Commercial Arbitration

Last verified on Thursday 2nd April 2020

Commercial Arbitration: Singapore

Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

DLA Piper

Infrastructure

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

Singapore

Singapore became a signatory to the New York Convention on 21 August 1986. The New York Convention has been in force in Singapore since 19 November 1986, subject to the reciprocity reservation (ie, the Convention will only be applied to the recognition and enforcement of awards made in the territory of another contracting state).

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

Singapore

Singapore is not currently a party to any bilateral or multilateral convention regarding the recognition and enforcement of arbitral awards, although it has entered into several bilateral trade and investment agreements in which disputes are referred to arbitration.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

Singapore

In Singapore, arbitrations are governed by two parallel statutory regimes: the International Arbitration Act (Cap. 143A) (2002 Rev Ed) (IAA) and Arbitration Act (Cap. 10) (2002 Rev Ed) (AA). The IAA applies to international arbitrations as defined in section 5 of the IAA and any arbitrations seated in Singapore which are not governed by the IAA (eg, opted out by the parties) would be governed by the AA.

Section 3 of the IAA provides that the 1985 UNCITRAL Model Law, except for Chapter VIII thereof, shall have the force of law in Singapore. Various elements of the 2006 UNCITRAL Model Law have also been incorporated into the IAA. The UNCITRAL Model Law is not enacted in full in the AA but the provisions are largely based on the UNCITRAL Model Law.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

Singapore

The Singapore International Arbitration Centre (SIAC) is Singapore’s most prominent arbitral institution and the President of the Court of Arbitration of SIAC is the default appointing authority in Singapore under the IAA. An appointment fee is payable to SIAC for such appointments.

SIAC also frequently acts as the appointing authority for arbitrations conducted under the UNCITRAL Arbitration Rules. While the UNCITRAL Rules were designed for use in ad hoc arbitrations, parties can, with special provision, enjoy the benefit of institutional administration of the arbitration by SIAC. 

In addition, many arbitral institutions have established offices in Singapore, including:

  • International Court of Arbitration of the International Chamber of Commerce;
  • International Centre for Dispute Resolution and the international division of the American Arbitration Association;  
  • Arbitration and Mediation Centre of the World Intellectual Property Organization;
  • Singapore Chamber of Maritime Arbitration; and
  • Singapore Institute of Arbitrators.

Each of these institutions can appoint arbitrators depending on the specific terms of the arbitration agreement. 

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

5. Can foreign arbitral providers operate in your jurisdiction?

Singapore

Yes, foreign arbitration providers are permitted to operate in Singapore.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Singapore

Singapore courts are very familiar with and supportive of international arbitration.  Although there is no specialist arbitration court, there is a specialist bench of judges in the High Court who tend to hear all arbitration matters. Singapore courts will generally give full effect to the parties’ arbitration agreement unless such choice offends the law (eg, contrary to public policy, agreement procured by fraud). The Singapore International Commercial Court, which was launched on 5 January 2015, has the same jurisdiction as the High Court to hear proceedings relating to international arbitrations under the IAA.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Agreement to arbitrate

7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

Singapore

The formalities of an arbitration agreement follow the minimal requirement of article 7 (Option 1) of the Model Law. The agreement may take any form but must be in writing. There is no requirement for specific words or form to constitute an arbitration agreement, but the wording used must express a clear and unequivocal intention to arbitrate. An agreement is in writing provided that the content of the arbitration agreement was recorded – regardless of whether the agreement was concluded orally, by conduct or other means.  

