing a short answer to the dispute as to immunity”:
Tsavliris Salvage (International) Ltd v. Grain Board of Iraq [2008] EWHC 612 (Comm).
11 Tsavliris Salvage (International) Ltd v. Grain Board of Iraq [2008] EWHC 612 (Comm).
12 The London Steamship Owners’ Mutual Insurance Association Ltd v. The Kingdom of Spain, The
French State, The “Prestige” [2015] EWCA Civ 333.
263
Club rules and satisfied the requirement of the English State Immunity Act, s 9(1)
(SIA, s 11(1)) for an agreement in writing. It should also be recalled that there is
no longer any requirement for a signature under Singaporean arbitration law for the
arbitration agreement to be valid and binding.13
The immunity conferred by the SIA covers the sovereign or other head of that state
in his public capacity, the government of that state and any department of that govern-
ment but not any “separate entity” which is distinct from the executive organs of the
state government (s. 16(1)). The phrases “government”, “department of government”
and “executive organs of government” in s. 16(1) are to be given broad meaning.14
A separate entity is immune from the jurisdiction of the courts in Singapore only if
the proceedings relate to anything done by it in the exercise of sovereign authority (s.
16(2)).15 The burden of proving that a foreign party is a separate entity rests on the
party making that assertion.16 There is a strong presumption that a separate corporate
status should be respected, and it will take exceptional circumstances to rebut it.17 In
order to determine whether an entity is distinct, it is necessary to examine all relevant
circumstances, including the entity’s constitution, functions, powers and activities and
its relationship with the state.18 The mere fact that an entity was created by the state
does not by itself cause the entity not to be a separate entity.19 An entity possessing its
own budget and accounting, with the ability to borrow and be indebted, incurring tax
and other liabilities and having “its own differences with government departments”
was held to be a separate entity within the meaning of s. 16(1).20 The fact that there
were instances where the entity’s assets were used for the state’s benefit did not justify
a conclusion that the two should be assimilated. A close supervisory function of a state
over the entity’s operation and affairs without more will not rebut the presumption.21
It has been held that a central bank of a country which under domestic legislation was
a juridical person and a financial institution of the government with status equivalent
to ministry was a separate entity, capable of holding its own property and of suing and
being sued. Therefore, the fact that the state has previously waived its immunity was
insufficient to remove the different immunity of a central bank.22
13 See, in particular, AQZ v. ARA [2015] SGHC 49. See also the Notes to IAA, s. 2A in Part II for
a comprehensive discussion of the requirement for the arbitration agreement to be “in writing”.
14 Wilhelm Finance Inc v. Ente Administrador del Astillero Rio Santiago [2009] EWHC 1074 (Comm).
15 It was held in Pocket Kings Ltd v. Safenames Ltd [2009] EWHC 2529 that the phrase “sovereign
immunity” refers to the authority of a recognised State. In the case of a separate entity such as a con-
stituent territory, the question is whether the act in respect of which immunity might be claimed was in
some sense a manifestation of the authority of the sovereign State. On the facts, it was decided that the
Commonwealth of Kentucky was not entitled to immunity under the Act because it is not itself a sover-
eign State, and it is not exercising the sovereign authority of a sovereign State. See also Bank of Credit and
Commerce International (Overseas) Ltd v. Price Waterhouse [1997] 4 All ER 108; Kuwait Airways Corpn v.
Iraqi Airways Co [1995] 3 All ER 694. See also SIA, s. 16(6).
16 Krajina v. Tass Agency [1949] 2 All ER 274.
17 La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC [2012] UKPC 27. See also
Taurus Petroleum Ltd v. State Oil Marketing Co of the Ministry of Oil, Iraq [2015] EWCA Civ 835.
18 Trendtex Trading Corp v. Central Bank of Nigeria [1977] 1 All ER 881.
19 Wilhelm Finance Inc v. Ente Administrador del Astillero Rio Santiago [2009] EWHC 1074 (Comm).
20 La Générale des Carrières et des Mines v. FG Hemisphere Associates LLC [2012] UKPC 27.
21 Taurus Petroleum Ltd v. State Oil Marketing Co of the Ministry of Oil, Iraq [2013] EWHC 3494
(Comm), approved, orbitor, on appeal at [2015] EWCA Civ 835.
22 Thai-Lao Lignite (Thailand) Co Ltd v. Lao People’s Democratic Republic [2013] EWHC 2466
(Comm). See also SIA, s. 16(4).
264
other legislation
Injunctive relief
In accordance with SIA, s. 15(2) injunctive relief, as well as order for specific per-
formance or for the recovery of land or other property, cannot be granted against a
state. Property of a state also cannot be subject to any process for the enforcement of
a judgment or arbitration award,23 provided that for the time being that property is
not in use or intended for use for commercial purposes (s. 15(4)).24 Section 15(2)
is however made expressly subject to s. 15(3) which provides that the former provi-
sion does not operate if the State concerned consented in writing to such measures.
Submission to the jurisdiction of the courts is not to be taken as consent for these
purposes. Maldives Airports Co Ltd v. GMR Malé International Airport Pte Ltd25
involved an application for injunctive relief in connection with arbitration proceed-
ings under IAA, s 12A. The Court of Appeal held that the courts of Singapore have
both jurisdiction and power to grant an injunction against a foreign state which has
agreed to arbitration. The following clause in the underlying contract was sufficient
to constitute written consent on behalf of the Maldives government within the
meaning of SIA, s. 15(3):
“To the extent that any of the Parties may in any jurisdiction claim for itself . . . immunity
from service of process, suit, jurisdiction, arbitration . . . or other legal or judicial process or
other remedy . . ., such Party hereby irrevocably and unconditionally agrees not to claim and
hereby irrevocably and unconditionally waives any such immunity to the fullest extent permitted
by the laws of such jurisdiction. [emphasis added in italics and bold italics].”26
The Court of Appeal further noted that a waiver of immunity clause, being part of
the dispute resolution mechanism adopted by the parties in the underlying contract,
is severable from the rest of the agreement and thus enforceable.27
23 In Republic of the Philippines v. Maler Foundation [2008] SGCA 14, the Court of Appeal held
that the doctrine of sovereign immunity does not extend to cases involving property in the possession or
control of a third party in respect of which the claimant state is yet to prove its ownership.
24 “Commercial purposes” means purposes of such transactions or activities as are mentioned
in SIA, s. 5(3). It appears that for property to be subject to any process for the enforcement of an
arbitral award, it would have to be used solely for commercial purposes: Alcom v. Colombia [1984]
AC 580.
25 [2013] SGCA 16.
26 [2013] SGCA 16, para. 18.
27 The doctrine of separability may not, however, operate where the underlying contract is void ab
initio in that it never itself came into existence because no offer was ever made, or, if an offer had been
made, it was never accepted.
265
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT

(Cap. 53B, 2002 Rev. Ed.)
Right of third party to enforce contractual term

2.—(1) Subject to the provisions of this Act, a person who is not a party to a con-
tract (referred to in this Act as a third party) may, in his own right, enforce a term
of the contract if —
(a) the contract expressly provides that he may; or
(b) subject to subsection (2), the term purports to confer a benefit on him.
(2) Subsection (1)(b) shall not apply if, on a proper construction of the contract,
it appears that the parties did not intend the term to be enforceable by the third
party.
(3) The third party shall be expressly identified in the contract by name, as a
member of a class or as answering a particular description but need not be in exist-
ence when the contract is entered into.
(4) This section shall not confer a right on a third party to enforce a term of a
contract otherwise than subject to and in accordance with any other relevant terms
of the contract.
(5) For the purpose of exercising his right to enforce a term of the contract, there
shall be available to the third party any remedy that would have been available to
him in an action for breach of contract if he had been a party to the contract (and
the rules relating to damages, injunctions, specific performance and other remedy
shall apply accordingly) and such remedy shall not be refused on the ground that, as
against the promisor, the third party is a volunteer.
(6) Where a term of a contract excludes or limits liability in relation to any matter,
references in this Act to the third party enforcing the term shall be construed as
references to his availing himself of the exclusion or limitation.
(7) In this Act, in relation to a term of a contract which is enforceable by a third
party —
“promisee” means the party to the contract by whom the term is enforceable
against the promisor;
“promisor” means the party to the contract against whom the term is enforceable
by the third party.
Arbitration provisions
9.—(1) Where —
(a) a right under section 2 to enforce a term (referred to in this section as the sub-
stantive term) is subject to a term providing for the submission of disputes to
arbitration (referred to in this section as the arbitration agreement); and
Arbitration Act (Cap. 10) or Part II of the International Arbitration Act
(Cap. 143A),
the third party shall be treated for the purposes of the Arbitration Act or the
266
other legislation
International Arbitration Act, as the case may be, as a party to the arbitration
agreement as regards disputes between himself and the promisor relating to the
enforcement of the substantive term by the third party.
(2) Where —
(a) a third party has a right under section 2 to enforce a term providing for one
or more descriptions of dispute between the third party and the promisor
to be submitted to arbitration (referred to in this section as the arbitration
agreement);
Arbitration Act or Part II of the International Arbitration Act; and
(c) the third party does not fall to be treated under subsection (1) as a party to
the arbitration agreement,
the third party shall, if he exercises the right, be treated for the purposes of the
Arbitration Act (Cap. 10) or the International Arbitration Act (Cap. 143A), as the
case may be, as a party to the arbitration agreement in relation to the matter with
respect to which the right is exercised, and be treated as having been so immediately
before the exercise of the right.
NOTES
In accordance with the common law doctrine of privity of contract, as a general rule
a person who is not a party to a contract will not be able to enforce it or be liable in
respect of it. The Contracts (Rights of Third Parties) Act (CRTPA) provides for an
exception to that principle.28 It applies to all contracts formed on or after 1 July 2002.
General
In brief, a third party may enforce a term of the contract if (a) the contract expressly
provides for such a right, or (b) the term purports to confer a benefit on that third
party (s. 2(1)). Point (b) does not apply if, on a proper construction of the contract,
it appears that the parties did not intend the term to be enforceable by the third
party (s. 2(2)). Furthermore, a third party attempting to avail himself of an exclu-
sion or limitation clause in a contract is to be treated for the purposes of the Act as if
he was enforcing that term (s. 2(6)). CRTPA, s. 7 contains a number of exceptions
to the right of a third party to enforce a contractual time; in particular such a right
does not exist in respect of negotiable instruments (s. 7(1)), contracts of employ-
ment (s. 7(3)) or contracts for the carriage of goods (s. 7(4)(a)). Since a common
law third party beneficiary exception to the privity rule has not yet been recognised
in Singapore, it can only be asserted through reliance on CRTPA, s. 2(1).
Arbitration
It is well established in Singapore that, generally, non-parties to an arbitration agree-
ment cannot participate in an arbitration conducted pursuant to that agreement.
28 It was recognised by Andrew Ang J in Jiang Haiying v. Tan Lim Hui [2009] SGHC 42 that the
privity rule, while strict, is not absolute.
267
CRTPA, s. 9 constitutes a notable exception,29 being concerned specifically with

the circumstances in which a third party shall be treated as a party to an arbitration
agreement contained in a contract to which the third party is not a party. It ensures
that, where appropriate, the provisions of the Arbitration Act (Cap. 10, 2002 Rev.
Ed.) or the International Arbitration Act (Cap. 143A, 2002 Rev. Ed.) apply with
respect to the relevant third parties.
In accordance with s. 9(1), a third party will be treated as a party to the arbitra-
tion agreement if the right under the term which he seeks to enforce is subject to the
arbitration clause.30 The arbitration agreement must be in writing for the purposes
of the AA or the IAA.31 The range of disputes relating to the enforcement of the
substantive term by the third party is intended to be wide and may include: issues
of validity, interpretation, existence or performance of the term; the third party’s
entitlement to enforce the term; the jurisdiction of the arbitral tribunal; or the
recognition and enforcement of an arbitration award; though it does not cover, for
example, a separate dispute in relation to a tort claim by the promisor against the
third party for damages.32 If a third party attempts to enforce a term of a contract
by an action in court, the party against whom the claim is made will be entitled to
apply for a stay of proceedings in favour of arbitration under AA, s. 6 or IAA, s. 6,
depending on which regime is applicable.
CRTPA, s. 9(2) is bound to be of rare application because for it to operate a third
party must have the right to arbitrate a certain dispute under a contract between
two parties. Therefore, it is only relevant where the contract on its true construc-
tion gives to the third party such a right. It has been held that a reference to “the
parties hereto” in an arbitration clause of a partnership deed, without any indica-
tion of intention to refer to any class wider than the four partners who were party
to the agreement, was insufficient to encompass the managers of the investment
fund established pursuant to the deed.33 A third party who has been afforded the
right to arbitrate will have a choice to apply for a stay of proceedings if an action is
brought against him in the courts of Singapore.34
29 In Jiang Haiying v. Tan Lim Hui [2009] SGHC 42 the court relied on a passage in Halsbury’s Laws
of Singapore which listed the following as situations where non-signatories may be considered a party to
the arbitration agreement: (a) incorporation of an arbitration agreement by reference; (b) an assumption
of rights or liabilities to a contract with an arbitration clause (for example assignment, n
ovation); (c)
where the agreement was entered into by an agent; (d) corporate veil-piercing on the basis of alter ego
principle; (e) by the operation of the doctrine of estoppel.
30 See, for instance, Nisshin Shipping Co Ltd v. Cleaves & Co Ltd [2003] EWHC 2602 (Comm).
31 For the discussion of the requirement for the arbitration agreement to be “in writing”, see the
Notes to IAA, s. 2A in Part II.
32 Explanatory Notes to the CRTPA 1999 (Eng), para. 34.
33 Fortress Value Recovery Fund I LLC v. Blue Skye Special Opportunities Fund LP [2013] EWCA
Civ 367.
34 CRTPA, s. 2(5) states: “For the purpose of exercising his right to enforce a term of the con-
tract, there shall be available to the third party any remedy that would have been available to him in an
action for breach of contract if he had been a party to the contract (and the rules relating to damages,
injunctions, specific performance and other remedy shall apply accordingly) and such remedy shall not
be refused on the ground that, as against the promisor, the third party is a volunteer.” Commencing
court proceedings in the face of a valid and binding arbitration agreement constitutes a breach of that
agreement.
268
other legislation
Relationship between s. 9(1) and s. 9(2)

The relationship between s. 9(1) and s. 9(2) has been the subject of a decision of
the English Court of Appeal in Fortress Value Recovery Fund I LLC v. Blue Skye
Special Opportunities Fund LP.35 In that case, third party fund managers attempted
to enforce an indemnity provision and to avail themselves of an exclusion clause
contained in a partnership deed and sought a stay of the court proceedings in favour
of arbitration, which was the dispute resolution mechanism provided for under
the contract. The court held that the right to enforce an indemnity fell within the
equivalent of CRTPA, s. 9(1) and was thus subject to the arbitration clause. The
third party was afforded the benefit of the indemnity on condition that if he chooses
to claim it, he must do so by resort to arbitration.
As for the exclusion clause, the situation was more complex. Although CRTPA,
s. 2(6) provides that a third party availing himself of a term excluding liability is
equivalent to that party enforcing such term, an exclusion clause is a contractual
defence pleaded only in the face of an action for liability. It would be very odd to
suppose that a third party can be compelled to submit to a process of arbitration
which he has not himself initiated. Arbitrators, appointed to determine whether
the third party has a liability to the promisor to which the exclusion would be an
answer, would have jurisdiction conclusively to determine that the defence of the
exclusion is unavailable, even if the third party did not wish to participate in the
arbitration and would prefer to be sued in a different forum. In the court’s opinion,
such an outcome would be striking and could not have been intended by the
draftsman. CRTPA contemplates that the right to take the benefit of a contractual
exclusion may indeed be subject to a term providing for the submission of disputes
to arbitration. However, whether it is so subject must be a question of construc-
tion of the underlying contract, and very clear language is required to bring about
this result. On the facts, the partnership deed did not contain any provision to that
effect.
There is therefore a distinction between s. 9(1) and s. 9(2). The former confers a
substantive benefit subject to the procedural condition that it can be enforced only
by arbitration. In Fortress Value, where the benefit under the contract was exclu-
sion of liability, the inevitable consequence of treating the third party as a party to
arbitration under s. 9(1) was that he would be bound by the outcome of arbitration
proceedings which he had not himself initiated in order to secure the benefit of the
exclusion clause. This would be contrary to the very nature of arbitration which
is a consensual process. On the other hand, s. 9(2) is aimed at the different situa-
tion in which a term of the contract gives a third party a unilateral right to require
arbitration. A grant of a stay in Fortress Value in favour of arbitration would convert
a procedural qualification of a substantive right given by the contract to the third
party (of the kind to which s. 9(1) applies) into a positive procedural right (of the
kind to which s. 9(2) applies). It appears that unless parties expressly and in unam-
biguous terms give the third party the right to have disputes of the relevant kind
referred to arbitration, thus leaving scope for s. 9(2) to operate, any controversy
35 [2013] EWCA Civ 367.
269
related to an exclusion or limitation clause to the benefit of that third party will have
to be settled in court.
Applicable law
At first instance in AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk
Hydropower Plant JSC,36 both parties to the dispute agreed, and the judge concurred,
that the question whether a third party has a right to enforce a term of a contract
is to be determined in accordance with the proper law of the contract. Once this is
established, it is then the law of the arbitration clause which will be applied to the
question whether the third party is a party to the arbitration agreement.37 Therefore,
in the first place matters relating to CRTPA, s. 2 are determined by applying the
governing law of the contract, following which issues associated with s. 9 fall to be
considered under the law of the arbitration agreement.
36 [2010] EWHC 772 (Comm).

