PART II | INTERNATIONAL COMMERCIAL ARBITRATION |
| Interpretation of Part II |
2.—(1) In this Part, unless the context otherwise requires —| “arbitral tribunal” means a sole arbitrator or a panel of arbitrators or a permanent arbitral institution; |
| “appointing authority” means the authority designated under section 8(2) or (3); |
| “arbitration agreement” means an agreement in writing referred to in Article 7 of the Model Law and includes an agreement deemed or constituted under subsection (3) or (4); |
| “award” means a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any orders or directions made under section 12; |
| “Model Law” means the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21st June 1985, the text in English of which is set out in the First Schedule; |
| “party” means a party to an arbitration agreement or, in any case where an arbitration does not involve all of the parties to the arbitration agreement, means a party to the arbitration. [38/2001] |
| (2) Except so far as the contrary intention appears, a word or expression that is used both in this Part and in the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in the Model Law, the same meaning as it has in this Part. |
| (3) Where in any arbitral or legal proceedings, a party asserts the existence of an arbitration agreement in a pleading, statement of case or any other document in circumstances in which the assertion calls for a reply and the assertion is not denied, there shall be deemed to be an effective arbitration agreement as between the parties to the proceedings. [38/2001] |
| (4) A reference in a bill of lading to a charterparty or some other document containing an arbitration clause shall constitute an arbitration agreement if the reference is such as to make that clause part of the bill of lading. [38/2001] |
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| Model Law to have force of law |
3.—(1) Subject to this Act, the Model Law, with the exception of Chapter VIII thereof, shall have the force of law in Singapore.(2) In the Model Law —| “State” means Singapore and any country other than Singapore; |
| “this State” means Singapore. |
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| Interpretation of Model Law by use of extrinsic material |
4.—(1) For the purposes of interpreting the Model Law, reference may be made to the documents of —| (a) | the United Nations Commission on International Trade Law; and | | (b) | its working group for the preparation of the Model Law, |
| relating to the Model Law. |
| (2) Subsection (1) shall not affect the application of section 9A of the Interpretation Act (Cap. 1) for the purposes of interpreting this Act. |
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5.—(1) This Part and the Model Law shall not apply to an arbitration which is not an international arbitration unless the parties agree in writing that this Part or the Model Law shall apply to that arbitration.(2) Notwithstanding Article 1(3) of the Model Law, an arbitration is international if —| (a) | at least one of the parties to an arbitration agreement, at the time of the conclusion of the agreement, has its place of business in any State other than Singapore; or | | (b) | one of the following places is situated outside the State in which the parties have their places of business:| (i) | the place of arbitration if determined in, or pursuant to, the arbitration agreement; | | (ii) | any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or |
| | (c) | the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. |
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(3) For the purposes of subsection (2) —| (a) | if a party has more than one place of business, the place of business shall be that which has the closest relationship to the arbitration agreement; | | (b) | if a party does not have a place of business, a reference to his place of business shall be construed as a reference to his habitual residence. |
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| (4) Notwithstanding any provision to the contrary in the Arbitration Act (Cap. 10), that Act shall not apply to any arbitration to which this Part applies. |
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| Enforcement of international arbitration agreement |
| 6.—(1) Notwithstanding Article 8 of the Model Law, where any party to an arbitration agreement to which this Act applies institutes any proceedings in any court against any other party to the agreement in respect of any matter which is the subject of the agreement, any party to the agreement may, at any time after appearance and before delivering any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings so far as the proceedings relate to that matter. [38/2001] | (2) The court to which an application has been made in accordance with subsection (1) shall make an order, upon such terms or conditions as it may think fit, staying the proceedings so far as the proceedings relate to the matter, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed. [38/2001] |
| (3) Where a court makes an order under subsection (2), the court may, for the purpose of preserving the rights of parties, make such interim or supplementary orders as it may think fit in relation to any property which is the subject of the dispute to which the order under that subsection relates. |
| (4) Where no party to the proceedings has taken any further step in the proceedings for a period of not less than 2 years after an order staying the proceedings has been made, the court may, on its own motion, make an order discontinuing the proceedings without prejudice to the right of any of the parties to apply for the discontinued proceedings to be reinstated. [38/2001] |
(5) For the purposes of this section and sections 7 and 11A —| (a) | a reference to a party shall include a reference to any person claiming through or under such party; | | (b) | “court” means the High Court, District Court, Magistrate’s Court or any other court in which proceedings are instituted. [38/2001] |
