The Applicable Legislation on Arbitration in Singapore

The legislative statutes governing arbitration in Singapore are the International Arbitration Act 1994 (the “IAA”) and the Arbitration Act 2001 (the “AA”).

As the name suggests, the IAA generally governs any arbitration seated in Singapore that is an international arbitration (as defined by section 5(2) of the IAA). On the other hand, the AA applies to any arbitration seated in Singapore that is not an international arbitration as defined by section 5(2) of the IAA (hereafter referred to as a “domestic arbitration”).

The IAA (via section 3(1) of the IAA) incorporates the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), subject to a few amendments contained in the IAA itself.¹ The IAA (via Part III of the IAA) also gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”).

Under section 5(2) of the IAA, an arbitration is international if:

1. one of the parties had at the time of the arbitration agreement a place of business outside Singapore;
2. the place of arbitration is outside the state in which the parties have their places of business;
3. the place where a substantial part of the commercial obligations is to be performed is outside the state in which the parties have their places of business;
4. the place with which the subject-matter of the dispute is most closely connected with is outside the state in which the parties have their places of business; or
5. the parties have expressly agreed that the subject-matter of the dispute is in relation to more than one (1) country.

However, section 5(1) of the IAA additionally provides that the IAA may apply to arbitrations which are not an international arbitration if the parties to the arbitration agreement agree in writing that the IAA or the UNCITRAL Model Law is to apply to the arbitration.

Mandatory Laws

Certain aspects of the IAA are expressed in mandatory terms, meaning neither the parties nor the tribunal can derogate from them. The IAA expressly provides that the parties are free to adopt institutional rules only to the extent that they are not inconsistent with those parts of the IAA or the UNCITRAL Model Law which are mandatory.

There is no exhaustive list as to which parts of the IAA or the UNCITRAL Model Law are considered “mandatory”, and it would be a question of statutory interpretation to determine whether any specific provision was intended to have mandatory effect.

Importantly, no inconsistency arises simply because the rules chosen by the parties provide for something on which the IAA or the UNCITRAL Model Law is silent. Likewise, no inconsistency arises simply because the IAA or the UNCITRAL Model Law provides for something on which the rules chosen by the parties are silent.

There are clear provisions which are not mandatory, generally expressed as provisions which apply “unless the parties have otherwise agreed”.

Some key provisions which are generally understood to be mandatory are:

1. that an arbitration agreement must be in writing;
2. the arbitrator’s duty to treat the parties with equality;
3. the exclusion of liability for an arbitrator’s negligence or any mistake in law, fact or procedure;
4. that the Limitation Act 1959 and the Foreign Limitation Periods Act 2012 apply to arbitration proceedings seated in Singapore. Any arbitration agreement that provides that, for the purposes of limitation, the cause of action will not accrue until after an award is made shall have no effect, and the cause of action will be deemed to have accrued as if no such agreement was in place; and
5. that a dispute may not be determined by arbitration if it is contrary to public policy to do so. Case law has explained that a dispute must be arbitrable under the public policy of Singapore (as the law of the seat) and under the public policy of the law of the arbitration agreement (where this law is not Singapore law).

Footnote(s):

¹ This includes (but is not limited to) (1) an expanded definition of “international arbitration” compared to Article 1(3) of the Model Law; (2) additional grounds for setting aside an award; (3) default rules for the appointment of arbitrators; and (4) exclusion of Part VIII of the Model Law. Please refer to the response to Question 4 (“Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?”) for more information.

Yes, Singapore ratified the New York Convention, and the relevant national legislation is Part 3 of the IAA.

Singapore has made the reciprocity reservation in respect of the New York Convention.² This means that the Singapore courts will only enforce awards made in the territory of another contracting state to the New York Convention.³

Otherwise, and pursuant to section 46(3) of the AA, arbitral awards made in non-contracting states to the New York Convention can be enforced in accordance with the procedure for enforcement of a domestic arbitral award.

Footnote(s):

² Please see the 1958 New York Convention Guide at https://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=11&menu=843&opac_view=-1.

³ For the full list of contracting states to the New York Convention, please refer to https://www.newyorkconvention.org/contracting-states.

Singapore is a party to forty-four (44) Bilateral Investment Treaties / Investment Guarantee Agreements. Singapore is also a party to twenty-one (21) Free Trade Agreements (whether bilateral or multi-party) which contain chapters on investment protection.⁴

Singapore is also a contracting state of the International Centre of Settlement of Investment Disputes (“ICSID”) Convention. The ICSID Convention facilitates for conciliation and arbitration of investment disputes between contracting states and national of other contracting states to the ICSID Convention.⁵

Footnote(s):

⁴ https://www.mti.gov.sg/Trade/International-Investment-Agreements

⁵ https://icsid.worldbank.org/rules-regulations/convention

Yes, the IAA expressly incorporates the UNCITRAL Model Law and gives the same the force of law in Singapore, subject to very few amendments contained in the IAA itself.

Some of these amendments are as follows:

1. Expanded definition of “international arbitration”. The IAA expands the definition of “international arbitration” contained in Article 1(3) of the UNCITRAL Model Law, and includes:

1. Where at least one of the parties has its place of business outside Singapore at the time the arbitration agreement was concluded;
2. Where place of arbitration, the place where a substantial part of the parties’ obligations are to be performed, or the place to which the subject matter of the dispute is more closely connected, falls outside the country in which the parties have their place of business; and
3. Where the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

2. Additional grounds for setting aside. The IAA adds two grounds for setting aside an award – (i) where the award was procured by fraud or corruption; or (ii) where the award was made in breach of the rules of natural justice, provided this breach prejudiced the rights of a party.
3. Default rules for appointment of arbitrators. The IAA departs from the default rules in the UNCITRAL Model Law, by providing that the default number of arbitrators is a single arbitrator, as opposed to three arbitrators.

Where the arbitration is to be heard by three (3) arbitrators, the claimant (or claimants) must appoint an arbitrator on or before sending their request for arbitration. The respondent (or respondents) must appoint an arbitrator within thirty (30) days after receiving the request for arbitration.

4. Exclusion of Part VIII of the UNCITRAL Model Law. The IAA gives the UNCITRAL Model Law the force of law in Singapore, except for Chapter VIII on recognition and enforcement of awards. However, the courts in Singapore have recognised that, notwithstanding the exclusion of Chapter VIII, the basis for refusing enforcement of a Singapore arbitration award under section 19 of the IAA includes the grounds contained in Article 36(1) of the Model Law, whereas the grounds for refusing enforcement of a foreign award are set out in the New York Convention.⁶

Footnote(s):

⁶ See 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 at [84], where the Singapore Court of Appeal held that “the most efficacious method of giving full effect to the Model Law philosophy would, in our view, be to recognise that the same grounds for resisting enforcement under Art 36(1) are equally available to a party resisting enforcement under s 19 of the IAA.”

There are no announcements by the Singapore government to reform the arbitration laws of the country.

However, the IAA was recently amended by the International Arbitration (Amendment) Act 2020 on 1 December 2020. Key changes to the IAA under the amendment include:

1. Default mode of appointment of arbitrators in multi-party situations. Where the arbitration agreement does not specify the procedure that would apply for such appointments, section 9B of the amended IAA now sets out the processes and timeframes that should be adopted by parties in appointing a three-member arbitration tribunal.
2. Expansion of the tribunal’s authority to enforce obligations of confidentiality in an arbitration. Section 12(1) of IAA was amended to provide explicit recognition of the powers of the arbitral tribunal to enforce obligations of confidentiality (that are conferred by parties’ agreement, by written law or rule of law, or under the rules of arbitration agreed between parties) by making orders or giving directions to any party.

