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18 October 2018

Dear Fellows, Members and Associate Members of Singapore Institute of Arbitrators,

1.  COUNCIL AND OFFICE-BEARERS:

Following the elections at the Annual General Meeting on 25 September 2018, the following is a listing of the Office-Bearers and Council Members till the next AGM in 2019.

President
Mr Dinesh Dhillon
(2017 – 2019) – Elected at AGM 2017
Vice President
Mr Tay Yu-Jin
(2018 – 2020) – Elected at AGM 2018
Honorary Secretary
Mr Francis Goh
(2018 – 2020) – Elected at AGM 2018
Honorary Treasurer
Mr Mohan R Pillay 
(2017 –  2019) – Elected at AGM 2017
Immediate Past President
Mr Chan Leng Sun S.C.
(2017 – 2019) (Imm. Past President) – under
Art. 7.1.3
Council Members
Mr Chia Chor Leong
(2017 – 2019) – appointed under Art. 7.8.6.2
w.e.f.  5 October 2017
Mr Chia Ho Choon
(2017 – 2019) – Elected at AGM 2017
Mr Andrew Pullen
(2017 – 2019) – Elected at AGM 2017
Mr Ramesh Selvaraj
(2018 – 2020) – Elected at AGM 2018
Ms Rebecca Tai Andersen
(2018 – 2020) – Elected at AGM 2018
Mr Yeo Boon Tat
(2018 – 2020) – Elected at AGM 2018


2.   COMMITTEES: 

The Council invites all Fellows and Members to volunteer to serve on Committees of the Institute. The Committees and their respective Chairs are as follows; and if you are interested in joining any of the Committees, please respond using the REPLY SLIP and email to the Secretariat by 1 November 2018. (You may select up to 3 Committees only).

For your information, please refer HERE for the Terms of Reference of these Committees and a list of the Committees for 2017-2018.

Committee
Chair
Activities
Mr Andrew Pullen
Arbitration Bar
Mr Tay Yu-Jin
Continuing Professional Development (CPD)
Mr Francis Goh
Education & Training
Mr Chia Chor Leong
Publications & Website
Mr Yeo Boon Tat
Scheme Arbitration
Mr Chia Chor Leong

 


 1 October 2018

Our 37th AGM was held on 25 September 2018. Congratulations to the 3 new Council members who were elected: Rebecca Tai Andersen, Ramesh Selvaraj and Yeo Boon Tat.


 25 September 2018

The following are the nominations for the positions of office bearers and Council.

President
Nominee
Proposer
Seconder
Vice President       
Tay Yu-Jin
Dinesh Dhillon
Naresh Mahtani
Hon. Secretary
Francis Goh
Dinesh Dhillon
Mohan Pillay
Council Member
Shourav Lahiri 
Naresh Mahtani
Francis Goh
Council Member
Ramesh Selvaraj
Dinesh Dhillon
William Ong
Council Member
Rebecca Tai Anderson   
Dinesh Dhillon
Johnny Tan
Council Member
Arthur Yap
Chia Chor Leong  
Naresh Mahtani  
Council Member
Yeo Boon Tat
Mohan Pillay
Dinesh Dhillon

The positions of Vice-President and Honorary Secretary are uncontested. Elections for 3 Council Member positions out of the 5 candidates (stated in alphabetical order by surname) will be held at the upcoming AGM.


 14 September 2018

PRESIDENT'S MESSAGE

Time has flown by and the end of 2018 will soon be upon us. It is thus opportune to reflect on some of our initiatives this year and the road ahead.

Education and Training is a core function of SIArb and it has as always been an eventful year. The Committee chaired by Naresh Mahtani conducted the International Entry Course (“IEC”) on 27, 28 & 30 April 2018 and 40 participants passed the examination. The next Fellowship Assessment Course (“FAC”) is scheduled for 18, 19, 26, 27, 29 October 2018. Course Director Leslie Chew SC will be introducing some fresh changes to the course syllabus, with an increased emphasis on practice sessions in addition to the award-writing component. The Singapore Chamber of Maritime Arbitration (“SCMA”) has also been in talks with us on a potential collobation on holding a course on accreditation for maritime arbitrators in 2019.

SIArb presently administers arbitrations conducted under two such schemes, namely the Committee for Private Education (“CPE”) Mediation-Arbitration Scheme, and the Council for Estate Agencies (“CEA”) Dispute Resolution Scheme. The arbitration rules for the CPE Mediation-Arbitration Scheme were revised and put into effect in April 2018. The Committee also seeks to promote scheme arbitrations in other areas and industries and to expand the number of schemes to be administered by SIArb in partnership with other organizations and bodies. The Committee led by Chia Chor Leong is presently pursuing initiatives to develop scheme arbitrations for disputes in the areas of telecommunications, commerce and sports.

The next Regional Arbitral Institute Forum (“RAIF”) Conference will be hosted by the Indonesian Arbitrators Institute (IArbI) in Jakarta on 28-29 November 2018. Details of this event are on our website... 

Read More

 

Dinesh Dhillon
President,
SIArb 2017-2019

 31 August 2018

NOTICE OF ANNUAL GENERAL MEETING
 
NOTICE IS HEREBY GIVEN that the 37th Annual General Meeting of the Singapore Institute of Arbitrators will be held on 25 September 2018 at 6.00pm at
1 Marina Boulevard, NTUC Centre, Level 9, Room 903, Singapore 018989.

SIArb members, please log-in to the Members' Resources for more details.


 12 June 2018

PRESIDENT'S MESSAGE

As at the time of my writing this, it is back on again! I am talking about the much anticipated meeting between President Donald Trump and Supreme Leader Kim Jong Un. Regardless of whether or not the meeting actually takes place, the choice of Singapore as the venue is worth reflecting on. Why is this relevant to international arbitration? I believe the factors that led to Singapore being chosen for this historic meeting is a reflection of the Singapore brand values that have shaped Singapore into being leading seat for global dispute resolution. Singapore was chosen because of its neutrality, safety, reliability, integrity, efficiency, excellence and openness. Singapore’s commitment to being a good host is further reflected by Minister of Defence, Ng Eng Hen’s stating that Singapore will willingly bear some of the costs of the planned summit.

It is such commitment to these Singapore “brand values” that will ensure Singapore keeps making strides in international arbitration. At the recently concluded SIAC Congress, Chief Justice Sundaresh Menon mentioned that one of the challenges was to ensure a constant pipeline of trained and future-ready practitioners. Read More

 

Dinesh Dhillon
President,
SIArb 2017-2019

17 May 2018

INVITATION TO JOIN THE SIARB POETRY COMPETITION

There's confliction and contradiction,
opposition inside a deep collision,
the fear of making the wrong decision.
 A disagreement without alleviation,
No rest found without accommodation,
If only there was an agreeable negotiation,
  All roads will lead to arbitration.
 Adapted from the poem "A showdown that won't slowdown" by Laura Loo

Open to SIArb members only.

Please write a poem about arbitration. The poem can be in any poetry style and can be about any facet of arbitration. There are no requirements as to the length of the poem.

Poems need to be received by 1 October 2018.

Click HERE for more details.


20 March 2018

PRESIDENT'S MESSAGE

It has been an eventful start for the Singapore Institute of Arbitrators (SIArb) for 2018.

We continue to be blessed with leading arbitrators sharing their knowledge at our events. I had the privilege of Chairing Professor Lawrence Boo’s talk on the developments in Singapore Arbitration in January 2018. It was an invigorating session with Prof Boo sharing his thoughts on landmark Singapore decisions such as Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Limited & 8 othes [2017] SGHC 195 in which the Singapore High Court set aside an investor-state arbitration award. February brought us an insightful session on Oil & Gas Arbitration by Mr Shourav Lahiri, Director, Lahiri LLC. I encourage all of you to also attend the upcoming session on 28 March on The Anatomy of Concurrent Evidence or Witness Conferencing, aka “Hot Tubbing”. Professor Leslie Chew will share with us the objective and mechanics of witness conferencing. Read More

 

Dinesh Dhillon
President,
SIArb 2017-2019

15 December 2017

PRESIDENT'S MESSAGE

2017 has been a significant year for Arbitration in Singapore and for the SIArb. As the year comes to an end, it is a time not only to reflect and give thanks but also to recharge and prepare for 2018.