37 The decision at first instance was subsequently appealed, albeit on different grounds, to the
Court of Appeal and the Supreme Court, both courts duly dismissing the action: [2011] EWCA Civ
647; [2013] UKSC 35.
270
CHAPTER 5
Rules of Court
order 69—arbitration proceedings

1. Interpretation
2. Matters for Judge in person
3. Matters for Judge or Registrar
4. Preliminary question of law
5. Application to set aside an award
6. Appeals on a question of law arising out of an award
7. Applications for leave to appeal on a question of law arising out of
an award
8. Leave to appeal to Court of Appeal
9. Extension of time: applications under section 10 of the Act
10. Service out of jurisdiction of summons, notice, etc.
11. Requirements as to notice
12. Subpoena
13. Enforcement of interlocutory orders or directions
14. Enforcement of arbitration awards
15. Registration in High Court of Commonwealth awards
16. Saving provisions
Interpretation (O. 69, r. 1)

1.—In this Order,
“Act” means the Arbitration Act (Chapter 10);
“arbitral tribunal” has the same meaning as in the Act.
Matters for Judge in person (O. 69, r. 2)

2.—(1) Every application to a Judge—
(a) to challenge an arbitrator under section 15(4) of the Act;
(b) to remove an arbitrator under section 16 of the Act;
(c) to decide on the arbitral tribunal’s ruling on jurisdiction under section 21(9)
of the Act;
(d) to determine, under section 45 of the Act, any question of law arising in the
course of the arbitration proceedings;
(e) to set aside an award under section 48 of the Act; or
271
(f) for leave to appeal under section 49(3)(b) of the Act,

must be made by originating summons
(2) An appeal with the agreement of all the other parties to the arbitration pro-
ceedings under section 49(3)(a) of the Act shall be made by originating summons
Matters for Judge or Registrar (O. 69, r. 3)

3.—(1) An application—
(a) to reinstate discontinued proceedings under section 6(4) of the Act;
(b) for leave to enforce interlocutory orders or directions of an arbitral tribunal
under section 28(4) of the Act;
(c) for an order in support of arbitration proceedings under section 31 of the
Act;
(d) for an extension of time under section 10 or 36 of the Act;
(e) for an order under section 41(2) of the Act where the arbitral tribunal with-
holds its award for non-payment of fees and expenses;
(f) for leave to enforce an award under section 37 or 46 of the Act;
(g) to hear an application otherwise than in open Court under section 56 of the
Act; or
(h) to give directions on whether and to what extent information relating to an
application heard otherwise than in open Court may be published under
section 57 of the Act,
shall be made to a Judge or the Registrar.
(2) Any application to which this Rule applies must, where an action is
pending, be made by summons in the action, and in any other case by originating
summons.
(3) Where the case is one of urgency or an application under section 37 or 46 of
the Act for leave to enforce an award, such application may be made ex parte on such
terms as the Court thinks fit.
Preliminary question of law (O. 69, r. 4)

4.—(1) An application under section 45 of the Act to determine any question of
law arising in the course of the arbitral proceedings must be made by originating
summons and served, within 14 days after—
(a) the agreement of all the parties to the arbitral proceedings; or
(b) the permission of the arbitral tribunal has been obtained.
(2) For the purpose of paragraph (1), the agreement or permission must be made
or given in writing.
(3) Where an application under section 45 of the Act is made without the agree-
ment in writing of all the other parties to the arbitral proceedings but with the
permission of the arbitral tribunal, the affidavits filed by the parties shall set out
any evidence relied on by the parties in support of their contention that the Court
should, or should not, allow the application.
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rules of court
Application to set aside an award (O. 69, r. 5)

5.—(1) The originating summons for setting aside an award under section 48 of
the Act must be supported by an affidavit stating the grounds on which it is con-
tended that the award should be set aside.
(2) The supporting affidavit must—
(a) have exhibited to it a copy of the arbitration agreement, the award or any
other document relied on by the applicant (who shall be referred to in the
originating summons and hereafter in this Order as the plaintiff);
(b) set out any evidence relied on by the plaintiff; and
(c) be served with the originating summons.
(3) Within 14 days after being served with the originating summons, the defendant,
if he wishes to oppose the application, must file an affidavit stating the grounds on
which he opposes the application.
Appeals on a question of law arising out of an award (O. 69, r. 6)

6.—(1) The originating summons by way of an appeal under section 49(3)(a)
of the Act brought with the agreement of all the other parties to the arbitration
proceedings on a question of law arising out of an award shall—
(a) state that the appeal is being brought with such agreement;
(b) identify the award; and
(c) state as briefly as possible the questions of law which will be raised in the
appeal.
(2) The hearing date of the originating summons shall not be earlier than 3
months from the date of the filing of the originating summons
(3) Within 28 days after the originating summons is filed, the appellant shall serve
on the respondent—
(a) the Appellant’s Case in the form as provided in paragraph (4); and
(b) a core bundle of documents in the form as provided in paragraph (8).
(4) The Appellant’s Case shall—
(a) contain a statement in numbered paragraphs of each ground on which it is
sought to contend that the tribunal erred in law; and
(b) make references to the paragraph or passage of the award where each
alleged error is to be found.
(5) Within 28 days after being served with the Appellant’s Case and the core
bundle of documents, the respondent shall file and serve a Respondent’s Case,
which shall contain a statement in numbered paragraphs of the grounds on which the
respondent contends that the relevant part or parts of the award should be upheld.
(6) Where the respondent contends that the relevant part or parts of the award
should be upheld on grounds not or not fully expressed in the award, such grounds
should be included in the Respondent’s Case.
(7) Any statement provided under paragraphs (4) and (5) should contain specific
reference to any authority relied on.
(8) The core bundle of documents shall contain—
(a) a copy of the award;
273
(b) other documents that are relevant to any question in the appeal or which
are referred to in the Appellant’s Case; and
(c) an index of the documents included therein.
(9) If the respondent intends to refer to any document in the Respondent’s Case
and such document is not included in the core bundle, the respondent shall file, at
the same time as he files his Case, a supplemental core bundle which shall contain
such documents and an index.
(10) The appellant must at the time of filing the originating summons deposit a
sum of $5,000, or such other sum as may be fixed from time to time by the Chief
Justice, by way of security for the respondent’s costs of the appeal, in the Registry or
with the Accountant-General and obtain a certificate in Form 115.
(11) Order 55D, Rule 10 shall apply, with the necessary modifications, to the
withdrawal of an appeal.
Applications for leave to appeal on a question of law arising out of an

award (O. 69, r. 7)
7.—(1) The originating summons in respect of an application for leave under
section 49(3)(b) of the Act to appeal on a question of law arising out of an award
shall be for an order that such leave be granted and for a further order that, in the
event that leave is granted, the appeal be heard and determined.
(2) The originating summons shall identify the award and state as briefly as pos-
sible the questions of law which will be raised in the appeal.
(3) Within 28 days after the originating summons is filed, the plaintiff shall serve
on the defendant the affidavit in support of the application for leave as provided in
paragraph (4).
(4) The affidavit in support of the application for leave to appeal shall set out
any evidence relied on by the plaintiff for the purpose of satisfying the Court of the
matters mentioned in section 49(5) of the Act and for satisfying the Court that leave
should be granted.
(5) Rule 6(2) (return date) shall apply to the application for leave as it applies to
the appeal therein.
(6) Within 28 days after being served with the originating summons and the
affidavit in support of the application, the defendant, if he wishes to contest the
application for leave, shall file and serve an affidavit stating the grounds on which he
opposes the grant of leave and setting out any evidence relied on by him relating to
the matters mentioned in section 49(5) of the Act.
(7) Where leave to appeal is granted by the Court, the following directions shall
apply:
(a) the hearing of the appeal shall not be earlier than 3 months from the date of
the grant of leave to appeal;
(b) within 28 days after the date of the granting of leave to appeal, the appellant
shall serve on the respondent —
(i) the Appellant’s Case in the form as provided in paragraph (c); and
(ii) a core bundle of documents in the form as provided in paragraph (g);
(c) the Appellant’s Case shall —
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rules of court
(i) contain a statement in numbered paragraphs of each ground on which
it is sought to contend that the tribunal erred in law; and
(ii) make references to the paragraph or passage of the award where each
alleged error is to be found;
(d) within 28 days after being served with the Appellant’s Case and the core
bundle of documents, the respondent shall file and serve a Respondent’s
Case, which shall contain a statement in numbered paragraphs of the
grounds on which the respondent contends that the relevant part or parts
of the award should be upheld;
(e) where the respondent contends that the relevant part or parts of the award
should be upheld on grounds not or not fully expressed in the award, such
grounds should be included in the Respondent’s Case;
(f) any statement provided under paragraphs (c) and (d) should contain spe-
cific reference to any authority relied on;
(g) the core bundle of documents shall contain —
(i) a copy of the award;
(ii) other documents that are relevant to any question in the appeal or
which are referred to in the Appellant’s Case; and
(iii) an index of the documents included therein;
(h) if the respondent intends to refer to any document in the Respondent’s
Case and such document is not included in the core bundle, the respondent
shall file, at the same time as he files his Case, a supplemental core bundle
which shall contain such documents and an index;
(i) the appellant must, within 7 days after the Court grants leave to appeal,
deposit a sum of $5,000, or such other sum as may be fixed from time to
time by the Chief Justice, by way of security for the respondent’s costs of
the appeal, in the Registry or with the Accountant-General and obtain a
certificate in Form 115; and
(j) Order 55D, Rule 10 shall apply, with the necessary modifications, to the
withdrawal of an appeal.
Leave to appeal to Court of Appeal (O. 69, r. 8)

8.—An application under the Act for leave to appeal against a decision of the
Court to the Court of Appeal must be made to the Court within 7 days of the deci-
sion of the Court.
Extension of time: applications under section 10 of the Act (O. 69, r. 9)

9.—An application for an order for extension of time under section 10 of the Act
may include, as an alternative, an application for a declaration that such an order is
not needed.
Service out of jurisdiction of summons, notice, etc. (O. 69, r. 10)

10.—(1) Service out of the jurisdiction—
275
(a) of an originating summons under this Order; or

(b) of any order made on such an originating summons as aforesaid,
is permissible with the leave of the Court provided that the arbitration to which the
originating summons or order relates is to be, is being, or has been held within the
jurisdiction.
(2) An application for the grant of leave under this Rule must be supported by an
affidavit stating the ground on which the application is made and showing in what
place or country the person to be served is, or probably may be found; and no such
leave shall be granted unless it shall be made sufficiently to appear to the Court that
the case is a proper one for service out of the jurisdiction under this Rule.
(3) Order 11, Rules 3, 4 and 6, shall apply in relation to any such originating
summons or order as is referred to in paragraph (1).
Requirements as to notice (O. 69, r. 11)

11.—Where the Act requires that an application to the Court is to be made upon
notice to other parties or the arbitral tribunal, notice shall be given by way of service
on such parties or arbitral tribunal of the originating process as required under this
Order.
Subpoena (O. 69, r. 12)

12.—Order 38, Rules 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 shall apply, with
the necessary modifications, in relation to the issue of a subpoena under section 30
of the Act as they apply in relation to proceedings in the Court.
Enforcement of interlocutory orders or directions (O. 69, r. 13)

13. An application for leave to enforce an order or direction given by an arbitral
tribunal under section 28 (4) of the Act must be supported by an affidavit—
(a) exhibiting a copy of the arbitration agreement or any record of the content
of the arbitration agreement and the original order or direction made by the
arbitral tribunal sought to be enforced; and
(b) stating the provisions of the Act or the applicable rules adopted in the arbi-
tration on which the applicant relies.
Enforcement of arbitration awards (O. 69, r. 14)

14.—(1) An application under section 37 or 46 of the Act for leave to enforce an
award may be made ex parte and must be supported by an affidavit—
(a) exhibiting the arbitration agreement or any record of the content of the arbi-
tration agreement and the original award or, in either case, a copy thereof;
(b) stating the name and the usual or last known place of residence or business
of the applicant (referred to in this Rule as the creditor) and the person
against whom it is sought to enforce the award (referred to in this Rule as
the debtor), respectively; and
276
rules of court
(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 order granting leave must be drawn up by or on behalf of the creditor and
must be served on the debtor by delivering a copy to him personally or by sending a
copy to him at his usual or last known place of residence or business or in such other
manner as the Court may direct.
(3) Service of the order out of the jurisdiction is permissible without leave, and
Order 11, Rules 3, 4 and 6, shall apply in relation to such an order.
(4) Within 14 days after service of the order or, if the order is to be served out of
the jurisdiction, within such other period as the Court may fix, the debtor may apply
to set aside the order and the award shall not be enforced until after the expiration
of that period or, if the debtor applies within that period to set aside the order, until
after the application is finally disposed of.
(5) The copy of the order served on the debtor must state the effect of paragraph (4).
(6) In relation to a body corporate, this Rule shall have effect as if for any
reference to the place of residence or business of the creditor or the debtor there
were substituted a reference to the registered or principal address of the body
corporate.
(7) Nothing in paragraph (6) shall affect any written law which provides for the
manner in which a document may be served on a body corporate.
Registration in High Court of Commonwealth awards (O. 69, r. 15)

15.—(1) Where an award is made in proceedings on an arbitration in the
United Kingdom of Great Britain and Northern Ireland or other territory to which
section 5 of the Reciprocal Enforcement of Commonwealth Judgments Act (Chapter
264) applies, then, if the award has, in pursuance of the law in force in the place
where it was made, become enforceable in the same manner as a judgment given
by a court in that place, Order 67, in so far as it applies to a judgment obtained in a
superior court of the United Kingdom and other territory to which section 5 of that
Act applies, shall apply, with the necessary modifications, to the award as it applies
in relation to a judgment given by a superior court in the place where the award was
made.
(2) The affidavit required by Order 67, Rule 3, must state (in addition to the
other matters required by that Rule) that to the best of the information or belief
of the deponent the award has, in pursuance of the law in force in the place where
it was made, become enforceable in the same manner as a judgment given by a
court in that place, giving particulars of such information and grounds for such
belief.
Saving provisions (O. 69, r. 16)

16.—(1) This Order (except Rule 15 thereof) applies to or in relation to arbitra-
tion proceedings to which the Arbitration Act (Chapter 10) applies.
(2) Order 69 (except Rule 6 thereof) in force immediately before the appointed
277
day shall continue to apply to or in relation to arbitration and other proceedings to

which the repealed Arbitration Act (Chapter 10, 1985 Edn) applies.
(3) Rule 15 of this Order shall apply to arbitration awards, whether made before
or after the appointed day to which the Reciprocal Enforcement of Commonwealth
Judgments Act (Chapter 264) applies.
(4) In this Rule, “appointed day” means the date of commencement of the Rules
of Court (Amendment No. 2) Rules 2002.
NOTES
The appointed date was 15 April 2002.
order 69a international arbitration act

1. Interpretation
2. Matters for a judge in court
3. Matters for a judge in chambers
4. Service out of jurisdiction of originating process
5. Enforcement of interlocutory orders or directions
6. Enforcement of arbitral awards
7. Subpoena
8. Taking of evidence
Interpretation (O. 69A, r. 1)

1.—In this Order, unless the context or subject-matter otherwise indicates or
requires—
“Act” means the International Arbitration Act (Chapter 143A);
“arbitral tribunal” has the same meaning as in Part II of the Act;
“award” has the same meaning as in Part II of the Act;
“foreign award” has the same meaning as in Part III of the Act;
“Model Law” means the UNCITRAL Model Law on International Commercial
Arbitration set out in the First Schedule to the Act and as modified by the Act.
Matters for a Judge in person (O. 69A, r. 2)

