International arbitration law and rules in Singapore

In 2020 the Singapore International Arbitration Centre (SIAC) set a new record with 1080 new case filings, more than doubling its case load from the previous year. This is the first time in history that SIAC’s caseload has crossed the 1000-case threshold.

1.1.1 There are two separate legal regimes governing the arbitration process in Singapore:

• the domestic regime, which concerns arbitrations that are conducted pursuant to domestic arbitration agreements and is governed by the Arbitration Act (Cap. 10, Rev Ed 2002) (AA); 1  Statutes of the Republic of Singapore (Revised Edition 2002) (“Singapore Statutes”), ch 10. and
• the international regime, which concerns arbitrations that are conducted pursuant to international arbitration agreements and is governed by the International Arbitration Act (Cap. 143A, Rev Ed 2002) (IAA). 2 Singapore Statues, ch 143A.

1.1.2 The first domestic act governing arbitration was the Arbitration Ordinance which came into force in 1953. It was based on the United Kingdom’s Arbitration Act of 1950. The Arbitration Ordinance 1953 was amended from time to time, until its last edition, the Arbitration Act 1985 (1985 Act). 3 Singapore Statues, ch 10. The 1985 Act was repealed by the AA, which came into force on 1 March 2002. The purpose of the AA was to align the domestic arbitration law with the UNCITRAL Model Law on International Commercial Arbitration (1985) (Model Law). 

1.1.3 The IAA came into force in 1995 and has been amended several times. The last amendments came into effect in 2012 under the International Arbitration (Amendment) Act 2012 (IAA Amendments 2012). Further amendments were proposed by Singapore’s Ministry of Law by way of the International Arbitration (Amendment) Bill on 1 September 2020 (2020 Amendment Bill), which came into operation on 1 December 2020. The IAA gives effect to the Model Law, with the exception of Chapter VIII, by setting it out in Schedule 1 to the IAA. 4 IAA, s 3(1).

1.1.4 However, the main body of the IAA prevails over its schedules and modifies the Model Law in certain respects, such as:

• immunity of arbitrators;
• court assistance in taking evidence;
• confidentiality of arbitral proceedings;
• appointment of a third arbitrator, in situations where three arbitrators are to be appointed; and
• grounds for setting aside an award.

1.1.5 Currently, the default provision of the IAA is that, subject to the IAA, the Model Law, with the exception of Chapter VIII, shall have the force of law in Singapore. 5 IAA, s 3(1).

2.1.1 The IAA applies to international arbitrations (as defined below), as well as to non-international arbitrations where the parties have a written agreement that Part II of the IAA or the Model Law will apply. 6 IAA, s 5(1).

2.1.2 An arbitration is considered “international” if:

• at least one of the parties has its place of business in any state 7 As defined by IAA, s 3(2), “State” means Singapore and any country other than Singapore.  other than Singapore at the time the arbitration  agreement was concluded;
• the agreed seat of the arbitration is situated outside of the state in which the parties have their place of business;
• any place where a substantial part of the obligation of the commercial relationship is to be performed, or the place to which the subject matter of the dispute is most closely connected, is situated outside of the state in which the parties have their place of business; or
• the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state. 8 IAA, s 5(2).

2.1.3 In order to determine a party’s place of business, the IAA provides that:

• if a party has more than one place of business, the place of business shall be the one which has the closest relationship to the agreement; and
• if a party does not have a place of business, a reference to “place of business” shall be construed as a reference to that party’s habitual residence. 9 IAA, s 5(3).

2.2 General principles

2.2.1 Arbitration in Singapore can be administered by an arbitral institution, such as the Singapore International Arbitration Centre (SIAC), or it can be administered on an ad hoc basis.

2.2.2 The SIAC administers most of its cases under its own rules of arbitration, the Arbitration Rules of the SIAC (SIAC Rules). 11 SIAC Rules, 6th ed., in force 1 August 2016.

2.2.3 The international regime, with its adoption of much of the Model Law, favours greater party autonomy and reduces the degree of court intervention. In contrast, the domestic regime allows for closer court supervision.

3.1.1 The AA defines an arbitration agreement as “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” 12 AA, s 4(1).

3.1.2 Pursuant to the IAA Amendments 2012, the IAA adopts a similar definition of an arbitration agreement to the domestic regime. 13 IAA, s 2A(1).  Accordingly, article 7 of the Model Law no longer applies to the IAA’s definition of an arbitration agreement. 14 IAA, s 2A(9).

3.2.1 Parties may enter into an arbitration agreement either orally or in writing. However, an arbitration agreement which is not in writing is not an agreement contemplated within the statutory laws of arbitration.

3.2.2 The requirement of an arbitration agreement being ‘in writing’ has now been harmonised under both the AA and the IAA. An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct or by other means. 15 15 AA, s 4(4) and IAA, s 2A(4). The writing requirement is also satisfied by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference. 16 AA, s 4(5) and IAA, s 2A(5).