The two main arbitration centres in Singapore are the Singapore International Arbitration Centre (“SIAC”) and the Singapore Chamber of Maritime Arbitration (“SCMA”).

The current and in-force 6^th Edition of the SIAC Arbitration Rules (the “SIAC Rules 2016”) was last amended on 1 August 2016. However, SIAC released its draft 7^th edition of the SIAC Arbitration Rules on 22 August 2023,⁷ and has since completed a public consultation on the draft on 21 November 2023. Some of the notable proposed changes include:

1. Revised requirements for commencement of arbitration and constitution of the tribunal. Under the draft 7^th edition of the SIAC Arbitration Rules, it is no longer compulsory to include a copy of the contract and arbitration agreement in the Notice of Arbitration, and a “description” of such contract will suffice.⁸ It is also no longer compulsory for parties to nominate an arbitrator or propose for a sole arbitrator in the Notice of Arbitration and the Response to Notice of Arbitration; instead, parties are only required to include any comment as to the number of arbitrators and the procedure for the constitution of the tribunal.⁹
2. A new streamlined procedure for applicable arbitration matters. When filing the Notice of Arbitration or the Response to Notice of Arbitration, or prior to the constitution of the tribunal, either party may apply with the Registrar for the arbitration to be conducted in accordance with the “Streamlined Procedure” where (1) parties have agreed to the application of the “Streamlined Procedure”; (2) the amount in dispute does not exceed S$1 million at the time of application; or (3) the circumstances of the case warrant the application of the “Streamlined Procedure”. This new “Streamlined Procedure”, if permitted by the SIAC to apply to the matter, can provide parties with a more efficient and cost-effective path to dispute resolution compared to a standard arbitration process by utilising a simplified process with shorter timelines and reduced fees.¹⁰

The current 4^th edition of the SCMA Arbitration Rules came into force on 1 January 2022.

Beyond the SIAC and SCMA, there are other arbitral institutions in Singapore, including:

• The International Court of Arbitration of the International Chamber of Commerce (“ICC”). The current version of the ICC Rules of Arbitration (the “ICC Rules”) came into force on 1 January 2021.
• The Permanent Court of Arbitration (“PCA”). The PCA Arbitration Rules 2012 is the current version and came into force on December 2012.
• The International Centre for Dispute Resolution (“ICDR”). The ICDR International Dispute (2021) Rules came into force on 1 March 2021, revising its previous 2014 arbitration rules of the ICDR.
• The World Intellectual Property Organization (“WIPO”) Arbitration and Mediation Center. The 2021 WIPO Arbitration Rules are in force as of 1 July 2021.
• The Beihai Asia International Arbitration Centre (“BAIAC”). The BAIAC 2019 Arbitration Rules are in force as of 1 October 2019.

Footnote(s):

⁷ Please refer to https://siac.org.sg/siac-announces-public-consultation-on-the-draft-7th-edition-of-the-siac-arbitration-rules for a copy of the draft 7^th edition of the SIAC Arbitration Rules.

⁸ See Rule 6.3(e) of the draft 7^th edition of the SIAC Arbitration Rules.

⁹ See Rule 6.3(g) of the draft 7^th edition of the SIAC Arbitration Rules.

¹⁰ See Rule 13 of and Schedule 2 to the draft 7^th edition of the SIAC Arbitration Rules.

There is no specialist arbitration court in Singapore.

Nonetheless, the Supreme Court of Singapore is well-equipped and well-versed in handling arbitration matters, with the Companies, Insolvency, Equity & Trusts and Arbitration (“CITA”) docket of the General Division of the Singapore High Court comprising judges specialising in hearing arbitration matters.¹¹ The conduct of the CITA docket in relation to arbitration matters is guided by the Registrar’s Circular No. 1 of 2023, which supplement the Rules of Court 2021 and the Supreme Court Practice Directions 2021.¹²

There are specific judges who are assigned to the specialised arbitration list of the General Division of the High Court to hear arbitration matters,¹³ and the Supreme Court of Singapore has issued a Registrar’s Circular which guides the conduct of arbitration matters commenced under the IAA with the General Division of the High Court.¹⁴

Further, the Singapore International Commercial Court (the “SICC”), which is a division of the General Division of the High Court of Singapore and part of the Supreme Court of Singapore, also serves as a supervisory court of international arbitrations seated in Singapore, and hears matters arising from them, such as challenges to arbitral awards with applications for setting-aside. The General Division of the High Court of Singapore may order a case to be transferred to the SICC on its own motion (after providing parties an opportunity to be heard) or on the application of a party for the transfer. Parties may also adopt the model jurisdiction clause provided by SICC for court proceedings commenced under the IAA to be referred to the SICC for adjudication.¹⁵

Footnote(s):

¹¹ https://www.judiciary.gov.sg/who-we-are/role-structure-supreme-court/role

¹² https://www.judiciary.gov.sg/docs/default-source/circulars/2023/registrar’s_circular_no_1_2023_supreme_court.pdf?sfvrsn=d63da9e2_2

¹³ https://www.judiciary.gov.sg/who-we-are/role-structure-supreme-court/role

¹⁴ https://www.judiciary.gov.sg/docs/default-source/circulars/2023/registrar’s_circular_no_1_2023_supreme_court.pdf?sfvrsn=d63da9e2_2

¹⁵ https://www.judiciary.gov.sg/singapore-international-commercial-court/model-clauses

An arbitration agreement must be in writing.

This means that it must be recorded in any form, regardless of whether it forms part of a written contract.

Both the IAA and the AA adopt Option 1 of Article 7 of the 2006 Amendments to the UNCITRAL Model Law.

An arbitration agreement is defined as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

Yes.

In respect of international arbitrations (as defined by section 5(2) of the IAA), and pursuant to Article 16(1) of the UNCITRAL Model Law (which is conferred the force of law by section 3(1) of the IAA), the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

For both international and domestic arbitrations, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Further, a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure (as a matter of law) the invalidity of the arbitration clause.

The validation principle can be defined as the proposition that, if an arbitration agreement is substantively valid under any of the laws that may potentially be applicable to it, then its validity will be upheld, even if it is not valid under any of the other potentially applicable choices of law.

It is currently uncertain if the Singapore law adopts the validation principle, although the Singapore courts have in fact considered it.

In the Singapore High Court judgment of BNA v BNB and anor [2019] SGHC 142, the judge had expressly rejected the adoption of the validation principle in Singapore law. On appeal, the Court of Appeal in BNA v BNB [2020] 1 SLR 456 (“BNA”), the Court of Appeal declined to take a view on the validation principle on the grounds that the matter before the court only involved one potentially applicable choice of law.

It has been suggested that the Singapore Court of Appeal had subsequently applied the validation principle in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 349 (“Westbridge”). In Westbridge, the Court of Appeal adopted the three-stage test in BCY v BCZ [2017] 3 SLR 357 to determine the proper law of the arbitration agreement in question. Though the court did find in Westbridge at [70] that Indian law was the implied choice of the proper law to govern the arbitration agreement, the court subsequently at [74] found sufficient grounds to “negate the implication that Indian law was intended to govern the arbitration agreement in the SHA as that implication would mean frustrating the parties’ intention to arbitrate all their disputes”, because the application of Indian law to govern the arbitration agreement would have meant that the subject-matter of the dispute was not arbitrable. The Court of Appeal therefore instead found that Singapore law governed the arbitration agreement.

