1 Legal framework
1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
Domestic arbitration in Singapore is governed by the Arbitration Act (Cap 10) and international arbitration is governed by the International Arbitration Act (Cap 143A).
An arbitration agreement must be in writing (Section 4(3) of the Arbitration Act; Section 2A(3) of the International Arbitration Act), and may be in the form of an arbitration clause in a contract or a separate agreement (Section 4(2) of the Arbitration Act; Section 2A(2) of the International Arbitration Act). The writing requirement is satisfied if the content of an arbitration agreement is recorded in any form, including through electronic communication, irrespective of whether the arbitration agreement or contract has been concluded orally, by conduct or by other means (Sections 4(4) and 4(5) of the Arbitration Act; Sections 2A(4) and 2A(5) of the International Arbitration Act). The arbitration agreement must express a clear and unequivocal intention to arbitrate.
1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
See question 1.1.
The Arbitration Act applies to any arbitration where the place of arbitration is Singapore and where Part II of the International Arbitration Act does not apply to that arbitration (Section 3 of the Arbitration Act).
Part II of the International Arbitration Act applies if the arbitration is ‘international' or if the parties have agreed in writing that Part II of the International Arbitration Act or the 1985 UNCITRAL Model Law on International Commercial Arbitration (without the 2006 amendments) applies (Section 5(1) of the International Arbitration Act).
An arbitration is ‘international' if:
- at least one of the parties to the arbitration agreement, at the time of conclusion of the agreement, has its place of business in any state other than Singapore; or
- one of the following places is situated outside the state in which the parties have their places of business:
- the place of arbitration if determined in, or pursuant to, the arbitration agreement; or
- any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or
- the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country (Section 5(2) of the International Arbitration Act).
1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
The Arbitration Act, which governs domestic arbitration, is based on the UNCITRAL Model Law. The Court of Appeal has observed, in the context of the Arbitration Act, that there is a clear legislative intent to align the Arbitration Act with the Model Law (LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd  1 SLR 125).
As to the International Arbitration Act, which governs international arbitrations, the Model Law – save for Chapter VIII – has the force of law in Singapore (Section 3 of the International Arbitration Act).
1.4 Are all provisions of the legislation in your jurisdiction mandatory?
The Arbitration Act and the International Arbitration Act do not expressly identify any of their provisions as being mandatory. However, according to Section 15A(1) of the International Arbitration Act, any rules of arbitration that the parties have agreed to adopt shall be given full effect, to the extent that this is not inconsistent with a provision of the Model Law or Part II of the International Arbitration Act, from which the parties cannot derogate.
Although there is no exhaustive list as to which provisions parties cannot derogate from, this would generally relate to matters that are fundamental to the proper conduct of arbitration. For example, the Singapore courts have pronounced that Article 12 of the Model Law relating to the independence or impartiality of arbitrators is mandatory (PT Central Investindo v Franciscus Wongso  4 SLR 978).
1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?
In June 2019, the Ministry of Law launched a public consultation to seek views on proposals to amend the International Arbitration Act, to enhance the current framework with a view to providing arbitration users with a broader suite of options to suit their unique purpose. The key proposed amendments include:
- providing for the default appointment of arbitrators in multi-party situations;
- allowing parties, by mutual agreement, to request the arbitrator(s) to decide on questions of jurisdiction at the preliminary award stage;
- empowering arbitral tribunals and the courts to support the enforcement of confidentiality obligations in arbitration; and
- allowing a party to appeal to the High Court on a question of law arising from an award made in the proceedings, provided that the parties have opted in to this mechanism.
Other proposed amendments include:
- whether parties should have the option to limit or waive, by agreement, the grounds on which an award may be set aside as set out in Section 24(b) of the International Arbitration Act and Article 34(2)(a) of the UNCITRAL Model Law, but not those set out in Section 24(a) of the International Arbitration Act and Article 34(2)(b) of the Model Law; and
- whether legislative amendments should be introduced to empower the court to make an order providing for costs of the arbitration following a successful application under Section 24 of the International Arbitration Act or Article 34(2) of the Model Law to set aside an award, whether wholly or in part.
The public consultation period is over and the proposed amendments by the Ministry of Law are still under review.
Another recent legislative change is the passing of the Intellectual Property (Dispute Resolution) Bill in August 2019, where consequential amendments were made to the International Arbitration Act, among other things. These amendments confirm that:
- IP rights disputes are arbitrable; and
- an award made in relation to an IP rights dispute (whether in Singapore or in a foreign jurisdiction) is not in conflict with the public policy of Singapore (see Sections 26(D) and 26(E) of the International Arbitration Act), regardless of whether the IP right is registered or subsists in Singapore (Section 26A(2) of the International Arbitration Act), or whether another court, tribunal, administrative or executive body, or any other entity, has jurisdiction to decide the dispute (Section 26B(3) of the International Arbitration Act).
1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
Yes, Singapore is a signatory to the New York Convention. Singapore acceded to the New York Convention on 21 August 1986, with the reservation that, on the basis of reciprocity, it will apply the convention only to the recognition and enforcement of foreign arbitral awards made in the territory of another contracting state to the convention.