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| Court’s powers on stay of proceedings |
7.—(1) Where a court stays proceedings under section 6, the court may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest, order —| (a) | that the property arrested be retained as security for the satisfaction of any award made on the arbitration; or | | (b) | that the stay be conditional on the provision of equivalent security for the satisfaction of any such award. [38/2001] |
| (2) Subject to Rules of Court and to any necessary modification, the same law and practice shall apply in relation to property retained in pursuance of an order under this section as would apply if it were held for the purposes of proceedings in the court which made the order. |
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| Authorities specified for purposes of Article 6 of Model Law |
8.—(1) The High Court in Singapore shall be taken to have been specified in Article 6 of the Model Law as courts competent to perform the functions referred to in that Article except for Article 11(3) and (4) of the Model Law.| (2) The Chairman of the Singapore International Arbitration Centre shall be taken to have been specified as the authority competent to perform the functions under Article 11(3) and (4) of the Model Law. [38/2001] |
| (3) The Chief Justice may, if he thinks fit, by notification published in the Gazette, appoint any other person to exercise the powers of the Chairman of the Singapore International Arbitration Centre under subsection (2). [38/2001] |
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| Application of Limitation Act |
| 8A.—(1) The Limitation Act (Cap. 163) shall apply to arbitration proceedings as it applies to proceedings before any court and a reference in that Act to the commencement of any action shall be construed as a reference to the commencement of arbitration proceedings. [38/2001] (2) The High Court may order that in computing the time prescribed by the Limitation Act for the commencement of proceedings (including arbitration proceedings) in respect of a dispute which was the subject-matter of —| (a) | an award which the High Court orders to be set aside or declares to be of no effect; or | | (b) | the affected part of an award which the High Court orders to be set aside in part or declares to be in part of no effect, |
| the period between the commencement of the arbitration and the date of the order referred to in paragraph (a) or (b) shall be excluded. |
[38/2001] |
| (3) Notwithstanding any term in an arbitration agreement to the effect that no cause of action shall accrue in respect of any matter required by the agreement to be referred until an award is made under the agreement, the cause of action shall, for the purpose of the Limitation Act (Cap. 163), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement. [38/2001] |
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| Number of arbitrators for purposes of Article 10 (2) of Model Law |
| 9. Notwithstanding Article 10(2) of the Model Law, if the number of arbitrators is not determined by the parties, there shall be a single arbitrator. |
| Default appointment of arbitrators |
| 9A.—(1) Notwithstanding Article 11(3) of the Model Law, in an arbitration with 3 arbitrators, each party shall appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator. [38/2001] | (2) 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 appointment shall be made, upon the request of a party, by the appointing authority. [38/2001] |
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| Appeal under Article 16 (3) of Model Law |
10.—(1) Notwithstanding Article 16(3) of the Model Law, an appeal from a decision of the High Court made under Article 16(3) of the Model Law shall lie to the Court of Appeal only with the leave of the High Court. | (2) There shall be no appeal against a refusal for grant of leave of the High Court. |
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| Public policy and arbitrability |
| 11.—(1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so. [38/2001] | (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration. |
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| Reference of interpleader issue to arbitration |
| 11A. Where in proceedings before any court relief by way of interpleader is granted and any issue between the claimants is one in respect of which there is an arbitration agreement between them, the court granting the relief may direct the issue between the claimants to be determined in accordance with the agreement. [38/2001] |
| Powers of arbitral tribunal |
12.—(1) Without prejudice to the powers set out in any other provision of this Act and in the Model Law, an arbitral tribunal shall have powers to make orders or give directions to any party for —| (a) | security for costs; | | (b) | discovery of documents and interrogatories; | | (c) | giving of evidence by affidavit; | | (d) | the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the dispute; | | (e) | 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; | | (f) | the preservation and interim custody of any evidence for the purposes of the proceedings; | | (g) | securing the amount in dispute; | | (h) | 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 | | (i) | an interim injunction or any other interim measure. [38/2001] |
| (2) An arbitral tribunal shall, unless the parties to an arbitration agreement have (whether in the arbitration agreement or in any other document in writing) agreed to the contrary, have power to administer oaths to or take affirmations of the parties and witnesses. |
| (3) An arbitral tribunal shall, unless the parties to an arbitration agreement have (whether in the arbitration agreement or in any other document in writing) agreed to the contrary, have power to adopt if it thinks fit inquisitorial processes. |