At the same time, the Court of Appeal in Westbridge at [72] further distinguished its decision from BNA, because the facts in Westbridge demonstrated, “much more strongly, the parties’ desire for all disputes to be resolved by arbitration”.

Regarding multi-party arbitrations, section 9B(2) of the IAA provides the default method of appointment of three (3) arbitrators. The appointing authority must, upon the request of any party, appoint all three arbitrators and designate any one of the arbitrators as the presiding arbitrator if (a) the claimant or claimants fail to appoint an arbitrator, or fail to inform the respondent or respondents of such appointment, by the date specified; or (b) the respondent or respondents fail to appoint an arbitrator, or fail to inform the claimant or claimants of such appointment, within the time specified.

In general, the Singapore courts refrain from “extending” an arbitration agreement to third parties or non-signatories in the absence of consent between such parties. This approach is based on the notion that arbitration is essentially based upon the principle of consent; it follows therefore that any extension of the scope of application of the arbitration agreement must have a voluntary basis.

Decisions made by the Singapore courts have fallen in line with this principle of consent.

For instance, in the recent High Court judgment of CJD v CJE [2021] 4 SLR 734, the court found that the mere fact that a parent company was a party to the arbitration agreement was not, in and of itself, sufficient to signal consent in writing (of which there was none) that the parent company agreed to be joined in an arbitration between its subsidiary and an unrelated party. In doing so, the High Court further noted the idea of a forced joinder in the context of arbitration to be a drastic one.

As a corollary, the principle of consent operates to even find that a third party may be a party to an arbitral award even if no signed contract or arbitration agreement had been concluded with the third party. In the Court of Appeal judgment of COT v COU and anor [2023] SGCA 31, the court found at [61] that a valid contract had been formed between all the parties because “the exchange of correspondence and the parties’ conduct during the [negotiations] lead to the necessary inference that a contract was concluded between [all the parties]”.

Pursuant to section 11(1) of the IAA, the IAA provides that any dispute is arbitrable if the subject matter of the dispute falls within the scope of an arbitration agreement. However, a dispute is considered non-arbitrable if the subject matter of the dispute is of such a nature as to make it contrary to public policy for that dispute to be resolved by arbitration.

The Singapore Court of Appeal has also similarly found that there is “ordinarily a presumption of arbitrability where the words of an arbitration clause are wide enough to embrace a dispute, unless it is shown that parliament intended to preclude the use of arbitration for the particular type of dispute in question (as evidenced by the statute’s text or legislative history), or that there is an inherent conflict between arbitration and the public policy considerations involved in that particular type of dispute”.¹⁶

Generally, disputes relating to the rights of specific parties, which are of a commercial nature, are arbitrable. Intellectual property rights disputes are also statutorily deemed to be arbitrable, pursuant to section 26B of the IAA and section 52B of the AA.

On the other hand, disputes which would affect the rights of non-parties, or have a broader public dimension, may be non-arbitrable. While the list of matters which may not be resolved by way of arbitration under Singapore law is not closed, it is understood to include the following:

1. Citizenship or legitimacy of marriage issues;
2. Validity of registration of trade marks or patents issues;
3. Grants of statutory licences;
4. Winding-up of companies;
5. Bankruptcies of debtors;
6. Regulatory legislation relating to anti-trust issues;
7. Trade practices issues;
8. Consumer protection issues; and
9. Environmental protection and planning issues.

Recent case law has also made clear that, at the pre-award stage, the issue of arbitrability falls to be determined under (i) Singapore law (as the law of the seat); and (ii) the law governing the arbitration agreement, if this law is not Singapore law.

For example, where the arbitration agreement provides for Singapore as the seat of the arbitration, but the arbitration agreement is governed by a foreign law, a dispute may not be referred to arbitration unless the public policy of both jurisdictions permits such a referral.

This also means that where it is against the public policy of Singapore to allow a certain dispute to be resolved by way of arbitration, the dispute is not arbitrable even if the arbitration agreement is governed by a law which would permit its resolution by arbitration.

Footnote(s):

¹⁶ Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore) [2011] 3 SLR 414 at [44]

Yes. In the 2023 Court of Appeal judgment of Westbridge at [62], the court applied the three-stage test laid down in BCY v BCZ [2017] 3 SLR 357, which is reproduced below:

• Stage 1: Whether parties expressly chose the proper law of the arbitration agreement.
• Stage 2: In the absence of an express choice, whether parties made an implied choice of the proper law to govern the arbitration agreement, with the starting point for determining the implied choice of law being the law of the contract.
• Stage 3: If neither an express choice nor an implied choice can be discerned, which is the system of law with which the arbitration agreement has its closest and most real connection.

The court in Westbridge adopted the following analysis in relation to each of the stages:

At Stage 1, the initial query is whether the parties expressly chose the proper law of the arbitration agreement. Such express choice of law for an arbitration agreement can only be found where there is explicit language stating so in no uncertain terms. Therefore, in Westbridge at [66], the Court of Appeal found that there was no express choice of law for the arbitration agreement, even though the agreement in question stated that Indian law was “in all respects” the governing law of the agreement and its performance.

At Stage 2, in determining the implied choice of law of the arbitration agreement, the court may presume the governing law for the agreement as a whole as the choice of law of the arbitration agreement. However, this presumption could be negated by circumstances such as the parties’ intention. In Westbridge at [70] to [74], the Court of Appeal found that Singapore law was the implied choice of law despite Indian law being the governing law of the agreement in question. This is because parties had intended to arbitrate all their disputes, and this would be at odds with Indian law, in which oppression claims are non-arbitrable.

At Stage 3, in determining the law with the most “real and substantial connection with the arbitration agreement” in the agreement, the Court of Appeal in Westbridge at [75] found that Singapore law fit the bill, as the arbitration was to take place in Singapore, and Singapore was the seat of the arbitration.

Singapore law does not prescribe specific choice of law rules which would be applicable to arbitration proceedings. For example, there is no provision which stipulates that a Singapore-seated arbitration must apply Singapore law, or even Singapore choice of law rules. Accordingly, the appropriate choice of law analysis falls to be determined by the arbitral tribunal itself unless the parties agree otherwise.

The SIAC Rules 2016 expressly provide that the tribunal must apply the law designated by the parties as applicable to the substance of the dispute, failing which it shall apply the law that it determines to be appropriate, subject to the terms of the underlying contract.

With respect to the substance of the dispute, the parties’ choice of law will prevail over the law of the seat.

However, Singapore law may be applicable, in a jurisdictional sense, to determine whether the subject matter of the dispute is capable of resolution by way of arbitration. As such, even if the subject matter of the dispute is arbitrable under the law chosen by the parties, a Singapore-seated tribunal would lack jurisdiction if the matter is not arbitrable under Singapore law.

No, Singapore law does not impose any limits on the parties’ autonomy to select arbitrators.

Yes. Under the IAA the default number of arbitrators is a sole arbitrator. Where the parties fail to agree on an arbitrator, the arbitrator is to be appointed by the President of the SIAC Court of Arbitration.

Where there are only two (2) parties to the arbitration, but the parties have agreed to appoint three (3) arbitrators, each party must appoint one arbitrator, and the parties must by agreement appoint the third arbitrator.

Where the parties fail to agree on the appointment of the third arbitrator within 30 days after one party requests the other to do so, the third arbitrator shall be appointed by the President of the SIAC Court of Arbitration.

