International arbitration in Singapore has continued to flourish since last year’s chapter. This year, we review the significant developments in Singapore from May 2012 to June 2013.
At the end of December 2012, the Singapore International Arbitration Centre (SIAC) had received a record total of 235 new cases, which represented a 25 per cent increase on new filings (from 2011). The total sum in dispute for new cases submitted in 2012 amounted to S$3.61 billion, with the highest claim amount for 2012 being S$1.5 billion. In 2012, the average value of a dispute before SIAC was S$15.36 million, more than double from that in 2011. The new cases were from parties in 39 different countries, with the highest number coming from China, India and Indonesia.
In June 2012, SIAC hosted the 21st ICCA Congress in Singapore, which attracted a record 1,059 participants from 59 countries. One of the highlights was the keynote speech of the then-attorney general Sundaresh Menon (now Singapore’s chief justice) on ‘International Arbitration: The Coming of the New Age for Asia (and Elsewhere)’, which was the winner of Global Arbitration Review’s Best Lecture or Speech Award for 2012 and which has generated much debate and discussion on whether there is a need for regulatory mechanisms in international arbitration.
There have been several significant developments in the form of further revisions to Singapore’s International Arbitration Act (IAA) and a change to the Rules of Arbitration of SIAC (SIAC Rules) on 1 April 2013, which was published following the introduction of a new governance structure within SIAC. There were also a number of interesting matters before both the Singapore Court of Appeal and the Singapore High Court, reported in further detail below:
- The incorporation of an arbitration clause in one contract into another was considered in International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd & Anor  SGHC 226.
- In Maldives Airports Co Ltd & Anor v GMR Malé International Airport Pte Ltd  SGCA 16, the Court of Appeal had to decide whether it should grant a pre-arbitration interim injunction for the purpose of preserving assets under section 12A(4) of the IAA where the asset in question was contractual rights under a concession agreement.
- The confidentiality of arbitration proceedings was upheld in AZT & Ors v AZV  SGHC 116, where the High Court had to consider an application to seal the court documents in respect of proceedings related to an earlier arbitration.
- In PT Pukuafu Indah & Ors v Newmont Indonesia Ltd & Anor  SGHC 187, the High Court held that it did not have the power to set aside an interlocutory order made by an arbitration tribunal.
- The procedure to be adopted when an arbitration tribunal is asked to make an additional award was considered in LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd  SGCA 57.
- In Astro Nusantara International BV v PT Ayunda Prima Mitra  SGHC 212, the High Court considered, inter alia, whether a party could still resist the enforcement of an arbitral award in the seat on jurisdiction grounds when it had not exercised its right to appeal against a positive jurisdiction ruling under article 16(3) of the Model Law nor applied to set aside the final award under the IAA.
International Arbitration (Amendment) Act 2012
In last year’s chapter, we discussed in some detail the key amendments featured in the International Arbitration (Amendment) Act 2012, which came into effect on 1 June 2012. By way of brief summary, some of the more important amendments were:
- broadening the definition of ‘arbitration agreements’;
- allowing parties to have recourse to Singapore courts in respect of negative jurisdictional rulings;
- clarifying the scope of an arbitral tribunal’s power to award interest; and
- according emergency arbitrators with the same legal status and powers as any other arbitral tribunal and ensuring that orders made by emergency arbitrators are enforceable under the IAA regime.
New governance regime in SIAC and SIAC Rules 2013
SIAC released the fifth edition of SIAC Rules, which came into effect on 1 April 2013. These rules gave effect to a new governance structure, as well as introducing new rules for the conduct of arbitration, and apply to all arbitrations commenced on or after 1 April 2013.
Under the new governance structure, a court of arbitration (the SIAC Court) has been established to oversee the case administration and arbitral functions of SIAC, whilst the corporate and business development functions will continue to be run by the board of directors. The SIAC Court will undertake the functions previously undertaken by the chairman of SIAC, including determining challenges to arbitrators pursuant to rule 13 and to jurisdiction pursuant to rule 25. The determination of applications for expedited procedure pursuant to rule 5, and appointing arbitrators pursuant to rule 6 and emergency arbitrators pursuant to schedule 1 will now be functions of the SIAC Court president. Dr Michael Pryles has been appointed as the founder president of the SIAC Court, which comprises 16 leading arbitrators and practitioners from around the world.
