Singapore: International Arbitration (4th edition)

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding international arbitration law in Singapore.

This Q&A is part of the global guide to International Arbitration.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/international-arbitration-4th-edition/

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

    In the Republic of Singapore [Singapore], the International Arbitration Act (Cap. 143A) [IAA] applies to international commercial arbitrations seated in Singapore, commonly referred to as international arbitrations. The IAA incorporates the United Nations Commission on International Trade Law [UNCITRAL] Model Law on International Commercial Arbitration (adopted by UNCITRAL in 1985) [the UNCITRAL Model Law]. By contrast, the Arbitration Act (Cap. 10) applies to any arbitration in Singapore that is not international as defined in Part II of the IAA, commonly referred to as domestic arbitrations. However, parties may nonetheless agree in writing to the application of Part II of the IAA or of the UNCITRAL Model Law.

    While parties are free to agree on the law applicable to the arbitration, certain mandatory laws do impact international arbitration in Singapore, such as portions of the IAA related to appeals of jurisdiction and the enforcement or setting aside of arbitral awards.

  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    In 1986, Singapore acceded to the New York Convention, which remains in force in Singapore today. Singapore has expressed the sole reservation that it will apply the New York Convention to the recognition and enforcement of only those awards made in the territory of another contracting State.

  3. What other arbitration-related treaties and conventions is your country a party to?

    Singapore currently has 39 bilateral investment treaties in force and another 30 treaties with investment provisions in force. Many of these international investment agreements provide for investment treaty arbitration between foreign investors and the relevant host State in certain circumstances.

    One significant recent development is the 7 August 2019 signing in Singapore of the United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) [the Singapore Convention]. In addition to the hosting of the signing ceremony, Singapore is also one of the signatory States to the Singapore Convention. While the Singapore Convention apples to mediated settlement agreements rather than directly to arbitration, it is an arbitration-related international instrument in that it may provide additional options for parties to pursue international mediated settlement with an increased likelihood of enforcement as an alternative to or in parallel with traditional arbitration.

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

    Yes, the IAA is based on the UNCITRAL Model Law, with s 3(1) of the IAA giving the UNCITRAL Model Law the force of law in Singapore (the sole exception is Chapter VIII (Recognition and Enforcement of Awards)).

  5. Are there any impending plans to reform the arbitration laws in your country?

    Singapore’s Ministry of Law conducted a public consultation on the IAA from 26 June 2019 to 21 August 2019. Proposed amendments include the following:

    1. (1) Introduce a default mode of appointment of arbitrators in multi-party situations;
    2. (2) Allow parties to, by agreement, request the arbitrator or arbitrators to decide on jurisdiction at the preliminary stage;
    3. (3) Recognize that an arbitral tribunal and the High Court [have] powers to enforce obligations of confidentiality in an arbitration;
    4. (4) Allow parties to opt into a mechanism to permit an appeal to the High Court on a question of law arising out of an award;
    5. (5) Allow parties to agree to waive or limit the annulment grounds under the UNCITRAL Model Law and IAA; and
    6. (6) Provide that the Singapore Courts shall have power to order costs in certain arbitral proceedings.
  6. What arbitral institutions (if any) exist in your country? When were their rules last amended? Are any amendments being considered?

    • Singapore International Arbitration Centre [SIAC]
    o SIAC Rules (6th Edition, 1 August 2016)
    o SIAC Investment Arbitration Rules (1st Edition, 1 January 2017)
    o SIAC SGX-DT Arbitration Rules (1st Edition, 1 July 2005)
    • International Court of Arbitration of the International Chamber of Commerce [ICC]
    o ICC Rules of Arbitration (2017)
    • Permanent Court of Arbitration [PCA]
    o PCA Arbitration Rules (2012)
    • Singapore Chamber of Maritime Arbitration [SCMA]
    o SCMA Arbitration Rules (3rd Edition, October 2015)
    No amendments to the above are known to be under consideration at this time. In light of the prominence of the ICC Rules of Arbitration and the SIAC Rules in international arbitral practice in Singapore, responses to the questions below calling for institutional practice in Singapore focus on these two sets of rules.

  7. What are the validity requirements for an arbitration agreement under the laws of your country?

    Art. 7(2) of the UNCITRAL Model Law provides that ‘[t]he arbitration agreement shall be in writing’ and ‘[a]n agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another’. Singapore law also provides in the same section that ‘[t]he reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract’.

  8. Are arbitration clauses considered separable from the main contract?

    Yes. Art. 16(1) of the UNCITRAL Model Law states in relevant part as follows:
    ‘The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.’

  9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?

