ARB 2 - Arbitral Tribunal Structure and Challenges
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Questions and Answers

What must be determined when deciding whether to grant or uphold an injunction?

  • The balance of convenience (correct)
  • The availability of legal representation for the parties involved
  • The financial standing of the parties involved
  • The location of the arbitration

Under which condition may the SGHC refuse to make an order regarding interim measures?

  • If the parties involved have different nationalities
  • If the injunction complexity is too high
  • If the case involves a foreign tribunal
  • If the seat of arbitration is likely outside Singapore (correct)

Which of the following is true regarding the enforcement of orders made by a tribunal seated in Singapore?

  • They require approval from the tribunal only
  • They must be enforced within one year
  • They cannot be enforced without a new court order
  • They are enforceable by leave of the SGHC as if made by a court (correct)

What is the primary purpose of an anti-suit injunction?

<p>To require a party to refrain from litigating in a foreign jurisdiction (C)</p> Signup and view all the answers

Why was the injunction in Maldives Airports v GMR Male set aside?

<p>The enforcement of the injunction posed practical problems (C)</p> Signup and view all the answers

What is the default number of arbitrators if the parties do not specify otherwise?

<p>Three (A)</p> Signup and view all the answers

Under what condition can a party challenge an arbitrator they nominated?

<p>Only for reasons known after the appointment (C)</p> Signup and view all the answers

What standard is applied in Singapore to determine an arbitrator's impartiality?

<p>Appearance of bias (C)</p> Signup and view all the answers

If an objection to an arbitrator's impartiality is not made promptly, what may happen?

<p>It may constitute a waiver (A)</p> Signup and view all the answers

What factors can give rise to justifiable doubts about an arbitrator's independence?

<p>Private contact with one party (C)</p> Signup and view all the answers

What is typically governed by institutional rules in arbitration?

<p>The procedure of appointing arbitrators (D)</p> Signup and view all the answers

What must an arbitrator disclose during their ongoing duty?

<p>Any potential conflicts of interest (A)</p> Signup and view all the answers

What is the primary reason for a party to challenge an arbitrator's appointment under Art 12(2) of the Model Law?

<p>Circumstances that give rise to justifiable doubts about impartiality or independence. (B)</p> Signup and view all the answers

According to the Singapore High Court's ruling in PT Central Investindo, what standard is used to assess justifiable doubts regarding an arbitrator's impartiality?

<p>An objective assessment based on established facts. (B)</p> Signup and view all the answers

Which of the following forms of bias disqualifies an individual from serving in a judicial capacity without further investigation?

<p>Imputed bias due to having an interest in the outcome. (C)</p> Signup and view all the answers

What is the reasonable suspicion test concerning apparent bias used for?

<p>To evaluate whether a reasonable person would suspect bias. (B)</p> Signup and view all the answers

In the context of arbitrator challenges, which of the following statements is true regarding actual bias?

<p>The existence of actual bias disqualifies a person without further inquiry. (D)</p> Signup and view all the answers

Which guideline applies to determining apparent bias in arbitrators as per the ruling in BYL v BYN?

<p>A fair-minded person's reasonable suspicion of bias. (B)</p> Signup and view all the answers

What do the three forms of bias—actual, imputed, and apparent—have in common?

<p>All can lead to the removal of an arbitrator. (C)</p> Signup and view all the answers

What is NOT a requirement for a party to challenge an arbitrator's appointment?

<p>Knowledge of bias before the appointment. (B)</p> Signup and view all the answers

Which principle regarding bias would an individual be least likely to successfully argue in a challenge to an arbitrator?

<p>Personal dislike of the arbitrator. (D)</p> Signup and view all the answers

What type of measures can an arbitral tribunal seated in Singapore order under section 12(1) IAA?

<p>Interim measures, including security for costs (D)</p> Signup and view all the answers

Which of the following is NOT provided for as an interim measure by an arbitral tribunal according to the mentioned provisions?

<p>Final resolution of disputes (C)</p> Signup and view all the answers

What must a party demonstrate to obtain an interim measure under Art 17A(1) MAL 2006?

<p>That harm not adequately reparable by damages is likely to occur (B)</p> Signup and view all the answers

According to section 12(6) IAA, how are orders made by an arbitral tribunal enforceable?