3.2.3 An arbitration agreement can take the form of an arbitration clause in the contract or as a separate agreement. 17 AA, s 4(2) and IAA, s 2A(2)

3.2.4 Both the AA and the IAA provide that an arbitration agreement is deemed to have been constituted in the following circumstances:

• where a party asserts the existence of an arbitration agreement in a pleading, statement of case or any document in circumstances in which the assertion calls for a reply but is not denied; 18 AA, s 4(6) and IAA, s 2A(6).  or
• where a reference in a bill of lading to a charter-party or some other document containing an arbitration clause is such as to make that clause part of the bill of lading. 19 AA, s 4(8) and IAA, s 2(8).

3.3.1 The operation of the dual-track arbitration regime in Singapore allows the parties to pre-select a particular regime. This allows parties to “opt-in” or “opt-out” of the relevant legislation. This is achieved by making reference, in the arbitration clause, to the IAA or the AA and opting-in or opting-out of the desired regime.

3.3.2 In the IAA, this is enabled by section 15(1) which provides as follows:

“If the parties to an arbitration agreement … have expressly agreed either (a) that the Model Law or this Part shall not apply to the arbitration; or (b) that the AA or the repealed 1985 Act shall apply to the arbitration, then, both the Model Law and this Part shall not apply to that arbitration but the AA or the repealed Arbitration Act (if applicable) shall apply to that arbitration.”

3.4.1 Separability is incorporated into the AA and the IAA. The doctrine of separability means that an arbitration clause is treated as a separate agreement, independent of the other terms of the contract. 20 AA, s 21(2) and IAA, sch 1, art 16(1).  Therefore, a decision that the contract is null and void does not entail, as a matter of law, that the arbitration clause is invalid. 21 AA, s 21(2) and IAA, sch 1, art 16(1).

3.4.2 The doctrine of separability supports the principle of competence-competence discussed at section 5.1 below.

3.5.1 The AA does not impose any special tests or requirements for jurisdiction, beyond the requirement that the IAA does not apply to the arbitration. 22 AA, s 3.

3.5.2 The basis for the application of the IAA is discussed above at paragraphs 2.1.1 to 2.1.3. The IAA permits all disputes agreed upon by the parties to be submitted to arbitration unless it is contrary to public policy to do so. 23 IAA, s 11(1).

3.5.3 The IAA also provides that an arbitration shall not be held to lack jurisdiction on the basis that a written law confers jurisdiction on a court, but does not refer to the determination of the matter by arbitration. 24 IAA, s 11(2).

4.1.1 Under both the AA and the IAA, the parties are free to agree on the procedure for appointing arbitrators. 25 AA, s 13(2) and IAA, sch 1, art 11, which sets out the corresponding article of the Model Law (see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf). Arbitrators can be of any nationality and do not require any formal legal training or qualifications, although standard practice is that many of the arbitrators in Singapore are lawyers.

4.1.2 The SIAC has a panel of arbitrators from which appointments are normally made. If the parties fail to agree on the procedure by which appointments are to be made, either party may apply to the appointing authority (now the President of the SIAC, unless otherwise agreed) to make an appointment.

4.1.3 The parties are free to agree on the number of arbitrators. 26 AA, s 12(1) and IAA, sch 1, art 10(1), which sets out the corresponding article of the Model Law.  Where the parties do not reach an agreement, the default position is to appoint a sole arbitrator. 27 AA, s 12(2) and IAA, s 9.  This position diverges from the default position under the Model Law, which is to have a three-member arbitral tribunal. 28 Model Law, art 10(2).

4.1.4 Where there is an arbitration with three arbitrators, the IAA provides the default position for the appointment of the arbitrators. The current default position under the IAA is: each party shall appoint one arbitrator, and both parties shall, by agreement, appoint the third arbitrator. 29 IAA, s 9A. However, the current default mode under the IAA is only applicable to a dispute involving two parties (ie the claimant and the respondent) and it does not address situations where there are multiple parties involved. The 2020 Amendment Bill was introduced to address the possible deadlock that may arise in multi-party arbitrations, where the number of parties in dispute is more than two and they have not agreed on any arbitrator appointment procedures. When the 2020 Amendment Bill comes into effect, there will be a new default position for arbitrations involving more than three parties and three arbitrators. The default position will be as follows: 30 The 2020 Amendment Bill, s 9B.

• the claimant(s) by agreement will appoint an arbitrator;
• the respondent(s) by agreement will appoint an arbitrator; and
• the two arbitrators appointed by the claimant(s) and the respondent(s) respectively will appoint the third arbitrator.

4.1.5 Decisions shall be made by a majority of the arbitral tribunal. 31 AA, s 19 and IAA, sch 1, art 29, which sets out the corresponding article of the Model Law. Where the parties agree to have an even number of arbitrators, and are therefore not assured of a majority decision, it is necessary that the parties also agree on the method by which deadlocks will be resolved. Alternatively, the presiding arbitrator has authority to determine matters of procedure, 32 AA, s 19(2) and IAA, sch 1, art 29, which sets out the corresponding article of the Model Law.  and may determine the procedure in the event of a deadlock.

4.2.1 Under both regimes, an arbitrator’s appointment may only be challenged if

• circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence; or
• the arbitrator does not possess the qualifications agreed to by the parties. 33 AA, s14(3) and IAA, sch 1, art 12(2), which sets out the corresponding article of the Model Law.

