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6 October 2017

Public Consultation on "SIArb Guidelines of Party Representative Ethics"

The parameters of ethical conduct in international arbitration are not well-defined but warrant close attention. The Singapore Institute of Arbitrators (“SIArb”) Working Group on Party-Representative Ethics (“Working Group”) has completed its first draft of the SIArb Guidelines on Party-Representative Ethics (“Guidelines”).

SIArb is pleased to announce the commencement of the public consultation process.

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 ends on 15 November 2017). 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.

You are also invited to join us for Gary Born’s upcoming seminar “Ethical Issues for Arbitrators and Party-Representatives” on 10 October 2017 where these issues and the draft guidelines will be discussed.


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

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September 2017  (Issue No.23)
 
the president's column

PRESIDENT'S MESSAGE - SEPTEMBER 2017

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. 

In December 2014, SIArb signed a Memorandum of Understanding with the Singapore Institute of Architects and in January 2016, with the Japan Association of Arbitrators. We are forging friendships with the aim of harmonizing good practices across sectors and borders.

Read More

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

case LAW Developments

This issue looks at two recent Singapore Court decisions:

a. Gulf Hibiscus Ltd v Rex International Holding Ltd and another [2017] SGHC 210  

This case involves a stay of court proceedings in favour of arbitration, as the matters raised in court proceedings fell within the ambit of an arbitration clause. 

b. GD Midea Air Conditioning Equipment Co Ltd v Tornado Consumer Goods Ltd and another matter [2017] SGHC 193

This case involves the Court setting aside an arbitral award on various grounds:

  • Tribunal exceeding its jurisdiction;
  •  Breach of agreed procedure;
  • Breach of natural justice.
​The Court affirmed the following principles in the following cases:
 
By Debbie Lee and Sharon Wong Qiao Ling - ECYT Law LLC
 
 
 
 
in the hot seat!

Jason is the Head of the Litigation and Dispute Resolution Practice at De Souza Lim & Goh LLP. He obtained his LLM degree from University College, London. He was called to the Bar of England & Wales in 1982 and was admitted to the Singapore Bar in October 1983.

Jason was admitted as a Fellow of the Singapore Institute of Arbitration in 1999. He has been appointed by the SIAC and the ICC International Court of Arbitrators in both international and domestic arbitrations as sole arbitrator and as co-arbitrator since 2003.


Read More

 
Recent Events

Prize or Prejudice: The Interplay Between Arbitration And Adjudication - Legal And Practical Issues (20 July 2017)

Mr Chia Chor Leong was the speaker for this seminar, which was chaired by Mr Naresh Mahtani. During the seminar, Mr Chia gave an overview of the latest Singapore decisions relating to adjudication determinations under the Building and Construction Industry Security of Payment Act (Cap 30B) (“SOP Act”), discussed how the concept of “temporary finality” of adjudication determinations under the SOP Act influenced and affected arbitration proceedings, and highlighted the potential pitfalls that parties to the adjudication determination proceedings face. He also shared with the audience interesting anecdotes from his experience as an adjudicator (and as review adjudicator).

Arbitrator Conflicts of Interest: Are Modern Safeguards Sufficient? (6 September 2017)

Issues of arbitrator conflicts of interest are as old as arbitration itself. The need to ensure that justice is not only done, but is also seen to be done in arbitration cannot be overstated, especially as an increasing volume of high-value disputes continue to take the arbitration route. This however needs to be balanced against frivolous challenges to an arbitrator’s independence and impartiality, so that the arbitration mechanism is not stymied by mere tactical moves.

Judith Gill QC’s lecture explored practical implications for the arbitration process against the backdrop of these competing considerations. Drawing on her vast experience, she took the audience through the various types of conflicts of interest, and instances where a challenge based on conflicts crosses the line and becomes an abusive one. The audience also benefitted from a comprehensive survey of the treatment of this subject under leading institutional rules (like SIAC, LCIA, and ICC), and in the national laws of jurisdictions with established arbitration practices like Singapore, England and US.

