The International Comparative Legal Guide to:
International Arbitration 2012
9th Edition
A practical cross-border insight into international arbitration work
Published by Global Legal Group, in association with CDR, with contributions from:
Abreu Advogados
Advokaturbüro Dr Dr Batliner & Dr Gasser
Aivar Pilv Law Office
Akerman Senterfitt
Ali Budiardjo, Nugroho, Reksodiputro
Anderson Mori & Tomotsune
Barrera, Siqueiros y Torres Landa, S.C.
Borden Ladner Gervais LLP
Boss & Young
Clayton Utz
Clifford Chance CIS Limited
CMS Cameron McKenna SCA
De Brauw Blackstone Westbroek
Dr. Colin Ong Legal Services
Dr. K. Chrysostomides & Co LLC
Ferreira Rocha & Associados
G Grönberg Advokatbyrå AB
Geni & Kebe
Georgiev, Todorov & Co.
GESSEL Attorneys at law
Gleiss Lutz
Habib Al Mulla & Co.
Hajji & Associés – Avocats
Homburger
Jiménez Cruz Peña
K&L Gates LLP
Kachwaha & Partners
King & Spalding International LLP
Lazareff Le Bars
Lee and Li, Attorneys-at-Law
Lenczner Slaght
Lendvai & Szörényi
Linklaters LLP
Maples and Calder
Matheson Ormsby Prentice
Miranda Correia Amendoeira & Associados RL
Motieka & Audzevičius
Nunziante Magrone Studio Legale Associato
Orrick, Herrington & Sutcliffe LLP
PUNUKA Attorneys & Solicitors
Quisumbing Torres, member firm of Baker & McKenzie International
Sedgwick Chudleigh
Sergio Bermudes Advogados
Sherby & Co., Advs.
Sidley Austin LLP
Sołtysiński Kawecki & Szlęzak
Tilleke & Gibbins
Tonucci & Partners
Vasil Kisil & Partners
Wald e Associados Advogados
WEBER & CO.
Werksmans
Wilmer Cutler Pickering Hale and Dorr LLP
The International Comparative Legal Guide to: International Arbitration 2012
Preface:
Preface by Gary Born, Head of International Arbitration Group, Wilmer Cutler Pickering Hale and Dorr LLP
General Chapters:
Contributing Editors
Steven Finizio, Wendy
Miles and Kate Davies,
Wilmer Cutler Pickering
Hale and Dorr LLP
Account Managers
Dror Levy, Maria Lopez,
Florjan Osmani, Samuel
Romp, Oliver Smith, Rory
Smith, Toni Wyatt
Sub Editor
Fiona Canning
Editor
Suzie Kidd
Senior Editor
Penny Smale
Managing Editor
Alan Falach
Group Publisher
Richard Firth
Published by
Global Legal Group Ltd.
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London SE1 3PL, UK
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk
URL: www.glgroup.co.uk
1
2
3
4
A Comparative Review of Emergency Arbitrator Provisions: Opportunities and Risks – Marc S. Palay &
Tanya Landon, Sidley Austin LLP
1
I Know I am Going to Win, but What About my Money? Ensuring that Arbitration is Worth
the Effort – Tom Sprange & Tom Childs, King & Spalding International LLP
8
Mandatory Arbitration and Consumer Class Actions in Canada and the United States –
Lawrence Thacker, Lenczner Slaght
15
When is an Arbitration International and What Are the Implications? A Traditional Perspective on
the Enforcement of Annulled Awards – Gustavo Fernandes de Andrade & André Chateaubriand Martins,
Sergio Bermudes Advogados
21
Asia Pacific:
5
Overview
Dr. Colin Ong Legal Services: Dr. Colin Ong
27
6
Australia
Clayton Utz: Doug Jones AO
37
7
Brunei
Dr. Colin Ong Legal Services: Dr. Colin Ong
47
8
China
Boss & Young: Dr. Xu Guojian
56
9
Hong Kong
Clayton Utz in association with Hayley & Co: Glenn Haley & Patrick Daley
67
10 India
Kachwaha & Partners: Sumeet Kachwaha & Dharmendra Rautray
79
11 Indonesia
Ali Budiardjo, Nugroho, Reksodiputro: Sahat A.M. Siahaan &
Windri Marieta Ayuningtyas
88
12 Japan
Anderson Mori & Tomotsune: Aoi Inoue
98
13 Philippines
Quisumbing Torres, member firm of Baker & McKenzie International:
Donemark J.L. Calimon & Camille Khristine I. Aromas
106
14 Singapore
K&L Gates LLP: Ian Fisher & Andrea Utasy
114
15 Taiwan
Lee and Li, Attorneys-at-Law: Angela Y. Lin & Jeffrey Li
122
16 Vietnam
Tilleke & Gibbins: Michael K. Lee & Doan Ngoc Tran
130
GLG Cover Design
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Central and Eastern Europe:
17 Overview
GESSEL Attorneys at law: Dr Beata Gessel-Kalinowska vel Kalisz, FCIArb
138
Printed by
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August 2012
18 Albania
Tonucci & Partners: Neritan Kallfa & Majlinda Sulstarova
142
19 Bulgaria
Georgiev, Todorov & Co.: Alexander Katzarsky & Georgi Georgiev
150
20 Cyprus
Dr. K. Chrysostomides & Co LLC: George Mountis & Victoria-Zoi Papagiannis
160
Copyright © 2012
Global Legal Group Ltd.