    The SIAC Rules (2016) provide for applications for joinder prior to constitution of the tribunal in the case of multi-party arbitration in which the party to be joined is prima facie bound by the arbitration agreement or all parties have consented (Rule 7).
    The SIAC Rules (2016) also provide for applications for consolidation in multi-contract situations (under Rules 6 and 8) where:

    1. (a) ‘all parties have agreed to the consolidation’;
    2. (b) ‘all the claims in the arbitrations are made under the same arbitration agreement’; or
    3. (c) ‘the arbitration agreements are compatible, and: (i) the disputes arise out of the same legal relationship(s); (ii) the disputes arise out of contracts consisting of a principal contract and its ancillary contract(s); or (iii) the disputes arise out of the same transaction or series of transactions’.

    There are also provisions for the joint appointment of one arbitrator by claimant(s) and one arbitrator by respondent(s) in multi-party arbitrations under the SIAC Rules (Rule 12) and the PCA Rules (Art. 10(1)).

    Similarly, the ICC Rules of Arbitration provide processes for (a) joinder of additional parties under Art. 7 (subject to the consent of the parties); and (b) claims arising out of or in connection with more than one contract to be made in a single arbitration, subject to certain requirements under Art. 6 (Effect of the Arbitration Agreement) and Art. 23(4) (limitations on new claims outside the limits of the Terms of Reference).

  10. In what instances can third parties or non-signatories be bound by an arbitration agreement?

    Local courts may not order third parties to be bound by an arbitration agreement without the consent of the parties. As the Singapore High Court observed in the 2014 case of The Titan Unity, [2014] SGHCR 4 (at [24]):

    Consent is the very foundation of arbitration, without which an arbitral tribunal’s authority to hear and determine the dispute is non-existent. If a court orders a joinder notwithstanding the lack of consent, it would force a party to bring its dispute to be adjudicated by a forum which has no jurisdiction to decide the matter [and] from which no enforceable award could be rendered. More fundamentally, the non-consenting party would be denied its right to access the courts when it has not waived its right to do so in the form of an arbitration agreement. As such, in adherence with the spirit of the Model Law and the New York Convention, a court has the power to order a joinder only with the parties’ consent.

  11. How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?

  12. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?

    S 11(1) of the IAA states that ‘[a]ny dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so’. There is no exhaustive list of types of disputes the resolution of which by arbitration would be contrary to public policy and that are, therefore, non-arbitrable in Singapore. The Singapore Court of Appeal has recognized several types of disputes that may be non-arbitrable, however, based on the legislative histories of the AA and the IAA in the case of Larsen Oil and Gas Pte Ltd v Petropod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore), [2011] 3 SLR 414 [Larsen] at [29]. Areas of law that the Larsen Court recognized to have public interest elements that may give rise to non-arbitrability include:

    • • citizenship or legitimacy of marriage;
    • • grants of statutory licenses;
    • • validity of registration of trademarks or patents;
    • • copyrights;
    • • winding-up of companies;
    • • bankruptcies of debtors; and South Korea singapore
    • • administration of estates.

    Additionally, in the case of Maniach Pte Ltd v L Capital Jones Ltd and another, [2016] 3 SLR 801 at 162, the High Court of Singapore held that a statutory minority oppression claim under s 216 of the Companies Act was non-arbitrable.

  13. Are there any default requirements as to the selection of a tribunal?

    Where the parties fail to agree on a procedure for appointing the tribunal, Art. 11(3) of the UNCITRAL Model Law provides that (1) for tribunals with three arbitrators, each party shall appoint one arbitrator within thirty days of receipt of a request to do so from the other party, and both arbitrators selected shall appoint the third arbitrator within thirty days of their appointment, failing which the appointing authority shall appoint the third arbitrator upon party request; and (2) for sole arbitrators, the appointing authority shall select the sole arbitrator upon party request. S 8(2) of the IAA specifies the President of the SIAC Court of Arbitration as the competent authority for making such appointments under Art. 11(3) of the UNCITRAL Model Law.

  14. Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge?

    Yes. The grounds for challenge of an arbitrator in Singapore are outlined at Art. 12(2) of the UNCITRAL Model Law, which provides that ‘[a]n arbitrator may be challenged only if circumstances 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’. Importantly, Art. 12(2) also provides that ‘[a] party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made’.

    Art. 13(1) of the UNCITRAL Model Law allows parties to agree on a procedure for challenging arbitrators. In the event that no procedure for arbitrator challenge has been agreed by the parties, however, Art. 13(2) provides that a party, within 15 days of becoming aware of the constitution of the tribunal or of the relevant circumstance under Art. 12(2), shall send a written statement of the reasons for the challenge to the arbitral tribunal. In such a case, the arbitral tribunal shall then decide the challenge unless the challenged arbitrator withdraws or the non-challenging party agrees with the challenge.

    In the event that a party is unsuccessful in challenging an arbitrator either under rules agreed by the parties or where no such rules have been agreed (as discussed above), Art. 13(3) provides that the unsuccessfully challenging party ‘may request, within thirty days after having received notice of the decision rejecting the challenge, the [High Court in Singapore] to decide on the challenge, which decision shall be subject to no appeal’. Art. 13(3) also states that, ‘while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award’.