1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?
Singapore ratified the International Convention on the Settlement of Investment Disputes (ICSID) on 14 October 1968. The Arbitration (International Investment Disputes) Act 1968 was enacted to implement the ICSID Convention.
Singapore is also party to a number of bilateral and multilateral investment treaties and free trade agreements which include arbitration as a mode of dispute settlement – for example:
- the Association of Southeast Asian Nations Comprehensive Investment Agreement, which entered into force in March 2012; and
- the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which entered into force on 30 December 2018.
2 Arbitrability and restrictions on arbitration
2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?
Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement will be determined by arbitration, unless it is contrary to public policy. The fact that any written law confers jurisdiction in respect of any matter on any court of law, but does not refer to the determination of that matter by arbitration, shall not of itself indicate that the matter is non-arbitrable (Section 11 of the International Arbitration Act). Non-arbitrability is one of the grounds for setting aside an award (Section 48(1)(b)(i) of the Arbitration Act; Article 34(2)(b) of the UNCITRAL Model Law), and for refusing recognition or enforcement (Section 31(4)(a) of the International Arbitration Act).
The matters which are non-arbitrable are not expressly set out in either the Arbitration Act or the International Arbitration Act. Matters which involve public interest issues could be considered to be non-arbitrable. These include matters pertaining to citizenship, marriage, statutory licences, the winding up of companies, bankruptcy and criminal liability. There have been various decisions by the Singapore courts on the question of arbitrability.
In Larsen Oil and Gas Pte Ltd v Petroprod Ltd  3 SLR 414, the Singapore Court of Appeal held that a distinction should be drawn between disputes involving an insolvent company that stem from its pre-insolvency rights and obligations, and those that arise only upon the onset of insolvency due to the operation of the insolvency regime. While the latter is non-arbitrable, the former is arbitrable (as long as the arbitration of the dispute does not affect the substantive rights of other creditors or undermine the underlying policy aims of the Singapore insolvency regime).
In Tomolugen Holdings Ltd v Silica Investors Ltd  1 SLR 373 and L Capital Jones Ltd v Maniach Pte Ltd  1 SLR 312, it was held that minority oppression claims are generally arbitrable, unless the particular facts raise public policy concerns.
See also question 1.5.
2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?
There are no restrictions on the choice of seat of arbitration. Party autonomy is given paramount importance and the parties are at liberty to choose any seat of arbitration.
3 Arbitration agreement
3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?
See question 1.1.
In any arbitral or legal proceedings, if any party asserts the existence of an arbitration agreement in a pleading, statement of case or any other document in circumstances where the assertion calls for a reply and the assertion is not denied by the other party, there is deemed to be an effective arbitration agreement between the parties (Section 4(6) of the Arbitration Act; Section 2A(6) of the International Arbitration Act).
3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
The doctrine of separability is captured under Section 21(2) of the Arbitration Act and Article 16(1) of the UNCITRAL Model Law. These provisions make clear that an arbitration clause which forms a part of a contract shall be treated as an agreement independent of the other terms of the contract. The invalidity of the underlying contract does not automatically invalidate the arbitration agreement contained therein. A decision by the tribunal that the contract is null and void shall not ipso jure invalidate the arbitration clause.
3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
Article 20 of the UNCITRAL Model Law provides that the parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration will be determined by the arbitral tribunal having regard to the circumstances of the case.
Pursuant to Article 22 of the Model Law, the parties are also free to agree on the language of the arbitration, failing which the arbitral tribunal is likewise free to determine the language of the proceedings.
4 Objections to jurisdiction
4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
A party must raise an objection to the jurisdiction of the tribunal no later than the submission of the statement of defence. A plea that the tribunal is exceeding the scope of its authority must be raised as soon as such a matter is raised during the proceedings. However, in either of the cases mentioned above, a tribunal may admit a later plea if it considers the delay justified (Article 16(2) of the UNCITRAL Model Law). Similar provisions may be found in Sections 21(4), (5), (6), and (7) of the Arbitration Act.
4.2 Can a tribunal rule on its own jurisdiction?
Yes, the arbitral tribunal can rule on its own jurisdiction, including on the existence or validity of an arbitration agreement. This doctrine of competence-competence is provided for under Article 16(1) of the UNCITRAL Model Law and Section 21(1) of the Arbitration Act.
4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
A party should typically raise its jurisdictional objections before the tribunal first, before it turns to the courts of the seat. It is possible for a party to decline to participate in the arbitration on the basis of jurisdictional objection and, after obtaining a jurisdictional ruling from the tribunal as a preliminary question, to apply to the Singapore courts to challenge jurisdiction.
A party may apply to the Singapore courts to challenge either positive or negative jurisdictional rulings by the tribunal. If the tribunal rules that it has jurisdiction as a preliminary question, or on a plea at any stage of the arbitral proceedings that it has no jurisdiction, any party may apply to the High Court within 30 days of receiving notice of the jurisdictional ruling to challenge the same (Section 21(9) of the Arbitration Act; Section 10(3) of the International Arbitration Act; Article 16(3) of the UNCITRAL Model Law).