All rights reserved
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21 Estonia
Aivar Pilv Law Office: Pirkka-Marja Põldvere & Ilmar-Erik Aavakivi
169
22 Hungary
Lendvai & Szörényi: András Lendvai & Gábor Baranyai LL.M
177
23 Lithuania
Motieka & Audzevičius: Ramūnas Audzevičius & Rimantas Daujotas
184
ISBN 978-1-908070-32-6
ISSN 1741-4970
24 Poland
Sołtysiński Kawecki & Szlęzak: Dr. Marcin Olechowski & Sławomir Uss
192
25 Romania
CMS Cameron McKenna SCA: Horia Draghici & Bogdan Vetrici-Soimu
200
Stategic Partners
26 Russia
Clifford Chance CIS Limited: Timur Aitkulov & Julia Popelysheva
210
27 Ukraine
Vasil Kisil & Partners: Oleksiy Filatov & Pavlo Byelousov
221
28 Overview
Gleiss Lutz: Stefan Rützel & Stephan Wilske
230
29 Austria
WEBER & CO.: Stefan Weber & Ewald Oberhammer
234
30 Belgium
Linklaters LLP: Joost Verlinden & Stijn Sabbe
242
Western Europe:
Continued Overleaf
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the
contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an
indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.
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The International Comparative Legal Guide to: International Arbitration 2012
31 England & Wales
Wilmer Cutler Pickering Hale and Dorr LLP: Wendy Miles & Kate Davies
32 France
Lazareff Le Bars: Benoit Le Bars & William Kirtley
252
269
33 Ireland
Matheson Ormsby Prentice: Nicola Dunleavy & Gearóid Carey
278
34 Italy
Nunziante Magrone Studio Legale Associato: Prof. Dr. Gabriele Crespi Reghizzi
287
35 Liechtenstein
Advokaturbüro Dr Dr Batliner & Dr Gasser: Dr. Johannes Gasser &
Benedikt König
296
36 Netherlands
De Brauw Blackstone Westbroek: Eelco Meerdink & Edward van Geuns
304
37 Portugal
Abreu Advogados: José Maria Corrêa de Sampaio & Pedro Sousa Uva
313
38 Sweden
G Grönberg Advokatbyrå AB: Einar Wanhainen & Johannes Lundblad
325
39 Switzerland
Homburger: Felix Dasser & Balz Gross
332
40 Overview
Akerman Senterfitt: Luis M. O'Naghten
341
41 Brazil
Wald e Associados Advogados: Arnoldo Wald & Rodrigo Garcia da Fonseca
349
Latin America:
42 Dominican Republic Jiménez Cruz Peña: Marcos Peña Rodríguez & Laura Medina Acosta
43 Mexico
356
Barrera, Siqueiros y Torres Landa, S.C.: Omar Guerrero Rodríguez &
Mariana Fernández Salazar
365
44 Overview
Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos
374
45 OHADA
Geni & Kebe: Mouhamed Kebe & Fakha Toure
380
46 Angola
Miranda Correia Amendoeira & Associados RL: Agostinho Pereira de Miranda &
Cláudia Leonardo
387
47 Israel
Sherby & Co., Advs.: Eric S. Sherby & Sami Sabzerou
395
48 Morocco
Hajji & Associés – Avocats: Amin Hajji
405
49 Mozambique
Ferreira Rocha & Associados in association with Abreu Advogados:
Paula Duarte F. Rocha
411
50 Nigeria
PUNUKA Attorneys & Solicitors: Anthony Idigbe & Omone Tiku
419
51 South Africa
Werksmans: Des Williams
434
52 UAE
Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos
445
Middle East / Africa:
North America:
53 Overview
Orrick, Herrington & Sutcliffe LLP: Ian Johnson & Matt Prewitt
455
54 Bermuda
Sedgwick Chudleigh: Mark Chudleigh & Chen Foley
461
55 BVI
Maples and Calder: Arabella di Iorio & Victoria Lord
470
56 Canada
Borden Ladner Gervais LLP: Daniel Urbas & Robert J.C. Deane
480
57 Cayman Islands
Maples and Calder: Mac Imrie & Luke Stockdale
489
58 USA
K&L Gates LLP: Peter J. Kalis & Roberta D. Anderson
500
Chapter 14
Singapore
Ian Fisher
K&L Gates LLP
1 Arbitration Agreements
1.1
What, if any, are the legal requirements of an arbitration
agreement under the laws of Singapore?
First, a few introductory comments about the arbitration regime in
Singapore. There are two arbitration regimes in Singapore.
Singapore law generally provides for domestic arbitration pursuant
to the Arbitration Act (Cap. 10) (“AA”) and international arbitration
in accordance with the International Arbitration Act (Cap. 143A)
(“IAA”). The IAA gives the force of law to the UNCITRAL Model
Law on International Commercial Arbitration (“the Model Law”).
Both acts were amended earlier this year, with the amendments
coming into force on 1 June 2012. We will focus on the IAA in this
chapter.
An arbitration agreement may take the form of either an arbitration
clause within a contract or a separate agreement altogether and must
be in writing. This written requirement has been relaxed by the
recent amendments to the IAA and will be satisfied, even if the
arbitration agreement or underlying contract have been concluded
orally, by conduct or other means as long as the content of the
arbitration agreement is recorded in any form, such as a signed
document, letter or e-mail. In certain circumstances, a reference in
a contract or bill of lading to another document containing an
arbitration clause may suffice (Section 2A, IAA).
1.2
What other elements ought to be incorporated in an
arbitration agreement?