Read More

Upcoming Events
Date
Event
28 Sept 2017
28 Sept 2017
Annual General Meeting
   10 Oct 2017
19, 20, 27, 28, 30 Oct 2017
1 Nov 2017
16 Nov 2017
 
      View our past and Upcoming events HERE.
announcements
New Members
The Institute extends a warm welcome to the following members:
Associates
  • Poon Yu Da      
Members
  • Mohamed Sameh Amr       
  • Sarakmony Buon 
  • Jun Git Chan
  • Sam Oi Chhim
  • Sun Mei Lai
  • Trevor Lam
  • Sam Lawson
  • Wan Khim Low
  • Celine Menu Lange
  • Wei Han Ooi
  • Adolf Peter
  • Daniel Petrushnko
  • Safia Salem
  • Teck Meng Seah
  • Kin Man Clifford To
  • Chen Han Toh
  • Gerald Mursjid Wiyatno
Fellows
  • Hock Kiong Heng
  • Atsuko Hirose
  • Richard Pollard      
  • Narvinder Singh    
  • Sandra Somers           
  • Shaun Wong
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 (2016 -2017) Publications Committee
President    
Chan Leng Sun S.C.
Vice President
Dinesh Dhillon
Honorary Secretary
Naresh Mahtani
Honorary Treasurer
Chia Ho Choon
Immediate Past President
Mohan R Pillay
Council Members
Francis Goh Siong Pheck
Steven Lim
Johnny Tan Cheng Hye BBM
Tan Weiyi
Tay Yu-Jin (co-opted wef 8 Sept 2016)
Yang Yung Chong
Yeo Boon Tat
 
Chair
Yeo Boon Tat (Editor)
Committee Members
Gan Kam Yuin (Co -Editor)
David K K Chung
Eric Chew
Cameron Ford
Lim Hseng Lu
Tan Weiyi
Tham Wei Chern





 

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 Debbie Lee and Sharon Wong Qiao - ECYT Law LLC

1. This case involves a stay of court proceedings in favour of arbitration, as the matters raised in court proceedings fell within the ambit of an arbitration clause. The learned Assistant Registrar’s decision to stay the court proceedings was upheld by the Honorable Judicial Commissioner Aedit Abdullah (“JC”), relying on and thus, affirming, the principles set out in Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2016] 1 SLR 373 (“Tomolugen”).

Brief Facts 

2. For ease of reference, the following charts illustrate the shareholding structure of Lime Petroleum PLC (“Lime PLC”), relevant relationships between Lime PLC’s shareholders and their affiliated companies and the relevant relationships between Lime PLC and its affiliated companies. 

Lime PLC’s Shareholding Structure and Relationships between Shareholders & Affiliates

3. Lime PLC has three shareholders, with their respective shareholdings shown above.

4. The 1st Defendant is the ultimate holding company of RME and wholly owns the 2nd Defendant, which is the intermediate holding company of RME. 

Relationships between Lime PLC and its Affiliated Companies

5. Lime PLC owns shares in Lime Norway and has a wholly owned subsidiary, Lime BVI, which in turn holds shares in the four companies in the above chart. 

6. A Shareholders’ Agreement dated 24 October 2011 was entered into by the shareholders of Lime PLC and Lime PLC (the “SHA”). Clause 25.2 of the SHA provides for arbitration in case of disputes arising from the SHA. However, the Plaintiff was not a party to the SHA and therefore not directly a party to the agreement to arbitrate.

7. There were two other agreements of relevance to this case, the Project Management and Technical Services Agreement (“PMTSA”) entered into by the affiliate company of the Plaintiff’s parent company and Lime PLC, and the Operating Services Agreement (the “OSA”) entered into by MOL and Lime PLC

8. The Plaintiff commenced Suit 412 of 2016 (“the Suit”) making allegations of various wrongs committed by the Defendants, including allegations about the conduct of the Defendants and their associated companies and persons, some of which involve the PMTSA and OSA. 

The AR’s Decision

9. The Defendants applied to invoke the Court’s inherent jurisdiction to stay the proceedings in the Suit, as the claims in the Suit arose out of the alleged breaches of, and disputes arising out of, the SHA and should be stayed pending arbitration by virtue of clause 25.2 of the SHA. 

