ARB Study Notes - Arbitration

**Award** The arbitrator's duty to make decision in an arbitration is not delegable (*Neale v Richardson*). The test is whether there is excessive delegation of function is whether the arbitrator had exercised his own judgment in accepting or rejecting the opinions or advice given (*Anderson v Wall...

**Award** The arbitrator's duty to make decision in an arbitration is not delegable (*Neale v Richardson*). The test is whether there is excessive delegation of function is whether the arbitrator had exercised his own judgment in accepting or rejecting the opinions or advice given (*Anderson v Wallace*). Improper or excessive delegation of a tribunal's functions may render the award challengeable as being not made in accordance with the agreed procedure or on the ground that the tribunal was improperly constituted. 1. **Remedies that the tribunal can award** 1. **Power to award remedies** 189. Typical remedies include: (i) damages and interest; (ii) specific performance; (iii) declaratory orders, (iv) rectification, (v) indemnity against liability from third party claims; (vi) costs. 190. The arbitral tribunal, in deciding the dispute that is the subject to the proceedings may award any remedy or relief that could have been made by the SGHC if the dispute had been the subject of civil proceedings in that court (s 12(5)(a) IAA). Further, the tribunal may award simple or compound interest on the whole or any part of the sum (s 12(5)(b) IAA). **7.1.2 Costs** 191. The final award will usually include an order on costs. There are three primary options: - Reasonable costs to be borne by the overall losing party. - Reasonable costs to be allocated on a proportional basis. - Each party is to bear its own costs. 192. Can a party attempt to set aside the costs award because it is so disproportional that it is against public policy? In *VV v VW* \[2008\] SGHC 11, VV applied to set aside the costs award on the basis that it was so disproportionate it was against public policy. The 2. **Definition of award** 1. **What is an award?** 193 Whether or not a decision is characterised as an "award" gives rise to significant legal consequences. Only decisions that are "awards" can be the subject of setting aside proceedings and can be enforced under the New York Convention. 194 A key characteristic of an award under the IAA is finality, in the sense that, subject to narrow exceptions, the arbitral tribunal may not thereafter revisit or revise an award that it has made: s 19B of the IAA. 195 An "award" is not defined in the New York Convention. However, it is defined in s 2(1) IAA as a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial awards but excludes any orders or direction. The mere titling of a document as an award does not make it an award. It is the substance and not the form that determines the true nature of the ruling of the tribunal (*PT Asuransi v Dexia Bank* \[2006\] SGCA 41 at \[70\]). 196 What are not "awards" as defined under the IAA? - - 197 "*\[O\]nce a tribunal has issued an award (be it an interim, interlocutory, partial or final* *award), the tribunal is functus officio in relation to the specific issues dealt with by the* 198 The arbitral tribunal may revisit an award only in the limited circumstances provided in Articles 33 and 34(4) of the Model Law, namely: (a) to correct in the award any errors in computation, clerical or typographical errors, or errors of similar nature; (b) to give an interpretation of a specific point or part of the award; or (c) where a court that has been asked to set aside the award suspends the setting-aside proceedings in order to give the tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside. **Types of awards** 199 A tribunal may make more than one award at different points in time during the arbitral proceedings on different aspects of matters to be determined (s 19A(1) IAA). In particular, the tribunal may make an award relating to an issue affecting the whole claim, or a part of the claim (s 19A(2) IAA). 200 Types of awards include: - Final award: arbitral proceedings are terminated by the final award (Art 32(1) MAL) - - - - - 3. **Content and form of awards** 3. **Content** 4. The award shall be made in writing and be signed by the arbitrator. In proceedings with more than one arbitrator, the signatures of the majority will suffice, provided that the reason for any omitted signature is stated (Art 31(1) MAL). The award shall state the reasons upon which it is based, unless the parties have agreed otherwise (Art 31(2) MAL). The award shall state its date and place of arbitration, and shall be deemed to have made at that place (Art 31(3) MAL). 5. In the context of Singapore, a foreign arbitral award for the purposes of the NYC means an award that was made at a seat outside of Singapore. 