The arbitration agreement should specify the place and language of
the arbitration, number of arbitrators and rules governing the
arbitration. If the parties agree that the arbitration should be
administered by an arbitral institution, the institution should be
specified in the agreement and the parties should consider including
that institution’s model arbitration clause, if any.
Andrea Utasy
involving international parties, and will generally enforce a valid
arbitration agreement. Only in exceptional cases, however, might a
court decline to enforce an arbitration agreement in light of public
interest considerations.
2 Governing Legislation
2.1
Section 6 of the IAA provides that in the event a party to an
arbitration agreement has instituted proceedings in court in respect
of a matter subject to the arbitration agreement, the other party to
that agreement may apply to the court to stay the proceedings.
2.2
What has been the approach of the national courts to the
enforcement of arbitration agreements?
Section 11 of the IAA provides that where parties have agreed to
submit their dispute to arbitration pursuant to an arbitration
agreement, that dispute may be determined by arbitration, unless
doing so would be contrary to public policy.
In practice, the Singapore courts by and large encourage the use of
arbitration to resolve commercial disputes, especially those
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Does the same arbitration law govern both domestic and
international arbitration proceedings? If not, how do they
differ?
As noted above, domestic and international arbitrations are
governed by the AA and IAA, respectively. While the two statutes
are quite similar, as the AA was revised in 2002 to harmonise its
laws with the IAA, differences remain. In particular, the AA applies
when an arbitration falls outside the scope of the IAA or when
parties to an international arbitration opt out of the IAA.
Additionally, a party to an arbitration under the AA may appeal to
the court on a question of law which arises out of an award made in
the arbitration (Section 49, AA). The IAA does not provide a right
of appeal to the court on questions of law and instead permits the
challenge of an award by an application to set aside the award
(Section 24, IAA; Article 34(1) UNCITRAL Model Law). As of 1
June 2012, parties to an arbitration, subject to the IAA, now have
the right to appeal to the High Court upon a ruling by the arbitral
tribunal on a plea that it lacks jurisdiction (Section 10(2), IAA).
2.3
1.3
What legislation governs the enforcement of arbitration
proceedings in Singapore?
Is the law governing international arbitration based on the
UNCITRAL Model Law? Are there significant differences
between the two?
The Model Law is expressly adopted in Section 3 of the IAA, save
for Chapter VIII, but it is modified in certain respects. Differences
include the default number of, and process for, appointing
arbitrators, powers of the arbitral tribunal to order interim measures
and grounds for setting aside an arbitral award.
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K&L Gates LLP
To what extent are there mandatory rules governing
international arbitration proceedings sited in Singapore?
Parties may agree on the applicable arbitration rules provided they
are not inconsistent with any provision of the Model Law or IAA
from which the parties cannot derogate (Section 15A, IAA). For
example, the agreed arbitration rules must not contradict Article 18
of the Model Law, which requires that the each party be given a full
opportunity to present its case, or Article 31 which sets out the
requirements for the form and content of an arbitral award.
3 Jurisdiction
3.1
Are there any subject matters that may not be referred to
arbitration under the governing law of Singapore? What
is the general approach used in determining whether or
not a dispute is “arbitrable”?
reverse an arbitral tribunal’s decision that it has jurisdiction if the
court considers that the arbitral tribunal was mistaken on this issue
(Kempinski Hotels SA v PT Prima International Development
[2011] 4 SLR 633).
3.5
A person may be treated as party in an arbitration, even though he
is not a party to the relevant arbitration agreement, provided that
person is a third party beneficiary to the contract which is subject to
arbitration and is seeking to enforce a substantive term of that
contract against a party to the arbitration agreement (Section 9,
Contracts (Rights of Third Parties) Act (Cap. 53B)).
3.6
Although disputes which are commercial in nature may generally
be arbitrated (Article 1(1), Model Law), certain disputes may not be
determined by arbitration if doing so would be contrary to public
policy (Section 11(1), IAA). Such disputes include: bankruptcy and
insolvency matters; issues relating to citizenship; family law
matters; intellectual property disputes; issues regarding the
winding-up of a company; and criminal matters. Clear guidelines
have yet to be laid down by the Singapore courts as to the proper
test to determine what types of disputes should not be arbitrated on
the basis that doing so would be contrary to public policy.
3.2
Is an arbitrator permitted to rule on the question of his or
her own jurisdiction?
Yes, Section 10(2) of the IAA and Article 16(1) of the Model Law
provide that the arbitral tribunal may rule on its own jurisdiction.
3.3
What is the approach of the national courts in Singapore
towards a party who commences court proceedings in
apparent breach of an arbitration agreement?
If a party commences proceedings in court concerning a dispute
which is subject to an arbitration agreement, the other party to the
agreement may apply to the court to stay the proceedings (Section
11, IAA). As long as there is no sufficient reason to decline
referring the matter to arbitration and the party applying to stay the
proceedings was, and remains, ready and willing to do what is
necessary for the proper conduct of the arbitration, the court may
stay the proceedings in favour of arbitration.
3.4
Under what circumstances can a court address the issue
of the jurisdiction and competence of the national arbitral
tribunal? What is the standard of review in respect of a
tribunal’s decision as to its own jurisdiction?
Section 10 of the IAA (as amended on 1 June 2012) deals with
appealing an arbitral tribunal’s ruling on jurisdiction. Within 30
days after the arbitral tribunal rules on a preliminary question as to
whether it has jurisdiction, any party to the arbitration has the right
to appeal to the High Court. This applies if the arbitral tribunal has
determined that it does or, as of 1 June 2012, does not have
jurisdiction. The parties may also appeal the decision of the High
Court provided the parties obtain leave from the High Court to do
so (Article 16(3), Model Law; Section 10(4), IAA). A court may
Under what, if any, circumstances does the national law
of Singapore allow an arbitral tribunal to assume
jurisdiction over individuals or entities which are not
themselves party to an agreement to arbitrate?
