Chapter I. - Introduction

1. Law on Arbitration

The Singapore Arbitration Act, found in The Statutes of the Republic of Singapore ("Singapore Statutes"), Volume 1, Chapter 16, (1970) (the "Arbitration Act"), initially enacted on May 4, 1953, was amended and consolidated as it appears in that official publication. More recently it has been amended by the Arbitration (Amendment) Act, 1980, published in the Government Gazette Act Supplement of the Republic of Singapore, No. 3, 21 March 1980 (the "1980 Amendment"). At the time of the drafting of this Report (November 1985) no other amendments had been made. Sections referred to herein, unless otherwise specified, are those of the consolidated text of the Arbitration Act and of the 1980 Amendment**.

The Arbitration Act closely resembles the English Arbitration Act of 1950. The 1980 Amendment is to a large extent a re-enactment of changes introduced in England by the 1979 Arbitration Act.

2. Practice of Arbitration

Although arbitration clauses exist in a large number of commercial contracts relating to Singapore, many of which now provide for Singapore law and arbitration in Singapore, commercial arbitration has not, to date, assumed as significant a role as commercial development (1) .

During the three year period from 1980 through 1982, only 2 claimants and 3 defendants in ICC arbitrations were Singapore nationals (2) , there was but 1 ICC arbitration held in Singapore (3) ; and, only 1 Singaporean was arbitrator in an ICC arbitration during the same period (4) .

The sparse history of commercial arbitration is further reflected by the fact that the Singapore Institute of Arbitrators, the only formal arbitration institution existing in Singapore was inaugurated as recently as January 1981. The Singapore Institute of Arbitrators is organized so as to assist parties in locating qualified arbitrators.

The Institute is located at:

Singapore Professional Centre Block 23 03-129 Gutraun Park Singapore 0316

In Singapore there is no arbitration organization now acting as those prevalent in London or the International Chamber of Commerce in Paris. Arbitration in Singapore is thus on an ad hoc basis governed by the Arbitration Act. There is in fact no single place at which an interested party can gather comprehensive information on arbitration in Singapore. While the history of commercial arbitration in Singapore is recent, so is the remarkable economic development of this city state. If the importance of Singapore as a commercial and financial center of Southeast Asia is maintained, it is likely that international commercial arbitration will become more frequent here. Recent commentaries indicate the possibility of the Singapore government's support of Singapore as a regional arbitration center.

The extent of English influence in the practice of arbitration in Singapore is reflected not only by the close similarity of the Arbitration Act with the Arbitration Act in England; it is also reflected by the continuous reference by Singapore courts to English cases and commentary in deciding issues when legal questions arising in an arbitration are referred to court or in determining whether to set aside an award.(5) Thus, despite the somewhat limited body of purely local case law relating to arbitration, the decisions which do exist, the detailed statutory provisions and the reliance upon English law to fill any gaps (6) provide a satisfactory framework for Singapore to develop as a place for arbitration. In addition, the Singapore Government has recently announced its decision to accede to the New York Convention (see Chap. VII.1.A).

3. Bibliography

Singapore Statutes: Chapter 16 - Arbitration Act; Chapter 17 - Arbitration (International Investment Disputes) Act; Chapter 24 - Reciprocal Enforcement of Commonwealth Judgments Act; Chapter 25 - Reciprocal Enforcement of Foreign Judgments Act.

The Rules of the Supreme Court, 1970 (7) published as Government Gazette Subsidiary Legislation, Supplement No. 59 of 2 October 1970; Government Printing Office.

Malayan Law Journal (M.L.J.) (This is the official reporter for Singapore cases.).

Singapore High Court Judgments (These volumes are a collection of copies of the actual High Court judgments, assembled together but not formally printed).

Karthigesu, M., "The Settlement of Commercial Disputes in Singapore", [1981] 2 M.L.J. xi.

Martin, R. "Reciprocal Enforcement of Judgments and Service of Process in Singapore", [1981] 2 M.L.J. xlii.

"Proceedings of the Conference on New Concepts in Arbitration" held 14 October 1981, published by the Singapore Institute of Arbitrators, December 1981.

English cases, commentaries and treatises on relevant English law (subject to any specific qualifications in Singapore Statutes or Singapore cases).

Chapter II. - Arbitration Agreement

1. Form and Contents of the Agreement

An "arbitration agreement" under Singapore law is defined in Section 2 as "a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." A "written agreement" need not respect any special form but merely be in writing. An exchange of letters or telexes suffice (8) . Both an agreement to submit an existing dispute to arbitration and an arbitration clause relating to a future dispute are joined together in the statutory definition.

"All disputes arising in connection with the present contract shall be finally settled by arbitration in Singapore in accordance with the Singapore Arbitration Act. If the amount in dispute does not exceed S$1,000,000 (or other amount or currency) this dispute will be settled by a single arbitrator. If the amount in dispute exceeds said amount or is indefinite the dispute will be settled by three arbitrators".

If the parties wish to enter into an exclusion agreement (9) , they may choose to add the following language to the arbitration clause:

"The parties agree to exclude any right of application or appeal to the Courts of Singapore in connection with any question of law arising in the course of the arbitration or with respect to any award made" (10) .

2. Parties of the Agreement

The capacity of the parties to enter into an arbitration agreement, as any other agreement, is generally determined by the common law. Section 5 implicitly provides that a bankrupt may not enter into an arbitration agreement with respect to properties controlled by the official assignee of the debtor's estates.

The Arbitration Act itself is silent as to whether a state may be involved in an arbitration. However, there are two reported decisions in the same matter (11) concerning a motion to set aside an arbitral award, which was initiated by the Government of Singapore in the person of the Attorney-General of Singapore. The dispute underlying the award under appeal was subject to arbitration pursuant to a contract which specified the two parties as the "Government" and the "Contractor". The decisions never question the jurisdiction of the arbitrator.

From Section 27(2) it can be inferred that multi-party arbitrations are possible. Section 27(2) provides that where relief by way of interpleader is granted and an arbitration agreement applies, the court may direct the issue between the claimants to be determined in accordance with the agreement.

3. Domain of Arbitration

An implied provision in each arbitration agreement, as specified in Paragraph 8 of the First Schedule of the Arbitration Act, is that the arbitrators or umpire have the same power as the court to order specific performance of any contract other than a contract relating to land or any interest in land. Section 5 provides, as to matters relating to bankruptcy, that if the official assignee of the debtor's estates adopts a contract between the bankrupt and a third party containing an arbitration clause, or if the official assignee assigns any of the debtor's estates or the other party to the agreement applies to the court having jurisdiction in the bankruptcy proceedings, that court has discretion as to whether the matter ought to be determined by arbitration.

Although the Arbitration Act is silent on the question of whether an arbitral tribunal may hear questions involving patents, trademarks or antitrust, subject to explicit control within the structure of the Arbitration Act a tribunal may hear any questions as to rights between the parties which a court might hear in the absence of an arbitration agreement between the parties. However, an award contrary to public policy or the public at large would not be enforceable.

In the English tradition, an arbitrator in Singapore is able to fill in gaps in an agreement. For example, in case the parties have omitted a fixed price term but have included an arbitration clause in their agreement, the arbitrators can intervene to determine a fair price at a given point in time. However, to the extent that parties are precise as to the nature of their obligations at the time of signature of the contract, it is difficult to find a basis for arbitrators to re-adjust the contract based on a hardship theory. A frustration of contract analysis is available but would lead to termination of the agreement rather than to readjustment.

As to separability of an arbitration clause from the agreement, it is probable that a Singapore court would not sever a clause unless the parties had explicitly provided for same, as the Singapore courts are generally unwilling to rewrite the contract for the parties. With respect to the issue of fraud see the discussion at Chap. VI.4, infra.

Effect of the Agreement

Section 7.2, relating to the stay of court proceedings where there is an agreement to arbitrate, leaves the decision whether or not to stay to the discretion of the court. The court "may" make an order to stay the court proceeding if it is satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement and that the defendant was and remains ready and willing to do the things necessary to conduct the arbitration.

If court proceedings have been commenced against any party to an arbitration agreement in connection with a matter subject to that agreement, the defendant may raise such agreement. However, the defendant must do so before delivering any pleadings or taking any other steps in such court proceedings; failure to do so in a timely manner constitutes a waiver of the right to have the dispute resolved by arbitration.

Section 19(2)(b) further provides that where the authority of an arbitrator is revoked by leave of the court, the court may on application of any party to the arbitration agreement order that the arbitration agreement shall cease to have effect with respect to the dispute referred. Despite the existence between the parties of an agreement to arbitrate as a condition precedent to bringing any court action, Section 19(4) provides that the court may order (either under Section 19 or under any other relevant written law) that an agreement to arbitrate shall cease to have effect as regards a particular dispute.

Nevertheless, arbitrators normally face the question of their own jurisdiction as one of the first issues before them. As the jurisdiction of an arbitral tribunal is consensual, an error by the tribunal in evaluating the existence or the scope of the parties' agreement to arbitrate, is ultimately subject to review by the courts pursuant to an action to set aside the award. Except for cases in which the parties have entered into a binding exclusion agreement, the possibility of stating the question to the court as an interim question exists as the issue is one likely to result in a substantial savings in costs and thus probably meets the requirements for a consultative case set forth by Section 28A(2).

Chapter III. - Arbitrators

1. Qualifications

As to who may be an arbitrator, Section 12(l) provides that the court may remove an arbitrator who is not impartial. From this grounds for challenging the appointment of an arbitrator it follows that a party having some relation either to the subject matter of or the parties to the dispute should not be appointed as arbitrator and that prior to appointing an arbitrator, the party to an arbitration agreement should assure itself that no facts exist that may raise doubts about the impartiality or the independence of the party selected as arbitrator. Under Singapore law and practice, arbitrators must be, and are reputed to be, impartial.

Arbitrators of nationalities other than Singaporean may be appointed. In practice, arbitrators in Singapore tend to be drawn from among the ranks of practicing solicitors, advocates and retired judges. Given the respect for and ties to the English legal system, English Queen's Counsel are, on occasion, called upon as arbitrators. The parties are free to raise arguments as to the appropriateness of a given person to serve as arbitrator based on the special characteristics of the case in question.

2. Challenge of Arbitrators

As there is generally no arbitration institute whose rules are applicable, a challenge of an arbitrator is decided upon by a court. As discussed above, Section 12(l) states that impartiality is a sufficient ground. Section 17(l) provides that when an arbitrator or umpire has misconducted himself or the proceedings, the court may remove him. The grounds of the arbitrator's misconduct was advanced for example in Wong Wai Cheng v. Attorney-General of Singapore (12) in attempting to set aside the award. The respondent in that case attempted to challenge the arbitrator arguing that the arbitrator had misconducted himself in not applying to the court to order a stated case. This ground was not successful before the High Court. (13) Section 18(l) provides that an arbitrator or umpire who fails to use reasonable dispatch may be removed by the court upon proper application.

