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9 Appeals from Jurisdictional Rulings and Order 48 »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
Section 10 discusses appeals from jurisdictional rulings under Section 10 of the IAA. The chapter begins with a discussion of Section 10(1), and the relationship and key differences between Section 10 of the IAA and Article 16(3) of the Model Law. It then discusses Section 10(2), which expressly states that the arbitral tribunal may rule on a plea that it has no jurisdiction at any stage of the arbitral proceedings. The chapter also discusses Section 10(3), which sets out the nature and ambit of the court’s power to rule on an arbitral tribunal’s jurisdiction. F The chapter follows with a discussion of the implications of the court’s power to make an award or order of costs under Sections 10(7) and 10(8), as well as a stay of arbitration under Section 10(9)(a) of the IAA. Finally, the chapter discusses the procedure that applies to appeals from jurisdictional rulings and other recourse to courts in matters related to the IAA, as set out in Order 48 of the Rules of Court 2021.

10 Arbitrability »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter discusses the concept of arbitrability and examines Section 11 of the IAA. Section 11 defines arbitrable disputes broadly, by stating that matters are presumed to be arbitrable unless they are “contrary to public policy”. The chapter discusses the test for determining whether a dispute is arbitrable, as well as the applicable choice of law rules for arbitrability. The chapter also discusses the types of disputes which the courts have found or are likely to find non-arbitrable, with a focus on two specific categories of disputes which have given rise to disputes on arbitrability: disputes involving an insolvent company, and claims involving Section 216 of the Companies Act. The chapter also discusses the relevant considerations in a situation whereby an arbitral tribunal is unable to award the relief sought.

5 Arbitration Agreements »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter discusses the validity and construction of an arbitration agreement, with reference to Section 2A of the IAA. It begins with an overview of arbitration agreements, including a discussion on the separability principle and the law governing the arbitration agreement. It then examines the principles applicable to determining the validity and construction of arbitration agreements, including the pro-validation approach that the Singapore courts take to these issues. The chapter then proceeds to examine the specific provisions in Section 2A of the IAA. It discusses the expansive definition of an arbitration agreement in Section 2A(1) and 2A(2), including the validity of an arbitration agreement where the existence of the agreement is in dispute, as well as optional or asymmetric arbitration agreements. It explains the writing requirement for arbitration agreements in Sections 2A(3), 2A(4), and 2A(5). It also discusses the waiver or estoppel provision set out in Section 2A(6), and the provision for incorporation by reference in Sections 2A(7) and 2A(8).

1 Arbitration in Singapore »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter introduces the history and significance of international arbitration in Singapore as a form of alternative dispute resolution. It begins by providing an overview of international arbitration, as well as the advantages and disadvantages of using commercial arbitration over other modes of dispute resolution. It also provides an overview of the legislative framework for international arbitration in Singapore alongside its salient characteristics, including Singapore’s pro-arbitration approach. Finally, it discusses the future of international arbitration in Singapore, including the recent establishment of the Singapore International Commercial Court in 2015 and the rise in investment arbitration disputes heard before the Singapore courts.

15 Assessment of Costs and Proceedings Otherwise Than in Open Court »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter discusses the assessment of costs by an arbitral tribunal, as well as the confidentiality of court proceedings relating to arbitration, with reference to Sections 21, 22, and 23 of the IAA. Section 21 of the IAA addresses the assessment of costs and provides that an award for costs would be taxable by the Registrar of the Singapore International Arbitration Centre unless the award otherwise directs. Section 22 of the IAA provides that proceedings under the IAA are to be heard in private although a court, on its own motion, or the application by a person (including a non-party), could order proceedings to be heard in open court. Section 23 provides that, to the extent that a hearing is heard in camera, the court may give directions as to whether, and if so what, information relating to the proceedings may be published.

