Co-authored by Thio Ying Ying and Jolyn Khoo, Kelvin Chia, Singapore
The present article focuses on International Commercial Arbitrations between Indian and overseas parties, where the seat of arbitration is in Singapore. It further discusses the issues faced by foreign companies trying to seek alternative methods of dispute resolution, obtain reliefs and remedies in India and Singapore as well as with the enforcement mechanism for Singapore seated arbitrations in both countries.
With the growth of international trade and commerce, more and more disputes arise from cross-border transactions involving 'foreign' parties, and parties have turned towards alternative methods of dispute resolution beyond the traditional forum of court. Given that the bedrock of arbitration is consent by parties, parties are free to agree to the procedures concerning arbitrations including the seat of arbitration. Parties normally agree to arbitration by means of an arbitration clause in a contract made by them before a dispute has arisen, although it can also be agreed to after a dispute has arisen. Arbitrations can be both institutional as well as ad-hoc arbitrations. Various institutions such as London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), etc. also administer arbitrations, and carry their own rules of procedure for arbitration.
The SIAC was established in July 1991. The SIAC administers most
of its cases under its own rules of arbitration although it is able
to administer arbitrations under any other rules agreed to by the
parties. The SIAC has initiated provisions for the purpose
1. International and domestic commercial arbitration and conciliation;
2. Promotion of arbitration and conciliation as alternatives to litigation for the settlement commercial disputes; and
3. Development of a pool of arbitrators and experts in the law and practice of international arbitration and conciliation
The SIAC has assisted in rendering administrative services which include settling fees of arbitrators, providing venue for hearings, organizing dates for meetings between the tribunal and parties' representatives and acting as a registry of pleadings, documents and correspondence.
This article deals with the basic law governing arbitrations in Singapore as well as India in respect of Singapore seated arbitrations, with a special focus on SIAC Rules.
For ready reference we are reproducing a model clause below, as per which the seat of arbitration would be Singapore and the substantive law is Indian:-
"Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause.
The seat of arbitration shall be Singapore
The language to be used in the arbitral proceedings shall be English
The governing law of the contract would be the substantive law of India"
LEGAL SYSTEMS GOVERNING AN ARBITRATION
The seat of arbitration carries with it, implications regarding
the law which is attracted to the proceedings of the arbitration.
This is why it is important to understand how both jurisdictions
deal with different systems of law applicable to an
The SIAC rules provide primacy to party autonomy as regards the seat. However, in absence of any particular provision by the parties, the tribunal is free to determine the seat.
In Singapore, different aspects of an arbitration proceeding can and are often governed by different systems of law including and rules, including:
1. The governing law of the conduct of the arbitration (the lexarbitri or curial law);
2. If the arbitration is an institutional arbitration, the arbitral rules of that institution;
3. The governing law of the arbitration agreement;
4. The governing law of the contract i.e. the substantive dispute; and
5. The law governing the recognition and enforcement of the arbitral award.
Each of these is discussed briefly below.
(1) Lex Arbitri / Curial Law
The selection of the seat of arbitration is crucial as the
lexarbitri has profound implications on the conduct of the
arbitration proceedings, from the initial stages when a party
attempts to commence arbitration to the enforcement of the arbitral
award. The lexarbitri can regulate, inter alia:
(a) The validity of the arbitration agreement;
(b) The commencement of arbitral proceedings;
(c) The constitution of the tribunal, grounds for challenging their jurisdiction and their ability
to rule on their own jurisdiction;
(d) Interim measures available to the parties;
(e) The court's involvement or assistance in relation to support or supervision of the
(f) The court's power in relation to the award in terms of review and appeal .
Where the seat of an arbitration is Singapore (this is not to be conflated with the physical venue of the arbitration), the arbitration proceedings will be governed by either the Arbitration Act (Cap 10) ("Singapore AA") if the arbitration is a domestic arbitration or the International Arbitration Act (Cap 143A) ("Singapore IAA") if the arbitration is an international one. An arbitration is considered "international" if one of the following applies:
(a) At least one party has its place of business outside Singapore when the arbitration agreement is made;
(b) Either the place of arbitration, the place where a substantial part of the obligations is to be performed or the place with which the subject matter of the dispute is most closely connected is outside the state in which the parties have their places of business; or
(c) The parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.