2. **Scrutiny and time limits for rendering awards** 203 Arbitration laws usually do not prescribe time limits for rendering an award. In contrast, institutional rules may specify a timeframe within which the arbitral award should be issued by the tribunal. 204 What if the timing requirements not complied with? There are two competing views: - - 205 When the law is difficult, rely on the facts of your case (and *vice versa*). In *Alphamix Ltd v District Council of Riviere Du Rampart (Mauritius)* \[2023\] UKPC 20, an appeal from the Supreme Court of Mauritius, the UK Privy Council upheld the tribunal's award even though the award had been annulled by the Mauritian court for being given three days after the date specified for providing an award. The Court agreed that the communications and conduct of the parties demonstrated an unequivocal common intention formed and manifested that the delay in providing the final, signed version of the award would not result in the award being invalid. That amounted to a tacit agreement to extend the time limit for rendering the award. **Dissenting judgments** 206 Where there is more than one arbitrator, the tribunal shall decide by a majority. Failing a majority decision, the presiding arbitrator alone shall make the award for the tribunal (eg Rule 28.5 SIAC). 4. **Correction and interpretation of awards** 1. **Correction of award** 207 Within 30 days of receipt of an award (unless another time period has been agreed upon), a party may, with notice to the other party, request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical errors or errors of a similar nature. If the tribunal considers the request to be justified, it shall make the correction within 30 days of receipt of the request (Art 33(1)(a) MAL). 208 Alternatively, the tribunal may correct any errors in computation, any clerical or typographical errors or errors of a similar nature on its own initiative within 30 days of the date of award (Art 33(2) MAL). **Interpretation of award** 209 Within 30 days of receipt of an award (unless another time period has been agreed upon), if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award. If the tribunal considers the request to be justified, it shall make the interpretation within 30 days of receipt of the request. The interpretation shall form part of the award (Art 33(1)(b) MAL). **Additional award** 210 A party, with notice to the other party, may request, within 30 days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted in the award. If the tribunal considers the request to be justified, it shall make the additional award within 60 days (Art 33(3) MAL). **Extension of time** 211. The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award (Art 33(4) MAL). 8. **Setting aside of award** 1. **Finality of awards** 212 A valid award made by the tribunal is final and binding on the parties (s 19B(1) IAA; Rule 28.9 SIAC). Except as provided in Art 33 or 34(4) MAL, the arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award (s 19B(2) IAA). Once delivered, all awards are final and are *res judicata*. A partial award cannot be revised by the arbitral tribunal in a later award. 213 Errors of law or fact made in an arbitral decision are final and binding on the parties and may not be appealed against or set aside by a court (*PT Asuransi v Dexia Bank* at \[57\]). 214 Save for any corrections to an award (mentioned above), there are two main exceptions to finality: - - **Setting aside and resisting enforcement are cumulative options** 215 Under Singapore law, setting aside/annulling an award (which can only take place at the seat) and objecting to enforcement of the award (wherever the award creditor seeks enforcement) are cumulative remedies. According to the SGCA, the Model Law contains at its heart a system of "choice of remedies" which entitle parties to choose whether to actively seek to set aside the award at the seat of arbitration or passively resist enforcement at the place of enforcement or do both (*First Media v Astro* \[2013\] SGCA 57 at \[71\]). 216 Put another way, the fact that the award debtor chooses *not* to set aside the award does not preclude the award debtor from resisting enforcement of the award. Conversely, the fact that the award debtor has chosen to apply to set aside the award does not preclude the award debtor from resisting enforcement of the award. By way of dicta, the [Singapore Court of Appeal in *First Media v Astro* indicated that it will not be possible] [to enforce in Singapore an award that has been set aside/annulled because that award] would have become a nullity. Other jurisdictions however take differing approaches. 217 On court procedure, note the latest Court Registrar's Circular No. 1 of 2023 on the Guide for the Conduct of Arbitration Originating Applications accessible [[here],](https://www.judiciary.gov.sg/docs/default-source/circulars/2023/registrar's_circular_no_1_2023_supreme_court) which is equally applicable for both setting aside and resisting of enforcement challenges. 