14 Awards and Interest on Awards »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter examines Sections 18, 19, 19A, 19B, 19C, and 20 of the IAA, as well as Article 30 of the Model Law. Section 18 of the IAA and Article 30 of the Model Law provide a mechanism through which parties may record their settlement of their dispute in the form of a consent award. Section 19 of the IAA provides for the enforcement of awards rendered in an international arbitration seated in Singapore. Sections 19A and 19B of the IAA together provide that, once issued, an award — whether an interim, partial, or final award — is final and conclusive as to the merits of the issue or claim determined under that award. The chapter discusses the provision in Section 19A that clarifies that a tribunal may make more than one award at different points in time, each of which is final and binding; and the provisions in Section 19B which address the consequences of classifying a decision of an arbitral tribunal as an “award”. Section 19C of the IAA empowers the Minister for Law to appoint any person holding office in an arbitral institution or other organisation to authenticate any award or arbitration agreement or to certify copies thereof for the purposes of the enforcement of an award in a country which is a Contracting State to the New York Convention. Finally, the chapter concludes with a discussion of an arbitral tribunal’s power to award interest under Section 20 of the IAA.

Contents »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan

12 Court Powers in Aid of Arbitration »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter focuses on court powers in aid of arbitration. It examines Section 12A and Section 13 of the IAA to elaborate on the court’s complementary powers to issue interim relief in aid of the arbitral cycle. Section 12A empowers the Singapore courts to grant certain interim measures to a party to an arbitration. The chapter discusses the scope of the powers of a court to grant interim relief, anti-suit injunctions and the requirements for obtaining interim relief from court. Section 13 addresses the summoning of witnesses by subpoena to testify or produce documents. The chapter discusses the principles governing subpoena applications and the requirements to obtain subpoenas in aid of arbitration.

13 Disapplication of the Model Law and the IAA, the Application of Rules of Arbitration, and Conciliation »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter discusses Sections 15, 15A, 16, and 17 of the IAA. Section 15 of addresses the situation where parties expressly agree to disapply the Model Law or the IAA. Section 15A clarifies the interplay between the various rules which may apply to an arbitration, as agreed to or adopted by the parties, and the Model Law and Part II of the IAA. Sections 16 and 17 address conciliation, which is an alternative dispute resolution process whereby the disputing parties seek to reach an agreed resolution with the help of an independent third- party conciliator.

6 The Effect, Interpretation, and Applicability of the Model Law »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter covers the effect, interpretation, and applicability of the Model Law in Singapore law with reference to Sections 3, 4, and 5 of the IAA. In the discussion on Section 3 of the IAA, the chapter explains that Section 3 incorporates the Model Law into Singapore law, but excludes Chapter VIII of the Model Law from incorporation. It also discusses how conflicts between the Model Law and the IAA should be resolved, and when the Model Law should apply. In the discussion on Section 4 of the IAA, the chapter explains that reference may be made to UNCITRAL documents for the purposes of interpreting the Model Law. In the discussion on Section 5 of the IAA, the chapter explains that the Model Law and Part II of the IAA do not apply to arbitrations that are not “international” and only apply to non-international arbitrations if the parties agree in writing. The chapter also discusses what defines an “international” arbitration, including a flow chart that visually demonstrates whether an arbitration is “international”.

17 Immunities of Arbitrators, Appointing Authorities and Arbitral Institutions »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter examines the immunities of arbitrators, appointing authorities, and arbitral institutions with reference to Sections 25 and 25A of the IAA. Section 25(a) provides that arbitrators are immune from liability for negligence, and Section 25(b) further provides that any mistakes in law, fact, or procedure in the course of arbitral proceedings, or in the course of the making of an award, cannot found any claim against an arbitrator. However, immunity under Section 25 does not extend to cases where an arbitrator has wilfully misconducted himself or cases of gross negligence. The chapter also discusses the immunity of arbitral institutions or appointing authorities, in respect of the appointment or nomination of arbitrators, under Section 25A.

Index »

From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan

3 Interface with Other Dispute Resolution Forums »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter considers how arbitration may interface with other dispute resolution fora. The first part of this chapter begins with a discussion of the interplay between mediation, negotiation, and arbitration. It addresses topics such as the Singapore Convention on Mediation; mediation and negotiation as a precondition to arbitration; and the use of mediation and negotiation during the arbitral process. The second part of this chapter discusses judicial intervention in arbitration, and in particular the recent development of the Singapore International Commercial Court. The third part of this chapter discusses the significance of expert determination, which is enforceable in Singapore if so agreed between the parties.