The substantive changes include introducing a new rule 24(n) to apply the decision of the Singapore Court of Appeal in PT Prime International Development v Kempinski Hotels SA  4 SLR 98 in which it was held that a tribunal can have regard to issues in dispute which arise in the course of proceedings but which were not formally ‘pleaded’. An arbitral tribunal can now decide, where appropriate, any issue not expressly or impliedly raised in the parties’ submissions, provided the issue has been clearly brought to the notice of the other party and that party has been given adequate opportunity to respond.
Under the new rule 3.1(d), reference is now extended to disputes arising under an investment treaty or any other instrument conferring jurisdiction on SIAC, mirroring SIAC’s efforts to promote itself as a centre for investment treaty arbitrations.
Amendments have also been made to extend certain powers of the registrar of SIAC. For example, under rule 2.5 the registrar may at any time extend or shorten any prescribed time limits, and rule 3.3 allows the registrar to deem that an arbitration has commenced, even where the notice of arbitration has not fully complied with the criteria in rule 3.1, as long as there has been ‘substantial compliance’. Under rule 30.2, the registrar may fix separate advances on costs for claims and counterclaims respectively.
Arbitral tribunals may now, pursuant to the new rule 28.7, award interest in respect of any period deemed appropriate, including post-award interest. This amendment brings the SIAC Rules into line with the recent amendments to section 20 of the IAA.
Finally, a new rule 28.10 expressly authorises SIAC to publish any award with the names of the parties and other identifying information redacted. At the end of 2012, SIAC published its first volume of redacted awards – Singapore Arbitral Awards 2012 – which has been welcomed by practitioners as a significant resource. This new rule will assist in SIAC’s efforts in publishing redacted awards as it is anticipated that the award digest will be published on an annual basis.
Construction of an arbitration agreement
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and Anor  SGHC 226 was a case that concerned the challenge of an arbitral tribunal’s ruling on jurisdiction pursuant to section 10 of the IAA. The gist of the challenge was whether an arbitration clause contained in one contract between two parties bound a third party who subsequently entered into a supplemental agreement with the two original parties.
The plaintiff (IRCP) and the second defendant (Datamat) were respondents in an arbitration instituted by the first defendant (Lufthansa), pertaining to payments due to Lufthansa under a cooperation agreement between Lufthansa and Datamat. Datamat was unable to meet its obligations and so the three parties entered into supplemental agreements whereby IRCP would pay Lufthansa for services rendered under the cooperation agreement in return for Datamat transferring to IRCP monies received pursuant to an agreement with Thai Airways.
Clauses 37.2 and 37.3 of the cooperation agreement contained a multi-tiered dispute resolution mechanism, with clause 37.3 providing that all disputes arising from the cooperation agreement would be settled by arbitration in Singapore. Lufthansa terminated the cooperation and supplemental agreements as a result of outstanding sums due from IRCP and commenced arbitration proceedings pursuant to clause 37.3. However, IRCP objected to being joined to the arbitration as it was not a party to the arbitration agreement contained in the cooperation agreement.
High Court decision
The Singapore High Court noted that, generally, the approach towards incorporating an arbitration clause in one agreement into another was extremely strict and in the present case there were no clear words in the supplemental agreements that expressly referred to clause 37.3. Accordingly, if the Court was to apply the strict rule that clear words were required to incorporate an arbitration agreement it had to follow that clause 37.3 had not been incorporated into the supplemental agreements.
However, the Court held that it must determine whether the strict rule was applicable in every circumstance and particularly in this case. The fact that there was no specific reference to clause 37.3 in the supplemental agreements was not conclusive; the question was whether, by entering into the supplemental agreements and having regard to the factual matrix where the supplemental agreements were actually annexed to and formed an integral part of the cooperation agreement, the three parties had intended the terms of the cooperation agreement (and particularly the dispute resolution mechanism) to be binding on all three parties.