Singapore
2.4
Singapore
What laws or rules prescribe limitation periods for the
commencement of arbitrations in Singapore and what is
the typical length of such periods? Do the national courts
of Singapore consider such rules procedural or
substantive, i.e., what choice of law rules govern the
application of limitation periods?
Section 8A of the IAA provides that the Limitation Act (Cap. 163)
and, as of 1 June 2012, the Foreign Limitation Periods Act 2012,
shall apply to arbitral proceedings as they apply to proceedings
before any Singapore court.
Pursuant to Section 6 of the Limitation Act, actions founded on a
contract or tort, actions to enforce or recognise an award and actions
to recover a sum recoverable by virtue of any written law other than
a penalty or forfeiture must be brought within six years from the
date the cause of action accrued.
Section 3 of the Foreign Limitation Periods Act 2012 provides that
in the event the law of a country other than Singapore applies to the
determination of any matter in proceedings before a court in
Singapore (or an arbitral tribunal, pursuant to Section 8A of the
IAA), the laws of limitation of that other country shall apply.
3.7
What is the effect in Singapore of pending insolvency
proceedings affecting one or more of the parties to
ongoing arbitration proceedings?
The pending insolvency of a party to ongoing arbitration
proceedings may affect those proceedings to the extent that the
other party may apply for, and the arbitral tribunal may order,
security for costs or other interim measures to protect their interests
(Section 12, IAA; Article 17, Model Law).
4 Choice of Law Rules
4.1
How is the law applicable to the substance of a dispute
determined?
The parties to an arbitration agreement may designate the law
which will apply to their contract and subsequent disputes.
Generally, the applicable substantive law is specified in the relevant
contract. If not, conflict of law principles will apply and the law
will either be determined based on the intention of the parties or
based on an objective test as to which law has the “closest and most
real connection” to the subject matter of the relevant contract.
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Singapore
4.2
In what circumstances will mandatory laws (of the seat or
of another jurisdiction) prevail over the law chosen by the
parties?
As noted in question 2.4 above, the parties may agree on the
applicable rules as long as they are not inconsistent with any
provision of the Model Law or IAA, from which the parties cannot
derogate (Section 15A, IAA). The law chosen by the parties, for
example, must allow the parties to be given a full opportunity to
present their case.
4.3
What choice of law rules govern the formation, validity,
and legality of arbitration agreements?
The parties’ ability to determine the law applicable to their contract
extends to the law which will govern the formation, validity and
legality of the arbitration agreement. If the parties do not specify
the law they wish to apply, conflict of law principles will apply (as
explained in question 4.1 above).
5 Selection of Arbitral Tribunal
5.1
Are there any limits to the parties’ autonomy to select
arbitrators?
No. The parties may agree, and may so specify in the arbitration
agreement, as to the number of arbitrators to be nominated or that
that some or all of the arbitrators should be nominated by a third
party or arbitral institution. The nominated arbitrators then have the
option of either accepting or declining such appointment (subject to
availability and applicable conflict of interests and disclosure
rules).
5.2
If the parties’ chosen method for selecting arbitrators fails,
is there a default procedure?
Yes. If the chosen method for selecting arbitrators fails because a
party fails to act in accordance with such procedure, or the parties
(or two arbitrators) cannot agree as required by such procedure or a
third party fails to perform the function(s) entrusted to it under such
procedure, any party may request the Chairman of the Singapore
International Arbitration Centre (“SIAC”) to take necessary
measures for the arbitral tribunal to be appointed (Section 8(2),
IAA; Article 11(4), Model Law).
5.3
Can a court intervene in the selection of arbitrators? If so,
how?
Yes. If a party is unsuccessful in challenging an arbitrator on
appropriate grounds, that party may, within 30 days, request the
High Court to decide the challenge. The High Court’s decision on
the challenge may not be appealed (Section 8(1), IAA; Model Law
Article 13(3)). Additionally, any party may request the High Court
to decide whether the mandate of an arbitrator who becomes unable
to perform his functions or otherwise performs them with undue
delay should be terminated. Again, the High Court’s decision on
this issue may not be appealed (Section 8(1), IAA; Article 14(1),
Model Law).
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Singapore
5.4
What are the requirements (if any) as to arbitrator
independence, neutrality and/or impartiality and for
disclosure of potential conflicts of interest for arbitrators
imposed by law or issued by arbitration institutions within
Singapore?
Any person approached in connection with a potential appointment
as an arbitrator must disclose any circumstances which are likely to
give rise to justifiable doubts as to the person’s impartiality or
independence. There is also an ongoing obligation, which begins
when the arbitrator is appointed and continues throughout the
arbitration proceedings, for an appointed arbitrator to disclose such
circumstances to the parties (Article 12(1), Model Law).
6 Procedural Rules
6.1
Are there laws or rules governing the procedure of
arbitration in Singapore? If so, do those laws or rules
apply to all arbitral proceedings sited in Singapore?