10. The Defendants also applied for a stay on the basis that the Plaintiff was abusing the process of the Court. The AR granted the stay on the first basis but rejected the second basis due to lack of evidence. 

The High Court’s Decision

11. The Plaintiff applied for the amendment of its pleadings and appealed against the AR’s decision. The Plaintiff claimed that the Suit did not fall within the ambit of the arbitration clause in the SHA, whereas the Defendants argued in favour of a stay, as the Plaintiff’s claims in the Suit are derived from and subsidiary to the allegations of breaches of the SHA and are thus caught under the arbitration clause in the SHA.

12. The Court allowed the Plaintiff’s amendment and upheld the AR’s decision, subject to several conditions, which will be further elaborated on below.

The Amendment of Pleadings

13. The Plaintiff proposed amending its pleadings in order to remove the portions which relied on the SHA to make out its case.  In other words, since the SHA contained the arbitration clause, the Plaintiff sought to reframe its claims so as to avoid a stay in favour of arbitration.  However, the Plaintiff only sought to make this amendment at the appellate stage, despite having been offered the chance to do so at first instance by the AR.

14. The Court allowed the amendments to be made: There was no prejudice or attempt to revisit decided issues; 

  1.  There was no prejudice or attempt to revisit decided issues; 
  2. It only involved the Plaintiff giving up parts of its initial claim; 
  3. There was also no hearing on evidence, such that any changes to the pleadings would require a re-hearing on evidence.

15. The fact that the Plaintiff only waited until the appellate stage to amend the pleadings would not affect the Plaintiff’s right of amendment, but might lead to adverse cost consequences.

Stay of Court Proceedings in favour of Arbitration

16. The first issue dealt with by the Court was whether the Court may stay court proceedings in favour of arbitration at the request of a non-party to the arbitration agreement.

17. Affirming the Tomolugen decision, the Court held that the inherent power is “invoked to deal with situations without an express agreement between the relevant parties to the court proceedings... the jurisprudential basis for the exercise of the power to stay in the absence of an agreement is the wider need to control and manage proceedings between the parties for a fair and efficient administration of justice; it is not predicated on holding parties to any agreement – the absence of such an agreement is therefore irrelevant.”

18. The second issue was whether the nature of the dispute between the Plaintiff and the Defendants falls within the scope of the arbitration agreement.

19. In accordance with the methodology set out in Tomolugen, the Court bifurcated the steps in determining the second issue – one must first define the nature of the dispute and then determine the scope of the arbitration agreement.  

20. In defining the “nature of the dispute”, the Court went on to seek guidance from the decision in Tomolugen. The Court’s task is thus to “examine the substance of the controversy without paying undue attention to the details of how it has been pleaded” [emphasis in bold]. 

21. The Court will then have to look into the parties’ intentions (as rational commercial parties) when looking at the scope of the arbitration agreement. 

22. The Plaintiff argued that as a result of the amended pleadings, the scope of the SHA does not cover the amended claims in the Suit, as the claims in the Suit did not involve the rest of Lime PLC’s shareholders. On the other hand, the Defendants claimed that even after the amendments, the allegations raised in the pleadings touched on matters within the scope of the SHA, and thus, the subject of arbitration between the Plaintiff and RME.

23. The Court held that the arbitration agreement does not only cover disputes concerning the specific parties and matters expressly mentioned in the SHA, but also disputes in relation to Lime PLC’s subsidiaries, including Lime Norway and MOL, as well as a number of matters involving the subsidiaries of Lime PLC. 

24. On the facts, the Court held that the SHA “governs the control exerted by the Shareholders over Lime PLC’s subsidiaries. These provisions show that the Shareholders did intend to regulate their disputes pertaining to the general business of Lime PLC, including its subsidiaries, under the framework of the SHA.”

 25. Even with the Plaintiff’s amended statement of claim, which reduces reference to the SHA, the Court held that the claims in the Suit trigger the arbitration clause in the SHA, as “the crux of the inquiry on whether to order a stay requires an examination of the “substance” of the court proceedings, and not only on how it is presented at the surface level in the pleadings”. 