Where there are more than two (2) parties, and the parties have agreed to appoint three (3) arbitrators but fail to agree on the procedure for their appointment:

1. The claimant(s) shall appoint one arbitrator on or before sending its request for arbitration;
2. The respondent(s) shall appoint one arbitrator within 30 days after receiving its request for arbitration; and
3. the two party-appointed arbitrators shall, by agreement, appoint the presiding arbitrator within 60 days after the respondent receives the request for arbitration

If either party fails to appoint an arbitrator as set out above, then, upon the request of a party, all three (3) arbitrators will be appointed by the President of the SIAC Court of Arbitration, who shall designate one of them to be the presiding arbitrator.

If the two party-appointed arbitrators fail to appoint a presiding arbitrator as set out above, then, upon the request of a party, the presiding arbitrator shall be appointed by the President of the SIAC Court of Arbitration.

No, this power has been delegated to the President of the SIAC Court of Arbitration under section 8(2) of the IAA.

However, and pursuant to section 8(3) of the IAA, the Chief Justice of Singapore may, if he or she thinks fit, appoint any other person to exercise the powers of the President of the SIAC Court of Arbitration conferred by section 8(2) of the IAA.

Yes, the appointment of an arbitrator can be challenged. Pursuant to Article 12(2) of the UNCITRAL Model Law (and, for domestic arbitrations, section 14(3) of the AA), the two grounds for challenging an arbitrator’s appointment are:

1. circumstances exist which give rise to justifiable doubts as to the arbitrator’s impartiality or independence; or
2. the arbitrator does not possess the qualifications agreed to by the parties.

Article 13(1) of the UNCITRAL Model Law allows parties to agree on a procedure for challenging arbitrators.

Absent such an agreement, Article 13(2) of the UNCITRAL Model Law provides the default procedure:

1. The challenging party, within fifteen (15) days of becoming aware of the constitution of the tribunal or after becoming aware of any of the two above circumstances, furnish a written statement to the arbitral tribunal containing the reasons for such challenge.
2. If the challenged arbitrator does not thereafter withdraw from his or her appointment as arbitrator, then the arbitral tribunal shall decide on the challenge.

In the SICC judgment of CFJ and another v CFL and another and other matters [2023] 3 SLR 1 (“CFJ”), the applicant sought the removal of the presiding arbitrator of an SIAC tribunal, alleging doubts over his impartiality, namely that he had been appointed to a panel of experts constituted by the highest court in Ruritania, which was in direct engagement with the Ruritanian government (and the defendant was a state-owned entity of Ruritania).

In assessing the applicant’s contention, the SICC in CFJ at [51] first set out the applicable test for finding apparent bias:

“The test is not whether bias has affected the decision. That would be a case of actual bias. Instead, the test is whether there exist facts and circumstances that give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer. This is a fact-specific and objective inquiry, involving: (a) objectively identifying the facts and circumstances that are salient to the question of bias; and (b) understanding whether the fair-minded and informed observer would reasonably entertain an apprehension of bias from those facts and circumstances.”

The SICC thereafter dismissed the applicant’s challenge, finding that the “fair-minded and informed observer” would understand that the Ruritarian court and the Ruritanian government are distinct entities, and in any case the panel to which the presiding arbitrator was appointed was constituted to provide independent and impartial advice in an individual capacity to the Ruritanian Court.

As part of its dismissal of the applicant’s challenge, the SICC further considered the presiding arbitrator’s non-disclosure of his appointment to the panel at [75], stating that “an arbitrator does not have to disclose every single appointment to the parties”, and that an arbitrator only needs to disclose appointments and matters which would cause the reasonable observer to conclude that there was a real possibility of a lack of impartiality. Given the SICC’s conclusion that there is no reasonable suspicion of bias, the SICC held that it followed that the question of disclosure does not arise and thus the presiding arbitrator’s disclosure did not raise doubts.

The test for apparent bias adopted in CFJ was subsequently applied in the more recent SICC judgment of CZT v CZU [2024] 3 SLR 169. There, the SICC found that undisclosed ex parte calls by one of the arbitrators to parties in the case after the issue of the final award did not alone give rise to a reasonable suspicion of bias as required under the test for apparent bias.

A truncated tribunal occurs where the mandate of an arbitrator terminates. The mandate of an arbitrator could terminate because of a successful challenge by a party (under Article 13 of the UNCITRAL Model Law) or his or her inability to perform his or her functions or for other reasons fails to act without undue delay, and he or she withdraws from his or her office or parties agree on the termination (under Article 14 of the UNCITRAL Model Law).

Should the mandate of an arbitrator be terminated under Articles 13 or 14 of the UNCITRAL Model Law, or because of his or her withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, Article 15 of the UNCITRAL Model Law provides that “a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced”.

Yes. Section 25 of the IAA expressly excludes an arbitrator’s liability for (i) negligence in respect of any act or omission done in the capacity of an arbitrator; and (ii) any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award.

Yes. Article 16(1) of the UNCITRAL Model Law confers the arbitral tribunal’s ability to determine its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

This ability is caveated by section 10(3) of the IAA, which provides that any party may, within thirty (30) days after having received notice of the arbitral tribunal’s ruling on jurisdiction, apply to the General Division of the High Court to decide the matter.

The powers of the Singapore courts differ in relation to international and domestic arbitrations.

Under the IAA, the courts must order a stay of domestic court proceedings if they are commenced in breach of an operable arbitration agreement. Under the AA, the courts have some discretion as to whether a stay of proceedings should be granted. However, the court will ordinarily stay domestic proceedings in favour of arbitration.

In relation to proceedings commenced in foreign jurisdictions, the courts of Singapore will generally grant an injunction to restrain proceedings commenced in breach of an arbitration agreement if:

1. the proceedings have, prima facie, been commenced in breach of an arbitration agreement; and
2. there are no strong reasons to allow the court proceedings to continue, such as the subject matter of the dispute being incapable of resolution by way of arbitration because it would be contrary to public policy to do so. In this regard, the relevant public policy would be the policy of the law governing the arbitration agreement and the law of the seat.

Singapore law does not compel a respondent to take part in arbitration proceedings.

Article 25(b) of the UNCITRAL Model Law provides that where “the respondent fails to communicate his statement of defence in accordance with Article 23(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations.”

In line with the above, the Singapore Court of Appeal judgment of Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131 (“Rakna”) has also observed that neither the UNICTRAL Model Law nor the IAA imposes a duty on a respondent to participate in arbitration proceedings. In particular, the judgment explained in [73] that:

“… The law does not compel a respondent against whom arbitration proceedings have been started to take part in those proceedings and defend his position. If the respondent believes that the arbitration tribunal has no jurisdiction, for one reason or another, he is perfectly entitled to sit by and do nothing in the belief that either the proceedings will not result in a final award against him or that, if an award is made, he will have valid grounds to resist enforcement. … If the respondent is mistaken in his belief, then the arbitration which proceeds without his participation will end in an award which will be enforceable against him …”

The recent High Court decision of STS Seatoshore Group Pte Ltd v Wansa Commodities Pte Ltd [2024] SGHC 266 cited at [107] the above observation in Rakna (in addition to Articles 25(b) and 23(1) of the UNICTRAL Model Law) to find that there was no power nor basis for the court to make an order compelling a party to participate in an arbitration.

Joinder is generally governed by procedural law or the institutional rules of the arbitration institution.

For instance, under Rule 7 of the SIAC Rules 2016, a party or non-party to the arbitration may apply for one or more additional parties to be joined in a pending arbitration as either claimant or respondent, provided that:

1. the additional party to be joined is prima faciebound by the arbitration agreement; or
2. all parties, including the additional party to be joined, have consented to the joinder of the additional party.