2.—(1) Every application to a Judge—
(a) to decide on the challenge of an arbitrator under Article 13(3) of the Model
Law;
(b) to decide on the termination of the mandate of an arbitrator under Article
14(1) of the Model Law;
(c) to appeal against the ruling of the arbitral tribunal under section 10 of the
Act or Article 16(3) of the Model Law; or
(d) to set aside an award under section 24 of the Act or Article 34(2) of the
Model Law,
must be made by originating summons.
(2) . . .
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rules of court
(3) An application under paragraph (1)(a), (b) or (c) shall be made within 30 days
from the date of receipt by the applicant (who shall be referred to in the originating
summons and hereafter in this Order as the plaintiff) of the arbitral tribunal’s deci-
sion or ruling.
(4) An application under paragraph (1)(d) shall be made within 3 months from
the date of receipt by the plaintiff of the award or the corrected award.
(4A) The affidavit in support must—
(a) state the grounds in support of the application;
content of the arbitration agreement, the award and any other document
relied on by the plaintiff;
(c) set out any evidence relied on by the plaintiff; and
(d) be served with the originating summons.
(4B) . . .
(4C) Within 14 days after being served with the originating summons, the defend-
ant, if he wishes to oppose the application, must file an affidavit stating the grounds
on which he opposes the application.
(4D) An application for leave to appeal against a decision of the Court under
section 10 of the Act must be made within 7 days of the decision of the Court.
(5) For the purpose of this Rule, the date of receipt of any decision, ruling, award
or corrected award shall be determined in accordance with Article 3 of the Model
Law.
Matters for Judge or Registrar (O. 69A, r. 3)

3.—(1) Every application or request to the Court—
(a) to hear an application otherwise than in open Court under section 22 of the
Act;
(b) for leave to enforce interlocutory orders or directions of an arbitral tribunal
under section 12(6) of the Act;
(c) for interlocutory orders or directions under section 12A of the Act;
(ca) to reinstate discontinued proceedings under section 6(4) of the Act;
(d) for leave to enforce an award under section 18 or 19 of the Act; or
(e) for leave to enforce a foreign award under section 29 of the Act,
shall be made to a Judge or the Registrar.
(2) Any application to which this Rule applies must, where an action is
pending, be made by summons in the action, and in any other case by originating
summons
(3) Where the case is one of urgency or on an application under section 18, 19 or
20 of the Act for leave to enforce an award or foreign award, such application may
be made ex parte on such terms as the Court thinks fit.
Service out of jurisdiction of originating process (O. 69A, r. 4)

4.—(1) Service out of the jurisdiction of the originating summons or of any order
made on such originating summons under this Order is permissible with leave of
279
the Court whether or not the arbitration was held or the award was made within the
jurisdiction.
(2) An application for the grant of leave under this Rule must be supported by an
affidavit stating the ground on which the application is made and showing in what
place or country the person to be served is, or probably may be found; and no such
leave shall be granted unless it shall be made sufficiently to appear to the Court that
the case is a proper one for service out of the jurisdiction under this Rule.
(3) Order 11, Rules 3, 4 and 6 shall apply in relation to any such originating
summons or order as is referred to in paragraph (1).
Enforcement of interlocutory orders or directions (O. 69A, r. 5)

5.—(1) An application for leave to enforce an order or direction given by an
arbitral tribunal must be supported by an affidavit—
(a) exhibiting a copy of the arbitration agreement or any record of the content
of the arbitration agreement and the original order or direction made by the
arbitral tribunal sought to be enforced; and
(b) stating the provisions in the Act or the applicable rules adopted in the arbi-
tration on which the applicant relies.
(2) Where the order sought to be enforced is in the nature of an interim injunction
under section 12(1)(e) or (f) of the Act, leave shall be granted only if the applicant
undertakes to abide by any order the Court or the arbitral tribunal may make as to
damages.
Enforcement of arbitral awards (O. 69A, r. 6)

6.—(1) An application for leave to enforce an award or a foreign award may be
made ex parte 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 thereof 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 trans-
lator 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 abode or business
of the applicant (referred to in this Rule as the creditor) and the person
against whom it is sought to enforce the award (referred to in this Rule as
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 order giving leave must be drawn up by or on behalf of the creditor and
must be served on the debtor by delivering a copy to him personally or by sending
a copy to him at his usual or last known place of abode or business or in such other
manner as the Court may direct.
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rules of court
(3) Service of the order out of the jurisdiction is permissible without leave, and
Order 11, Rules 3, 4 and 6, shall apply in relation to such an order.
(4) Within 14 days after service of the order or, if the order is to be served out of
the jurisdiction, within such other period as the Court may fix, the debtor may apply
to set aside the order and the award shall not be enforced until after the expiration
of that period or, if the debtor applies within that period to set aside the order, until
after the application is finally disposed of.
(5) The copy of that order served on the debtor must state the effect of
paragraph (4).
(6) In relation to a body corporate, this Rule shall have effect as if for any refer-
ence to the place of abode or business of the creditor or the debtor there were sub-
stituted a reference to the registered or principal address of the body corporate; so,
however, that nothing in this Rule shall affect any enactment which provides for the
manner in which a document may be served on a body corporate.
Subpoena (O. 69A, r. 7)

7.—Order 38, Rules 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 shall apply in rela-
tion to the issue of a subpoena under section 13 of the Act as they apply in relation
to proceedings in the Court.
Taking of evidence (O. 69A, r. 8)

8.—Order 39 shall apply in relation to the taking of evidence for arbitration
proceedings under Article 27 of the Model Law as it applies for the purpose of
proceedings in the Court.
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CHAPTER 6
Rules of the Singapore International Arbitration Centre
Arbitration Rules of the Singapore International Arbitration Centre

SIAC RULES (5th EDITION, 1 APRIL 2013)
1. Scope of Application and Interpretation

2. Notice, Calculation of Periods of Time
3. Notice of Arbitration
4. Response to the Notice of Arbitration
5. Expedited Procedure
6. Number and Appointment of Arbitrators
7. Sole Arbitrator
8. Three Arbitrators
9. Multi-party Appointment of Arbitrator(s)
10. Qualifications of Arbitrators
11. Challenge of Arbitrators
12. Notice of Challenge
13. Decision on Challenge
14. Replacement of an Arbitrator
15. Repetition of Hearings in the Event of Replacement of an Arbitrator
16. Conduct of the Proceedings
17. Submissions by the Parties
18. Seat of Arbitration
19. Language of Arbitration
20. Party Representatives
21. Hearings
22. Witnesses
23. Tribunal-Appointed Experts
24. Additional Powers of the Tribunal
25. Jurisdiction of the Tribunal
26. Interim and Emergency Relief
27. Applicable law, amiable compositeur
28. The Award
29. Correction of Awards and Additional Awards
30. Fees and Deposits
31. Costs of the Arbitration
32. Tribunal’s Fees and Expenses
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rules of the singapore international arbitration centre
33. Party’s Legal and Other Costs
34. Exclusion of Liability
35. Confidentiality
36. Decisions of the President, the Court and the Registrar
37. General Provisions
SCHEDULE 1—EMERGENCY ARBITRATOR

SCHEDULE 2—SPECIAL PROVISIONS FOR SIAC DOMESTIC
ARBITRATION RULES
Rule 1: Scope of Application and Interpretation

1.1 Where parties have agreed to refer their disputes to SIAC for arbitration, the
parties shall be deemed to have agreed that the arbitration shall be conducted
and administered in accordance with these Rules. If any of these Rules is in
conflict with a mandatory provision of the applicable law of the arbitration
from which the parties cannot derogate, that provision shall prevail.
1.2 These Rules shall come into force on 1 April 2013 and, unless the parties have
agreed otherwise, shall apply to any arbitration which is commenced on or
after that date.
1.3 From 1 April 2013, the SIAC Rules (4th edition, 1 July 2010) are amended as
follows.
a. In Rule 1.3:
The definitions of “Board”, “Chairman” and “Committee of the Board” are
deleted and the following are substituted:
“Board” means the Court;
“Chairman” means the President;
“Committee of the Board” means the Court;
b. The following definitions are inserted after the definition of “Committee of
the Board”:
“Committee of the Court” means a committee consisting of not less than two
members of the Court appointed by the President (which may include the
President);
“Court” means the Court of Arbitration of SIAC and includes a Committee
of the Court;
“President” means the President of the Court and includes a Vice President
and the Registrar;
1.4 From 1 April 2013, the SIAC Rules (3rd edition, 1 July 2007) are amended as
follows.
a. In Rule 1.2:
The definition of “Chairman” is deleted and the following is substituted:
“Chairman” means the President;
b. The following definitions are inserted after the definition of “Chairman”:
President);
283
“Court” means the Court of Arbitration of SIAC and includes a Committee

of the Court;
and the Registrar;
1.5 In these Rules —
“Award” includes a partial or final award and an award of an Emergency
Arbitrator;
President);
“Court” means the Court of Arbitration of SIAC and includes a Committee of
the Court;
and the Registrar;
“Registrar” means the Registrar of the Court and includes any Deputy Registrar;
“SIAC” means the Singapore International Arbitration Centre; and
“Tribunal” includes a sole arbitrator or all the arbitrators where more than one
is appointed.
Any pronoun shall be understood to be gender-neutral; and
Any singular noun shall be understood to refer to the plural in the appropriate
circumstances.
Rule 2: Notice, Calculation of Periods of Time

2.1 For the purposes of these Rules, any notice, communication or proposal, shall
be in writing. Any such written communication may be delivered or sent by
registered postal or courier service or transmitted by any form of electronic
communication (including electronic mail and facsimile) or delivered by any
other means that provides a record of its delivery. It is deemed to have been
received if it is delivered (i) to the addressee personally, (ii) to his habitual
residence, place of business or designated address, (iii) to any address agreed
by the parties, (iv) according to the practice of the parties in prior dealings, or
(v) if none of these can be found after making reasonable inquiry, then at the
addressee’s last-known residence or place of business.
2.2 The notice, communication, or proposal is deemed to have been received on
the day it is delivered.
2.3 For the purposes of calculating any period of time under these Rules, such
period shall begin to run on the day following the day when a notice, commu-
nication or proposal is received. If the last day of such period is not a business
day at the place of receipt pursuant to Rule 2.1, the period is extended until
the first business day which follows. Non-business days occurring during the
running of the period of time are included in calculating the period.
2.4 The parties shall file with the Registrar a copy of any notice, communication
or proposal concerning the arbitral proceedings.
2.5 Except as provided in these Rules, the Registrar may at any time extend or
shorten any time limits prescribed under these Rules.
284
Rule 3: Notice of Arbitration

3.1 A party wishing to commence an arbitration (the “Claimant”) shall file with
the Registrar a Notice of Arbitration which shall comprise:
a. a demand that the dispute be referred to arbitration;
b. the names, address(es), telephone number(s), facsimile number(s) and
electronic mail address(es), if known, of the parties to the arbitration and
their representatives, if any;
c. a reference to the arbitration clause or the separate arbitration agreement
that is invoked and a copy of it;
d. a reference to the contract (or other instrument [e.g., investment treaty])
out of or in relation to which the dispute arises and where possible, a copy
of it;
e. a brief statement describing the nature and circumstances of the dispute,
specifying the relief claimed and, where possible, an initial quantification of
the claim amount;
f. a statement of any matters which the parties have previously agreed as to
the conduct of the arbitration or with respect to which the Claimant wishes
to make a proposal;
g. a proposal for the number of arbitrator(s) if this is not specified in the arbi-
tration agreement;
h. unless the parties have agreed otherwise, the nomination of an arbitra-
tor if the arbitration agreement provides for three arbitrators, or a pro-
posal for a sole arbitrator if the arbitration agreement provides for a sole
arbitrator;
i. any comment as to the applicable rules of law;
j. any comment as to the language of the arbitration; and
k. payment of the requisite filing fee.
3.2 The Notice of Arbitration may also include the Statement of Claim referred to
in Rule 17.2.
3.3 The date of receipt of the complete Notice of Arbitration by the Registrar shall
be deemed the date of commencement of the arbitration. For the avoidance
of doubt, the Notice of Arbitration is deemed to be complete when all the
requirements of Rule 3.1 are fulfilled or when the Registrar determines that
there has been substantial compliance with such requirements. SIAC shall
notify the parties on the commencement of arbitration.
3.4 The Claimant shall at the same time send a copy of the Notice of Arbitration to
the Respondent, and it shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.
Rule 4: Response to the Notice of Arbitration

4.1 The Respondent shall send to the Claimant a Response within 14 days of
receipt of the Notice of Arbitration. The Response shall contain:
a. a confirmation or denial of all or part of the claims;
b. a brief statement describing the nature and circumstances of any counter-
285
claim, specifying the relief claimed and, where possible, an initial quantifi-
cation of the counterclaim amount;
c. any comment in response to any statements contained in the Notice of
Arbitration under Rules 3.1(f), (g), (h), (i) and (j) or any comment with
respect to the matters covered in such rules; and
d. unless the parties have agreed otherwise, the nomination of an arbitrator
if the arbitration agreement provides for three arbitrators or, if the arbitra-
tion agreement provides for a sole arbitrator, agreement with Claimant’s
proposal for a sole arbitrator or a counter-proposal.
4.2 The Response may also include the Statement of Defence and a Statement of
Counterclaim, as referred to in Rules 17.3 and 17.4.
4.3 The Respondent shall at the same time send a copy of the Response to the
Registrar, together with the payment of the requisite filing fee for any coun-
terclaim, and shall notify the Registrar of the mode of service of the Response
employed and the date of service.
Rule 5: Expedited Procedure

5.1 Prior to the full constitution of the Tribunal, a party may apply to the Registrar
in writing for the arbitral proceedings to be conducted in accordance with the
Expedited Procedure under this Rule where any of the following criteria is
satisfied:
a. the amount in dispute does not exceed the equivalent amount of
S$5,000,000, representing the aggregate of the claim, counterclaim and
any set-off defence;
b. the parties so agree; or
c. in cases of exceptional urgency.
5.2 When a party has applied to the Registrar under Rule 5.1, and when the
President determines, after considering the views of the parties, that the arbitral
proceedings shall be conducted in accordance with the Expedited Procedure,
the following procedure shall apply:
a. The Registrar may shorten any time limits under these Rules;
b. The case shall be referred to a sole arbitrator, unless the President determines
otherwise;
c. Unless the parties agree that the dispute shall be decided on the basis of
documentary evidence only, the Tribunal shall hold a hearing for the exam-
ination of all witnesses and expert witnesses as well as for any argument;
d. The award shall be made within six months from the date when the Tribunal
is constituted unless, in exceptional circumstances, the Registrar extends
the time; and
e. The Tribunal shall state the reasons upon which the award is based in
summary form, unless the parties have agreed that no reasons are to be
given.
286
Rule 6: Number and Appointment of Arbitrators

6.1 A sole arbitrator shall be appointed unless the parties have agreed otherwise
or unless it appears to the Registrar, giving due regard to any proposals by the
parties, the complexity, the quantum involved or other relevant circumstances
of the dispute, that the dispute warrants the appointment of three arbitrators.
6.2 If the parties have agreed that any arbitrator is to be appointed by one or
more of the parties, or by any third person including the arbitrators already
appointed, that agreement shall be treated as an agreement to nominate an
arbitrator under these Rules.
6.3 In all cases, the arbitrators nominated by the parties, or by any third person
including the arbitrators already appointed, shall be subject to appointment by
the President in his discretion.
6.4 The President shall appoint an arbitrator as soon as practicable. Any decision
by the President to appoint an arbitrator under these Rules shall be final and
not subject to appeal.
6.5 The President may appoint any nominee whose appointment has already been
suggested or proposed by any party.
6.6 The terms of appointment of each arbitrator shall be fixed by the Registrar in
accordance with these Rules and Practice Notes for the time being in force, or
in accordance with the agreement of the parties.
Rule 7: Sole Arbitrator

7.1 If a sole arbitrator is to be appointed, either party may propose to the other the
names of one or more persons, one of whom would serve as the sole arbitrator.
Where the parties have reached an agreement on the nomination of a sole
arbitrator, Rule 6.3 shall apply.
7.2 If within 21 days after receipt by the Registrar of the Notice of Arbitration,
the parties have not reached an agreement on the nomination of a sole arbi-
trator, or if at any time either party so requests, the President shall make the
appointment as soon as practicable.
Rule 8: Three Arbitrators