Section 3 of the Singapore IAA provides that the UNCITRAL Model Law on International Commercial Arbitration ("Model Law")adopted by the United Nations Commission on International Trade Law on 21st June 1985 has the force of law in Singapore.
(2) Institutional Arbitration versus Ad Hoc Arbitration
International arbitration proceedings in Singapore may be administered and supervised by an institution or conducted on an ad hoc basis. Although ad hoc arbitrations are often cheaper and faster, there are many advantages to having an arbitral institution administer and supervise the arbitration process. For instance, the institution may prescribe an established set of arbitration rules for the parties to abide by, offer administrative assistance to the parties and give them easier access to a panel of reputable, accredited arbitrators . The selection of arbitrators is discussed in a later part of this article.
Institutional arbitration rules that are often used in Singapore include the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules"), the London Court of International Arbitration Rules ("LCIA Rules") as well as the Singapore International Arbitration Centre Rules ("SIAC Rules"). The parties to an arbitration may also choose independent, stand-alone arbitration rules formulated by institutions which do not administer or supervise arbitrations. These rules include the UNCITRAL Arbitration Rules and the Singapore Institute of
Architects Arbitration Rules (frequently adopted in domestic
In contrast with the lexarbitri, arbitration rules provide the procedural framework for the arbitration proceedings. Put differently, arbitration rules serve as a guide on the manner in which the administration and adjudication of the dispute is to be carried out. They are therefore analogous to the Rules of Court applicable in court proceedings.
(3) Governing Law of the Arbitration Agreement
The governing law of an arbitration agreement is determined in accordance with a three-step test: (a) the parties' express choice; (b) in the absence of an express choice, the implied choice of the parties as gleaned from their intentions at the time of contracting; or (c) in the absence of any express or implied choice, the system of law with which the arbitration agreement has the closest and most real connection.
In the absence of an express choice, how should the implied choice of the parties as to the governing law of the arbitration agreement be determined? The position in Singapore is that if there is an absence of any indication to the contrary and where the arbitration is part of the main contract, the parties are assumed to have intended the whole of their relationship to be governed by the same system of law. The natural inference is that the proper law of the main contract forming the subject matter of the dispute should also govern the arbitration agreement . However, where the arbitration agreement is free-standing, in the sense that it was not intended to be a term of any other contract, then in the absence of any express choice of law, the law of the seat would most likely be the governing law of the arbitration agreement .
Although disputes over the governing law of the arbitration agreement are rare, it is advisable that parties entering into a transaction make it very clear in their contract what the governing law of the arbitration agreement is; this is especially so when the lexarbitri is not the same as the governing law of the transaction.
(4) Governing Law of the Contract
The approach of the Singapore courts in determining the
governing or "proper" law of the contract is set out in
Overseas Union Insurance Ltd v Turegum Insurance Co  2 SLR(R)
285 ("Teregum Insurance") and comprises
three stages not unlike those applied in the process of determining
the governing law of the arbitration agreement:
(a) Examine the contract itself to determine whether it states expressly what the governing law
(b) In the absence of an express provision, see whether the intention of the parties as to the
governing law can be inferred from the circumstances.
(c) If neither of the above can be done, then determine with which system of law the contract has
it most close and real connection .
With reference to the second stage, the following are among the relevant factors for consideration: if the contracting parties agree that the courts of a given county shall have jurisdiction in any matter arising out of a contract, if they agree that the arbitration shall take place in a certain country, the language or terminology used in the contract, the form of the documents used in the transaction, a connection with a preceding transaction, the currency of the contract or the currency of payment, the places of residence or business of the parties, and the commercial purpose of the transaction .
InTeregum Insurance the Judith Prakash J clarified there is no strict necessity for there to be proof that the second stage could not apply before the court can move on to the third stage, because the tests of inferred intention and close connection often merge into each other and because before the objection close connection test became fully established, the test of inferred intention was an objective test designed not to elicit actual intention but to impute an intention which had not been formed.
(5) Law Governing the Recognition and Enforcement of Arbitral Awards
A distinction has to be made between arbitral awards made pursuant to an arbitral award made pursuant to an arbitration seated in Singapore and an arbitral award made pursuant to a foreign arbitration. The former is recognised and enforced in accordance with the Singapore AA or Part II of the Singapore IAA, both of which have similar provisions for recognition and enforcement of such an award. The latter is recognised and enforced in accordance with Part III of the Singapore IAA, which gives effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), of which India is also a contracting state. The topic of recognition and enforcement of arbitral awards is discussed in greater detail below.
