Comparative Guides

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4. Results: Answers
International Arbitration
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?
Singapore

Answer ... 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 [2003] 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 [2016] 1 SLR 373; Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017] 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 [2017] 2 SLR 362; Malini Ventura v Knight Capital Pte Ltd [2015] 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 [2017] 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 [2017] 2 SLR 362; Heartronics Corporation v EPI Life Pte Ltd and Others [2017] 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).

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
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?
Singapore

Answer ... 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).

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
9.3
Can the parties exclude the court's powers by agreement?
Singapore

Answer ... 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.

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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International Arbitration