However, a jurisdictional ruling can be challenged only if it does not deal with the merits of the case (AQZ v ARA  2 SLR 972). If the jurisdictional ruling also deals with the merits of the case and is an award within the meaning of the International Arbitration Act, recourse may then be had only to Article 34 of the Model Law and the provisions therein in relation to the setting aside of arbitral awards.
In reviewing the tribunal's jurisdictional rulings, the Singapore courts apply a de novo standard of review (PT First Media TBK v Astro Nusantara International BV  1 SLR 372; Sanum Investments Ltd v Government of the Lao People's Democratic Republic  5 SLR 536).
Even if a party does not apply to the Singapore courts to challenge a jurisdictional ruling pursuant to and within the timeframe stipulated under Article 16(3) of the Model Law and/or Section 10(3) of the International Arbitration Act, this does not preclude that party from subsequently relying on the tribunal's lack of jurisdiction to resist enforcement of the arbitral award on the merits of the case (PT First Media TBK v Astro Nusantara International BV  1 SLR 372). That party is also not precluded from seeking to set aside the arbitral award, provided that it has not participated in the arbitral proceedings (apart from challenging the tribunal's jurisdiction), and has not otherwise contributed to any wastage of costs or the incurring of any additional costs that could have prevented by the filing of a challenge under Article 16(3) of the Model Law (Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd  2 SLR 131).
5 The parties
5.1 Are there any restrictions on who can be a party to an arbitration agreement?
There are generally no restrictions on who can be a party to an arbitration agreement, so long as that party possesses the necessary legal capacity to enter into contracts.
5.2 Are the parties under any duties in relation to the arbitration?
If the underlying contract, arbitration agreement or applicable rules of arbitration specify any duties in relation to the arbitration, the parties will be bound by those duties as long as they are not inconsistent with a non-derogable provision of the UNCITRAL Model Law or the International Arbitration Act.
5.3 Are there any provisions of law which deal with multi-party disputes?
There are no specific provisions in the Arbitration Act and the International Arbitration Act dealing with multi-party disputes. However, the parties are free to agree upon rules of arbitration (eg, the Arbitration Rules of the Singapore International Arbitration Centre) which may contain such provisions.
See also question 1.5.
6 Applicable law issues
6.1 How is the law of the arbitration agreement determined in your jurisdiction?
The Singapore courts apply a three-step approach. The courts will first give effect to the express choice of the parties; absent which the courts will look at all relevant facts and circumstances of the case to determine whether there is an implied choice as to the law of the arbitration agreement. If no implied choice can be determined, the courts will then apply the law that has the closest and most real connection to the arbitration agreement (BNA v BNB  SGHC 142; BCY v BCZ  3 SLR 357). In this regard, the Singapore courts have held that, absent an express choice by the parties, where an arbitration agreement is a clause forming part of a main contract, it is reasonable to assume that the parties intended their entire relationship to be governed by the same system of law, and as such, the substantive governing law of the main contract is a strong indicator of the parties' implied choice as to the law governing the arbitration agreement. The choice of a seat of arbitration different from the governing law of the main contract is insufficient to displace this presumption, which should be displaced only if the consequences of choosing the governing law of the main contract as the law governing the arbitration agreement would negate the arbitration agreement and the parties' intentions to arbitrate their disputes.
6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
Yes, the arbitral tribunal is bound to decide the dispute in accordance with the law chosen by the parties, as applicable to the substance of the dispute (Section 32(1) of the Arbitration Act; Article 28 of the UNCITRAL Model Law). Any reference to the laws of a particular state exclude its conflict of laws rules, unless otherwise expressed by the parties (Article 28(1) of the Model Law).
If the parties have not decided on an applicable law, the law applicable to the substance of the dispute will be decided by the arbitral tribunal, in accordance with the conflict of laws rules that it considers applicable (Section 32(2) of the Arbitration Act; Article 28(2) of the Model Law). Under the Model Law, a tribunal may decide the dispute ex aequo et bono or as amiable compositeur only upon express authorisation by the parties (Article 28(3) of the Model Law).
7 Consolidation and third parties
7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
Consolidation of proceedings is permissible when the parties agree or when the rules of arbitration chosen by the parties permit consolidation (eg, Rule 8 of the Singapore International Arbitration Centre (SIAC) Arbitration Rules 2016).
The Arbitration Act specifically permits consolidation of proceedings on such terms as have been agreed by the parties; the parties may also agree upon concurrent hearings (Section 26(1) of the Arbitration Act). Unless the parties have agreed to confer the power on the tribunal to order consolidation or concurrent hearings, the tribunal has no such power (Section 26(2) of the Arbitration Act).
7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
The Arbitration Act and the International Arbitration Act are silent on the issue of joinder of parties. However, a joinder of parties may be ordered where:
- the party sought to be joined is found to be a contracting party to the arbitration agreement; or
- the parties to the arbitration agreement have consented to extend the agreement to a person which was not a party to the agreement, but which consents to be bound by it, with such consent forming an agreement to arbitrate (The ‘Titan Unity'  SGHCR 4; A co v D  SGHCR 9).