The AA governs arbitrations seated in Singapore which are not
governed by the IAA. As stated above, the IAA generally governs
international arbitrations. An arbitration is international if (1) at
least one party to the arbitration agreement has its place of business
in a state other than Singapore, (2) the place of arbitration, place
where a substantial part of the obligations under the operative
agreement are to be performed or place to which the subject matter
of the dispute is most closely connected is outside the state(s) of the
parties’ places of business, or (3) the parties expressly agree that the
subject matter of the arbitration agreement concerns more than one
country. A domestic arbitration may be governed by the IAA where
the parties agree in writing that Part II of the IAA or the Model Law
shall apply. Parties to an arbitration agreement may also expressly
agree that Part II of the IAA or the Model Law should not apply, in
which case the AA will apply (Section 5, IAA).
The parties are free to agree on the procedure which will govern
their arbitration and may select any arbitral rules, such as the rules
of a particular arbitral institution, as long as those rules are not
inconsistent with the IAA or Model Law (Section 15A, IAA; Article
19, Model Law). If the parties do not so agree, Article 19 of the
Model Law permits the arbitral tribunal to conduct the arbitration as
it considers appropriate.
6.2
In arbitration proceedings conducted in Singapore, are
there any particular procedural steps that are required by
law?
While the specific procedural steps in an arbitration may vary
depending on the applicable rules agreed by the parties, statements
of claim and defence must be submitted within the time period
agreed by the parties or otherwise set by the arbitral tribunal, though
the parties may agree on the elements required in these statements
(Article 23(1), Model Law). Additionally, any statement, document
or other information which one party provides to the arbitral
tribunal or which will otherwise be relied upon by the arbitral
tribunal must be communicated to the other party (Article 24(3),
Model Law). Article 32(2) of the Model Law specifies when the
arbitral tribunal shall issue an order terminating the proceedings.
As to a party’s recourse in court against an arbitral award, this is
confined to submitting a setting aside application which may only
be granted in limited circumstances (Article 34, Model Law).
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6.3
Are there any rules that govern the conduct of an
arbitration hearing?
Yes. The parties must be treated with equality and must be given a
full opportunity to present their case (Article 18, Model Law).
Should the arbitral tribunal decide to hold hearings during the
arbitration, and the parties have not agreed otherwise, those
hearings must be held at an appropriate stage of the proceedings.
Further, the parties must be provided sufficient notice of any
hearing or meeting of the arbitral tribunal (Article 24, Model Law).
6.4
observation or experiment on any property forming at least part of
the subject matter of the dispute, (6) preservation and interim
custody of evidence for purposes of the arbitration, (7) securing the
amount in dispute, (8) ensuring any award made is not rendered
ineffectual by the dissipation of assets by a party, and (9) an interim
injunction or other interim measure (Section 12(1), IAA).
Assistance from the court is not necessary.
7.2
What powers and duties does the national law of
Singapore impose upon arbitrators?
As noted, the Model Law provides that the arbitral tribunal must
treat the parties with equality and must disclose any circumstances
likely to give rise to justifiable doubts as to its impartiality or
independence. The arbitral tribunal also has a duty to decide all
issues referred to arbitration as established by Shanghai Tunnel
Engineering Co Ltd v Econ-NCC Joint Venture [2010] SGHC 252.
6.5
Singapore
Are there rules restricting the appearance of lawyers from
other jurisdictions in legal matters in Singapore and, if so,
is it clear that such restrictions do not apply to arbitration
proceedings sited in Singapore?
Lawyers from other jurisdictions who are not advocates or solicitors
of the Supreme Court of Singapore or who are not practicing in
local firms may not appear before the Singapore courts (Section 32,
Legal Profession Act (Cap. 161)). These lawyers may, however,
still act and represent parties in arbitration proceedings, as well as
advise on, and assist in relation to, arbitration proceedings, save that
these lawyers do not have a right of audience in court (Section 35,
Legal Profession Act).
Yes, only in the event or to the extent that the arbitral tribunal is
without the power or ability to act effectively for the time being
may the High Court award interim relief. Such relief is the same as
the arbitral tribunal is permitted to award pursuant to Section 12(1)
of the IAA, except that the High Court may not make an order in
respect of security for costs, discovery of documents and
interrogatories or the giving of evidence by affidavit (Section 12A,
IAA). A party’s request to the court for relief will not affect the
jurisdiction of the arbitral tribunal.
7.3
In practice, what is the approach of the national courts to
requests for interim relief by parties to arbitration
agreements?
Generally, Singapore courts are reluctant to intervene in
arbitrations. However, where the arbitral tribunal is without the
power or ability to act effectively for the time-being or where the
matter is urgent and the arbitral tribunal has not yet been appointed,
the courts are more willing to intervene.
7.4
6.6
Is a court entitled to grant preliminary or interim relief in
proceedings subject to arbitration? In what
circumstances? Can a party’s request to a court for relief
have any effect on the jurisdiction of the arbitration
tribunal?
To what extent are there laws or rules in Singapore
providing for arbitrator immunity?
Under what circumstances will a national court of
Singapore issue an anti-suit injunction in aid of an
arbitration?
Arbitrators are immune from liability for negligence relating to any
act or omission in their capacity as arbitrators and for mistakes in
law, fact or procedure made during the course of the arbitration
proceedings or making of the arbitral award (Section 25, IAA).
A Singapore court may issue an anti-suit injunction in support of an
arbitration in circumstances where an arbitration is seated in
Singapore and the commencement of proceedings outside of
Singapore would constitute a breach of the arbitration agreement.
6.7
7.5
Do the national courts have jurisdiction to deal with
procedural issues arising during an arbitration?
Yes. The courts can intervene in the process for appointment of the
arbitral tribunal, as discussed above, and may order interim relief in
certain circumstances.