SIArb celebrated its 36th Anniversary with a memorable dinner at Aura, National Gallery on 1 November. The organisers of the dinner, led by Tan Weiyi and assisted by our secretariat, Intellitrain repeated the success of last year’s dinner at the same venue. We thank our Guest of Honour, Mr VK Rajah SC, for his insights on the important issue of ethics in International Arbitration which has given us much food for thought. We also just concluded an excellent Symposium on 16 November at the iconic Old Parliament House. Kudos to Tay Yu-Jin and his committee on a sterling job done. Read More

 

Dinesh Dhillon
President,
SIArb 2017-2019

1 December 2017

SIArb LinkedIn Page

SIArb is pleased to announce: the launch of its new LinkedIn page.

We encourage you to follow, like and share our page, as well as contribute comments on our posts.


3 November 2017

Extension of time for Public Consultation on draft SIArb Guidelines on Party-Representative Ethics

SIArb announced the commencement of the public consultation process on the draft SIArb Guidelines on Party-Representative Ethics (“Guidelines”) in October 2017.

As this important subject is receiving keen attention and helpful consideration from many quarters, SIArb is pleased to extend the consultation period to 31 January 2018.  

View/Download Consultation paper HERE.

View/Download the draft Guidelines HERE.

SIArb members and all interested practitioners are invited to review the draft Guidelines and send in their comments during the consultation period (which is extended to 31 January 2018).  Comments may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.or in hard copy to Singapore Institute of Arbitrators, 6 Eu Tong Sen Street, #05-07, Singapore 059817, FAO Working Group on Party-Representative Ethics.


20 October 2017

Dear Fellows, Members and Associate Members of Singapore Institute of Arbitrators,

1.  COUNCIL AND OFFICE-BEARERS:

Following the elections at the Annual General Meeting on 28 September 2017, and co-options made at the Council meeting of 5 October 2017, the following is a listing of the Office-Bearers and Council Members till the next AGM in 2018.

President
Mr Dinesh Dhillon
(2017 – 2019) – Elected at AGM 2017
Vice President
Mr Tay Yu-Jin
(2017 – 2018) – appointed under Art 7.8.6.1 to
fill vacancy caused by Council Member’s
Dinesh’s appointment as Vice-President
Honorary Secretary
Mr Naresh Mahtani
(2016 – 2018) – Elected at AGM 2016
Honorary Treasurer
Mr Mohan R Pillay 
(2017 –  2019) – Elected at AGM 2017
Immediate Past President
Mr Chan Leng Sun S.C.
(2017 – 2019) (Imm. Past President) – under
Art. 7.1.3
Council Members
Mr Chia Chor Leong
(2017 – 2019) – appointed under Art. 7.8.6.2
w.e.f.  5 October 2017
Mr Chia Ho Choon
(2017 – 2019) – Elected at AGM 2017
Mr Francis Goh Siong Pheck
(2016 – 2018) – Elected at AGM 2016
Ms Adrienne Louise Beatrice Kouwenhoven
(2017 – 2018) – Co-opted by Council under Art. 7.1.4 w.e.f. 5 October 2017
Mr Andrew Pullen
(2017 – 2019) – Elected at AGM 2017
Ms Tan Weiyi
(2016 – 2018) – Elected at AGM 2016
Mr Yeo Boon Tat
(2016 – 2018) – Elected at AGM 2016


2.   COMMITTEES: 

The Council invites all Fellows and Members to volunteer to serve on Committees of the Institute. The Committees and their respective Chairs are as follows; and if you are interested in joining any of the Committees, please respond using the REPLY SLIP and email to the Secretariat by 3 November 2017. (You may select up to 3 Committees only).

For your information, please refer HERE for the Terms of Reference of these Committees and a list of the Committees for 2016-2017.

Committees
Chairs/Vice-Chair
Activities
Chair: Mr Andrew Pullen
Vice Chair: Ms Adrienne Louise Beatrice Kouwenhoven
Arbitration Bar
Mr Tay Yu-Jin
Continuing Professional Development (CPD)
Chair: Mr Francis Goh
Vice Chair: Mr Andrew Pullen
Education & Training
Mr Naresh Mahtani
Publications & Website
Mr Yeo Boon Tat
Scheme Arbitration
Mr Chia Chor Leong

 


26 September 2017

PRESIDENT'S MESSAGE

I am coming to the end of my second term as President of the Singapore Institute of Arbitrators. So much has happened in these four years. I will take this opportunity to take stock.

Some of you will remember that Intellitrain took over the running of our Secretariat at the end of 2013. It did a sterling job helping us to tidy up our internal records. Actual paid-up membership at that time was estimated to be about 665. We are now more than 900 members. I am fairly confident that we will hit the 1000 mark within a year. That will surely be a milestone to remember.

SIArb hosted the Regional Arbitral Institutes Forum (RAIF) Conference for the second time in August 2014, after the Conference had made its rounds to the homes of our fellow RAIF members. It was a tremendous success, attended by 120 lawyers from more than 10 countries. Read More

Chan Leng Sun S.C.
President,
SIArb 2013-2017

 28 August 2017

NOTICE OF ANNUAL GENERAL MEETING
 
NOTICE IS HEREBY GIVEN that the 36th Annual General Meeting of the Singapore Institute of Arbitrators will be held on 28 September 2017 at 6.00pm at
1 Marina Boulevard, NTUC Centre, Level 9, Room 903, Singapore 018989.

SIArb members, please log-in to the Members' Resources for more details.


18 May 2017

SIArb Guidelines for Third Party Funders

SIArb released its draft Guidelines for Third Party Funders for public consultation on 28 February 2017. This was followed by a lively seminar on Third Party Funding with panelists from SIArb, the Law Society and the Singapore International Arbitration Centre in March 2017. A number of law firms and third party funders have written in with their helpful comments on the draft Guidelines. Following the consultation period, SIArb has finalised its Guidelines for Third Party Funders on 18 May 2017.

Please download the Guidelines HERE and Accompanying Notes HERE.


28 February 2017

Public Consultation on SIArb Guidelines for Third Party Funders

The Civil Law (Amendment) Act (CLA) and the Civil Law (Third-Party Funding) Regulations 2017 (CLA Regulations) to facilitate third party funding of Singapore-seated international arbitrations and related court or mediation proceedings take effect from 1 March 2017. This statutory framework is meant to be supplemented by industry-led guidelines to promote best practices amongst stakeholders.

The Singapore Institute of Arbitrators (SIArb) is working on Guidelines for Third Party Funders to complement the third party funding regime in Singapore. A draft of the Guidelines is released HERE for public consultation. Feedback is welcome and should be submitted to SIArb by letter emailed to the SIArb Secretariat at This email address is being protected from spambots. You need JavaScript enabled to view it. by 31 March 2017.


20 February 2017

Discontinuation of Continuing Professional Development (CPD) Return Form

We will be discontinuing the current practice of requiring submission of the annual Continuing Professional Development (CPD) Return forms to SIArb by Panel Arbitrators with immediate effect.
SIArb Panel Arbitrators will continue to have the individual responsibility, on an honour basis, to engage in continuing professional development activities to remain equipped to serve as arbitrators on the Panel, as per the Panel Arbitration CPD Points Guidelines HERE.


24 January 2017

SIArb E-Newsletter

SIArb is pleased to announce that its newsletter has gone fully online, and the hardcopy edition has been replaced with an e-newsletter.

We will continue to bring you quality content and timely updates, delivered right to your inbox.

Click HERE to read our latest issue. Read our other issues HERE

Should any member have any contributions to make to the e-newsletter, please email This email address is being protected from spambots. You need JavaScript enabled to view it.