This application for joinder is to be made to the SIAC tribunal in accordance with Rule 7.2 of the SIAC Rules 2016. Pursuant to Rule 7.10 of the SIAC Rules, it is thereafter up to the SIAC Tribunal to decide on whether to grant (in whole or in party) any application for joinder, after giving all parties (including the additional party to be joined) the opportunity to be heard, and having regard to the circumstances of the case.

Yes, a tribunal is empowered to make orders to grant an interim injunction or any other form of interim relief, and to award any relief that may be granted by the High Court in civil proceedings.

The tribunal may grant this relief without the assistance of a court, although the enforcement of the tribunal’s order would require the court’s assistance. If the court grants permission to enforce the tribunal’s order as if it were an order of court, then non-compliance with such an order may give rise to criminal liability for contempt of court.

The court may grant interim measures in support of an ongoing arbitration, including the following:

1. the preservation, interim custody or sale of any property which is or forms part of the subject matter of the dispute;
2. the taking of samples, making of observations, or carrying out of experiments on any property which forms part of the dispute;
3. the preservation and interim custody of any evidence for the purposes of the proceedings;
4. securing the amount in dispute;
5. preventing the dissipation of assets;
6. an interim injunction or any other interim measure; and
7. enforcing any obligation of confidentiality.

However, the court may not grant this relief unless the tribunal is not empowered to do so, or the tribunal is unable, for the time being, to act effectively.

The court’s exercise of this power would not affect the jurisdiction of the tribunal. Any relief granted by the court in support of an arbitration will cease to have effect if the tribunal (provided it has the power to do so) makes an order expressly relating to the same subject matter.

Courts in Singapore will generally grant interim relief in support of an arbitration if the tribunal is unable to do so.

Singapore is a pro-arbitration jurisdiction and courts will generally enforce agreements to arbitrate so long as they are capable of being performed.

If a party to an arbitration agreement commences proceedings before the Singapore courts in breach of the arbitration agreement, any other party to the arbitration agreement may apply for a stay of the court proceedings in favour of arbitration.

Under the IAA, international arbitration agreements must be enforced (i.e. the application for a stay of proceedings must be granted) unless the arbitration agreement is null and void, inoperative, or incapable of being performed.

Under the AA, the court has broader discretion to allow the court proceedings to continue in spite of a domestic arbitration agreement. However, the court will generally enforce the arbitration agreement if:

1. there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and
2. the party seeking to enforce the arbitration agreement was (when proceedings in court were commenced) and remains, ready and willing to do all things necessary to the proper conduct of the arbitration.

If a party to an arbitration agreement commences proceedings before the courts of a foreign jurisdiction, and the arbitration agreement provides for the arbitration to be seated in Singapore, the Singapore courts have the power to grant an anti-suit injunction to restrain foreign proceedings.

In determining whether or not an anti-suit injunction should be granted in order to restrain foreign court proceedings, the court will first consider whether the proceedings have been commenced in breach of the arbitration agreement – i.e. whether the dispute in the foreign jurisdiction falls within the scope of the arbitration agreement between the parties.

If the proceedings were commenced in breach of the arbitration agreement, the court will generally grant an anti-suit injunction unless there are strong reasons not to do so, provided that the application was brought promptly such that the foreign proceedings have not been allowed to reach an advanced stage.

The Singapore courts will readily hold parties to their agreement to arbitrate, provided the said agreement is operable.

The threshold for granting an anti-suit injunction is relatively low where the parties are seeking to enforce an arbitration agreement. A court will ordinarily grant anti-suit relief if:

1. The party seeking the injunction can show, on a prima facie basis, that the foreign proceedings have been commenced in breach of a valid arbitration agreement; and
2. There are no strong reasons for refusing the grant of an injunction, provided that the application was brought promptly.

An arbitral tribunal has broad powers to determine its own procedure, including rules of evidence. Unless the parties have agreed otherwise, the UNCITRAL Model Law expressly confers the tribunal with the power to determine the admissibility, relevance, materiality, and weight of any evidence.

As such, unless the parties have agreed otherwise, there are neither prescriptive nor proscriptive rules of evidence applicable to Singapore-seated arbitrations.

Parties commonly adopt the International Bar Association Rules on the Taking of Evidence in International Arbitration for the purposes of arbitral proceedings. However, unless the parties have expressly agreed to their application, or the tribunal determines that they be applicable

The IAA expressly empowers the High Court to order the attendance of a witness or the production of documents.

The IAA makes a distinction between an order for discovery and an order for the production of documents. An order for discovery is broader than an order for production, and may include documents leading to a train of inquiry which may assist a party in the arbitration. Such an order may only be granted by an arbitral tribunal.

In contrast, an order for production is a request for the delivery of specific documents, which the High Court is empowered to grant.

If a witness is in Singapore, the court may also grant an order to compel a witness to give evidence and/or produce specified documents before an arbitral tribunal.

The requirements of the Legal Professional (Professional Conduct) Rules 2015 are applicable to Singapore-qualified counsel in arbitral proceedings governed by the IAA or the AA. These are the same ethical rules which govern the conduct of counsel in proceedings before the Singapore courts.

However, these rules do not apply to foreign counsel acting in a Singapore-seated arbitration.

The SIAC also applies a Code of Ethics for arbitrators which further supplements the above requirements.¹⁷

Footnote(s):

¹⁷ https://siac.org.sg/wp-content/uploads/2022/06/Code_of_Ethics_Oct2015.pdf

The Singapore courts have recognised that there is an implied obligation of confidentiality in respect of arbitral proceedings. This is a common law rule which generally co-exists with confidentiality requirements of the rules applicable to the arbitration, but will generally apply where there is no express agreement as to confidentiality.

However, the scope of the common law obligation of confidentiality is not uniform. It will depend on the context of each case, and may attach differently to different types of documents and proceedings. For example, a recent decision has recognised that arbitrator’s deliberations are confidential, even if there is no statutory provision which protects them from disclosure.

The courts have also recognised a non-exhaustive list of exceptions to the obligation of confidentiality, as follows:

1. where there is express or implied consent by the parties to disclosure;
2. where disclosure is permitted by the arbitral tribunal or by the court;
3. where disclosure is reasonably necessary for the protection of a legitimate interest of a party, including enforcement proceedings; and
4. where the interests of justice or public interest require disclosure. This exception includes disclosure to relevant authorities where there are reasonable suspicions of criminal conduct, but does not extend to disclosure to the public at large.

Further, court proceedings relating to applications under the IAA are, by default, to be heard in private unless the court (on its own motion or on the application of a party) orders otherwise. The IAA also empowers the court to determine what, if any, information may be published in relation to these proceedings. The court may not permit information to be published unless all parties agree or it is satisfied that the information published may be done in a manner which would not reveal any confidential matter, including the identity of the parties.

Where a court is of the view that the grounds of its decision should be published, parties may request that steps be taken to preserve confidential information, for example, by anonymising the names of the parties.

A tribunal has broad discretion with respect to an award for costs, which may include the tribunal’s fees and hearing costs. Where costs are awarded but are not fixed by the tribunal, they are assessable by the Registrar of the Singapore International Arbitration Centre, who may issue a certificate which forms part of the award.

In practice, a tribunal will often award costs to a successful party, provided those costs were reasonably incurred in light of the circumstances of the case. These costs may include legal fees, expert costs and costs of securing the attendance of witnesses. However, no party is entitled to costs as of right, and the tribunal retains the discretion to consider the parties’ conduct in the arbitration in determining the appropriate award for costs.