26. The Court varied the conditions of the stay, as follows: 

  1. If the tiered dispute resolution clause in the SHA is not triggered within three (3) months from the date of the Court’s decision, or if no arbitration is commenced within five (5) months from the said date, the parties are at liberty to apply to Court to lift the stay; 
  2. The Defendants be bound by the findings of fact made by the putative arbitral tribunal; 
  3. The parties shall be at liberty to apply to Court to lift the stay and continue the Suit if the putative arbitration is unduly delayed; and
  4. After the conclusion of the arbitration, subject to any res judicata issues, the parties are entitled to resume the Suit against the Defendants. 

Conclusion

27. This case upholds the principles of Tomolugen in considering the factors of a case when a Court exercises its inherent powers to grant a stay in favor of arbitration for parties who are not expressly subject to the arbitration agreement.

28. Particular emphasis is made on the importance of the examination of the “substance” of the court proceedings and not the form in which a party’s claims are presented, even when amendments have been made to a party’s pleadings.

29. This case also illustrates the balancing exercise to be made by the Court to prevent injustice to any party – on one hand, the plaintiff has a right to have its day in court but on the other, the defendant cannot be unduly prejudiced by being subject to multiple and duplicitous proceedings. In this particular case, arbitration had yet to be commenced, which led the Court to impose conditions, such that the Plaintiff’s right to pursue its claims is not undermined. 

By Debbie Lee and Sharon Wong Qiao Ling - ECYT Law LLC

Introduction 

This case involves the Court setting aside an arbitral award on various grounds:

  1. Tribunal exceeding its jurisdiction;
  2. Breach of agreed procedure;
  3. Breach of natural justice.

The Court affirmed the following principles in the following cases: 

  1. Setting aside an arbitral award due to the tribunal exceeding its jurisdiction under Article 34(2)(a)(iii) of the UNCITRAL Model Law (the “Model Law”), CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305 and PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597;
  2. Setting aside an arbitral award due to a breach of agreed procedure under Article 34(2)(a)(iv) of the Model Law and AMZ v AXX [2016] 1 SLR 549; and
  3. Setting aside an arbitral award due to a breach of natural justice under Article 34(2)(a)(ii) of the Model Law or Section 24(b) of the International Arbitration Act (Cap. 143A) (the “IAA”) and Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86.  

Brief Background

The Plaintiff is GD Midea Air Conditioning Equipment Co Ltd (the “Plaintiff”), a company that manufactures air conditioners and other electrical products. The Defendant is Tornado Consumer Goods Ltd (“Defendant”), a company that sells air conditioners in Israel.

The Plaintiff and Defendant (the “Parties”) entered into an exclusive agreement, which governed the supply of Midea-branded air conditioners and other electrical products to the Defendant (the “MBA”).  

The MBA was valid from 1 January 2012 to 31 December 2014, pursuant to which:

  1. The Defendant was required to purchase from the Plaintiff electrical products and achieve preset annual sales targets;
  2. The Defendant was required to make payment in accordance with the payment terms set out in purchase orders sent by the Plaintiff, by telegraphic transfer (“TT”) or letter of credit (“LC”);
  3. The Defendant was required to make payments in full within 90 days of the marine bill of lading date (“Clause 4.2 of the MBA”);
  4. The Plaintiff was required to terminate the MBA by giving 60 days’ prior written notice “at its own discretion and option” if: 
    1. The Defendant failed to achieve the annual sales target in any year; 
    2. The Defendant failed to achieve half the annual sales target by 30 June in any year; or
    3. It seemed obviously impossible for the Defendant to meet the annual sales target before the end of the year.

At the start of the Parties’ relationship, the payment terms required the Defendant to make payment in full by LC within 90 days of the bill of lading. However, this was changed by the Plaintiff in August 2013 through an invoice that indicated “30% TT + 70% LC at sight” (“PI-1325”).