8.1 If three arbitrators are to be appointed, each party shall nominate one
arbitrator.
8.2 If a party fails to make a nomination within 14 days after receipt of a party’s
nomination of an arbitrator, or in the manner otherwise agreed by the parties,
the President shall proceed to appoint the arbitrator on its behalf.
8.3 Unless the parties have agreed upon another procedure for appointing the third
arbitrator, or if such agreed procedure does not result in a nomination within
the time limit fixed by the parties or by the Registrar, the third arbitrator, who
shall act as the presiding arbitrator, shall be appointed by the President.
287
Rule 9: Multi-party Appointment of Arbitrator(s)

9.1 Where there are more than two parties in the arbitration, and three arbitra-
tors are to be appointed, the Claimant(s) shall jointly nominate one arbi-
trator and the Respondent(s) shall jointly nominate one arbitrator. In the
absence of both such joint nominations having been made within 28 days
of receipt by the Registrar of the Notice of Arbitration or within the period
agreed by the parties or set by the Registrar, the President shall appoint
all three arbitrators and shall designate one of them to act as the presiding
arbitrator.
9.2 Where there are more than two parties in the arbitration, and one arbitrator is
to be appointed, all parties are to agree on an arbitrator. In the absence of such
a joint nomination having been made within 28 days of receipt by the Registrar
of the Notice of Arbitration or within the period agreed by the parties or set by
the Registrar, the President shall appoint the arbitrator.
Rule 10: Qualifications of Arbitrators

10.1 Any arbitrator, whether or not nominated by the parties, conducting an arbi-
tration under these Rules shall be and remain at all times independent and
impartial, and shall not act as advocate for any party.
10.2 In making an appointment under these Rules, the President shall have due
regard to any qualifications required of the arbitrator by the agreement of the
parties and to such considerations as are likely to secure the appointment of
an independent and impartial arbitrator.
10.3 The President shall also consider whether the arbitrator has sufficient avail-
ability to determine the case in a prompt and efficient manner appropriate to
the nature of the arbitration.
10.4 An arbitrator shall disclose to the parties and to the Registrar any circumstance
that may give rise to justifiable doubts as to his impartiality or independence
as soon as reasonably practicable and in any event before appointment by the
President.
10.5 An arbitrator shall immediately disclose to the parties, to the other arbitra-
tors and to the Registrar any circumstance of a similar nature that may arise
during the arbitration.
10.6 If the parties have agreed on any qualifications required of an arbitrator, the
arbitrator shall be deemed to meet such qualifications unless a party states
that the arbitrator is not so qualified within 14 days after receipt by that party
of the notification of the nomination of the arbitrator. In the event of such
a challenge, the procedure for challenge and replacement of an arbitrator in
Rules 11 to 14 shall apply.
10.7 No party or anyone acting on its behalf shall have any ex parte communication
relating to the case with any arbitrator or with any candidate for appointment
as party-nominated arbitrator, except to advise the candidate of the general
nature of the controversy and of the anticipated proceedings and to discuss
the candidate’s qualifications, availability or independence in relation to the
288
parties, or to discuss the suitability of candidates for selection as a third
arbitrator where the parties or party-designated arbitrators are to participate
in that selection. No party or anyone acting on its behalf shall have any ex
parte communication relating to the case with any candidate for presiding
arbitrator.
Rule 11: Challenge of Arbitrators

11.1 Any arbitrator may be challenged if circumstances exist that give rise to
justifiable doubts as to the arbitrator’s impartiality or independence or if the
arbitrator does not possess any requisite qualification on which the parties
have agreed.
11.2 A party may challenge the arbitrator nominated by him only for reasons of
which he becomes aware after the appointment has been made.
Rule 12: Notice of Challenge

12.1 Subject to Rule 10.6, a party who intends to challenge an arbitrator shall
send a notice of challenge within 14 days after the receipt of the notice of
appointment of the arbitrator who is being challenged or within 14 days after
the circumstances mentioned in Rule 11.1 or 11.2 became known to that
party.
12.2 The notice of challenge shall be filed with the Registrar and shall be sent
simultaneously to the other party, the arbitrator who is being challenged
and the other members of the Tribunal. The notice of challenge shall be in
writing and shall state the reasons for the challenge. The Registrar may order
a suspension of the arbitration until the challenge is resolved.
12.3 When an arbitrator is challenged by one party, the other party may agree to
the challenge. The challenged arbitrator may also withdraw from his office.
In neither case does this imply acceptance of the validity of the grounds for
the challenge.
12.4 In instances referred to in Rule 12.3, the procedure provided in Rules 6, 7, 8
or 9, as the case may be, shall be used for the appointment of the substitute
arbitrator, even if during the process of appointing the challenged arbitrator,
a party had failed to exercise his right to nominate. The time-limits provided
in those Rules shall commence from the date of receipt of the agreement of
the other party to the challenge or the challenged arbitrator’s withdrawal.
Rule 13: Decision on Challenge

13.1 If, within 7 days of receipt of the notice of challenge, the other party does not
agree to the challenge and the arbitrator who is being challenged does not
withdraw voluntarily, the Court shall decide the challenge.
13.2 If the Court sustains the challenge, a substitute arbitrator shall be appointed
in accordance with the procedure provided in Rules 6, 7, 8 or 9, as the case
may be, even if during the process of appointing the challenged arbitrator, a
289
party had failed to exercise his right to nominate. The time-limits provided in
those Rules shall commence from the date of the Registrar’s notification to
the parties of the decision by the Court.
13.3 If the Court rejects the challenge, the arbitrator shall continue with the
arbitration. Unless the Registrar ordered the suspension of the arbitration
pursuant to Rule 12.2, pending the determination of the challenge by the
Court, the challenged arbitrator shall be entitled to proceed in the arbitration.
13.4 The Court may fix the costs of the challenge and may direct by whom and
how such costs should be borne.
13.5 The Court’s decision made under this Rule shall be final and not subject to
appeal.
Rule 14: Replacement of an Arbitrator

14.1 In the event of the death, resignation or removal of an arbitrator during the
course of the arbitral proceedings, a substitute arbitrator shall be appointed
in accordance with the procedure applicable to the nomination and appoint-
ment of the arbitrator being replaced.
14.2 In the event that an arbitrator refuses or fails to act or in the event of a de
jure or de facto impossibility of him performing his functions or that he is not
fulfilling his functions in accordance with the Rules or within prescribed time
limits, the procedure for challenge and replacement of an arbitrator provided
in Rules 11 to 13 and 14.1 shall apply.
14.3 After consulting with the parties, the President may in his discretion remove
an arbitrator who refuses or fails to act, or in the event of a de jure or de
facto impossibility of him performing his functions, or if he is not fulfilling
his functions in accordance with the Rules or within the prescribed time
limits.
Rule 15: Repetition of Hearings in the Event of Replacement of an

Arbitrator
If under Rules 12 to 14 the sole or presiding arbitrator is replaced, any hear-
ings held previously shall be repeated unless otherwise agreed by the parties.
If any other arbitrator is replaced, such prior hearings may be repeated at the
discretion of the Tribunal after consulting with the parties. If the Tribunal
has issued an interim or partial award, any hearings related solely to that
award shall not be repeated, and the award shall remain in effect.
Rule 16: Conduct of the Proceedings

16.1 The Tribunal shall conduct the arbitration in such manner as it considers
appropriate, after consulting with the parties, to ensure the fair, expeditious,
economical and final determination of the dispute.
16.2 The Tribunal shall determine the relevance, materiality and admissibility of
all evidence. Evidence need not be admissible in law.
290
16.3 As soon as practicable after the appointment of all arbitrators, the Tribunal
shall conduct a preliminary meeting with the parties, in person or by any
other means, to discuss the procedures that will be most appropriate and
efficient for the case.
16.4 The Tribunal may in its discretion direct the order of proceedings, bifurcate
proceedings, exclude cumulative or irrelevant testimony or other evidence
and direct the parties to focus their presentations on issues the decision of
which could dispose of all or part of the case.
16.5 A presiding arbitrator may make procedural rulings alone, subject to revision
by the Tribunal.
16.6 All statements, documents or other information supplied to the Tribunal
and the Registrar by one party shall simultaneously be communicated to
the other party.
Rule 17: Submissions by the Parties

17.1 Unless the Tribunal determines otherwise, the submission of written state-
ments shall proceed as set out in this Rule.
17.2 Unless already submitted pursuant to Rule 3.2, the Claimant shall, within a
period of time to be determined by the Tribunal, send to the Respondent and
the Tribunal a Statement of Claim setting out in full detail:
a. a statement of facts supporting the claim;
b. the legal grounds or arguments supporting the claim; and
c. the relief claimed together with the amount of all quantifiable claims.
17.3 Unless already submitted pursuant to Rule 4.2, the Respondent shall, within
a period of time to be determined by the Tribunal, send to the Claimant a
Statement of Defence setting out its full defence to the Statement of Claim,
including without limitation, the facts and contentions of law on which it
relies. The Statement of Defence shall also state any counterclaim, which
shall comply with the requirements of Rule 17.2.
17.4 If a counterclaim is made, the Claimant shall, within a period of time to be
determined by the Tribunal, send to the Respondent a Statement of Defence
to the Counterclaim stating in full detail which of the facts and contentions
of law in the Statement of Counterclaim it admits or denies, on what grounds
it denies the claims or contentions, and on what other facts and contentions
of law it relies.
17.5 A party may amend its claim, counterclaim or other submissions unless the
Tribunal considers it inappropriate to allow such amendment having regard
to the delay in making it or prejudice to the other party or any other circum-
stances. However, a claim or counterclaim may not be amended in such a
manner that the amended claim or counterclaim falls outside the scope of the
arbitration agreement.
17.6 The Tribunal shall decide which further submissions shall be required from
the parties or may be presented by them. The Tribunal shall fix the periods
of time for communicating such submissions.
291
17.7 All submissions referred to in this Rule shall be accompanied by copies of

all supporting documents which have not previously been submitted by any
party.
17.8 If the Claimant fails within the time specified to submit its Statement of
Claim, the Tribunal may issue an order for the termination of the arbitral
proceedings or give such other directions as may be appropriate.
17.9 If the Respondent fails to submit a Statement of Defence, or if at any point
any party fails to avail itself of the opportunity to present its case in the manner
directed by the Tribunal, the Tribunal may proceed with the arbitration.
Rule 18: Seat of Arbitration

18.1 The parties may agree on the seat of arbitration. Failing such an agreement,
the seat of arbitration shall be Singapore, unless the Tribunal determines,
having regard to all the circumstances of the case, that another seat is more
appropriate.
18.2 The Tribunal may hold hearings and meetings by any means it consid-
ers expedient or appropriate and at any location it considers convenient or
appropriate.
Rule 19: Language of Arbitration

19.1 Unless the parties have agreed otherwise, the Tribunal shall determine the
language to be used in the proceedings.
19.2 If a document is written in a language other than the language(s) of the
arbitration, the Tribunal, or if the Tribunal has not been established, the
Registrar, may order that party to submit a translation in a form to be deter-
mined by the Tribunal or the Registrar.
Rule 20: Party Representatives

20.1
Any party may be represented by legal practitioners or any other
representatives.
Rule 21: Hearings

21.1 Unless the parties have agreed on documents-only arbitration, the Tribunal
shall, if either party so requests or the Tribunal so decides, hold a hearing
for the presentation of evidence and/or for oral submissions on the merits of
the dispute, including without limitation any issue as to jurisdiction.
21.2 The Tribunal shall fix the date, time and place of any meeting or hearing
and shall give the parties reasonable notice.
21.3 If any party to the proceedings fails to appear at a hearing without showing
sufficient cause for such failure, the Tribunal may proceed with the arbitration
and may make the award based on the submissions and evidence before it.
21.4 Unless the parties agree otherwise, all meetings and hearings shall be in
292
private, and any recordings, transcripts, or documents used shall remain
confidential.
Rule 22: Witnesses

22.1 Before any hearing, the Tribunal may require any party to give notice of
the identity of witnesses, including expert witnesses, whom it intends to
produce, the subject matter of their testimony and its relevance to the issues.
22.2 The Tribunal has discretion to allow, refuse or limit the appearance of
witnesses.
22.3 Any witness who gives oral evidence may be questioned by each of the
parties, their representatives and the Tribunal in such manner as the
Tribunal shall determine.
22.4 The Tribunal may direct the testimony of witnesses to be presented in
written form, either as signed statements or sworn affidavits or any other
form of recording. Subject to Rule 22.2, any party may request that such
a witness should attend for oral examination. If the witness fails to attend,
the Tribunal may place such weight on the written testimony as it thinks fit,
disregard it or exclude it altogether.
22.5 It shall be permissible for any party or its representatives to interview any
witness or potential witness (that may be presented by that party) prior to
his appearance at any hearing.
Rule 23: Tribunal-Appointed Experts

23.1 Unless the parties have agreed otherwise, the Tribunal:
a. may following consultation with the parties, appoint an expert to report
on specific issues; and
b. may require a party to give such expert any relevant information, or to
produce or provide access to any relevant documents, goods or property
for inspection.
23.2 Any expert so appointed shall submit a report in writing to the Tribunal.
Upon receipt of such a written report, the Tribunal shall deliver a copy of
the report to the parties and invite the parties to submit written comments
on the report.
23.3 Unless the parties have agreed otherwise, if the Tribunal considers it
necessary, any such expert shall, after delivery of his written report, partici-
pate in a hearing. At the hearing, the parties shall have the opportunity to
question him.
Rule 24: Additional Powers of the Tribunal

24.1 In addition to the powers specified in these Rules and not in derogation of
the mandatory rules of law applicable to the arbitration, the Tribunal shall
have the power to:
a. order the correction of any contract, but only to the extent required to
293
rectify any mistake which it determines to have been made by all the
parties to that contract. This is subject to the condition that the proper
law of the contract allows rectification of such contract;
b. upon the application of a party, allow one or more third parties to be
joined in the arbitration, provided that such person is a party to the
arbitration agreement, with the written consent of such third party, and
thereafter make a single final award or separate awards in respect of all
parties;
c. except as provided in Rules 28.2 and 29.5, extend or abbreviate any
time limits provided by these Rules or by its directions;
d. conduct such enquiries as may appear to the Tribunal to be necessary
or expedient;
e. order the parties to make any property or item available for inspection;
f. order the preservation, storage, sale or disposal of any property or item
which is or forms part of the subject-matter of the dispute;
g. order any party to produce to the Tribunal and to the other parties for
inspection, and to supply copies of, any document in their possession or
control which the Tribunal considers relevant to the case and material
to its outcome;
h. issue an award for unpaid costs of the arbitration;
i. direct any party to give evidence by affidavit or in any other form;
j. direct any party to ensure that any award which may be made in the
arbitral proceedings is not rendered ineffectual by the dissipation of
assets by a party;
k. order any party to provide security for legal or other costs in any manner
the Tribunal thinks fit;
l. order any party to provide security for all or part of any amount in
dispute in the arbitration;
m. proceed with the arbitration notwithstanding the failure or refusal of
any party to comply with these Rules or with the Tribunal’s orders or
directions or any partial award or to attend any meeting or hearing, and
to impose such sanctions as the Tribunal deems appropriate;
n. decide, where appropriate, any issue not expressly or impliedly raised
in the submissions filed under Rule 17 provided such issue has been
clearly brought to the notice of the other party and that other party has
been given adequate opportunity to respond;
o. determine the law applicable to the arbitral proceedings; and
p. determine any claim of legal or other privilege.
Rule 25: Jurisdiction of the Tribunal

25.1 If a party objects to the existence or validity of the arbitration agreement or
to the competence of SIAC to administer an arbitration before the Tribunal
is appointed, the Registrar shall determine if reference of such an objection
is to be made to the Court. If the Registrar so determines, the Court shall
decide if it is prima facie satisfied that a valid arbitration agreement under
294
the Rules may exist. The proceedings shall be terminated if the Court is not
so satisfied. Any decision by the Registrar or the Court is without prejudice
to the power of the Tribunal to rule on its own jurisdiction.
25.2 The Tribunal shall have the power to rule on its own jurisdiction, including
any objections with respect to the existence, termination or validity of the arbi-
tration agreement. For that purpose, an arbitration agreement which forms
part of a contract shall be treated as an agreement independent of the other
terms of the contract. A decision by the Tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the arbitration agreement.
25.3 A plea that the Tribunal does not have jurisdiction shall be raised not
later than in the Statement of Defence or in a Statement of Defence to a
Counterclaim. A plea that the Tribunal is exceeding the scope of its jurisdic-
tion shall be raised promptly after the Tribunal has indicated its intention
to decide on the matter alleged to be beyond the scope of its jurisdiction. In
either case the Tribunal may nevertheless admit a late plea under this Rule
if it considers the delay justified. A party is not precluded from raising such
a plea by the fact that he has nominated, or participated in the nomination
of, an arbitrator.
25.4 The Tribunal may rule on a plea referred to in Rule 25.3 either as a prelimi-
nary question or in an award on the merits.
25.5 A party may rely on a claim or defence for the purpose of a set-off to the
extent permitted by the applicable law.
Rule 26: Interim and Emergency Relief