 

Newsletter

SIArb Newsletter Issue 27 (14 September 2018)

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14 September 2018 (Issue No. 27)
 
the president's column

PRESIDENT'S MESSAGE - September 2018

Time has flown by and the end of 2018 will soon be upon us. It is thus opportune to reflect on some of our initiatives this year and the road ahead.
Education and Training is a core function of SIArb and it has as always been an eventful year. The Committee chaired by Naresh Mahtani conducted the International Entry Course (“IEC”) on 27, 28 & 30 April 2018 and 40 participants passed the examination. The next Fellowship Assessment Course (“FAC”) is scheduled for 18, 19, 26, 27, 29 October 2018. Course Director Leslie Chew SC will be introducing some fresh changes to the course syllabus, with an increased emphasis on practice sessions in addition to the award-writing component. The Singapore Chamber of Maritime Arbitration (“SCMA”) has also been in talks with us on a potential collobation on holding a course on accreditation for maritime arbitrators in 2019.
SIArb presently administers arbitrations conducted under two such schemes, namely the Committee for Private Education (“CPE”) Mediation-Arbitration Scheme, and the Council for Estate Agencies (“CEA”) Dispute Resolution Scheme. The arbitration rules for the CPE Mediation-Arbitration Scheme were revised and put into effect in April 2018. The Committee also seeks to promote scheme arbitrations in other areas and industries and to expand the number of schemes to be administered by SIArb in partnership with other organizations and bodies. The Committee led by Chia Chor Leong is presently pursuing initiatives to develop scheme arbitrations for disputes in the areas of telecommunications, commerce and sports.
The next Regional Arbitral Institute Forum (“RAIF”) Conference will be hosted by the Indonesian Arbitrators Institute (IArbI) in Jakarta on 28-29 November 2018. Details of this event are on our website...


Read More

Dinesh Dhillon
President,
SIArb 2017-2019

case law developments

China Machine New Energy Corp v Jaguar Energy Guatemala LLC & Anor [2018] SGHC 101

By Justin Gan, Sarah Kuek – Stephenson Harwood (Singapore) Alliance
This is the first Singapore case to discuss confidentiality protections concerning document production in the arbitration context. It also discusses (a) the effect of an agreement for arbitration to be conducted within a short fixed timeframe and natural justice considerations, (b) whether there is an implied duty of good faith in arbitration, and (c) whether an arbitral tribunal is under a duty to investigate allegations of corruption.

Sanum Investments Limited v ST Group Co, Ltd and others [2018] SGHC 141

By Wynne Tay – MPillay
This case concerns one of many applications taken out in respect of the enforcement of an award dated 22 August 2016 (the "Award") issued in relation to an arbitration administered under the auspices of the Singapore International Arbitration Centre ("SIAC"). The application before the court was for the refusal of enforcement of the Award under Article 36(1) of the UNCITRAL Model Law on International Commercial Arbitration ("Model Law") contained in the First Schedule of the International Arbitration Act (the "IAA"). The Court dismissed the application as against three out of the four applicants.
The judgment is interesting not least because the facts concern a multi-party situation while involving a multi-tiered dispute resolution clause. Additionally, the Court also considered the principles relevant to the refusal of enforcement of award under Art 36(1)(a)(iv) of the Model Law where the arbitration was wrongly seated.
 
in the hot seat!

Johnny was appointed sole arbitrator in over 100 cases in both domestic and international arbitration. He is on the panel of arbitrators of several arbitration centres including Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), Dubai International Arbitration Centre (DIAC), Kuala Lumpur Regional Centre for Arbitration (KLRCA), South China International Economic and Trade/Arbitration Commission/Shenzhen Court of International Arbitration (SCIA), London Court of International Arbitration (LCIA), Indian Institute of Arbitrators and Mediators (IIAM), Russian Arbitration Centre at the Russian Institute of Modern Arbitration (RIMA) formerly known as the Moscow Institute of Arbitrators, Singapore Institute of Arbitrators (SIArb), and Singapore Institute of Architects (SIA).


Read More

 
 
Recent Events
Maritime Arbitration – Tips on Rules and Practices (14 August 2018)
Speakers: Mr. Andrew G Moran QC, Mr. Prem Gurbani
Chair: Mr. Lawrence Teh

Two senior arbitrators Mr Prem Gurbani and Mr Andrew Moran QC spoke on maritime arbitration and their experiences, to a full audience of practitioners and other arbitrators. The session was chaired by Mr Lawrence Teh, Senior Partner at Dentons Rodyk.
Mr Moran QC discussed the new LMAA Terms, explaining the rationale behind the changes and how some reflected changes in attitude in London maritime arbitration. He also took the audience through a comparison with the present SCMA Rules. At the end of his section, Mr Moran QC revealed that he was to chair the SCMA Procedure Committee looking into potential revisions to the SCMA Rules.
Mr Gurbani provided an overview of the differences arbitrating ad hoc, under the SIAC Rules (2016), and the SCMA Rules (2015). Points that stood out included the availability of small claims procedures under the SCMA Rules, and emergency arbitrator procedures under the SIAC Rules. There was brief mention of instances where a party's arbitrator nomination is not accepted by the SIAC - for example where the nominee already has a heavy caseload.

 
Focus on Commodities, Minerals and Energy Arbitration (26 July 2018)
Speakers: Mr. Joseph Lopez, Mr. Ben Lawson
Chair: Mr. Andrew Pullen

The seminar on “Focus on Commodities, Minerals and Energy Arbitration was held on 26 July 2018 at The Central (Clarke Quay). The opening remarks were given by Mr Andrew Pullen, a seasoned barrister at Fountain Court Chambers. This was followed by a panel discussion by Mr Joseph Lopez, Partner in Joseph Lopez LLC, and Mr Ben Lawson, Chief Operating Officer of PT. Sanaman Coal International.
The panel discussion was extremely insightful for practitioners and clients alike. Mr Lopez and Mr Lawson both boast an impressive CV with vast experience in the coal and mining industry, and are extremely knowledgeable in their respective practices. They were thus able to provide the audience with invaluable practical pointers on the issues frequently faced in commodities, minerals and energy arbitrations. The panellists’ use of practical illustrations was also extremely helpful in helping to elucidate more complex points.

Upcoming Events

Date
Event
20 September 2018
25 September 2018
25 September 2018
SIArb Annual General Meeting 2018
03 October 2018
18-19, 26-27, 29 October 2018
14 November 2018
15 November 2018
22 November 2018
06 December 2018
A Debate on the Motion "This house believes that computers will replace arbitrators within 25 years"
24 Jan 2019
Party-Representative Ethics – Giving Bite to Ethical Rules

View our Past & Upcoming Events HERE

announcements

Call for Expressions of Interest for Assistant Editors

You may recall that members were consulted on an initiative to publish a journal on Singapore arbitration at the 36th Annual General Meeting on 28 September 2017.
Following the positive support received for the concept, Mr. Mohan Pillay and Mr. Yeo Boon Tat were asked to spearhead this special project. Council is pleased to inform members that we are now concluding discussions with a publisher to co-publish the journal, and are also in process of forming the editorial team for the arbitration journal.
Given this is a SIArb publication, Council is keen for members to have an opportunity to contribute to this special project.
We therefore invite expressions of interest from suitably qualified members for the position of Assistant Editors for the arbitration journal.

Read More


New Members
The Institute extends a warm welcome to the following members:
Associates
  • Bumal Murchoyea
Members
  • Ho Kim May
  • Ang Wee Jian
  • Al Joseph Cedeño
  • Yong Neng Chan
  • Cheong Mun Juen
  • Renuka Karuppan Chettiar
  • Choo Zheng Xi
  • Doan Thuan Hai
  • Gan Wee Hooi
  • Kwang Ming Hua
  • Li Siling
  • Colin Liew Lim Wee Liang
  • Loke Mun Wai Andrew
  • James Love
  • Peng Kong Luke
  • Meera Rajah
  • Peck Shan Ren
  • Ananya Pratap Singh
  • Dinesh Natarajan Venkatesh
  • Gunawan Widjaja
  • Ang Si Yi
  • Joerg Schappei
  • Benjamin Tham
  • Kenneth Tan
Fellows
  • Tony Budidjaja
  • Jeffrey Chan
  • Daniel Reback
  • Michael Lee
  • Neo Xing Hui, Esther
View our Member Listing HERE.
Call for Contribution of Articles
The SIArb Newsletter is a publication of the Singapore Institute of Arbitrators aimed to be an educational resource for members and associated organisations and institutions of higher learning. Readers of the newsletter are welcome to submit to the Secretariat at This email address is being protected from spambots. You need JavaScript enabled to view it. well-researched manuscripts of merit relating to the subject matter of arbitration and dispute resolution. Submissions should be unpublished works between 1,500 to 2,500 words and are subject to the review of the editorial team.
    Council (2017 - 2018) Publications Committee
President    
Dinesh Dhillon
Vice President
Tay Yu-Jin
Honorary Secretary
Naresh Mahtani
Honorary Treasurer
Mohan R Pillay
Immediate Past President
Chan Leng Sun S.C.
Council Members
Chia Chor Leong
(co-opted wef 5 Oct 2017)
Chia Ho Choon
Francis Goh Siong Pheck
Adrienne Louise Beatrice Kouwenhoven
(co-opted wef 5 Oct 2017)
Andrew Pullen
Tan Weiyi
Yeo Boon Tat
Chair
Yeo Boon Tat
Committee Members
Adolf Peter
Eric Chew
David K K Chung
Fayth Huinan Kuah
Gan Boon Eng Justin
Lim Hseng Iu
Rian Matthews
Gan Kam Yuin
Tham Wei Chern
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Disclaimer
The SIArb Newsletter is a quarterly of the publication of the Singapore Institute of Arbitrators. Distribution is restricted to members and those organisations and institutions of higher learning associated with the Institute.

