B24 Arb PDF

B24 ARB 1\. Applicable Laws When is an abitration, **[\'international arbitration]**\'? \[13\] **[Seat]** of arbitration and the **[Law of the seat of the arbitration (lex arbitri)]** \[15\] To what extent do the institutional rules override the provisions of the lex arbitri? \[18\] What happen...

B24 ARB 1\. Applicable Laws When is an abitration, **[\'international arbitration]**\'? \[13\] **[Seat]** of arbitration and the **[Law of the seat of the arbitration (lex arbitri)]** \[15\] To what extent do the institutional rules override the provisions of the lex arbitri? \[18\] What happens of there is a conflict between arbitration rules and the model law incorporated by the IAA ? **[\[Mandatory versus non-mandatory\]]** \[23\] What if the Parties did not agree on the seat of arbitration? \[25\] **[Factors]** to consider when choosing seat \[27 \]What if the parties did not choose any governing law? Conflict of rules shall apply: (i) the seat of arbitration; (ii) the place where the award is likely to be enforced; (iii) the jurisdiction that would have been competent but for the arbitration place; (iv) the place of contractual performance; (v) the jurisdiction with some element common to the parties; (vi) general principles of private international law; or (v) the law with the closest connection to the dispute, etc. 2\. Arbitration Agreement **[Consensual]** means of resolving disputes \[45\] Parties must have consented to arbitration agreement notwithstanding it was not signed \[48\] **[Subject matter arbitrability]** \[50\] Subjective arbitrability: assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out the relationship into which they have entered to be decided by the same tribunal \[52\] Objective arbitrability: here a dispute may be arbitrable under the law of the arbitration agreement but Singapore law as the law of the seat considers that dispute to be non- arbitrable, the arbitration would not be able to proceed \[55\] **[Pathological]** (Defective) arbitration clauses \[66\] Drafting of arbitration clauses \[70\] **[Stay]** of court proceedings (in favor of arbitration) - Singapore courts in a Domestic arbitration **[Factors]** considered when granting stay of proceedings in favour of arbitration \[**[Sufficient reason]**\] **[Differences]** between the AA and the IAA s6(2) AA Court\'s discretion to deline stay \[sufficient reason\] s45 AA Determination of preliminary point of law s49 (1) AA Appeal against award based on question of law 3\. Jurisdiction of arbitral tribunal \[86\] Option to challenge the tribunal\'s jurisdiction \[92\] **[doctrine of competence-competence]** - Tribunal may rule on its own jurisdiction **[Doctrine of separability - You must challenge the arbitration clause and not just the contract itself]** 4\. Constitution and challenge of arbitral tribunal \[112\] Challenging Arbitrator in independence **[independence]** **[\[115\] Test for impartiality and Indepedence]** \[130\] Three scenarios after challenge filed (15 days) 5\. Conduct of proceedings What rules/ procedures/ processes are binding? \[150\] **[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)]** 5.8 Typcial **[procedural steps]** in a typical arbitration 6\. Interim measures \[167\] Tribunal ordered interim measures \[176\] Court ordered interim measures - **[Factors]** to be considered; Balance of convenience **[\[182\] Anti-suit injunction]** 7\. Award Content and form of award **[\[201\] Content]** 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]** **[\[215\] Setting aside and resisting enforcement are cumulative options]** \[218\] Setting aside award at seat of arbitration **[s24 IAA Court may set aside award]** **[\[262\] Setting aside a foreign award]** **[A court may not set aside a foreign award (i.e. award made outside the jurisdiction)]**. 9\. Enforcement of Awards **[Grounds for refusal of enforcement]** **Article V of the New York Convention** 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. - - **[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]** Requirements for breach of natural justice