Disputes between the Parties

Disputes arose between the Parties when:

  1. The Defendant fell short of the sales targets in 2012 and 2013;  
  2. Between 26 and 28 November 2012, annotations were made to lower annual sales targets and postpone the commencement of the reduced sales targets from 2012 to 2013;
  3. Payment terms were varied over the course of the Parties’ relationship. Due to the said variations, the Parties were not always in agreement on the prices of the electrical products. Hence, on 14 January 2014, when the Defendant requested for products to be sent to them, the Plaintiff declined to do so; and
  4. The Defendant continued to submit orders and the Plaintiff rejected the same.

 In January 2014, the Plaintiff gave the Defendant 60 days’ written notice in accordance with the MBA, claiming that the Defendant failed to achieve its annual sales target for 2013 and refused to do so (the “Termination Notice”).

Arbitration

The Defendant commenced arbitration against the Plaintiff in SIAC Arbitration No. 65 of 2014 (the “Arbitration”), claiming that the Termination Notice was invalid because:

  1. The Plaintiff had breached the agreed payment terms as a result of the issuance of PI-1325, the subject of which was disputed by the Parties;
  2. No good faith discussions were made by the Plaintiff prior to issuing the Termination Notice;
  3. The Plaintiff failed to provide 60 days’ notice to remedy the alleged breach of terms by the Defendant.

In its defence, the Plaintiff alleged and counter-claimed for breach of contract, as the Defendant had failed to meet its sales targets, which also made it impossible to realise the aim of the MBA thereby entitling the Plaintiff to dissolve the contract.

The tribunal found that the Plaintiff breached Clause 4.2 of the MBA by the payment terms in PI-1325. The tribunal thus concluded that due to the Plaintiff’s breach, the Defendant would not need to meet the annual sales targets and the MBA was terminated wrongfully. The tribunal therefore made the award in favor of the Defendant (the “Award”) and dismissed the Plaintiff’s counterclaim. The Defendant then obtained an order to enforce the Award.

The Setting Aside Application

The Plaintiff challenged the tribunal’s finding – that the Plaintiff had breached Clause 4.2 of the MBA by imposing payment terms – on the following bases:

  1. The tribunal dealt with matters beyond the scope of the issues submitted for arbitration by the Parties; 
  2. The agreed procedure was breached by the tribunal; and
  3. The Plaintiff’s right to present its case was breached and/or the rules of natural justice was breached.

The Plaintiff also applied for the enforcement order to be set aside, following the setting aside of the Award.

Decision

Exceeding Jurisdiction – Article 34(2)(a)(iii) of Model Law

The Court decided that the Award arising from the tribunal's finding the Plaintiff had breached Clause 4.2 of the MBA, should be set aside, as the tribunal exceeded its jurisdiction through its finding that the Plaintiff breached Clause 4.2 of the MBA. The Parties had defined the scope of the arbitration and Clause 4.2 of the MBA was not part of the scope.

The Notice of Arbitration, pleadings, submissions, and the agreed list of issues (the “ALOI”) in the Arbitration did not allege breach of Clause 4.2 of the MBA. In fact, the Parties were in agreement that the effect of Clause 4.2 of the MBA was to require the Defendant to “make full payment within 90 days of the date of the bill of lading in any event”.

It was also pointed out by the Court that the Defendant had not agreed with the varied payment terms in PI-1325 and another variation stated in another invoice, but throughout the course of disagreement the Defendant never claimed that Clause 4.2 of the MBA applied as the default payment term.

The Court also decided that once it has been determined that the tribunal exceeded its jurisdiction, there was no further requirement for the Plaintiff to show that it had suffered real or actual prejudice, but in any case, the Court was of the view that there was real prejudice suffered by the Plaintiff.

Breach of Agreed Procedure – Article 34(2)(a)(iv) of Model Law

To set aside the Award under Article 34(2)(a)(iv) of the Model Law, it must be shown that:

  1. There was an agreement between the Parties on a particular arbitral procedure;
  2. The tribunal failed to adhere to the agreed procedure;
  3. The failure to do so has a causal relation to the tribunal’s decision, because if the tribunal had adhered to procedure, the tribunal’s decision would have been different; and
  4. The Party mounting the challenge is not barred from relying on this ground due to its failure to raise an objection during the proceedings before the tribunal.