It was the Court’s view in this case that the proper contextual interpretation, giving adequate regard to the plain language of the supplemental agreements and its background context, led to the conclusion that the parties had intended the same dispute resolution mechanism in the cooperation agreement to bind all three parties to the supplemental agreements. There was no denying the interdependence between the obligations in the supplemental agreements and those in the cooperation agreement. Further, the Court held that it made little commercial sense to have different dispute resolution mechanisms, the applicability of which depended on the identity of the parties.
The Court clarified that the strict rule still retained its utility and would apply in the majority of circumstances. However, whether an arbitration agreement was incorporated into one contract from another was effectively a function of the parties’ intentions objectively ascertained and the absence of specific words should not be conclusive evidence that the parties did not intend to be bound by the arbitration agreement contained in a different contract.
Pre-arbitration interim injunction for the preservation of assets
In Maldives Airports Co Ltd and Anor v GMR Malé International Airport Pte Ltd  SGCA 16, a dispute arose between GMR Malé International Airport Private Limited (GMR), who was granted a concession by the Republic of Maldives and Maldives Airports Company Limited (collectively the Maldives government) to expand and modernise the Malé International Airport.
The Maldives government gave seven days’ notice to GMR to vacate the airport. Both parties commenced separate arbitration proceedings and pending constitution of the tribunal, GMR applied to the Singapore High Court (being the court of the seat) and obtained an interim injunction to restrain the Maldives government from interfering with the performance of its obligations under the concession agreement. An injunction was also sought against the Maldives government from taking possession or control of the airport or its facilities pending further order by the Singapore Court or while an arbitral tribunal constituted to resolve the dispute, but this was not granted.
This was appealed to the Singapore Court of Appeal. A jurisdiction issue was raised as to whether a Singapore court had the power to grant the injunction granted by the High Court against the government of a foreign sovereign state, on the basis of the Act of State doctrine. Further, in considering whether to uphold the injunction, the Court of Appeal had to consider whether a Singapore court had the jurisdiction and power to grant the injunction sought by GMR and if so, whether the balance of convenience was in favour of granting the injunction. The material provision was section 12A(4) of the IAA, read with section 12A(2) and section 12(1)(i), which provided that the High Court may grant an interim injunction if it was ‘necessary for the purpose of preserving evidence or assets’.
Court of Appeal decision
The Court of Appeal dismissed the jurisdiction objection. It held that a state can waive immunity under section 15(3) of the State Immunity Act and that the Maldives government had done so when it agreed to clause 23 of the underlying concession agreement, which provided that:
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 juridical 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.
In any case, the Court of Appeal held that the Act of State doctrine did not apply because the dispute was in fact private in nature where private law remedies were sought.
In determining whether a Singapore court had the power to grant the injunction, the Court of Appeal held that it had the power to do so pursuant to section 12A(4) of the IAA and considered that certain contractual rights could be regarded as an ‘asset’ for the purposes of a preservation order under that section. These contractual rights would be those which lend themselves to being preserved, or those that, if lost, would not be adequately remedied by an award of damages. If there were other reasonably available alternatives for securing the evidence or asset, then it could not be said that the order was necessary.
GMR had argued that the injunction was necessary to preserve the following contractual rights under the concession agreement which it asserted were ‘assets’ for the purposes of section 12A(4) of the IAA:
- the right to be served a proper termination notice;
- the right to have any dispute resolved by an arbitral tribunal before the contractual entitlements were destroyed; and
- GMR’s interest in the land on which the airport was situated.
The Court of Appeal held that only the interest in land was a right which, if infringed, could not be remedied by an award of damages and could be considered an ‘asset’ for the purposes of section 12A(4) of the IAA as the concession agreement granted GMR a sublease with the ‘exclusive right to occupy, use and peacefully enjoy the site’ for a term of 25 years.
However, the Court of Appeal held that the balance of convenience did not favour an injunction being granted. It held that damages would have been an adequate remedy for the Maldives government’s alleged breaches of the concession agreement, and that it was not practical to grant an injunction because the wide scope of the injunction meant that the parties were likely to repeatedly seek directions from a Singapore court on whether a particular act did or did not contravene the injunction. Further, the injunction could not be practically obeyed due to the breadth of the terms and the restrictions imposed on the Maldives government’s state functions in operating the airport.