According to Section 12(2), a court has power to order that an arbitration agreement cease to have effect in case the question of impartiality of the arbitrator or fraud arises.(14)

3. Number of Arbitrators

If the agreement between the parties is silent as to the number of arbitrators, Paragraph 1 of the First Schedule provides that reference shall be to a single arbitrator. Otherwise, the Arbitration Act does not prescribe a fixed number of arbitrators but refers to one, two or three arbitrators. The Arbitration Act refers to these but does not specifically state that a tribunal shall be of any set number. Section 9(l) refers to instances where parties refer their dispute to two arbitrators. The 1980 Amendment in the First Schedule provides that the two arbitrators "may" appoint an umpire at any time after they have been appointed themselves and "shall forthwith do so if they cannot agree." The umpire is to resolve their differences. If they are in agreement, a two arbitrator tribunal may render a binding award.

4. Appointment of Arbitrators

If no provision for appointment of arbitrators has been made by the parties in their arbitration agreement, Paragraph 1 of the First Schedule provides that reference shall be to a single arbitrator. In turn, Section 8(l) provides that where reference is to a single arbitrator and all the parties do not concur in the appointment of an arbitrator, any party may serve the other party with a written notice to concur in appointing an arbitrator. If the appointment is not made within seven clear days after the service of the notice, the court on application of the party who gave the notice, may appoint the arbitrator. Section 8(1)c further provides that where the parties or two arbitrators are required or are at liberty to appoint an umpire or a third arbitrator and do not appoint him any party may serve the other party or the arbitrators, as the case may be, with notice and apply to the court to appoint said third arbitrator or umpire if within seven clear days of such notice no appointment has been made by the parties or the arbitrators. An alternative is provided to the non-defaulting party by Section 9(l): When one party fails to appoint an arbitrator, the other party, having appointed his arbitrator and served notice on the party in default, may appoint the arbitrator he has chosen as the sole arbitrator. The court may oversee such procedure as, pursuant to Section 9(2), the court has the discretion to set aside such an appointment.

Agreement between the parties is the preferred method for selecting arbitrators. This is so in practice and is the basis of the system for appointment by a court, discussed above, which is activated only in the case of a failure by the parties to agree.

Chapter IV. - Arbitral Procedure

1. Place of Arbitration

The Arbitration Act makes no reference to a means of deciding the place of arbitration in the absence of a stipulation in the contract or of subsequent agreement between the parties. Once it is determined that the arbitration will take place in Singapore any further agreement on the place of arbitration becomes a question of mere practical convenience. However, Section 28B, which distinguishes between a domestic and an international arbitration for purposes of determining the validity of an exclusion agreement entered into prior to the dispute, does consider whether an arbitration agreement provides either expressly or by implication for arbitration in a State other than Singapore. However this test would only apply between nationals of Singapore. An arbitration involving either "an individual who is a national of, or habitually resident in, any State other than Singapore" or "a body corporate which is incorporated in, or whose central management and control is exercised in, any State other than Singapore" is a "non-domestic arbitration" under the Arbitration Act regardless of the place of arbitration.

2. Arbitral Proceedings in General

The Singapore Institute of Arbitrators, structured along the lines of the London Chartered Institute of Arbitrators,(15) has not published a set of arbitration rules. However, an arbitration may be made subject to other arbitration rules. Where no set of rules of an arbitral institution is made applicable, the provisions of the Arbitration Act serve as a guide. The exact procedure to be applied is largely left up to the arbitrators themselves. As discussed below (Chap. IV.3), both written evidence and witness testimony are referred to in the Arbitration Act, implicitly suggesting that it is normal for these to be considered, if and when necessary, in the course of arbitration proceedings. However, neither is specifically required by the Arbitration Act. Paragraphs 4 and 5 of the First Schedule underline the arbitrator's discretion as to the means of evidence, whether written or oral, which the tribunal may deem necessary.

Arbitrators are not required to follow the formal rules prevailing in court proceedings. However, a majority of arbitrators in Singapore have been drawn from the rank of practicing lawyers and accordingly, have applied the formal rules of the court, to the recent criticism of some of the prominent persons in the Singapore arbitration community.

The case stated procedure or consultative case, which still exists in a limited form pursuant to Section 28A, is a noteable feature of arbitration in Singapore. Besides court proceedings to set an award aside, the reference of questions of law to the court results in the most significant number of reported court cases concerning arbitration. Although the procedure exists to resolve questions of law, in practice cases brought under Section 28A reflect a broad interpretation of the notion "questions of law" to cover mixed questions of law and fact (if not questions of fact themselves). Despite the recent statutory limitations on this procedure, it is not yet clear to what extent the courts will limit the frequency of their intervention or its scope (See Chap. VI.4 regarding the possibility for the parties to exclude such reference). (16)

3. Evidence

Unless the parties have stipulated certain rules of evidence in their arbitration agreement, the arbitral tribunal is free to hear or receive evidence in any form it may wish whether or not including oral testimony. The only principle limiting the arbitrators' freedom in this regard is the basic principle of a fair procedure allowing each party an impartial chance to be heard and to know the case made against him. A tribunal must not act upon obviously inadmissible evidence, however, as this will offer a ground for challenge of the award.

Section 13 provides that the arbitrators have the power to administer oaths to, or take the affirmations of, parties and witnesses. The hearing of witnesses in Singapore normally proceeds along the Anglo-Saxon method including cross-examination.

Any party to an arbitration agreement may sue out a writ of subpoena under Section 14 to compel a party to appear for testimony or to submit evidence but no person shall be compelled to produce any document which he could not be compelled to produce on the trial of an action in court. If a witness is unwilling to appear before the arbitrators, the court may, pursuant to Section 26(l), compel the attendance of the witness, wherever he may be within Singapore, before any arbitrator.

