SINGAPORE: An Introduction to Dispute Resolution: Arbitration: The Elite

International Arbitration in Singapore 

In 2023, the Singapore Courts handed down a number of landmark decisions that clarified and/or developed the law in relation to international arbitration. These developments, and the takeaways for users of international arbitration, are summarised below.

The law applicable to subject matter arbitrability 

In Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1, the Singapore Court of Appeal heard an appeal from the Singapore High Court’s decision to grant an anti-suit injunction restraining the appellant from pursuing proceedings before a foreign statutory tribunal in breach of an arbitration agreement.

The appellant argued, among other things, that the disputes in question were not arbitrable because, under the laws of the foreign jurisdiction, those disputes fell within the exclusive jurisdiction of the statutory tribunal. An issue arose as to what the applicable law was that governed the question of arbitrability.

The Court of Appeal held that:

(a) the arbitrability of a dispute is, in the first instance, determined by the law that governs the arbitration agreement. If the governing law is a foreign law (ie, not Singapore law) and that law provides that the subject matter of the dispute cannot be arbitrated, the Singapore courts will not allow the arbitration to proceed because it would be contrary to public policy; and

(b) even if the dispute is arbitrable under the law of the arbitration agreement (if foreign law), where Singapore law is the law of the seat of arbitration and the dispute is not arbitrable under Singapore law, the arbitration cannot proceed because it is contrary to public policy.

The Court of Appeal held on the facts that Singapore law was the law of the arbitration agreement, that the disputes in question were arbitrable under Singapore law, and that the appeal should thus be dismissed and the anti-suit injunction maintained.

Parties discussing and negotiating arbitration clauses and agreements should have regard to the following points arising from Anupam Mittal.

First, where parties are considering agreeing to arbitration seated in Singapore, the question of subject matter arbitrability will be considered both from the perspective of the law of the seat and the law of the arbitration agreement. The parties should thus consider early what the law of the arbitration agreement is and satisfy themselves that the disputes that fall within the scope of the arbitration agreement are arbitrable under that law as well as Singapore law (if different).

Second, to reduce or mitigate the risk of uncertainty, the parties may wish to expressly agree on and provide for the applicable law of the arbitration agreement.

In this connection, the Court of Appeal also noted in Anupam Mittal that in the absence of an express or implied choice of law, the governing law of the underlying contract is a “strong indicator of the governing law of the arbitration agreement” although this indication may be displaced by the facts of the case.

Third, the parties should, when discussing and negotiating arbitration clauses and agreements, also consider what the jurisdictions are in which they are likely to apply to enforce the award. Each jurisdiction has its own laws on arbitrability (including on the law applicable to that question).

In this connection, the Court of Appeal in Anupam Mittal expressly noted that there was a possibility that the arbitral award to be handed down may not be enforceable in the foreign jurisdiction if the courts of that jurisdiction found that the disputes that it decided were not arbitrable, although it declined to take that into account in deciding the matter before it.

Decisions relating to confidentiality in international arbitration 

In The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4, the Singapore Court of Appeal declined to grant a sealing order for proceedings relating to the enforcement of an arbitral award on the basis that the confidentiality of the underlying arbitration had already been substantially lost.

The Court of Appeal held that the Singapore Courts had the power to grant sealing orders in relation to arbitration-related court proceedings, that the rationale for that power was to protect the confidentiality of arbitrations, and that that power would thus not be exercised where the confidentiality of the underlying arbitration had already been lost.

The Court of Appeal held that confidentiality had been lost in that case as: (a) the interim and final awards issued in the arbitration, and an award issued in a related arbitration, were available online; (b) a foreign court decision refusing the appellant’s application to set aside the award was available online and it revealed the identity of the appellant; (c) articles and social media posts, including one by the appellant’s own lawyers, had been published online identifying the appellant; (d) cause papers and decisions in enforcement applications and court proceedings in other jurisdictions relating to the same arbitration had entered the public domain.

This decision is a reminder to parties to take steps to ensure that the confidentiality of arbitrations is not lost, and that parties should not just avoid discussing or publishing material relating to those arbitrations publicly, but also take steps (to the extent provided for at law) to restrict or obtain orders restricting the publication of information or documents in every jurisdiction where related court proceedings are taking place.

In CZT v CZU [2023] SGHC(I) 11, the Singapore International Commercial Court (SICC) rejected an application for orders requiring the arbitral tribunal to produce its records of deliberations.

That application was taken out by the award debtor in the context of an application to set aside an arbitral award. The award debtor relied, among other things, on a dissenting opinion issued in the arbitration in which the dissenting arbitrator accused the majority, among other things, of procedural misconduct, misstating the record, concealing the true reasons for the decision and lacking impartiality. The award debtor then applied to set aside the arbitral award on the basis of a breach of the fair hearing rule, bias and that the tribunal had concealed its true reasoning behind the award.

The SICC held that the default position at law is that arbitrators’ deliberations are confidential. However, the Singapore courts have the power to order production of records of those deliberations if the facts and circumstances are such that ordering production outweighs the policy reasons for protecting confidentiality. The SICC held that that exception would be found only in the very rarest of cases and that an applicant would have to show that there were very serious allegations that had real prospects of succeeding.

The SICC held on the facts that production should not be ordered:

(a) The SICC expressed doubt over whether an alleged breach of the fair hearing rule, or an allegation that the tribunal had concealed its true reasoning, were sufficient to displace confidentiality.

(b) The SICC noted that an allegation that the tribunal lacked impartiality could constitute an exception because impartiality is fundamental to the integrity of arbitration proceedings.

(c) However, the SICC held that the applicant had not shown that its allegations had real prospects of success. Among other things, the SICC noted that the dissenting opinion that the applicant had relied on did not state any basis for the allegations made against the majority, and in any event did no more than reflect the dissenting arbitrator’s subjective views, opinion and impression.

This case makes it clear that the Singapore courts recognise and uphold the confidentiality of arbitrator deliberations. While they have the power to order production of the records of those deliberations, they will only do so in exceptional cases and the threshold to displace confidentiality is very high.

Enforcement of Interim Orders  

In CXG and another v CXI and others [2023] SGHC 24, the General Division of the High Court dismissed the defendant’s application to stay the claimant’s application to enforce an interim order granted by an arbitral tribunal.

The High Court noted that under Singapore law, the threshold to obtain permission to enforce an interim order is low and that the court does not review the merits of the interim order. The High Court noted that enforcement may be refused where the granting of the interim order would be in excess of the court’s powers, against public policy or an abuse of process.

The defendant argued that Singapore was not an appropriate forum for the enforcement of the interim orders as the subject matter of those orders was in a foreign jurisdiction and not Singapore. The High Court rejected this argument, holding that that was an irrelevant consideration to the question whether interim orders should be enforced.

This decision is significant in that it is the first case in which the Singapore courts have set out the applicable test and principles for the enforcement of interim orders.