Answer ... (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 AA; Article 19 of the 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 AA; Article 19 of the Model Law).
An arbitral tribunal has powers to give orders and issue directions for security for costs, discovery of documents and interrogatories, giving of evidence by affidavit and power to administer oaths (Section 28 of the AA; Section 12 of the IAA). Unless otherwise agreed by the parties, the tribunal also has power to appoint experts (Section 27 of the AA; 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 IAA provide that an arbitral tribunal has power to grant various types of interim reliefs, including interim injunctions, security for costs, and orders for the preservation and interim custody of any property or evidence. On the other hand, whilst Section 28 of the AA likewise provides an arbitral tribunal the power to grant interim reliefs, there are certain powers that are available to arbitral tribunals under Section 12 of the IAA that are not available to arbitral tribunals under Section 28 of the AA. These include, the power to secure the amount in dispute, to grant freezing injunctions, and to grant interim injunctions – these are reserved for the Court under Section 31 of the AA.
(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 into terms of the order (Section 28(4) of the AA; Section 12(6) of the IAA).
Specifically, under Section 29(1) of the AA, 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 (which would include 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 AA).
Under both Section 29(2) of the AA and Article 25 of the 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; and
- 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?
Unless otherwise agreed by the parties, 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 AA; Section 19A of the IAA). Award means a decision of the arbitral tribunal on the substance of the dispute and the definition of an ‘award’ includes interim, interlocutory or partial awards, but excludes any orders or directions made under Section 12 of the IAA or Section 28 of the AA, as the case may be (Section 2 of the AA; Section 2 of the IAA). In respect of such orders or directions, see question 29(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 AA; Section 12(5) of the IAA).
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 AA; Section 20 of the IAA).
For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP