ARB Study Notes - Darius Chan - Arbitration 4 to 6 PDF

**Constitution and challenge of arbitral tribunal** 1. **Constitution of tribunal** 1. **Number of arbitrators** 109 Parties are free to determine the number of arbitrators (Art 10(1) MAL). If the number of arbitrators is not determined by the parties: - The default number of arbitrators...

**Constitution and challenge of arbitral tribunal** 1. **Constitution of tribunal** 1. **Number of arbitrators** 109 Parties are free to determine the number of arbitrators (Art 10(1) MAL). If the number of arbitrators is not determined by the parties: - The default number of arbitrators is three (Art 10(2) MAL). - Notwithstanding Art 10(2) MAL, there shall be a single arbitrator (s 9 IAA). 2. **Procedure of appointment** 110 Parties are free to agree on a procedure of appointing the arbitrator(s) (Art 11(2) MAL). This is a matter usually addressed by institutional rules. 111 Failing such agreement: - In an arbitration with 3 arbitrators: - In an arbitration with a sole arbitrator: - Appointing authority: **4.2 Challenging arbitrators** 112 Steps: - - Step 2: What is the challenge procedure under the institutional rules or *lex arbitri*? 1. **Grounds for challenge** 113. An arbitrator has an ongoing duty to disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence (Art 12(1) MAL). An arbitrator may be challenged if circumstance exist that give rise to "justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties" (Art 12(2) MAL). However, a party may challenge an arbitrator nominated by him only for reasons of which he becomes aware after the appointment was made (Art 12(2) MAL). 114. An objection must be made as soon as the grounds are known to the party seeking the challenge. Failure to do so may constitute a waiver (Art 4 MAL). 2. **Test for impartiality and independence** 115. In Singapore, the applicable test is one of "reasonable suspicion". The concern is not whether there is a real likelihood or possibility of bias, but simply whether a reasonable man without any inside knowledge might conclude that there was an appearance of it (*Re Shankar Alan* \[2006\] SGHC 194 at \[76\], \[78\]). 116. A ground which may give rise to impartiality are instances where an arbitrator has private contact with one party or appears to have some personal correspondence from that party. While that there is no absolute rule against an arbitrator corresponding directly with the parties, this should only be done in very exceptional circumstances (*Turner (East Asia) v Builders Federal (Hong Kong)* \[1988\] SGHC 47 at \[93\]). 117. Parties can rely on Art 12(2) of the Model Law to challenge the appointment of an arbitrator if "*circumstances exist that give rise to justifiable doubts as to his impartiality or independence,.... A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons which he becomes aware after the appointment has been made*.". 118. The Singapore High Court affirmed (in *PT Central Investindo v Francisus Wongso and ors and anor matter* \[2014\] SGHC 190 ("*PT Central Investindo*")) that the test under this particular provision is an objective one, and the court is to find circumstances that exist which give rise to justifiable doubts. Once such doubts have been found, the applicant need not prove the existence of actual bias. 119. Actual bias is one of the three forms of bias considered by the Singapore courts -- (i) actual bias, (ii) imputed bias, or (iii) apparent bias. Findings of an actual bias will obviously disqualify a person from sitting in judgment. 120. The second form of bias is imputed bias which arises where a judge or arbitrator may be said to be acting in his own cause (*nemo judex in sua causa*) and this happens if he has, for instance, a pecuniary or proprietary interest in the case. In such a case, disqualification is certain without the need to investigate whether there is a likelihood or even suspicion of bias. 121. The third form of bias is apparent bias, with the test to be applied being the "reasonable suspicion test", i.e. whether a reasonable and fair-minded person with knowledge of all relevant facts would entertain a reasonable suspicion that the circumstances leading to the arbitral award might result in the arbitral proceedings being affected by apparent bias if the arbitrator was not removed (*PT Central Investindo*, at \[18\]). 122. In *BYL and ors v BYN* \[2020\] SGHC(I) 6 ("*BYL v BYN*"), the Singapore Court analogised the test to be applied in order to determine apparent bias in arbitrators to that applied in court proceedings, namely a test of reasonable suspicion. This involves an assessment of whether there are circumstances which would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the tribunal may be biased and that a fair hearing may not be possible 123. The reasonable suspicion test is applied objectively. The hypothetical reasonable observer is presumed to be a lay-person who is (1) informed of the relevant facts and able to consider them in their proper context, (2) not wholly uninformed and uninstructed about the law in general or the issues to be determined in the proceedings, (3) aware of the traditions of integrity and impartiality that persons who exercise adjudicative functions generally have to uphold, and (4) fair-minded in the sense of being neither complacent nor unduly sensitive or suspicious. 