The Court reaffirmed the general principle that no party shall be permitted to advance any new factual allegations or any new legal arguments at the oral hearing, unless expressly permitted by the tribunal.

The Court agreed with the Plaintiff’s position that the tribunal breached the agreed procedure when departing from the ALOI submitted by the Parties by making its finding on Clause 4.2, as Clause 4.2 was not part of the ALOI. The ALOI was considered part of the Parties’ agreed arbitral procedure.

Also, the Court held that the Plaintiff had no opportunity to object to this departure from the agreed procedure as this did not arise at all during the arbitral proceedings.

Breach of the rules of natural justice

To set aside the Award for breach of natural justice, it must be shown:

  1. Which rule of natural justice was breached;
  2. How that rule was breached;
  3. In what way the breach was connected to the making of the award; and
  4. How the breach prejudiced the party’s rights - the test is whether the arbitral tribunal could reasonably have arrived at a different result if not for the tribunal’s breach.

The Court found that the Plaintiff was denied a full opportunity to present its case. The issue of the breach of Clause 4.2 of the MBA did not arise in the arbitration and the tribunal made its finding on Clause 4.2 of the MBA without giving notice to the Parties. The fair hearing rule was thus breached.

Conclusion

The Court set aside parts of the Award arising from the tribunal's funding that the Plaintiff had breached Clause 4.2 of the MBA, which included the initial award of US$9 million in favour of the Defendant.

As a general principle, there is minimal curial intervention when it comes to such applications. However, this has to be balanced against the Parties’ right to define the jurisdiction of an arbitral tribunal.

In this case, it is shown that through the process of defining the jurisdiction of the arbitral tribunal and the arbitration process, the Court would intervene where the Parties’ rights had been violated. 

chenghan

Jason is the Head of the Litigation and Dispute Resolution Practice at De Souza Lim & Goh LLP. He obtained his LLM degree from University College, London. He was called to the Bar of England & Wales in 1982 and was admitted to the Singapore Bar in October 1983.

Jason was admitted as a Fellow of the Singapore Institute of Arbitration in 1999. He has been appointed by the SIAC and the ICC International Court of Arbitrators in both international and domestic arbitrations as sole arbitrator and as co-arbitrator since 2003.

How  would  you  describe  yourself  in  three  words?
'Just another lawyer'

In  the  course  of  your  work,  do  you  notice  a  trend  in  clients preferring arbitration over litigation as a form of  dispute resolution?
Yes, commercial lawyers in Singapore and the ASEAN countries are more ready and prepared to recommend arbitration to their clients as a preferred form of dispute resolution. It is evident in the number of cases being handled by the SIAC.

What  is  the  most  memorable  arbitration  or  arbitration-related matter that you were involved in, and why?
It was one of my earlier cases as counsel and I was engaged to represent an Indonesian corporation in a 'AAA' arbitration hearing in New York. The opposing party was a large defence contractor for the US government and they were represented at the hearing by a team of senior US Army officers each one in full army uniform. It was an extraordinary experience for me and the rest is, as they say, history.

What advice do you have for a young fellow practitioner interested in arbitration work?
Always accord to the Arbitral Tribunal the same degree of respect you would give to a Judge in Court proceedings. I would also encourage the younger practitioners to study the different legal systems in Asia.

What are the challenges you think arbitration practitioners will face in the upcoming years? 
I am afraid that the rising costs of arbitration may mean less work for all.

With  the  establishment  of  the  Singapore  International Mediation Centre and the introduction of the SIAC-SIMC Arb-Med-Arb  Protocol,  do  you  see  mediation  as  now  having a bigger role to play in assisting parties to resolve their disputes? 
Yes, certainly.

Who  is  the  person(s)  who  has  had  the  greatest  impact and/or influence on your career?
The late Mr Winston Chen Chung Ying (Winston passed away in 1999), he introduced me to arbitration work.

If you weren’t in your current profession, what profession would you be in?
A professional interviewer ?

PRESIDENT'S MESSAGE

SEPTEMBER 2017

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.