Subject to issues of arbitrability, the types of disputes that may be referred to and resolved by arbitration are limited only by the agreement between the parties.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

8. Are any types of dispute non-arbitrable? If so, which?

Singapore

Section 11 of the IAA recognises that any dispute is generally arbitrable in Singapore, unless an arbitration of such dispute is contrary to the public policy of Singapore or ‘not capable of settlement by arbitration’, and the Singapore Courts apply a presumption in favour of arbitrability. There is no exhaustive list of non-arbitrable matters. In determining whether a dispute is arbitrable, Singapore courts will look at whether the dispute has an impact on third parties other than the arbitrating parties. Disputes that have public interest elements are generally non-arbitrable, such as disputes that concern citizenship, legitimacy of marriage or grants of statutory licences.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

Singapore

A third party can only be bound by an arbitration clause by consent (including consent of the arbitrating parties), or where the provisions of the Contracts (Rights of Third Parties) Act (Cap 53B) apply.

Third parties who are not parties to the arbitration agreement are not permitted to participate in the arbitration through joinder, third party notice or otherwise, without the consent of all the parties. Consistently, Rule 7.1 of the SIAC Rules provides that a party or non-party to the arbitration may file an application for one or more additional parties to be joined as a claimant or a respondent, only if the additional party to be joined is prima facie bound by the arbitration agreement, or all parties, including the additional party to be joined, have consented to the joinder of the additional party.

In the decision of PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372, the Singapore Court of Appeal held that the tribunal’s joinder of the sixth to eighth claimants to the arbitration was wrong. The Court of Appeal found that the tribunal’s joinder was ‘predicated on a mistaken construction of the 2007 SIAC Rules’, being that rule 24(b), as it then stood, allowed the joinder of consenting third parties to the arbitration against the wishes of the respondents, even where those third parties were not privy to the arbitration agreement).  

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

Singapore

The IAA does not contain any provisions that confer an arbitral tribunal with power to order consolidation of arbitral proceedings. The parties may, however, themselves consent to consolidate the arbitral proceedings. Alternatively, the parties may have agreed to procedural rules that allow for consolidation, such as Rule 8 of the 2016 SIAC Rules. Rule 8 provides that a party may apply to the Registrar (prior to the constitution of the tribunal) or to the Tribunal to consolidate two or more arbitrations into a single arbitration, provided that certain requirements are met:

  • all parties have agreed to the consolidation;
  • all the claims in the arbitrations are made under the same arbitration agreement, and the same tribunal (if any) has been constituted in each of the arbitrations or no tribunal has been constituted in the other arbitration(s); or
  • the arbitration agreements are compatible, the same tribunal (if any) has been constituted in each of the arbitrations or no tribunal has been constituted in the other arbitration(s), and:
    1. the disputes arise out of the same legal relationship(s);
    2. the disputes arise out of contracts consisting of a principal contract and its ancillary contract(s); or
    3. the disputes arise out of the same transaction or series of transactions.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

11. Is the "group of companies doctrine" recognised in your jurisdiction?

Singapore

The group of companies doctrine has not been recognised by Singapore Courts. Nevertheless, non-signatories may be considered as party to the arbitration agreement through a piercing of the corporate veil (ie, based on the alter ego principle, fraud or abuse of the corporate vehicle). There does not appear to be any Singapore case law on these areas in an arbitration context. Further, the Singapore High Court expressly rejected the single economic entity concept, see Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

12. Are arbitration clauses considered separable from the main contract?

Singapore

Yes, under section 16(1) of the IAA, arbitration clauses are considered separate from the main contract. In BCY v BCZ [2017] 3 SLR 357, the Singapore High Court held that:

‘[s]eparability serves the narrow though vital purpose of ensuring that any challenge that the main contract is invalid does not, in itself, affect the validity of the arbitration agreement. This is necessary because the challenge to the validity of the arbitration agreement often takes the form of a challenge to the validity of the main contract’.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunals jurisdiction and competence?

Singapore

Yes, the principle of competence-competence is recognised in Singapore. Under section 16 of the IAA, the arbitral tribunal has full power to determine its own jurisdiction, including the existence or validity of an arbitration agreement. 