4.2.2 The AA provides that:

"A party may request the [High Court of Singapore] to remove an arbitrator (a) who is physically or mentally incapable of conducting the arbitral proceedings or where there are justifiable doubts as to his capacity to do so; or (b) who has refused or failed –

1. to properly conduct the arbitral proceedings; or
2. to use all reasonable despatch in conducting the arbitral proceedings or making an award, and where substantial injustice has been or will be caused to that party. 34 AA, s 16(1).

4.2.3 Under the AA, if the parties have vested the power to remove an arbitrator in a specified person or institution, the courts will not exercise their powers unless satisfied that the parties have first exhausted their recourse to that person or institution. 35 AA, s 16(2).

4.2.4 Under the IAA, an arbitrator may be removed by the competent court if they are unable to perform their functions or are acting with undue delay. 36 IAA, sch 1, art 14(1), which sets out the corresponding article of the Model Law. The parties may terminate an arbitrator’s mandate by agreement on the same grounds. 37 IAA, sch 1, art 14(1), which sets out the corresponding article of the Model Law.

4.3 Substitution of arbitrators

4.3.1 Under the AA, parties are free to decide procedures concerning the substitution of an arbitrator who has ceased to hold office. 38 AA, s 18(1). Parties may determine:

• whether and if so, how the vacancy is to be filled;
• whether and if so, to what extent the previous arbitral proceedings should stand; and
• what effect (if any) an arbitrator ceasing to hold office has on any appointment made by that arbitrator (alone or jointly).

4.3.2 In the event that the parties cannot agree on the substitution of an arbitrator in the above manner, ordinary provisions relating to the appointment of arbitrators shall apply. 39 AA, s 18(2).

4.3.3 Under the IAA, a substitute arbitrator will be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. 40  IAA, sch 1, art 15, which sets out the corresponding article of the Model Law.

4.4.1 Under the domestic regime, the parties are jointly and severally liable to pay the arbitral tribunal’s reasonable fees and expenses. 41 AA, s 40(1).

4.4.2 Under both regimes, unless the fees of the arbitral tribunal have been agreed to by the parties, any party may require that the fees be assessed either by the Registrar of the Supreme Court under the AA or the Registrar of the SIAC under the IAA. 42 AA, s 40(2) and IAA, s 21(2).

4.4.3 If the arbitral tribunal is appointed by the SIAC, or the arbitration is being administered by the SIAC, it is usual for the fees of the arbitral tribunal to be agreed upon prior to the constitution of the arbitral tribunal. 43 SIAC Rules 2016, art 34.1 (see https://www.siac.org.sg/our-rules/rules/siac-rules-2016#siac_rule34).

4.5.1 The immunity conferred on arbitrators is the same under the domestic and international regimes. Arbitrators will not be liable for:

• negligence in respect of anything done or omitted to be done in the capacity of arbitrator; or
• any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an award. 44  AA, s 20 and IAA, s 25.

4.5.2 Importantly, under the international regime, immunity extends to any appointing authorities and other bodies empowered to make appointments. 45  IAA, s 25A(1).

5.1.1 Under both the domestic and international regimes, an arbitral tribunal has the power to rule on its own jurisdiction (the principle of competence-competence). 46 AA, s 21(1) and IAA, sch 1, art 16(1), which sets out the corresponding article of the Model Law.  

5.1.2 A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. 47 AA, s 21(4) and IAA, sch 1, art 16(2), which sets out the corresponding article of the Model Law. A party may appeal within 30 days to the High Court on the arbitral tribunal’s decision that it has jurisdiction or that it has no jurisdiction. 48 AA, s 21(9) and IAA, s 10 and sch 1, art 16(3), which sets out the corresponding article of the Model Law. An appeal from the decision of the High Court shall lie with the Court of Appeal only with the permission of the High Court. 49 AA, s 21A(1) and IAA, s 10(4). Under the international regime, while a request for an appeal is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. 50 IAA, sch 1, art 16(3). Such an application shall not operate as a stay of the arbitral proceedings or execution of any award or order made in the arbitral proceedings unless the High Court orders otherwise. 51 IAA, s 10(9). Likewise, an appeal to the Court of Appeal against the decision of the High Court will not operate as a stay of the arbitral proceedings or execution of any award or order. 52 IAA, s 10(10). If any arbitrator is unable or unwilling to continue with the arbitral proceedings, the mandate of the arbitrator shall terminate and a substitute arbitrator shall be appointed. 53 IAA, sch 1, art 15.

5.2.1 Under the domestic regime, the parties can agree on the powers which may be exercised by the arbitral tribunal. 54 AA, s 28(1). The AA also expressly lists general powers that are exercisable by an arbitral tribunal. 55 A, s 28(2). Those powers include interim measures such as granting an order for security of costs, discovery of documents and interrogatories, giving of evidence by affidavit, amongst others. 56 AA, s 28(2).

5.2.2 Under the international regime, the arbitral tribunal is granted powers to make orders or directions for:

• security for costs;
• discovery of documents and interrogatories;
• giving of evidence by affidavit;
• the preservation, interim custody or sale of any property which is, or forms part of, the subject matter of the dispute;
• 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;
• the preservation and interim custody of any evidence for the purposes of the arbitral proceedings;
• securing the amount in dispute;
• 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
• an interim injunction or any other interim measure. 57 IAA, s 12(1).