In the Indian legal system in an arbitration containing a
foreign element, there are three different systems of law which
govern the arbitration :-
1. The law governing the substantive law of the contract which is the law governing substantive issues in dispute in the contract. Also referred to as "substantive law", "applicable law", or "proper law of the contract".
2. The law governing the existence and proceedings of the arbitral tribunal , which is the law governing the conduct of the arbitration proceedings. It is also referred to as the "curial law" or the "lexarbitri". This is the law which is derived from the seat of arbitration.
3. The law governing the recognition and enforcement of the award is the law which governs the enforcement, as well as filing or setting aside of the award and is also the law which governs the arbitrability of the dispute.
Furthermore, in absence of any other stipulation in the contract, proper law is the law applicable to the arbitral tribunal itself . Also the lexarbitri and the law governing the recognition and enforcement of the award are one and the same in absence of an intention/stipulation to the contrary . The place of the arbitration generally specified in a contract determines the seat of arbitration unless contrary intention is apparent from the contract.
In the Indian legal system, an International Commercial Arbitration is defined as an arbitration arising from a legal relationship which must be considered commercial, where either of the parties is a foreign national or resident or is a foreign body corporate or is a company, association or body of individuals whose central management or control is exercise in some other country, or a government of a foreign country .
The Arbitration and Conciliation Amendment Act, 2015 recognizes companies controlled byforeign hands as a foreign body corporate, the Supreme Court has excluded its application to companies registered in India and having Indian nationality. In case a corporation has dual nationality, one based on foreign control and other based on registration in India, such corporation would not be regarded as a foreign corporation.
An International Commercial Arbitration may either be seated in India, or be seated in a foreign country, and this article focuses on International Commercial Arbitrations seated only in Singapore The implication of Singapore seat is that Part I of the Arbitration and Conciliation Act, 1996 (the Indian Act), which is the curial law in India, is excluded for such arbitrations, barring certain exceptions discussed later.
INTERIM RELIEF FROM COURT
The mode of obtaining Interim Reliefs would vary depending on the seat of arbitration, as already explained above. While drafting of contracts, the parties must be extremely careful while choosing the seat of arbitration and choosing the law to be made applicable to said arbitration between them. The SIAC rules also provide that it shall be open to parties to seek interim relief from judicial authorities prior to constitution of the tribunal itself. In exceptional circumstances, parties can approach court, even after the constitution of the tribunal.
Under Section 12 of the Singapore IAA, an arbitral tribunal have
powers to make orders or give directions to any party in respect of
interim measures. The arbitral tribunal can, inter alia, direct one
party to give the other security for costs, give directions for the
discovery of documents and interrogatories and grant injunctions
including those that would ensure that any award which may be made
in the arbitral proceedings is not rendered ineffectual by the
dissipation of assets by a party.
However, sometimes it is necessary for the court to intervene and assist when the parties require interim relief that goes beyond the scope of the arbitral tribunal's powers. Such situations arise where the interim relief is needed before the tribunal has been constituted, or where the interim relief sought must be applied for ex parte and on an urgent basis. Section 12A of the Singapore IAA empowers the court to make orders for:
(a) Giving of evidence by affidavit;
(b) The preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute;
(c) Samples to be taken from, or any observation to be made of or experiment conducted upon, any property which is or forms part of the subject-matter of the dispute;
(d) The preservation and interim custody of any evidence for the purposes of the proceedings;
(e) Securing the amount in dispute;
(f) Ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and
(g) An interim injunction or any other interim measure.
These above remedies are available regardless of where the arbitration is seated. However, the court powers are not unlimited. These restrictions are set out in sub-sections (3) to (7) of Section 12A of the Singapore IAA, and are summarized briefly below:
(a) If the fact that the place of arbitration is outside Singapore or likely to be outside Singapore
when it is designated or determined makes it inappropriate to make such order.
(b) If the case is one of urgency, the court may make orders under Section 12A(2) of the Singapore IAA as it thinks necessary for the purpose of preserving evidence or assets.
(c) If the case is not one of urgency, the court may make orders under Section 12A(2) of the Singapore IAA only with the permission of the arbitral tribunal or the agreement in writing of the other parties to the arbitration proceedings.