3. **Setting aside award at seat of arbitration** 1. **Exclusive grounds for setting aside** 218 The only recourse against an award is to apply to have it set aside at the seat of arbitration (Art 34(1) MAL; Art 1(2) MAL). The grounds for setting aside are exhaustive and found in Art 34(2) MAL \[and s 24 IAA, if the arbitration is seated in Singapore\]. Apart from these grounds, a court has no power to investigate the merits of the dispute. Errors of law or fact per se are final and binding on the parties and may not be appealed against or set aside (*PT Asuransi v Dexia Bank* at \[57\]). 219 Setting aside refers to vacating or nullifying the award. Assuming the seat of arbitration is Singapore, Art 1(2) MAL prescribes that an Art 34 MAL setting aside application must take place in Singapore, and it must be made before the Singapore High Court, the court specified in the IAA for the purposes of Art 6 MAL. **Step 1: What is the ground for setting aside?** 220 [Art 34(2) MAL]: An arbitral award [may] be set aside by the SGHC only if: - \(a) the party making the application furnishes proof that: - \(b) the COURT finds that: \[court may raise these grounds on its own initiative\] 221 [s 24 IAA]: Notwithstanding Art 34(1) MAL, the SGHC may, in addition to the grounds set out in Art 34(2) MAL, set aside the award of the arbitral tribunal if: - \(a) the making of the award was induced or affected by fraud or corruption; - \(b) a breach of the rules of natural justice occurred in connection with the making 222 In practice, when the award debtor is alleging a breach of natural justice, it is common to invoke both s 24(b) as well as Art 34(2). **Step 2: Is the setting aside application made in time?** 223 An application for setting aside must be made within 3 months from the date on which the party making that application received the award (Art 34(3) MAL). Art 34 does not provide for any extension of the time period. In Singapore, the courts have no discretion to extend the time period. After the expiry of 3 months, the court will not entertain any application lodged (*ABC Co v XYZ Co* \[2003\] SGHC 107 at \[9\]; *Bloomberry Resorts v Global Gaming* \[2021\] SGCA 9). **Step 3: Should the court exercise its discretion NOT to set aside an award?** 224 Art 34(2) MAL states that the court "may" set aside the award if any of the grounds is satisfied. As such, the court retains a discretion NOT to set aside the award even if one of the grounds has been established. **Step 4: What is the consequence of a challenge?** 225 A court hearing a challenge to an award may: - Set aside the award in whole or in part. - Vary parts of the award. - Remit the award to the arbitral tribunal for reconsideration. - 4. **Setting aside of foreign awards** 226 Setting aside applications can only be made at a court at the seat of arbitration. A court may not set aside a foreign award (i.e. award made outside the jurisdiction). 9. **Enforcement of awards** 1. **Enforcement at the seat of arbitration** 227 In Singapore, international arbitration awards made pursuant to an arbitration agreement seated in Singapore may be enforced as judgments or orders of the court (s 19 IAA). There are no statutory provisions setting out when leave for enforcement would be refused under IAA. 228 However, in *First Media v Astro* \[2013\] SGCA 57, the SGCA held that the same grounds for resisting enforcement under Art 36(1) MAL (which is excluded under the IAA) are equally available to a party resisting enforcement of a domestic international award under s 19 IAA (at \[84\]). Even though Art 35 and 36 is expressly excluded by s 3(1) IAA, it was done so to maintain Singapore's reciprocity reservation under the NYC (at \[86\]). Parliament did not intend to exclude the "choice of remedies" policy of the Model Law and must have intended for courts to retain the power to refuse enforcement of international arbitration awards made in Singapore (at \[87\]). 2. **Enforcing foreign awards in NYC countries** 1. **Applicability of the NYC** 229 The NYC applies to the recognition and enforcement of foreign awards or awards not considered as domestic awards in the state where their recognition and enforcement is sought (Art I(1) NYC). **Reservations** 230 [Reciprocity reservation]: A contracting state may limit the NYC's scope of application by declaring that it will apply the convention to the recognition and enforcement of awards made only in the territory of another contracting state (Art I(3) NYC). Numerous countries in the region have made a reciprocity reservation, including India, Indonesia, Japan, Korea, China, Malaysia, New Zealand, Pakistan, The Philippines, Singapore, Vietnam. 