Section 20 of the IAA gives tribunals broad discretion in respect of pre- or post-award interest. The tribunal is expressly empowered to award simple or compound interest, at the rate, and for the period, that the tribunal considers appropriate.

The outer bounds of the tribunal’s discretionary power are likely only limited by the scope of the parties’ agreement to arbitrate and issues of public policy.

Singapore courts are pro-arbitration and will readily enforce arbitration awards unless there is a basis to refuse enforcement under the IAA or the New York Convention.

An arbitral award may be enforced by making an application for leave to enforce the award, either under section 19 of the IAA (for awards in Singapore-seated arbitrations) or section 30 of the IAA (for foreign awards). This application for leave may be made ex parte and must be supported by an affidavit.

The affidavit in support of the application must:

1. exhibit the arbitration agreement and original award, or duly authenticated copies of the same. If these documents are not in English, a certified English translation must be provided. This translation must be done by a sworn translator, or by an official or consular agent of the country in which it was made;
2. state the name and usual or last place of residence of the party seeking enforcement, and the party against who enforcement is sought; and
3. if applicable, a statement that the award has not been complied with (in whole or in part) as of the date of the enforcement application.

There is no independent step for recognition of a foreign award if it is made in a country which is party to the New York Convention. An award which is enforceable is automatically found to be final and binding as between the parties.

A party seeking to resist enforcement may resist the application for leave to enforce, or may apply to set aside any enforcement order which is granted.

Regarding requirements that an award be reasoned, Article 31(2) of the UNCITRAL Model Law requires an award to “state the reasons upon which is based, unless the parties have agreed that no reasons are to be given”, or the award is an award based on an agreed settlement under Article 30 of the UNCITRAL Model Law.

Notwithstanding the above, an award cannot be refused enforcement on the mere basis of uncertainty or ambiguity. The Court of Appeal in CEF and another v CEH [2022] 2 SLR 918 found at [43] that “uncertainty or ambiguity” is not a basis to set aside an award under Article 34(2)(a)(iv) of the UNCITRAL Model Law.

The recognition and enforcement of most arbitral awards in Singapore will take between one (1) and three (3) months. However, this is only an estimated guideline as the exact timeframe will not only depend on the merits of each case but also if the award has been challenged to be set aside. If the respondent does not commence a challenge to enforce the award, the time taken for proceedings can be significantly shortened.

The Singapore courts will recognise a motion for the recognition and enforcement of an ex parte award. Under Order 48 rule 6(1) of the Rules of Court 2021 of Singapore, it is provided that “[a]n application for permission to enforce an award may be made without notice”.

Generally, no.

While the recognition and enforcement of a domestic award is governed by the AA and that of a foreign award is governed by the IAA, the provisions and procedure for enforcing both are similar.

Section 46 of the AA and section 19 of the IAA both state that an award, with permission of the General Division of the High Court, may be enforced in the same manner as a judgment or order of the Court to the same effect. Where permission is so given, judgment may also be entered in terms of the award.

Pursuant to section 29 of the IAA, foreign awards may similarly be enforced in a court either by action or in the same manner as an award made in Singapore which is enforceable under section 19 of the IAA.

Pursuant to section 46(3) of the AA, arbitral awards that are made in non-New York Convention jurisdictions can be enforced in accordance with the procedure for enforcement of a domestic arbitral award.

Pursuant to section 12(5) of the IAA, an arbitral tribunal has full discretion to award “any remedy or relief that could be order by the General Division of the High Court if the dispute had been subject of civil proceedings in the General Division of the High Court”. Additionally, the tribunal is entitled to “award simple or compound interest on whole or any part of any sum” at a rate it considers appropriate to do so.

An international arbitration award governed by the IAA may not be appealed to the courts in Singapore.

However, parties may appeal a tribunal’s ruling on its own jurisdiction. Such an appeal may be made on a preliminary ruling that the tribunal does have jurisdiction, or a ruling (at any stage) that the tribunal does not have jurisdiction.

Such an appeal must be made to the General Division of the High Court within 30 days after receiving notice of the tribunal’s ruling. The filing of an appeal does not automatically stay the arbitral proceedings unless the courts order otherwise.

An arbitral award made in a Singapore-seated arbitration may only be challenged on the limited grounds set out in the IAA read with the UNCITRAL Model Law. Importantly, the courts of Singapore may not review the substantive merits of an arbitral award.

These limited grounds are:

1. Where a party to the arbitration agreement was under some incapacity;
2. Where the arbitration agreement is invalid under the law governing it (or absent an indication of the governing law of the arbitration agreement, the laws of Singapore);
3. Where the award goes beyond the scope of the dispute submitted to arbitration;
4. Where the composition of the arbitral tribunal or the arbitral procedure was not done in accordance with the parties’ agreement (unless such an agreement was contrary to the UNCITRAL Model Law), or absent such agreement, in accordance with the UNCITRAL Model Law;
5. Where the subject matter of the dispute is non-arbitrable under the laws of Singapore;
6. Where the award conflicts with the public policy of Singapore;
7. Where the making of the award was induced by fraud or corruption; or
8. Where there has been a breach of natural justice in the making of the award, and the rights of a party have been prejudiced by such a breach.

The standard for refusing enforcement of an arbitral award on the basis of public policy is a high one. The courts have suggested that the standard for refusing enforcement on the grounds of public policy would the same as the standard applied in setting aside applications on that ground.

The court will generally not disturb the finality of an arbitral award without good reason, and will have to be satisfied that some form of reprehensible or unconscionable conduct of sufficient gravity had contributed, in a material way, to procuring the award.

For example, the courts have recognised that fraud (including procedural fraud), would be a basis to refuse enforcement of an award, even if that award had not been set aside on that basis. However, strong and cogent evidence would have to be adduced in support of the allegation, and the courts will not make an inference of fraud.

Neither the IAA nor the UNCITRAL Model Law clearly state whether any grounds for setting aside an award may be contractually excluded by the parties. At present, there has been no decision by the courts of Singapore as to whether this would be possible.

However, it is unlikely that an agreement to exclude certain grounds for a challenge will be effective given the nature of the grounds set out above. For example, if a party was under an incapacity and could not enter into an arbitration agreement in the first place, it would likely be incapable of agreeing to exclude grounds for setting aside an eventual award.

Similarly, if the arbitration agreement itself is invalid under the applicable law, then any agreement to exclude grounds for setting aside will likely be affected by the same invalidity.

Importantly, the IAA does not provide that any grounds may be excluded. Accordingly, it appears unlikely that parties can agree to exclude any ground for setting aside an arbitral award in international arbitrations.

This can be contrasted with s 49(2) of the AA, which allows parties to contractually exclude their right to appeal domestic awards to the courts of Singapore.

A third party or non-signatory can be bound by an award where there is a misnomer situation. In the Singapore Court of Appeal judgment of National Oilwell Varco Norway AS (formerly known as Hydralift AS) v Keppel FELS Ltd (KFELS) [2022] 2 SLR 115, the claimant, KFELS, commenced arbitration proceedings against Hydralift. However, by the time of the commencement, NOV Norway had assumed all the assets, rights, obligations and liabilities of Hydralift, which was itself struck off the Norwegian register of companies. NOV Norway (in the name of Hydralift) then successfully defended against KFELS’ claim and succeeded in its counterclaim, with the tribunal issuing a final award in favour of Hydralift. An issue arose as to whether NOV Norway could enforce the award against KFELS. The Court of Appeal, having found that the transfer of rights from Hydralift to NOV Norway was valid under Norwegian law, then held that the arbitration agreement subsequently existed between KFELS and NOV Norway (instead of Hydralift), and allows for NOV Norway to enforce the arbitral award against KFELS. In doing so, the Court of Appeal held at [75] of the judgment that “the court has the power to enforce an award in a misnomer situation”.