(d) The court may make orders under Section 12A(2) of the Singapore IAA only if or to the extent that the arbitral tribunal has no power or is unable for the time being to act effectively.
(e) Such orders made by the court will cease to have effect if the arbitral tribunal makes an order which expressly relates to the whole or part of the order under Section 12A(2) of the Singapore IAA.
If the parties to an arbitration have opted for the application of the SIAC Rules, these rules empower the SIAC to appoint an emergency arbitrator for the purposes of adjudicating an application for emergency relief before the arbitral tribunal is constituted. The remedy thereby allows parties to dispense with the need to go to court for interim relief . The availability of this remedy, however, does not appear to preclude the parties from seeking relief in court, it is expressly provided in the SIAC Rules that a request for interim relief made by a party to a judicial authority prior to the constitution of the Tribunal, or in exceptional circumstances thereafter, is not incompatible with the SIAC Rules.
In India, Section 9 of the Indian Act governs the power of the
courts to grant interim relief. It is based on Article 9 of the
UNCITRAL Model Law . Under Section 9 of the Indian Act, a party is
permitted to apply to Court for certain interim measures, before,
during or after making of the award by thae Tribunal. Although
Section 9 is a part of Part I of the Indian Act, owing to a recent
amendment , the position has been substantially changed. Before the
amendment of 2015, the law with respect to seeking interim relief
from court was governed by a judgment of the Supreme Court of
India. The judgment clearly laid down that Part I of the
Arbitration and Conciliation Act (of which Section 9 is a part)
would be inapplicable to any foreign seated arbitration. However,
the 2015 amendment, in effect, nullifies the law laid down in BALCO
to a limited extent and holds that even in an International
Commercial Arbitration having a foreign seat, a party can approach
Indian courts under Section 9 and get appropriate relief.
Therefore a Section 9 remedy would be available for a Singapore seated arbitration, only if the arbitration has been commenced after the coming into effect of the amending act .
The nature of reliefs sought under Section 9 are generally for
protection, preservation or interim custody of goods, assets,
properties, securing the amounts in dispute, appointment of interim
This provision gives a huge relief to parties in cases where assets of parties to the Singapore seated arbitration are located in India and there is a fear of disposal. Similarly, the Appeal against an Order passed in a Petition filed under Section 9 would also lie to Indian courts only as per the amendment.
APPLICATION FOR APPOINTMENT OF ARBITRATORS
The procedure for appointment of arbitrators in both territories is once again dependent upon the seat of arbitration. A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.As far as the SIAC rules are concerned, the appointment of the arbitrators as well as the tribunal is done by the parties depending on the procedure agreed between them. Further on failure of the parties SIAC itself can also constitute the tribunal having due regard to any qualifications provided by the parties' agreement itself.
(1) Default Appointments
Sections 9 and 9A of the Singapore IAA set out the basic
guidelines for the appointment of arbitrators in international
arbitrators in the absence of an agreement between parties on this
matter. While parties are a liberty to determine the number of
arbitrators hearing their dispute (usually one or three
arbitrators), where there is no such determination or agreement,
Section 9 provides that there shall be a single arbitrator. The
parties will then have to jointly nominate an arbitrator, but if
they are unable to agree, one of the parties will have to make an
application for the appointment of the arbitrator by the President
of the SIAC.
Where there are three arbitrators, Section 9A of the Singapore IAA provides that each party shall appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator. Where the parties fail to agree on the appointment of the third arbitrator within 30 days of the receipt of the first request by either party to do so, the parties may apply to the President of the SIAC to appoint the third arbitrator.
(2) Appointments under the SIAC Rules
If the parties to an arbitration have elected for the arbitration to be governed by the SIAC Rules, then the mechanisms set out at Rules 9 to 11 of the SIAC Rules (2016) for the appointment of one or three arbitrators will be applied instead.
One advantage to adopting the SIAC Rules is that they provide for multi-party appointment of arbitrators (i.e. where there are multiple claimants and/or respondents). In contrast, the Singapore IAA is silent on this matter.