(4) The power of the arbitral tribunal to order a claimant to provide security for costs as referred to in subsection (1)(a) shall not be exercised by reason only that the claimant is —| (a) | an individual ordinarily resident outside Singapore; or | | (b) | a corporation or an association incorporated or formed under the law of a country outside Singapore, or whose central management and control is exercised outside Singapore. [38/2001] |
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(5) Without prejudice to the application of Article 28 of the Model Law, an arbitral tribunal, in deciding the dispute that is the subject of the arbitral proceedings —| (a) | may award any remedy or relief that could have been ordered by the High Court if the dispute had been the subject of civil proceedings in that Court; | | (b) | may award interest (including interest on a compound basis) on the whole or any part of any sum which —| (i) | is awarded to any party, for the whole or any part of the period up to the date of the award; or | | (ii) | is in issue in the arbitral proceedings but is paid before the date of the award, for the whole or any part of the period up to the date of payment. |
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| (6) All orders or directions made or given by an arbitral tribunal in the course of an arbitration shall, by leave of the High Court or a Judge thereof, be enforceable in the same manner as if they were orders made by a court and, where leave is so given, judgment may be entered in terms of the order or direction. |
| (7) The High Court or a Judge thereof shall have, for the purpose of and in relation to an arbitration to which this Part applies, the same power of making orders in respect of any of the matters set out in subsection (1) as it has for the purpose of and in relation to an action or matter in the court. |
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| Witnesses may be summoned by subpoena |
| 13.—(1) Any party to an arbitration agreement may take out a writ of subpoena ad testificandum (writ to compel witness to attend and give evidence) or a writ of subpoena duces tecum (writ to compel witness to attend and give evidence and produce specified documents). [38/2001] | (2) The court may order that a writ of subpoena ad testificandum or a writ of subpoena duces tecum shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore. [42/2005 wef 01/01/2006] [38/2001] |
| (3) The court may also issue an order under section 38 of the Prisons Act (Cap. 247) to bring up a prisoner for examination before an arbitral tribunal. [38/2001] |
| (4) No person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action. [42/2005 wef 01/01/2006] [38/2001] |
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| Power to compel attendance of witness |
| 14.—(1) The High Court or a Judge thereof may order that a writ of subpoena ad testificandum or a writ of subpoena duces tecum shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore. [42/2005 wef 01/01/2006] | (2) The High Court or a Judge thereof may also issue an order under section 38 of the Prisons Act to bring up a prisoner for examination before an arbitral tribunal. |
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| Law of arbitration other than Model Law |
15.—(1) If the parties to an arbitration agreement (whether made before or after 1st November 20011) have expressly agreed either —| 1 Date of commencement of the International Arbitration (Amendment) Act 2001 (Act 38/2001). |
| (a) | that the Model Law or this Part shall not apply to the arbitration; or | | (b) | that the Arbitration Act (Cap. 10) or the repealed Arbitration Act (Cap. 10, 1985 Ed.) shall apply to the arbitration, |
| then, both the Model Law and this Part shall not apply to that arbitration but the Arbitration Act or the repealed Arbitration Act (if applicable) shall apply to that arbitration. |
[38/2001] | (2) For the avoidance of doubt, a provision in an arbitration agreement referring to or adopting any rules of arbitration shall not of itself be sufficient to exclude the application of the Model Law or this Part to the arbitration concerned. [38/2001; 28/2002] |
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| Application of rules of arbitration |
| 15A.—(1) It is hereby declared for the avoidance of doubt that a provision of rules of arbitration agreed to or adopted by the parties, whether before or after the commencement of the arbitration, shall apply and be given effect to the extent that such provision is not inconsistent with a provision of the Model Law or this Part from which the parties cannot derogate. [28/2002] | (2) Without prejudice to subsection (1), subsections (3) to (6) shall apply for the purposes of determining whether a provision of rules of arbitration is inconsistent with the Model Law or this Part. [28/2002] |
| (3) A provision of rules of arbitration is not inconsistent with the Model Law or this Part merely because it provides for a matter on which the Model Law and this Part is silent. [28/2002] |
| (4) Rules of arbitration are not inconsistent with the Model Law or this Part merely because the rules are silent on a matter covered by any provision of the Model Law or this Part. [28/2002] |
| (5) A provision of rules of arbitration is not inconsistent with the Model Law or this Part merely because it provides for a matter which is covered by a provision of the Model Law or this Part which allows the parties to make their own arrangements by agreement but which applies in the absence of such agreement. [28/2002] |
| (6) The parties may make the arrangements referred to in subsection (5) by agreeing to the application or adoption of rules of arbitration or by providing any other means by which a matter may be decided. [28/2002] |
| (7) In this section and section 15, “rules of arbitration” means the rules of arbitration agreed to or adopted by the parties including the rules of arbitration of an institution or organisation. [28/2002] |