231 [Commercial reservation]: A contracting state may limit the NYC's scope of application to differences arising out of legal relationships which are considered as commercial under the national law of the state making such declaration (Art I(3) NYC). **Obligation to recognise and enforce arbitral awards** 232 A state that is party to the New York Convention is obliged to recognise arbitral awards as binding and enforce them (Art III NYC). **Procedure for enforcement** 233 Foreign awards refer to awards made pursuant to an arbitration agreement seated outside Singapore (s 27(1) IAA). In Singapore, foreign awards are enforceable and recognised as binding (s 29(1), (2) IAA; Art III NYC). 234 A party seeking to enforce an award has to produce to the court (a) the duly authenticated original award or a certified copy; (b) the original arbitration agreement under which the award is made or a duly certified copy; and (c) a translation in English if the award or agreement is in a foreign language (s 30(1) IAA; Art IV NYC). 235. The general procedure involved in the enforcement of arbitral awards are set out [[here].](https://journalsonline.academypublishing.org.sg/Journals/SAL-Practitioner/Arbitration-and-Mediation/ctl/eFirstSALPDFJournalView/mid/590/ArticleId/1344/Citation/JournalsOnlinePDF) Essentially, enforcement under both Parts II and III of the IAA is a two-stage process. First, an *ex parte* application is filed by the award creditor for leave to enforce the award. This is to be supported by an affidavit satisfying the relevant Rule of Court, eg it must exhibit the arbitration agreement and the award, state the name and the usual or last known place of business of the award creditor and debtor, and state either that the award has not been complied with or the extent to which it has not been complied with at the date of the application. 236. Where the formal requirements are met, the court will make an order granting leave to enforce, typically in a matter of days without the need for an oral hearing, which the award creditor must then serve on the award debtor. 237. Upon effective service, if the award debtor wishes to challenge enforcement, the award debtor must take steps to challenge enforcement within 14 days after service, or if the order is served out of jurisdiction, within such other period as the court may fix. 238. If the award debtor does not challenge the enforcement order within the stipulated timeframe, the award creditor may proceed to enter judgment-in-terms of the award, which can then be executed against assets of the award debtor in Singapore. 239. If the award debtor does challenge the enforcement order based on or more of the exhaustive grounds listed in ss 31(2) and 31(4) of the IAA (for foreign awards) or Art 36 MAL read with s 19 of the IAA (for local awards), the proceedings move to a second inter partes phase, where the SGHC will have to decide on the challenge. 240. **.5 Bilateral and multilateral enforcement agreements** 240. The provisions of the NYC shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by contracting states nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon (Art VII(1) NYC). The second part of Art VII(1) NYC is referred to as the 'more favourable right' provision. This means that if a conflict arises between NYC and the domestic law of the enforcing state, the more favourable right to enforce an award will prevail. 241. **Grounds for refusal of enforcement** 242. The grounds for resisting enforcement of an award in Singapore mirror the grounds for setting aside an award made in Singapore. This is because the drafters of the MAL deliberately took reference from the NYC. 243. A court hearing the application for enforcement of a foreign award cannot review the case on the merits. Errors of law or fact per se are final and binding on the parties (*PT Asuransi v Dexia Bank* at \[57\]). 244. A court may refuse enforcement only if certain grounds are met (Art V NYC; s 31 IAA; Art 36 MAL). In determining whether the ground for refusing establishment was established, the enforcement court is entitled to undertake a fresh examination of the issues alleged to establish the ground of challenge (*First Media v Astro* \[2013\] SGCA 57 at \[164\]) \[i.e. standard of review is *de novo*\]. 244 Steps: - Step 1: What are the ground(s) for resisting enforcement? - 245 Recognition and enforcement of the award may be refused only if the party against whom it is invoked proves that: - - - - - - 246 Recognition and enforcement of an arbitral award MAY also be refused if the court where enforcement is sought finds that: \[court may raise these grounds on its own initiative\] - - **.4.1 Art V(1)(b): Violation of due process / breach of natural justice** 247. An award may be refused enforcement on the grounds that the challenging party was 248. A restraint on the ability to present one's case is often described as constituting a breach of natural justice rules or a denial of due process. 249. Natural justice is an administrative law concept that encapsulates two famous maxims: No one shall be a judge in his own cause (*nemo iudex in causa sua*). 