Rule 12 of the SIAC Rules (2016) provide that where there are more than two parties to the arbitration, and a sole arbitrator is to be appointed, the parties may agree to jointly nominate the sole arbitrator. In the absence of such joint nomination, the President of the SIAC shall appoint the sole arbitrator. Where there are more than two parties to the arbitration and three arbitrators are to be appointed, the claimants shall jointly nominate on arbitrator and the respondents shall jointly nominate one arbitrator. If the parties cannot jointly nominate the third, then the President of the SIAC will appoint the remaining arbitrator, who will also be the presiding arbitrator. If the claimants and the respondents are not able to agree among themselves on their joint nominations, the President of the SIAC will appoint all three arbitrators and designate on of them to be the presiding arbitrator.
The appointment of Arbitrators in India is governed by Section 11 of the Indian Act, Article 11 being the concomitant provision of the UNCITRAL Model Law. As far appointment of Arbitrators in a Singapore seated Arbitration, Part I of the Indian Act has no application and there is no exception carved out in the act itself. In these cases, it is the domestic law of Singapore which would be relevant, as explained above.
The only relief on this front which a party can obtain in the case of a Singaporeseated arbitration is, that in case an Indian court is seized of a matter in respect of which an arbitration agreement exists, it can refer the parties to arbitration .
APPLICATION FOR CHALLENGING/ENFORCEMENT OF THE AWARD
The law governing the enforcement/challenge to the award is extremely relevant, and especially so, in the case of an International Commercial Arbitration. This is because an award remains a mere dead letter until it can be enforced in the relevant country and compliance can be ensured.
(1) Domestic International Awards
As discussed above, the recognition and enforcement of Singapore seated domestic and international arbitrations are governed by the Singapore AA and Part II of the Singapore IAA respectively.
An application under Section 19 of the Singapore IAA to enforce a domestic international award (the nomenclature for an award given in an international arbitration seated in Singapore) can be made pursuant to Order 69A rule 6 of the Singapore Rules of Court. To start the enforcement process, the applicant has to make an ex parte application for leave to enforce the award. Once the order for leave to enforce the award is granted, the applicant must serve the order on the respondent by delivering it to the respondent personally, leaving it at the respondent's usual or last known place of residence or business or in such manner as the court may direct.
The respondent may apply to have the order set aside within a limit period after it has been served; during that time, the applicant will not be able to enforce the award until the expiry of the time given, or the disposal of the application to set aside the order (if any) . A party may therefore challenge an arbitral award in this manner, or take a more proactive approach by making an application to set aside the arbitral award without waiting for the other party to attempt to enforce it.
What are the bases on which a party may challenge an arbitral
award? Although the Singapore courts are generally reluctant to
interfere with arbitral awards, this policy of minimal curial
intervention remains subject to the parties' statutory rights
to recourse against arbitral awards . The grounds on which a party
may set aside a domestic international arbitral award are
enumerated in Section 24 of the Singapore IAA and Article 34 of the
Model Law. Briefly, the statutory grounds for the setting aside or
challenging a domestic international award are as follows:
(a) If the making of the award was induced or affected by fraud or corruption;
(b) If a breach of the rule of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced;
(c) If a party to the arbitration agreement was under some incapacity, or the arbitration agreement is not valid under the law to which the parties subjected it;
(d) If 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 his case;
(e) If 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, provided that, 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;
(f) If the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the seat of the arbitration;
(g) If the award has not yet become binding on the parties or has been set aside or suspended by a court of the seat of the arbitration.
(h) If the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Singapore; or
(i) The award is in conflict with the public policy of Singapore.
(2) Foreign Awards
The New York Convention has been implemented in Singapore by virtue of Part III of the Singapore IAA. Section 29 of the Singapore IAA provides that a foreign award may be enforced in a court either by action or in the same manner as an award of an arbitrator made in Singapore enforceable under Section 19. Note that Part III of the Singapore IAA applies only to foreign awards made in Convention countries. However, this restriction is unlikely to present as a barrier to the enforcement of international awards as the number of countries that are parties to the New York Convention is growing every year. As at November 2017, there are 157 Convention states.
In an arbitration seated in a foreign territory, Part II of the Indian Act is applicable. Part II of the Act deals with enforcement of certain foreign awards in India. These awards are either awards passed in New York Convention Territories, or Geneva Convention Territories, Singapore being a New York Convention Country.
Section 44 of the Indian Act provides that in order for a
foreign award to be recognized as such under Part II, Chapter I
(New York Convention Awards) certain conditions need to be
fulfilled, which are as under:-
i. The territory should be signatory to the New York Convention
ii. The Indian Central Government should have notified in the Official Gazette that it has reciprocal provisions with such a territory.
