Singapore Arbitration Legislation: Annotated

376 Pages·2016·3.657 MB·English

by  Robert Merkin, Johanna Hjalmarsson

SINGAPORE ARBITRATION LEGISLATION
ANNOTATED
LLOYD’S ARBITRATION LAW LIBRARY
Injunctive Relief and International Arbitration
By
Hakeem Seriki
(2015)
Arbitration Act 1996
Fifth Edition
By Robert Merkin and Louis Flannery
(2014)
SINGAPORE ARBITRATION
LEGISLATION
ANNOTATED
Robert Merkin and Johanna Hjalmarsson
ROBERT MERKIN, QC, LLD
Lloyd’s Professor of Commercial Law, University of Exeter;
Special Counsel, DLA Piper
JOHANNA HJALMARSSON, JUR. KAND., LLM
Informa Associate Professor in Maritime and Commercial Law,
University of Southampton
Contributing Editor
MATEUSZ BEK, LLB, LLM
University of Southampton
SECOND EDITION
Second edition published 2016
by Informa Law from Routledge
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and by Informa Law from Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 Robert Merkin and Johanna Hjalmarsson
The right of Robert Merkin and Johanna Hjalmarsson to be identified as authors of this work has been
asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act
1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by
any electronic, mechanical, or other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are
used only for identification and explanation without intent to infringe.
First edition published by Informa Law from Routledge 2009
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Merkin, Robert M., author.
Singapore arbitration legislation : annotated / Robert Merkin, Johanna Hjalmarsson. - - Second edition.
pages cm. - - (Lloyd’s arbitration law library)
ISBN 978- 1- 138- 80183- 7 (hbk) - - ISBN 978- 1- 315- 75467- 3 (ebk) 1. Arbitration and award- -
Singapore. 2. International commercial arbitration- - Singapore. 3. Singapore. International Arbitration
Act. 4. Singapore. Arbitration Act. I. Hjalmarsson, Johanna., author. II. Title.
KPP377.M47 2016
347.5957’09- - dc23
2015030612
ISBN: 978-1-138-80183-7 (hbk)
ISBN: 978-1-315-75467-3 (ebk)
Typeset in Plantin by
Servis Filmsetting Ltd, Stockport, Cheshire
PREFACE
The first edition of this book was published in 2009. In the years since then the law
of arbitration in Singapore has moved on apace. In addition to important amend-
ments to the International Arbitration Act and the Arbitration Act, as well as a new
set of SIAC Rules (with more changes to come in 2016) the courts have handed
down some 100 decisions on arbitration matters. Some of those decisions are illus-
trative of established principles, but many break new ground. A fascinating feature
is that Singapore, while a signatory to the UNCITRAL Model Law, has adopted its
own distinctive approach to a number of issues. The degree to which judges have
undertaken detailed comparative analysis, and examined the origins and purposes
of the Model Law, in reaching their decisions, is a testament to the high quality of
legal research and argument in and by the courts. Probably only England has gener-
ated a greater number of decided cases on arbitration matters.
As with the first edition, we have sought to annotate the legislation so that cases
decided under a particular provision can be easily tracked down. The intention is to
set out the basic principles and any significant modifications to them, and then to
provide a comprehensive list of authorities establishing the points in question. We
have focused on the facts of only a small number of cases, those that we regard as
seminal or otherwise of particular significance. Our primary focus is on local deci-
sions. However, the contribution from other Model Law jurisdictions with common
law systems - notably, Hong Kong, Australia and New Zealand, is reflected in the
annotations. In addition, English authorities - while not always directly relevant by
virtue of the English decision to adopt a regime borrowing from but not based on the
Model Law, are cited insofar as they shed light on provisions of Singaporean legisla-
tion. A number of those provisions have indeed been taken verbatim from the English
Arbitration Act 1996 and, in the context of domestic arbitration, its 1950 predecessor.
The coverage of the second edition has been expanded to include new material
on the State Immunity Act and the Contracts (Rights of Third Parties) Act. Those
new sections were prepared by Mateusz Bek, who also worked on the existing chap-