  15. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?

    Art. 15 of the UNCITRAL Model Law provides that, ‘[w]here the mandate of an arbitrator terminates under Article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced’. In addition, s 31(2) of the IAA provides that the Singapore Courts may refuse enforcement of a foreign arbitral award if ‘the person against whom enforcement is sought proves to the satisfaction of the court that . . . (e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place’. As such, it may be possible for the Singapore Courts to refuse enforcement of an arbitral award rendered by a truncated tribunal.

  16. Are arbitrators immune from liability?

    Yes, s 25 of the IAA provides that ‘[a]n arbitrator shall not be liable for —

    1. negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and
    2. any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award.’
  17. Is the principle of competence-competence recognised in your country?

    Yes. Art. 16(1) of the UNCITRAL Model Law provides that ‘[t]he arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement’.

  18. What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?

    Pursuant to s 6(1) of the IAA, where a party to an arbitration agreement institutes proceedings in any court against another party to the same agreement in relation to any matter within the scope of their agreement to arbitrate, ‘any party to the agreement may, at any time after appearance and before delivering any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings so far as the proceedings relate to that matter’. In such a case, s 6(2) of the IAA provides that the relevant court ‘shall make an order, upon such terms or conditions as it may think fit, staying the proceedings so far as the proceedings relate to the matter, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed’. At s 6(3), the IAA further clarifies that, where such an order has been made, ‘the court may, for the purpose of preserving the rights of parties, make such interim or supplementary orders as it may think fit in relation to any property which is the subject of the dispute to which the order under that subsection relates’.

  19. How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?

    Art. 21 of the UNCITRAL Model Law provides that, ‘[u]nless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent’.

    Pursuant to s 8A of the IAA, ‘the Limitation Act (Cap. 163) and the Foreign Limitation Periods Act 2012 shall apply to arbitral proceedings as they apply to proceedings before any court and any reference in both Acts to the commencement of proceedings shall be construed as a reference to the commencement of arbitral proceedings’.

  20. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?

    Singapore’s State Immunity Act (Cap. 313) provides at s 3(1) that ‘[a] State is immune from the jurisdiction of the courts of Singapore’, except in cases in which:

    (1) the relevant State has submitted to the jurisdiction of the Singapore Courts (s 4(1));
    (2) the proceedings relate to a commercial transaction of the relevant State or a contractual obligation of the State falls to be performed at least partly in Singapore, with some exceptions (s 5(1));
    (3) the relevant State has either made a contract of employment with an individual in Singapore or such a contract is to be at least partially performed in Singapore, with some exceptions (s 6(1));
    (4) the proceedings are in respect of death, personal injury, or damage to or loss of tangible property that has been caused by an act or omission in Singapore (s 7(1));
    (5) the proceedings are in relation to immovable property or movable property where ‘an interest arises by way of succession, gift or bona vacantia’ (s 8(1-2));
    (6) the proceedings involve certain intellectual property disputes (s 9(1));
    (7) the proceedings involve certain types of membership of the relevant State in ‘a body corporate, an unincorporated body or a partnership’, with some exceptions (s 10(1));
    (8) a State has agreed to submit a dispute to arbitration, where the proceedings relate to such arbitration (s 11(1));
    (9) one or more of a set of limited circumstances exist involving the commercial use of ships (s 12(1)); or
    (10) the proceedings relate to liability for ‘any customs duty or excise duty’, ‘any goods and services tax’, or ‘any tax in respect of premises occupied by [the State] for commercial purposes’ (s 13(1)).

    Accordingly, a State may invoke state immunity in connection with the commencement of arbitral proceedings in Singapore where none of the above applies. The above regime for State immunity applies to entities separate from the State itself if and only if ‘the proceedings relate to anything done by [the entity] in the exercise of sovereign authority’ and ‘the circumstances are such that a State would have been so immune’ (s 16(2)).

  21. Can local courts order third parties to participate in arbitration proceedings in your country?

    Please see Question 10 above (in regard to whether third parties or non-signatories may be bound by an arbitration agreement) and Question 26 below (in regard to the role of local courts in the obtainment of evidence, including witness testimony).

  22. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    Without prejudice to other powers set out under the IAA and the UNCITRAL Model Law, s 12(1) of the IAA outlines an arbitral tribunal’s ‘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) the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;

    (e) samples to be taken from, or any observation to be made of or experiment conducted upon, any property which is or forms part of the subject-matter of the dispute;

    (f) the preservation and interim custody of any evidence for the purposes of the proceedings;

    (g) securing the amount in dispute;

    (h) ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and

    (i) an interim injunction or any other interim measure’.