The Institute does not hold itself responsible for the views expressed in the Newsletter which must necessarily lie with the contributors.

 

By Justin Gan, Sarah Kuek – Stephenson Harwood (Singapore) Alliance

This is the first Singapore case to discuss confidentiality protections concerning document production in the arbitration context. It also discusses (a) the effect of an agreement for arbitration to be conducted within a short fixed timeframe and natural justice considerations, (b) whether there is an implied duty of good faith in arbitration, and (c) whether an arbitral tribunal is under a duty to investigate allegations of corruption.

Background

China Machine New Energy Corporation ("CMNC") and Jaguar Energy Guatemala LLC ("Jaguar Energy") entered into a Lump-Sum Turnkey Engineering, Procurement & Construction Contract dated 29 March 2008 ("EPC Contract") for the construction of a power plant in Guatemala.

About a year and a half later, CMNC, Jaguar Energy and AEI Guatemala Jaguar Ltd ("AEI", together "Jaguar") entered into a deferred payment security agreement ("DPSA") to provide Jaguar Energy with the option of issuing debit notes to CMNC instead of making certain milestone payments under the EPC Contract. These debit notes were to be secured by security interests over assets of both Jaguar Energy and AEI, the sole shareholder of Jaguar Energy.

In October 2013, disputes arose between the parties. CMNC failed to meet certain milestones in the construction of the power plant, in particular two scheduled take-over dates, under the EPC Contract. Jaguar issued a number of notices to CMNC requiring it to take corrective measures. CMNC did not take such corrective measures.

In December 2013, Jaguar terminated the EPC Contract and assumed control of the construction site in order to complete the project itself.

Arbitration

Jaguar commenced arbitration against CMNC in Singapore on 28 January 2014 for liquidated damages and costs required to complete construction of the plant ("completion costs"). CMNC counter-claimed on the basis that it had exercised certain Step-In Rights under the DPSA and Jaguar was not entitled to terminate the EPC Contract.

The arbitration agreement expressly provided for arbitration of disputes under the EPC Contact to be completed within a tight timeframe. On 25 November 2015, the Tribunal issued its final Award. The Tribunal held Jaguar validly terminated the EPC Contract and allowed Jaguar's claim for liquidated damages and completion costs. CMNC's counterclaims were dismissed.

Setting aside

On 26 February 2016, CMNC applied to set aside the Award. CMNC argued:

  1. It had been deprived of the opportunity to present its case, primarily because of an "attorney eyes only" ("AEO") order made in the document production phase of the arbitration: IAA s.24(a), Model Law Art.34(2)(a)(ii). CMNC also argued that the Tribunal failed to consider an argument it had made with respect to one of its counterclaims and that there was therefore a breach of natural justice.
  2. The Tribunal had not treated parties equally: Model Law Art.18, 34(2)(a)(iv).
  3. Jaguar had breached an implied duty to arbitrate in good faith. Further, the Tribunal had acted in breach of the agreed arbitral procedure by failing to restrain Jaguar's bad faith conduct and the Award should therefore be set aside: Model Law Art.34(2)(a)(iv). Alternatively, Jaguar's alleged "guerilla tactics" meant the Award conflicted with public policy: Art.34(2)(b)(ii), IAA s.24(b).
  4. The Tribunal breached its duty to investigate certain corruption allegations and/or the Award was induced or affected by corruption. The Award was therefore in conflict with public policy: Art.34(2)(b)(ii), IAA s.24(b).

CMNC's application was dismissed.

Judgment

The Court reaffirmed and emphasized its policy of minimal curial intervention to allegations of breach of natural justice, and the Tribunal's wide power to control procedure.

Natural justice / reasonable opportunity to present case

CMNC's arguments focused on the AEO order made, which permitted Jaguar to disclose certain documents to only CMNC's professional advisors, but not CMNC. CMNC said this breached established rules and norms of court and arbitral proceedings, and was in any event inappropriate and denied it the opportunity to know the evidence against it and to properly present its case.

The AEO order related to some of Jaguar's exhibits to its Statements of Case, and some of CMNC's specific disclosure requests which Jaguar was ordered to meet. Jaguar alleged that CMNC had engaged in threatening actions against Jaguar and Jaguar's contractors. It was concerned that if CMNC obtained the details of those contractors through documents produced in the arbitration it would interfere with the plant and the arbitration.

The Court rejected CMNC's arguments:

  • The Tribunal was empowered and entitled to impose an AEO order under the ICC Rules 1998 and under its broad case management powers.
  • There was some evidence of CMNC's interference with Jaguar's completion of the Project before the Tribunal. The Tribunal took "a preliminary view on the risk of CMNC misusing documents, and imposed the AEO Regime on that basis".
  • The Tribunal had of its own volition imposed additional safeguards in the AEO order which expressly allowed CMNC to apply for documents to be shown to particular CMNC employees for the purpose of giving instructions to counsel. CMNC never made such application, despite the Tribunal's repeated reminders.
  • In any event CMNC agreed to the timelines for preparation of the case after the AEO order was in place. CMNC's complaint that it did not have sufficient time to review the documents did not arise from the AEO Regime. Rather, its agreement in the arbitration agreement to an arbitration conducted within a short fixed timeframe "required the procedural timelines for the Arbitration to be compressed with concomitant implications for the quality of due process that could be afforded to the parties within that framework".
  • The suggestion that the Tribunal had not considered CMNC's DPSA arguments was incorrect as the Court found, on the evidence submitted, the Tribunal had considered and rejected CMNC's case.

Equal treatment – Model Law Art.18

The Court disagreed with CMNC's argument that the Tribunal had not treated parties equally in making the AEO order. The Tribunal made the AEO order because it reasonably considered, based on evidence submitted, that there was a risk that CMNC could misuse documents produced. However, the Tribunal had also safeguarded CMNC's interests by allowing CMNC to apply to the Tribunal in the event it wished for particular employees to view particular documents. CMNC never made such an application.

Implied duty of good faith

CMNC argued parties to an arbitration agreement have an implied duty to arbitrate in good faith, which Jaguar breached by employing alleged "guerilla tactics", which the Tribunal failed to restrain. CMNC therefore argued that the Tribunal had breached the agreed arbitral procedure.

The Court did not reach a conclusion on whether such an implied duty exists, but commented as follows:

  • An arbitration agreement does not necessarily impose a general obligation of good faith.
  • It may imply such a duty, depending on its interpretation under its governing law.
  • In Singapore, there is no general "good faith" principle in contract law.
  • Parties have a duty to co-operate in the arbitral process, but it is unclear if that is the same as a duty to arbitrate in good faith.

The Court found that Jaguar had not employed supposed "guerilla tactics" or acted in bad faith. It therefore did not have to determine whether an implied duty existed.

  • CMNC alleged that Jaguar had harassed and intimidated CMNC's potential witnesses. The Court held that so-called "guerilla tactics" would have to involve a conscious tactical decision to employ illegal or unethical means with an intended aim of obstructing, delaying, derailing or sabotaging arbitration. CMNC's allegations, even taken at their highest, related to matters before the commencement of the arbitration.
  • On the facts there was insufficient evidence of bad faith. The Tribunal had determined Jaguar acted lawfully in seizing the construction site and terminating CMNC's access to a shared data room.

The Court also declined to recognise that an Award may be set aside on the basis of alleged "guerilla tactics", where those tactics fell outside the recognized grounds for setting aside.

Corruption

Three days before the merits hearing in the arbitration, an independent commission in Guatemala released a report stating one of Jaguar's representatives (and a witness in the arbitration) had bribed government officials in relation to the dispute with CMNC and to the project, by making payments under "consultancy contracts". That representative was charged with corruption.

