ARB 1 -  Applicable Laws in Arbitration
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Questions and Answers

What governs a party's legal capacity to contract in an arbitration agreement?

  • The law of the arbitral institution
  • The law of the party's nationality (correct)
  • The law of the seat where arbitration occurs
  • The law governing the merits of the dispute
  • Under which condition can issues of incapacity be raised in relation to an arbitration agreement?

  • Only if there is a challenge to the contract's validity
  • Before or during the arbitration process (correct)
  • Only before the arbitration process begins
  • Only after the award has been issued
  • What is required for an arbitration agreement to be considered valid?

  • It can only be included in the main contract
  • It must be approved by a state authority
  • It must be agreed upon verbally by all parties
  • It must be in written form (correct)
  • What does 'incorporation by reference' mean in the context of an arbitration agreement?

    <p>Referencing another document that contains the arbitration agreement</p> Signup and view all the answers

    In the context of determining the legal capacity to contract for a company, which law is primarily referenced?

    <p>The law of the place of incorporation or business</p> Signup and view all the answers

    What must be included for a reference to constitute an arbitration agreement?

    <p>A clear indication that the clause is part of the contract</p> Signup and view all the answers

    The standard for determining whether parties intended to include an arbitration agreement through incorporation by reference is considered a question of what?

    <p>Contract interpretation</p> Signup and view all the answers

    What occurs if a non-signatory participates in arbitration and does not object to the tribunal's jurisdiction within the specified time limit?

    <p>Their silence may be interpreted as acceptance of an arbitration agreement.</p> Signup and view all the answers

    What is the main advantage of bifurcating the proceedings in arbitration?

    <p>It can significantly reduce the costs and duration of proceedings.</p> Signup and view all the answers

    How does a court review a tribunal's decision on jurisdiction?

    <p>It evaluates the decision de novo, independent of the tribunal's conclusions.</p> Signup and view all the answers

    What implication does Article 9 of the Model Law have regarding requests for interim measures from courts?

    <p>They are compatible with the arbitration agreement.</p> Signup and view all the answers

    When might bifurcation of proceedings be discouraged in arbitration?

    <p>When the jurisdictional objections are likely to cause delays in the case.</p> Signup and view all the answers

    What primarily determines subjective arbitrability in Singapore?

    <p>The type of claims or issues identified in the arbitration agreement</p> Signup and view all the answers

    In the context of arbitration in Singapore, what is one reason a dispute may not be considered arbitrable?

    <p>If the resolution is contrary to public policy</p> Signup and view all the answers

    How do Singapore courts generally interpret arbitration clauses?

    <p>Broadly, encompassing a range of claims related to the contract</p> Signup and view all the answers

    Which kind of claims did the Singapore Court of Appeal determine as unlikely to be included in an arbitration agreement in the Larsen case?

    <p>Bankruptcy claims concerning corporate management</p> Signup and view all the answers

    What key approach did the SGCA adopt regarding public policy in determining arbitrability in Anupam Mittal v Westbridge Ventures?

    <p>A comprehensive approach encompassing both local and foreign public policy</p> Signup and view all the answers

    Which of the following issues is commonly accepted as non-arbitrable due to public policy considerations?

    <p>Matters concerning citizenship</p> Signup and view all the answers

    What is required for Subjective arbitrability to be applicable under the IAA in Singapore?

    <p>An arbitration agreement that meets commercial criteria</p> Signup and view all the answers

    What aspect distinguishes objective arbitrability from subjective arbitrability?

    <p>The legality and permissibility of disputes for arbitration</p> Signup and view all the answers

    In Singapore's arbitration context, which of the following is NOT usually associated with objective arbitrability?

    <p>Disputes related to personal injury</p> Signup and view all the answers

    What is one option available to a party wanting to contest the arbitral tribunal's jurisdiction?

    <p>Fully participate in arbitration and raise objections.</p> Signup and view all the answers

    How does the doctrine of competence-competence function within arbitration?