124. A reasonable suspicion or apprehension arises when the hypothetical reasonable observer would think, from the relevant circumstances, that bias is possible. The belief should not be fanciful and must be capable of articulation by reference to the available evidence. A standard of possibility (as opposed to probability) is adopted to ensure that from the public perspective the administration of justice is beyond reproach (*BYL v BYN*, at \[51\]). 3. **IBA Guidelines on Conflicts of Interest in 2014** 125. While they are (typically) not binding and do not have the force of law, the IBA Guidelines on Conflicts of Interest in International Arbitration (2014) are widely referred to by parties, arbitrators, and courts. The IBA Guidelines contain certain "coloured lists" as follows. 126. [Non-waivable red list] includes situations deriving from the overriding principle that no person can be his or her own judge. Acceptance of such a situation cannot cure the conflict. - 1.1 The arbitrator is a legal representative or employee of an entity that is a party in the arbitration. - 1.2 The arbitrator is a manager, director or member of the supervisory board, or has - 1.3 The arbitrator has a significant financial or personal interest in one of the parties, or the outcome of the case. - 1.4 The arbitrator or his or her firm regularly advises the party, or an affiliate of the 127. [Waivable red list] covers situations that are serious but not as severe. These situations are considered waivable, but only if and when the parties, being aware of the conflict- of-interest situation, expressly state their willingness to have such a person act as arbitrator. - Relationship of arbitrator to the dispute. - Arbitrator's direct or indirect interest in the dispute - Arbitrator's relationship with the parties or counsel. 128. [Orange list]: The arbitrator has a duty to disclose in such situations. The parties are deemed to have accepted the arbitrator, if, after disclosure, no timely objection is made. - Previous services for one of the parties or other involvement in the case - Current services for one of the parties - Relationship between an arbitrator and another arbitrator or counsel - Other circumstances 129. [Green list]: a non-exhaustive list of specific situations where no appearance and no actual conflict of interest exists from an objective point of view. The arbitrator has no duty to disclose situations falling within the green list. - Previously expressed legal opinions. - Current services for one of the parties. - Contacts with another arbitrator, or with counsel for one of the parties. - Contacts between the arbitrator and one of the parties. **Challenge procedure** 130 3 possible scenarios once a challenge is filed: - - - 131 This is an area that is addressed in most institutional rules. The MAL which applies where parties have not agreed to any relevant rules provides as follows: Parties are free to agree on a procedure for challenging an arbitrator (Art 13(1) MAL). If there is no agreement, a party who intends to challenge an arbitrator shall submit a written statement of reasons for challenge to the arbitral tribunal within 15 days after becoming aware of the circumstances that give rise to justifiable doubts as to the arbitrator's impartiality or independence. Unless the challenged arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge (Art 13(2) MAL). If the challenge is unsuccessful, the challenging party may, within 30 days, request the court to decide on the challenge, which decision shall be subject to no appeal. While such a request is pending, the tribunal may continue proceedings and make an award (Art 13(3) MAL). **Failure or impossibility to act** 132 If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from office or if parties agree on the termination. Otherwise, any party can request the court to decide on the termination of the mandate, which decision shall be subject to no appeal (Art 14(1) MAL). Withdrawal by the arbitrator or agreement by the parties to terminate the arbitration does not imply acceptance of the validity of any ground for removal (Art 133 Where the mandate of an arbitrator terminates or because of his withdrawal from office, a substitute arbitrator is appointed according to the rules that were applicable to the appointment of the arbitrator being replaced (Art 15 MAL). **4.2.6 Setting aside or resisting enforcement of award on ground that arbitrator was partial** 134 A party may attempt to set aside an award on the grounds that the arbitrator was not independent under Art 34(2)(a)(iv) MAL \[composition of arbitral tribunal or arbitral procedure not in accordance with agreement of parties\] or under s 24(b) IAA \[breach of rules of natural justice where rights of party prejudiced\]. An application for setting aside may not be made after 3 months of receiving the award (Art 34(3) MAL). However, if the party fails to challenge the arbitrator's lack of impartiality or independence without undue delay after becoming aware of the circumstances, he may be deemed to have waived his right to challenge the arbitrator (Art 4 MAL). 