Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
Singapore

Answer ... 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
Singapore

Answer ... 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
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?
Singapore

Answer ... 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 [2007] 1 SLR(R) 85; Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd [1988] 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
8.4
If a challenge is successful, how is the arbitrator replaced?
Singapore

Answer ... 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
Singapore

Answer ... 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 [2016] 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 [2010] SGHC 80; AKN v ALC [2015] 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 [2011] 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
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?
Singapore

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 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).

(f) Interest?

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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
Singapore

Answer ... See question 8.6(c).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
8.8
Are arbitrators immune from liability?
Singapore

Answer ... 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).

For more information about this answer please contact: Alvin Yeo and Koh Swee Yen from WongPartnership LLP

For more information about this answer please contact: Alvin Yeo from WongPartnership LLP
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Topic
International Arbitration