    For arbitrations governed by Part II of the IAA, s 12A(2) of the IAA (Court-ordered interim measures) provides that ‘the High Court or a Judge thereof shall have the same power of making an order in respect of any of the matters set out in section 12(1)(c) to (i) [above] as it has for the purpose of and in relation to an action or a matter in the court’, subject to the specific provisions of subsections (3) (considerations where the place of arbitration is or is likely to be outside of Singapore), (4) (applications for orders for the preservation of evidence or assets in cases of urgency), (5) (procedure in cases that are not urgent), and (6) (limiting action of the Singapore Courts to cases where the arbitral tribunal has no power or is unable to act effectively). Accordingly, the full scope of potential interim measures anticipated by the above language is within the power of the Singapore Courts.
    Art. 9 of the UNCITRAL Model Law further establishes that, in Singapore, ‘[i]t is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure’.
    In regard to the issuance of interim measures pending the constitution of the tribunal, s 6(3) of the IAA provides that a court in Singapore may ‘make such interim or supplementary orders as it may think fit in relation to any property which is the subject of the dispute’ where the court has issued a stay of proceedings in favor of arbitration.

  23. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence? Can local courts compel witnesses to participate in arbitration proceedings?

    Art. 19 of the UNCITRAL Model Law (Determination of rules of procedure) provides that:

    (1) ‘Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

    (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.’

    As such, the rules of procedure are generally subject to agreement by the parties or selection by the tribunal. In addition, under s 13(2) of the IAA, ‘[t]he High Court or a Judge thereof may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore’, although s 13(4) provides the additional qualification that ‘[n]o person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action’.

  24. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?

    Art. 12 of the UNCITRAL Model Law (Grounds for challenge) requires an arbitrator to ‘disclose any circumstances likely to give rise to justifiable doubts as to his [or her] impartiality or independence’, both when approached in connection with possible appointment as an arbitrator and ‘from the time of his [or her] appointment and throughout the arbitral proceedings’.

    In addition to the above disclosure requirement in the IAA, SIAC also maintains its Code of Ethics for an Arbitrator, which addresses the topics of appointment, disclosure, bias, communications, fees, conduct, and confidentiality with respect to arbitrators. The ICC, which has recently established a physical presence in Singapore, released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration [the Note] in January 2019, providing for guidance on ‘Conduct of Participants in the Arbitration’ as follows:

    ‘Arbitral tribunals, parties and their representatives are expected to abide by the highest standards of integrity and honesty, to conduct themselves with honour, courtesy and professionalism, and to encourage all other participants in the arbitral proceedings to do the same’. Note at [47].

    Both the Note (at [49]) and SIAC Rule 13.6 also forbid arbitrators or candidates for selection as arbitrator from engaging in ex parte communications. The Note further encourages parties and arbitral tribunals ‘to draw inspiration from and, where appropriate, to adopt the IBA Guidelines on Party Representation in International Arbitration’.

  25. In your country, are there any rules with respect to the confidentiality of arbitration proceedings?

    While ss 22-23 of the IAA provide for court proceedings brought under the IAA to be heard otherwise than in open court upon the application of any party as well as for restrictions on the publication of information arising in such proceedings, both the AA and IAA ‘do not provide specifically for confidentiality in arbitration’. AAY and others v AAZ, [2009] SGHC 142 at [50]. Rather, the parties’ selection of arbitral rules is likely to have a more significant impact on the overall confidentiality of the arbitration. For example, a number of aspects of ICC arbitration are now trending toward greater transparency in practice (as discussed below at Question 4 in the Hot Topics section) while other arbitral institutions promote a greater degree of confidentiality. Under Rule 39 of the SIAC Rules (2016), for example, the default position (unless the parties agree otherwise) continues to be that ‘all matters relating to the proceedings and the Award’ are strictly confidential, including the ‘discussions and deliberations of the Tribunal’ as well as the very ‘existence of the proceedings’.

  26. How are the costs of arbitration proceedings estimated and allocated?

    SIAC provides an online schedule of fees (at http://www.siac.org.sg/estimate-your-fees/siac-schedule-of-fees), which includes updated fee information depending on the circumstances of the case for the following fees:

    • case filing fee;
    • administration fees;
    • arbitrator’s fees; and
    • if applicable, emergency interim relief fees, challenge fees, Arb-Med-Arb fees,
      appointment fees, and assessment or taxation fees.

    SIAC also provides a fee estimator (online at http://www.siac.org.sg/component/ siaccalculator/?Itemid=448).

    The ICC offers a similar explanation of costs and payments in ICC arbitration (online at https://iccwbo.org/dispute-resolution-services/arbitration/costs-and-payments/) and a cost calculator (online at https://iccwbo.org/dispute-resolution-services/arbitration/costs-and-payments/cost-calculator/).

    In ICC arbitration, the ICC International Court of Arbitration [the Court] sets an advance ‘payable in equal shares by the claimant and the respondent’ to cover the costs of the arbitration pursuant to Rule 37(2) of the ICC Rules of Arbitration. In SIAC arbitration, the Registrar sets the amount of deposits payable (generally 50% for each of the claimant and respondent sides in the arbitration), and parties are required to make deposit payments toward that amount during the course of the proceedings. In both ICC and SIAC arbitrations, the tribunal may make an award of costs (e.g., often in a favorable amount to the successful party in the final award, depending on a variety of factors).

  27. Can pre- and post-award interest be included on the principal claim and costs incurred?

    In Singapore, s 20(1) of the IAA provides as follows:

    ‘Subject to subsection (3), unless otherwise agreed by the parties, an arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from such date, at such rate and with such rest as the arbitral tribunal considers appropriate, for any period ending not later than the date of payment on the whole or any part of —

    (a) any sum which is awarded by the arbitral tribunal in the arbitral proceedings;

    (b) any sum which is in issue in the arbitral proceedings but is paid before the date of the award; or

    (c) costs awarded or ordered by the arbitral tribunal in the arbitral proceedings’.

    S 20(3) of the IAA (referenced as ‘subsection (3)’ above) provides that ‘[w]here an award directs a sum to be paid, that sum shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt’. Para. [77] of the Practice Directions of Singapore’s Supreme Court provides for a default interest rate of 5.33% per annum for post-judgment interest. As such, pre-award and post-award interest may be included on the principal claim and costs incurred, and 5.33% is the default rate applicable (absent agreement by the parties otherwise) for post-award interest on the principal claim as well as on any costs awarded. In practice, however, pre-award interest is rare absent specific agreement by the parties.

  28. What legal requirements are there in your country for the recognition and enforcement of an award? Is there a requirement that the award be reasoned, i.e. substantiated and motivated?

    With respect to the enforcement of an arbitral award generally, s 19 of the IAA provides that ‘[a]n award on an arbitration agreement may, by leave of the High Court or a Judge thereof, be enforced in the same manner as a judgment or an order to the same effect and, where leave is so given, judgment may be entered in terms of the award’.

    More specifically, O. 69A, r. 6(1) of the Singapore Rules of Court provides as follows:
    ‘An application for leave to enforce an award may be made ex parte and must be supported by an affidavit--
    (a) exhibiting the arbitration agreement or any record of the content of the arbitration agreement and the duly authenticated original award or, in either case, a duly certified copy thereof and where the award, agreement or record is in a language other than English, a translation of it in the English language, duly certified in English as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made;

    (b) stating the name and the usual or last known place of abode or business of the applicant (referred to in this Rule as the creditor) and the person against whom it is sought to enforce the award (referred to in this Rule as the debtor) respectively; and

    (c) as the case may require, stating 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’.
    The requirements to seek leave to enforce a foreign arbitral award are very similar to those in O. 69A, r. 6(1) for ‘leave to enforce an award’ generally (above), with the sole exception being that O. 69A, r. 6(1A) for ‘leave to enforce a foreign arbitral award’ does not allow for the above use of a ‘record of the content of the arbitration agreement’.

    Art. 31 of the UNCITRAL Model Law provides that an arbitral award made in Singapore ‘shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 30’. There is no requirement, however, that reasons be required for recognition and enforcement of a foreign arbitral award in Singapore.

  29. What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?

    Although the actual time required for the recognition and enforcement of an arbitral award will vary with the particular facts of each case, a general estimated timeframe for the recognition and enforcement of most arbitral awards in Singapore is generally between one (1) and four (4) months. The Singapore Rules of Court do provide that ‘[a]n application for leave to enforce an award may be made ex parte . . .’ (O. 69A, r. 6).

  30. Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?

    Generally, no. S 29 of the IAA provides that, ‘[s]ubject to this Part, a foreign award may be enforced in a court either by action or in the same manner as an award of an arbitrator made in Singapore is enforceable under section 19’.

  31. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

    S 12(5) of the IAA provides that ‘[w]ithout prejudice to the application of Article 28 of the Model Law [which addresses “Rules applicable to substance of dispute”], an arbitral tribunal, in deciding the dispute that is the subject of the arbitral proceedings —

    (a) may award any remedy or relief that could have been ordered by the High Court if the dispute had been the subject of civil proceedings in that Court;…’.

  32. Can arbitration awards be appealed or challenged in local courts? What are the grounds and procedure?

    In Singapore, possible grounds for refusing enforcement of arbitral awards under Art. 34(2) of the UNCITRAL Model Law (and under s 31(2) of the IAA for foreign arbitral awards) include (1) incapacity, (2) invalidity of the arbitration agreement, (3) failure to provide proper notice or the inability to present one’s case, (4) the award having exceeded the scope of the arbitration agreement, (5) defective composition of the tribunal or arbitral procedure (with some exceptions), and (6) the award not being binding or having been set aside or suspended. S 31(4) of the IAA also provides the further possible grounds for refusing enforcement of a foreign arbitral award of (7) the subject matter not being capable of settlement by arbitration; and (8) conflict with the public policy of Singapore.
    In addition to the above, s 24 of the IAA also provides the following two (2) grounds for setting aside an arbitral award:

    (a) the making of the award was induced or affected by fraud or corruption; or

    (b) a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced’.