The Court of Appeal has observed that any forced joinder would impinge upon party autonomy and confidentiality (PT First Media TBK v Astro Nusantara International BV  1 SLR 372). Joinder of parties may also be permissible under the applicable rules of arbitration agreed upon by the parties (eg, Rule 7 of the SIAC Arbitration Rules 2016).
7.3 Does an arbitration agreement bind assignees or other third parties?
The general rule is that third parties are not bound by an arbitration agreement. In Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd  4 SLR 832, the Singapore High Court held that to permit enforcement of arbitral awards against a non-party to the arbitration agreement (which was also a non-party to the arbitration) would be anathema to the "internal logic of the consensual basis of an agreement to arbitrate" as stated by the Singapore Court of Appeal in PT First Media TBK v Astro Nusantara International BV  1 SLR 372. However, this general rule is subject to some exceptions.
For example, Section 9 of the Contracts (Rights of Third Parties) Act, read with Section 2 of the same act, provides that an arbitration agreement binds third parties if:
- the underlying contract expressly provides that the third party may enforce the terms of the contract in its own right; or
- the underlying contract purports to confer a benefit on the third party.
If, on a proper construction of the underlying contract, it appears that the parties did not intend the underlying contract to be enforceable by a third party, then the arbitration agreement will not bind that third party.
There are several other situations in which other non-signatory third parties may be bound by an arbitration agreement. Such situations may arise:
- by way of incorporation by reference of the arbitration;
- where the arbitration agreement was entered into by an agent;
- where the corporate veil is pierced on the basis of the alter ego principle; or
- where the claims alleged by the non-signatory against a party to the contract containing the arbitration clause are so intertwined with that contract that the doctrine of equitable estoppel applies to prevent the party to the contract from denying the non-signatory's right to participate in the arbitration (Jiang Haiying v Tan Lim Hui and Another Suit  3 SLR(R) 13)
In general, arbitration agreements are capable of being assigned. However, the effect of the assignment – in particular, whether the assignee is entitled to invoke the arbitration agreement, whether the assignee is obliged to perform the arbitration agreement or both – is a matter that has not been finally decided by the Singapore courts. Under the applicable common law principles pertaining to assignments, assignments are legally capable of transferring rights, but not obligations; and it is an open question whether the assignment of an arbitration agreement transfers only the right to invoke the arbitration agreement, but not the obligation to perform the arbitration agreement (Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA  5 SLR 455). Pending clarification from the Singapore courts, parties to an assignment wishing for the assignee to be bound by the arbitration agreement in the underlying contract would be well advised either to expressly provide for this in the terms of the assignment or to enter into an agreement to novate the arbitration agreement.
8 The tribunal
8.1 How is the tribunal appointed?
The parties are free to agree upon a procedure for appointing the tribunal (Section 13(2) of the Arbitration Act; Article 11(2) of the UNCITRAL Model Law). If the parties have chosen to conduct their arbitration under any particular arbitration rules, the procedure under the chosen rules will be followed for the appointment of the tribunal. When the agreed mechanism for appointment fails, a party may request the appointing authority to take measures to secure the necessary appointments (Section 13(5) of the Arbitration Act; Article 11(4) of the Model Law).
If the parties have not agreed upon a procedure for appointing the tribunal:
- in an arbitration with a sole arbitrator, the arbitrator shall be appointed upon the request of a party by the appointing authority; and
- in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators shall appoint the third.
If a party fails to appoint its arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made upon the request of a party by the appointing authority (Article 11(3) of the Model Law; Section 13(4) of the Arbitration Act)
For these purposes, the President of the Court of Arbitration of the Singapore International Arbitration Centre (SIAC) has been designated as the appointing authority (Section 13(8) of the Arbitration Act; Section 8(2) of the International Arbitration Act).
8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
If the number of arbitrators is not determined by the parties, there shall be a single arbitrator (Section 12(2) of the Arbitration Act; Section 9 of the International Arbitration Act).
Parties are generally free to agree on any qualifications required of arbitrators. No person shall be precluded by reason of nationality from acting as an arbitrator, unless otherwise agreed by the parties (Section 13(1) of the Arbitration Act; Article 11(1) of the UNCITRAL Model Law).
8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
An arbitrator may be challenged only if justifiable doubts exist as to his or her independence or impartiality, or if he or she does not possess the qualifications agreed to by the parties. A party may challenge an arbitrator it has appointed only for reasons of which it becomes aware after the appointment has been made (Section 14(3) and (4) of the Arbitration Act; Article 12 of the UNCITRAL Model Law).
In respect of an arbitrator's independence or impartiality, the test to be applied is an objective one: whether there are any circumstances that would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the tribunal was biased (Re Shankar Alan s/o Anant Kulkarni  1 SLR(R) 85; Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd  1 SLR(R) 483). Arbitral institutions and other institutions may also have their own requirements on the independence and/or impartiality of arbitrators (eg, the SIAC Code of Ethics for an Arbitrator (2015); the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (2015)).