<p>In the same manner as court orders (B)</p> Signup and view all the answers

What does the term 'ex parte preliminary orders' primarily refer to in the context of tribunal processes?

<p>Orders made without the other party's presence (A)</p> Signup and view all the answers

Under the MAL, what can an arbitral tribunal NOT require from a party concerning interim measures?

<p>Complete withdrawal from all proceedings (B)</p> Signup and view all the answers

What does the term 'status quo' refer to in the context of interim measures by the tribunal?

<p>The existing state of affairs before any action is taken (B)</p> Signup and view all the answers

What is the significance of the term 'reasonable possibility' in the context of obtaining interim measures?

<p>It is a requirement to show a strong chance of success on the claim (B)</p> Signup and view all the answers

Which of the following statements about the definition of an 'award' under section 2 IAA is accurate?

<p>It excludes non-final orders like interim measures (D)</p> Signup and view all the answers

How did the 2006 amendments to the MAL change the tribunal's powers regarding interim measures?

<p>They clarified the scope and provisions concerning interim measures (D)</p> Signup and view all the answers

What is the primary aim of the reasonable suspicion test when applied in legal proceedings?

<p>To maintain the perception of fair justice administration. (B)</p> Signup and view all the answers

Which characteristic is NOT attributed to the hypothetical reasonable observer in the reasonable suspicion test?

<p>The observer must be experienced in legal matters. (B)</p> Signup and view all the answers

Which of the following is included in the non-waivable red list of the IBA Guidelines?

<p>The arbitrator is an employee of a party involved in the arbitration. (B)</p> Signup and view all the answers

Under what circumstance can a conflict listed in the waivable red list be accepted?

<p>When the parties express willingness to waive the conflict. (C)</p> Signup and view all the answers

What type of belief is required to establish reasonable suspicion according to the provided definition?

<p>A belief that can be articulated with reference to available evidence. (D)</p> Signup and view all the answers

Which principle is indicated by the concept that no one can be their own judge?

<p>Arbitrators should not have a personal stake in outcomes. (B)</p> Signup and view all the answers

What is the significance of the standard of 'possibility' in the context of reasonable suspicion?

<p>It provides a broader scope for evaluating perception of bias. (A)</p> Signup and view all the answers

In what situation would an arbitrator's frequent advisory relationship with a party be listed under the non-waivable red list?

<p>When the advisory role could influence the outcome. (A)</p> Signup and view all the answers

How is the reasonable suspicion test meant to be applied from a lay observer's perspective?

<p>With an awareness of relevant facts and impartiality. (D)</p> Signup and view all the answers

What is the potential consequence if an arbitrator is found to have a conflict listed in the non-waivable red list?

<p>The arbitrator must recuse themselves from the proceedings. (B)</p> Signup and view all the answers

What occurs if a party successfully settles a dispute through the Arb-Med-Arb process?

<p>The settlement can be recorded as a consent award. (A)</p> Signup and view all the answers

What is a key reason for employing separate arbitrators and mediators in the SIAC-SIMC protocol?

<p>To avoid issues of impartiality. (D)</p> Signup and view all the answers

What implication does a party's refusal to engage in pre-arbitration mediation have?

<p>The refusal allows immediate court action by the other party. (B)</p> Signup and view all the answers

In the case of Heartronics Corporation v EPI Life Pte Ltd, what was the Singapore High Court's stance regarding the arbitration stay?

<p>The court refused the stay because of a repudiatory breach. (C)</p> Signup and view all the answers

Which of the following best describes the process of Arb-Med-Arb?

<p>Disputes go through arbitration before mediation is attempted. (D)</p> Signup and view all the answers

What is necessary for parties to utilize the SIAC-SIMC Arb-Med-Arb protocol?

<p>A specific clause must be inserted into their contracts. (C)</p> Signup and view all the answers

Which scenario reflects the enforcement of a consent award under the Arb-Med-Arb protocol?

<p>Generally acceptable in over 170 countries. (A)</p> Signup and view all the answers

What happens during a mediation phase if the parties are unable to resolve their dispute?

<p>They can proceed with the ongoing arbitration proceedings. (B)</p> Signup and view all the answers

In the context of the discussed cases, what distinguishes the arbitration clauses in Maxx Engineering v PQ Builders Pte Ltd?