5.2.3 The express powers conferred upon the arbitral tribunal to order interim measures enable it to deal with different issues in one forum, thereby reducing the possibility of excessive court intervention.

6.1.1 Under both the domestic and international regimes, unless it is otherwise agreed by the parties, the arbitral proceedings will commence on the date on which the respondent receives the request for the dispute to be referred to arbitration. 58 AA, s 9 and IAA, sch 1, art 21, which sets out the corresponding article of the Model Law.

6.2.1 If Singapore is the seat of the arbitration, then the parties have the freedom to determine the procedures for conducting the arbitral proceedings. 59 AA, s 23(1) and IAA, sch 1, art 19, which sets out the corresponding article of the Model Law.

6.2.2 Parties do not always conduct arbitration on an ad hoc basis and often choose to have the arbitration administered by an arbitral institution, such as the SIAC. If the parties adopt the SIAC Rules, the SIAC can administer the arbitral proceedings in accordance with those rules. Alternatively, the parties may choose to adopt the rules of another institution.

6.2.3 If the parties have not agreed on the procedure to be followed, then the arbitral tribunal, subject to the provisions of the AA or the IAA, will be free to conduct the arbitration in the manner that it considers to be appropriate.60 

6.2.4 Under the domestic regime, the arbitral tribunal must act fairly and impartially and must give each party a reasonable chance of presenting its case. 61 AA, s 22. Similarly, under the international regime, the arbitral tribunal is required to treat the parties with equality and must give each party a full opportunity to present its case. 62 IAA, sch 1, art 18, which sets out the corresponding article of the Model Law.

6.3.1 The parties may agree on the seat of the arbitration. Where the seat of the arbitration is Singapore, the AA or the IAA will generally govern the arbitral proceedings. The seat of the arbitration is fixed. In other words, the jurisdiction of the arbitration will be determined by the agreed “seat” of the arbitration, regardless of where the arbitration is actually conducted.

6.3.2 Under the international regime, the parties are free to agree on the language or languages to be used in the arbitration. 63 IAA, sch 1, art 22(1), which sets out the corresponding article of the Model Law. Where there is no agreement, the arbitral tribunal will be free to make a determination as to what language or languages will be used in the arbitral proceedings. 64 IAA, sch 1, art 22(1). There is no corresponding provision of the AA that governs languages.

6.4.1 Earlier versions of the SIAC Rules (eg SIAC Rules 2010 and SIAC Rules 2013) provided that, failing an agreement between the parties as to the seat of the arbitration, Singapore shall be the default seat of an arbitration in cases where parties had agreed to adopt the SIAC Rules. 65 SIAC Rules 2010, Rule 18.1 and SIAC Rules 2013, Rule 18.1

6.4.2 However, Rule 21 of the SIAC Rules 2016 provides for the delocalisation of the seat of arbitration, (ie there is no provision that Singapore will be the default seat if the parties do not agree or specify the seat of the arbitration). Instead, the arbitral tribunal will determine the seat of the arbitration having regard to all circumstances of the case. 66 SIAC Rules 2016, Rule 21.1.

6.5.1 Rule 6 of the SIAC Rules 2016 provides that, where there are disputes arising out of, or in connection with, more than one contract (ie multiple contracts), the claimant may:

• file a notice of arbitration in respect of each arbitration agreement and concurrently consolidate these arbitrations under Rule 8 of the SIAC Rules 2016; or
• file a single notice of arbitration in respect of all the arbitration agreements with a description of how the applicable criteria under Rule 8.1 of the SIAC Rules 2016 are satisfied. 

6.5.2 Rule 8.1 of the SIAC Rules 2016 provides that, prior to the constitution of an arbitral tribunal, a party may apply for two or more pending arbitrations commenced under the SIAC Rules 2016 to be consolidated into a single arbitration, provided that:

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

6.5.3 A consolidation application may also be made after the constitution of the arbitral tribunal. 67 SIAC Rules 2016, Rule 8.7. This is subject to slightly different criteria pursuant to Rule 8.7 of the SIAC Rules 2016, including whether the claims are made under the same arbitration agreement, whether the same arbitral tribunal has been constituted in each of the arbitrations, or if no arbitral tribunal has been constituted in the other arbitration(s). 68 SIAC Rules 2016, Rule 8.7(b).

6.5.4 Applications for consolidation are generally decided by the Court of Arbitration of SIAC prior to the constitution of the arbitral tribunal, and by the arbitral tribunal after its constitution.

6.6.1 Prior to the constitution of the arbitral tribunal, a party or non-party may apply for one or more parties to be joined in an arbitration provided that:

• the additional party is prima facie bound by the arbitration agreement; or
• all parties, including the additional party to be joined, have consented to the joinder. 69 SIAC Rules 2016, Rule 7.1.

6.6.2 After the constitution of the arbitral tribunal, a party and/or non-party to the arbitration may apply to the arbitral tribunal for additional parties to be joined under the same criteria. 70 SIAC Rules 2016, Rule 7.8

6.7.1 The SIAC Rules 2016 introduced a new provision which allows a party to apply to the arbitral tribunal for the early dismissal of a claim or defence on the basis that:

• the claim or defence is manifestly without legal merit; or
• the claim or defence is manifestly outside the jurisdiction of the arbitral tribunal. 71  SIAC Rules 2016, Rule. 29.1.