Open justice v the need for confidentiality
The parties to the application at issue in AZT & Ors v AZV  SGHC 116 were co-respondents in a Singapore arbitration. The claimant belonged to a group of private equity funds and the arbitration concerned a dispute surrounding a shareholders’ agreement between AZV and the claimant. AZT (as the majority shareholder of AZV) was not a party to the agreement, but agreed to be joined as a co-respondent.
The arbitral tribunal found in favour of the claimant, with AZT and AZV being jointly and severally liable for damages and costs. AZT reached an agreement with the claimant to pay S$65 million in full satisfaction of the arbitral award and subsequently commenced proceedings against AZV seeking a contribution.
AZT filed the application to seal the court documents in the case against AZV. It pointed out that certain matters canvassed in the Singapore arbitration would have to be discussed in the proceedings against AZV, including the arbitration award, transcripts of the hearing, written submissions, the terms of reference and the relevant agreements. AZT argued that the court documents should be sealed so as to preserve the confidentiality of the arbitration proceedings.
High Court decision
The Court held that, in deciding whether to seal the court documents in this case, the principle of open justice must be weighed against the need to preserve confidentiality in arbitration, with the latter being an important factor in the court’s exercise of discretion. Sections 22 and 23 of the IAA reflected the public policy of keeping arbitrations, and all proceedings related to arbitration, confidential.
In the Court’s view, there were several factors in this case that supported allowing the application to seal the files:
- both AZT and AZV were party to the arbitration;
- there was nothing to indicate that there was a legitimate public interest in not sealing the court documents, as the subject matter of the dispute was purely commercial; and
- AZV neither opposed nor consented to the application, as it was reserving the right to apply to stay the substantive proceedings on the grounds of lack of jurisdiction.
The Court held that the sealing of court documents in this case would not stifle the development of arbitration jurisprudence in Singapore and accordingly, found that there was no reason to compromise the confidentiality of the arbitration and related proceedings that had been agreed to by the parties.
Interlocutory order not an ‘award’ under IAA
In PT Pukuafu Indah & Ors v Newmont Indonesia Ltd & Anor  SGHC 187, the dispute revolved around certain contracts between the plaintiffs and the defendants.
The plaintiffs were bound to discontinue two suits that had been commenced in the Indonesian courts, however, they did not do so and instead began proceedings for three more suits. The defendants then commenced proceedings before SIAC, seeking and obtaining an interim anti-suit injunction pursuant to rule 26.1 of SIAC Rules (the Order). The Order restrained the plaintiffs from continuing with all court proceedings that were pending in the Indonesian courts, or from commencing fresh proceedings, pending a full hearing on the merits.
The High Court granted leave to enforce the Order and the plaintiffs filed an application to set the order aside. The defendants opposed the application on the grounds that, inter alia, the court’s jurisdiction to annul arbitral awards did not extend to the Order as it was an interim measure.
High Court decision
The High Court agreed with the plaintiffs and held that, while it had the power to set aside an award of an arbitral tribunal, it did not have the jurisdiction to set aside an interlocutory order. This was because an interlocutory order was not an ‘award’ under the IAA. Section 2 of the IAA defines an ‘award’ as ‘a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial awards but excludes any orders or directions made under section 12’. Section 12 of the IAA lists the orders that are concerned with procedural matters or protective measures and do not determine the substantive merits of the claim. This includes ‘an interim injunction or any other interim measure’.
The High Court held that the Order was an interlocutory order under section 12 of the IAA and accordingly was not an ‘award’ under the IAA. The Order was in effect an interim anti-suit injunction restraining the plaintiffs from continuing proceedings in the Indonesian courts and from commencing new proceedings pending arbitration and, as such, it had only interim effect. It was intended only to maintain the status quo until the arbitral tribunal could hold a full hearing on the merits.
Additional award set aside for breach of natural justice
Section 43(4) of Singapore’s Arbitration Act (AA), which is in pari materia to article 33(3) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law), provides that a party may request the arbitral tribunal to make an additional award as to claims presented during the arbitral proceedings but omitted from the award. This request must be made within 30 days from receipt of the award and notice must be given to the other party.
LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and Anor Appeal  SGCA 57 involved an appeal by both parties relating to an additional award of ‘pre-award’ interest that was made by the arbitrator at the written request of the defendant almost four weeks after the issue of the substantive arbitral award. The award was made three days after receiving the defendant’s request and without the arbitrator hearing the plaintiff’s position.
The plaintiff objected to not having the opportunity to present its position on the issue of pre-award interest and filed proceedings in the High Court, praying that the award be declared a nullity in that it was not an award made for the purposes of section 43(4) of the AA, or alternatively that it should be set aside on the ground that it had been made in breach of natural justice. The High Court did not declare the award a nullity but set it aside for being made in breach of natural justice.
Court of Appeal decision
The Court of Appeal held that, while section 43(4) of the AA did not specifically stipulate that an arbitrator must hear additional evidence or arguments before making an award under that section, the requirement to give notice contained an implicit requirement that the other party be afforded the opportunity to respond to the requesting party’s request for an additional award.
The Court held that section 43(4) therefore embodied the following:
- Upon receiving a request to make an additional award, the arbitrator must give the other party the opportunity to respond to the question of whether section 43(4) had been properly invoked in the sense that a claim presented for arbitration had been omitted.
- The arbitrator had no jurisdiction to make an additional award unless it could be shown that his initial award had indeed omitted dealing with a claim.
- Once the tribunal decides that a claim has been omitted from the award, it must make an additional award to deal with that omitted claim. It would not be required at this stage to call for or hear additional evidence or arguments; however, it was not prevented from doing so if it deemed this necessary.
In determining whether the award should be set aside for being in breach of natural justice, the Court held that there must be some causal connection between the breach of natural justice and the making of the award in order to establish actual or real prejudice. Further, the test for deciding whether there had been real prejudice was not whether the tribunal would have arrived at a different decision if the matter had been fully argued, but whether the breach of natural justice was merely technical and inconsequential or whether, as a result of the breach, the arbitrator was denied the benefit of arguments or evidence that had a real chance of making a difference to his deliberations. The issue was whether the material could reasonably have made a difference, rather than whether it would necessarily have done so.
In this case, the plaintiff could reasonably have argued that the arbitrator’s award had already dealt with the question of pre-award interest, because the award had provided for post-award interest even though there was no need to do so. On the face of it, the express provision of only post-award interest might reasonably appear to be a deliberate decision not to award pre-award interest and such an argument, if made, may have reasonably resulted in a different outcome. The Court of Appeal agreed that the test of prejudice was satisfied and the award should be set aside.
Resisting an award at enforcement stage for lack of jurisdiction
Our chapter last year discussed the case of Re Joseph David QC  SGHC 262, which was the first application before the Singapore courts where the lead counsel in underlying arbitration proceedings was applying for ad hoc admission to appear in a Singapore court on matters immediately arising from the same arbitration proceedings. The application succeeded and the substantive matter at issue came before the Singapore High Court in October 2012.
In Astro Nusantara International BV v PT Ayunda Prima Mitra  SGHC 212, the plaintiffs and the defendants had been involved in a joint venture that had failed. This failure gave rise to a dispute between the parties that resulted in the claimants commencing SIAC arbitration proceedings in Singapore pursuant to an arbitration clause in the parties’ agreement governing the joint venture (JVA).
Of the eight claimants, only the first to the fifth claimants were parties to the JVA. The sixth to the eighth claimants were affiliates of the first to the fifth claimants, but were not parties to the JVA. They had been involved in the provision of services envisaged under the JVA and were linked to the dispute. Instead of having separate civil litigation proceedings between the sixth to the eighth claimants and the three respondents (who were all parties to the JVA), the claimants applied to the arbitral tribunal to allow the sixth to the eighth claimants to be joined as parties to the arbitration, and to further decide on the claims of those claimants against the respondents pursuant to rule 24.1(b) of the SIAC Rules (2007 edition), which provided that a tribunal shall have the power to ‘allow other parties to be joined in the arbitration with their express consent, and make a single final award determining all disputes among the parties in the arbitration’.