26.1 The 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
Tribunal may order the party requesting interim relief to provide appropri-
ate security in connection with the relief sought.
26.2 A party in need of emergency interim relief prior to the constitution of the
Tribunal may apply for such relief pursuant to the procedures set forth in
Schedule 1.
26.3 A request for interim relief made by a party to a judicial authority prior to
the constitution of the Tribunal, or in exceptional circumstances thereafter,
is not incompatible with these Rules.
Rule 27: Applicable law, amiable compositeur

27.1 The Tribunal shall apply the rules of law designated by the parties as appli-
cable to the substance of the dispute. Failing such designation by the parties,
the Tribunal shall apply the law which it determines to be appropriate.
27.2 The Tribunal shall decide as amiable compositeur or ex aequo et bono only
if the parties have expressly authorised the Tribunal to do so.
27.3 In all cases, the Tribunal shall decide in accordance with the terms of the
contract, if any, and shall take into account any usage of trade applicable to
the transaction.
295
Rule 28: The Award

28.1 The Tribunal shall, after consulting with the parties, declare the proceed-
ings closed if it is satisfied that the parties have no further relevant and
material evidence to produce or submission to make. The Tribunal may, on
its own motion or upon application of a party but before any award is made,
reopen the proceedings.
28.2 Before making any award, the Tribunal shall submit it in draft form to the
Registrar. Unless the Registrar extends time or the parties agree otherwise,
the Tribunal shall submit the draft award to the Registrar within 45 days
from the date on which the Tribunal declares the proceedings closed. The
Registrar may, as soon as practicable, suggest modifications as to the form
of the award and, without affecting the Tribunal’s liberty of decision, may
also draw its attention to points of substance. No award shall be made by
the Tribunal until it has been approved by the Registrar as to its form.
28.3 The Tribunal may make separate awards on different issues at different
times.
28.4 If any arbitrator fails to cooperate in the making of the award, having been
given a reasonable opportunity to do so, the remaining arbitrators shall
proceed in his absence.
28.5 Where there is more than one arbitrator, the Tribunal shall decide by a
majority. Failing a majority decision, the presiding arbitrator alone shall
make the award for the Tribunal.
28.6 The award shall be delivered to the Registrar, who shall transmit certified
copies to the parties upon the full settlement of the costs of arbitration.
28.7 The Tribunal may award simple or compound interest on any sum which
is the subject of the arbitration at such rates as the parties may have agreed
or, in the absence of such agreement, as the Tribunal determines to be
appropriate, in respect of any period which the Tribunal determines to be
appropriate.
28.8 In the event of a settlement, if any party so requests, the Tribunal may
render a consent award recording the settlement. If the parties do not
require a consent award, the parties shall confirm to the Registrar that a
settlement has been reached. The Tribunal shall be discharged and the
arbitration concluded upon payment of any outstanding costs of arbitration.
28.9 Subject to Rule 29 and Schedule 1, by agreeing to arbitration under these
Rules, the parties undertake to carry out the award immediately and without
delay, and they also irrevocably waive their rights to any form of appeal,
review or recourse to any state court or other judicial authority insofar as
such waiver may be validly made and the parties further agree that an award
shall be final and binding on the parties from the date it is made.
28.10 SIAC may publish any award with the names of the parties and other
identifying information redacted.
296
Rule 29: Correction of Awards and Additional Awards

29.1 Within 30 days of receipt of an award, a party may, by written notice to
the Registrar and to any other party, request the Tribunal to correct in the
award any error in computation, any clerical or typographical error or any
error of a similar nature. Any other party may comment on such request
within 15 days of its receipt. If the Tribunal considers the request to be
justified, it shall make the correction within 30 days of receipt of the request.
Any correction, made in the original award or in a separate memorandum,
shall constitute part of the award.
29.2 The Tribunal may correct any error of the type referred to in Rule 29.1 on
its own initiative within 30 days of the date of the award.
29.3 Within 30 days of receipt of an award, a party may, by written notice to the
Registrar and to any other party, request the Tribunal to make an additional
award as to claims presented in the arbitral proceedings but not dealt with in
the award. Any other party may comment on such request within 15 days of
its receipt. If the Tribunal considers the request to be justified, it shall make
the additional award within 45 days of receipt of the request.
29.4 Within 30 days of the receipt of an award, a party may, by written notice
to the Registrar and to any other party, request that the Tribunal give an
interpretation of the award. Any other party may comment on such request
within 15 days of its receipt. If the Tribunal considers the request to be
justified, it shall give the interpretation in writing within 45 days after the
receipt of the request. The interpretation shall form part of the award.
29.5 The Registrar may extend the time limits in this Rule.
29.6 The provisions of Rule 28 shall apply in the same manner with the necessary
or appropriate changes in relation to a correction of an award and to any
additional award made.
Rule 30: Fees and Deposits

30.1 The Tribunal’s fees and SIAC’s fees shall be ascertained in accordance
with the Schedule of Fees in force at the time of commencement of the
arbitration. Alternative methods of determining the Tribunal’s fees may be
agreed by the parties prior to the constitution of the Tribunal.
30.2 The Registrar shall fix the advances on costs of the arbitration. Unless
the Registrar directs otherwise, 50% of such advances shall be payable
by the Claimant and the remaining 50% of such advances shall be payable
by the Respondent. The Registrar may fix separate advances on costs for
claims and counterclaims, respectively.
30.3 Where the amount of the claim or the counterclaim is not quantifiable at the
time payment is due, a provisional estimate of the costs of the arbitration
shall be made by the Registrar. Such estimate may be based on the nature
of the controversy and the circumstances of the case. This may be adjusted
in light of such information as may subsequently become available.
30.4 The Registrar may from time to time direct parties to make further advances
297
towards costs of the arbitration incurred or to be incurred on behalf of or for

the benefit of the parties.
30.5 If a party fails to make the advances or deposits directed, the Registrar may,
after consultation with the Tribunal and the parties, direct the Tribunal
to suspend work and set a time limit on the expiry of which the relevant
claims or counterclaims shall be considered as withdrawn without prejudice
to the party reintroducing the same claims or counterclaims in another
proceeding.
30.6 Parties are jointly and severally liable for the costs of the arbitration. Any
party is free to pay the whole of the advances or deposits on costs of the
arbitration in respect of the claim or the counterclaim should the other party
fail to pay its share. The Tribunal or the Registrar may suspend its work, in
whole or in part, should the advances or deposits directed under this Rule
remain either wholly or in part unpaid. On the application of a party, the
Tribunal may issue an award for unpaid costs pursuant to Rule 24(h).
30.7 If the arbitration is settled or disposed of without a hearing, the costs of
arbitration shall be finally determined by the Registrar. The Registrar shall
have regard to all the circumstances of the case, including the stage of pro-
ceedings at which the arbitration is settled or disposed of. In the event that
the costs of arbitration determined are less than the deposits made, there
shall be a refund in such proportions as the parties may agree, or failing an
agreement, in the same proportions as the deposits were made.
30.8 All advances shall be made to and held by SIAC. Any interest which may
accrue on such deposits shall be retained by SIAC.
Rule 31: Costs of the Arbitration

31.1 The Tribunal shall specify in the award, the total amount of the costs of
the arbitration. Unless the parties have agreed otherwise, the Tribunal shall
determine in the award the apportionment of the costs of the arbitration
among the parties.
31.2 The term “costs of the arbitration” includes:
a. the Tribunal’s fees and expenses;
b. the Centre’s administrative fees and expenses; and
c. the costs of expert advice and of other assistance required by the
Tribunal.
Rule 32: Tribunal’s Fees and Expenses

32.1 The fees of the Tribunal shall be fixed by the Registrar in accordance with
the Schedule of Fees and the stage of the proceedings at which the arbitra-
tion ended. In exceptional circumstances, the Registrar may allow an addi-
tional fee over that prescribed in the Schedule of Fees to be paid.
32.2 The Tribunal’s reasonable out-of-pocket expenses necessarily incurred and
other allowances shall be reimbursed in accordance with the applicable
Practice Note.
298
Rule 33: Party’s Legal and Other Costs

33.1 The Tribunal shall have the authority to order in its award that all or a part
of the legal or other costs of a party be paid by another party.
Rule 34: Exclusion of Liability

34.1 SIAC, including the President, members of its Court, directors, officers,
employees or any arbitrator, shall not be liable to any person for any negli-
gence, act or omission in connection with any arbitration governed by these
Rules.
34.2 SIAC, including the President, members of its Court, directors, officers,
employees or any arbitrator, shall not be under any obligation to make any
statement in connection with any arbitration governed by these Rules. No
party shall seek to make the President, any member of the Court, director,
officer, employee or arbitrator act as a witness in any legal proceedings in
connection with any arbitration governed by these Rules.
Rule 35: Confidentiality

35.1 The parties and the Tribunal shall at all times treat all matters relating to the
proceedings and the award as confidential.
35.2 A party or any arbitrator shall not, without the prior written consent of all
the parties, disclose to a third party any such matter except:
a. for the purpose of making an application to any competent court of any
State to enforce or challenge the award;
b. pursuant to the order of or a subpoena issued by a court of competent
jurisdiction;
c. for the purpose of pursuing or enforcing a legal right or claim;
d. in compliance with the provisions of the laws of any State which are
binding on the party making the disclosure;
e. in compliance with the request or requirement of any regulatory body or
other authority; or
f. pursuant to an order by the Tribunal on application by a party with
proper notice to the other parties.
35.3 In this Rule, “matters relating to the proceedings” means the existence of
the proceedings, and the pleadings, evidence and other materials in the
arbitration proceedings and all other documents produced by another party
in the proceedings or the award arising from the proceedings, but excludes
any matter that is otherwise in the public domain.
35.4 The Tribunal has the power to take appropriate measures, including issuing
an order or award for sanctions or costs, if a party breaches the provisions of
this Rule.
299
Rule 36: Decisions of the President, the Court and the Registrar
36.1 Subject to Rule 25.1, the decisions of the President, the Court and the
Registrar with respect to all matters relating to an arbitration shall be con-
clusive and binding upon the parties and the Tribunal. The President, the
Court and the Registrar shall not be required to provide reasons for such
decisions.
36.2 Subject to Rule 25.1, the parties shall be taken to have waived any right of
appeal or review in respect of any decisions of the President, the Court and
the Registrar to any state court or other judicial authority.
Rule 37: General Provisions
37.1 A party who knows that any provision or requirement under these Rules has
not been complied with and proceeds with the arbitration without promptly
stating its objection shall be deemed to have waived its right to object.
37.2 In all matters not expressly provided for in these Rules, the President,
the Court, the Registrar and the Tribunal shall act in the spirit of these
Rules and shall make every reasonable effort to ensure the fair, expeditious
and economical conclusion of the arbitration and the enforceability of any
award.
37.3 The Registrar may from time to time issue Practice Notes to supplement,
regulate and implement these Rules for the purpose of facilitating the
administration of arbitrations governed by these Rules.
SCHEDULE 1
EMERGENCY ARBITRATOR
1. A party in need of emergency relief may, concurrent with or following the

filing of a Notice of Arbitration but prior to the constitution of the Tribunal,
make an application for emergency interim relief. The party shall notify the
Registrar and all other parties in writing of the nature of the relief sought and
the reasons why such relief is required on an emergency basis. The application
shall also set forth the reasons why the party is entitled to such relief. Such
notice must include a statement certifying that all other parties have been noti-
fied or an explanation of the steps taken in good faith to notify other parties.
The application shall also be accompanied by payment of any fees set by the
Registrar for proceedings pursuant to this Schedule 1.
2. The President shall, if he determines that SIAC should accept the application,
seek to appoint an Emergency Arbitrator within one business day of receipt by
the Registrar of such application and payment of any required fee.
3. Prior to accepting appointment, a prospective Emergency Arbitrator shall dis-
close to the Registrar any circumstance that may give rise to justifiable doubts
as to his impartiality or independence. Any challenge to the appointment
of the Emergency Arbitrator must be made within one business day of the
communication by the Registrar to the parties of the appointment of the
Emergency Arbitrator and the circumstances disclosed.
300
4. An Emergency Arbitrator may not act as an arbitrator in any future arbitration
relating to the dispute, unless agreed by the parties.
5. The Emergency Arbitrator shall, as soon as possible but in any event within
two business days of appointment, establish a schedule for consideration of
the application for emergency relief. Such schedule shall provide a reason-
able opportunity to all parties to be heard, but may provide for proceed-
ings by telephone conference or on written submissions as alternatives to a
formal hearing. The Emergency Arbitrator shall have the powers vested in
the Tribunal pursuant to these Rules, including the authority to rule on his
own jurisdiction, and shall resolve any disputes over the application of this
Schedule 1.
6. The Emergency Arbitrator shall have the power to order or award any interim
relief that he deems necessary. The Emergency Arbitrator shall give reasons
for his decision in writing. The Emergency Arbitrator may modify or vacate
the interim award or order for good cause shown.
7. The Emergency Arbitrator shall have no further power to act after the
Tribunal is constituted. The Tribunal may reconsider, modify or vacate
the interim award or order of emergency relief issued by the Emergency
Arbitrator. The Tribunal is not bound by the reasons given by the Emergency
Arbitrator. Any order or award issued by the Emergency Arbitrator shall, in
any event, cease to be binding if the Tribunal is not constituted within 90
days of such order or award or when the Tribunal makes a final award or if
the claim is withdrawn.
8. Any interim award or order of emergency relief may be conditioned on provi-
sion by the party seeking such relief of appropriate security.
9. An order or award pursuant to this Schedule 1 shall be binding on the parties
when rendered. By agreeing to arbitration under these Rules, the parties
undertake to comply with such an order or award without delay.
10. The costs associated with any application pursuant to this Schedule 1 shall
initially be apportioned by the Emergency Arbitrator, subject to the power of
the Tribunal to determine finally the apportionment of such costs.
11. These Rules shall apply as appropriate to any proceeding pursuant to this
Schedule 1, taking into account the inherent urgency of such a proceeding.
The Emergency Arbitrator may decide in what manner these Rules shall apply
as appropriate, and his decision as to such matters is final and not subject to
appeal.
SCHEDULE 2
SPECIAL PROVISIONS FOR SIAC DOMESTIC ARBITRATION RULES
Article 1—Repeal
The Domestic Arbitration Rules of the Singapore International Arbitration Centre,
2nd Edition, 1 September 2002 (SIAC Domestic Arbitration Rules) are repealed.
Article 2—Transitional Provision

Where parties have by agreement expressly referred to arbitration under the
301
SIAC Domestic Arbitration Rules, the agreement shall be deemed to be a

reference to arbitration under these Rules and to this Schedule.
Article 3—Summary Award

1. Upon the expiry of the time limit for the filing of Statement of Claim, Statement
of Defence and Counterclaim under Rule 17 of these Rules, but not later than
21 days after the expiry, if a party considers that there is no valid defence
to its claim or any substantial part of its claim, it may file with the Tribunal
and serve on the other party and the Registrar an application for a summary
award on the claim or part of the claim. “Claim” in this Article includes a
counterclaim.
2. The application shall be accompanied by an affidavit stating the full facts and
detailed grounds in support of it.
3. Within 21 days after service of the application and affidavit, the other party
must, if it wishes to contest the application, file and serve an affidavit in
opposition. The applicant must file any reply affidavit within 14 days from
receipt of the opposition. No further affidavit may be filed without leave of the
Tribunal.
4. The Tribunal may on hearing the application:
a. make an award summarily; or
b. make an order dismissing the application; or
c. make an order requiring security for the applicant’s claim or part of the
claim.
5. The Tribunal’s award or order shall be made in writing within 21 days after
the close of hearing unless extended by the Registrar.
6. Costs referred to in Rules 31, 32 and 33 of these Rules may be awarded in the
discretion of the Tribunal.
7. Rules 28.2, 29.1 and 29.2 of these Rules shall apply, with the necessary or
appropriate changes, to a summary award made under this Article.
8. Where the application is dismissed, the Tribunal shall proceed to continue
with the arbitration.
302
INDEX
[all references are to page number]