In response, Jaguar withdrew that portion of its claim that related to a consultancy contract, which did not form part of the Award. Nonetheless, CMNC argued the Award should be set aside as the Tribunal had failed to investigate the corruption allegations.

The Court rejected CMNC's arguments:

  • It accepted that a Tribunal has a duty to investigate an allegation of corruption if this affects the issues under consideration in the arbitration, which if proven would render the award unenforceable as contrary to public policy in certain circumstances.
  • The Tribunal was not under such a duty here as the corruption allegations had no bearing on the issues in the arbitration.
  • Even if the Tribunal had been under such a duty in this case and it had failed to investigate the allegations of corruption, that failure had to be causally linked to the Award. There was no such link in this case.

By Wynne Tay– MPillay

Sanum Investments Limited v ST Group Co, Ltd and others [2018] SGHC 141

This case concerns one of many applications taken out in respect of the enforcement of an award dated 22 August 2016 (the "Award") issued in relation to an arbitration administered under the auspices of the Singapore International Arbitration Centre ("SIAC"). The application before the court was for the refusal of enforcement of the Award under Article 36(1) of the UNCITRAL Model Law on International Commercial Arbitration ("Model Law") contained in the First Schedule of the International Arbitration Act (the "IAA"). The Court dismissed the application as against three out of the four applicants.

The judgment is interesting not least because the facts concern a multi-party situation while involving a multi-tiered dispute resolution clause. Additionally, the Court also considered the principles relevant to the refusal of enforcement of award under Art 36(1)(a)(iv) of the Model Law where the arbitration was wrongly seated.

Background facts

Sanum Investments Limited ("Sanum") is a company incorporated in Macau and was, in 2007, looking for business opportunities in Lao. It was then that it got in touch with ST Group Co., Ltd ("ST Group"), Mr Sithat Xaysoulivong ("Mr Sithat"), ST Vegas Co. Ltd ("ST Vegas Co.") and S.T. Vegas Enterprise Ltd. ("ST Vegas Enterprise") (collectively, "the Lao disputants").

The parties negotiated and entered into a joint venture arrangement which was embodied in an agreement dated 30 May 2007 (the "Master Agreement"). The Master Agreement contemplated three joint ventures, one of which concerned the operation of slot clubs. To execute the joint venture for two slot clubs, Sanum and ST Vegas Enterprise entered into a Participation Agreement on 6 August 2007 (the "Participation Agreement").

There was a third slot club named Thanaleng Slot Club which was not treated as immediately part of the slot club joint venture as there were existing third party machine owners involved. Nonetheless, the Master Agreement envisaged that Sanum would take over the Thanaleng Slot Club when the third party machine owners' contracts terminated.

In relation to the Thanaleng Slot Club, three agreements were entered into:

  1. Temporary Thanaleng Participation Agreement between Sanum and ST Vegas Co;
  2. First Expansion Agreement between Sanum and ST Group; and
  3. Second Expansion Agreement between Sanum, ST Group and ST Vegas Co

(collectively, the "Thanaleng Documents").

It later transpired that ST Vegas Co did not turn over the Thanaleng Slot Club to Sanum. Sanum then commenced arbitral proceedings before the Lao Organisation of Economic Dispute Resolution ("OEDR") where Sanum's claim was dismissed. ST Vegas Co commenced proceedings against Sanum in the Vientiane People's Commercial Court afterwards, seeking inter alia, a declaration that the Temporary Thanaleng Participation Agreement had expired and that the parties no longer owed any obligations to each other in relation to the Thanaleng Slot Club. In response, Sanum filed a defence and counterclaim against ST Vegas Co, ST Group, Mr Sithat and Xaya Construction Company Ltd. Sanum's counterclaim was ultimately dismissed and ST Vegas Co's claim was affirmed.

Sanum subsequently commenced arbitration seeking damages for breaches of the Master Agreement, and the Participation Agreement (the "SIAC Arbitration"). The tribunal found in favour of Sanum.

The court proceedings

The Lao disputants applied for the refusal of enforcement of the Award arguing that:

  1. the Award was made pursuant to an arbitration agreement (or agreements) to which not all the Lao disputants were party (under Article 36(1)(a)(i) of the Model Law);
  2. the Award deals with a dispute not contemplated by or falling within the scope of the submission to arbitration (under Article 36(1)(a)(iii) of the Model Law); and
  3. the composition of the tribunal and the seat of the arbitration were not in accordance with the agreement of the parties (under Article 36(1)(a)(iv) of the Model Law).

The Lao disputants took the position that the underlying dispute concerned the Thanaleng Slot Club and must therefore have arisen out of the Thanaleng Documents which did not contain any arbitration agreement. However, on the facts, the court found that the underlying dispute arose out of the Master Agreement alone and Clause 2(10) of the Master Agreement was an agreement to arbitrate: [45]-[46]

The Court also found that amongst the Lao disputants, ST Vegas Enterprise was not a party to the Master Agreement: [83].

However, this finding alone was insufficient to dispose of the Lao disputant's jurisdictional challenge under grounds 1 and 2 above as Clause 2(10) was "a multi-tiered clause which not only sets out pre-requisites to the commencement of arbitration but, more importantly by its language, defines and limits the parties who may proceed to the stage of international arbitration.": [63].

Clause 2(10) of the Master Agreement stated:

"If any dispute shall arise, the Parties agree to conduct an amicable negotiation. If such dispute cannot be settled by mediation, the Parties may submit such disputes to the Resolution of Economic Dispute Organization or Courts of the Lao PDR according to the provision and law of Lao PDR in accordance with this Agreement. All proceedings of the arbitration shall be conducted in the Lao and English languages.

Before settlement by the arbitrator under the rules of the Resolution of Economic Dispute Organization, the Parties shall use all efforts to assist the dispute resolution in accordance with the laws of Lao PDR.

If one of the Parties is unsatisfied with the results of the above procedure, the Parties shall mediate and, if necessary, arbitrate such dispute using an internationally recognized mediation/arbitration company in Macau, SAR PRC." [emphasis added]

In construing Clause 2(10), the Court held that "the relevant parties of the arbitration are those who have fulfilled the 'above procedure' (ie. the OEDR procedure or Lao court proceedings)". In this regard, it noted that "[s]ave for ST Vegas Enterprise, Mr Sithat, ST Group and ST Vegas Co were involved in the pre-requisite steps necessary to commence international arbitration under Clause 2(10)." Therefore, Sanum was only entitled to commence international arbitration against the latter three entities and individual: [91].

The Court further held that the phrase "arbitrate such dispute using an internationally recognized mediation/arbitration company in Macau, SAR PRC" in Clause 2(10) was to be construed to mean that "[p]arties shall arbitrate such dispute, using an internationally recognized arbitration company, in Macau", although several plausible interpretations of the phrase were presented to it: [102].

Accordingly, the Court found that the commencement of the arbitration at SIAC was proper as SIAC was an internationally-recognised arbitration company chosen by the dissatisfied party Sanum. However, the tribunal was erroneous in finding the seat was Singapore as, by the above-mentioned interpretation, the seat of arbitration was made express ie. Macau: [104]-[106].

Having found that the correct seat of the arbitration was Macau and not Singapore, the Court considered whether this irregularity should be a ground for refusal of enforcement under Article 36(1)(a)(iv) of the Model Law.

In this regard, the Court noted that "material prejudice is ordinarily required for non-recognition (which by implication, goes towards non-enforcement)". It also applied the principle in AQZ v ARA [2015] 2 SLR 972 (a case concerning a setting-aside application) in holding that prejudice is a relevant factor the Court considers in deciding whether the breach in question is serious and thus whether to exercise its discretionary power to refuse enforcement for breach. The Court found that the Lao disputants had not produced any evidence of prejudice arising out of the procedural irregularities in the Award and had therefore not discharged their burden of demonstrating the seriousness of the breach. Consequently, the Court held that the Lao disputants' arguments to resist enforcement were insufficient for the Court to refuse enforcement under Article 36(1)(a)(iv) of the Model Law: [114].

Notably, the Court made the observation that the choice of a seat for arbitration is less important in an application to refuse enforcement (as opposed to one setting aside the award) as enforcement can be brought in any jurisdiction but only the seat court can set aside an award. Accordingly, a mere assertion of an incorrectly seated arbitration is insufficient and there must be evidence of how the law of the incorrect seat would impact the procedure adopted by the tribunal: [115].