    The procedure to set aside an arbitral award in Singapore under the IAA is set out in the Singapore Rules of Court (O. 69A, r. 2) and requires making application via an originating summons no more than three (3) months after the later of the following dates:

    (a) ‘the date on which the plaintiff received the award;

    (b) if a request is made under Article 33 of the Model Law, the date on which that request is disposed of by the arbitral tribunal’.

    O. 69A, r. 4A provides that the affidavit in support must —

    (a) ‘state the grounds in support of the application;

    (b) have exhibited to it a copy of the arbitration agreement or any record of the content of the arbitration agreement, the award and any other document relied on by the plaintiff;

    (c) set out any evidence relied on by the plaintiff; and

    (d) be served with the originating summons’.

  33. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

    In the context of domestic arbitration in Singapore, the Singapore High Court has held, in Daimler South East Asia Pte Ltd v Front Row Investment Holdings (Singapore) Pte Ltd [Daimler], [2012] 4 SLR 837 at [15], that ‘parties could exclude the right of appeal by adopting rules of arbitration’. The Daimler Court further held that the parties in that case actually had excluded the right of appeal under s 49(1) of the AA (i.e., the Arbitration Act generally applicable to domestic arbitration), which provides that ‘[a] party to arbitral proceedings may (upon notice to the other parties and to the arbitral tribunal) appeal to the Court on a question of law arising out of an award made in the proceedings’. The Daimler Court noted that s 49(2) of the AA provides in relevant part that ‘the parties may agree to exclude the jurisdiction of the Court under this section...’. Accordingly, the parties in Daimler had waived the right to appeal by adopting the ICC Rules 1998, which stated at Art. 28(6) that, ‘[b]y submitting the dispute to arbitration under these Rules, the parties undertake to carry out any Award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made’.

    By contrast, in the international arbitration context, the IAA primarily emphasizes a right to appeal on a ruling of jurisdiction by a tribunal (at s 10), does not provide a general right to appeal on questions of law, and contains no similar language to that of the AA for excluding the jurisdiction of the Singapore Courts. Further, while s 19B(1) of the IAA (Effect of award) confirms that ‘[a]n award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties’, s 19B(4) states that ‘(t)his section shall not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Act and the Model Law’. As such, it is unlikely that the Singapore Courts would consider that parties had effectively excluded any rights of appeal or challenge to an award in an arbitration agreement otherwise available under the IAA (e.g., through the selection of institutional rules of arbitration that purport to waive the right to judicial recourse).

  34. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    The restrictive scope of sovereign immunity in Singapore is discussed above at Question 22. With respect to the potential for a defence of state or sovereign immunity to be raised in the course of attempted enforcement of an arbitral award, s 15(2) of the State Immunity Act (Cap. 313) provides as follows:

    ‘Subject to subsections (3) and (4) —

    (a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and

    (b) the property of a State shall not be subject to any process for the enforcement of a judgment or an arbitration award or, in an action in rem, for its arrest, detention or sale’.
    Importantly, however, the exceptions allowed under this section include ‘the giving of any relief or the issue of any process with the written consent of the State concerned’ (subsection (3)) and the ‘issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes’ (subsection (4)).

  35. In what instances can third parties or non-signatories be bound by an award? To what extent might a third party challenge the recognition of an award?

    As noted above, Singaporean courts generally may not order third parties or non-signatories to be bound by an arbitration agreement without the consent of the parties (including the third party or non-signatory) (see The Titan Unity, [2014] SGHCR 4 at [24]), and any resultant award therefore would generally not be binding on them. S 29(2) of the IAA also provides that ‘[a]ny foreign award which is enforceable under subsection (1) shall be recognised as binding for all purposes upon the persons between whom it was made and may accordingly be relied upon by any of those parties by way of defence, set-off or otherwise in any legal proceedings in Singapore’. These provisions do not allow for third-party challenges to the recognition of arbitral awards as a general matter.

  36. Have courts in your jurisdiction considered third party funding in connection with arbitration proceedings recently?

    Yes. In Re Fan Kow Hin, [2019] 3 SLR 861 at [22], the High Court of Singapore has recalled that ‘the 2017 amendments to the Civil Law Act restrict the ambit of maintenance and champerty, permitting third-party funding in respect of international arbitrations’.

  37. Is emergency arbitrator relief available in your country? Is this frequently used?

    Yes. Importantly, s 2(1) of the IAA defines ‘arbitral tribunal’ to include ‘an emergency arbitrator appointed pursuant to the rules of arbitration agreed to or adopted by the parties including the rules of arbitration of an institution or organization’.