[references to “AA” are to the Arbitration Act as revised]
[references to “IAA” are to the International Arbitration Act as revised and amended]
Additional awards remedies, 244–248

domestic arbitrations, 229 supplementary provisions, 249–252
Model Law, 173–175 Applicable law
Agreement in writing amiable compositeur, 164–165
foreign awards, 111 domestic arbitrations, 218–219
Affidavit evidence ex aequo et bono, 164–165
domestic arbitration, 213 express choice of law, 163
Amiable compositeur generally, 161–165
conflict of laws, 164–165 no express choice of law, 163–164
Ancillary orders text of provision, 161
enforcement of international arbitration Appointing authority
agreements, 38–39 definition
Anti-arbitration injunctions general note, 11
enforcement of international arbitration text of provision, 11
agreements, 41 domestic arbitration
Anti-suit injunctions generally, 189
generally, 74–76 immunity, 256
Appeals generally, 43
domestic arbitration immunity, 109–110, 256
applications for leave, 253 Model Law, 132
consensual appeals, 240–241 Appointments of arbitrators, See also
criteria for permission to appeal, Challenge to appointment of
236–238 arbitrators
effect of order of court, 252–253 challenges to
exclusion by agreement, 239–240 Model Law, 137–141
generally, 235–248 SIAC Rules, 289–290
grant of permission, 242–244 default position
“just and proper”, 244 IAA, 47–48
leave of court, 253 Model Law, 135–137
non-consensual appeals, 241 domestic arbitration
notice of legal proceedings, 253–254 challenges, 203–204
procedural matters, 248 generally, 201–203
procedure, 273–274 generally, 135–137
question of law, 238–239 IAA, 47–48
303
Model Law charging property as to solicitor’s costs,

challenge, 137–141 228–229
default position, 135–137 consent, by, 222–223
generally, 135–137 correction, 229
substitutes, 144–145 costs, 224–225
SIAC Rules court’s powers, 230–253
challenge, 289–290 definition, 189
confirmation, 287–288 different issues, on, 219
multi-party, 288 effect, 230
number of arbitrators, 287–288 enforcement, 232–233
qualifications, 288–289 extensions of time for making award,
replacement, 290 220–222
sole arbitrator, 287 fees of arbitrator, 225–226
three arbitrators, 287 form and contents, 223–224
sole arbitrators interest, 220
IAA, 47 interpretation, 229
SIAC Rules, 287 law applicable to substance of dispute,
substitutes, 144–145 218–219
Appointment of conciliator remedies, 220
international arbitration, 80–82 setting aside, 234–235
Appointment of mediator withholding in case of non-payment of
domestic arbitration, 258–259 fees and expenses, 227–228
Arbitrability Arbitral awards (international
public policy, 55–56, 124–127 arbitration)
refusal of enforcement of foreign awards, authentication, 90–91
124–127 consent, by, 83–84
Arbitral awards (domestic arbitration), correction
See also Arbitral awards IAA, 88
(international arbitration) Model Law, 171–175
additional award, 229 definition
appeals against general note, 11–12
applications for leave, 253 text of provision, 11
consensual appeals, 240–241 different issues, on, 86–88
criteria for permission to appeal, effect, 88–90
236–238 enforcement
effect of order of court, 252–253 IAA, 46
exclusion by agreement, 239–240 limitation period, 46
generally, 235–248 Model Law, 181
grant of permission, 242–244 foreign awards, 111
“just and proper”, 244 form and content
leave of court, 253 IAA, 88–89
non-consensual appeals, 241 Model Law, 167–170
notice of legal proceedings, general note, 11–12
253–254 interest, 91–93
procedural matters, 248 Model Law
procedure, 273–274 additional sums, 173–175
question of law, 238–239 correction, 171–175
remedies, 244–248 enforcement, 181
supplementary provisions, 249–252 form and contents, 167–170
authentication, 256 interpretation, 173
304
recognition, 181 Arbitral systems, See also Arbitration
setting aside, 175–181 Act; International Arbitration
settlement, 166–167 Act
slip rule, 171–175 differences between domestic and
modifying, 46 international systems, 4–5
nullifying, 46 domestic arbitrations, 189–260
recognition international arbitrations, 9–186
IAA, 84–86 Model Law, 2–3
Model Law, 181 nature of systems, 3–5
setting aside (IAA) structure, 1–2
breach of natural justice, 102–107 Arbitral tribunal
delegation of judicial functions to third anti-suit injunctions, 74–76
party, 104 conflicts of law
denial of right to reply, 104 amiable compositeur, 164–165
discrimination, 104 ex aequo et bono, 164–165
failure to deal with all issues put, express choice of law, 163
105–106 generally, 161–165
failure to hear one of parties, 104 no express choice of law, 163–164
generally, 46, 100–101 text of provision, 161
grounds for, 100–101 court-ordered interim measures
induced by fraud or corruption, anti-suit injunctions, 74–76
101–102 geographical scope, 70
serious irregularity, 102–103 orders for security, 72–73
substantial injustice, 102–103 preservation of assets, 73–74
text of provision, 100 relationship between court and
setting aside (Model Law) arbitrators, 70–72
dispute not within arbitration scope of court’s power, 68–70
agreement, 177 text of provisions, 68
effect of successful application, definition
180–81 general note, 11–12
generally, 175–176 text of provision, 11
improper composition of tribunal, 177 domestic arbitration
improper procedure, 178 arbitrators, 201–208
inability to present case, 177 competence to rule on own initiative,
incapacity, 176 208–209
invalidity of arbitration agreement, definition, 189
177 duties, 210
procedure, 180 immunity, 256
public policy, 178 jurisdiction, 209–210
time limit, 179–180 powers, 213–217
settlement, 166–167 enforcement of orders or directions,
SIAC Rules 59–60
additional, 297 evidence, 62–65
correction, 297 expert appointed by tribunal, 65
costs of arbitration, 298 form of procedure, 62–64
costs of parties, 299 interim measures
generally, 296 anti-suit injunctions, 74–76
tribunal’s fees and expenses, 298 geographical scope, 70
slip rule, 171–175 orders for security, 72–73
taxation of costs, 93–96 preservation of assets, 73–74
305
relationship between court and commencement, 189

arbitrators, 70–72 definitions, 189–190
scope of court’s power, 68–70 general provisions
text of provisions, 68 arbitral proceedings, 210–218
judicial support, 59–60 arbitral tribunal, 201–208
Model Law arbitration agreement, 192–194
applicable law, 161–165 awards, 218–230
appointment of arbitrators, commencement of legal proceedings,
135–137 197–200
competence to rule on its jurisdiction, jurisdiction of arbitral tribunal,
145–149 208–210
composition, 135–145 stay of legal proceedings, 194–197
conduct of proceedings, 155–161 long title, 187
interim measures, 150–155 miscellaneous provisions, 253–260
jurisdiction, 145–149 preliminary provisions, 189–192
kompetenz-kompetenz principle, reckoning periods of time, 258
147–148 service of notices, 257
preliminary orders, 151–152 short title, 189
separability principle, 145–147 transitional provisions, 260
powers Arbitration agreements
anti-suit injunctions, 74–76 definition
arbitrators, 58–59 general note, 13–22
enforcement of orders or directions, Model Law, 132–133
59–60 text of provision, 11
evidence, 62–64 domestic arbitration
expert appointed by tribunal, 65 death of party, 193–194
form of procedure, 62–64 definition, 192
general note, 58–68 generally, 192–194
interest, 68 enforcement, 26–41
judicial support, 59–60 foreign awards, 111
language, 65 form, 133
obtaining evidence, 64 general note, 13–22
remedies, 67 interim measures, 134–135
representation, 65 Model Law, 132–133
securing amount in dispute, substantive claim before court, 134
66–67 Arbitrators (domestic arbitration),
security in the arbitration, 66 See also Arbitrators (international
security for costs, 60–61 arbitration)
text of provision, 57–58 appointment
relationship with arbitrators, challenges, 203–204
70–72 generally, 201–203
remedies, 67 cessation of holding office, 205–206
securing amount in dispute, 66–67 challenge to appointment, 203–204
security in the arbitration, 66 decision by panel, 207–208
security for costs, 60–61 failure to act, 204–205
Arbitration Act (as revised), See also impossibility to act, 204–205
Domestic arbitrations liability, 208
application, 192 number, 201
arrangement of sections, 187–189 power to act as mediator, 259
citation, 187 substitutes, 206–207
306
Arbitrators (international arbitration), “just and proper”, 244
See also Appointment of arbitrators; leave of court, 253
Arbitral tribunal; Challenge to non-consensual appeals, 241
appointment of arbitrators notice of legal proceedings, 253–254
appointment procedural matters, 248
IAA, 47 procedure, 273–274
Model Law, 135–137 question of law, 238–239
SIAC Rules, 287–288 remedies, 244–248
challenge to appointment supplementary provisions, 249–252
Model Law, 137–141 charging property as to solicitor’s costs,
SIAC Rules, 289–290 228–229
decision-making, 165–166 consent, by, 222–223
failure to act, 142–144 correction, 229
impartiality costs, 224–225
Model Law, 137–141 court’s powers, 230–253
SIAC Rules, 289 definition, 189
impossibility to act, 142–144 different issues, on, 219
independence effect, 230
Model Law, 137–141 enforcement, 232–233
SIAC Rules, 288–289 extensions of time for making award,
liability, 109 220–222
Model Law fees of arbitrator, 225–226
overlap with other mechanisms, form and contents, 223–224
50–51 interest, 220
procedure, 51–52 interpretation, 229
scope, 49–50 law applicable to substance of dispute,
number 218–219
IAA, 47 remedies, 220
Model Law, 135 setting aside, 234–235
SIAC Rules, 287 withholding in case of non-payment of
procedure, 140–141 fees and expenses, 227–228
rulings on own jurisdiction Awards (international arbitration)
legislative structure, 49 consent, by, 83–84
text of provision, 48–49 correction
substitute arbitrators, 144–145 IAA, 88
Assistance in taking evidence Model Law, 171–175
domestic arbitrations, 281 definition
Model Law, 160–161 general note, 11–12
Awards (domestic arbitration), See also text of provision, 11
Awards (international arbitration) different issues, on, 86–88
additional award, 229 effect, 88–90
appeals against enforcement
applications for leave, 253 IAA, 84–86
consensual appeals, 240–241 Model Law, 181
criteria for permission to appeal, foreign awards, 111
236–238 form and content
effect of order of court, 252–253 IAA, 88
exclusion by agreement, 239–240 Model Law, 167–170
generally, 235–248 general note, 11–12
grant of permission, 242–244 interest, 91–93
307
Model Law generally, 296

additional sums, 173–175 tribunal’s fees and expenses, 298
correction, 171–175 slip rule, 171–175
enforcement, 181 taxation of costs, 93–96
form and contents, 167–170
interpretation, 173 Bills of lading
recognition, 181 generally, 19
setting aside, 175–181 Breach of agreed composition or
settlement, 166–167 arbitration
slip rule, 171–175 refusal of enforcement of foreign awards,
recognition 124–127
IAA, 84–86 Breach of natural justice
Model Law, 181 delegation of judicial functions to third
setting aside (IAA) party, 104
breach of natural justice, 102–107 denial of right to reply, 104
delegation of judicial functions to third discrimination, 104
party, 104 failure to deal with all issues put, 105–106
denial of right to reply, 104 failure to hear one of parties, 104
discrimination, 104 generally, 46, 100–101
failure to deal with all issues put, grounds for, 100–101
105–106 induced by fraud or corruption, 101–102
failure to hear one of parties, 104 serious irregularity, 102–103
generally, 46, 100–101 setting aside awards, 102–107
grounds for, 100–101 substantial injustice, 102–103
induced by fraud or corruption, text of provision, 100
101–102
serious irregularity, 102–103 Calculation of periods of time
substantial injustice, 102–103 SIAC Rules, 284
text of provision, 100 Challenge to appointment of arbitrators
setting aside (Model Law) domestic arbitration, 203–204
dispute not within arbitration grounds, 137–140
agreement, 177 lack of impartiality, 137–141
effect of successful application, lack of independence, 137–141
180–181 procedure, 140–141
generally, 175–176 SIAC Rules
improper composition of tribunal, 177 decisions, 289–290
improper procedure, 178 generally, 289
inability to present case, 177 notice, 289
incapacity, 176 Choice of law
invalidity of arbitration agreement, conflict of laws, 163
177 Commencement of proceedings
procedure, 180 domestic arbitrations
public policy, 178 extensions of time, 197–200
time limit, 179–180 generally, 197
settlement, 166–167 Limitation Act, 200
SIAC Rules undue hardship, 198–199
additional, 297 Model Law, 157
correction, 297 Conciliators
costs of arbitration, 298 appointment, 80–82
costs of parties, 299 power of arbitrator to act, 82
308
Concurrent hearings generally, 171–172
domestic arbitrations, 212–213 interpretation of award, 173
Conduct of arbitral proceedings Corruption
assistance in taking evidence, 160–161 setting aside awards, 101–102
commencement of proceedings, 157 Costs
default of party, 159–160 domestic arbitrations, 224–225
defence, 158 IAA, 93–96
determination of rules of procedure, 155 Model Law, 152
equal treatment of parties, 155 SIAC Rules, 298
expert appointed by tribunal, 160 “Court”
hearings, 158–159 domestic arbitrations, 189
language of arbitration, 157–158 foreign awards, 111
place of arbitration, 156–157
SIAC Rules, 290–291 Damages
statements of claim, 158 Model Law, 152
written proceedings, 158–159 Death of party
Confidentiality domestic arbitrations, 193–194
exceptions, 98 Decision-making by arbitrators
IAA, 96–97 Model Law, 165–166
position of Singapore, 97–98 Defences
SIAC Rules, 299 domestic arbitrations, 211
Conflict of laws international arbitrations, 158
amiable compositeur, 164–165 Delays
ex aequo et bono, 164–165 stay of proceedings, 39–40
express choice of law, 163 Delegation of judicial functions to third
generally, 161–165 party
no express choice of law, 163–164 setting aside awards, 104
text of provision, 161 Denial of right to reply
Consent awards setting aside awards, 104
domestic arbitrations, 222–223 Deposits
international arbitrations, 83–84 SIAC Rules, 297–298
Consolidation of proceedings Determination of preliminary point of
domestic arbitrations, 212–213 law
Contracting out of IAA and Model Law effect of order of court, 252–253
application of rules of arbitration, 79–80 generally, 230–232
generally, 78 supplementary provisions, 249–252
Contracts (Rights of Third Parties) Act Discrimination
enforcement of contractual term, 266 setting aside awards, 104
arbitration provisions, 266–268 Domestic arbitrations, See also
Convention countries, See also Foreign Arbitration Act
awards affidavit evidence, 213
definition, 111 appeals against awards
generally, 127 applications for leave, 253
Correction of awards consensual appeals, 240–241
domestic arbitrations, 229 criteria for permission to appeal,
IAA, 88 236–238
Model Law effect of order of court, 252–253
additional award, 173–175 exclusion by agreement, 239–240
correction without application, 173 generally, 235–248
errors on application, 172–173 grant of permission, 242–244
309
“just and proper”, 244 power to act as mediator, 259