135 Enforcement of the award in Singapore may be resisted on the similar grounds, i.e. that composition of the arbitral tribunal or arbitral procedure was not in accordance with agreement of parties (Art V(1)(d) NYC; s 31(2)(e) IAA). **4.2.7 Immunity of arbitrators and institutions** 136. [Immunity of arbitrators]: An arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitration, and or any mistake in law, fact, or procedure made in the course of arbitral proceedings or in the making of an arbitral award (s 25 IAA). 137. [Immunity of institutions]: Most international arbitration rules also contain an exclusion of liability provision to protect arbitrators and arbitral institutions from civil liability. **4.3 Arb-med (arbitrator acting as a conciliator)** 138. Arb-med is a dispute resolution process which combines arbitration and mediation. The mediation, if it occurs, takes place with the parties' consent at an appropriate stage during the arbitration proceedings. 139. In Singapore, where all parties to an arbitral proceeding consent in writing, an arbitrator may act as a conciliator (s 17(1) IAA). In this case, the parties will be taken to have waived their right to challenge the arbitrator solely on the ground that he had acted previously as a conciliator (s 17(4) IAA). 140. Whilst an arbitrator double-hatting as a mediator is common in certain jurisdictions such as China, issues of impartiality may arise if the arbitrator is also asked to be a mediator. For this reason, the SIAC-SIMC Arb-Med-Arb protocol uses a separate arbitrator and mediator. 141. Arb-Med-Arb is a process where a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. The consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in over 170 countries under the New York Convention. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings[.^7^](#bookmark115) 142. Parties keen to use the SIAC-SIMC Arb-Med-Arb protocol can insert the appropriate model clause into their contracts. 143. What happens if a party does not adhere to the med-arb clause and refuses to engage in any pre-arbitration mediation? Does that entitle the innocent party to commence a court action instead? 144 In *Heartronics Corporation v EPI Life Pte Ltd* \[2017\] SGHCR 17, the Singapore High Court refused to grant a stay of court proceedings in favour of arbitration because, in its view, the first defendant had committed a repudiatory breach of the arbitration 7. [[https://siac.org.sg/the-singapore-arb-med-arb-clause]](https://siac.org.sg/the-singapore-arb-med-arb-clause) 145. This can be contrasted with *Maxx Engineering v PQ Builders Pte Ltd* \[2023\] SGHC 71, where clause 54 provided that, in the event of a dispute, the parties "*shall endeavour to resolve the dispute through negotiations*" and *"\[i\]f negotiations fail, the parties shall refer the dispute for mediation at the \[SMC\] in accordance with the Mediation Rules for the time being in force*". Clause 55 of the contract provided that if the dispute was not resolved by the parties in accordance with clause 54, the parties shall refer the dispute for arbitration. 146. When a dispute arose between the parties, the respondent referred the dispute to arbitration pursuant to Clause 55, without referring the dispute to mediation. The respondent argued that it was not under a contractual obligation to refer the dispute to mediation before resorting to arbitration, because clause 54 had stated that "*\[f\]or the avoidance of doubt, prior reference of the dispute to mediation under this clause shall not be a condition precedent for its reference to arbitration...*". 147. The High Court held that, by its plain wording, clause 54 imposed a legal obligation on the parties to refer their dispute to mediation, if negotiations failed. The High Court also found that it was just and equitable to grant an order specific performance sought by the applicant compelling the parties to refer the dispute to mediation, because (a) damages were not an adequate remedy if specific performance was not ordered, (b) the respondent would not suffer substantial hardship from the order, (c) an order for specific performance would not be futile as there was no evidence that mediation would be futile and (d) the order for specific performance would not be impractical as there was no serious difficulty in determining whether the respondent had taken specific and concrete steps to refer the dispute to mediation. **5. Conduct of proceedings** 1. **Freedom to agree on the procedure** 2. Parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings (Art 19(1) MAL), for instance by agreeing to certain institutional rules. Failing such agreement, the arbitral tribunal has the power to conduct the arbitration in such manner as it considers appropriate, including the power to determine the admissibility, relevance, materiality and weight of any evidence (Art 19(2) MAL). 