The parties are free to agree on a procedure for challenging an arbitrator (Section 15(1) of the Arbitration Act; Article 13 of the Model Law). If there is no such agreement, any party which intends to challenge an arbitrator may send a written statement to the tribunal specifying the reasons for the challenge within 15 days of the constitution of the tribunal or after becoming aware of the circumstances for challenge. If the challenged arbitrator does not withdraw or the other party does not agree to the challenge, the arbitral tribunal shall decide on the challenge. If the challenge is rejected, the challenging party may apply to the Singapore courts within 30 days of receiving the notice of the decision rejecting the challenge to ask the Singapore courts to decide on the challenge (Section 15(4) of the Arbitration Act; Article 13(3) of the Model Law).
8.4 If a challenge is successful, how is the arbitrator replaced?
An arbitrator is replaced in accordance with the rules applicable to the appointment of the arbitrator being replaced (Article 15 of the UNCITRAL Model Law).
Under the Arbitration Act, the parties are free to agree on how the vacancy is to be filled (Section 18 of the Arbitration Act). Failing any such agreement, the procedure for appointment of arbitrators under Section 13 of the Arbitration Act shall apply (see question 8.1).
8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?
Both the Arbitration Act and the International Arbitration Act impose a duty on an arbitrator to disclose the existence of any circumstances that may give rise to justifiable doubts as to his or her impartiality or independence – this duty is a continuing one and persists throughout the course of the arbitration (Sections 14(1) and (2) of the Arbitration Act; Article 12(1) of the UNCITRAL Model Law).
The tribunal is obliged to act fairly and impartially, treat parties with equality and give each party a reasonable opportunity to present its case (Section 22 of the Arbitration Act; Article 18 of the Model Law). A breach of the rules of natural justice may be grounds for setting aside the arbitral award. For instance, a tribunal may be taken to have denied a party a reasonable opportunity to present its case if:
- it requires the party to respond to an element of the opposing party's case which has been advanced without reasonable prior notice;
- it curtails unreasonably a party's attempt to present the evidence and advance the propositions of law which were reasonably necessary to respond to an element of the opposing party's case; or
- the tribunal adopts a chain of reasoning in its award which had no nexus to the cases advanced by the parties and which it had not given the complaining party a reasonable opportunity to address. (JVL Agro Industries Ltd v Agritrade International Pte Ltd  4 SLR 768)
Arbitrators must also resolve all of the disputes submitted to them. A failure to do so may constitute grounds for setting aside or refusing to recognise the award (Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd  SGHC 80; AKN v ALC  3 SLR 488). Conversely, the arbitrators must not decide on matters that have not been submitted to them for determination.
Arbitrators are obliged to give reasons for their decision (Section 38(2) of the Arbitration Act; Article 31(2) of the Model Law) and not permitted to delegate its task of deciding on the issues in dispute to others.
Arbitrators are also subject to obligations of confidentiality. This is implied under Singapore law (Arbitration ActY v Arbitration ActZ  1 SLR 1093).
While there is an increasing recognition in international jurisprudence that a tribunal is under a duty to render an enforceable award, this is not expressly provided for in the Arbitration Act or the International Arbitration Act; nor have the Singapore courts had the opportunity to address this.
An arbitrator is not liable for:
- negligence in respect of anything done or omitted to be done in the capacity of an arbitrator; or
- any mistake of law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award (Section 20 of the Arbitration Act; Section 25 of the International Arbitration Act).
8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
(a) Procedure, including evidence?
The parties are free to agree upon the procedure to be followed in the conduct of arbitral proceedings (Section 23 of the Arbitration Act; Article 19 of the UNCITRAL Model Law). If there is no such agreement, the arbitral tribunal may conduct the arbitration in a manner it considers appropriate. This power includes the power to determine the admissibility, relevance, materiality and weight of any evidence (Section 23 of the Arbitration Act; Article 19 of the Model Law).
An arbitral tribunal has powers to make orders and give directions for security for costs, discovery of documents and interrogatories, and the giving of evidence by affidavit, and to administer oaths (Section 28 of the Arbitration Act; Section 12 of the International Arbitration Act). Unless otherwise agreed by the parties, the tribunal also has power to appoint experts (Section 27 of the Arbitration Act; Article 26 of the Model Law). Specifically, in respect of international arbitrations, the tribunal may request court assistance in taking evidence (Article 27 of the Model Law).
(b) Interim relief?
Article 17 of the Model Law and Section 12 of the International Arbitration Act provide that an arbitral tribunal has power to grant interim relief, including interim injunctions and orders for the preservation and interim custody of any property or evidence. Similar provisions can be found in Section 28 of the Arbitration Act.
(c) Parties which do not comply with its orders?
In general, a tribunal may make adverse costs orders against parties that do not comply with its orders. An aggrieved party may also apply to the Singapore courts for leave to enforce the arbitral tribunal's orders as if they were orders made by the court; if leave is given, judgment may be entered in terms of the order (Section 28(4) of the Arbitration Act; Section 12(6) of the International Arbitration Act).