leave of court, 253 substitutes, 206–207
non-consensual appeals, 241 awards
notice of legal proceedings, 253–254 additional award, 229
procedural matters, 248 appeals against, 235–249
procedure, 273–274 charging property as to solicitor’s costs,
question of law, 238–239 228–229
remedies, 244–248 consent, by, 222–223
supplementary provisions, 249–252 correction, 229
appointing authority costs, 224–225
generally, 189 court’s powers, 230–253
immunity, 256 definition, 189
appointment of arbitrators different issues, on, 219
challenges, 203–204 effect, 230
generally, 201–203 enforcement, 232–233
appointment of mediators, 258–259 extensions of time for making award,
arbitral proceedings 220–222
appointment of experts, 213 fees of arbitrator, 225–226
concurrent hearings, 212–213 form and contents, 223–224
consolidation of proceedings, interest, 220
212–213 interpretation, 229
defences, 211 law applicable to substance of dispute,
duties of arbitral tribunal, 210 218–219
hearings, 211–212 remedies, 220
powers of arbitral tribunal, 213–217 setting aside, 234–235
rules of procedure, 210–211 withholding in case of non-payment of
statements of claim, 211 fees and expenses, 227–228
written proceedings, 211–212 challenge to appointment of arbitrators,
arbitral tribunal 203–204
arbitrators, 201–208 commencement of proceedings
competence to rule on own initiative, extensions of time, 197–200
208–209 generally, 197
definition, 189 Limitation Act, 200
duties, 210 undue hardship, 198–199
immunity, 256 court, 189
jurisdiction, 209–210 court’s powers
powers, 213–217 appeals against awards, 235–249
arbitration agreement determination of preliminary point of
death of party, 193–194 law, 230–232
definition, 192 enforcement of award, 232–233
generally, 192–194 setting aside award, 234–235
arbitrators support of arbitration proceedings, in,
appointment, 201–203 217–218
cessation of holding office, 205–206 custody of evidence, 214
challenge to appointment, 203–204 custody of subject matter, 214
decision by panel, 207–208 death of party, 193–194
failure to act, 204–205 definitions, 189–191
impossibility to act, 204–205 determination of preliminary point of
liability, 208 law
number, 201 effect of order of court, 252–253
310
generally, 230–232 extension of time for commencement
supplementary provisions, 249–252 of proceedings, 275
differences from international systems, matters for judge, 272
4–5 matters for judge in person, 271–272
discovery, 214 notice requirements, 276
enforcement of awards preliminary question of law, 272
generally, 232–233 registration of Commonwealth awards,
rules of court, 276–277 277
enforcement of interlocutory orders, 276 saving provisions, 277–278
extensions of time service out of jurisdiction, 275–276
commencement of proceedings, setting aside awards, 273
197–200 subpoenas, 276
making award, 220–222 samples, 215
extension of time for commencement of security for costs, 214
proceedings separability of arbitration clause, 208–209
generally, 197–200 service of notices, 257
rules of court, 275 service out of jurisdiction, 275–276
Government, 260 setting aside awards
interrogatories, 214 effect of order of court, 252–253
judicial review, 233 generally, 234–235
jurisdiction of arbitral tribunal, 209–210 notice of legal proceedings, 253–254
limitation periods, 200 rules of court, 254
matters for judge, 272 supplementary provisions, 249–252
matters for judge in person, 271–272 SIAC Rules
notice of legal proceedings, 253–254 special provisions, 301–302
number of arbitrators, 201 stay of legal proceedings
party, 189 court’s powers, 196–197
place of the arbitration generally, 194–196
application of the Act, 192 reference of interpleader issue, 197
definition, 189–190 substitute arbitrators, 206–207
powers of arbitral tribunal subpoenas
default of party, 215–217 generally, 217
general, 213–217 rules of court, 276
preliminary question of law, 272 undue hardship, 198–199
private hearings, 254
reckoning periods of time, 258 Emergency arbitrators
reference of interpleader issue, 197 SIAC Rules, 300–301
registration of Commonwealth awards, Enforcement of awards
277 domestic arbitrations
reporting restrictions, 255 generally, 232–233
rules of court (Order 69) rules of court, 276–277
appeals on question of law arising out IAA, 84–86
of award, 273–274 Model Law, 181
appointed date, 278 rules of court, 280–281
arrangement of Order, 271 Enforcement of interim measures
definitions, 271 Model Law, 152–153
enforcement of arbitration awards, Enforcement of international
276–277 arbitration agreements
enforcement of interlocutory orders, ancillary orders, 38–39
276 anti-arbitration injunctions, 41
311
delay, 39 Fees
disputes, 32–34 domestic arbitrations, 225–226
incapable of performance, 34–36 SIAC Rules, 297–298
inoperative agreements, 34–36 Foreign awards
jurisdictional issues, 29–32 “agreement in writing”, 111
loss of right to seek stay, 36–38 application of provisions, 112
null and void agreements, 34–36 “arbitral award”, 111
procedure, 41 “arbitration agreement”, 111
stay of judicial proceedings, 27–29 Convention countries
text of provision, 26–27 definition, 111
third parties, 39–41 generally, 127
Enforcement of orders or directions “court”, 111
domestic arbitrations, 276 definitions, 111–112
foreign awards enforcement
evidence, 113–115 evidence, 113–115
generally, 113 generally, 113
other provisions of law, 128 other provisions of law, 128
refusal, 115–127 refusal, 115–127
IAA evidence, 113–115
generally, 59–60 New York Convention 1958
rules of court, 280–281 generally, 112
Equal treatment of parties text, 181–186
Model Law, 155 recognition, 113
Evidence refusal of enforcement
foreign awards, 113–115 appeals against award pending,
powers of arbitral tribunals, 62–64 123–124
Ex aequo et bono arbitrability, 124–127
conflict of laws, 164–165 breach of agreed procedure, 122
Exclusion of liability defendant under some incapacity,
SIAC Rules, 289 118
Expedited procedure generally, 116–118
SIAC Rules, 286 inability to present case, 120–121
Experts appointed by tribunal invalid arbitration agreement, 119
domestic arbitrations, 213 public policy, 124–127
IAA, 65 substantive jurisdiction, 121–122
Model Law, 160 text of provision, 115–116
SIAC Rules, 293 relevant arbitration agreements, 112
Extension of time for commencement Fraud or corruption
of proceedings setting aside awards, 101–102
domestic arbitrations Freezing injunctions
generally, 197–200 arbitral courts, 72–73
rules of court, 275
Government
Failure to act domestic arbitrations, 260
domestic arbitrations, 204–205 international arbitrations, 128
international arbitrations, 142–144
Failure to deal with all issues put Hearings
setting aside awards, 104–105 domestic arbitrations, 211–212
Failure to hear one of parties Model Law, 158–159
setting aside awards, 104 SIAC Rules, 292–293
312
High Court scope of court’s power, 68–70
appointing authority, as, 132 text of provisions, 68
damages, 152
Immunity disclosure, 152
domestic arbitrations, 256 enforcement, 152–153
international arbitrations, 109–110 modification, 151
State Immunity Act, 261, 262–263 provision of security, 151
Impartiality of arbitrators powers of arbitral tribunal, 149
Model Law, 138–140 powers of court, 153–155
SIAC Rules, 289 recognition, 152–153
Impossibility to act suspension, 151
domestic arbitrations, 204–205 termination, 151
international arbitrations, 142–144 International Arbitration Act (as
Inability to present case revised and amended), See
refusal of enforcement of foreign awards, also International commercial
120–121 arbitrations
setting aside awards, 177 application
Incapable of performance foreign awards, 112
stay of proceedings, 34–36 Government, to, 128
Incapacity of defendant international commercial arbitration,
refusal of enforcement of foreign 24–26
awards, 118 arrangement of sections, 9–10
Independence of arbitrators citation, 9
Model Law, 138–140 commencement, 9
SIAC Rules, 288–289 contents, 9–10
Independent set-off definitions
stay of proceedings, 28 foreign awards, 111–128
Induced by fraud or corruption international commercial arbitration,
setting aside awards, 101–102 13–22
Injunctive relief general note, 10
State Immunity Act, 265 general provisions
Inoperative agreements application, 128–129
stay of proceedings, 34–36 foreign awards, 111–128
Interest international commercial arbitration,
awards, on 13–111
domestic arbitrations, 220 Rules of Court, 128
international arbitrations, long title, 8
91–93 schedules, 128–186
Interim measures short title, 10
arbitration agreements, 134–135 transitional provisions, 111
conditions for grant, 150 International arbitration agreements
costs, 152 enforcement
court-ordered ancillary orders, 38–39
anti-suit injunctions, 74–76 anti-arbitration injunctions, 41
generally, 153–155 delay, 39
geographical scope, 70 disputes, 32–34
orders for security, 72–73 incapable of performance, 34–36
preservation of assets, 73–74 inoperative agreements, 34–36
relationship between court and jurisdictional issues, 29–32
arbitrators, 70–72 loss of right to seek stay, 36–38
313
null and void agreements, 34–36 consent, by, 83–84

procedure, 41 correction, 88
stay of judicial proceedings, 27–29 definition, 11
text of provision, 26–27 different issues, on, 86–88
third parties, 39–41 effect, 88–90
International commercial arbitrations, enforcement, 84–86
See also International Arbitration form and content, 88
Act interest, 91–93
anti-suit injunctions setting aside, 100–109
generally, 74–76 taxation of costs, 93–96
appointing authority conciliators
definition, 11 appointment, 80–82
general note, 11–12 power of arbitrator to act, 82
immunity, 109–110 confidentiality, 96–97
appointment of conciliator, 80–82 consent awards, 83–84
arbitral tribunal contracting out of IAA and Model Law
definition, 11 application of rules of arbitration,
general note, 11–12 79–80
powers, 57–58 generally, 78
arbitral tribunal’s powers correction of awards, 88
anti-suit injunctions, 74–76 costs, 93–96
arbitrators, 58–59 definitions
enforcement of orders or directions, appointing authority, 11
59–60 arbitral tribunal, 11
evidence, 62–64 arbitration agreement, 13–22
expert appointed by tribunal, 65 award, 11
form of procedure, 62–64 general, 11
general note, 58–68 differences from domestic systems, 4–5
interest, 68 enforcement of awards
judicial support, 59–60 generally, 84–86
language, 65 rules of court, 280–281
obtaining evidence, 64 enforcement of international arbitration
procedure, 62–64 agreements
remedies, 67 ancillary orders, 38–39
representation, 65 anti-arbitration injunctions, 41
securing amount in dispute, 66–67 delay, 39
security in the arbitration, 66 disputes, 32–34
security for costs, 60–61 incapable of performance, 34–36
text of provision, 57–58 inoperative agreements, 34–36
arbitration agreement jurisdictional issues, 29–32
definition, 11 loss of right to seek stay, 36–38
enforcement, 26–41 null and void agreements, 34–36
general note, 13–22 procedure, 41
arbitrators stay of judicial proceedings, 27–29
default appointment, 47–48 text of provision, 26–27
liability, 109 third parties, 39–41
number, 47 enforcement of orders or directions
rulings on own jurisdiction, 48–54 generally, 59–60
award rules of court, 280
authentication, 90–91 evidence, 62–64
314
expert appointed by tribunal, 65 definitions, 278
foreign awards enforcement of arbitration awards,
Convention countries, 127 280–281
evidence, 113–115 enforcement of interlocutory orders,
generally, 111–113 280
recognition and enforcement, 113, 128 matters for judge, 279
refusal of enforcement, 115–127 matters for judge in person,
form of procedure, 62–64 278–279
Government, 128 service out of jurisdiction, 279–280
incapable of performance, 34–36 subpoenas, 281
independent set-off, 28 taking of evidence, 281
inoperative agreements, 34–36 securing amount in dispute, 66–67
interest security for costs, 60–61
awards, on, 91–93 service out of jurisdiction, 279–280
interpleader issues, 56–57 setting aside awards
judicial support, 59–60 breach of natural justice, 102–107
kompetenz-kompetenz principle, 49 delegation of judicial functions to third
law of arbitration other than Model Law, party, 104
78 denial of right to reply, 104
Limitation Act discrimination, 104
effect of award being set aside, 46 failure to deal with all issues put,
effect of s. 8A, 44 105–106
limitation period and enforcement of failure to hear one of parties, 104
award, 46 generally, 46, 100–101
running time for commercial grounds for, 100–101
arbitration proceedings, 44–46 induced by fraud or corruption,
text of provisions, 43–44 101–102
matters for judge, 279 serious irregularity, 102–103
matters for judge in person, 278–279 substantial injustice, 102–103
meaning text of provision, 100
general note, 24–26 stay of proceedings
text of provision, 24 court’s powers, 41–43
Model Law generally, 27–29
force of law, 22–23 text of provision, 26–27
interpretation, 23–24 subpoenas
null and void agreements, 34–36 generally, 76–78
number of arbitrators, 47 rules of court, 281
party, 11 taking of evidence, 281
place of arbitration, 23 taxation of costs, 93–96
place of business, 25–26 transitional provisions, 111
place of performance of obligations, witness summonses, 76–78
23 Interpleader issues
private hearings powers of arbitral tribunals, 56–57
generally, 96–99 Interrogatories
reporting restrictions, 99–100 domestic arbitrations, 213
public policy, 55–56
remedies, 67 Judicial review
reporting restrictions, 99–100 domestic arbitrations, 233
rules of court (Order 69A) Judicial support
arrangement of Order, 278 powers of arbitral tribunals, 59–60
315
Jurisdiction of arbitral tribunal arbitrators, 135–137

appeals on rulings of jurisdiction competence to rule on its jurisdiction,
costs, 54 145–149
IAA, 52–53 composition, 135–145
legislative structure, 49 conduct of proceedings, 155–161
Model Law, 49–52, 53 interim measures, 150–155
nature of judicial proceedings, 53–54 jurisdiction, 145–149
text of provisions, 48–49 kompetenz-kompetenz principle,
competence to rule on its jurisdiction, 147–148
145–149 preliminary orders, 151–152
domestic arbitrations, 208–210 separability principle, 145–147
kompetenz-kompetenz principle arbitration agreements
IAA, 49 definition, 133–134
Model Law, 147–148 form, 133–134
refusal of enforcement of foreign awards, interim measures, 134–135
124–127 substantive claim before court, 134
separability principle, 145–147 arbitrators
SIAC Rules, 294 appointment, 135–137
challenge to appointment, 137–141
Kompetenz-kompetenz principle decision-making, 165–166
IAA, 49 failure to act, 142–144
Model Law, 147–148 impartiality, 138–140
impossibility to act, 142–144
Language of arbitration independence, 138–140
Model Law, 157–158 number, 135
SIAC Rules, 292 substitute arbitrators, 144–145
Limitation periods assistance in taking evidence, 160–161
domestic arbitrations, 200 awards
international arbitrations additional sums, 173–175
enforcement of awards, 46 correction, 171–175
text of provisions, 43–44 enforcement, 181
form and contents, 167–170
Model Law on International interpretation, 173
Commercial Arbitration recognition, 181
additional awards, 173–175 setting aside, 175–181
applicable law settlement, 166–167
amiable compositeur, 164–165 slip rule, 171–175
ex aequo et bono, 164–165 challenge to appointment of arbitrators
express choice of law, 163 grounds, 137–140
generally, 161–165 lack of impartiality, 138–140
no express choice of law, 163–164 lack of independence, 138–140
text of provision, 161 procedure, 140–141
appointing authority, 132 commencement of proceedings, 157
appointment of arbitrators composition of arbitral tribunal
challenge, 137–141 appointment of arbitrators, 135–137
default position, 135–137 number of arbitrators, 135
generally, 135–137 conduct of arbitral proceedings
substitutes, 144–145 assistance in taking evidence, 160–161
arbitral tribunal commencement of proceedings, 157
applicable law, 161–165 default of party, 159–160
316
defence, 158 interim measures
determination of rules of procedure, arbitration agreements, 134–135
155 conditions for grant, 150
equal treatment of parties, 155 costs, 152
expert appointed by tribunal, 160 court-ordered, 153–155
hearings, 158–159 damages, 152
language of arbitration, 157–158 disclosure, 152
place of arbitration, 156–157 enforcement, 152–153
statements of claim, 158 modification, 151
written proceedings, 158–159 provision of security, 151
conflict of laws powers of arbitral tribunal, 149
amiable compositeur, 164–165 powers of court, 153–155
ex aequo et bono, 164–165 recognition, 152–153
express choice of law, 163 suspension, 151
generally, 161–165 termination, 151
no express choice of law, 163–164 interpretation, 23–24
text of provision, 161 jurisdiction of arbitral tribunal
correction of awards, 171–175 competence to rule on its jurisdiction,
decision-making by arbitrators, 165–166 145–149
defence, 158 kompetenz-kompetenz principle,
definitions, 130 147–148
enforcement of awards, 181 separability principle, 145–147
equal treatment of parties, 155 kompetenz-kompetenz principle, 147–148
expert appointed by tribunal, 160 language of arbitration, 157–158
extent of intervention, 131–132 number of arbitrators, 135
force of law, 22–23 origin, 130
general principles, 130 place of arbitration, 23, 156–157
general provisions preliminary orders
appointing authority, 132 applications, 150–151
arbitration agreements, 132–134 conditions for grant, 150–151
awards, 161–175 costs, 152
composition of arbitral tribunal, damages, 152
135–145 disclosure, 152
conduct of arbitral proceedings, modification, 151
155–161 provision of security, 151
definitions, 130 specific regime, 151
extent of intervention, 131–132 suspension, 151
general principles, 130 termination, 151
interim measures, 150–151 receipt of written communications,
jurisdiction of arbitral tribunal, 130–131
145–149 reception of, 6–8
origin, 130 recognition of awards, 181
preliminary orders, 151–152 recourse against awards, 175–181
receipt of written communications, scope of application, 128–129
130–131 separability principle, 145–147
recourse against awards, 175–181 setting aside awards
scope of application, 128–129 dispute not within arbitration
waiver of right to object, 131 agreement, 177
generally, 2–3 effect of successful application, 180–81
hearings, 158–159 generally, 175–176
317
improper composition of tribunal, IAA