 

Sinolanka Hotels & Spa (Private) Limited v Interna Contract SpA [2018] SGHC 157

This High Court decision concerns an application for a ruling on the jurisdiction of an arbitral tribunal and or, alternatively, to set aside the award issued by the arbitral tribunal on the basis that it lacked jurisdiction to hear and determine the dispute between the parties.

The Court in this case had to consider different arbitration clauses found in different contract documents in order to determine if the tribunal lacked jurisdiction for having the arbitration proceed under the auspices of the International Chamber of Commerce ("ICC") and seated in Singapore.

Background facts

The plaintiff is the developer of the Grand Hyatt Colombo Project for Hyatt International (Europe Africa Middle East) LLC who awarded the contract to provide interior fit out and furnishing works for the Grand Hyatt Colombo Project to the defendant. In this connection, the parties executed documents entitled "Contract Agreement" and "Memorandum of Understanding" on 7 January 2015.

Following a wholesale change in the board of directors of the plaintiff, the plaintiff purported to terminate the contract with the defendant. By this time, the defendant had completed part of the works and incurred significant expenditure in relation to those works.

Subsequently, the defendant referred the disputes with the plaintiff to ICC for arbitration in accordance with the arbitration clause (the "ICC Arbitration Clause") contained in a letter entitled "Letter of Acceptance" issued by the Plaintiff dated 22 December 2014. A three-man arbitral tribunal was constituted and the ICC International Court of Arbitration determined the seat of the arbitration to be Singapore following the parties' failure to agree on the seat.

The plaintiff raised objections to the jurisdiction of the tribunal at an early stage of the arbitral proceedings on the basis that the ICC Arbitration Clause was not agreed upon by the parties. Rather, the plaintiff alleged that the parties had agreed to the arbitration clause found in the particular conditions providing for disputes to be "finally settled as per the Arbitration Act No. 11 of 1995 of Sri Lanka and the place of Arbitration shall be Colombo" (the "Sri Lankan Arbitration Clause").

Despite these objections, the tribunal did not make a preliminary ruling on its jurisdiction at any stage of the proceedings and the parties proceeded with the hearing.

In the tribunal's final award, the tribunal ruled against the plaintiff on both jurisdiction and the merits and awarded the defendant damages, legal costs and costs of the arbitration.

The court proceedings

In the court proceedings, the plaintiff sought the following remedies:

  1. an order that the tribunal lacked jurisdiction to hear and determine the dispute between the parties pursuant to s 10 of the International Arbitration Act (the "IAA") read with Art 16(3) of the Model Law; and, or alternatively,
  2. a setting-aside order on the arbitral award pursuant to s 3 of the IAA read with Art 34(2)(a)(i) of the Model Law because the tribunal had founded its jurisdiction on an invalid arbitration agreement.

The plaintiff argued that the operative arbitration agreement was the Sri Lankan Arbitration Clause because it was found in the particular conditions that came with the tender package, the basis on which the defendant had made its offer to contract. The Letter of Acceptance, which came later in time than the particular conditions, was legally a counter-offer by the plaintiff which had not been accepted by the defendant: [15]. Consequently, in having the arbitration proceed on the basis of the ICC Arbitration Clause, the tribunal lacked jurisdiction.

The Court found that the proper starting point in the analysis was the Contract Agreement which was executed after the tender process, exchange of letters and negotiations. The Contract Agreement was plain and unambiguous in stating that the Letter of Acceptance was a part of the agreement between the parties: [42].

Further, the priority of the contractual documents in the interpretation of the contract as set out in Clause 2 of the Contract Agreement confirmed that the ICC Arbitration Clause in the Letter of Acceptance prevailed over the Sri Lankan Arbitration Clause in the Particular Conditions: [43]-[44].

The Court also found that the conduct of the parties in the lead-up to the Letter of Acceptance confirmed that during negotiations, the parties had differing views as to the appropriate arbitration rules and venue. The plaintiff's subsequent inclusion of the ICC Arbitration Clause in the Letter of Acceptance was an acknowledgement of the defendant's wishes of having the arbitration proceed under ICC rules in Singapore. Consequently, there had been an acceptance by the plaintiff of the same: [47] and [49].

Separately, in affirming the holding in AQZ v ARA [2015] 2 SLR 972, the Court went on to observe that the plaintiff had no basis to seek relief under s 10(3) of the IAA and Art 16(3) of the Model Law given that there was no preliminary ruling by the tribunal on its jurisdiction and that the final award disposed of the jurisdictional challenge and the substantive merits of the dispute. Accordingly, the appropriate remedy sought should have been to set aside the award pursuant to Art 34(2)(a)(i) of the Model Law: [77]-[80].

In view of the above, the Court refused the remedies sought by the plaintiff.

SIArb Newsletter Issue 26 (12 June 2018)

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June 2018 (Issue No. 26)
 
the president's column

PRESIDENT'S MESSAGE - June 2018

As at the time of my writing this, it is back on again! I am talking about the much anticipated meeting between President Donald Trump and Supreme Leader Kim Jong Un. Regardless of whether or not the meeting actually takes place, the choice of Singapore as the venue is worth reflecting on. Why is this relevant to international arbitration? I believe the factors that led to Singapore being chosen for this historic meeting is a reflection of the Singapore brand values that have shaped Singapore into being leading seat for global dispute resolution. Singapore was chosen because of its neutrality, safety, reliability, integrity, efficiency, excellence and openness. Singapore’s commitment to being a good host is further reflected by Minister of Defence, Ng Eng Hen’s stating that Singapore will willingly bear some of the costs of the planned summit.

It is such commitment to these Singapore “brand values” that will ensure Singapore keeps making strides in international arbitration. At the recently concluded SIAC Congress, Chief Justice Sundaresh Menon mentioned that one of the challenges was to ensure a constant pipeline of trained and future-ready practitioners. SIArb will continue to play its part through its membership and fellowship programs. We will review our curriculum to ensure it is world class. In this regard, we welcome input and feedback from you, our members – let us know what you think can be done better or differently and we will be committed to considering all options. Read More

Dinesh Dhillon
President,
SIArb 2017-2019

case law developments

(1) Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56, and (2) Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2018] SGHC 78
By Justin Gan, Sarah Kuek and Tan Yi Lei – Stephenson Harwood (Singapore) Alliance

The last quarter has seen a number of arbitration decisions reported. We focus on 2 decisions in this edition of the newsletter
- Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56
- Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2018] SGHC 78
articles

Party Representatives And Ethics In International Arbitration
By Chew Yee Teck, Eric - ECYT Law LLC

I. INTRODUCTION OF SIARB DRAFT GUIDELINES

1. In the absence of a universally-applicable code for ethics in international arbitration, members of the Singapore Institute of Arbitrators (“SIArb”) Working Group drafted the Singapore Institute of Arbitrators Guidelines on Party-Representative Ethics Consultation Paper (the “Guidelines”) to address concerns on Party Representatives’ conduct in such proceedings.

Read More

How Arbitral Tribunals Deal With Jurisdictional Objections In Practice – To Bifurcate Or Not, And Court Review Of Jurisdictional Objections
By Albert Monichino Q.C

A. Introduction
The present paper shall address two separate but related topics:
(a) first, how arbitral tribunals deal with jurisdictional objections in practice; and
 
Read More
 
in the hot seat!

In each issue of our newsletter, we interview an SIArb member to get their views on the alternative dispute resolution scene in Singapore, and to obtain some insight into what makes them tick. In this issue, we interview Mr. David L. Kreider.
Read More

 
 
Recent Events
Construction Dispute Resolution – Managing the Process: A Discussion about Best Practices (8 May 2018)
Speakers: Mr. Edwin Lee, Mr. Ho Chien Mien, Mr. Eugene Tan Chair: Mr. Mohan Pillay


Four Senior Accredited Specialists in Building and Construction Law came together on 8 May 2018 to share their experiences in managing construction disputes and explore best practices. 

Chaired by Mr Mohan Pillay, the seminar started off with a discussion by Mr Edwin Lee about the importance of Scott and Redfern Schedules in facilitating efficient organisation of information in large, complex construction disputes, which often involve voluminous sets of information and documents. 

Mr Ho Chien Mien then spoke about experts – a common feature in most construction disputes – and how to use them efficiently in legal proceedings. This included issues ranging from the choice of experts, to how best to present expert evidence particularly in the context of “hot-tubbing” during proceedings.