Under section 10 of the IAA, a dissatisfied party may appeal against the tribunal’s jurisdictional ruling (whether finding that it has jurisdiction or that it does not), to the Singapore High Court within 30 days of receipt of the tribunal’s ruling. However, preliminary rulings on jurisdiction can only be challenged under article 16(3) of the Model Law if they do not touch on the merits of the case: see AQZ v ARA [2015] 2 SLR 972. In this case, the Singapore High Court held that relief under article 16(3) was not available as the tribunal’s ruling dealt in some way with the merits of the case, even though the ruling was predominantly on jurisdiction. In that case, the proper recourse would be to challenge the ruling under the relevant limbs of article 34(2) of the Model Law. Under section 10 of the IAA, a party may also appeal the decision of the High Court to the Court of Appeal, provided that the High Court grants leave to do so.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

Singapore

Singapore is a pro-arbitration jurisdiction whose courts consistently uphold the primacy of arbitration agreements, the validity of arbitral awards and readily give effect to interim orders for various kinds of injunctive and other relief. Nevertheless, a clearly worded arbitration clause is always recommended. Parties may also consider whether and to what extent they wish to vary or carve out any non-mandatory provisions under the IAA.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

Singapore

Most arbitrations in Singapore are conducted under institutional rules, with the SIAC Rules being the most popular choice and the ICC Rules being the most-favoured alternative. Specialised industries may choose industry-specific rules, such as the Singapore Chamber of Maritime Arbitration Rules. For ad hoc arbitrations, parties typically choose the UNCITRAL Rules.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Singapore

Multiparty arbitration can cause procedural complications that need to be considered during the drafting of an arbitration clause. There are no specific provisions or restrictions in the IAA relating to multi-party arbitration agreements. In general, if there are two or more parties to a contract, it is important to ensure that each of the parties, regardless of how many there are, receive equal treatment in the formation of the tribunal and throughout the arbitration. It may be helpful to agree on a set of arbitration rules which contain provisions dealing with the issues surrounding multi-party and multi-contract disputes. The 2016 SIAC Rules, for example, contain comprehensive provisions that address the issue of equal treatment, such as the consolidation of arbitrations, joinder of third parties and appointment of arbitrators.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Commencing the arbitration

17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Singapore

Under the IAA, which adopts the procedure set out in article 21 of the Model Law, arbitration proceedings are commenced when a request to refer a dispute to arbitration is received by the respondent. Procedural rules usually specify what the request for arbitration or notice of arbitration should contain: see, for example, Rule 3 of SIAC Rules.

The Limitation Act (Cap. 163) and the Foreign Limitation Periods Act (Cap. 111A) apply to the commencement of arbitration in the same way that they apply to actions commenced in courts. Contractual and tortious claims are subject to a six-year limitation period from the date on which the cause of action accrued.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Choice of law

18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Singapore

Pursuant to article 28(1) of the Model Law as enacted through the IAA, the tribunal shall decide the dispute in accordance with the application of a substantive law or rules of law (that is, lex mercatoria) chosen by the parties. If the parties have not designated any such applicable law or rules of law, then the tribunal shall apply a substantive law determined by conflict of laws rules that the arbitral tribunal considers applicable.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Appointing the tribunal

19. Does the law of your jurisdiction place any limitations in respect of a partys choice of arbitrator?

Singapore

There are no statutory restrictions on a party’s choice of arbitrator. Under article 11(1) of the Model Law, as incorporated in the IAA, no person shall be precluded by reason of his or her nationality from acting as an arbitrator, unless otherwise agreed by the parties.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

Singapore

The IAA does not provide any nationality restriction on the appointment of arbitrators.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

Singapore

Where no nomination is made by a party or parties or the selection mechanism fails, article 11 of the Model Law provides a default appointment of a single arbitrator by the SIAC President as the appointing authority. Under section 9A of the IAA, where parties have agreed on a three-member tribunal, each party is to appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator. If a party fails to do so, the arbitrator will be appointed by the SIAC President. 