3. It is important to note that domestic evidence statutes and laws are not binding on the tribunal, unless parties agree. **Core procedural rights and duties** 150 A fundamental right is that all parties shall be treated with equality and be given a full opportunity of presenting his case (Art 18 MAL). 151 Parties can request for an oral hearing to take place (Art 24(1) MAL). Parties are to be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal (Art 24(2) MAL). All statements, documents or information supplied to the arbitral tribunal by one party shall be communicated to the other party (Art 24(3) MAL). 3. **Default of a party (or non-participation)** 1. **Claimant fails to communicate statement of claim** 152 If, without showing sufficient cause, the claimant fails to communicate his statement of claim, the arbitral tribunal shall terminate the proceedings (Art 25(a) MAL). 2. **Respondent fails to communicate statement of defence** 153 If, without showing sufficient cause, the respondent fails to communicate his statement of defence, the arbitral tribunal shall continue the proceedings without treating such failure as an admission of the claimant's allegations (Art 25(b) MAL). **Any party fails to appear at a hearing or to produce documentary evidence** 1. If any party, without showing sufficient cause, fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it (Art 25(c) MAL). 4. **Obtaining evidence** 1. **Documentary evidence** 155. An arbitral tribunal seated in Singapore has the power to make orders or give directions to any party for the discovery of documents (s 12(1)(b) IAA). 156. Court assistance may be sought in document production (Art 27 MAL). In Singapore, any party to an arbitration may take out a subpoena to produce documents, which may be issued by the SGHC (s 13(1), (2) IAA). 2. **Witness evidence** 157 A witness who refuses to give evidence may be compelled to do by the courts in Singapore (s 13(2) IAA). In *ALC v ALF* \[2010\] SGHC 231, the Singapore High Court confirmed that under s 30 of the AA, subpoenas may be issued to compel the attendance of a witness before an arbitral tribunal. However, in that case, the Singapore High Court set aside the subpoena on the basis that the party seeking the subpoena ought to have sought directions from the tribunal on the calling of the relevant witness prior to making any court application. This was because the terms of Procedural Order No. 1 in the arbitration reserved the decision as to what *legal* steps a party should take in the event it wishes to adduce evidence from a person who will not appear voluntarily at its request to the arbitrator; and second, that party should write first to the arbitrator, **Confidentiality** 158. This is an issue that is typically covered in institutional rules. In *India v Deutsche Telekom* \[2023\] SGCA(I) 4, the SGCA described the "*conventionally private nature of arbitration proceedings*". 159. In Singapore, ss 22 and 23 of the IAA provide, among other things, that court proceedings relating to arbitration are to be heard in private by default. In *India v Deutsche Telekom* \[2023\] SGCA(I) 4, it was recognised that the purpose of ss 22 and 23 is to protect the confidentiality of the arbitration itself and the interest in keeping any enforcement proceedings confidential under the IAA is essentially a derivative interest designed ultimately to protect the confidentiality of the underlying arbitration. However, when the confidentiality of the arbitration has been lost, the principle of open justice would weigh strongly in favour of lifting the cloak of privacy that has been provided for in the IAA. 160 Earlier, in *AAY v AAZ* \[2011\] 1 SLR 1093, the Singapore High Court opined (at \[55\]) that "*as a principle of arbitration law at least in Singapore and England, the obligation of confidentiality in arbitration will apply as a default to arbitrations where the parties have not specified expressly the private and/or confidential nature of the arbitration*". In that case, the High Court held (at \[72\]) that "*confidentiality is a lesser interest than the public interest of having criminal wrongdoing revealed to the relevant authorities for their investigation*" and accordingly "*disclosure to the appropriate authorities where there is reasonable suspicion of criminal conduct is thus an exception to the obligation of confidentiality*". **Parties' representation** 161 In Singapore, there are no restrictions on the ability of foreign lawyers to act for clients in arbitrations seated in Singapore (s 32 read subject to s 35 Legal Profession Act). This extends to: any arbitrator acting in arbitration proceedings, (b) a person representing **Termination of proceedings** 162 Arbitral proceedings are terminated by the final award (Art 32(1) MAL). The arbitral tribunal shall issue an order for termination of the arbitral proceedings when: (a) the claimant withdraws his claim, unless the respondents object and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute; (b) the parties agree on the termination of the proceedings; (c) the arbitral tribunal finds that continuation of the proceedings has for any other reason become unnecessary or impossible (Art 32(2) MAL). 