Art 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) provides that if a tribunal issues a preliminary ruling that it has jurisdiction, a respondent may appeal the tribunal’s ruling to the relevant court within 30 days. Can a party who loses a jurisdictional challenge still set aside the final award for…

Part I For some time practitioners would have seen news alerts headlining that third-party funding is now permitted in Singapore and Hong Kong for arbitration and arbitration-related court proceedings.  Digging a little deeper beyond the shiny new labels, this article highlights three practical “pitfalls’ which practitioners would have to be mindful of when dealing with…

Introduction On 10 October 2018, the Singapore Court of Appeal (“Court of Appeal”) issued its decision on the case of Marty Ltd v Hualon Corporation (Malaysia) Sdn Bhd [2018] SGCA 63 (“Marty v Hualon“) which concerned a dispute over the repudiation of an arbitration agreement. While the case contained a number of interesting issues, this…

Independence and impartiality of arbitrators are the hallmarks of arbitration. The amendments to the Arbitration and Conciliation Act 1996 (“Act”) in 2015, which adopted the international best practices from the International Bar Association Guidelines on Conflict of Interest (“IBA Guidelines”), aimed to bolster not only the neutrality of arbitrators, but also the perception of neutrality….

Joint venture agreements increasingly provide for arbitration, allowing the JV partners to resolve matters privately.  Where a director of a JV company (or JV partners) is sued in his capacity as a director in relation to matters arising out of the joint venture agreement, can he also rely on the arbitration agreement in the joint…

A mandatory legal provision is one that a party has no choice but to obey, whereas a directory provision is one which the party is encouraged to obey. In other words, a mandatory provision must be observed, disobedience of which would lead to a nullification of the legal act, whereas a directory provision is optional….

It is not uncommon for practitioners acting for claimants in an arbitration to encounter a respondent who chooses to boycott the arbitral process.  In cases involving such ‘non-participating’ respondents, what are the rights and obligations of each party? Specifically, insofar as Model law jurisdictions are concerned, if a Tribunal decides on jurisdiction as a preliminary…

Introduction In many commercial transactions, there will be multiple agreements among various parties, and those agreements often contain “entire agreement” clauses to ensure that the parties are bound only by the terms of the agreement(s) they sign. However, such a clause may be invoked and interpreted in a way surprising to the parties, especially in…

Article 16(3) of the Model Law provides in relevant part that, “if the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request … the court … to decide the matter”. One question that arises is, to the extent issues of evidence arise, what rules of evidence should the court…

The tech revolution has been underway for some time now but has only recently come to the forefront of the general public’s consciousness from the explosion in attention to bitcoin. The progress of technology has allowed it to creep into the domain of alternative dispute resolution. There is now online mediation, online arbitration, and even…

The potential ramifications on a party’s right to challenge an award made in a consolidated proceeding should inform a party’s decision to adopt institutional rules or national arbitration laws that allow for consolidation. Ensuring as a preliminary matter that the mechanism for consolidation and any waiver provisions in the institutional rules or national arbitration laws…

There have been a number of occasions in Indonesia when domestic court proceedings and foreign arbitration proceedings of the same matter were carried out concurrently. In some of those occasions, the arbitral tribunal, upon the claimant’s request, issued an anti-suit injunction in respect of the Indonesian court proceedings brought by the respondent. In Astro Nusantara…

2017 was a busy year for international arbitration. Taking a walk down memory lane, we saw new players and new industries entering the game, institutions adopting new rules, and we have some new challenges to tackle. This note summarizes some highlights and low lights in international arbitration during 2017 from across the globe. Happy Holidays…

There have been a number of recent developments in Chinese judicial practice. These include the first known enforcement of foreign court judgments in China on the basis of reciprocity, as well as China’s signing of the Hague Convention on Choice of Court Agreements (“Hague Convention”). While these developments are welcome, they are unlikely to ignite…

Introduction Section 10 of the Singapore International Arbitration Act (“IAA”), allows a party to challenge an arbitral tribunal’s determination of its jurisdiction. Section 10(7) further provides that, where the Court rules under section 10 that the tribunal has no jurisdiction, it may make an order as to the costs of the arbitral proceedings. I was…

In a 172-page judgment, the Singapore High Court in Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Limited [2017] SGHC 195 (Lesotho), set aside an investor-state arbitration award rendered against Lesotho after an extensive review of international investment jurisprudence. This is the second investor-state matter that has confronted the Singapore courts following Sanum Investments Ltd…