4. Experts

The Arbitration Act does not explicitly refer to appointment of an expert. However, the provisions in the Act regarding evidence allow the arbitrators a certain latitude. In practice experts are allowed to submit an opinion. In turn basic rules of fair proceedings require that the opinion be made known to the other side and that that party be given a chance to respond either directly or by means of its own expert witness.(17)

5. Interim Measures of Protection

It is often key to the satisfactory resolution of the dispute between parties to an international commercial arbitration that interim measures be awarded, either in connection with perishable goods or as a means to preserve evidence in the litigious state until it is reviewed by experts, or generally, to preserve the parties' rights. The Arbitration Act is silent on the powers of the arbitrators to declare such interim measures but nothing prevents a tribunal from ordering such measures. However, in international commercial arbitrations, the lacunae is that the arbitrators themselves have no real means of enforcing their order. In this regard, their most forceful means of coercion is the negative inference they may draw regarding the issue in question and the party's willingness to cooperate.

Accordingly, the parties normally go to court for such assistance. Section 27(l), which incorporates by reference the terms of Paragraphs 5 through 8 of the Second Schedule, provides that the court shall have the same powers in connection with an arbitration as it has for the purpose of or in relation to an action or matter in the court. This explicitly includes measures in connection with (i) preservation, interim custody or sale of any goods which are the subject matter of the reference, (ii) securing the amount in dispute in the reference, (iii) detention, preservation or inspection of any property or thing for the purpose of obtaining full information or evidence and (iv) interim injunctions. The Arbitration Act is careful to add that nothing in this provision shall prejudice any power, which would or may be vested in an arbitral tribunal, of making orders with respect to any of these matters. These measures can be taken before the award has been rendered.

6. Representation and Legal Assistance

While it is possible that a party may be assisted in an arbitration by any person, in practice parties are assisted by lawyers who generally have been responsible for submission of the request for arbitration or the answer to the request. According to Paragraph 4 of the First Schedule, the parties to the reference must submit to be examined by the tribunal in connection with the matters in dispute. (18)

7. Default

If any party to an arbitration fails to comply with an order of an arbitral tribunal, either the tribunal or any party may apply to the court under Section 28D for an order extending the powers of the tribunal. If an order is made by the court under Section 28D(2), the arbitrator shall have, subject to any conditions specified in that order, the power to continue with the reference in default of appearance or of any other act by one of the parties in like manner as a judge of the court might continue with proceedings in that court, where a party fails to comply with an order of that court or requirement of rules of court. Section 28D(3) makes clear that these provisions do not derogate from any powers already conferred on the arbitrator whether by an arbitration agreement or otherwise.

Thus, as in normal court proceedings, an arbitrator can proceed to the rendering of an award despite the default of one party. Pursuant to Section 3, an arbitration agreement shall be irrevocable and shall have the same effect in all respects as if it had been made by an order of the court. As is generally the case in arbitration, in the event a party defaults, the binding nature of the award will depend to a critical degree upon the validity of the agreement to arbitrate itself. Accordingly, the tribunal should assure itself that a valid agreement to arbitrate exists (i.e. it should analyze this issue even if it is not raised by the party pursuing the arbitration as the defaulting party is not present to raise the issue).

Chapter V. - Award

1. Type of Award

Arbitrators may make interim awards under the Arbitration Act as is shown in the definition of "award" found in Section 2: "award includes an interim award". The latter is further, explicitly provided for in paragraph 9 of the First Schedule which provides that arbitrators may, if they think fit, make an interim award. The. latter provision is to be implied in an arbitration agreement unless the agreement provides otherwise.

Interim awards are very much a part of Singapore arbitration practice as foreseen in the Arbitration Act. In addition to interim awards by the tribunal, Section 28A, relating to the "consultative case" procedure as permitted by the 1980 Amendment, provides for an intermediary reference to the courts on a specific question of law which will be binding on the tribunal when reaching its ultimate award. In certain ways, this is similar in effect to an interim award by the arbitral tribunal which is then appealed to the court.

2. The Making of an Award

The parties to an arbitration clause may stipulate any time to which they may agree, as the time for making an award. Subject to such agreement by the parties in their agreement to arbitrate or to the specific limitation for making an award after a question has been remitted by the court to the tribunal (within three months as specified in Section 16(2)), Section 18(3) provides that an arbitrator or umpire "shall have power to make an award at any time." (19)

In practice arbitrations in Singapore have tended to be more rapid than is the case for many international institutional arbitrations in Europe. It is not uncommon for arbitrations to reach their award from six months to a year after the Notice of Arbitration.

Prior to the 1980 Amendment, the Arbitration Act provided that where an arbitration agreement called for three arbitrators, one to be appointed by each party, and a third to be appointed by the two party-appointed arbitrators, the agreement was to be deemed to provide for the appointment of an umpire instead. Following the 1980 Amendment, the appointment of one arbitrator by each party and of a third arbitrator by the two party-appointed arbitrators leads to the constitution of a regular tribunal of three, the third arbitrator acting as Chairman. As is now set forth in Section 10, unless a contrary intention is expressed in the arbitration agreement, if the reference is to three arbitrators, the award of any two of the arbitrators shall be binding.

3. Form of the Award

There is no particular form for the wording or presentation of an award. Likewise, an award may be in such language as the arbitral tribunal finds appropriate.(20) There is no specific provision that the arbitrators in favor of the award must sign the award.

While it is not directly mandated in the Arbitration Act that an award should be in writing, Section 28(5) provides that if it appears to the court that an award does not sufficiently set out the reasons for the award, the court may order the arbitrator or umpire to state the reasons for its award in sufficient detail to enable the court, should an appeal be brought under the section, to consider any question of law arising out of the award. Where no reasons were given for the award, the court may not require the above-mentioned specification unless it is satisfied that a reasoned award was requested by one of the parties during the course of the arbitral procedure.