6.7.2 If the application is allowed to proceed, an award shall be made by the arbitral tribunal within 60 days of the application. 72 SIAC Rules 2016, Rule 29.4.

6.8.1 Emergency arbitrators were first recognised under the definition of an “arbitral tribunal” pursuant to the IAA Amendments 2012. 73 IAA, s 2(1).

6.8.2 Rule 30.2 and Schedule 1 of the SIAC Rules 2016 stipulate that a party that wishes to seek emergency interim relief may, concurrent with or following the filing of a notice of arbitration but prior to the constitution of the arbitral tribunal, apply for such relief with the Registrar of SIAC. The President of SIAC will seek to appoint the Emergency Arbitrator within one day of receipt of the application and payment of the administration fees and deposits. 74 SIAC Rules 2016, sch 1 cl. 3.

6.8.3 The Emergency Arbitrator shall make his interim order or award within 14 days from his appointment, unless the Registrar extends time in exceptional cases. 75 SIAC Rules 2016, sch 1 cl. 9.

6.9.1 The SIAC Rules 2016 provide for arbitral proceedings to be conducted under the Expedited Procedure if the parties so agree prior to the constitution of the arbitral tribunal, or in cases of exceptional urgency. 76 SIAC Rules 2016, Rule 5.1.  The SIAC Rules 2016 expands the ambit of cases that could come within the Expedited Procedure by increasing the amount in dispute from S$5 million to S$6 million. 

6.9.2 The arbitral tribunal also has the discretion to decide if the dispute should be decided on the basis of documentary evidence only, upon consultation with the parties. 77 SIAC Rules 2016, Rule 5.2(c).

6.10.1 The parties have the right to agree on the format of submissions and the time frames in which they shall be made. 78 AA, s 24 and IAA, sch 1, art 23, which sets out the corresponding article of the Model Law. Where the parties have made no agreement, the claimant shall state in its statement of claim:

• the facts supporting its claim;
• the points at issue; and
• the relief or remedy sought. 79  AA, s 24(1) and IAA, sch 1, art 23(1).

6.10.2 The respondent shall state its defence in respect of those issues. 80 AA, s 24(1) and IAA, sch 1, art 23(1). Under both regimes, the parties may submit any documents that they consider to be relevant. 81 AA, s 24(2) and IAA, sch 1, art 23(1).

6.10.3 Under both regimes, unless otherwise agreed, the parties may amend or supplement their claim or defence during the course of the arbitral proceedings.

6.10.4 The arbitral tribunal has the power to reject those amendments if it considers those amendments inappropriate, having regard to the delay in making the amendment. 82 AA, s 24(3) and IAA, sch 1, art 23(2).

6.11.1 The parties have the power to agree on whether the arbitral proceedings will comprise a hearing or will be conducted only on the basis of documents and other materials. In the absence of an agreement between the parties, the arbitral tribunal can make a determination on this issue. 83 AA, s 25(1) and IAA, sch 1, art 24(1), which sets out the corresponding article of the Model Law.

6.12.1 In the event that the claimant fails to properly communicate its statement of claim, the arbitral tribunal will terminate the arbitral proceedings. 84 AA, s 29(2)(a) and IAA, sch 1, art 25(a), which sets out the corresponding article of the Model Law.

6.12.2 If the respondent fails to properly communicate its statement of defence, the arbitral tribunal will not treat the failure as an admission of the claimant’s allegations. 85 AA, s 29(2)(b) and IAA, sch 1, art 25(b), which sets out the corresponding article of the Model Law.

6.12.3 Where a party fails to appear at a hearing or produce evidence, the arbitral tribunal will make an award on the evidence before it. 86 AA, s 29(2)(c) and IAA, sch 1, art 25(c), which sets out the corresponding article of the Model Law.

6.12.4 The AA provides that if the arbitral tribunal is satisfied that a delay caused by the claimant is inordinate and inexcusable, and that the delay has given rise, or is likely to give rise, to substantial risk that there will not be a fair resolution of the issues, or has caused, or is likely to cause, serious prejudice to the respondent, then the arbitral tribunal may make an award dismissing the claim. 87 AA, s 29(3).

6.13.1 The rules of evidence that apply to all court proceedings in Singapore do not apply to arbitral proceedings. 88 Evidence Act of Singapore (1893), s 2(1) excludes its own application (with the exception of pt. IV, relating to bankers’ books) to arbitral proceedings. Whilst not compulsory, the International Bar Association (IBA) Rules on the Taking of Evidence in International Commercial Arbitration are often adopted by parties under the international regime. 

6.13.2 Where the parties have not reached an agreement on the process to be followed by the arbitral tribunal, the arbitral tribunal has the power to conduct the arbitral proceedings in the manner that it considers to be appropriate. 89 AA, s 23 and IAA, sch 1, art 19, which sets out the corresponding article of the Model Law. This power extends to determining the admissibility, relevance, materiality and weight of any evidence. 90  AA, s 23(2) and s 23(3) and IAA, sch 1, art 19(2).