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| Appointment of conciliator |
16.—(1) Where an agreement provides for the appointment of a conciliator by a person who is not one of the parties and that person refuses to make the appointment or does not make it within the time specified in the agreement or, if no time is so specified, within a reasonable time of being requested by any party to the agreement to make the appointment, the Chairman for the time being of the Singapore International Arbitration Centre may, on the application of any party to the agreement, appoint a conciliator who shall have the like powers to act in the conciliation proceedings as if he had been appointed in accordance with the terms of the agreement.| (2) The Chief Justice may, if he thinks fit, by notification published in the Gazette, appoint any other person to exercise the powers of the Chairman of the Singapore International Arbitration Centre under subsection (1). |
(3) Where an arbitration agreement provides for the appointment of a conciliator and further provides that the person so appointed shall act as an arbitrator in the event of the conciliation proceedings failing to produce a settlement acceptable to the parties —| (a) | no objection shall be taken to the appointment of such person as an arbitrator, or to his conduct of the arbitral proceedings, solely on the ground that he had acted previously as a conciliator in connection with some or all of the matters referred to arbitration; | | (b) | if such person declines to act as an arbitrator, any other person appointed as an arbitrator shall not be required first to act as a conciliator unless a contrary intention appears in the arbitration agreement. |
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| (4) Unless a contrary intention appears therein, an agreement which provides for the appointment of a conciliator shall be deemed to contain a provision that in the event of the conciliation proceedings failing to produce a settlement acceptable to the parties within 4 months, or such longer period as the parties may agree to, of the date of the appointment of the conciliator or, where he is appointed by name in the agreement, of the receipt by him of written notification of the existence of a dispute, the conciliation proceedings shall thereupon terminate. |
(5) For the purposes of this section and section 17 —| (a) | any reference to “conciliator” shall include a reference to any person who acts as a mediator; | | (b) | any reference to “conciliation proceedings” shall include a reference to mediation proceedings. [38/2001] |
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| Power of arbitrator to act as conciliator |
17.—(1) If all parties to any arbitral proceedings consent in writing and for so long as no party has withdrawn his consent in writing, an arbitrator or umpire may act as a conciliator.(2) An arbitrator or umpire acting as conciliator —| (a) | may communicate with the parties to the arbitral proceedings collectively or separately; and | | (b) | shall treat information obtained by him from a party to the arbitral proceedings as confidential, unless that party otherwise agrees or unless subsection (3) applies. |
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| (3) Where confidential information is obtained by an arbitrator or umpire from a party to the arbitral proceedings during conciliation proceedings and those proceedings terminate without the parties reaching agreement in settlement of their dispute, the arbitrator or umpire shall before resuming the arbitral proceedings disclose to all other parties to the arbitral proceedings as much of that information as he considers material to the arbitral proceedings. |
| (4) No objection shall be taken to the conduct of arbitral proceedings by a person solely on the ground that that person had acted previously as a conciliator in accordance with this section. |
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18. If the parties to an arbitration agreement reach agreement in settlement of their dispute and the arbitral tribunal has recorded the terms of settlement in the form of an arbitral award on agreed terms in accordance with Article 30 of the Model Law, the award —| (a) | shall be treated as an award on an arbitration agreement; and | | (b) | may, by leave of the High Court or a Judge thereof, be enforced in the same manner as a judgment or an order to the same effect, and where leave is so given, judgment may be entered in terms of the award. |
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| 19. An award on an arbitration agreement may, by leave of the High Court or a Judge thereof, be enforced in the same manner as a judgment or an order to the same effect and, where leave is so given, judgment may be entered in terms of the award. |
| Awards made on different issues |
| 19A.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may make more than one award at different points in time during the arbitration proceedings on different aspects of the matters to be determined. [38/2001] (2) The arbitral tribunal may, in particular, make an award relating to —| (a) | an issue affecting the whole claim; or | | (b) | a part only of the claim, counter-claim or cross-claim, which is submitted to it for decision. [38/2001] |
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| (3) If the arbitral tribunal makes an award under this section, it shall specify in its award, the issue, or claim or part of a claim, which is the subject-matter of the award. [38/2001] |
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| 19B.—(1) An award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties and on any persons claiming through or under them and may be relied upon by any of the parties by way of defence, set-off or otherwise in any proceedings in any court of competent jurisdiction. [38/2001] | (2) Except as provided in Articles 33 and 34(4) of the Model Law, upon an award being made, including an award made in accordance with section 19A, the arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award. [38/2001] |