Specifically, under Section 29(1) of the Arbitration Act, the parties may agree on the powers which may be exercised by the arbitral tribunal in the case of a party's failure to take any necessary action for the proper and expeditious conduct of the proceedings (including non-compliance with the tribunal's orders). Further, the tribunal may make an award dismissing the claim if it is satisfied that:
- there has been inordinate and inexcusable delay on the part of the claimant in pursuing its claims; and
- the delay has given rise or is likely to give rise to a substantial risk that a fair resolution of the issues in that claim is not possible, or has caused or is likely to cause serious prejudice to the respondent (Section 29(3) of the Arbitration Act).
Under both Section 29(2) of the Arbitration Act and Article 25 of the UNCITRAL Model Law, if, without showing sufficient cause:
- the claimant fails to communicate its statement of claim, the arbitral tribunal may terminate the proceedings;
- the respondent fails to communicate its statement of defence, the tribunal may continue the proceedings without treating such failure as an admission of the claimant's allegations; or
- any party fails to appear at a hearing or to produce documentary evidence, the tribunal may continue the proceedings and make the award on the evidence before it.
(d) Issuing partial final awards?
A tribunal may make more than one award at different points in time on different aspects of the matter, and may make an award relating to an issue affecting the whole claim or a part of the claim or counter-claim (Section 33 of the Arbitration Act; Section 19A of the International Arbitration Act). The definition of an ‘award' includes interim, interlocutory and partial awards, but excludes any orders or directions made under Section 12 of the International Arbitration Act or Section 28 of the Arbitration Act, as the case may be (Section 2 of the Arbitration Act; Section 2 of the International Arbitration Act). In respect of such orders or directions, see question 8.6(c).
(e) The remedies it can grant in a final award?
An arbitral tribunal may grant any remedy or relief that the High Court in Singapore could have ordered if the dispute had been the subject of civil proceedings in that court (Section 34 of the Arbitration Act; Section 12(5) of the International Arbitration Act).
The tribunal may award interest on a simple or compound basis, from such date and at such rate as the tribunal considers appropriate, on the whole or any part of any sum awarded by the tribunal or any sum which is in issue in the proceedings, or costs awarded in the proceedings. Unless the award otherwise directs, the sum awarded shall carry interest from the date of the award and at the same rate as a judgment debt (being simple interest at a rate of 5.33% per annum) (Section 35 of the Arbitration Act; Section 20 of the International Arbitration Act).
8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
See question 8.6(c).
8.8 Are arbitrators immune from liability?
An arbitrator shall not be liable for negligence in respect of any acts or omissions in the capacity of an arbitrator, or any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award (Section 20 of the Arbitration Act; Section 25 of the International Arbitration Act).
9 The role of the court during an arbitration
9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
Yes. A party to an arbitration agreement, or any person claiming through or under such party, may make an application to the Singapore courts to stay the proceedings in respect of any matter which is the subject matter of the arbitration agreement between the parties.
Such an application may be made at any time after appearance and before delivering any pleading or taking any other step in the proceedings (Sections 6(1) and 6(5) of the Arbitration Act; Sections 6(1) and 6(5) of the International Arbitration Act). However, where a party takes steps in the proceedings, but with the express reservation that an application for the stay of those proceedings will be made on the basis of an arbitration agreement, the right to a stay will be preserved. Requests for an extension of time to file a pleading or for further particulars of the other party's pleading, the filing affidavits in opposition to the continuation of an interim injunction and the commencement of an action for a mandatory order for the delivery up of goods have been held not to amount to a step in the proceedings (Chong Long Hak Kee Construction Trading Co v IEC Global Pte Ltd  4 SLR(R) 499).
A party applying for a stay of proceedings must show that:
- there is an arbitration agreement between the parties to the court proceedings;
- the dispute in the court proceedings (or any part thereof) falls within the scope of the arbitration agreement; and
- the arbitration agreement is not null and void, inoperative or incapable of being performed (Tomolugen Holdings Ltd v Silica Investors Ltd  1 SLR 373; Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  2 SLR 362).
Under the International Arbitration Act, the court to which an application is made shall make an order staying the proceedings insofar as they relate to the subject matter of the arbitration agreement, unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed (Section 6(2) of the International Arbitration Act).
An arbitration agreement is null and void only if it is devoid of legal effect (Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  2 SLR 362; Malini Ventura v Knight Capital Pte Ltd  5 SLR 707), or if there is simply no binding arbitration agreement between the parties (KVC Rice Intertrade Co Ltd v Asian Mineral Resources Pte Ltd  4 SLR 182) – for example, if it is tainted by fraud, unconscionability, illegality or mistake, or otherwise has no contractual effect under the applicable general law of contract.
An arbitration agreement is deemed to be incapable of being performed when there is an obstacle which cannot be overcome which prevents the arbitration from being set in motion. Situations where an arbitration agreement may be considered as being incapable of being performed include where:
- there is contradictory language in the main contract indicating that the parties intended to litigate;
- a specific arbitrator chosen by the parties in the agreement is deceased or unavailable;
- the place of arbitration is no longer available due to political upheaval; or
- the arbitration agreement is too vague, confusing or contradictory (Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  2 SLR 362; Heartronics Corporation v EPI Life Pte Ltd and Others  SGHCR 17).