250. In Singapore, the courts have indicated that there is a high threshold for proving a denial of due process. In *John Holland Pty Ltd (formerly known as John Holland Construction & Engineering Pty Ltd) v Toyo Engineering Corp (Japan)* \[2001\] 1 SLR(R) 443, the SGHC set out the elements that need to be established to set aside an arbitral award for breach of natural justice: a. b. c. d. 251 In *Soh Beng Tee v Fairmount* \[2007\] SGCA 28, the SGCA held (at \[64\]) that it was not the function of the court to scrutinise an arbitral award microscopically in an attempt to determine if there was any blame or fault in the arbitral process. Rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied. \[Policy: The delicate balance between ensuring the integrity of the arbitral process and ensuring that the rules of natural justice were complied with in the arbitral process was preserved by strictly adhering to only the narrow scope and basis for challenging an arbitral award that had been expressly acknowledged under the Act.\] 252. Importantly, in *China Machine New Energy Corp v Jaguar Energy Guatemala LLC & Another* \[2020\] 1 SLR 695, the SGCA held that if a party intends to contend that there has been a fatal failure in the process of the arbitration, then there must be fair intimation to the tribunal that the complaining party intends to take that point at the appropriate time if the tribunal insists on proceeding. The complaining party, at the very least, should seek to suspend the proceedings until the breach has been satisfactorily remedied. The complaining party cannot simply "reserve" its position until after the award to see how the result turns out before deciding whether or not to take the point. The SGCA noted that it is a contradiction in terms for a party to claim that proceedings had been irretrievably tainted by a breach of natural justice, when at the material time it presented itself as a party ready, able and willing to carry on to the award. 253. The following are past examples which have succeeded in supporting a challenge of an arbitral award for breach of natural justice: - - - 254 Common arguments which failed in support of breach of natural justice challenges include the following: - - - **.4.2 Art V(1)(d): Irregularity in procedure or composition of arbitral tribunal** 255. An award may be refused enforcement on the grounds that the composition of the 256. However, if a party fails to make a timely objection to a procedural irregularity (i.e. proceeds with arbitration without stating objection despite having knowledge of it), the party may be deemed to have waived his right to object (Art 4 MAL; Rule 37.1 SIAC). 257. In addition, even if significant irregularity is proved and the refusal ground is satisfied, an enforcing court may well use its residual discretion to allow enforcement if it considers that the irregularity is unlikely to have affected the outcome of the case, or that no prejudice has been caused to the party resisting enforcement. \[For instance, in *Werner A Bock v N's Co*, the Hong Kong CA held that he irregularity in the composition of the arbitral tribunal was of such a nature that it would be unjust to refuse enforcement and allow the defendant to benefit from the irregularity because it had not been prejudiced.\] **.4.3 Art V(1)(e): Award has been set aside** 258. An award may be refused enforcement on the ground that it has been set aside or suspended by a competent court at the seat of arbitration (s 31(2)(f) IAA; Art V(1)(e) NYC; Art 36(1)(a)(v) MAL). 259. In some cases, awards that have been set aside at the seat aside at the seat of arbitration have nevertheless been enforced in a different country, particularly in France and in the US (see *Hilmarton* where the French court enforced an award that had been set aside in Switzerland; *Chromalloy* where the US court enforced an award that had been set aside in Egypt). 260. In Singapore, the SGCA has opined in dicta that the Singapore courts will not enforce a foreign award which had been set aside by the court in the seat of arbitration. This is because the contemplated *erga omnes* effect of a successful application to set aside an award would generally lead to the conclusion that there was simply no award left to enforce (*PT First Media v Astro* \[2013\] SGCA 57 at \[76\], \[77\]). 1. **.4.4 Art V(2)(b): Public policy** 261. A court, of its own initiative, can consider that an award may be refused enforcement on the ground that it is against the public policy in the state it is located (s 31(4)(b) IAA; Art V(2)(b) NYC; Art 36(1)(b)(ii) MAL). 262. In Singapore, the scope of public policy is narrow. It only operates in instances where upholding the arbitral award would "shock the conscience" or is "clearly injurious to the public good" or "wholly offensive to the ordinary, reasonable and fully informed member of the public" or "where it violates the forum's most basic notion of morality and justice" (*PT Asurani v Dexia Bank* \[2006\] SGCA 41 at \[59\]). n *VV v VW* \[2008\] SGHC 11, the SGHC held that a disproportionate costs award did not constitute a violation of public policy. 