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

Singapore

Under section 25 of the IAA, arbitrators are immune against claims for negligence arising from acts or omissions done in the capacity of arbitrator and for any mistake in law, fact or procedure made in the course of the arbitral proceedings or in the making of an arbitration award.  

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Singapore

 The IAA is silent on security for arbitrators’ fees. However, tribunals will generally require the parties to provide advance deposits in respect of its fees and expenses. If the arbitration is administered by an arbitral institution, the institution is likely to obtain an advance deposit from the parties that secure payment of the arbitrators’ fees and expenses as well as institutions’ costs.

SIAC and SCMA both provide fund-holding services.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Challenges to arbitrators

24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Singapore

Under article 12 of the Model Law, First Schedule of the IAA, the two main grounds of challenge are: circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality or independence; and/or the arbitrator does not possess the qualifications agreed to by the parties. Impartiality can be actual, imputed or apparent; PT Central Investindo v Franciscus Wongso and others and another matter [2014] SGHC 190.

An arbitrator may also be replaced on his or her death or resignation, where the arbitrator is mentally or physically incapable of conducting the proceedings or where the arbitrator failed to properly conduct the arbitration with reasonable despatch or in making the award or where substantial injustice has been or will be caused to a party. Under section 14 of the IAA, where the arbitrator is incapable of conducting the proceedings, or where the arbitrator has failed to act without undue delay, either party may apply to the Singapore High Court to remove the arbitrator in the absence of voluntary resignation by the arbitrator or any agreement by the parties to terminate his or her mandate.

In Singapore, the IBA Guidelines on Conflicts of Interest is often referred to for guidance on arbitrator challenges even though these guidelines are not strictly binding.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Interim relief

25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

Singapore

Under section 12 of the IAA, arbitrators have extensive powers to grant interim relief. For example, arbitrators can make orders or give directions to any party for security for costs, discovery of documents, answering of interrogatories, preservation of property which is part of the subject matter of the dispute, securing relevant evidence, securing the amount in dispute, freezing assets pending the award, or any other necessary interim injunction or relief.

The court may also grant similar interim relief in aid of arbitrations that are seated outside Singapore; see section 12A of IAA. However, in line with Singapore’s policy of minimal intervention, the Singapore Court will only exercise its power if the arbitral tribunal or institution has no power to act or is unable to act effectively for the time being and such court orders in whole or in part will cease to have effect if the arbitral tribunal makes an order which expressly relates to the whole or part of that order of the courts. The Singapore Court may issue orders for interim relief even when the seat of arbitration is outside Singapore. 

Where proceedings are brought elsewhere in breach of an arbitration agreement, the Singapore courts have the power to issue an anti-suit injunction. 

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Singapore

Yes, both the Singapore courts and the arbitral tribunal have jurisdiction to order security for costs. However, this power is restricted by section 12(4) of the IAA, which provides that an order cannot be made only if the claimant is an individual ordinarily resident outside Singapore, or corporation incorporated or controlled outside Singapore.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Procedure

27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

Singapore

Although parties are generally free to determine the arbitral procedure, section 15A of the IAA provides that any rules of arbitration chosen by the parties shall be given effect only to the extent that they are not inconsistent with the provisions in the Model Law or Part II of that Act from which the parties cannot derogate. The mandatory provisions include fundamental principles of due process and natural justice, including the obligation to treat parties with equality and give each party a full opportunity to present its case.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

Singapore

Pursuant to article 25(b) of the Model Law, as adopted in the First Schedule of the IAA, if the respondent fails to serve its statement of defence, the arbitral tribunal shall continue the proceedings without treating such failure as an admission of the claimant’s allegations. Article 25(c) allows the arbitral tribunal to continue the proceedings and make the award on the evidence before it even if any party fails to appear at a hearing or to produce documentary evidence.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

Singapore

Pursuant to article 19 of the Model Law, as adopted in the First Schedule of the IAA, the tribunal has broad discretion to determine the admissibility, relevance, materiality and weight of any evidence subject to the mandatory rules of procedural fairness and any arbitral rules agreed by the parties. The common law rules of evidence and the Evidence Act of Singapore do not apply to Singapore-seated arbitrations.