The respondents argued that the tribunal did not have the jurisdiction to make such a declaration. The tribunal, however, allowed the claimants’ application and issued an award (the joinder award) finding that it did have the power to join the sixth to the eighth plaintiffs to the arbitration proceedings and that such joinder was desirable and necessary in the interests of justice.
Under article 16 of the Model Law, the respondents could have appealed to the Singapore courts against the joinder award within 30 days of the making of the award, on the basis that the tribunal did not have the jurisdiction to make it. However, they chose not to and instead proceeded to defend the substantive issues in the arbitration, although they claimed that their actions were to be taken ‘without prejudice to [their] position that any tribunal which is constituted has and will have no jurisdiction over any of the matters, claims and reliefs’ made by the sixth to the eighth claimants against them.
After a substantive merits hearing, four other final awards were subsequently made by the tribunal, including an award in favour of the claimants on the substantive issues in dispute between the parties. Long after the time stipulated for any setting-aside applications under article 34 of the Model Law, the claimants applied to enforce all five awards in Singapore (among other jurisdictions), and obtained leave to do so. The second respondent, PT First Media TBK (FM), then challenged the enforcement of the awards and invoked the tribunal’s alleged lack of jurisdiction as a ground to resist enforcement. The question was whether it was still able to raise the jurisdiction issue at such a stage, or whether it was too late for it to do so.
High Court decision
FM’s case on resisting enforcement rested on a distinction which they tried to draw between actively applying to set aside an award and passively resisting at the point when the counterparty sought to enforce the award. The High Court, however, was not persuaded by this distinction. The Court first explained that, in respect of domestic international awards, the IAA provided that where an award had not been set aside under any of the specified grounds, it was recognised as final and binding and not subject to any further grounds for refusal of enforcement. Accordingly, any challenge to enforcement must also come as a challenge to the recognition of a domestic international award. The correct legal basis for a refusal to enforce was that there was no award to enforce (ie, the award had been set aside). A domestic international award could either be recognised and not set aside, or not recognised and set aside.
If FM wished to resist enforcement of the awards, it could only do so by taking positive steps to set them aside on one of the specified grounds set out in article 34 of the Model Law. However, in this case, this avenue was no longer available to it as it was outside the three-month time limit specified in article 34. Although FM argued that the grounds in article 34 were still available notwithstanding that the prescribed time limits had expired, it gave no valid reason why article 34(3), which established the three-month limitation period for the bringing of a challenge, should be divorced from article 34(2) where the grounds for setting aside were found. The Court agreed with the plaintiffs that recourse to a court under article 34 was subject to both paragraphs (2) and (3). It was clear that article 34 meant to limit the grounds for setting aside an award, as well as to ensure that any challenge was brought promptly within the period specified.
FM also argued that a party was free to choose between setting aside an award or resisting its recognition and enforcement. The Court noted that this argument was founded on both article 36 of the Model Law, which – separately from article 34 on the setting aside of awards – specified grounds for refusing recognition or enforcement of an award. However, this argument was not valid as article 36 had been expressly excluded from the IAA. It was therefore not possible to imply the article 36 grounds back into the IAA.
The Court also rejected FM’s argument that it was entitled to wait, having reserved and retained the right to invoke lack of jurisdiction as a ground to resist enforcement. While the Court accepted that a party was not obliged to appeal under article 16(3), a party that chose not to do so was taken to accept the finality of the award on jurisdiction. There was no avenue under the Model Law to participate in a hearing on the merits under protest without having lodged an appeal under article 16 if a party wished to properly and effectively retain its right to raise an objection to the tribunal’s jurisdiction. As FM had clearly confirmed the joinder award as final by participating in the hearing on the merits without appealing, there was no further challenge permitted.
The Court held that the plaintiffs were immediately entitled to have the joinder award recognised and enforced without any further challenge on jurisdictional grounds. Allowing FM to come in under the guise of refusal of recognition and enforcement to have a second bite at the cherry would be contrary to the finality principle promoted by the Model Law.
FM had appealed against the High Court’s decision which was heard in April 2013; at the time of writing, the Court of Appeal’s eagerly awaited decision has not been delivered.