6.14.1 Powers with respect to experts lie with the arbitral tribunal. Unless otherwise agreed by the parties, the arbitral tribunal may appoint experts with respect to specific issues and require parties to provide relevant documents for the purposes of the expert’s determination. 91 AA, s 27(1) and IAA, sch 1, art 26(1), which sets out the corresponding article of the Model Law.

6.14.2 Moreover, unless otherwise agreed by the parties, a party can request an expert to participate in a hearing (or, where necessary, the arbitral tribunal can require them to do so), in which case the parties can put questions to the expert and present their own expert witnesses to testify on the points in issue. 92 AA, s 27(2) and IAA, sch 1, art 26(2), which sets out the corresponding article of the Model Law.

6.15.1 Previously, the duty of confidentiality between the parties and the arbitral tribunal was prescribed under the common law. However, with the 2020 Amendment Bill that came into effect on 1 December 2020, the amended IAA provides explicit statutory recognition of the powers of the arbitral tribunal and the High Court of Singapore to enforce parties’ obligations of confidentiality. The arbitral tribunal or the High Court may exercise this power by making orders or giving directions where such obligations exist. 93 The 2020 Amendment Bill, amended ss 12 and 12A.

6.15.2 Under the SIAC Rules 2016, the parties and the arbitral tribunal, including any Emergency Arbitrator and any other person appointed by the arbitral tribunal (including any administrative secretary and any expert), shall at all times treat all matters relating to the arbitral proceedings and the award as confidential. 94 SIAC Rules 2016, Rule 39.1 (see http://www.siac.org.sg/our-rules/rules/siac-rules-2016). Parties and the arbitral tribunal and any other person appointed by the arbitral tribunal, must not, without the written consent of all parties, disclose confidential matters to third parties, except:

• for the purpose of making a court application to enforce or challenge the award;
• pursuant to an order of, or a subpoena issued by, a court of competent jurisdiction;
• for the purpose of pursuing or enforcing a legal right or claim;
• in compliance with the provision of the laws of any state which are binding on the party making the disclosure;
• in compliance with the request or requirement of any regulatory body or other authority;
• pursuant to an order by the arbitral tribunal on application by a party with proper notice to the other parties; or
• for the purpose of any application under Rule 7 (Joinder of Additional Parties) or Rule 8 (Consolidation) of the SIAC Rules 2016. 95 SIAC Rules 2016, Rule 39.2.

6.15.3 Under the SIAC Rules 2016, the arbitral tribunal has the power to take appropriate measures, including issuing an award for sanctions or costs, if a party breaches the above provisions. 96 SIAC Rules 2016, Rule 39.4.

7.1.1 Under the domestic regime, the parties may agree on the remedies that the arbitral tribunal may grant. Where there is no agreement between the parties, the arbitral tribunal may award any remedy that the court could award if the dispute had been the subject of civil proceedings in that court. 97 AA, s 34.

7.1.2 Similarly, under the international regime, the arbitral tribunal may award any remedy or relief that could have been ordered by the High Court if the dispute was the subject of civil proceedings in the High Court. 98 IAA, s 12(5) (a).

7.1.3 This provision under the international regime is without prejudice to the application of article 28 of the Model Law, which allows the parties to choose the rules of law applicable to the substance of the dispute. Accordingly, where the parties choose to designate a particular legal system to govern the substantive issues of the dispute, that choice will impact upon any remedy that the arbitral tribunal is able to grant.

7.2.1 An award must be in writing, signed and state:

• the reasons on which it is based, unless the parties have agreed otherwise, or that it is an award on agreed terms;
• the date of the award; and
• the seat of the arbitration. 99 AA, s 38 and IAA, sch 1, art 31, which sets out the corresponding article of the Model Law.

7.2.2 After an award is made, signed copies should be delivered to the parties. Awards are final and binding on the parties and can only be varied, amended, corrected or reviewed in accordance with the procedures set out in the AA or the IAA. 100 AA, s 44(2) and IAA, s 19B(2).

7.2.3 Any challenge to awards must be made in accordance with the provisions of the AA or the IAA, depending on whether the arbitration is domestic or international. 101 AA, s 44(4) and IAA, s 19B(4).

7.3.1 Where the parties reach an agreement to settle their dispute, the arbitral tribunal must terminate the arbitral proceedings. 102 AA, s 37(1) and IAA, sch 1, art 30, which sets out the corresponding article of the Model Law. The parties can request that the arbitral tribunal records the settlement in the form of an award on agreed terms. 103 AA, s 37(1) and IAA, sch 1, art 30. However, the arbitral tribunal has the power to refuse that request. With leave of the relevant court, an award on agreed terms can be enforced in the same manner as a judgment or order of the court. 104 AA, s 37(3) and IAA, s 18.

7.4.1 Under both the domestic and international regimes, the arbitral tribunal has the power to award interest. 105 AA, s 35(1) and IAA, s 12(5)(b). Furthermore, if the award does not specify otherwise, the award shall carry interest from the date of the award as if it was a judgment debt. 106 AA, s 35(3) and IAA, s 20(3).

7.4.2 Under both regimes, the arbitral tribunal has the power to make orders regarding the costs of the arbitration. While the statutes themselves do not define what constitutes costs, arbitration rules sometimes specify what can be included. For instance, the SIAC Rules state that the term “costs of the arbitration” includes the arbitral tribunal’s fees and expenses, the administration fees and the costs of any expert appointed by the arbitral tribunal. 107 SIAC Rules, Rule35.2. Such definition, however, is not exhaustive and the arbitral tribunal generally has a broad discretion in determining the apportionment of costs among the parties.