In practice, evidence is often given in the form of witness statements, which are subsequently orally verified at the evidentiary hearing, followed by cross-examination and re-examination of the witness. Cross-examination is typically not restricted to the scope of the witness statements; however, the tribunal may exercise some control in preventing cross-examination from straying beyond the issues identified by the parties.

Re-examination is permitted, but it is usually limited to matters raised in cross-examination. Section 12(3) of the IAA allows the tribunal to adopt an inquisitorial process. Furthermore, the tribunal may appoint one or more experts if necessary. Under article 26 of the Model Law, as adopted in the IAA, the tribunal can also 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 or her inspection.

The IBA Rules on the Taking of Evidence in International Arbitration are frequently referred to.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

30. Will the courts in your jurisdiction play any role in the obtaining of evidence?

Singapore

Under article 27 of the Model Law, an arbitral tribunal or a party (with the tribunal’s approval) can apply to the Singapore courts for assistance in taking evidence from non-parties.

Under section 13 of the IAA, the Singapore courts may order a subpoena to testify or issue a subpoena to produce documents in an arbitration.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

Singapore

Although the Model Law does not expressly mention document production, section 12(1) of the IAA extends the powers given to the tribunal under the Model Law by specifically empowering arbitral tribunals to make orders for the discovery (disclosure) of documents and interrogatories. Such orders for document production may be enforced in the same way as court orders if the court grants leave to do so. In Singapore, arbitrators may choose to follow court practices in determining applications for document production or have regards to international standards as reflected in the IBA Rules on Taking Evidence.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

32. Is it mandatory to have a final hearing on the merits?

Singapore

Under article 24(1) of the Model Law, an arbitral tribunal has discretion to decide whether to hold oral hearings, subject to the parties’ agreement. In practice, oral hearings are usually held unless the parties opt to proceed with the arbitration on a documents-only basis.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Singapore

A Singapore-seated arbitration does not require hearings and procedural meetings to be conducted in Singapore. An arbitral tribunal may decide on the physical venue of the hearings after considering the circumstances of the case, including the convenience of the parties.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Award

34. Can the tribunal decide by majority?

Singapore

For arbitrations with more than one arbitrator, the award is valid so long as a majority of the arbitrators sign the award and the reason for the omitted signature(s) is stated.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

Singapore

No, an arbitral tribunal may grant any remedy or relief that a High Court in Singapore could have ordered if the dispute had been the subject of civil proceedings in that court unless otherwise agreed by the parties. Thus, the tribunal is empowered to grant a wide range of remedies, including damages, rectification, injunctive relief, declarations, indemnities, specifically performance as well as costs and interests (simple or compound).

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

Singapore

There is no prohibition on dissenting opinions in the IAA. Arbitrators who do not agree with the majority view in an award can issue dissenting opinions. Statistics are not available to determine whether dissenting opinions are common in practice.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

37. What, if any, are the legal and formal requirements for a valid and enforceable award?

Singapore

Pursuant to article 31 of the Model Law, as enacted by the IAA, an arbitral award must meet the following requirements:

  • the award must be made in writing and signed by the arbitrators (in the case of two or more arbitrators, by all the arbitrators or the majority of the arbitral tribunal, provided that the reason for any omitted signature of any arbitrator is stated);
  • the award must state the reasons for the award, unless the parties have agreed that no reasons are to be given or the award is one on agreed terms;
  • the award must state the date of the award and the place of the arbitration; and
  • a copy of the award shall be delivered to each party of the proceeding.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Singapore

Under article 33 of the Model Law, as incorporated in the IAA, a party may apply within 30 days of receipt of an award to:

  • correct computational or typographical errors (article 33 1(a));
  • request an interpretation of a specific point or part of an award (article 33(1)(b)).