Based on this provision, it can be argued that the award should be in writing and should contain the reasons for the award to avoid additional complications based on later judicial intervention. Judicial intervention cannot be avoided by not stating the reasons if either party has officially requested a reasoned award so it is safest for the tribunal to fully state the reasons at the time that the tribunal is making its decision as it may be more difficult to reconstruct the bases for the award if and when a court later requires further specifications. Indeed in Tan Tong Meng Co. (Pte.) Ltd. v. Artic Builders & Co. (Pte.) Ltd., (21) the court set aside an interim award for lack of supporting reasoning. The court had in that case first requested clarification. The arbitrator refused to make available to the court his notes of evidence. The court held that such refusal resulted in the plaintiff not getting a fair hearing.

4. Pleas as to the Arbitrators' Jurisdiction

The arbitrators may decide on their own jurisdiction. However, the final word as to the arbitrator's jurisdiction belongs to the court. Any action by an arbitrator beyond the scope of his jurisdiction may constitute an error of law and thus be subject to court review pursuant to a consultative case procedure according to the terms of section 28A or pursuant to an appeal procedure according to the limited terms of Section 28. Alternatively, such action may constitute improper conduct by the arbitrator which may lead to setting aside the award pursuant to Section 17(2). It should be noted that these powers of the court to set aside an award may in part be eliminated if the parties enter into an exclusion agreement.(22)

5. Applicable Law

Arbitrators must decide according to rules of law in a domestic arbitration as the review permitted by the courts cannot be limited as easily as in the case of an international arbitration. Domestic arbitration is defined in Section 28B(7) as an arbitration "which does not provide, expressly or by implication, for arbitration in a state other than Singapore and to which neither - (a) an individual who is a national of, or habitually resident in, any state other than Singapore; nor (b) a body corporate which is incorporated in or whose central management and control is exercised in, any state other than Singapore."

In international arbitrations (i.e. arbitrations which are not "domestic"), in the absence of an explicit choice of law in the contract, arbitrators arrive at a decision on the law applicable to the substance of the dispute based on choice of law theories commonly known in the English common law system, such as maximum contacts with a forum, etc. The parties to an arbitration agreement may avoid any doubt as to the law actually applied by explicitly stipulating in their agreement that the arbitration is subject to a given law.

6. Settlement

Singapore courts recognize and have the practice of entering consent judgments on terms of a settlement between the parties. Arbitral tribunals in Singapore apply this procedure as well. Such awards on agreed terms can be enforced by the courts as other arbitral awards. (23)

7. Correction and Interpretation of the Award

Arbitrators explicitly have the power pursuant to Section 13(b) to correct typing errors or other clerical errors in their award.

Arbitrators may also be called upon to give an interpretation of their award if sufficient reasons are not explicitly stated in the text of the award under Section 28(5)(b).(24)

A supplementary award is possible and explicitly called for by Section 30(3) in case no provision is made in an award with respect to the cost of the reference. Any party may within 14 days after publication of the award, or longer if approved by the court, apply to the arbitrator for an order directing by and to whom such costs shall be paid. The court may direct the arbitrator to amend his award. No other type of supplementary award is provided for by the Arbitration Act. If an award failed to provide for interest, there would be no need for a supplementary award as Section 29 provides, in such a case, for interest from the date of the award at the legal rate.

8. Fees and Costs

An award normally contains a decision as to the costs of arbitration including the arbitrators' fees and legal costs. According to Section 30(2), any provision in an arbitration agreement providing that the parties shall pay their own costs, in case of an arbitration, shall be void. The arbitrators thus generally have full ability to decide on the amount and the apportionment of said costs among the parties. However, an agreement between parties to an arbitration that each bear its own costs is valid if entered into after a dispute arises.

A. Deposit

The arbitrators have the power of directing by whom and in what manner the costs of arbitration are to be paid pursuant to Paragraph 7 of the First Schedule. The court also has the power of requiring security for costs and fees pursuant to Section 27(l) which refers to and incorporates Paragraph 1 of the Second Schedule.

B. Fees of Arbitrator

The fees of the arbitrator may be determined by the arbitrator himself. Section 30(l) provides that "costs" may be directed by an award, subject to "taxation" (25) in the court. Section 31 provides that any order made under the Act may be made on such terms as to costs as the authority making the order thinks fit.

Section 32(l) provides for a sort of mediation by the court in case there is a dispute between an arbitrator and a party to the arbitration who refuses to pay the amount demanded for fees. The court may order the arbitrator to deliver the award to the party upon prompt payment into court by that party of the fees demanded. The court shall examine the amount of such fees and pay out to the arbitrator by way of fees such sum as may be found reasonable and the balance of any money shall be returned to the party.

However, Section 23(3) states that with respect to an arbitrator or referee to whom a matter has been referred by an order of the court, the remuneration shall be determined by the court.

Where an arbitrator is removed by the court for failure to use reasonable dispatch in entering on and proceeding with a reference, regardless of the means of determining the fees of the arbitrator, Section 18(2) provides that the arbitrator is not entitled to receive any remuneration with respect to his services.

C. Costs of Legal Assistance

The costs of legal assistance may be reimbursed to the winning party based on the equities of the dispute. Paragraph 7 of the First Schedule provides that the amount and the apportionment of costs are in the discretion of the arbitral tribunal and that the tribunal may award costs to be paid as between the solicitor and the client.

In addition, Section 34 provides that the court has the power to charge property recovered or preserved in connection with an arbitration proceeding with payment of the costs of the solicitor which has been employed in the said proceedings.

9. Delivry of the Award and Registration

If an arbitrator refuses to deliver his award except upon payment of the fees demanded by him, pursuant to Section 32(l) the court may, on application for this purpose, order the arbitrator to deliver the award upon payment of the fees into court by the parties.