163. However, after termination, the mandate of the tribunal may revive if there is a request by a party to correct or interpret the award under Art 33 MAL or if a court hearing a setting aside application determines that the arbitral tribunal shall resume arbitral proceedings or to take such other action as in the arbitral tribunal 's opinion will eliminate the grounds for setting aside under Art 34(4) MAL (Art 32(3) MAL). 164. **Typcial procedural steps in a typical arbitration** 164 Using the SIAC Rule[s](#bookmark6)[^1^](#fn1){#fnref1.footnote-ref} as an example: 1. Notice of arbitration: - - 2. Response to notice of arbitration: - - 3. Deposit of fees for the institution: - - 4. Expedited procedure: 5. Appointment of arbitrators: - - - - - - - - - - Preliminary meeting between arbitral tribunal and parties: - Exchange of written submissions: - - - 8. Jurisdiction of tribunal: - - 9. Conduct of the proceedings and rules of evidence: - - - - 10. Oral hearing: - - - 11. Witnesses: - - - - 12. Post hearing submissions 13. Deliberations of the arbitrations 14. Issue of the award 15. Setting aside or enforcement of the award 165 Under Model Law: - Art 19: Determination of rules of procedure - Art 20: Place of arbitration - Art 21: Commencement of arbitral proceedings - Art 22: Language - Art 23: Statements of claim and defence - Art 24: Hearing and written proceedings - Art 25: Default of a party - Art 26: Expert appointed by arbitral tribunal - Art 27: Court assistance in taking evidence **Interim measures** 166 Interim measures are court or arbitral tribunal orders designed to protect assets or maintain the status quo pending the outcome of legal proceedings. Most courts and tribunals have concurrent jurisdiction to grant interim relief. **Tribunal ordered interim measures** 167 [SG IAA]: The tribunal has the power to issue an order or direction to any party granting an interim injunction or any other interim measure (s 12(1) IAA). All orders and directions made or given by an arbitral tribunal is, by leave of the SGHC, enforceable in the same manner as if they were orders made by a court (s 12(6) IAA). 168 Under s 12(1) IAA, an arbitral tribunal seated in Singapore has the powers to make orders or give directions to any party for: a. Security for costs; b. Discovery of documents and interrogatories; c. Giving of evidence by affidavit; d. e. f. g. Securing the amount in dispute; h. i. An interim injunction or any other interim measure. 169 An order made under s 12 IAA cannot be set aside because s 34 MAL (and s 24 IAA) only extends to an "award" (*PT Pukuafu v Newmont Indonesia* \[2012\] SGHC 187 at \[19\]). To this end, the definition of an "award" under s 2 IAA specifically excludes 170 [MAL 1985]: Unless agreed otherwise by the parties, the tribunal has the power, at the request of a party, to order any party to take such interim measure of protection as the tribunal considers necessary in respect of the subject matter of the dispute. The tribunal may require any party to provide appropriate security in connection with such measure (Art 17 MAL). The parties may agree that the tribunal should not have such a power. **Interim measures by the Court** 171 Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures (Art 17 MAL). 172 The 2006 amendments to the MAL introduced further provisions concerning interim measures, which have [not] been enacted in Singapore. For instance, the tribunal can order a party, inter alia, to maintain the status quo pending determination of the dispute, refrain from taking action that will prejudice the arbitral process, to preserve evidence relevant to the dispute (Art 17(2) MAL 2006). The party requesting an interim measure must satisfy the tribunal that harm not adequately reparable by damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm likely to result to the party against whom the measure is directed (Art 17A(1)(a) MAL 2006). Moreover, the party must show that there is a reasonable possibility that he will succeed on the merits of the claim (Art 17A(1)(b) MAL 2006). 2. **Ex parte preliminary orders** 3. A preliminary order is essentially the same as an interim measure, except it is obtained ex parte, i.e. the tribunal has heard from only one of the parties. The 1985 MAL is silent on ex parte orders. 174 The 2006 amendments to the MAL which have [not] been enacted in Singapore have certain provisions concerning preliminary orders. Unless agreed otherwise, a party may, without notice to any other party, make a request for an interim measure together with a preliminary order (Art 17B(1) MAL 2006). The arbitral tribunal may grant a preliminary order if it considers that prior disclosure of the request risks frustrating the purpose of the measure (Art 17B(2) MAL 2006). Notice of the order must be provided immediately after the order is made (Art 17C(1) MAL 2006). Further, the tribunal must give the party against whom a preliminary order is directed to present its case (Art 17C(2) MAL 2006). The order has a life span of 20 days but this may be varied after hearing the party subject to the order (Art 17C(4) MAL 2006). Such a preliminary order is binding on the parties but is neither an award nor is subject to enforcement by a court (Art 17C(5) MAL 2006). 