India has long been regarded as an unappealing centre for arbitration – be it as the seat of arbitration or as the place of final enforcement of the arbitral award. Indian judiciary is often quoted to be over interfering in matters of arbitration and enforcement. If fact could replace fiction, in the last decade, Shylock…

In April 2010, Professor Jan Paulsson delivered his inaugural lecture as holder of the Michael R. Klein Distinguished Scholar Chair at the University of Miami School of Law where he expressed the view that the practice of unilateral appointments (or nominations) of arbitrators is a moral hazard which should be removed. This lecture sparked debate…

The ability of a party to obtain urgent interim relief is central to the efficacy of any method of dispute resolution. In case of disputes that are subject to an arbitration agreement, until recently parties had only two options: either approach national courts for interim relief in support of the arbitration, or wait for the…

In K.V.C. Rice Intertrade Co Ltd v Asian Mineral Resources Pte Ltd [2017] SGHC 32, the Singapore High Court enforced so-called “bare” arbitration clauses, i.e., clauses that specify neither the place of arbitration nor the means of appointing arbitrators. In Singapore, the President of the SIAC Court of Arbitration is designated as the statutory appointing…

In TMT Co Ltd v The Royal Bank of Scotland plc [2017] SGHC 21, the Singapore High Court took the view that an arbitration clause did not meet the prima facie standard to warrant a stay of court proceedings because it designated an inapplicable arbitral institution. Commentators have suggested that the decision is “surprising” and…

Arbitration is a creature of contract, and hence one may say that any claim or dispute submitted to arbitration must relate to a contract where the relevant arbitration clause is laid down. In contrast, tort claims do not normally arise from a prior contractual relationship. Broad arbitration clauses classically say that “any and all disputes…

Introduction On 12 July 2016, a five-member arbitral tribunal (the Tribunal) constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) issued its long-awaited award on the merits in an arbitration brought by the Philippines against China. The tribunal’s jurisdiction is derived from UNCLOS; all State parties to UNCLOS…

In a series of cases since 2008, the Singapore Court of Appeal (Singapore’s highest court) has been articulating the contours of a contextual approach to contractual interpretation. Under this contextual approach, the Singapore courts “must ascertain, based on all the relevant objective evidence, the intention of the parties at the time they entered into the…

A foundational principle of international commercial arbitration is that of party autonomy. Article 19(1) of the UNCITRAL Model Law reflects this and states: “Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.” Notwithstanding the parties’ broad freedom…

Singapore’s highest court, the Court of Appeal (the “SGCA”), has held in Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] 1 SLR 373, that: • The prima facie standard applies for obtaining a stay of court proceedings in favour of arbitration under the International Arbitration Act (Cap 143A, 2002 Rev…

Since 2011, Myanmar has seen a renewed effort at reforming its political, social and economic landscape. As part of the reforms, on 15 July 2013, Myanmar formally acceded to the New York Convention 1958. Myanmar had however not enacted local legislation or revised its archaic Arbitration Act of 1944 to give effect to its international…

The legal consequences of a breach of a contract tainted by corruption are better understood through a hypothetical: Contractor A of country X enters into negotiations with B, the Minister of Economics and Development of country Y, with a view to concluding an agreement on a large infrastructure project (“the Contract”). B requests the payment…

“ISDS” (short for “investor-state dispute settlement”) was a less-known acronym some years back. Now, it has been given an increasingly bad name, no doubt fuelled by Vattenfall’s claim against Germany following the shutting down of its nuclear plants after the 2011 Fukushima disaster, tobacco giant Philip Morris’ high profile claims arising from Australia’s plain-labelling laws,…

Longlide, Shenhua Coal and the issue ahead In a case regarded by many as a “milestone” for arbitration in China, Longlide Packing and Printing Co. Ltd. v. BP Agnati S.r.l (hereinafter “Longlide”) (Reply of the Supreme People’s Court to the Request for Instructions on Application for Confirming the Validity of an Arbitration Agreement in the…

The Sixth Circuit Court of Appeals recently ordered a fund management committee (‘SBC’) to arbitrate its dispute with Navistar International (‘Navistar’) – at Navistar’s request – despite the fact that Navistar refused SBC’s own request for arbitration, ignored SBC’s formal notice of arbitration, and then litigated SBC’s claim in court for over a year (Art…