Singapore
K&L Gates LLP
Does the national law allow for the national court and/or
arbitral tribunal to order security for costs?
The arbitral tribunal may order security for costs, but the Singapore
courts may not (as explained in questions 7.1 and 7.2 above).
8 Evidentiary Matters
7 Preliminary Relief and Interim Measures
8.1
7.1
Is an arbitrator in Singapore permitted to award
preliminary or interim relief? If so, what types of relief?
Must an arbitrator seek the assistance of a court to do
so?
Yes, the arbitrator may award interim relief by an order or direction
for (1) security for costs, (2) discovery of documents and
interrogatories, (3) the giving of evidence by affidavit, (4)
preservation, interim custody or sale of property forming at least
part of the subject matter of the dispute, (5) the taking of samples,
What rules of evidence (if any) apply to arbitral
proceedings in Singapore?
Parties are free to agree on the rules of evidence applicable to the
arbitration. If the parties have not so agreed, the arbitral tribunal
has the power to decide issues of admissibility, relevance,
materiality and weight in respect of any evidence (Article 19,
Model Law).
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8.2
Are there limits on the scope of an arbitrator’s authority to
order the disclosure of documents and other disclosure
(including third party disclosure)?
Generally, there are no limits on the scope of an arbitrator’s power
to order disclosure.
8.3
Under what circumstances, if any, is a court able to
intervene in matters of disclosure/discovery?
See question 7.2 above.
8.4
What, if any, laws, regulations or professional rules apply
to the production of written and/or oral witness testimony?
For example, must witnesses be sworn in before the
tribunal or is cross-examination allowed?
Any applicable rules and the approach to the production of written
or oral testimony are generally agreed between the parties or
otherwise determined by the arbitral tribunal. As noted, the arbitral
tribunal has the authority to order the giving of evidence by
affidavit. Subject to any agreement between the parties, the arbitral
tribunal also has the power to decide whether to hold oral hearings,
at which cross-examination may be allowed, or conduct the
proceedings on the basis of documents and other materials (Section
24, Model Law). It is not necessary for witnesses to be sworn in or
affirmed before giving oral evidence.
8.5
What is the scope of the privilege rules under the law of
Singapore? For example, do all communications with
outside counsel and/or in-house counsel attract privilege?
In what circumstances is privilege deemed to have been
waived?
In practice, the privilege rules at common law generally apply in
arbitration proceedings. The specific privilege rules, including
regarding communications with outside or in-house counsel, will
usually depend on the procedural law which governs the arbitration.
Privilege will be deemed to have been waived if, and to the extent
that, the party holding the privilege expressly consents to waiver or
discloses or relies upon the privileged information.
9
9.1
Making an Award
What, if any, are the legal requirements of an arbitral
award? For example, is there any requirement under the
law of Singapore that the Award contain reasons or that
the arbitrators sign every page?
An arbitral award must be made in writing and be signed by the sole
arbitrator or by a majority of the arbitral tribunal with reasons for
the omission of any signatures. The award must state the reasons
on which it is based unless the parties agree no reasons should be
given or the parties have settled the dispute and the award records
that settlement. Additionally, the award must be dated and state the
place of the arbitration (Article 31, Model Law). There is no
requirement that each page of the award has to be signed.
Singapore
10
Challenge of an Award
10.1 On what bases, if any, are parties entitled to challenge an
arbitral award made in Singapore?
An arbitral award is final and binding on the parties and may not be
appealed (Section 19B(1), IAA). However, parties may apply to the
High Court to set aside the award (Section 24, IAA; Article 34(1),
Model Law) in limited circumstances. Article 34(2)(a) of the
Model law provides the following grounds to set aside an award: (1)
a party to the arbitration agreement lacked capacity or the
arbitration agreement is not valid under the law governing it or, if
the governing law was not specified, the law of Singapore; (2) the
party applying to set aside the award was not given proper notice of
the appointment of the arbitrator, arbitral proceedings or was unable
to present its case; (3) the award deals with disputes or contains
decisions on matters outside the scope of those submitted for
arbitration, in which case only those parts of the award may be set
aside; or (4) the composition of the arbitral tribunal or procedure of
the arbitration was inconsistent with that agreed by the parties,
unless such agreement conflicts with a mandatory provision of the
Model Law, or in the absence of such agreement the composition or
procedure conflicts with the Model Law. Additionally, an award
may be set aside if the court determines that the subject matter of
the dispute may not be settled by arbitration under Singapore law or
if the award conflicts with the public policy of Singapore (Article
34(2)(b), Model Law). Section 24 of the IAA, provides that in
addition to the grounds set out in Article 34(2) of the Model Law,
the High Court may set aside an award if it was induced or affected
by fraud or corruption or if it was made in connection with a breach
of the rules of natural justice such that the rights of any party have
been prejudiced.
10.2 Can parties agree to exclude any basis of challenge
against an arbitral award that would otherwise apply as a
matter of law?
The IAA and Model Law do not address agreements by the parties
to exclude grounds for challenging an arbitral award.
10.3 Can parties agree to expand the scope of appeal of an
arbitral award beyond the grounds available in relevant
national laws?
No. As noted, an award made in an arbitration subject to the IAA
may not be appealed.
10.4 What is the procedure for appealing an arbitral award in
Singapore?
As noted, awards made in arbitrations subject to the IAA may not
be appealed.
11
Enforcement of an Award
11.1 Has Singapore signed and/or ratified the New York
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards? Has it entered any
reservations? What is the relevant national legislation?