<p>They specify mediation must occur before arbitration. (D)</p> Signup and view all the answers

What is a key consideration for the Singapore Courts before granting an anti-suit injunction?

<p>Existence of a valid and binding arbitration agreement (B)</p> Signup and view all the answers

Which case influenced the approach of the Singapore Courts regarding anti-suit injunctions?

<p>Maldives Airports Co Ltd v GMR Male International Airport Pte Ltd (D)</p> Signup and view all the answers

What principle underlies the concept of international comity in the context of anti-suit injunctions?

<p>Respect and deference towards foreign laws and judicial decisions (D)</p> Signup and view all the answers

What duty arises for the Singapore Court when an arbitration agreement is established?

<p>To uphold the arbitration agreement and prevent its breach (A)</p> Signup and view all the answers

What is a necessary condition for an arbitral tribunal to grant a preliminary order according to the 2006 MAL?

<p>The tribunal must ensure prior disclosure does not risk the measure's purpose. (A)</p> Signup and view all the answers

In what context does the Singapore High Court derive its power to grant permanent injunctions?

<p>From section 4(10) of the CLA (D)</p> Signup and view all the answers

What limitation does a preliminary order have with respect to its status and enforcement?

<p>It is binding on the parties but not an award or enforceable by a court. (A)</p> Signup and view all the answers

Under which circumstance may the SGHC grant interim relief under section 12A IAA without requiring the arbitral tribunal's permission?

<p>If it is an urgent request to preserve evidence or assets. (C)</p> Signup and view all the answers

What is the maximum life span of a preliminary order as stated in the 2006 MAL?

<p>20 days (A)</p> Signup and view all the answers

What is the primary purpose of sections 22 and 23 of the IAA in Singapore regarding arbitration proceedings?

<p>To maintain confidentiality of arbitration (D)</p> Signup and view all the answers

What requirement can the arbitral tribunal impose on the requesting party when granting interim measures?

<p>The party must provide security as appropriate. (B)</p> Signup and view all the answers

What impact does going to court for interim relief have in terms of confidentiality?

<p>Confidentiality may be compromised in the process. (A)</p> Signup and view all the answers

In which case did the Singapore High Court state that confidentiality is a lesser interest compared to public interest in revealing criminal wrongdoing?

<p>AAY v AAZ (A)</p> Signup and view all the answers

What must happen after a preliminary order is made by the tribunal according to the 2006 MAL?

<p>Notice of the order must be provided immediately to the affected party. (A)</p> Signup and view all the answers

Under what condition can the principle of open justice outweigh confidentiality in arbitration proceedings?

<p>If the confidentiality has already been compromised (A)</p> Signup and view all the answers

What does section 32 of the Legal Profession Act in Singapore allow concerning foreign lawyers?

<p>Foreign lawyers can act for clients in arbitrations without restrictions (D)</p> Signup and view all the answers

What provision is stipulated for the party against whom a preliminary order is directed?

<p>The party has the right to a hearing to present their case. (C)</p> Signup and view all the answers

What is an implied risk associated with proceeding ex parte when seeking a preliminary order?

<p>The measure may lead to irreversible actions before the other party is heard. (A)</p> Signup and view all the answers

What is the outcome of arbitral proceedings as defined by Article 32(1) of the MAL?

<p>They are terminated by the final award (A)</p> Signup and view all the answers

What is considered an exception to the obligation of confidentiality in arbitration?

<p>When there is reasonable suspicion of criminal conduct (C)</p> Signup and view all the answers

What aspect of arbitration proceedings does the SGCA note is conventionally private?

<p>The nature of arbitration itself (B)</p> Signup and view all the answers

What is implied by the principle of maintaining confidentiality during arbitration in Singapore?

<p>Confidentiality applies unless stated otherwise (D)</p> Signup and view all the answers

What is the general stance of the Singapore legal system regarding the representation of clients in arbitration by foreign lawyers?

<p>Unrestricted access for qualified lawyers (C)</p> Signup and view all the answers

When may the confidentiality of an arbitration be deemed to have been lost?

<p>If there is significant media coverage (B)</p> Signup and view all the answers

Which of the following statements accurately reflects the grounds on which a party can set aside an arbitral award due to arbitrator impartiality?