In addition, under the Arbitration Act, the court has the discretion to grant a stay 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 proceedings were commenced, and remains ready and willing to do all things necessary for the proper conduct of the arbitration (Section 6 of the Arbitration Act).
9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
Under both the Arbitration Act and the International Arbitration Act in respect of domestic and international arbitrations, the Singapore courts have the power to:
- order a stay of court proceedings in favour of arbitration (see question 9.1) and make various orders ancillary to the stay (Sections 6(3), 6(4), and 7 of the Arbitration Act; Sections 6(3), 6(4) and 7 of the International Arbitration Act);
- review the tribunal's jurisdictional rulings (see question 4.3);
- hear challenges against arbitrators (see question 8.3);
- order interim relief (Section 31 read with Section 28 of the Arbitration Act; Section 12A read with Section 12 of the International Arbitration Act);
- enforce orders or directions made by the tribunal (see question 8.6(c));
- hear applications to set aside or to enforce arbitral awards, as the case may be (see questions 12 to 14); and
- order that a subpoena to testify or to produce documents be issued to compel the attendance before an arbitral tribunal of a witness, wherever he or she may be in Singapore (Section 30 of the Arbitration Act; Section 13 of the International Arbitration Act)
Specifically, under the International Arbitration Act in respect of international arbitrations, the Singapore courts have the power to order interim relief in aid of international arbitrations seated outside of Singapore (Section 12A(1)(b) of the International Arbitration Act).
9.3 Can the parties exclude the court's powers by agreement?
Neither the Arbitration Act nor the International Arbitration Act has provisions expressly permitting parties to exclude the powers of the court by agreement, save for Article 49(2) of the Arbitration Act, which provides that the parties may agree to exclude the jurisdiction of the Court to hear appeals on questions of law arising out of an arbitral award.
10.1 How will the tribunal approach the issue of costs?
The tribunal has wide discretion to award costs, unless otherwise agreed between the parties. The general practice in this regard is that ‘costs follow the event' (ie, costs are paid by the losing party). There is generally no limit on the quantum of costs that may be awarded. However, if the overall successful party has not succeeded on all issues raised, this may be taken into account to reduce the costs awarded to reflect the relative measure of success.
Section 21 of the International Arbitration Act provides that costs in an international arbitration may be taxed by the Registrar of the Singapore International Arbitration Centre (SIAC); while Section 39 of the Arbitration Act provides that costs in a domestic arbitration may be taxed by the Registrar of the Supreme Court of Singapore. For domestic arbitrations, it is presumed that the principles applicable to taxation of costs in Singapore court proceedings will be applied. However, for international arbitrations, neither the International Arbitration Act nor the arbitration rules of the SIAC provide any guidance as to the principles to be applied.
10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
For an arbitration governed by the Arbitration Act, any provision in the arbitration agreement to the effect that the parties or any party shall, in any event, pay its own costs of the reference or award or any part thereof shall be void (Section 39(2) of the Arbitration Act). However, such a provision will not be void if it is part of an agreement to submit to arbitration a dispute which arose before such agreement was made (Section 39(3) of the Arbitration Act).
There is no equivalent provision for international arbitrations under the International Arbitration Act.
11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?
Third-party funding is permitted for international arbitrations seated in Singapore and court and mediation proceedings arising out of, or in any way connected with, the international arbitration, funded by a qualifying third-party funder. The Civil Law (Amendment) Act, 2017 (passed on 10 January 2017) clarifies that the common law torts of maintenance and champerty have been abolished in relation to international arbitration and related court and mediation proceedings. The Civil Law (Third-Party Funding) Regulations came into force on 1 March 2017 and provide that a qualifying third-party funder must satisfy and continue to satisfy the following criteria:
- It carries on the principal business, in Singapore or elsewhere, of the funding of the costs of dispute resolution proceedings; and
- It has a paid-up share capital of not less than S$5 million or not less than S$5 million in managed assets.
Amendments to the Legal Profession Act and Legal Profession (Professional Conduct) Rules clarify that legal practitioners may introduce or refer funders to their clients, and can advise their clients in relation to the third-party funding contract (as long as they receive no direct or indirect financial benefit from the referral); but also that legal practitioners are under a duty to disclose to the court or tribunal, as the case may be, the existence of third-party funding and the identity of the third-party funder.
12.1 What procedural and substantive requirements must be met by an award?
The award must be in writing and be signed by the sole arbitrator or by a majority of the arbitrators (provided that the reason for any omitted signature is stated). The award must state the reasons upon which it is based, unless the parties have agreed otherwise or the award is made by consent of the parties. The award must mention the date of the award and the place of arbitration; the award is deemed to have been made at the place of the arbitration. After the award has been made, a signed copy of the award must be delivered to each party (Section 38 of the Arbitration Act; Article 31 of the UNCITRAL Model Law).
12.2 Must the award be produced within a certain timeframe?
There is no time limit prescribed for rendering an award. Specifically, under Section 36 of the Arbitration Act, the court has the power to extend the time for making an award for such period and on such terms as it thinks fit when the time is limited by the arbitration agreement. There is no equivalent power under the International Arbitration Act.