4 Interpretation of Part II of the Act »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter examines Section 2 of the IAA, which contains definitions relating to the interpretation of Part II of the IAA. This chapter discusses the definitions and interpretations of the terms “arbitral tribunal”, “appointing authority”, “arbitration agreement”, “award”, “Model Law”, and “party” as set out in Section 2 of the IAA, with reference to relevant case law. This chapter also examines how amendments to Section 2 were made to reflect developments in international arbitration, such as the amendments in 2012 to include emergency arbitrators as part of the definition of “arbitral tribunal”, and amendments to the definition of “arbitration agreement” in line with the 2006 updates to the Model Law.

List of Abbreviations »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan

8 Number and Appointment of Arbitrators »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter examines Sections 9, 9A, and 9B of the IAA which provide for the number and appointment of arbitrators. Section 9 departs from the Model Law and provides that, if the number of arbitrators is not determined by the parties, there is to be a single arbitrator by default. Section 9A sets out the process for the appointment of a three-person tribunal, and similarly also changes the default from the Model Law with respect to the process of appointing the presiding arbitrator. Section 9B was a recent amendment that came into force in December 2020, and is intended to provide a default mechanism for appointment of arbitrators in multi-party arbitrations. Section 9B modifies the Model Law, which has no provisions specifically addressing the appointment of arbitrators in a multi-party scenario.

11 Powers of the Arbitral Tribunal »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter details the powers of the arbitral tribunal while considering Section 12 of the IAA. Section 12 establishes the express powers of arbitral tribunals to fashion the necessary orders for a fair and efficient process. This chapter examines the various types of interim orders that an arbitral tribunal may grant, such as for security for costs; discovery of documents and interrogatories; preservation, custody, or sale of property; an order for security for claim; and the tribunal’s power to adopt an inquisitorial process. It also addresses issues such as the scope of relief; the law governing applications for such interim orders; interest; and the enforceability of an arbitral tribunal’s interim orders.

Preface »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan

18 Recognition and Enforcement of Foreign Awards »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter explores the recognition and enforcement of foreign awards, with a focus on the provisions in Part III of the IAA. The chapter begins with a discussion of Sections 27 and 28 of the IAA, which sets out the scope and interpretation of Part III of the IAA. It then discusses Sections 29 and 30, which set out the procedure for enforcement of foreign awards. The chapter then examines Section 31, which sets out the grounds for refusing enforcement of a foreign award under Part III of the IAA. It discusses in detail the following provisions: Section 31(2)(f), which provides that Singapore courts may refuse the enforcement of a foreign award if the award has not yet become binding, was set aside, or suspended; Section 31(3), which provides for the partial non-recognition of a foreign award; and Section 31(5), which provides that a Singapore court may adjourn an application to enforce a foreign award, if it is satisfied that an application for the setting aside or suspension of the award has been made in the seat of arbitration. The chapter concludes with a discussion of Section 33, which provides for the enforcement of awards under other provisions of law.

2 Regulation of Procedural Aspects of Arbitration »

Paul Tan, Nelson Goh, Jonathan Lim
From: The Singapore International Arbitration Act: A Commentary (1)
Nelson Goh, Jonathan Lim, Paul Tan
This chapter covers the regulation of procedural aspects of arbitration. Although the IAA sets out a framework for international arbitrations seated in Singapore, it does not purport to deal with all the procedural issues that could potentially arise in international arbitration. This chapter covers three facets of procedure that arise in an arbitration. First, it addresses international arbitration rules that may be selected by the parties to apply in a Singapore- seated arbitration. Second, it examines ethical rules that may apply to the regulation of arbitration practitioners and arbitrators in Singapore. Third, it discusses recent developments on the practice of third- party funding and how they impact international arbitrations seated in Singapore.