 
 
 

The Anatomy of Concurrent Evidence or Witness Conferencing, aka ‘Hot Tubbing’ (28 March 2018)

Speaker: Prof Leslie Chew, SC
Chair: Mr. Chia Chor Leong

The Anatomy of Concurrent Evidence or Witness Conferencing, aka ‘Hot Tubbing’ seminar was held on 28 March 2018 at The Central (Clarke Quay). The seminar was chaired by Mr. Chia Chor Leong and the guest speaker was former District Court Judge, Professor Leslie Chew, SC.

Not only did Professor Chew give a broad and robust lecture on the nature, effectiveness and operation of ‘witness conferencing’, he also gave his own pointers about how a fact-finder could apply 'witness conferencing' to greater effectiveness in court and in arbitration hearings.


Read More

 
Upcoming Events
 
Date
Event
26 July 2018
14 August 2018
20 September 2018
Focus on Interlocutory Applications in Arbitrations
25 September 2018
Annual General Meeting
03 October 2018
Fraud Investigations – Tracing Assets and Identifying Beneficial Owners
18-19, 26-27, 29 October 2018
Fellowship Assessment Course
14 November 2018
15 November 2018

View our Past & Upcoming Events HERE

announcements
New Members
The Institute extends a warm welcome to the following members:
Associates
  • Sarah Por
  • Foo Wen Qi
  • Sandeep Chinnobaiah
  • Annia Hsu
  • Kawal Pal Singh
Members
  • Lee Ke Jin
  • Anish Wadia
  • Janice Tay
  • Danna Er
  • Sharon Lin
  • Jenny Teo
Fellows
  • Aurill Kam
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  • Ashok Kumar Rai
  • Muhammad Farook Fahmita Parveen
  • Kapil Chaudhary
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  • Han Juat Jong
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View our Member Listing HERE.
Call for Contribution of Articles
The SIArb Newsletter is a publication of the Singapore Institute of Arbitrators aimed to be an educational resource for members and associated organisations and institutions of higher learning. Readers of the newsletter are welcome to submit to the Secretariat at This email address is being protected from spambots. You need JavaScript enabled to view it. well-researched manuscripts of merit relating to the subject matter of arbitration and dispute resolution. Submissions should be unpublished works between 1,500 to 2,500 words and are subject to the review of the editorial team.
    Council (2017 - 2018) Publications Committee
President    
Dinesh Dhillon
Vice President
Tay Yu-Jin
Honorary Secretary
Naresh Mahtani
Honorary Treasurer
Mohan R Pillay
Immediate Past President
Chan Leng Sun S.C.
Council Members
Chia Chor Leong
(co-opted wef 5 Oct 2017)
Chia Ho Choon
Francis Goh Siong Pheck
Adrienne Louise Beatrice Kouwenhoven
(co-opted wef 5 Oct 2017)
Andrew Pullen
Tan Weiyi
Yeo Boon Tat
Chair
Yeo Boon Tat
Committee Members
Adolf Peter
Eric Chew
David K K Chung
Fayth Huinan Kuah
Gan Boon Eng Justin
Lim Hseng Iu
Rian Matthews
Gan Kam Yuin
Tham Wei Chern
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Disclaimer
The SIArb Newsletter is a quarterly of the publication of the Singapore Institute of Arbitrators. Distribution is restricted to members and those organisations and institutions of higher learning associated with the Institute.

The Institute does not hold itself responsible for the views expressed in the Newsletter which must necessarily lie with the contributors.

 

By Justin Gan, Sarah Kuek and Tan Yi Lei – Stephenson Harwood (Singapore) Alliance

The last quarter has seen a number of arbitration decisions reported. We focus on 2 decisions in this edition of the newsletter

-   Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56

-  Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2018] SGHC 78

 

Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56

Hilton v Sun Travels clarifies the basis of the Court's power to grant permanent anti-suit injunctions in support of an arbitration agreement, and is an example of the Court exercising discretion to cure irregular service out of jurisdiction. It also emphasises the need for an otherwise meritorious applicant to seek relief expeditiously.

Background

Under a hotel management agreement, the Defendant (Sun Travels) agreed to let a hotel it owned in the Maldives be managed by Hilton under Hilton's brand for an initial period of 20 years. Sun Travels became dissatisfied with the hotel’s performance under Hilton's management. In April 2013, Hilton gave Sun Travels notice terminating the agreement with immediate effect. On 2 May 2013, Sun Travels accepted Hilton's termination as repudiation of the agreement.

ICC arbitration

Hilton commenced arbitration before the International Chamber of Commerce ("ICC") on 16 May 2013. The ICC Court of Arbitration fixed Singapore as the seat. Parties participated in the reference and following oral hearings in July 2014, Hilton obtained a Partial Award in its favour on 27 May 2015. Sun Travels ceased participating in the reference. On 17 August 2015, a Final Award was issued in Hilton's favour.

Maldivian proceedings

Hilton applied to the Maldivian Courts to enforce the Awards. Sun Travels resisted strenuously and succeeded on a jurisdictional point at first instance, before Hilton overturned the jurisdictional point on appeal. The enforcement question was remitted to the first instance Maldivian Court. In the meantime, Sun Travels commenced Maldivian proceedings against Hilton arising out of the same facts – and the Maldivian Courts found Hilton liable to Sun Travels (contrary to the Awards). Hilton appealed that decision (which appeal remained pending). Sun Travels then relied on that Maldivian decision to resist the Maldivian enforcement proceedings.

Singapore application

Hilton applied to the Singapore Courts for a permanent anti-suit injunction restraining Sun Travels from participating in the Maldivian proceedings, and for declaratory relief.

Judgment

Jurisdiction

An anti-suit injunction over a foreign defendant requires the Court to have in personam jurisdiction over that defendant i.e. if Sun Travels submitted to jurisdiction, or was served out of jurisdiction. For leave to serve out, Hilton needed to show its claim (i) was sufficiently meritorious, (ii) falls within ROC O11, and (iii) that Singapore is the most appropriate forum.

On each:
(i) Sun Travels' substantive Maldivian action was likely to breach the arbitration agreement.
(ii) By choosing to arbitrate under the ICC Rules without selecting a seat, parties effectively agreed to allow the ICC Court discretion to fix the seat. The ICC Court chose Singapore. The Singapore seat was also stated in the agreed Terms of Reference. So, parties had agreed to Singapore law as the curial law and had submitted to the Singapore Court's jurisdiction over matters arising out of the arbitration agreement – and ROC O11 r 1(d)(iv) or r 1(r) was met.
(iii) The Singapore Court as the Court of the seat is the most appropriate forum in which to seek an anti-suit injunction.

Sun Travels also alleged it had not been properly served in the Maldives, as Maldivian law requires service by a Court official, and ROC O11 r4(4) requires a local language (Dhivehi) translation to be served as well. Hilton had served the Singapore Court papers on Sun Travel by leaving them with Sun Travel's receptionist, and emailed them to Sun Travel's management. The Court held service on the receptionist was invalid but exercised its discretion to cure the irregularity – as Sun Travel was aware of the proceedings but had declined to accept service, and as the papers had been provided to Sun Travel's management in any event.

Power to grant a permanent anti-suit injunction

The Court held its power to grant a permanent anti-suit injunction arose from the Supreme Court of Judicature Act (Cap.322), s.18(2) read with First Schedule para.14. These provisions give the Court power to "grant all reliefs and remedies at law and in equity", including the equitable remedy of a permanent injunction.

Article 5 of the Model Law ("In matters governed by this Law, no court shall intervene except where so provided in this Law") was held to present no bar to the Court's power above. This is especially so if arbitration proceedings have concluded, as there is no concern over excessive judicial interference into ongoing arbitral proceedings.

For completeness, the Court found it had no such power under the (i) International Arbitration Act (Cap.143A), s.12A(2) read with s.12(1)(i), and (ii) Civil Law Act (Cap.43), s.4(10) – as both refer only to interim/interlocutory injunctions.

Exercise of discretion

While an anti-suit injunction is an equitable remedy, where the suit to be injuncted is in breach of a valid arbitration agreement, the Court will be ready to grant injunctive relief, unless good reason is shown. After all, the offending party had promised not to bring such a suit.

Sun Travels argued the anti-suit injunction sought was not in support of an ongoing arbitration, as the Final Award had been issued and the reference terminated. Sun Travels argued the Maldivian proceedings (that it had commenced on the merits) were simply the exercise of its right to resist enforcement, in the Maldives.