263. There are at least three different ways public policy challenges can be raised: (1) the *remedies* ordered by the award are contrary to public policy; (2) the award gives effect to an *underlying contract* that is illegal or tainted with illegality; and (3) *how* the award was procured is contrary to public policy. 264. Public policy has been invoked most commonly in cases involving the second category. In such cases, the question that arises is to what extent the court should re-open the tribunal's findings. This is because the legality of the underlying contract would often have been an issue that the tribunal has dealt with. Therefore, to deal with a public policy challenge in this category, reviewing courts would generally have to first decide if it should re-open the issue of illegality. 265 In Singapore, the SGCA in *AJU v AJT* \[2011\] SGCA 41 appears to have held that only errors of law made by the tribunal as to the content of the forum's public policy is subject to re-opening by that forum, but not otherwise. *CBX v CBZ* interpreted *AJU* as giving rise to the following four scenarios: +-----------------+-----------------+-----------------+-----------------+ | ***Scenario*** | **Law governing | **Tribunal's | **Whether | | | the underlying | finding on the | re-opening by | | | contract** | legality of the | reviewing court | | | | underlying | is** | | | | contract** | | | | | | **permissible** | +=================+=================+=================+=================+ | ***\#1*** | Singapore law | Not illegal | Able to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#2*** | Singapore law | Illegal | Unable to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#3*** | Foreign law | Illegal | Unable to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#4*** | Foreign law | Not illegal | Unable to | | | | | intervene | | | | | | | | | | unless there is | | | | | | | | | | "palpable and | | | | | | | | | | indisputable | | | | | illegality" | +-----------------+-----------------+-----------------+-----------------+ 266. This matrix has not been considered by the SGCA. 267. In several cases, the SGHC has held that, on the facts, even if there was illegality, it would not rise to the level necessary to justify setting aside the award based on the public policy ground: see *Gokul Patnaik v Nine Rivers Capital Limited* \[2020\[ SGHC(I) 23. 268. Contrast with other jurisdictions where the courts have adopted a broad notion of public policy: - - **9.5 Adjournment of enforcement proceedings** 269 Where simultaneous applications are made (i) by the losing party to set aside the award at the seat of arbitration, and (ii) by the winning party to enforce the award in another country, Art VI NYC gives a domestic court hearing the enforcement application 270 The trend under Art VI NYC is to adjourn enforcement proceedings if the court hearing the enforcement application considers that there is a probability of success in the proceedings to set aside. However, adjournment should not be automatic on showing a likelihood of success in the setting aside proceedings. There may be factors, viewed in their totality, that are more compelling than a 'probable success' approach. Art VI is enacted as s 31(5) in the IAA. 271 In *Man Diesel & Turbo SE v IM Skaugen Marine Services Pte Ltd* \[2018\] SGHC 132, the SGHC considered whether it should adjourn proceedings to enforce an arbitral award under s 31(5) of the IAA, pending the determination of proceedings challenging the award at the seat in Denmark. The SGHC rejected the adjournment application, and upheld the order granting leave for the immediate enforcement of the arbitral award. 272 On the test for granting adjournments under s 31(5) of the IAA, the SGHC observed that the statutory wording was permissive in nature and conferred a wide discretion on the enforcing court. The enforcing court's task was to weigh in the balance all the factors in favour of and against adjournment, so as to reach an outcome that would be most just or least unjust. Taking guidance from English case law, the SGHC distilled the following factors: - The merits of the setting aside application (to be assessed on a sliding scale basis). - The likely consequences occasioned by an adjournment and in particular the length - All other circumstances of the case. 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. 