    With respect to the use of emergency arbitrators in Singapore, Schedule 1 of the SIAC Rules 2016 provide a process for applying to the SIAC Registrar for emergency interim relief ‘concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal’. SIAC Rule 30.1 (Interim and Emergency Relief) also provides that ‘[t]he Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other interim relief it deems appropriate’. The ICC Rules of Arbitration also provide for an emergency arbitrator in Art. 29, with the Emergency Arbitrator Rules appearing at App. V. In App. V, the ICC Rules of Arbitration state that ‘[t]he President [of the ICC’s International Court of Arbitration] shall appoint an emergency arbitrator within as short a time as possible, normally within two days from the Secretariat’s receipt of the Application’ (App. V, Art. 2.1), but that ‘[n]o emergency arbitrator shall be appointed after the file has been transmitted to the arbitral tribunal pursuant to Article 16 of the Rules’ (App. V, Art. 2.2).

    The 2018 SIAC Annual Report indicates that there were 12 applications for emergency arbitrators in 2018 and that all of these were accepted.

  38. Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?

    Yes. Rule 5.1 of the SIAC Rules 2016 provides that, ‘[p]rior to the constitution of the Tribunal, a party may file an application with the Registrar for the arbitral proceedings to be conducted in accordance with the Expedited Procedure under this Rule, provided that any of the following criteria is satisfied:

    a. the amount in dispute does not exceed the equivalent amount of S$6,000,000, representing the aggregate of the claim, counterclaim and any defence of set-off;

    b. the parties so agree; or

    c. in cases of exceptional urgency’.

    The 2018 SIAC Annual Report indicates that there were 59 applications for expedited procedure in 2018 and that 32 of these were accepted.

    The ICC Rules of Arbitration also provide for an expedited procedure at Art. 30 (Expedited Procedure) and App. VI (Expedited Procedure Rules) for cases with no more than US$2,000,000 in dispute (or where the parties so agree to the application of expedited procedural rules).

    In addition, the SCMA Arbitration Rules also provide (1) a small claims procedure ‘if the aggregate amount of the claim and/or counterclaim in dispute is less than US$150,000 (excluding interest and costs) or is unlikely to exceed US$150,000 (excluding interest and costs)’ or otherwise in accordance with the parties’ agreement (Rule 46); and (2) expedited arbitral determination of collision claims (Rule 47 and Schedule B).

  39. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

    The ICC International Court of Arbitration [the Court], which has recently established a physical presence in Singapore, recently released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration in January 2019 [the Note], available online at https://cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf.

    The Note signaled the Court’s intention to increase public availability of ICC arbitral awards in providing that final awards and dissenting or concurring opinions may be published in their entirety no less than two (2) years after notification to the parties of a given ICC arbitration.
    The Note also provided for greater transparency of ICC arbitration as a matter of policy, and particularly with respect to arbitrator appointments, as follows:

    ‘34. […] Transparency provides greater confidence in the arbitration process, and helps protect arbitration against inaccurate or ill-informed criticism.

    35. Consistent with that policy and unless otherwise agreed by the parties, the Court publishes on the ICC website, for arbitrations registered as from 1 January 2016, the following information: (i) the names of the arbitrators, (ii) their nationality, (iii) their role within a tribunal, (iv) the method of their appointment, and (v) whether the arbitration is pending or closed. The arbitration reference number and the names of the parties and of their counsel will not be published.

    36. For arbitrations registered as from 1 July 2019, the Court will also publish on the ICC website the following additional information: (vi) the sector of industry involved and (vii) counsel representing the parties in the case.’

    By contrast, under Rule 39 of the SIAC Rules (2016), the default position (unless the parties agree otherwise) continues to be that ‘all matters relating to the proceedings and the Award’ are strictly confidential, including the ‘discussions and deliberations of the Tribunal’ as well as the very ‘existence of the proceedings’.

  40. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?

    While the promotion of diversity in the choice of arbitrators and counsel has been promoted more informally than formally in Singapore, a number of arbitral institutions and other stakeholders have engaged in public initiatives to highlight diversity as an issue in arbitration. SIAC, for example, promoted discussion of the topic ‘Tribunals with women arbitrators make better decisions’ at a YSIAC Debate event in 2018. SIAC also sponsored a Women in Arbitration seminar in the context of a discussion series for recent developments in international arbitration at around the same time. While the ICC has just recently developed its physical presence in Singapore, it did report an increase in the appointment of women arbitrators in 2016, and has continued to emphasize the importance of racial and gender diversity in international arbitration through diversity of selection in counsel, chairpersons, and other leadership roles in Singapore.