There is no requirement that an arbitral award be registered or deposited with any court in Singapore. Rather, the practice is for the award creditor to write a letter to the award debtor to request payment.

10. Executory Force and Enforcement of the Award

If voluntary payment on an award is not forthcoming, Section 20 provides for the conversion of the arbitral award into a court judgment by leave of the High Court. Where leave is so given, judgment may be entered in the terms of the award. Once this is done, the award can be enforced as any other judgment. In practice such leave for enforcement (or exequatur) is almost automatic, i.e., the court will not look into the merits of the award. However, the court may refuse to grant exequatur if there is something fundamentally wrong with the award or if there is evidence that the proceedings in arbitration failed to respect the basic tenets of a fair procedure.(26)

Although Order 45,(27) Rule 2 of the Rules, provides that where a person is directed in a judgment or an award (28) to pay money to or for the credit of a person who is resident outside the territories, he must pay the money into the High Court unless the Controller of Foreign Exchange (presently the Monetary Authority of Singapore) has given permission for the payment, no exchange control is presently in effect in Singapore.

An application for leave to issue a writ of execution may be made ex parte in accordance with the terms of Order 46. Such an application must be supported by an affidavit identifying the award, the amount originally due under the award, the amount due on the date of the application and such other information as appropriate to satisfy the court that the applicant is entitled to proceed to execution of the award against the party in question. Issue of the writ of execution takes place on its being sealed by an officer of the Registry of the High Court.(29) The writ will not be sealed by the Registry unless the person wishing to enforce the award produces the award on which the writ of execution is to be issued or a certified copy thereof.

For the purpose of execution a writ is valid for 12 months from the date issued and may be renewed for additional 12 month periods. The party entitled to execution may levy the commission, fees and expense of execution over and above the sum recovered. (30)

11. Publication of the Award

It is appropriate to speak of the "publication" of an arbitral award in Singapore. However, the term does not have the meaning most would attribute to it. As M. Karthigesu explains: "Having reached a decision the tribunal must make its decision known. This is called publishing the award. This does not involve making its contents known to the parties. What is required is that the award should be completed and notice of its readiness given to the parties".(31) As to the more common usage of the term "publication" of an award, there is no periodical which regularly prints the texts of arbitral awards as such. Excerpts of awards are on occasion printed within the text of a court decision deciding whether to set an award aside.

Chapter VI. - Means of Recourse

1. Appeal from an Arbitral Award to the Cours

There is no full appeal from an arbitral award allowing a review of the merits of the dispute in second instance. Similarly appeal to a tribunal of appeal-arbitrators (second instance in arbitration) is unknown in Singapore.

However, according to Section 28(2) an appeal may be brought to the court on any question of law arising out of an award. This right of appeal is subject to Section 28(3) which provides that such appeal may be brought by one of the parties with the consent of all the other parties to the reference or subject to leave of court. The court shall not grant leave to appeal unless it considers that having regard to all the circumstances, the determination of the question of law could "substantially affect the rights of one or more of the parties to the arbitration agreement".(32) On determination of an appeal, the court may confirm, vary or qualify the award or remit the award to the arbitrator for reconsideration together with the court's opinion on the questions of law appealed. The court's decision, in turn, may be appealed to the Court of Appeal pursuant to Section 28(7) but only if the latter gives leave and considers the question of law "of general public importance or as one which for some other reason should be considered by the Court of Appeal".

Appeal on a question of law during the arbitration is generally not permitted. Section 28A, however, allows for limited reference of questions of law to the court during the course of arbitration proceedings without the consent of all parties, if the arbitrator consents and the court is satisfied that determination of such question might produce substantial savings in costs to the parties and that the question could be appealed under Section 28(3)(b). Appeal on a question of law may, therefore, in effect, be considered as one of the grounds for setting aside an award.(33)

2. Remedies against Leave for Enforcement

As the application for enforcement of an arbitral award results in the decision of a trial judge, that decision becomes subject to appeal as other decisions of trial judges in Singapore. See for example, Re Arbitration between Mohamed Ibrahim & Koshi Mohamed (34) which is the case of an appeal against a judgment allowing an application to enforce an award made by an arbitrator.

Setting Aside of the Arbitral Award

A. Grounds for Setting Aside

Judicial review of arbitration awards has a more limited scope under the 1980 Amendment than was the case prior to that time. Section 28(l) provides that the court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law appearing on the face of the award. The award of the arbitrators is thus final and binding on the parties. This is an implicit condition in an arbitration agreement. (35) However, Section 6 of the Arbitration Act allows the agreement between the parties to provide otherwise.

This provision of Section 28(l) is "without prejudice to the right of appeal conferred by Subsection (2)", dealt with already under Chapter VI.1. This right of appeal on any question of law is one of the grounds which may lead to setting aside an award.

As discussed in Chapter IV.3 above, although the arbitrator has broad latitude in conducting the proceedings, he may not disregard fundamental notions of justice such as the right of each party to know the case against him and to have his own "day in court". Similarly, the arbitrator may not base his award on obviously inadmissible evidence.

Misconduct by the arbitrator or umpire of either himself or the proceedings may lead to an award being set aside.(36) The grounds for misconduct are largely set forth in the decision of Official Assignee v. Chartered Industries of Singapore Ltd . (37) which reads in relevant part:

"The authorities are clear that an award may be set aside if the arbitrator has misconducted himself. What constitutes misconduct is set out in Halsbury's Laws of England, 4th Ed., Volume 2, page 330 para. 622. Misconduct occurs if the arbitrator fails to decide all the matters which were referred to him.... The matters or issues which were raised before the arbitrator can be ascertained from the pleadings filed in the arbitration proceedings. The arbitrator should have stated in his award whether the notice and the termination of the agreement were good or bad…. I think the award is also defective, and therefore void, on account of the award being ambiguous…. It is therefore invalid and must be set aside."