175 The 2006 Model Law contains safeguards to prevent abuse of the interim measures regime: - - It may require appropriate security to be provided (Art 17E MAL 2006). - It may require the requesting party to make prompt disclosure of any material - **.2 Court ordered interim measures** 176. When to go to court to obtain interim relief? - - - - Tribunal may not have the powers to order interim measures. However, a downside to going to court is that confidentiality may be lost. 177 [SG IAA]: The legislature enacted s 12A of the IAA instead of the 2006 amendments to the MAL. The parties may to go the SGHC to seek interim relief under s 12A IAA. The court has the power to make an order of any of the matters set out in s 12(1)(c) to (j) IAA (S 12A(2) IAA). If it is urgent, the SGHC may make such orders as it thinks necessary for the purpose of preserving evidence or assets (s 12A(4) IAA). If it is not urgent, the SGHC will only grant interim relief if the application is made the permission of the arbitral tribunal or the agreement in writing of the other parties (s 12A(5) IAA). In every case, the SGHC will make an order only to the extent that the arbitral tribunal or institution has no power, or is unable for the time being to act effectively (s 12A(6) IAA). In any event, the SGHC may refuse to make an order if the fact that the seat is outside Singapore or likely to be outside Singapore makes it appropriate to make such an order (s 12A(3) IAA). 178. The court can order interim measures whether or not the seat of arbitration is Singapore (s 12A(1)(b) IAA; overruling *Swift-Fortune v Magnifica* \[2006\] SGCA 42). 179. In determining whether the injunction should be granted or upheld, the test is whether the balance of convenience lies in favour of granting or upholding the injunction (*Maldives Airports v GMR Male* \[2013\] SGCA 16 at \[53\]). In *Maldives Airports*, the SGCA found that the balance of convenience was not in favour of granting or upholding the injunction. First, damages would be an adequate remedy. Second, there were practical problems with the enforcement of the injunction. The broad scope of the injunction meant that the Maldives government would not have any certainty of what was required of them to comply with the injunction. Moreover, the injunction required an unaccepted degree of supervision in a foreign land given that its terms were vague and broad. Accordingly, the injunction was set aside. **.3 Enforcement of interim measures** 180. Where the interim measures are granted by tribunal seated in SG: All orders and directions made or given by an arbitral tribunal is, by leave of the SGHC, enforceable in the same manner as if they were orders made by a court (s 12(6) IAA). 181. Where the interim measures are granted by foreign tribunal: - - - 1. **.4 Anti-suit injunctions** 182. An anti-suit injunction has been described as an order by a court that has personal jurisdiction over a party to require the party either not to file a claim in a foreign jurisdiction or not to proceed with a claim that has already been filed. The concern is that the same issues between the parties that are currently litigated or arbitrated within the jurisdiction of the court issuing the order, and that foreign action would frustrate efficient results in the forum court, or that the party carrying on litigation in the foreign jurisdiction is doing so in bad faith in order to harass the other party. 183. Anti-suit injunctions are controversial. When any court enjoins a party from bringing a suit in a foreign jurisdiction, questions of international comity come into play as there is an interference on the jurisdiction of the foreign court. International comity involves respect and deference towards another country's laws and court decisions. Nonetheless, because a court's actions may simply be ignored by a foreign court, the success of the anti-suit injunction depends on the amount of coercive power a court can bring to bear over the party subject to its jurisdiction. 184. The general approach taken by the Singapore Courts is that an anti-suit injunction should be granted in aid of arbitration proceedings as long as it can be established that there is a valid and binding arbitration agreement pursuant to s 2A of the IAA, and that there is evidence that a contracting party has acted in breach of the arbitration agreement by commencing proceedings elsewhere. 185. The SGCA made this attitude evident in its decision of *Maldives Airports Co Ltd and anor v GMR Male International Airport Pte Ltd* \[2013\] 2 SLR 449 ("*Maldives Airports*"), in which it accepted the English Court of Appeal's holding in *Aggeliki Charis Compania Maritama SA v Pagnan SpA, The Angelic Grace* \[1995\] 1 Lloyd's Rep 87 at 96 that there should be "*no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them*." 