Yes, Singapore ratified the New York Convention (“NYC”) in 1986
with a reservation that Singapore would only apply the NYC to
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11.2 Has Singapore signed and/or ratified any regional
Conventions concerning the recognition and enforcement
of arbitral awards?
12.2 Can information disclosed in arbitral proceedings be
referred to and/or relied on in subsequent proceedings?
Yes, if the parties to the arbitration so agree, the court orders such
information be disclosed or such information has been published in
the public domain.
13
Remedies / Interests / Costs
No, it has not.
11.3 What is the approach of the national courts in Singapore
towards the recognition and enforcement of arbitration
awards in practice? What steps are parties required to
take?
The Singapore courts generally support the recognition and
enforcement of arbitral awards. Arbitral awards rendered in
Singapore and foreign awards may be enforced as court orders or
judgments with leave of the High Court (Sections 19 and 29(1),
IAA). Before an award may be enforced, the award and relevant
arbitration agreement must be authenticated pursuant to Section
19C of the IAA. The party against whom enforcement of a foreign
award is sought may then seek to establish that enforcement should
be refused on the grounds set out in Section 31 of the IAA.
13.1 Are there limits on the types of remedies (including
damages) that are available in arbitration (e.g., punitive
damages)?
Singapore
awards made in the territory of another contracting state. Part III of
the IAA deals with Foreign Award and the Second Schedule of the
IAA contains the NYC.
Singapore
Generally, the arbitral tribunal must decide the dispute and award
remedies in accordance with the law applicable to the substance of
the dispute (Article 28(1), Model Law). If Singapore law is chosen
as the governing law, the arbitral tribunal may award any remedy or
relief that could have been ordered by the Singapore court if the
dispute had been the subject of civil proceedings in that court
(Section 12(5)(a), IAA). Notwithstanding, the arbitral award,
including remedies awarded, must not conflict with the public
policy of Singapore (Article 34(2)(b), Model Law).
13.2 What, if any, interest is available, and how is the rate of
interest determined?
11.4 What is the effect of an arbitration award in terms of res
judicata in Singapore? Does the fact that certain issues
have been finally determined by an arbitral tribunal
preclude those issues from being re-heard in a national
court and, if so, in what circumstances?
Issues finally determined by arbitration pursuant to an arbitral
award may not be re-heard in a Singapore court.
11.5 What is the standard for refusing enforcement of an
arbitral award on the grounds of public policy?
In order for the enforcement of an arbitral award to be refused on
the grounds of public policy, the party challenging enforcement
must identify both (1) the part of the arbitral award which allegedly
breaches public policy, and (2) the public policy allegedly breached.
The party must also demonstrate that upholding the arbitral award
would “shock the conscience”, be “clearly injurious to the public
good” or contravene “fundamental notions and principles of
justice” (AJT v AJU [2010] SGHC 201; PT Asuransi Jasa Indonesia
(Persero) v Dexia Bank SA [2007] 1 SLR(R) 597).
Provided the parties do not agree otherwise, the arbitral tribunal
may make an award directing a sum to be paid with simple or
compound interest from the date of the award, unless the award
specifies otherwise, at the same rate as a judgment debt in
Singapore (Section 20, IAA), which is presently 6% per annum
(Order 42 Rule 12, Rules of Court).
13.3 Are parties entitled to recover fees and/or costs and, if so,
on what basis? What is the general practice with regard
to shifting fees and costs between the parties?
Unless parties agree otherwise, the successful party will generally
be entitled to recover all or at least part of its legal fees and the costs
of the arbitration, including the arbitrators’ fees and expenses and
any administrative costs of the arbitral institution.
13.4 Is an award subject to tax? If so, in what circumstances
and on what basis?
Arbitral awards are not subject to tax.
12
Confidentiality
12.1 Are arbitral proceedings sited in Singapore confidential?
In what circumstances, if any, are proceedings not
protected by confidentiality? What, if any, law governs
confidentiality?
Parties to an arbitration have a general duty of confidentiality.
Additionally, parties may agree to adopt the rules of an arbitral
institution, which may provide specific confidentiality rules.
Information in respect of proceedings heard other than in open
court, which may otherwise be confidential, can be published only
if all parties to the proceedings so agree or the court is satisfied that
publication will not reveal any matter that any party reasonably
wishes to remain confidential (Section 23(3), IAA).
13.5 Are there any restrictions on third parties, including
lawyers, funding claims under the law of Singapore? Are
contingency fees legal under the law of Singapore? Are
there any “professional” funders active in the market,
either for litigation or arbitration?
Under Singapore law, third parties may be restricted from funding
a claim if such arrangement, on the totality of the circumstances,
constitutes maintenance or a champertous transaction.
Maintenance is the giving of assistance or encouragement to a party
to a litigation by a person who has no interest in the litigation or
other motives justifying the interference; the related doctrine of
champerty is maintenance in consideration of a promise for a share
in the proceeds or subject matter of the proceedings (Lim Lie Hua
and Another v Ong Jane Rebecca [1997] 1 SLR(R)). While few
cases on the subject have been reported, the courts have held that
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these doctrines apply to litigation and that the law of champerty
applies to arbitration proceedings (Otech Pakistan Pvt Ltd v Clough
Engineering Ltd & Anor [2007] 1 SLR(R) 989). In determining
whether a third party funding arrangement offends the doctrines of
maintenance or champerty, the court will consider whether the
maintenance can be justified by legitimate commercial interest,
whether the arrangement goes towards suppressing evidence,
suborning witnesses or inflaming damages and whether the
arrangement is governed by Singapore law.