An award may therefore be set aside when an arbitrator has decided questions beyond those submitted to him or has not fully answered all questions submitted to him. The court in re Malayan Insurance Company Incorporated v. Chek Brothers Construction Company (38) states that the arbitrator had gone beyond his jurisdiction in dismissing the respondent's claim on a ground which was not specifically pleaded and which was not referred to him. The award was remitted to the arbitrator with the direction that a proper award in favour of the respondent be made by him without regard to the issue in question.

In this case the award was not set aside but remitted to the arbitrator. Section 16 provides that in all cases of reference to arbitration the court may remit matters referred, to the recommendation of the arbitrator who shall then, unless the order directs otherwise, make its award within three months.

Violation of public policy is also a reason for a Singapore court to refuse to grant exequatur or to set aside an award. Even if an arbitrator has fully complied with the terms of the parties' agreement to arbitrate, his award will be invalid for "misconduct" if it is based on grounds contrary to public policy.

B. Procedure For Setting Aside

a. As to the procedure to be followed in an action to set aside an award on one of the grounds mentioned in Chap. VI.3.A, supra, except as otherwise discussed under b, infra, Order 55 of the Rules, Rule 3 provides that notice of the motion by which appeal is brought must be served within 28 days after the date of the award of the tribunal to the chairman of the tribunal and to every party to the proceedings. The time limit for an appeal against an award of the tribunal shall be calculated from the date on which notice of an award is given to the appellant. Unless the court having jurisdiction otherwise directs, such an appeal shall not be heard sooner than 21 days after service of notice. Specific procedures are set out in Order 55 as to the content, the number of copies and the dates for amending notice.

Rule 6 provides that the appellant is to supply the judge hearing the appeal with a signed copy of any note made by him of the proceedings. The court may also hear and determine the appeal on any other evidence or statement that was produced in or relates to those proceedings as appears to the court to be sufficient. Unless the court otherwise advise, such a note by a person present at the proceedings shall not be used in evidence unless it was previously submitted to the person presiding at the proceedings for his comments.

The court shall not be bound to allow the appeal on the grounds of improper admission or rejection of evidence unless in the opinion of the court substantial wrong or miscarriage was occasioned thereby.

If an application to the court is made for a declaration that an award was made without jurisdiction (39) Order 69, Rule 2 provides that by originating motion to a single judge in court the judge may refuse to make such a declaration in proceedings begun by motion. According to Order 69 of the Rules, an application to the court to remit an award pursuant to Section 16 or to set aside an award pursuant to Section 17(2) may be made any time within six weeks after the award has been made and published to the parties. The notice must state the grounds of the application and a copy of every affidavit intended to be used must be served with that notice.

b. In case of an appeal to the court under Section 28(2), notice must be served, and the appeal entered within 21 days after the award has been made and published to the parties, but if reasons material to the appeal are not known until a date after publication of the award, the 21-day period will run from such latter date. An application under Section 28A to determine any question of law arising in the course of a reference must be made and notice thereof served within 14 days after the arbitrator or the other parties have consented to such application.

4. Exclusion Agreement

Following the example of the English Arbitration Act 1979, the 1980 Amendment also included the possibility for the parties to enter into an agreement excluding recourse to the court in respect of (i) a question of law arising in the course of a reference, (ii) an order that the arbitrator state the reasons for his award and (iii) an appeal to set aside an award. The exclusion agreement is introduced into the Arbitration Act by Section 28B and Section 28C.

As is the case for an agreement to arbitrate, an exclusion agreement (40) must be in writing.(41) Section 28(B)(2) provides that an exclusion agreement may cover any description of awards. The 1980 Amendment provides that exclusion agreements in non-domestic arbitrations are valid whether or not entered into before an arbitration arises except with respect to (a) questions or claims falling within the Admiralty jurisdiction of the court; or (b) disputes arising out of contracts of insurance; or (c) disputes arising out of commodity contracts. For an exclusion agreement to be valid in these cases it must be entered into after the commencement of arbitration or the arbitration must be governed by a law other than the law of Singapore. However, the Minister of Law may, by order, provide that Sub-section I of Section 28C shall either cease or be limited as he so specifies.

Section 28B limits the effect of exclusion agreements to excluding (i) appeals on questions of law (ii) requests for a court order that the arbitrator state the reasons for his award (iii) court intervention to determine a question of law in the course of proceedings. The courts thus retain any residual powers such as that of determining whether there was misconduct on the part of the tribunal in deciding matters beyond its jurisdiction. It is not yet clear from Singapore case law to what extent the courts will rely on such residual powers as those under Section 17(2) to circumvent the announced aim of the 1980 Amendment, that of limiting judicial intervention in the arbitral process. It is likely that this areas, interpreting Sections 22 and 23 of the 1950 U.K. Arbitration Act in light of the limitations of the 1979 U.K. Arbitration Act.

When the parties have entered into an arbitration clause and a dispute arises involving the question whether a party to the arbitration has been guilty of fraud, the court normally has power pursuant to Section 12(2) to order that the arbitration shall cease to have effect and to decide the dispute itself. An exclusion agreement constitutes an exception to this rule. In any case, where a dispute involves the question whether a party has been guilty of fraud and a valid exclusion agreement exists, the court shall "except in so far as the exclusion agreement otherwise provides" not exercise its power under Section 12(2), if the arbitration is a non-domestic (international) arbitration.(42) Both Section 12(2) and Section 28B(3) refer to the question whether a party has been guilty of fraud. Fraud by the arbitral tribunal itself falls under the rule of Section 17(2).