Third-Party Funding

Third party funding is permitted in arbitration proceedings and arbitration-related proceedings before the courts in Singapore provided that the funding comes from a qualified third-party funder.

In order to qualify, the funder’s principal business must be the funding of dispute resolution proceedings to which they are not a party, and must have a paid-up share capital, or manage assets, of not less than S$ 5 million or its equivalent in foreign currency.

Several professional third-party funders are now active in the Singapore market.

On the horizon, the proposed 7^th edition of the SIAC Rules makes significant changes regarding third-party funding arrangements. In particular, the proposed new Rule 38 requires parties to disclose the existence of any third-party funding agreement and the identity of the third-party funder in its Notice of Arbitration or Response to Notice of Arbitration, or immediately upon concluding a third-party funding arrangement.¹⁸

Conditional Fee Arrangements

Conditional fee arrangements are permitted under Singapore law in respect of arbitration proceedings or arbitration-related proceedings before Singapore courts.

It must be borne in mind that conditional, but not contingent, fees are allowed. Conditional fees can be described as a “win, more fee”, “no win, no fee”, or “no win, less fee” arrangement, where the amount of professional fees payable to a lawyer is conditioned on the success of the case.

However, the amount payable to a lawyer may not be tied to the sum of damages recovered. Such contingency fee arrangements remain prohibited for Singapore-qualified lawyers.

Conditional fee arrangements remain subject to stringent safeguards. A lawyer entering into such an arrangement must inform the client (in plain language) of the nature and operation of the agreement, the fact that any “uplift” fee in the event of success would not be recoverable in costs from the opposing side, and that the client remains liable for any adverse costs order. The lawyer must also inform the client of its right to seek independent legal advice on the terms of the conditional fee arrangement, and must obtain a signed and dated acknowledgment that this information has been received and understood.

Further, such an agreement must be in writing, state the basis of calculation of any “uplift”, and provide a cooling off-period of five (5) days during which either party may terminate the agreement.

Footnote(s):

¹⁸ For the full set of proposed changes, please refer to the proposed Rule 38 in the draft 7^th edition of the SIAC Rules, which can be retrieved from https://siac.org.sg/wp-content/uploads/2023/08/Draft-7-Edition-of-the-SIAC-Rules-Consultation-Draft.pdf.

Yes and yes.

Section 2(1) of the IAA defines “arbitral tribunal” to include “an emergency arbitrator appointed pursuant to the rules of arbitration agreed to or adopted by the parties including the rules of arbitration of an institution or organisation”, and defines “award” to mean a “decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any order or direction made under section 12 [of the IAA]”.

Likewise, the AA includes similar definitions for “arbitral tribunal” and “award” under section 2(1).

It is noted that section 2(1) of the IAA does not apply to Part III of the IAA, which concerns foreign awards. However, the recent High Court judgment of CVG v CVH [2023] 3 SLR 1559 has confirmed that the term “arbitral tribunal” in section 27(1) of the IAA includes awards by emergency arbitrators. Consequently, section 29 of the IAA allows for foreign awards by emergency arbitrators to be enforced.

Yes. Under Rule 5.1 of the SIAC Rules 2016, a party can apply for arbitral proceedings to be conducted under Expedited Procedure before constitution of the SIAC tribunal.

This Expedited Procedure is permitted if any of the following criteria is fulfilled:

1. the amount in dispute does not exceed the equivalent amount of S$6,000,000, (such amount representing the aggregate of the claim, counterclaim and any defence of set-off);
2. the parties so agree; or
3. in cases of exceptional urgency.

Similarly, the ICC Rules permit an expedited procedure under Article 30 (Expedited Procedure) and Appendix VI (Expedited Procedure Rules). The Expedited Procedure Rules will only be applicable if:

1. the amount in dispute is under US$ 2,000,000 for arbitration agreements concluded on or after 1 March 2017, and US$ 3,000,000 for arbitration agreements concluded on or after 1 January 2021 (Appendix VI, Article 1); or
2. the parties so agree.

Since its introduction in 2010, the Expedited procedure has been frequently used. According the Annual Report published by the SIAC, in 2023 alone, there were 94 applications for expedited procedure and that 41 of these applications were allowed.

It should also be noted that the draft 7^th edition of the SIAC Rules has proposed a new “Streamlined Procedure” for applicable arbitration matters. When filing the Notice of Arbitration or the Response to Notice of Arbitration, or prior to the constitution of the tribunal, either party may apply with the Registrar for the arbitration to be conducted in accordance with the “Streamlined Procedure” where (1) parties have agreed to the application of the “Streamlined Procedure”; (2) the amount in dispute does not exceed S$1 million at the time of application; or (3) the circumstances of the case warrant the application of the “Streamlined Procedure”. This new “Streamlined Procedure”, if permitted by the SIAC to apply to the matter, can provide parties with a more efficient and cost-effective path to dispute resolution compared to a standard arbitration process by utilising a simplified process with shorter timelines and reduced fees.¹⁹

Footnote(s):

¹⁹ See Rule 13 of and Schedule 2 to the draft 7^th edition of the SIAC Arbitration Rules. Please refer to https://siac.org.sg/siac-announces-public-consultation-on-the-draft-7th-edition-of-the-siac-arbitration-rules for a copy of the draft 7^th edition of the SIAC Arbitration Rules.

Yes. The SIAC monitors and presents several statistical figures to showcase diversity in its choice of arbitrators in its annual reports. In the most recent Annual Report 2023, the following statistics were shared:²⁰

1. Of the 164 arbitrators appointed by SIAC, 60 (or 37%) were female.
2. Of the 35 members of SIAC’s Court of Arbitration, 9 (or 26%) are women.
3. Women constitute 71% of SIAC’s Management and Secretariat.

In 2023, the SIAC also appointed a total of 164 arbitrators which included arbitrators from Australia, Austria, Bahamas, Bahrain, Belgium, Bulgaria Canada, China, Egypt, France, Germany, Hong Kong SAR, India, Iran, Ireland, Italy, Japan Lebanon, Malaysia, New Zealand, Nigeria, Philippines, Romania, Singapore, Sweden, Switzerland, the United Kingdom, the United States of America, Turkey.

Additionally, the ICC actively promotes the importance of diversity. In November 2022, the ICC Court encouraged all parties and co-arbitrators to consider diversity, broadly defined by, but not limited to race, ethnicity, culture, generation and gender, when nominating arbitrators. The same language has been added as of 1 January 2022 to the Note to National Committees and Groups on the proposal of Arbitrators.

Furthermore, in March 2023, the ICC issued a Centenary Declaration on Dispute Prevention and Resolution. In this declaration, the ICC pledged to “build on [the existing] ground-breaking work on diversity, equity and inclusion in all aspects of dispute prevention and resolution, including all stakeholders in the process”.

Footnote(s):

²⁰ The Annual Report 2023 of SIAC can be retrieved from https://siac.org.sg/wp-content/uploads/2024/04/SIAC_AR2023.pdf.

No.

It should be noted however that, in the recent Singapore High Court decision of CZD v CZE [2023] 5 SLR 806, the defendant had raised the argument, among others, that an arbitral award should be set aside on the basis that the award had been fully and/or effectively satisfied in enforcement proceedings commenced in China. The court rejected this argument at [44] to [45] of the judgment, and one of its reasons for doing so was that “the fact that an Award has been satisfied is not a recognised ground of challenge under s 31 of the IAA, which provides an exhaustive list of grounds for refusal of enforcement”.