<p>A lack of independence by the arbitrator is a valid ground for setting aside the award. (A)</p> Signup and view all the answers

In order to successfully resist enforcement of an arbitral award in Singapore, which of the following conditions must be demonstrated?

<p>The composition of the arbitral tribunal was not maintained in accordance with applicable agreements. (D)</p> Signup and view all the answers

What is the consequence of failing to challenge an arbitrator's lack of impartiality in a timely manner?

<p>The right to challenge the arbitrator may be considered waived. (C)</p> Signup and view all the answers

Which statement regarding the immunity of arbitrators is correct?

<p>Arbitrators have immunity from liability for actions taken in their capacity as arbitrators. (A)</p> Signup and view all the answers

What must occur for an arbitrator to act as a conciliator in Singapore?

<p>The parties must consent in writing to the arbitrator acting in this dual capacity. (C)</p> Signup and view all the answers

What is the maximum period allowed for a party to challenge the validity of an arbitral award after its receipt?

<p>3 months (B)</p> Signup and view all the answers

Which provision protects arbitrators and institutions from civil liability for actions taken during arbitration?

<p>s 25 IAA (D)</p> Signup and view all the answers

Flashcards

Arbitrator Appointment

Parties decide the number of arbitrators, defaulting to three if not specified, and sometimes a sole arbitrator. Parties determine the appointment procedure, or institutional rules dictate it.

Challenging Arbitrators

Parties can challenge arbitrators if there's a reasonable suspicion of bias or lack of independence or if the arbitrator doesn't meet agreed-upon qualifications, but only for reasons known after appointment.

Arbitrator Impartiality Test

The test for impartiality and independence, e.g., a 'reasonable suspicion' test in Singapore, checks if a reasonable person without inside knowledge might perceive bias.

Grounds for Challenge

An arbitrator's personal contact or correspondence with a party may lead to justifiable doubts about impartiality or independence.

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Waiver of Challenge

Failing to challenge an arbitrator promptly when grounds become known can result in the challenge being disregarded.

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Arbitrator's Duty of Disclosure

Arbitrators must disclose any potential issues affecting their impartiality or independence.

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Sole Arbitrator

In some cases, a single arbitrator is appointed instead of a panel of three.

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Arbitrator challenge under Art 12(2)

A party can challenge an arbitrator's appointment if 'circumstances exist that give rise to justifiable doubts as to his impartiality or independence'.

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Objective test (arbitrator challenge)

Courts assess whether 'circumstances exist' suggesting bias, without needing proof of actual bias.

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Actual bias

A form of bias where an official acts with personal prejudice, disqualifying them.

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Imputed bias

Bias arises if an arbitrator has a personal interest in the proceedings.

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Apparent bias (arbitrator)

A reasonable person suspects bias based on the circumstances surrounding an arbitrator's role.

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Reasonable suspicion test

A test to see if a reasonable and fair-minded person would suspect bias.

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Nemo judex in sua causa

A Latin principle meaning 'no one should be a judge in their own case'.

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Singapore High Court test

Using an objective test to determine if 'circumstances exist' suggesting an arbitrator's bias.

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BYL v BYN analogy

The Singapore Court used a reasonable suspicion test to assess apparent bias in arbitrations like court proceedings.

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Seat of Arbitration

The location where the arbitration proceedings are held, which can influence the enforceability of interim measures.

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Interim Measures

Temporary orders issued by a court or tribunal to preserve the status quo or prevent potential harm during ongoing arbitration or litigation.

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Balance of Convenience

A principle used to determine whether a court should grant an injunction, weighing the potential harm to each party if the injunction is granted or denied.

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Anti-Suit Injunction

A court order preventing a party from pursuing legal action in a foreign jurisdiction when a similar case is already pending in the issuing court.

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Enforcement of Interim Measures

The process of making sure that interim measures issued by a court or tribunal are followed and enforced.

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Who Can Issue Interim Measures?

An arbitral tribunal seated in Singapore can issue interim measures under the International Arbitration Act (IAA).

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Interim Measure Examples

Examples of interim measures include securing the amount in dispute, ordering discovery of documents, and issuing injunctions.

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Interim Measures in the Model Law (MAL)

The UNCITRAL Model Law on International Commercial Arbitration also allows for interim measures.