| (3) For the purposes of subsection (2), an award is made when it has been signed and delivered in accordance with Article 31 of the Model Law. [38/2001] |
| (4) This section shall not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Act and the Model Law. [38/2001] |
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| 20. Where an award directs a sum to be paid, that sum shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt. |
21.—(1) Any costs directed by an award to be paid shall, unless the award otherwise directs, be taxable by the Registrar of the Singapore International Arbitration Centre (referred to in this section as the Registrar).| (2) Unless the fees of the arbitral tribunal have been fixed by a written agreement or such agreement has provided for determination of the fees by a person or an institution agreed to by the parties, any party to the arbitration may require that such fees be taxed by the Registrar. [38/2001] |
| (3) A certificate signed by the Registrar on the amount of costs or fees taxed shall form part of the award of the arbitral tribunal. |
| (4) The Chief Justice may, if he thinks fit, by notification published in the Gazette, appoint any other person to exercise the powers of the Registrar under this section. |
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| Proceedings to be heard otherwise than in open court |
| 22. Proceedings under this Act in any court shall, on the application of any party to the proceedings, be heard otherwise than in open court. |
| Restrictions on reporting of proceedings heard otherwise than in open court |
23.—(1) This section shall apply to proceedings under this Act in any court heard otherwise than in open court.| (2) A court hearing any proceedings to which this section applies shall, on the application of any party to the proceedings, give directions as to whether any and, if so, what information relating to the proceedings may be published. |
(3) A court shall not give a direction under subsection (2) permitting information to be published unless —| (a) | all parties to the proceedings agree that such information may be published; or | | (b) | the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential. |
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(4) Notwithstanding subsection (3), where a court gives grounds of decision for a judgment in respect of proceedings to which this section applies and considers that judgment to be of major legal interest, the court shall direct that reports of the judgment may be published in law reports and professional publications but, if any party to the proceedings reasonably wishes to conceal any matter, including the fact that he was such a party, the court shall —| (a) | give directions as to the action that shall be taken to conceal that matter in those reports; and | | (b) | if it considers that a report published in accordance with directions given under paragraph (a) would be likely to reveal that matter, direct that no report shall be published until after the end of such period, not exceeding 10 years, as it considers appropriate. |
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| Court may set aside award |
24. Notwithstanding Article 34(1) of the Model Law, the High Court may, in addition to the grounds set out in Article 34(2) of the Model Law, set aside the award of the arbitral tribunal if —| (a) | the making of the award was induced or affected by fraud or corruption; or | | (b) | a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced. |
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25. An arbitrator shall not be liable for —| (a) | negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and | | (b) | any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award. |
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| Immunity of appointing authority and arbitral institutions, etc. |
| 25A.—(1) The appointing authority, or an arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith. [38/2001] | (2) The appointing authority, or an arbitral or other institution or person by whom an arbitrator is appointed or nominated, shall not be liable, by reason only of having appointed or nominated him, for anything done or omitted by the arbitrator, his employees or agents in the discharge or purported discharge of his functions as arbitrator. [38/2001] |
| (3) This section shall apply to an employee or agent of the appointing authority or of an arbitral or other institution or person as it applies to the appointing authority, institution or person himself. [38/2001] |
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26.—(1) This Part shall not apply in relation to an international arbitration between parties to an arbitration agreement that was commenced before 27th January 1995 unless the parties have (whether in the agreement or in any other document in writing) otherwise agreed.| (2) Subject to subsection (1), where the arbitral proceedings were commenced before 27 January 1995, the law governing the arbitration agreement and the arbitration shall be the law which would have applied if this Act had not been enacted. |
| (3) In any written law, agreement in writing or other document, a reference to arbitration under the Arbitration Act (Cap. 10) shall, so far as relevant and unless the contrary intention appears, be construed to include a reference to arbitration under this Act. |
| (4) For the purposes of this section, arbitral proceedings are to be taken as having commenced on the date of the receipt by the respondent of a request for the dispute to be referred to arbitration, or, where the parties have agreed in writing that any other date is to be taken as the date of commencement of the arbitral proceedings, then on that date. |
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