Most institutional rules share a common procedural framework for arbitral proceedings—the origins of which are traceable to the first set of ICC Rules in 1922. This skeletal framework broadly describes the lifecycle of the arbitration, and provides for the order of pleadings, constitution of a tribunal, conduct of proceedings, and making of the award, in…

SIAC ended speculation as to who would succeed Dr Michael Pryles as the next President of the SIAC Court of Arbitration by announcing, at the SIAC Annual Appreciation Event on Monday 2 March 2015, the appointment of Mr Gary Born of Wilmer Cutler Pickering Hale and Dorr LLP, with effect from 1 April 2015. At…

and Luis Miguel Velarde Saffer Last December, the U.S. Supreme Court heard oral argument on BG Group v Argentina – an appeal from a controversial and much-criticized decision of the D.C. Circuit Court of Appeals. The case arose out of emergency actions taken by the Republic of Argentina in late 2001 in the wake of…

In International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd [2012] SGHC 226 (per Chan Seng Onn J) (“International Research”), the Singapore High Court addressed the issue of whether an arbitration clause contained in one contract between two parties binds a third party who subsequently enters into a supplemental agreement with the original…

In Astro Nusantara International BV v PT Ayunda Prima Mitra [2012] SGHC 212, the Singapore High Court set out the available recourse against an international arbitration award made in Singapore. This case has significant implications for Singapore as a seat of arbitration, and this note contrasts the position between Singapore and Hong Kong against the…

In Shanghai Construction (Group) General Co. Singapore Branch v Tan Poo Seng [2012] SGHCR 10, the Singapore High Court granted a temporary stay of proceedings in exercise of its inherent jurisdiction. The stay was granted on the ground that there was an arbitration which was intended to take place and the outcome of that arbitration…

Confidentiality is often a distinguishing reason why users choose arbitration over court litigation. In a 2010 International Arbitration Survey on Choices in International Arbitration, 62% of respondents said confidentiality was very important to them. Last month, a contributor to this blog observed anecdotally that in-house counsel want confidentiality especially in industries in which a dispute…

A party who wishes to circumvent an arbitration agreement may sometimes proceed to obtain default judgment from a friendly court and then seek to enforce that judgment, under the common law, as a debt in the courts of the country where the counterparty is located. A recent Singapore decision, Giant Light Metal Technology (Kunshan) Co…

In a recent award that arguably represents a high-water mark for the operation of an umbrella clause in ICSID jurisprudence thus far, a tribunal comprising Stanimir A. Alexandrov (as President), Donald Francis Donovan and Pablo Garcia Mexia held Paraguay liable to SGS Société Générale de Surveillance S.A. (“SGS”) for failing to pay for services rendered….

Following a previous round of amendments in 2009 that came into effect on 1 January 2010, the Singapore Ministry of Law published further proposed amendments to Singapore’s International Arbitration Act (“the IAA”) on 8 March 2012. The proposals took into account views garnered from a public consultation process. There are four key proposals in this…

If it isn’t pleaded, you can’t consider it. That in a nutshell appears to be the holding established recently by the Singapore High Court in Kempinski Hotels SA v PT Prima International Development [2011] SGHC 171 (“Kempinski”). That case saw the setting aside of three related international arbitration awards on the basis that the tribunal…

At the Herbert Smith Singapore Management University Asian Arbitration Lecture delivered by Michael Hwang SC on 4 August 2011, Hwang SC discussed incisively issues concerning the enforcement of arbitral awards concerning contracts allegedly tainted by corruption. Less than three weeks after that seminal lecture, the Singapore Court of Appeal in AJU v AJT [2011] SGCA…

In Galsworthy Ltd of the Republic of Liberia v Glory of Wealth Shipping Pte Ltd [2010] SGHC 304 (“Galsworthy”), the Singapore High Court held that a losing party to an arbitration seeking to challenge an arbitral award had the “alternative and not cumulative options” of applying to set aside the award, or, applying to set…

The Singapore Court of Appeal issued a decision recently articulating a principled framework for the arbitrability of insolvency-related claims. It provides useful guidance on when an insolvency-related claim would be considered non-arbitrable under Singapore law. In seeking to strike the delicate balance between its robust pro-arbitration stance and its insolvency regime, the Court’s underlying philosophy…

Will a court injunct arbitral proceedings if parties, before an arbitration hearing, allegedly reach a settlement agreement and a dispute subsequently arises over the existence of such an agreement? Is the tribunal functus? Recently, the Singapore High Court in Doshion Ltd v Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46 (“Doshion”) rightly held that…