186. Indeed, the Singapore Courts' judicial attitude is best summed up by the Singapore High Court when it held that once the Court is satisfied that there is an arbitration agreement, "it has a duty to uphold that agreement and prevent any breach of it": *WSG* 187. This ultimately stems from, and complements the purpose of the IAA, which is to promote Singapore as an international centre for arbitration by facilitating arbitrations seated in Singapore: *WSG Nimbus* at \[90\]. In *R1 International Pte Ltd v Lonstroff AG* \[2014\] 3 SLR 166, the Singapore High Court held that the Court's power to grant a permanent injunction is derived from s 4(10) of the CLA. The High Court's decision was reversed on appeal but not on this point. B24 ARB - Practical Issues - Arbitrration or litigation ? - If Arbtitration then Institution or ad-hoc? - If Institution, then which seat and shich Institution? - Should have multi-tiered? If yes, then what should it look like? 1\. Is there a **valid** arbitration agreement? (see above, above and below) - Has the arbitration cluase been drafted with certianty? Is the subject matter of dispute arbitrable? Principle of Lex Arbitri (law of governing the arbitral procedure) Is it an \"Internaitonal Arbitration\"? Principle of Party Autonomy Principle of Separability Doctrine of Competence-Competence The legal Seat of the Abritration governs procedure (Lex Arbitri) c/f the governing law which governs the rights and obligations of the parties 2\. Is the applicant a party/claiming through a party to the arbitration agreement? (see below) 3\. Is there a dispute? (see above) 4\. Does the dispute fall within the scope of the arbitration agreement? (see above) 5\. Should the court exercise their discretion to stay the application? (see below) - a\. Is there sufficient reason why the matter should not be referred in accordance with the AA? (see below) **[s6(2)(a) AA]** b\. Is the applicant willing and still remains, ready and willing to do all things necessary for the proper conduct of the arbitration? (see below) 6\. Was the application made after the filing and service of a notice of intention to contest or not contest and before the delivering of any pleading? (see above) Other issues - Confidentiality Arbitration award - Requirements of the arbitration award Effect of the Abritration award Amendment of Arbitration award Recognition of Arbitration award Appeal against Arbitration award Following ARB, candidates should be able to: - o Draft and advise on the validity of an arbitration agreement. o Advise on how a challenge to a tribunal's jurisdiction can be made or defended. o Advise on key practical issues that arise during arbitral proceedings. o Advise on how an arbitral award can be challenged or defended. 4\. Constitution and challenge of arbitral tribunal - \[109\] Number of Arbitrators - \[110\] **[Procedure]** of appointment - \[112\] Challenging Arbitrator in independence - **[independence]** - **[\[115\] Test for impartiality and Indepedence]** - \[125\] IBA Guidelines on conflict of interests - non-waiverable redlist - waiverable list - Orange list - Green List - \[130\] Three scenarios after challenge filed (15 days) - \[132\] Failure or impossibility to act - \[134\] Setting aside or resisting enforcement of award on ground that arbitrator was partial - \[136\] Immunity of arbitrators and institutions - \[138\] Arb-Med: Court orders **[specific performance]** of the mediation clause based on **[factors]** - 5\. Conduct of proceedings - What rules/ procedures/ processes are binding? - \[149\] Freedom to agree on procedure - \[150\] **[Core procedural rights and duties]** A fundamental right is that all parties shall be treated with equality and be given a full opportunity of presenting his case (Art 18 MAL) - **[5.3 Default of a party (or non-participation)]** - 5.4 Obtaining evidence - 5.5 Confidentiality - Parties\' representation - \[162\] Termination of proceedings - 5.8 Typcial **[procedural steps]** in a typical arbitration - \[165\] Order Model Law - What rules/ procedures/ processes are NOT binding? - 6\. Interim measures - \[167\] Tribunal ordered interim measures - \[171\] Court ordered Interim measures - \[173\] Ex parte preliminary orders - \[176\] Court ordered interim measures - **[Factors]** to be considered; Balance of convenience - \[180\] Enforcement of interim measures - **[\[182\] Anti-suit injunction]** - In general **[an anti-suit injunction should be granted in aid of arbitration proceedings as long as it can be established that there is a valid and binding arbitration agreement pursuant to s 2A of the IAA, and that there is evidence that a contracting party has acted in breach of the arbitration agreement by commencing proceedings elsewhere]**. ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} [[]{#bookmark6.anchor} Please be mindful that SIAC is expected to revise its rules in 2024.][↩](#fnref1){.footnote-back} ::: :::