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MAL 2006 Additions

The 2006 amendments to the MAL introduced additional provisions concerning interim measures, including maintaining the status quo and preserving evidence.

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Requirements for Interim Measures (MAL 2006)

To obtain an interim measure under the MAL 2006, the requesting party must demonstrate that harm not adequately reparable by damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm to the other party.

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Reasonable Possibility of Success

Under the MAL 2006, the party requesting interim measures must show a reasonable possibility of success on the merits of its claim.

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Ex Parte Interim Measures

Interim measures may sometimes be sought on an ex parte basis, where the other party is not notified in advance.

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Can Interim Measures Be Set Aside?

An order made under s 12 IAA cannot be set aside, as it is not considered an 'award' under the MAL 1985.

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Arbitrator's Immunity

An arbitrator is protected from liability for negligence or mistakes made during arbitration proceedings.

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Setting Aside an Award (impartiality)

A party can try to have an arbitration award overturned if the arbitrator was not truly independent or impartial, potentially due to bias or conflict of interest.

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Enforcement of Award (impartiality)

If the arbitrator was not impartial (e.g., due to a conflict of interest), the award might not be enforceable, meaning the losing party won't have to follow it.

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Immunity of Arbitral Institutions

Arbitral institutions, like organizations that handle arbitration procedures, are shielded from civil liability, just like individual arbitrators.

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Arbitrator as Conciliator

In some cases, with all parties' consent, an arbitrator can also act as a mediator, trying to help parties reach a settlement.

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Waiver of Challenge (Arbitrator)

If a party knows of grounds to challenge an arbitrator (e.g., potential bias) but delays in doing so, they might lose the right to challenge later.

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Conventionally Private Arbitration

Arbitration proceedings are generally confidential, with court proceedings related to arbitration usually held in private.

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Confidentiality in Arbitration (Singapore)

Sections 22 and 23 of the International Arbitration Act (IAA) in Singapore emphasize the confidentiality of arbitration proceedings, protecting the secrecy of the arbitration and any related court actions.

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Confidentiality Exception: Criminal Wrongdoing

While confidentiality is generally valued in arbitration, revealing criminal wrongdoing to authorities is deemed a higher priority, making it an exception to the confidentiality rule.

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Foreign Lawyer Representation in Singapore Arbitrations

Foreign lawyers are allowed to represent clients in arbitration proceedings held in Singapore, subject to specific legal provisions.

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Termination of Arbitral Proceedings

Arbitration ends with the issuance of a final award, concluding the dispute resolution process.

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Open Justice vs. Privacy in Arbitration

When confidentiality of an arbitration has been compromised, the principle of open justice (transparency and public access to proceedings) may favor lifting the veil of privacy.

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Confidentiality by Default (Singapore & England)

In Singapore and England, arbitration proceedings are typically confidential unless explicitly stated otherwise by the parties.

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Parties' Representation in Arbitration

Both domestic and international lawyers can represent clients in arbitration proceedings, with specific rules governing qualifications and procedures.

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Arbitrator's Role in Termination

The role of an arbitrator is to issue a final award, officially terminating the arbitration proceedings.

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Protection of Confidentiality in Arbitration

Specific legal frameworks and procedures aim to protect the confidential nature of arbitration proceedings, ensuring information remains private.

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Arb-Med-Arb Protocol

A process where a dispute is first referred to arbitration, then mediation is attempted. If settled, the agreement is recorded as a consent award. If not settled, the arbitration continues.

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Consent Award

An agreement reached through mediation in an Arb-Med-Arb process, formally recorded as an arbitral award, generally enforceable in over 170 countries under the New York Convention.

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SIAC-SIMC Arb-Med-Arb Protocol

A specific protocol for Arb-Med-Arb, using separate arbitrators and mediators, designed to avoid impartiality issues.

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Model Clause

A standard clause that parties can include in their contracts to incorporate the SIAC-SIMC Arb-Med-Arb protocol.

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Repudiatory Breach

A serious violation of a contract, allowing the innocent party to terminate the contract and potentially pursue a claim for damages.

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Stay of Court Proceedings

A court order halting legal proceedings pending the outcome of arbitration, often sought when parties have agreed to resolve their conflict through arbitration.

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Negotiation

Direct discussions between parties to resolve their dispute, a common first step before either mediation or arbitration.