A request for correction may be made at the request on the tribunal’s own initiative or at the request of any of the parties within 30 days of receipt of the award. Any party may request the tribunal to give an interpretation of a specific point or part of the award, with the agreement of all the other parties. Unless otherwise agreed, requests for interpretation must be made within 30 days of the receipt of the award.

The arbitral tribunal must make any correction or issue any interpretation deemed necessary within 30 days of receipt of the request; whether by amending the original award itself or by way of a separate memorandum.

Article 34(3) of the Model Law provides that 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.

Under section 6(1)(c) of the Limitation Act (Cap. 163), a party seeking to enforce an arbitral award in Singapore must do so within six years from the date that the award was issued.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Costs and interest

39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

Singapore

The IAA does not provide a framework for the allocation of costs by the arbitral tribunal. However, section 12(5) allows the tribunal to "award any remedy or relief that could have been made by the High Court", which includes making an award for costs. Under the IAA, the tribunal, therefore, has full discretion to make the necessary directions with respect to the payment of costs.

The general rule is that ‘costs follow the events’ (ie, the losing party will be ordered to bear the legal costs and arbitration costs incurred by the successful party, in full or in part). This is consistent with the national law of Singapore. Order 59 (3) of the Rules of Court declare that “the Court shall… order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Singapore

Under section 12(5) and 20 of the IAA, an arbitral tribunal may award simple or compound interest on monies claimed in the arbitration and cost orders. The basis (simple or compound; annual or monthly) and rate of interest is at the discretion of the tribunal and largely depend on the circumstances of the case. Where the parties have agreed to a mechanism for calculating interest, an arbitral tribunal will apply a contractual rate of interest on the sum due. Otherwise, there is no mandatory rate of interest. To determine the appropriate rate of interest, arbitral tribunals may be guided by the statutory rate of interest on a judgment debt in Singapore.   

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Challenging awards

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

Singapore

An arbitral award made in an international arbitration under the IAA cannot be appealed. The only recourse against such an award is to challenge the award by making an application to the Singapore High Court to set aside the award. Article 5 of the Model Law, as incorporated in the First Schedule of the IAA, provides that he only grounds on which an award may be set aside are those set out in article 34.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

42. Are there any other bases on which an award may be challenged, and if so what?

Singapore

A party may challenge an award by making an application to the Singapore High Court to set aside the award. Article 34 of the Model Law sets out the grounds on which an award may be set aside, and include:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement was not valid;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the proceedings and was unable to present its case;
  • the award dealt with a dispute not falling within the terms of the arbitration agreement;
  • the tribunal was improperly constituted;
  • the subject matter of the arbitration was not capable of settlement by arbitration; or
  • the award was contrary to public policy.

In addition, section 24 of the IAA, sets out two further grounds for setting aside an award: the making of the award was induced or affected by fraud or corruption; or a breach of natural justice occurred in connection with the making of the award, by which the rights of a party were prejudiced.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Singapore

Parties may not exclude the right to challenge an award on the procedural grounds set out in article 34 of the Model Law. Article 34 is a mandatory provision which parties cannot derogate from.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Enforcement in your jurisdiction

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Singapore

Under section 31(2)(f) of the IAA (which is modelled after article V(1)(e) of  the New York Convention), if an arbitral award has been set aside or suspended by the courts in the seat of arbitration, the Singapore courts may refuse enforcement of such an award. Singapore courts are unlikely to recognise the enforcement of foreign awards that have been set aside at the seat.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

Singapore

Singapore courts continue to have a pro-arbitration attitude and will generally uphold and enforce arbitration awards unless one of the grounds for challenge clearly exist. National courts will enforce arbitration awards in accordance with the New York Convention and the IAA.