ters. We are delighted to welcome Mateusz to the editorial team. We were also ably
assisted with research by Eugenia Fazio.
The work is up to date as of August 2015. The usual thanks go to our families
and to our publishers.
Rob Merkin, Sidmouth, Devon
Johanna Hjalmarsson, Southampton, Hampshire
v
Page Intentionally Left Blank
CONTENTS
Preface v
Table of Cases xvii
Chapter 1 BACKGROUND TO THE SINGAPORE LEGISLATION 1
Structure of the arbitration system in Singapore 1
The two systems 3
Structure of the present work 5
Reception of the Model Law 6
Chapter 2 INTERNATIONAL ARBITRATION ACT 9
part i—preliminary 10
Short title 10
part ii—international commercial arbitration 11
Interpretation of Part II 11
Definition and form of arbitration agreement 13
Background 13
Agreement 14
Scope of arbitration clause 16
Agreement in writing 17
Incorporation 18
Bills of lading cases 19
Variations and settlements 20
Conflicting clauses 20
Arbitration and other dispute resolution mechanisms 21
Model Law to have force of law 22
Relationship between Model Law and IAA 22
“Place” of the arbitration 23
Interpretation of Model Law by use of extrinsic material 23
Application of Part II 24
Enforcement of international arbitration agreement 26
Stay of judicial proceedings 27
Who decides jurisdictional issues? 29
Existence of dispute 32
Null and void, inoperative or incapable of being performed 34
Loss of right to seek stay 36
vii
contents
Ancillary orders 38
Delay 39
Third parties 39
Procedure 41
Anti- arbitration injunctions 41
Court’s powers on stay of proceedings 41
Authorities specified for purposes of Article 6 of Model Law 43
Application of Limitation Act and Foreign Limitation Periods Act
2012 43
Effect of section 8A 44
Running of time for commencing arbitration proceedings under Singapore
law 44
Effect of award being set aside 46
Limitation period and enforcement of award 46
Number of arbitrators for purposes of Article 10(2) of Model Law 47
Default appointment of arbitrators 47
Appeal on ruling of jurisdiction 48
Legislative structure 49
Article 16(3) of the Model Law: scope 49
Article 16(3) of the Model Law and other mechanisms 50
Article 16(3) of the Model Law: procedure 51
IAA, section 10 52
Procedure under IAA, section 10 52
Appeals under section 10 and article 16(3) of the Model Law 53
Nature of judicial proceedings 53
Costs 54
Public policy and arbitrability 55
Reference of interpleader issue to arbitration 56
Powers of arbitral tribunal 57
The powers of arbitrators 58
Enforcement and judicial support 59
Security for costs 60
Procedure and evidence 62
Obtaining evidence 64
Language and representation 65
Experts 65
Security 66
Remedies 67
Interest 68
Court- ordered interim measures 68
Scope of court’s power to grant interim measures 68
Geographical scope 70
Relationship between court and arbitrators 70
Orders for security 72
Preservation of assets 73
Anti- suit injunctions 74
viii
contents
Witnesses may be summoned by subpoena 76
Law of arbitration other than Model Law 78
Application of rules of arbitration 79
Appointment of conciliator 80
Power of arbitrator to act as conciliator 82
Award by consent 83
Enforcement of awards 84
Awards made on different issues 86
Effect of award 88
Authentication of awards and arbitration agreements 90
Interest on awards 91
Taxation of costs 93
Proceedings to be heard otherwise than in open court 96
Privacy and confidentiality 96
The position in Singapore 97
Exceptions 98
Determination of privacy and confidentiality questions 99
Restrictions on reporting of proceedings heard otherwise than in
open court 99
Court may set aside award 100
Grounds for setting award aside 100
Fraud or corruption 101
Breach of the rules of natural justice: prejudice 102
Illustrations of natural justice 104
Procedure 107
Liability of arbitrator 109
Immunity of appointing authority and arbitral institutions, etc. 109
Transitional provisions 111
part iii—foreign awards 111
Interpretation of Part III 111
Application of Part III 112
Recognition and enforcement of foreign awards 113
Evidence 113
Refusal of enforcement 115
Availability of power to refuse enforcement 116
Incapacity 118
Invalid arbitration agreement 119
Inability to present case 120
Substantive jurisdiction 121
Breach of agreed procedure 122
Appeal against award pending 123
Public policy 124
Convention countries 127
Enforcement of awards under other provisions of law 128
part iv—general 128
Act to bind Government 128
ix