  41. Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

    No. In the 2013 case of PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal, [2013] SGCA 57, the Singapore Court of Appeal observed the following in dicta:

    ‘While the wording of Art V(1)(e) of the New York Convention and Art 36(1)(a)(v) of the Model Law arguably contemplates the possibility that an award which has been set aside may still be enforced, in the sense that the refusal to enforce remains subject to the discretion of the enforcing court, the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce. What else could it mean to set aside an award?’

    While there have been a number of cases in relation to the setting aside of arbitral awards, no recent case has directly addressed the setting aside of an award in Singapore that has been enforced in another jurisdiction or vice versa. There has, however, been some interesting guidance from the High Court in Singapore related to the interplay between the application of the law of the arbitral seat and subsequent attempts to enforce a resultant award in Singapore in the 2018 case of Sanum Investments Limited v ST Group Co, Ltd and others, [2018] SGHC 141 at [115], in which the Court stated:

    ‘Mr Xavier argues the seat is the “very fount of arbitration” and cites certain authorities to suggest that a refusal of enforcement of an award is immediate if an arbitration were incorrectly seated. While I agree that the parties[’] chosen seat is an important aspect of an arbitration, as the seat indicates the curial court to supervise the conduct of the arbitration, choice of a seat for arbitration is less critical here since the application is not to set aside the award but to refuse enforcement. This is because enforcement can be brought in any jurisdiction whereas only the seat court can set aside an award. Hence, the mere assertion of an incorrectly seated arbitration is not enough. There must be evidence of how the law of the incorrect seat would impact the arbitral procedure that was adopted by the tribunal.’

    Most recently, the Singapore Court of Appeal has also found that Art. 34(2)(a)(iii) of the UNCITRAL Model Law, which allows, inter alia, for the Singapore Courts to set aside an arbitral award upon proof that the award ‘contains decisions on matters beyond the scope of the submission to arbitration’, also applied in the context of an arbitration seated in Singapore under the auspices of the PCA pursuant to the Protocol on Finance and Investment of the Southern African Development Community. Swissbourgh Diamond Mines (Pty) Ltd and others v Kingdom of Lesotho, [2019] 1 SLR 263 at [80].

  42. Is corruption an issue that is regularly raised in your jurisdiction? What standard do local courts apply for proving of corruption?

    No, this is not an issue that is regularly raised in Singapore. The standard that the Singapore Courts consider in cases involving a charge of corruption under the Prevention of Corruption Act (Cap. 241) is generally based on s 5 of the same, which provides as follows:

    ‘Any person who shall by himself or by or in conjunction with any other person —

    (a) corruptly solicit or receive, or agree to receive for himself, or for any other person; or

    (b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person,

    any gratification as an inducement to or reward for, or otherwise on account of —

    (i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or

    (ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned,

    shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both’.

    With respect to the ‘corrupt element’ of the above, the Singapore Courts have held that:

    ‘Thus, there must first be a corrupt element in the transaction according to the ordinary and objective standard, followed by the accused’s guilty knowledge that what he was doing was, by that standard, corrupt. Both limbs must be fulfilled beyond a reasonable doubt. And, the question of “corrupt” would be determined on the facts of the individual case.’ Chan Wing Seng v Public Prosecutor, [1997] 1 SLR(R) 721 at [25].

  43. Have there been any recent court decisions in your country considering the definition and application of “public policy” in the context of enforcing or setting aside an arbitral award?

    Yes. In Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd, [2019] 2 SLR 131 at [98], the Singapore Court of Appeal confirmed its agreement with the conclusion of the lower court judge that s 24(a) of the IAA (which provides that the High Court in Singapore may set aside an arbitral award in the event that ‘the making of the award was induced or affected by fraud or corruption’) ‘contemplates a situation where the Award itself (rather than the contract between the parties) is tainted or induced by fraud or corruption’.

    Most recently, the High Court of Singapore has also helpfully characterized the public policy ground for setting aside or refusal of recognition or enforcement of an arbitral award as follows:

    ‘The public policy ground for setting aside or refusal of recognition/enforcement is very narrow in scope. The Court of Appeal has held that the ground should only succeed in cases where upholding or enforcing the arbitral award would “shock the conscience”, or be “clearly injurious to the public good or … wholly offensive to the ordinary reasonable and fully informed member of the public”, or violate “the forum’s most basic notion of morality and justice”. In a public policy challenge, it is important to identify whether the alleged public policy exists in the first place. BTN and another v BTP and another, [2019] SGHC 212 at [112]. [Internal citations omitted.]

  44. Have there been any recent court decisions in your country considering the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16) with respect to intra-European Union bilateral investment treaties or the Energy Charter Treaty? Are there any pending decisions?

    No.

  45. Have there are been any recent decisions in your country considering the General Court of the European Union’s decision Micula & ors (Joined Cases T-624/15, T-694/15 and T-694.15), ECLI:EU:T:2019:423, dated 18 June 2019? Are there any pending decisions?

    No.