In Man Diesel & Turbo SE v IM Skaugen Marine Services Pte Ltd [2018] SGHC 132, the Singapore High Court refused to adjourn an enforcement application on the grounds that an application to set aside the award was pending in the Danish courts, noting that section 31(5) of  the IAA gave a wide discretion to the Court. In exercising its discretion to refuse the adjournment, the Court took into account the merits of  the set-aside application, the impact on the award creditor of  the delay in obtaining the fruits of  the award and the chances of  dissipation of assets by the judgment creditor during the period of adjournment.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Singapore

Singapore has a confined immunity policy as regards to the potential for a state or state entity to raise a defence of state or sovereign immunity at the enforcement stage. Section 15(2) of the State Immunity Act (Cap. 313) provides that subject to subsections (3) and (4):

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

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

Further considerations

47. To what extent are arbitral proceedings in your jurisdiction confidential?

Singapore

Although the IAA does not impose a duty of confidentiality on the parties or the arbitral tribunal, Singapore courts have found that there is a common law duty of confidentiality imposed on the parties to an arbitration and the arbitrator: see Myanmar Yaung Chi Oo Co Limited v Win Nu [2013] 2 SLR 547 and International Coal Pte Ltd v Kristle Trading Ltd & Anor [2009] 1 SLR (R) 945. In that regard, a party may apply to the Singapore High Court under section 22 of the IAA to seal court documents in court proceedings to preserve the confidentiality of a related arbitration.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

Singapore

The implied duty of confidentiality in Singapore arbitrations extends to all documents and information used and disclosed in the arbitration, including evidence produced or pleadings filed in the arbitration.

If an arbitration-related matter proceeds to litigation (ie, where a party files an application to set aside an award), a party may apply to the court to have the matter heard in chamber and for, among other options, the parties to be anonymised if any written judgment is released in respect of the court proceedings.  

There is a risk, however, of unintended disclosure of confidential arbitration material through court-related proceedings. For example, parties could seek access to court documents by relying on the principle of open justice, which exists in many common law jurisdictions. It is recommended that a party to an arbitration obtains a restriction order from the Singapore courts at the very outset to avoid the risk of unintended disclosure.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Singapore

Professional conduct of Singapore-qualified, registered or regulated foreign lawyers conducting arbitrations in Singapore is governed by the Legal Profession (Professional Conduct) Rules 2015.

Article 12 of the Model Law (as enacted by the IAA) requires an arbitrator to ‘disclose any circumstances likely to give rise to justifiable doubts as to his [or her] impartiality or independence’, both when approached in connection with possible appointment as an arbitrator and ‘from the time of his [or her] appointment and throughout the arbitral proceedings’.

In addition, institutions such as the SIAC have a Code of Ethics for Arbitrators, which addresses the topics of appointment, disclosure, bias, communications, fees, conduct and confidentiality with respect to arbitrators. The ICC, which has recently established its case management office in Singapore, also released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration in January 2019, providing for guidance on ‘Conduct of Participants in the Arbitration’.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

Singapore

No, the IAA, which incorporates the Model Law, governs all international arbitrations seated in Singapore. Under article 19 of the Model Law, parties are free to adopt any rules they wish to govern the proceedings, failing which the tribunal may conduct the arbitration in such manner as it considers appropriate.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Singapore

Third-party funding for arbitral claims is permitted in Singapore and regulated by the Civil Law (Amendment) Act 2017 and the Civil Laws (Third Party Funding) Regulations 2017, which came into effect in March 2017.

Any entity can only provide funding if it meets the criteria for a qualifying third-party funder. Amendments were also made to the Legal Profession (Professional Conduct) Rules 2015 to clarify that legal practitioners are under a duty to disclose the existence of a third-party funding contract and the identity of the third-party funder to the court or tribunal, and to every other party to the proceedings, as soon as is practicable. Legal practitioners and law practices are also prohibited from having interests in relevant third-party funders and from receiving referral fees and commissions.

Answer contributed by Gitanjali Bajaj, Matthew Shaw, Queenie Chan and Matthew Shaw 

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