The Court rejected Sun Travels' arguments. An agreement to arbitrate contains at least 2 implied negative obligations: (i) not to commence Court proceedings to pursue claims which parties have agreed to refer to arbitration, and (ii) not to undermine the award apart from trying to set aside at the seat, or trying to resist enforcement. The distinction between trying to undermine the award and simply trying to resist enforcement lies in whether the foreign litigation seeks to re-open matters decided in arbitration. If so, it is a breach of (ii), impermissible, and may be considered vexatious and oppressive. That said, a Court will be sensitive to the risk of practically interfering with the processes of a foreign Court.

On the facts, Sun Travels' Maldivian proceedings breached negative obligation (ii). It re-litigated the same issues already determined in the Singapore arbitration. It was timed in the midst of Hilton's enforcement proceedings in the Maldives – and sought to re-visit the merits instead of being confined to the (usual) limited grounds for setting aside. It was vexatious and oppressive.

However, Hilton only applied for the permanent anti-suit injunction 9 months after commencement of Sun Travels' Maldivian proceedings. Only after Hilton's enforcement proceedings in Maldives failed, and while Hilton's appeal in Sun Travel's Maldivian proceedings was on foot, did Hilton pursue the permanent anti-suit injunction in Singapore. The Maldivian proceedings were too far progressed. As a result, Hilton was denied the permanent anti-suit injunction it sought.

Instead, the Court permanently restrained Sun Travels from taking any steps in reliance on the first instance decision in Sun Travel's Maldivian proceedings (or any decision upholding the first instance decision). The Court also declared the Awards final, valid, and binding – and declared Sun Travels' Maldivian proceedings to concern the same subject matter as the arbitration and so in breach of the arbitration agreement.

Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Limited [2018] SGHC 78

Rakna Arakshaka Lanka Ltd ("RALL") v Avant Garde Maritime Services ("AGMS") is a recent illustration of the Court's attitude towards unmeritorious allegations of (a) failures of natural justice in the arbitration process, and (b) illegality/public policy. The decision also supports the position that a party wishing to challenge a tribunal's preliminary ruling on jurisdiction can: (1) actively apply for Court determination at the seat within 30 days: Model Law Art.16(3), or (2) raise the issue when exercising its passive remedy of resisting enforcement proceedings. Failure to do (1) does not preclude (2). However, a party cannot allow the deadline for (1) to lapse and then later try to challenge jurisdiction in the Courts of the seat in setting-aside proceedings.

Background

RALL provided comprehensive security services and issued arms, ammunition and related manpower for those services. The Defendant (AGMS) provided maritime security services. RALL is Sri Lanka state linked.

Parties entered into 6 agreements for various projects, subsequently consolidated as annexes under an umbrella agreement. One project was for the establishment of a floating armoury on the "MAHANUWARA" (Vessel). The umbrella agreement required RALL to provide "utmost assistance" vis-a-vis obtaining authorisations and approvals.

In January 2015, there was a regime change in Sri Lanka. Allegations were made against the floating armoury project and the Vessel was detained by Sri Lankan police. AGMS demanded RALL procure a Letter of Clearance from the new regime, but RALL said it could not do so as its board of directors (old regime appointees) had resigned.

Arbitration

On 9 April 2015, AGMS commenced arbitration. RALL sought extensions of time but ultimately did not respond to the Notice of Arbitration, file pleadings, pay its share of SIAC's fees, or nominate its arbitrator. On 22 July 2015, in the absence of a response or nomination from RALL, the SIAC appointed an arbitrator for RALL. On 21 August 2015, the SIAC directed that the reference would proceed.

On 21 August 2015 RALL's counsel wrote to the SIAC alleging the disputes were beyond the scope of the arbitration agreement and the arbitration conflicted with Sri Lankan public policy. No reasons were given. The Tribunal unanimously considered that this letter did not constitute a proper objection to the Tribunal’s jurisdiction.

On 20 October 2015, parties entered into a Memorandum of Understanding (MOU). On 12 November 2015, RALL informed the SIAC that settlement had been achieved and said it no longer needed to proceed with the arbitration.

On 15 November 2015, AGMS wrote to the SIAC indicating there was no longer any settlement (as RALL failed to ensure the continuity of the umbrella agreement), and there was an imminent threat that RALL would terminate the umbrella agreement. AGMS sought a preliminary hearing. RALL chose not to participate. The Tribunal found RALL failed to ensure the continuity of the umbrella agreement, which went to the root of the MOU, and therefore the dispute was still alive.

The arbitration proceeded. RALL did not participate but wrote to the SIAC twice asking about the status of the arbitration. A Final Award was rendered in AGMS' favour.

RALL applied to set the Final Award aside, for 3 reasons:

1. Jurisdiction: The MOU terminated the reference – so the Tribunal's mandate to arbitrate ended with the MOU, and the Final Award was on matters beyond the scope of submission to arbitration.
2. Natural justice: RALL did not have proper notice / was unable to present its case, as it was not copied into certain correspondence (mainly notes of evidence for the substantive hearing).
3. Public policy: The umbrella agreement had been procured by AGMS' bribery of RALL's ex-chairman – so the Final Award was infected by fraud or corruption.

Judgment

The application was dismissed.

Jurisdiction

The MOU did not terminate the reference to arbitration. First, the Tribunal found AGMS' agreement to withdraw was on the premise that RALL would ensure the continuity of the Master Agreement. That did not occur. Second, the MOU itself did not terminate the arbitration upon signing – instead AGMS had to take steps to withdraw.

The MOU did not withdraw parties' submission to arbitration or impact the Tribunal's jurisdiction. Clause 8 of the umbrella agreement contained an arbitration clause and applied the SIAC Rules, of which Rule 25.3 (2013) required objections to a Tribunal exceeding the scope of its jurisdiction to be raised promptly after the Tribunal indicated intent to decide on the matters said to be beyond its scope. After RALL told the SIAC the dispute was settled (12 November), AGMS disagreed and disputed that there was still any settlement (15 November). An interim hearing was held on the issue but RALL did not participate – and the Tribunal ruled it would continue with the arbitration.

Where a Tribunal rules on a plea that it has no jurisdiction, as a preliminary issue, that matter may be determined by the High Court if a party so applies within 30 days of the ruling: IAA s.10(3), Model Law Art.16(3). RALL's present application was out of time. RALL could not circumvent this deadline by attempting to set aside the Final Award at the seat on the basis of jurisdiction.

In reaching this conclusion, the Court:

- Declined to follow authority and commentary that where a party left the arbitral proceedings in protest, the 30-day deadline would not apply. In short, if a tribunal chooses to decide jurisdiction as a preliminary issue, a respondent cannot reserve its objections to the last minute (beyond the 30-day deadline) – for considerations of finality, certainty, practicality, cost, and preventing delay tactics.

- Highlighted the distinction between "active" (attacking the Award at its seat) and "passive" (resisting enforcement) remedies. The bar on circumventing the 30 day deadline applies only to jurisdiction challenges at the seat, where the applicant could have sought determination from the supervisory Court previously but opted not to do so.

Natural Justice

RALL's main complaint was that it did not get notes of evidence of the substantive hearing – and so was prevented from taking steps in the 5 months between the hearing and the Final Award. This was rejected. RALL chose not to participate in the arbitration. It was not prevented from doing so. In fact RALL only requested the notes of evidence some months after proceedings closed.

Public Policy

RALL alleged that RALL's and AGMS' former chairmen had procured the umbrella agreement by bribery and corruption. Trial on charges of corruption was pending in the Sri Lankan Courts. So, RALL said, the Final Award was tainted by fraud and corruption, and enforcement would be contrary to public policy.

This was rejected. The allegations of fraud and corruption did not touch on the Award, only the underlying umbrella agreement. Further, RALL's and AGMS' former chairmen were facing trial; they were not convicted at the time of hearing, and presumed innocent unless proven otherwise.

RALL also argued Clause 3.1 required RALL to perform an illegal act, namely to procure a Letter of Clearance, and so, RALL said, an award enforcing such performance was contrary to Singapore's public policy. The Tribunal had considered this and found no illegality – a finding of fact not open to question by the supervisory Court. Further, the umbrella agreement continues to operate and RALL/AGMS are still engaged in other joint ventures – which the Sri Lanka government would not allow to continue if the agreement was procured by bribery or tainted by illegality.

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