Singapore law prohibits solicitors of the Supreme Court of
Singapore from charging contingency fees (Section 107, Legal
Profession Act). Whether contingency fees may otherwise be
charged in respect of an arbitration will likely depend on whether
the fee arrangement constitutes maintenance or a champertous
transaction.
14
Investor State Arbitrations
14.1 Has Singapore signed and ratified the Washington
Convention on the Settlement of Investment Disputes
Between States and Nationals of Other States (1965)
(otherwise known as “ICSID”)?
Yes, Singapore ratified and implemented ICSID in 1968 pursuant to
the Arbitration (International Investment Disputes) Act.
14.2 How many Bilateral Investment Treaties (BITs) or other
multi-party investment treaties (such as the Energy
Charter Treaty) is Singapore party to?
Singapore is a party to 19 BITs. It is not a party to the Energy
Charter Treaty.
14.3 Does Singapore have any noteworthy language that it
uses in its investment treaties (for example in relation to
“most favoured nation” or exhaustion of local remedies
provisions)? If so, what is the intended significance of
that language?
Singapore
14.4 What is the approach of the national courts in Singapore
towards the defence of state immunity regarding
jurisdiction and execution?
States are immune from the jurisdiction of the Singapore courts
unless an exception provided in the State Immunity Act (Cap 313)
applies. A State which has agreed in writing to submit a dispute to
arbitration is not immune from proceedings in the Singapore courts
relating to the arbitration unless the arbitration agreement provides
otherwise or it is between States (State Immunity Act Section 11).
15
General
15.1 Are there noteworthy trends in or current issues affecting
the use of arbitration in Singapore (such as pending or
proposed legislation)? Are there any trends regarding the
type of disputes commonly being referred to arbitration?
As mentioned above, the IAA was amended with effect from 1 June
2012 and the Foreign Limitations Periods Act 2012 was enacted
with effect from 1 June 2012. The amendments to the IAA are
designed to further strengthen Singapore’s status as a hub for
international arbitration and demonstrate to the international
community Singapore’s continued commitment to international
arbitration.
Amongst the changes introduced to the IAA, one of the most
significant concerned orders made by emergency arbitrators. The
amendments accorded emergency arbitrators with the same legal
status and powers as that of any arbitral tribunal, to ensure that
orders made by such emergency arbitrators (whether appointed
under the SIAC Rules 2010 or the rules of any other arbitral
institution) are enforceable under the IAA regime.
15.2 What, if any, recent steps have institutions in Singapore
taken to address current issues in arbitration (such as
time and costs)?
There are no such recent steps by arbitral institutions in Singapore.
The most recent revisions were to the SIAC Rules in 2010.
The “most favoured nation” article of the BITs to which Singapore
is a party differs between BITs. Similarly, some BITs refer to the
pursuit of local remedies prior to submitting an investment dispute
to ICSID (see, for example, Article 8(1) of the Singapore-UK BIT)
and others do not (see, for example, Article 13 of the SingaporeMauritius BIT).
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Singapore
Ian Fisher
Andrea Utasy
K&L Gates LLP
10 Collyer Quay
#37-01 Ocean Financial Centre
Singapore 049315
K&L Gates LLP
10 Collyer Quay
#37-01 Ocean Financial Centre
Singapore 049315
Tel:
Fax:
Email:
URL:
Tel:
Fax:
Email:
URL:
+65 6507 8100
+65 6507 8111
ian.fisher@klgates.com
www.klgates.com
Ian Fisher is a partner within the firm’s International Arbitration
group and is based in the Singapore office.
He is a qualified English solicitor with more than ten years’ postqualification experience and has worked in London and Tokyo, as
well as Singapore where he is currently based.
He concentrates his practice in international arbitration and
dispute resolution with a particular emphasis on shipping,
construction (offshore, marine, building and infrastructure) and
insurance (both non-marine and marine) disputes.
He has experience conducting international arbitrations with
seats in numerous countries under various auspices including
UNCITRAL, ICC, LCIA, SIAC, SCMA, GAFTA and LMAA. Ian
also has substantial experience in conducting litigation
proceedings before the English High Court.
+65 6507 8100
+65 6507 8111
andrea.utasy@klgates.com
www.klgates.com
Andrea Utasy is an associate in the Singapore office of K&L
Gates. She is a member of the firm’s international arbitration and
commercial disputes team. She has represented a wide range of
clients in a broad range of industry sectors acting in a number of
high profile, complex and technical international commercial
disputes in Singapore, Hong Kong, London, New York, India,
Pakistan, the Cayman Islands, the BVI and various parts of the
USA. She holds a law degree from Pepperdine University and is
admitted to the California Bar.
Singapore
K&L Gates LLP
K&L Gates LLP comprises nearly 2,000 lawyers who practice in more than 40 offices located on four continents. We represent
leading global corporations, growth and middle-market companies, capital markets participants and entrepreneurs in every major
industry group, as well as public sector entities, educational institutions, philanthropic organisations and individuals. Our practice
is a robust full market practice – cutting edge, complex and dynamic, at once regional, national and international in scope.
The Dispute Resolution group represents over one-third of the firm’s practice. Within that, the International Arbitration practice
includes more than 80 lawyers spread across our offices globally, including in many of the world’s leading arbitration centers. The
Singapore team heads up the firm’s international arbitration practice in Asia and forms an integral part of the firm’s global policy
in developing a top-ranked international arbitration practice across Asia, North and South America, Europe, and the Middle East.
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