7.5.1 A party may, within 30 days of the receipt of the award, or within a period otherwise agreed upon, request the correction of any error in computation, any clerical or typographical error or errors of a similar nature. 108 AA, s 43(1)(a) and IAA, sch 1, art 33(1)(a), which sets out the corresponding article of the Model Law.

7.5.2 Subject to the same time limitations, a party may, with the agreement of the other parties, request the arbitral tribunal to give an interpretation of a specific point or part of the award. 109 AA, s 43(1)(b) and IAA, sch 1, art 33(1)(b).

7.5.3 A party may, within 30 days of the receipt of the award, or within a period otherwise agreed upon, request the arbitral tribunal to make an additional award as to claims presented during the arbitral proceedings but omitted from the award. 110 AA, s 43(4) and IAA, sch 1, art 33(3), which sets out the corresponding article of the Model Law. The arbitral tribunal may make such an award if it considers the request justified. 111 AA, s 43(5) and IAA, sch 1, art 33(3), which sets out the corresponding article of the Model Law.

7.6.1 The AA makes no provision for termination of the arbitral proceedings.

7.6.2 Under the IAA, arbitral proceedings are terminated where:

• a party withdraws its claim (unless the respondent objects to termination);
• the parties agree; or
• continuing the arbitral proceedings has become impossible or unnecessary. 112 IAA, sch 1, art 32, which sets out the corresponding article of the Model Law.

8.1.1 Under the IAA, no court shall intervene in arbitral proceedings unless there is an express provision in the IAA permitting it to do so. 113 IAA, sch 1, art 5, which sets out the corresponding article of the Model Law. Such express provisions include the right to:

• appoint arbitrators (failing agreement of the parties); 114 IAA, sch 1, art 11(3), art 11(4), which sets out the corresponding article of the Model Law.
• decide on challenges to arbitrators; 115 IAA, sch 1, art 13(3), which sets out the corresponding article of the Model Law.
• decide on the termination of an arbitrator’s mandate for a failure or impossibility to act; 116 IAA, sch 1, art 14(1), which sets out the corresponding article of the Model Law.
• decide whether the arbitral tribunal has jurisdiction; 117 IAA, sch 1, art 16(3), which sets out the corresponding article of the Model Law. and
• set aside an award on certain grounds. 118 IAA, sch 1, art 34, which sets out the corresponding article of the Model Law and IAA, s 24.  

8.1.2 Under the AA, the court does not have the power to review an award, except where the AA expressly provides. 119 AA, s 47. However, the courts have a greater degree of involvement in domestic arbitral proceedings compared to the international regime.

8.1.3 Under the domestic regime, the courts have certain powers for the purposes of – and in relation to – arbitral proceedings, which can be summarised as:

• the same powers that the arbitral tribunal is granted under section 28 of the AA; 120 On which see section 5.2 above.
• the power to secure amounts in dispute;
• the power to prevent the dissipation of assets that would render any award ineffectual; and
• the power to award an interim injunction or any other interim measure. 121 AA, s 31

8.2.1 Where a party to an arbitration agreement has brought court proceedings in respect of any matter which is the subject of the agreement against any other party to that arbitration agreement, that other party may, after appearance and before delivering a pleading or taking any other step in the court proceedings, apply to that court to stay those proceedings, so far as they relate to that matter. 122 AA, s 6(1) and IAA, s 6(1).

8.2.2 In the domestic context, the court may stay the proceedings, so far as they relate to the matter, if it is satisfied that:

• there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and
• the applicant was, at the time when the court proceedings commenced, and still remains, ready and willing to do all things necessary for the proper conduct of the arbitration. 123 AA, s 6(1).

8.2.3 In the international context, a stricter approach is taken, as the court will make an order staying the court proceedings, so far as they relate to the matter, unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed. 124 IAA, s 6(2).

8.2.4 Under both regimes, after ordering a stay, the court may issue interim or supplementary orders in relation to property that is the subject matter of the dispute. 125 AA, s 6(3) and IAA, s 6(3). The court may also decide to discontinue court proceedings where no party has taken any further steps in those proceedings for a period of two years following the stay. 126 AA, s 6(4) and IAA, s 6(4).

8.3.1 Under the domestic regime, if an arbitration agreement purports to bar a party from making a claim because they have not taken a step in the commencement of arbitral proceedings within the time specified by the agreement, the court has the power to grant an extension of that time period. 127 AA, s 10(1).

8.3.2 The court will only exercise that power if it is satisfied that, in the circumstances of the case, undue hardship would otherwise be caused 128 AA, s 10(1). and that all arbitral avenues to gain an extension of time have been exhausted. 129 AA, s 10(2)(a).

8.3.3 The courts have no equivalent power under the international regime.

8.4.1 Under the international regime, it is not incompatible with an arbitration agreement for a court to grant an interim measure. 130 IAA, sch 1, art 9, which sets out the corresponding article of the Model Law.