In December 2014, SIArb signed a Memorandum of Understanding with the Singapore Institute of Architects and in January 2016, with the Japan Association of Arbitrators. We are forging friendships with the aim of harmonizing good practices across sectors and borders.

In September 2016, we launched the upgraded and completely redesigned SIArb website, with new features offering convenient functionalities for members. The website now carries an integrated event calendar for SIArb and relevant third party events. Members can register and pay for events online. The integrated membership management system offers a one-stop location for membership matters, including a members' area where members can access members' only resources and update their personal profiles.

Those who have been following developments on Third Party Funding regulations will know that SIArb has launched its Guidelines for Third Party Funders on 18 May 2017. We have taken on board suggestions that SIArb should offer third party funders an opportunity to declare their support for the Guidelines. Those who do will be acknowledged on the SIArb website as being a supporter of the Guidelines. I am pleased that we already have six leading Third Party Funders on board.

A second product is on the way.  A SIArb Working Group has completed its draft on the SIArb Guidelines on Party-Representative Ethics. The difficulty in harmonising this area is matched by the importance of doing so, for the integrity and success of the arbitral process. There will be public consultation on the draft before it is finalized. I thank my fellow Working Group members, Mr Mohan Pillay, Mr Rian Matthews and Ms Adriana Uson for their hard work on these guidelines.

On 6 September 2017, an appreciative audience followed with interest the observations of Ms Judith Gill QC on the topic "Arbitrator Conflicts of Interest: Are the Modern Safeguards Sufficient?" The seminar was chaired by Mr Dinesh Dhillon.

The complementary topics of Arbitrator's ethics and Party-Representative's ethics will be rounded-up in a seminar on 10 October 2017. Mr Gary Born will present his lecture on Arbitrator's ethics, after which he and the SIArb Working Group will discuss issues raised in the draft SIArb Guidelines on Party-Representative Ethics.

Before our Annual General Meeting starts on 28 September 2017, we will have a pre-AGM talk by Mr Alvin Yeo, SC with his retrospective review of Singapore Arbitration from Birth to Boomtown - The Past 25 Years.

Our flagship Fellowship Assessment Course will be conducted on 27, 28 and 30 October 2017. Non-legally trained candidates are required to attend Module 1 on 19 & 20 October 2017, which covers Contract, Tort and Evidence.

Please do attend our Annual Dinner on 1 November 2017. It will be repeated at the lovely Aura Restaurant, where we had it last year. We are excited to have as our Guest-of-Honour, the former Attorney-General of Singapore, Mr VK Rajah, SC. I can promise you will enjoy this special event.

Given the packed schedules of our members, one can never have too much advance notice. The ever popular SIArb Commercial Arbitration Symposium 2017 returns for its 8th year on 16 November 2017. As usual, the hallowed Old Parliament House will provide a distinguished setting for the lively debates.

Finally, the observant among you might have noticed that the SIArb logo now sports a slogan "Asian Sensibilities, Global Standards". This reflects a theme that I touched on at the SIArb Gala Dinner in 2016. SIArb has its roots in Asia and understands Asian cultural nuances and practices. However, we have a duty to promote the best practices globally and the highest standards in international arbitration. The SIArb Council agrees that this phrase captures the defining characteristic of SIArb as a leading Asian Arbitral Institute.

Our membership now spans the entire breadth of the globe, from US, Europe, Middle East to Asia. The diversity helps to enrich our understanding of the myriad of ways in which arbitration is practised. At the same time, it encourages us to abandon parochialism in favour of harmony. After all, one of our Objectives is the improvement of the standards of skill and expertise of arbitrators and those involved in ADR. Our collective knowledge and perspectives are a formidable asset as SIArb continues to be a focal point for thought leadership in arbitration in the coming years.

It has been a real privilege to be entrusted with the helm and a joy to serve with such congenial and diligent Council members. I am also grateful to members who turn up regularly at our events, whose words of encouragement provide such comfort to the Council. I will, of course, remain a part of the SIArb, but insofar as my last column as President is concerned, "So long, and thanks for all the fish."

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

Events Calendar

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