177 generally, 70
improper procedure, 178 introduction, 23
inability to present case, 177 Model Law, 156–157
incapacity, 176 Place of business
invalidity of arbitration agreement, international arbitration, 25–26
177 Place of performance of obligations
procedure, 180 international arbitration, 23
public policy, 178 Preliminary orders
time limit, 179–180 applications, 150–151
settlements, 166–167 conditions for grant, 150–151
slip rule, 171–175 costs, 152
statements of claim, 158 damages, 152
substitute arbitrators, 144–145 disclosure, 152
termination of proceedings modification, 151
generally, 170–171 provision of security, 151
settlement, 166–167 specific regime, 151
waiver of right to object, 131 suspension, 151
written proceedings, 158–159 termination, 151
Private hearings
New York Convention 1958, See also domestic arbitrations, 254
Foreign awards generally, 96–99
generally, 112 reporting restrictions, 99–100
text, 181–186 Public policy
Nominated authority arbitrability, 55–56, 124–127
immunity, 109–110 refusal of enforcement of foreign awards,
UNCITRAL Model Law, 132 124–127
Notice of arbitration
SIAC Rules Recognition of awards
calculation of periods of time, 284 generally, 113
generally, 285 Model Law, 181
responses, 285–286 Reference of interpleader issue
Notice of legal proceedings domestic arbitrations, 197
domestic arbitrations, 253–254 Refusal of enforcement of foreign
Notices awards
SIAC Rules, 284–286 appeals against award pending, 123–124
Null and void agreements arbitrability, 124–127
stay of proceedings, 34–36 breach of agreed procedure, 122
Number of arbitrators defendant under some incapacity, 118
domestic arbitrations, 201 generally, 116–118
IAA, 47 inability to present case, 120–121
Model Law, 135 invalid arbitration agreement, 119
SIAC Rules, 287 public policy, 124–127
substantive jurisdiction, 121–122
Party text of provision, 115–116
definition, 11 Registration of Commonwealth
Place of arbitration awards
domestic arbitrations domestic arbitrations, 277
application of the Act, 192 Remedies
definition, 189–190 domestic arbitration
318
appeals, 244–248 Samples
generally, 220 domestic arbitrations, 215
powers of arbitral tribunals, 67 international arbitrations, 57, 69
Replacement of arbitrators Scott v Avery clause
SIAC Rules enforcement of arbitration agreements, 27
generally, 290 Seat of arbitration, See also Place of
repetition of hearings, 290 arbitration
Reporting restrictions IAA, 23
domestic arbitrations, 255 SIAC Rules, 291
international arbitrations, 99–100 Security for amount in dispute
Representation of parties powers of arbitral tribunals, 66–67
SIAC Rules, 292 Security for costs
Rules of court, See also Singapore Rules domestic arbitrations, 214
of Court powers of arbitral tribunals, 60–61
domestic arbitrations (Order 69) Security in the arbitration
appeals on question of law arising out powers of arbitral tribunals, 66
of award, 273–274 Separability of arbitration clause
appointed date, 278 domestic arbitrations, 208–209
arrangement of Order, 271 Separability principle
definitions, 271 Model Law, 145–147
enforcement of arbitration awards, Serious irregularity
276–277 setting aside awards, 102–103
enforcement of interlocutory orders, Service of notices
276 domestic arbitrations, 257
extension of time for commencement Service out of jurisdiction
of proceedings, 275 domestic arbitrations, 275–276
matters for judge, 272 international arbitrations, 279–280
matters for judge in person, Set-off
271–272 stay of proceedings, 28
notice requirements, 276 Setting aside awards
preliminary question of law, 272 breach of natural justice, 102–107
registration of Commonwealth awards, delegation of judicial functions to third
277 party, 104
saving provisions, 277–278 denial of right to reply, 104
service out of jurisdiction, 275–276 discrimination, 104
setting aside awards, 273 domestic arbitrations
subpoenas, 276 effect of order of court, 252–253
international arbitrations (Order generally, 234–235
69A) notice of legal proceedings, 253–254
arrangement of Order, 278 rules of court, 271–281
definitions, 278 supplementary provisions, 249–252
enforcement of arbitration awards, failure to deal with all issues put, 105–106
280–281 failure to hear one of parties, 104
enforcement of interlocutory orders, generally, 46, 100–101
280 grounds for, 100–101
matters for judge, 279 induced by fraud or corruption, 101–102
matters for judge in person, 278 Model Law
service out of jurisdiction, 279–280 dispute not within arbitration
subpoenas, 281 agreement, 177
taking of evidence, 281 effect of successful application, 180–81
319
generally, 175–176 generally, 289

improper composition of tribunal, 177 notice, 289
improper procedure, 178 conduct of proceedings, 290–291
inability to present case, 177 confidentiality, 298–299
incapacity, 176 costs of arbitration
invalidity of arbitration agreement, generally, 298
177 tribunal’s fees and expenses, 298
procedure, 180 costs of parties, 299
public policy, 178 definitions, 283–284
time limit, 179–180 deposits, 297–298
serious irregularity, 102–103 domestic arbitration
substantial injustice, 102–103 special provisions, 301–302
text of provision, 100 emergency arbitrators, 300–301
Settlements exclusion of liability, 289
Model Law, 166–167 expedited procedure, 286
SIAC Rules expert appointed by tribunal, 293
additional powers, 293–294 fees, 297–298
appointment of arbitrators hearings, 292–293
challenge, 289–290 jurisdiction of tribunal, 294–295
confirmation, 287–288 language of arbitration, 292
multi-party, 288 notice of arbitration
number of arbitrators, 287 calculation of periods of time, 285
qualifications, 288–289 generally, 285
replacement, 290 responses, 285–286
sole arbitrator, 287 notices, 284–286
three arbitrators, 287 number of arbitrators, 287
arbitrators replacement of arbitrators
appointment, 287 generally, 290
challenge, 289 repetition of hearings, 290
confirmation, 287–288 representation of parties, 292
impartiality, 288–289 scope of application, 283–284
independence, 288–289 seat of arbitration, 292
multi-party appointment, sole arbitrators, 287
288 special provisions, 301–302
number, 287 witnesses, 293
qualifications, 288–289 written statements and documents,
replacement, 290 291–292
sole arbitrator, 287 Singapore International Arbitration
three arbitrators, 287 Centre (SIAC), See also SIAC
awards Rules
additional, 297 appointing authority, as, 132
correction, 297 Slip rule
costs of arbitration, 298 Model Law, 171–175
costs of parties, 299 Sole arbitrators
generally, 296–297 IAA, 47
tribunal’s fees and expenses, 298 SIAC Rules, 287
calculation of periods of time, 284 State Immunity Act
challenge to appointment of arbitration, 261–262, 263–264
arbitrators immunity, 261, 262–263
decisions, 289–290 injunctive relief, 265
320
relevant provisions UNCITRAL Model Law on
arbitration provisions, 261–262 International Commercial
general immunity, 261 Arbitration
Statements of claim additional awards, 173–175
domestic arbitrations, 211 applicable law
Model Law, 158 amiable compositeur, 164–165
Stay of proceedings ex aequo et bono, 164–165
domestic arbitrations express choice of law, 163
court’s powers, 196–197 generally, 161–165
generally, 194–196 no express choice of law, 163–164
reference of interpleader issue, 197 text of provision, 161
IAA appointing authority, 132
court’s powers, 41–43 appointment of arbitrators
delays, 39 challenge, 137–141
generally, 27–32 default position, 135–137
loss of right to seek stay, 36–38 generally, 135–137
reference of interpleader issue, 56–57 substitutes, 144–145
text of provision, 26–27 arbitral tribunal
Subpoenas applicable law, 161–165
domestic arbitrations arbitrators, 135–145
generally, 217 competence to rule on its jurisdiction,
rules of court, 276 145–149
generally, 76 composition, 135–145
produce documents, to, 76–77 conduct of proceedings, 155–161
rules of court, 281 interim measures, 150
taxation of costs, 93–96 jurisdiction, 145–149
testify, to 76–78 kompetenz-kompetenz principle,
Substantial injustice 147–148
setting aside awards, 102–103 preliminary orders, 150–152
Substitute arbitrators separability principle, 145–147
domestic arbitrations, 206–207 arbitration agreements
Model Law, 144–145 definition, 133–134
form, 133–134
Taking evidence interim measures, 134–135
domestic arbitrations, 281 substantive claim before court, 134
Model Law, 160–161 arbitrators
Termination of proceedings appointment, 135–137
generally, 170–171 challenge to appointment, 137–141
settlement, 166–167 decision-making, 165–166
Third parties failure to act, 142–144
rights impartiality, 138–140
applicable law, 270 impossibility to act, 142–144
arbitration provisions, 266–270 independence, 138–140
enforcement of contractual term, 266 number, 135
stay of proceedings, 39–40 substitute arbitrators, 144–145
Three arbitrators assistance in taking evidence, 160–161
Model Law, 136 awards
SIAC Rules, 287 additional sums, 173–175
Transaction set-off correction, 171–175
stay of proceedings, 28 enforcement, 181
321
form and contents, 167–170 composition of arbitral tribunal,

interpretation, 173 135–145
recognition, 181 conduct of arbitral proceedings,
setting aside, 175–181 155–161
settlement, 166–167 definitions, 130
slip rule, 171–175 extent of intervention, 131–132
challenge to appointment of arbitrators general principles, 130
grounds, 137–140 interim measures, 150–151
lack of impartiality, 138–140 jurisdiction of arbitral tribunal,
lack of independence, 138–140 145–149
procedure, 140–141 origin, 130
commencement of proceedings, 157 preliminary orders, 150–152
composition of arbitral tribunal receipt of written communications,
appointment of arbitrators, 135–137 130–131
number of arbitrators, 135 recourse against awards, 175–181
conduct of arbitral proceedings scope of application, 128–129
assistance in taking evidence, 160–161 waiver of right to object, 131
commencement of proceedings, 157 generally, 2–3
default of party, 159–160 hearings, 158–159
defence, 158 interim measures
determination of rules of procedure, arbitration agreements, 134–135
155 conditions for grant, 150
equal treatment of parties, 155 costs, 152
expert appointed by tribunal, 160 court-ordered, 153–155
hearings, 158–159 damages, 152
language of arbitration, 157–158 disclosure, 152
place of arbitration, 156–157 enforcement, 152–153
statements of claim, 158 modification, 151
written proceedings, 158–159 provision of security, 151
conflict of laws powers of arbitral tribunal, 149
amiable compositeur, 164–165 powers of court, 153–155
ex aequo et bono, 164–165 recognition, 152–153
express choice of law, 163 suspension, 151
generally, 161–165 termination, 151
no express choice of law, 163–164 interpretation, 23–24
text of provision, 161 jurisdiction of arbitral tribunal
correction of awards, 171–175 competence to rule on its jurisdiction,
decision-making by arbitrators, 165–166 145–149
defence, 158 kompetenz-kompetenz principle,
definitions, 130 147–148
enforcement of awards, 181 separability principle, 145–147
equal treatment of parties, 155 kompetenz-kompetenz principle, 147–148
expert appointed by tribunal, 160 language of arbitration, 157–158
extent of intervention, 131–132 number of arbitrators, 135
force of law, 22–23 origin, 130
general principles, 130 place of arbitration, 156–157
general provisions preliminary orders
appointing authority, 132 applications, 150–151
arbitration agreements, 133–134 conditions for grant, 150–151
awards, 161–175 costs, 152
322
damages, 152 time limit, 179–180
disclosure, 152 settlements, 166–167
modification, 151 slip rule, 171–175
provision of security, 151 statements of claim, 158
specific regime, 151 stay of proceedings, 4
suspension, 151 substitute arbitrators, 144–145
termination, 151 termination of proceedings
receipt of written communications, generally, 170–171
130–131 settlement, 166–167
reception of, 6–8 waiver of right to object, 131
recognition of awards, 181 written proceedings, 158–159
recourse against awards, 175–181 Undue hardship
scope of application, 128–129 domestic arbitrations, 198–199
separability principle, 145–147
setting aside awards Waiver of right to object
dispute not within arbitration Model Law, 131
agreement, 177 Withholding awards
effect of successful application, 180–81 domestic arbitrations, 227–228
generally, 175–176 Witness summonses
improper composition of tribunal, 177 generally, 76–78
improper procedure, 178 Witnesses
inability to present case, 177 SIAC Rules, 293
incapacity, 176 Written proceedings
invalidity of arbitration agreement, domestic arbitrations, 211–212
177 Model Law, 158–159
procedure, 180 Written statements and documents
public policy, 178 SIAC Rules, 291–292
323

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S I N G APORE AR BITR ATION LEG ISLATION

Injunctive Relief and International Arbitration

Arbitration Act 1996

Robert Merkin and Johanna Hjalmarsson

ROBERT MERKIN, QC, LLD

JOHANNA HJALMARSSON, JUR. KAND., LLM

and by Informa Law from Routledge

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2016 Robert Merkin and Johanna Hjalmarsson

First edition published by Informa Law from Routledge 2009

British Library Cataloguing in Publication Data

Library of Congress Cataloging in Publication Data

ISBN: 978-1-138-80183-7 (hbk)

Chapter 1 BACKGROUND TO THE SINGAPORE LEGISLATION 1

Chapter 2 INTERNATIONAL ARBITRATION ACT 9

Rules of Court 128

SECOND SCHEDULE, CONVENTION ON THE RECOGNITION

Chapter 3 ARBITRATION ACT 187

Reckoning periods of time 258

Chapter 4 OTHER LEGISLATION 261

Chapter 5 RULES OF COURT 271

Chapter 6 RULES OF THE SINGAPORE INTERNATIONAL

SCHEDULE 1, EMERGENCY ARBITRATOR 300

Ahad & anr v. Uddin [2005] EWCA Civ 883�����������������������������������������������������������������38

Gordian Runoff Ltd v. Westport Insurance Corporation [2010] NSWCA 57�����������������168

HSBC Institutional Trust Services (Singapore) Ltd v. Toshin Development Singapore

Kanoria v. Guinness [2006] 1 Lloyd’s Rep 701���������������������������������������������� 117, 118, 121

London Underground Ltd v. Citylink Telecommunications Ltd [2007] EWHC 1749

Monde Petroleum SA v. Westernzagros Ltd [2015] EWHC 67 (Comm)��������������������������20

PT Thiess Contractors Indonesia v. PT Kaltim Prima Coal [2011] EWHC 1842

The Sunwind [1998] 3 SLR 954������������������������������������������������������������������������������������42

Background to the Singapore Legislation

Structure of the arbitration system in Singapore1

3 [2015] SGHC 49.

The two systems

Structure of the present work

force and applicable at the commencement of arbitration apply to a dispute.13 The

Reception of the Model Law

intervene. These apply to an international arbitration only if the parties agree to

International Arbitration Act

An Act to make provision for the conduct of international commercial arbitra-

part ii—international commercial arbitration

19B. Effect of award

part iii—foreign awards

First Schedule—UNCITRAL Model Law on International Commercial Arbitration

1 PT Pukuafu Indah v. Newmont Indonesia Ltd [2012] SGHC 187.

Definition and form of arbitration agreement

12 [2015] SGHC 49.

Scope of arbitration clause

Bills of lading cases

Variations and settlements

52 LRRD No. 3/2001, para. 2.2.5.

Arbitration and other dispute resolution mechanisms

Model Law to have force of law

“Place” of the arbitration

Interpretation of Model Law by use of extrinsic material

70 See LRRD No. 3/2001, para. 2.1.2.

Enforcement of international arbitration agreement

Who decides jurisdictional issues?

Chapter 1 BACKGROUND TO THE SINGAPORE LEGISLATION 1

Chapter 2 INTERNATIONAL ARBITRATION ACT 9

Rules of Court 128

Chapter 3 ARBITRATION ACT 187

Reckoning periods of time 258

Chapter 4 OTHER LEGISLATION 261

Chapter 5 RULES OF COURT 271

Chapter 6 RULES OF THE SINGAPORE INTERNATIONAL

SCHEDULE 1, EMERGENCY ARBITRATOR 300

Ahad & anr v. Uddin [2005] EWCA Civ 883��38

Gordian Runoff Ltd v. Westport Insurance Corporation [2010] NSWCA 57��168

Kanoria v. Guinness [2006] 1 Lloyd’s Rep 701�� 117, 118, 121

Monde Petroleum SA v. Westernzagros Ltd [2015] EWHC 67 (Comm)��20

The Sunwind [1998] 3 SLR 954��42

due deference to the doctrine of Kompetenz-Kompetenz, and in recognition of the

“incurably pathological”, and thus “incapable of being performed”, where despite

Court-ordered interim measures