    <p>It permits the tribunal to rule on its own jurisdiction.</p> Signup and view all the answers

    What is a risk associated with refusing to participate in arbitration?

    <p>The party may lose the right to appeal.</p> Signup and view all the answers

    What does the doctrine of separability imply regarding arbitration clauses?

    <p>It treats the arbitration clause as independent from other terms.</p> Signup and view all the answers

    When is a party likely to prefer to ask the tribunal to determine jurisdictional objections as a preliminary issue?

    <p>When confident in the tribunal's support.</p> Signup and view all the answers

    What is one consequence of the lack of clarity in case law for a boycotting party?

    <p>They may have no recourse against the tribunal's award.</p> Signup and view all the answers

    If a party contests the existence of the arbitration agreement, what effect does this have on the arbitrator's jurisdiction?

    <p>It challenges the jurisdiction of the arbitrator.</p> Signup and view all the answers

    What may happen if a party boycotts an arbitration after the tribunal declares its jurisdiction?

    <p>The party could face binding consequences from the award.</p> Signup and view all the answers

    What challenge might arise if a party is compelled to participate in arbitration while contesting jurisdiction?

    <p>They risk exposing their arguments to the tribunal.</p> Signup and view all the answers

    What happens if a foreign governing law states that the subject matter of a dispute cannot be arbitrated?

    <p>The Singapore court will not allow the arbitration to proceed.</p> Signup and view all the answers

    If a dispute is deemed non-arbitrable under Singapore law, but arbitrable under the law of the arbitration agreement, what is the outcome?

    <p>The arbitration cannot proceed.</p> Signup and view all the answers

    What is a consequence of a dispute being classified as non-arbitrable?

    <p>An award on the dispute can be set aside.</p> Signup and view all the answers

    What is meant by the term 'pathological clause' in arbitration agreements?

    <p>An ambiguous or unclear arbitration agreement.</p> Signup and view all the answers

    In the case of a defective arbitration clause, what does the SGCA emphasize regarding its validity?

    <p>The nature or substance of the defect determines its validity.</p> Signup and view all the answers

    What principle do tribunals or courts generally rely on to address pathological clauses?

    <p>Principle of effective interpretation.</p> Signup and view all the answers

    Which of the following is NOT an example of a defect in an arbitration clause?

    <p>Drafting the clause in a complex legal jargon.</p> Signup and view all the answers

    Under what circumstance is an arbitration agreement not nullified despite choosing rules of a non-existent organization?

    <p>If the parties' dominant purpose was to settle disputes by arbitration.</p> Signup and view all the answers

    What might indicate that a defect in an arbitration clause is not curable?

    <p>A specific arbitrator is named who is no longer able to act.</p> Signup and view all the answers

    Study Notes

    Applicable Laws in Arbitration

    • Arbitration rules govern the procedures of the arbitration process
    • The law of the seat of arbitration (lex arbitri) governs the procedural aspects of the arbitration
    • The law governing the substance of the dispute deals with the issues at hand
    • The law governing the arbitration agreement dictates the agreement itself
    • The law applicable to non-contractual claims covers non-contractual situations
    • The law governing a party's legal capacity to contract outlines the ability of a party to enter into a contract

    Legislative Framework in Singapore

    • Domestic arbitrations in Singapore are governed by the Arbitration Act
    • International arbitrations are governed by the International Arbitration Act
    • An arbitration is considered international if:
      • At least one party has its place of business outside Singapore
      • The place of arbitration is outside the state of a party's business
      • A substantial part of the commercial relationship is performed outside a party's business's state
      • The subject matter of the dispute is closely connected to a state outside Singapore
    • The parties can explicitly state that the International Arbitration Act will apply
    • The UNCITRAL Model Law on International Commercial Arbitration (Model Law) has the force of law in Singapore (except Chapter VIII)