8.4.2 The High Court, or a judge thereof, has express power to grant interim measures equivalent to those that the arbitral tribunal can make under section 12(1) of the IAA. However, those powers are subject to a number of restrictions to limit excessive court intervention. In particular, the High Court will not make an order where the arbitral tribunal or other nominated body has the power to act effectively. 131 IAA, s 12A (6).

8.4.3 The High Court can make interim orders irrespective of whether the seat of the arbitration is in the territory of Singapore. 132 IAA, s 12A(1).

8.4.4 Under both regimes, where the arbitral tribunal has made an order to which an order of the court relates, the order of the court ceases to have effect in whole or in part. 133 AA, s 31(2) and IAA, s 12A (7).

8.5.1 Under both regimes, the courts can compel a witness to appear before the arbitral tribunal to give evidence or produce specified documents. 134 AA, s 30 and IAA, s 13.

8.5.2 Under the international regime, the arbitral tribunal, or a party with its approval, may request assistance from a court in the taking of evidence. 135 IAA, sch 1, art 27, which sets out the corresponding article of the Model Law.

8.5.3 Importantly, under both regimes, all orders of an arbitral tribunal will be enforceable in the same manner as if they were made by the court, if the leave of the relevant court is obtained by the arbitral tribunal. 136 AA, s 28(4) and IAA, s 12(6).

9.1.1 Under the AA and the IAA, an application to set aside an award may not be made after three months have passed from the date that the party making the application received the award, 137 AA, s 48(2) and IAA, sch 1, art 34(3), which sets out the corresponding article of the Model Law. or, if a claim has been made requesting an additional award or requesting the correction or interpretation of an award, after three months from the date on which that request had been disposed of by the arbitral tribunal.

9.2.1 There are a limited number of grounds on which an award made under the IAA may be judicially challenged. 138 IAA, sch 1, art 34 and IAA, s 24. In summary, an award may be set aside where a party makes an application proving that:

• a party to the agreement was under some incapacity when the agreement was made;
• the arbitration agreement was not valid under the applicable law;
• the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings;
• the applicant was unable to present its case;
• the award deals with matters not falling within the terms of the submission to arbitration;
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
• the award has not yet become binding or has been set aside by a competent court;
• the subject matter of the dispute is not capable of settlement by arbitration under the applicable law;
• the recognition or enforcement of the award would be contrary to public policy;
• the making of the award was induced or affected by fraud or corruption; or
• a breach of the rules of natural justice occurred by which the rights of any party have been prejudiced.

9.2.2 It is important to note that the above provisions only apply if the seat of the arbitration was Singapore. 139 PT Garuda v Birgen Air [2002] 1 SLR 392.

9.2.3 Under the domestic regime, the grounds for having an award set aside are contained in section 48 of the AA. Those grounds are, in substance, the same as those listed under the IAA.

9.3.1 In addition to challenging an award on the grounds listed above, an award made under the domestic regime can be challenged via an appeal to the court on a question of law.

9.3.2 An appeal on a question of law requires the agreement of all parties or leave of the court. 140 AA, s 49(3). Any available arbitral process of appeal or review must first be exhausted. 141 AA, s 50(2)(a).

9.3.3 Furthermore, unless otherwise agreed by the parties, the court may determine any question of law arising in the course of proceedings that the court is satisfied substantially affects the rights of one or more of the parties. 142 AA, s 45. The procedure under the AA is subject to limitations, including the requirement that the application is made with the permission of the arbitral tribunal and the agreement of the parties. 143 AA, s 45(2)(a).

9.4.1 The court must not exercise its power to set aside an award for a mistake of law unless it is satisfied that it would be inappropriate to remit the matter to the arbitral tribunal for reconsideration. 144 AA, s 49(9).

10.1.1 Under the domestic regime, any award made by an arbitral tribunal may, with leave of the court, be enforced as if it were an order of that court. 145 AA, s 46(1). That principle applies irrespective of whether the seat of the arbitration is Singapore or elsewhere. 146 AA, s 46(3). The AA makes no reference to the grounds on which an award will not be enforced. However, it is likely that the refusal would be limited to circumstances where an award could be set aside.

10.2.1 Under the international regime, an award may, by leave of the High Court, be enforced as if it were a judgment or order of the High Court. 147 IAA, s 19. A foreign award may be enforced in the same manner and may be relied upon in any legal proceedings in Singapore. 148 IAA, s 29(2). Given that there is no appeal on the merits under the IAA, a refusal to enforce an award would only be made where the grounds for setting aside the award exist.

10.2.2 Section 31 of the IAA sets out the grounds that an applicant must demonstrate in order for the High Court to refuse enforcement of a foreign award. Those grounds are, in substance, the same as those in article 34 of the Model Law, which deals with the grounds on which an award can be set aside.

10.2.3 Furthermore, by virtue of Part III of the IAA, an award made in a Contracting State to the New York Convention can be enforced in the same way as if it was a judgment of a court in Singapore. To further ease the enforcement of Singaporean awards, the AA and the IAA provide that the Minister of Law of Singapore should appoint persons to authenticate and certify copies of Singaporean awards. 149 AA, s 59A and IAA, s 19C. Currently, the Minister of Law has designated the Chief Executive and the Deputy Chief Executive of Maxwell Chambers and the Registrar and Deputy Registrar of the SIAC to perform this task.