Since, in the case of Singapore, both the above conditions are met, the awards are recognized as Foreign Awards in India and the enforcement mechanism provided under Part II of the Indian Act needs to be followed.
Section 47 of the Indian Act provides that a party while applying for the enforcement of a foreign award, apart from the procedural aspects of certification and authenticity, also has to produce such evidence as is necessary to prove that the award fulfils the conditions as above stated.
Furthermore, Section 48 of the Indian Act provide the grounds to challenge the enforcement of a foreign award which include party incapacity, invalidity of agreement under the law of the seat, absence of proper notice to the party regarding appointment, or inability of a party to represent his case, non arbitrability of the dispute, matters beyond scope of arbitration, wrong composition of tribunal, or that the award has not become binding as per the law of the seat, or is against the public policy of India.
Once the award has survived the challenge and the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court . After this stage it can be executed under Order XXI of the Code of Civil Procedure, 1908 in the same manner as a decree from an Indian court.
APPEALS ARISING FROM ORDERS OF INTERIM RELIEFS OR ORDERS OF ENFORCEMENT OF FOREIGN AWARDS
(1) Appeals arising from Interim Orders made in Arbitral Proceedings
Section 24 of the Singapore IAA permits the court to set aside
awards made by arbitral tribunals. However, it has been held that
the definition of "awards" excludes orders or directions
made under Section 12 of the Singapore IAA, that is, order or
directions made by an arbitral tribunal and that deal with
procedural matters protective measures.
The rationale for the differential treatment of final arbitration awards and interim orders made by arbitral tribunals was summarized in the local decision of PT Pukuafu Indah and others v Newmont Indonesia Ltd and another  4 SLR 1157;  SGHC 187, where Lee Seiu Kin J observed that procedural issues fell directly within the province of arbitral tribunals.Arbitration, particularly international arbitration, was conceptualised as a form of dispute settlement that is not bound by the parochial application of the procedural rules of the arbitral seat, albeit subject to a minimal level of procedural integrity. This limited control by the court should therefore only be exercised at the stage where a party seeks to set aside a final award, and not with respect to each and every order made by the tribunal .
In contrast with final awards, interim orders may require a more nuanced balance to be struck between the efficiency of arbitration and safeguards to ensure due process. This is because orders granting interim relief (such as injunctions) may have the effect of prejudging the substantive rights of one party and are dependent on the court for coercive effect. The Singapore Parliament has chosen to strike this balance by adopting the line of minimal curial intervention to limit challenges only to awards that decided the substantive merits of the case .
(2) Appeals arising from Interim Orders made by the Court and Appeals against Decisions concerning the Enforcement of Foreign Awards
Appeals arising from interim and enforcement orders made by the court under Section 12A and Section 29 respectively of the Singapore IAA may be made in accordance with Order 56 of the Singapore Rules of Court.
It follows from the discussion above that an interim relief is given under Section 9, then automatically an appeal against such Orders would lie to Indian Courts under Part I, Section 37 of the Indian Act. Similarly, incase an order of an Indian court in respect of a challenge to an award passed in Singapore under Part II needs to be appealed, Section 50 of Act would become applicable and again the Appeal would lie in India.
However, in a scenario, where Indian courts have not been approached forexecution/enforcement/challenge from the award passed in Singapore, then Indian Courts would not have any role to play in the appeal process either.
To conclude it may be said, that the courts in both countries
would play different roles in International Commercial Arbitrations
seated in the Singapore. Firstly it needs to be determined which is
the seat of arbitration and which is the curial law which is
attracted. Thereafter for different remedies, different courts can
Singapore has taken steps to ensure practical support for international arbitrations conducted in the country, with the result that it is regarded, both legally and commercially, as a preferred forum for resolving trade disputes. Singapore is widely recognised by parties trading in the region as a place for conducting arbitrations that is both neutral and geographically convenient in relation to the parties to the dispute.Moreover, the 2015 amendment has given more leeway to Indian courts as far as Interim reliefs are concerned, thus providing additional protection to Singapore based parties vis-s-a-vis Indian players. In view of the above, India is fast becoming an arbitration and foreign investor friendly country.
(This article is co-authored by International Commercial Arbitration lawyers of Singhania & Partners LLP, India and Kelvin Chia Partnership, Singapore)
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.