    Relationship Between Applicable Laws

    • Arbitration agreements require valid agreement between parties for a tribunal to have jurisdiction
    • Parties choose between ad hoc or institutional arbitration for the administration of the arbitration
    • Institutional arbitration delegates the administration to a designated institution or organization (SIAC, ICC, HKIAC, LCIA, etc)
    • Institutions publish pre-drafted arbitration agreements called model clauses to be included in a contract.
    • Ad hoc arbitration does not involve any institution
    • Arbitration rules often specify the seat of the arbitration (e.g., Singapore) which determines procedural law (lex arbitri)

    Relationship Between Applicable Laws (continued)

    • The choice of seat has significant implications for the procedural law overseeing the proceedings - Singapore's Arbitration Act (AA) or the International Arbitration Act (IAA) for domestic and international arbitrations, respectively - The English Arbitration Act, if the seat is London - Hong Kong Arbitration Ordinance, if the seat is Hong Kong
    • A party or parties opting for institutional arbitration, where the rules of that institution govern, may or may not override the lex arbitri provisions

    Relationship Between Applicable Laws (continued)

    • Provisions in arbitration agreements adopting arbitral institution rules aren't sufficient to exclude the Model Law.
    • Singapore law adheres to Model Law provisions unless there's a mandatory Model Law provision in conflict
    • Parties can choose the law that governs their arbitration agreement
    • A party's contractual capacity is usually governed by their nationality

    Arbitration Agreement

    • An arbitration agreement might appear as a clause within a contract, or as a separate agreement
    • Arbitration agreements must be in writing; electronic forms are valid as long as the information is accessible
    • There is a general consensus that an arbitration agreement needs to be stated expressly; although there are exceptions.

    Parties to the Arbitration Agreement

    • Arbitration agreements typically bind only those who've consented to it.
    • Several legal doctrines may still bind non-signatory parties (e.g., implied consent, agency principles, group of companies' doctrine and estoppel), though the legal treatment of these is controversial, especially in Singapore.

    Subject Matter Arbitrability

    • Concerns whether a dispute's subject matter is suitable for arbitration
    • In Singapore, any dispute agreed for arbitration is arbitrable unless it violates public policy.

    Pathological Arbitration Clauses

    • Unclear or ambiguous clauses possibly causing disruptions in the arbitration process
    • Defects often include incorrect institution names, institution's location usage, unclear finality, etc.
    • Effective interpretation is applied to correct defects to accurately reflect parties' intent

    Drafting Arbitration Clauses - Considerations

    • Clearly identify parties
    • Stipulate that disputes are subject solely to arbitration
    • Detail the scope of arbitrable issues
    • Specify the arbitration seat
    • If applicable, determine arbitration institution/rules
    • Detail the number of arbitrators (avoiding panels of two)
    • Stipulate the language of proceedings
    • Specify the governing law of the arbitration agreement

    Stay of Court Proceedings

    • A party may seek to stop court proceedings started in breach of an arbitration agreement.
    • Applications to stop court proceedings must be filed before the first statement on the substance of the dispute is submitted.
    • The court retains some discretion to refuse a stay in domestic arbitrations if sufficient cause exists
    • The court should consider other factors, including disputes' nature and potential overlap with other issues, along with the likelihood of injustice or prejudice.

    Prima Facie Considerations

    • Courts' evaluation of arbitration agreements' existence, scope, and validity varies based on whether the contesting party disputes an arbitration agreement's existence itself or merely its implications.
    • The court's decision concerning jurisdiction is seen as a preliminary decision, not a final one, and thus reviewable.

    Scope of Court Review of a Tribunal's Jurisdictional Decisions

    • The court at the seat of arbitration reviews the tribunal's jurisdictional decisions de novo (from the beginning; not based on the previous tribunal decision)

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    Description

    This quiz explores the key laws and frameworks governing arbitration in Singapore, including both domestic and international arbitration laws. Understand the concepts of lex arbitri, the arbitration agreement, and the various legal capacities regarding non-contractual claims. Test your knowledge on the procedural and substantive aspects of arbitration.

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