7\. Award - Requirements of a valid award \[189\] Power to award remedies - \[191\] Costs - \[193\] What is an award - Types of Awards - Content and form of award - **[\[201\] Content]** - \[203\] Scrutiny and time limits for rendering awards **[Award will not be annulled if award was late, so long as no prejudice]** - \[206\] Dissenting judgements - Correction and interpretation of awards - \[207\] Correction of award - within 30 days - \[209\] Interpretation of the award - \[210\] Additional award - \[211\] Extension of time - 8\. Setting aside of award - \[212\] **[Finality of award]** A valid award made by the tribunal is final and binding on the parties (s 19B(1) IAA; Rule 28.9 SIAC) Errors of law or fact made in an arbitral decision are **[final and binding]** on the parties and may **[not be appealed against or set aside by a court]** - **[Exceptions:]** Proactively apply to the courts at the **[seat to set aside/annul the award]** within the stipulated timeframe under the *lex arbitri*. Wait until a court enforcement action is commenced by the **[award creditor]** in whichever jurisdiction, and then **[resist enforcement]** in accordance with the laws of that jurisdiction. It is likely the laws will mirror the NYC as most States are signatory to the NYC. - **[\[215\] Setting aside and resisting enforcement are cumulative options]** - \[218\] Setting aside award at seat of arbitration - **[s24 IAA Court may set aside award]** - Step 1: What is the ground for setting aside? - Step 2: Is the setting aside application made in time? - Step 3: Should the court exercise its discretion NOT to set aside an award? - Step 4: What is the consequence of a challenge? 1. [ **Set aside the award in whole or in part. 2 Vary parts of the award. 3 Remit the award to the arbitral tribunal for reconsideration. 4 Refuse to set aside the award**] - **[\[262\] Setting aside a foreign award]** **[A court may not set aside a foreign award (i.e. award made outside the jurisdiction)]**. - On what basis to set aside? Procedure? - 9\. Enforcement of Awards - \[227\] Enforcement at the seat of arbitration - Enforcing awards in NYC countries - Applicability of the NYC - Commercial / Reciprocity Reservations - Obligation to recognise and enforce arbitral awards - Procedure for enforcement - Bilateral and multilateral enforcement agreements - **[Grounds for refusal of enforcement]** **Article V of the New York Convention** - **[Art V(1)(b): Violation of due process / breach of natural]** **[justice High threshold:]** a. which rule of natural justice was breached b. how that particular rule of natural justice was breached c. in what way the breach of natural justice connected with the making of the award d. how the breach prejudiced the rights of the party concerned. COA: t it was not the function of the court to scrutinise an arbitral award microscopically in an attempt to determine if there was any blame or fault in the arbitral process - **[Art V(1)(d): Irregularity in procedure or composition of arbitral tribunal]** even if significant irregularity is proved and the refusal ground is satisfied, an enforcing court may well use its **[residual discretion]** to allow enforcement if it considers that the irregularity is unlikely to have affected the outcome of the case, or that no prejudice has been caused to the party resisting enforcement - Art V(1)(e): Award has been set aside - Art V(2)(b): Public policy +-----------------+-----------------+-----------------+-----------------+ | ***Scenario*** | **Law governing | **Tribunal's | **Whether | | | the underlying | finding on the | re-opening by | | | contract** | legality of the | reviewing court | | | | underlying | is** | | | | contract** | | | | | | **permissible** | +=================+=================+=================+=================+ | ***\#1*** | Singapore law | Not illegal | Able to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#2*** | Singapore law | Illegal | Unable to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#3*** | Foreign law | Illegal | Unable to | | | | | intervene | +-----------------+-----------------+-----------------+-----------------+ | ***\#4*** | Foreign law | Not illegal | Unable to | | | | | intervene | | | | | | | | | | unless there is | | | | | | | | | | "palpable and | | | | | | | | | | indisputable | | | | | illegality" | +-----------------+-----------------+-----------------+-----------------+ 266. 267. 268. - - - Adjournment of enforcement proceedings - Factors considered: ∀ The merits of the setting aside application (to be assessed on a sliding scale basis). ∀ The likely consequences occasioned by an adjournment and in particular the length of the adjournment. ∀ All other circumstances of the case. - Factors considered for granting adjournment - **[Enforcement is a two-staged process (1) file ex parte applicable with supporting affidavit (2) award debtor has 14 days to challenge (3) if challenged, then inter partes phase proceeds]** - Principles of natural justice - Requirements for breach of natural justice - \[252\] Notice of fatal failure of arbitration process - \[253\] Past examples of breach of natural justice - What is not a breach of natural justice