In this regard, the Singapore courts have held that an undue delay in the making of an award in and of itself does not suggest that the arbitrator or tribunal is partial or lacks independence, or constitute a breach of natural justice, and is not a basis on which the award may be set aside (PT Central Investindo v Franciscus Wongso  4 SLR 978; Coal & Oil Co LLC v GHCL Ltd  3 SLR 154)
13 Enforcement of awards
13.1 Are awards enforced in your jurisdiction? Under what procedure?
An award (regardless of whether it is made in a domestic arbitration or in an international arbitration seated within or outside of Singapore) may be enforced by leave of the High Court, in the same manner as a judgment or an order to that effect. The application for leave to enforce the award must be made within six years of the making of the award (Section 6(1)(c) of the Limitation Act, Cap 163). When leave to enforce is granted, a judgment may be entered in terms of the award (Section 46 of the Arbitration Act; Sections 19 and 29 of the International Arbitration Act).
Specifically, in respect of awards made in international arbitrations (whether seated within or outside of Singapore), the party seeking to enforce the award must produce to the court:
- the duly authenticated original award or a duly certified copy thereof;
- the original arbitration agreement under which the award purports to have been made or a duly certified copy thereof; and
- where the award or agreement is in a foreign language, a translation in the English language, duly certified in English as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made (Section 30 of the International Arbitration Act; Article 35 of the UNCITRAL Model Law; Order 69A Rule 6 of the Rules of Court).
14 Grounds for challenging an award
14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
An award (whether made in a domestic or international arbitration seated in Singapore) may be set aside on the following grounds set out in Section 48 of the Arbitration Act or Article 34(2) of the UNCITRAL Model Law:
- A party to the arbitration agreement was under some incapacity; or the agreement was not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of Singapore;
- The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case;
- The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside;
- The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement is in conflict with a non-derogable provision of the Model Law, the Arbitration Act or International Arbitration Act or, failing such agreement, was not in accordance with the Model Law, the Arbitration Act or the International Arbitration Act;
- The subject matter of the dispute is not capable of settlement by arbitration under the law of Singapore; or
- The award conflicts with the public policy of Singapore.
In addition, Section 48 of the Arbitration Act and Section 24 of the International Arbitration Act provide the following grounds on which an award may be set aside:
- The making of the award was induced or affected by fraud or corruption; or
- A breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.
Additionally, for domestic arbitrations, under Section 49 of the Arbitration Act, a party may appeal an award on a question of law arising out of the award (Section 49 of the Arbitration Act). A question of law does not mean an error of law; a question of law is rather a point of law in controversy which must be resolved after opposing views and arguments have been considered. If the point of law is settled and not something novel, and it is contended that the arbitrator made an error in the application of the law, there lies no appeal against that error, as there is no question of law which calls for an opinion of the court (Prestige Marine Services Pte Ltd v Marubeni International Petroleum (S) Pte Ltd  1 SLR 917).
There is currently no equivalent provision in the International Arbitration Act. However, see question 1.5.
14.2 Are there are any time limits and/or other requirements to bring a challenge?
An application to set aside an award (whether made in a domestic or international arbitration) must be made within three months of the date of receipt of the award (Section 48(2) of the Arbitration Act; Article 34(3) of the UNCITRAL Model Law). An application to appeal an award made in a domestic arbitration on a point of law under Section 49 of the Arbitration Act must be made within 28 days of the date of the award.
In addition, any challenge to either the award itself or enforcement of the award must be brought within 14 days of leave being granted to enforce the award (Order 69A, Rule 6(4) and Order 69, Rule 14 of the Rules of Court).
14.3 Are parties permitted to exclude any rights of challenge or appeal?
Yes, this is permitted, provided that the parties' intention to do so is clear and unequivocal. Particularly for domestic arbitrations, the right of appeal on a question of law can be excluded (Section 49(2) of the Arbitration Act).
See also question 1.5.
15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
The Arbitration Act and the International Arbitration Act do not explicitly impose a duty of confidentiality. However, a party may apply to have hearings otherwise than in open court and for other measures to preserve the confidentiality of the proceedings in relation to arbitration (Sections 56 and 57 of the Arbitration Act; Sections 22 and 23 of the International Arbitration Act).
An implied obligation of confidentiality in arbitrations has been recognised by the Singapore courts (Arbitration ActY v Arbitration ActZ  1 SLR 1093; Myanma Yaung Chi Oo Co Ltd v Win Win Nu  2 SLR(R) 547).
15.2 Are there any exceptions to confidentiality?
The scope and nature of the exceptions to the obligation of confidentiality have not been exhaustively and precisely identified by the Singapore courts. Currently, the exceptions to the obligation of confidentiality that have been recognised include the following (Myanma Yaung Chi Oo Co Ltd v Win Win Nu  2 SLR(R) 547; Arbitration ActY v Arbitration ActZ  1 SLR 1093):
- Consent (whether express or implied) has been obtained from the party which originally produced the material;
- An order or leave of the court has been obtained;
- Disclosure is reasonably necessary for the protection of the legitimate interests of one party; or
- The public interest or the interests of justice require disclosure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.