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Mediation

A process where a neutral third party (mediator) helps parties reach a mutually acceptable settlement.

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Enforceability of Consent Award

A consent award, reached through mediation in an Arb-Med-Arb process, is generally recognized and enforceable internationally, subject to local laws.

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International Comity

Respect and deference towards another country's laws and court decisions.

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Coercive Power

The ability of a court to enforce its decisions, such as by imposing penalties or sanctions.

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Singapore Courts and Anti-Suit Injunctions

Singapore courts tend to grant anti-suit injunctions in aid of arbitration proceedings if there's a valid arbitration agreement and one party is breaching it by suing in another jurisdiction.

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Why Anti-Suit Injunctions in Singapore?

Anti-suit injunctions are helpful in Singapore as they promote the country's role as an international arbitration hub by ensuring that agreements to arbitrate here are upheld.

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Preliminary Order

A court order issued without hearing from all parties involved, typically sought to quickly address urgent issues.

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When can the tribunal NOT issue an Interim Measure?

If the arbitral tribunal lacks the authority to order interim measures.

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Why is confidentiality lost when going to court?

Court proceedings are generally public, whereas arbitrations typically remain private.

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S 12A IAA: What does it allow?

Provides a mechanism for parties to seek interim measures from the Singapore High Court.

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S 12A(2) IAA: What powers does it grant?

The court can issue orders addressing any matters listed in s 12(1)(c) to (j).

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S 12A(4) IAA: What happens in urgent situations?

The SGHC can issue interim measures necessary to preserve evidence or assets.

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S 12A(5) IAA: When is court intervention allowed (non-urgent)?

The SGHC can only grant interim relief if it’s approved by the tribunal or the other parties.

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S 12A(6) IAA: The limitation on court orders

The SGHC can intervene only to the extent the tribunal lacks power or is unable to act effectively.

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Preliminary Order: Binding Effect

A preliminary order is legally binding on the parties but cannot be enforced by a court.

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Study Notes

Constitution and challenge of arbitral tribunal

  • Parties are free to determine the number of arbitrators (Art 10(1) MAL).
  • Default number of arbitrators is three (Art 10(2) MAL).
  • Notwithstanding Art 10(2) MAL, there can be a single arbitrator (s 9 IAA).
  • Parties are free to agree on a procedure for appointing arbitrators (Art 11(2) MAL).
  • This is typically addressed by institutional rules.
  • If parties fail to agree, for 3 arbitrators:
    • Each party appoints one arbitrator.
    • Parties agree on the third arbitrator (s 9A(1) IAA).
    • If parties fail to agree within 30 days, the appointing authority makes the appointment (s 9A(2) IAA).
  • If parties fail to agree on the sole arbitrator, the relevant authority (Art 6, Art 11(3)(b) MAL) appoints the arbitrator.
  • In Singapore, the High Court is the competent court.
  • The President of the SIAC Court is the authority for appointments under Art 11(3) and (4) of MAL (s 8(1), (2) IAA).

Challenging arbitrators

  • Step 1: Identify the ground for challenge. (Test of reasonable suspicion).
  • Step 2: Determine procedure under the institutional rules or lex arbitri.
  • Arbitrator has a duty to disclose circumstances that raise justifiable doubts about impartiality or independence (Art 12(1) MAL).
  • An arbitrator can be challenged if circumstances raise justifiable doubts about impartiality or independence, or if they lack agreed qualifications (Art 12(2) MAL).
  • A party can challenge an arbitrator nominated by them only for reasons known after the appointment was made (Art 12(2) MAL).
  • An objection must be made as soon as grounds are known (Art 4 MAL).
  • The test for impartiality and independence is "reasonable suspicion" in Singapore.
  • A reasonable person with full knowledge of facts might suspect bias (Re Shankar Alan [2006]).
  • Instances where an arbitrator has private contact or correspondence with a party may raise impartiality concerns (Turner (East Asia) v Builders Federal (Hong Kong) [1988]).

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Description

This quiz covers the constitution and challenges of arbitral tribunals, focusing on the appointment and number of arbitrators as per the relevant Articles of the MAL and IAA. It also addresses the procedure for challenging arbitrators and the roles of various authorities in Singapore. Test your knowledge on the intricacies of arbitration law.

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