5. Other Means of Recourse

Besides the regular means of recourse described above, legal issues relating to arbitration in Singapore can be and have been appealed to the Privy Council in London.(43) In Singapore the last court of appeal is the Judicial Committee of the Privy Council (44) in London.

Chapter VII. - Foreign Arbitral Awards

1. Enforcement of Foreign Arbitral Awards

A. Multilateral Conventions

Singapore enacted the Arbitration (International Investment Disputes) Act (45) on 10 September 1968 to implement the International Convention on the Settlement of Investment Disputes between States and Nationals of other States.(46)

The Ministry of Law announced on 8 November 1985 that the Government has decided to accede to the Convention on the Recognition and Enforcement of Foreign Awards and that upon accession Singapore will enact legislation to carry into effect its obligations under the Convention. This decision, if duly carried into full effect, will give Singapore the final, previously lacking feature of an international arbitration center.

To date, foreign arbitral awards and judgments obtained in foreign courts have not been directly enforceable in Singapore. However, they may be registered in Singapore and thus become enforceable. For foreign judgments to be registered and enforced in Singapore under existing legislation, they must originate in a country which extends reciprocity to Singapore judgments.(48) Enforcement of a foreign judgment is possible only where a sum of money is payable.

B. Reciprocal Enforcement of Commonwealth Judgments Act 5 (49)

The Commonwealth Judgments Act, found at Chapter 24 of the Singapore Statutes, provides for the registration of judgments obtained in a superior court of the United Kingdom of Great Britain and Northern Ireland or of other parts of the Commonwealth as extended by the Minister of Law on the basis of reciprocity.(50)

Under the Commonwealth Judgments Act, "judgment" is defined to include arbitral awards if they are enforceable in the same manner as a court judgment in the place where they were rendered. Accordingly, exequatur in the country in which the award was rendered is not required by Singapore if the award is enforceable in the same manner as a court judgment in the place where it was rendered. The Commonwealth Judgments Act provides in its Section 3(l) that registration in Singapore of such judgments is to take place within 12 months after the date of the judgment or such longer period as allowed by the court. In Minoutsi Shipping v. Trends Continental Shipping Services (Pte.) Ltd.,(51) the court granted leave to sign final judgment for the amount of the full claim with costs to plaintiffs who held an arbitral award in their favour in arbitration proceedings in the city of London under provisions of the English Arbitration Act. Although the London arbitrator applied English Law (in the absence of an explicit choice of law provision), the Singapore court allowed enforcement of the award.

Enforcement of Commonwealth judgments is not a matter of right however. The High Court must, "given all the circumstances of the case ... think it just and convenient that the judgment should be enforced in Singapore".(52) The Singapore courts have interpreted the applicable statutory language, "whether it is just and convenient" for the English judgment to be enforced in Singapore, broadly.

Registration under the Commonwealth Judgments Act may not be ordered by a Singapore court if (a) the arbitral tribunal or the original court, as relevant, acted without jurisdiction, (b) the award debtor was not subject to the jurisdiction of the arbitral tribunal or the original court, as relevant, (c) the award debtor was not duly served with process in the arbitral tribunal or the original court, as relevant, and did not appear, (d) the award was obtained by fraud, (e) the award debtor satisfies the registering court that an appeal is pending or that he intends to appeal, or (f) the award is contrary to the public policy of the registering court.(53) The court may use its discretion to refuse an application for registration for other grounds.

C. Reciprocal Enforcement of Foreign Judgments Act (54)

Under the Foreign Judgments Act of 26 March 1959 (Chapter 25, Singapore Statutes) "judgment" is defined as the decision of a foreign court. Therefore an arbitration award is not included in the definition. Contrary to the situation under the Commonwealth Judgments Act it is therefore first necessary to obtain an exequatur in the country where the award was made.

The Foreign Judgments Act provides for enforcement in Singapore of judgments given in Commonwealth or other foreign countries which offer reciprocal treatment to judgments rendered in Singapore.(55) The Foreign Judgments Act applies if the judgment is final and conclusive between the parties thereto, a sum of money is payable thereunder (not relating to taxes, fines or penalties), and the judgment is granted after the Foreign Judgments Act came into effect with respect to the foreign country in question. For purposes of the Foreign Judgments Act, a judgment is deemed final and conclusive notwithstanding the possibility of an appeal which may be lodged in the courts of the country of origin.(56)

It is necessary to register a foreign judgment within 6 years of the date of the last judgment in those proceedings, with the High Court.(57)

The registration of the judgment may be set aside if the registering court is satisfied (i) that the judgment is not one to which the Foreign Judgments Act applies, (ii) that the original court had no jurisdiction, (iii) that the judgment debtor did not receive timely notice of the proceeding and accordingly, did not appear, (iv) that the judgment was obtained by fraud, (v) that enforcement of the judgment would be contrary to the public policy of Singapore, or (vi) that the rights under the judgment are not those of the parties seeking registration. The registration may also be set aside if the subject of the judgment had previously or already been the object of a final and conclusive judgment.(58)

D. Implementing Rules

The Rules govern the actual procedures to be followed in registering, setting aside or enforcing foreign judgments and awards. Pursuant to Order 67, Rule 2 and Rule 3, to register a foreign judgment or award, a party submits an ex parte application by an originating summons supported by an affidavit and an authenticated copy of the judgment or award. If the original judgment or award is not in English an authenticated translation must be supplied. The affidavit should set forth, inter alia, particulars of the parties to the dispute and affirm that the party making the affidavit has a right to enforce the judgment or award (which has not been wholly satisfied and which would be enforceable in the country of origin).

When the court orders the registration of a foreign judgment or award, it will fix a period during which the registration may be set aside. Thus enforcement may not take place until the end of this period.