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Singapore’s courts are at the forefront of developing robust arbitration-related jurisprudence, keeping in line with the principle of minimal curial intervention and parties’ intention to arbitrate, while balancing other considerations such as public policy and comity. The Singapore International Arbitration Centre (SIAC), in its 2023 annual report released in April 2024, has also seen the second-highest caseload, with 663 new cases filed in 2023 by parties in 66 jurisdictions.

Recognition and enforcement

Singapore’s courts adopt a robust approach in upholding the validity of awards by rejecting unmeritorious attempts to resist enforcement. In Government of the Lao People’s Democratic Republic v Lao Holdings NV [2024], the Singapore International Commercial Court (SICC) held that the non-disclosure of a conditional fee arrangement between the arbitrating party and its counsel did not satisfy the high threshold required for setting aside an ICSID award.

The court considered it an abuse of process when a party who fails to raise the argument against the fee arrangement at a prior instance seeks to raise it again in the setting aside application. Further, the SICC held there was no obligation on the arbitrating party to disclose a fee arrangement when claiming an amount that was equal to or lower than the amount payable by the client.

The robust approach to enforcement can also be seen in how the court, in Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2024], imposed the statutory maximum of SGD100,000 (USD75,600) for committal against a non-paying debtor company, and an imprisonment term of one year for its managing director who knew of the company’s non-compliance.

But the situation there was particularly aggravating given the judgment creditor was deprived of benefit to its award for eight years.

Where anti-suit injunctions are concerned, the court adopts a generally pro-arbitration approach that favours upholding parties’ intent to arbitrate. In Gate Gourmet Korea Co Ltd and others v Asiana Airlines, Inc [2023], the court held the foreign tort proceedings were covered by the relevant arbitration clauses and granted anti-suit injunctions in favour of people who were not parties to the arbitration agreement, as the parties were joint tortfeasor in the enjoined proceedings.

The court considered the arbitration agreement covered tort actions arising from the underlying contract, and that a non-party to the arbitration agreement who is joined as a co-tortfeasor is entitled to the arbitration clause.

Jurisdiction of the tribunal

In [2024], the appellant sought to set aside a partial award rendered by the tribunal under ICC rules, based on a Singapore law-governed arbitration clause entered into in 2000. The appellant claimed that the subsequent agreement of parties in 2017 had superseded the prior arbitration agreement.

The 2017 extension agreement contained an arbitration agreement to settle all disputes at the Shanghai International Arbitration Centre, applying the law of the People’s Republic of China. The Court of Appeal rejected the argument that the tribunal was without jurisdiction because the 2017 extension agreement had superseded parties’ prior agreement in 2010.

The language of the 2017 extension agreement did not remove the prior jurisdictional foundation established in the 2000 agreement. For a subsequent agreement to affect an ongoing arbitration, there must be more explicit terms. On the facts of CNA v CNB, the court found that the 2017 extension agreement was entered into to fabricate a jurisdictional challenge in respect of the ICC arbitration.

Due process and natural justice

The Court of Appeal, in [2024], clarified the extent to which an arbitral tribunal is obliged to give reasons. The court observed that tribunal has a general duty to give reasons under article 31(2) of the Model Law, but it is not settled if a tribunal’s failure to give adequate reasons itself is a reason to set aside an award.

Further, the court observed that the extent of the tribunal’s duty to give reasons is also not settled. Unlike court proceedings where open justice dictates that the court sets out its reasons, which can then be reviewed by an appellate court, arbitration proceedings are confidential and not subject to the same level of scrutiny on the merits.

While the court did not pronounce conclusively on these unsettled issues, the court’s observation shows that tribunals are unlikely to be subject to the same standard to give reasons, and inadequate reasons must be so grave and glaring in order to demonstrate a breach of due process.

The Court of Appeal’s holding that the tribunal’s duty to give reasons is not held to a judicial standard in CVV v CWB was followed in DGE v DGF [2024]. Further, the court held, in DGE v DGF, that the tribunal is not required to explain every step of its evaluation of the evidence, and no further clarification is needed where it is “unambiguously clear” that the tribunal placed more weight on one particular evidence rather than other evidence.

In [2024], the Court of Appeal held that parties who have failed to challenge the conduct of the arbitral tribunal by raising its objection during arbitration cannot belatedly raise a breach of natural justice allegation in the setting aside application.

The appellant took issue with the presentation of certain evidence by the respondent’s counsel during the arbitration and argued that it was not afforded a reasonable and fair opportunity to address such evidence. Those objections were not raised in the proceedings before the arbitral tribunal. The court considered it opportunistic for the appellant to only raise such objections in the court proceedings.

The court also clarified that the principle of natural justice does not require the tribunal to give responses to all submissions made, and is only required to deal with the essential issues. Further, even if there is a breach of natural justice, the court affirmed its previous decision that the court would only intervene if there was actual or real prejudice occasioned by the breach.

In DBL v DBM, the court considered the final outcome of the arbitral proceedings would not have been different in any meaningful way, even if the tribunal had found in favour on one part of the appellant’s defence.

Finality of award

An award, as defined under section 2(1) of the Internation Arbitration Act, refers to one that is a “decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any order or direction made under section 28”.

Parties typically seek to enforce a final award, which is issued at the conclusion of arbitral proceedings to deal with all remaining issues. The question that may arise is whether a conditional award may also fall within the definition of a final award, as a conditional award is one where the tribunal makes an award on quantum that is conditional upon another event, such as whether the successful party needs to pay certain sums to a third party.

In [2024], the Court of Appeal had the opportunity to address this issue. The court held that a conditional award may constitute a final award if it disposes of all outstanding claims, and if an enforcement court is able to assess whether the conditions in the award have been satisfied.

Where the tribunal has decided on the substance of the dispute and the conditional award is res judicata (considered as final), and the arbitrator is functus officio (cannot re-examine), a conditional award may constitute a final award.

In the same judgment, the court also canvassed situations where a tribunal should expressly reserve its jurisdiction when it purports to issue a final award, or else the tribunal’s mandate would be terminated following a final award.

An implied reservation of jurisdiction would be inconsistent with the regime of the International Arbitration Act, which provides a limited statutory exception to the termination of the tribunal’s mandate following the issuance of a final award.

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