At the outset, section 24(b) of the IAA allows the General Division of the High Court to set aside the award of the arbitral tribunal if an arbitral award was procured by fraud or corruption, on the basis that this would violate the basic notions of morality and justice, and would therefore constitute a breach of public policy in Singapore.

In Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] 5 SLR 228, the SICC found at [153] that arbitral tribunals have a duty to consider corruption (which includes illegal conduct, bribery and fraud) and be proactive in doing so. Such duty arises not only where the arbitral tribunal has to deal with allegations of corruption in the dispute between the parties, but also where the evidence in the case indicates possible corruption. Further, the SICC held that no agreement between the parties can prevent the arbitral tribunal from reviewing and, where appropriate, admitting any evidence of corruption which a party seeks to put before the arbitral tribunal.

The SICC further upheld (at [400]) the arbitral tribunal’s decision in this case that illegality required “clear and convincing evidence” and adopted a standard of a “balance or probabilities” for bad faith allegations. Further, the party alleging corruption bears the burden of proof.

In relation to setting aside awards in general, the Singapore Court of Appeal in Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 1 SLR 1045 held at [82] that Article 43(3) of UNCITRAL Model Law strictly applies such that an application for setting aside an award may not be made after three (3) months have elapsed from the date on which the party making that application had received the award. This strict three-month time limit would apply even if the application is based on new evidence of fraud or corruption.

To ensure the continuous operation and efficiency of arbitration proceedings, the arbitral institutions have adopted various measures to mitigate the inconveniences stemming from the restrictions imposed in response to the pandemic.

Firstly, due to safe-distancing and travel restrictions, institutions have often utilised online platforms, such as Zoom and Microsoft Teams, to conduct virtual hearings. To help parties navigate this change, the arbitral institutions have each produced guidance memos:

1. The SIAC curated their FAQ page,²¹ mentioning that “where in-person hearings are impossible or impracticable, parties should discuss with the tribunal other options to an in-person hearing, such as proceeding with the hearing virtually or via teleconferencing. Maxwell Chambers offers hybrid and virtual hearing services, which may be suitable for parties.”. In addition, “[f]or less complex cases, the parties may consider adopting a documents-only procedure in lieu of a hearing. Parties should discuss such alternative procedures with the tribunal.”
2. The ICC Court of Arbitration issued a COVID-19 guidance note outlining measures to assist parties with mitigating the effects of the COVID-19 pandemic on arbitral proceedings.²²
3. The Chartered Institute of Arbitrators published a Guidance Note on Remote Dispute Resolution proceedings to assist parties with virtual hearings.²³

Secondly, the SIAC recognised the possibility of delays in procedure in light of COVID-19, manifesting in the form of late payment of deposits or late submissions by the parties. Thus, if applicable, the SIAC provided for formal requests for an extension of time.

Footnote(s):

²¹ https://siac.org.sg/faqs/siac-covid-19-faqs

²² https://iccwbo.org/news-publications/arbitration-adr-rules-and-tools/icc-guidance-note-on-possible-measures-aimed-at-mitigating-the-effects-of-the-covid-19-pandemic/?dm=bypass

²³ https://www.viac.eu/images/COVID19/CIArb_remote-hearings-guidance-note.pdf

Remote or virtual hearings have been utilised by both the courts and Singapore-seated arbitral tribunals for a relatively long time. There is no restriction on a tribunal’s discretion to hold hearings by way of virtual conferencing.

From a time and costs perspective, particularly where the parties, tribunal, and witnesses are located in disparate locations, virtual hearings are often preferred, particularly for procedural or administrative hearings.

While this approach has been relatively commonplace for some years in respect of arbitral proceedings, it gained widespread adoption in the courts during and after the COVID-19 pandemic. As both advocates and tribunals have gained comfort with the prospect of virtual hearings, its adoption has continued such that it may be difficult to justify the use of physical hearings unless strictly necessary.

In light of the above, physical hearings are more commonly reserved for evidentiary hearings, as both parties and tribunals may maintain a preference for cross-examinations to be conducted in person.

There have not been any recent disputes relating to climate change and/or human rights in Singapore.

Nonetheless, there are developments in addressing climate change in the sphere of corporate governance. Starting in 2025, listed companies on the Singapore Exchange (“SGX”) are to comply with mandatory climate-related disclosures, with large non-listed companies (defined as those with at least S$1 billion in revenue and S$500 million in assets) following suit in starting in 2027.²⁴

This announcement follows other recent measures taken by Singapore to reduce the impact of climate change, such as SGX’s introduction in 2022 of climate reporting requirements on a “comply or explain” basis for all listed companies,²⁵ and the incremental raising of carbon taxes from S$5 per tonne to S$25 per tonne currently and $50 to $80 per tonne by 2030.²⁶

Footnote(s):

²³ Please refer to https://www.sgxgroup.com/media-centre/20240228-climate-reporting-help-companies-ride-green-transition for more details.

²⁴ Please refer to https://www.sgxgroup.com/media-centre/20211215-sgx-mandates-climate-and-board-diversity-disclosures for more details.

²⁵ Please refer to https://www.nccs.gov.sg/singapores-climate-action/mitigation-efforts/carbontax/ for more details.

The Singapore courts have not recently considered the impact of international economic sanctions on international arbitration proceedings or whether such international economic sanctions are a part of international public policy in Singapore.

Regarding the approach that the Singapore courts generally take in relation to international public policy, the Singapore Court of Appeal has highlighted in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace) [2010] 1 SLR 1129 at [113] that:

“Ex hypothesi, the statutory public policy expressed in s 5(2) of the CLA [Civil Law Act – i.e., the prohibition of legal actions in relation to gaming or wagering] is superior to what may be called the “higher” international public policy at common law, i.e., the “higher standard of public policy in operation when a forum court is faced with a foreign judgment” (see Burswood Nominees ([10] supra) at [32]). This is because the higher international public policy is only common law public policy. The position would be different if the court’s refusal to enforce a foreign gambling debt, in whatever form or guise that debt takes (including the debt as converted into a foreign judgment), is based on domestic public policy that has no basis in statute; in such circumstances, the court would be entitled to prefer the higher international common law public policy to its domestic common law public policy. But, this is not the case where s 5(2) of the CLA is concerned. In a contest between the higher international public policy at common law and statutory public policy, the latter must prevail.”

It is noted that the recent Singapore Court of Appeal judgment of Kuvera Resources Pte Ltd v JPMorgan Chase Bank, N.A. [2023] 2 SLR 389 considered that a sanctions clause in a letter of credit should be construed objectively, and opined further that a sanctions clause entitling a confirming bank to deny payment against an otherwise compliant presentation because of the potential of an adverse finding by the US Office of Foreign Assets Control was likely incompatible with the commercial purpose of the confirmations due to the significant unpredictability such interpretation would introduce to the confirmations.

No, there are no new regulations for the use of AI specific to international arbitration or otherwise. Nonetheless, in 2018, the Monetary Authority of Singapore (MAS) has issued the “Principles to Promote Fairness, Ethics, Accountability and Transparency (FEAT) in the Use of Artificial Intelligence and Data Analytics in Singapore’s Financial Sector” in decision-making in the provision of financial products and services.²⁷

Footnote(s):

²⁷ https://www.mas.gov.sg/-/media/mas/news-and-publications/monographs-and-information-papers/feat-principles-updated-7-feb-19.pdf