Singapore has continued to grow in prominence in the region as a go-to dispute resolution hub, as borne out by the 2018 Queen Mary University of London and White & Case International Arbitration Survey, which ranked Singapore as the third most preferred international arbitration seat,2 the Singapore International Arbitration Centre (SIAC) as the third most preferred arbitral institution in the world3 and the most-preferred arbitral institution in Asia.4 Further, in a survey of Asian lawyers commissioned by the Singapore Academy of Law, 63 per cent of legal practitioners and in-house counsel who engage in cross-border transactions in Asia have chosen Singapore as their preferred destination for dispute resolution, and 82 per cent of respondents were either very familiar or quite familiar with the SIAC.5

There are many reasons why Singapore has emerged as one of the world's leading centres for international arbitration. These include its convenient geographical location, which is enhanced by the fact that it is a modern, clean and extremely efficient country with excellent infrastructure and world-class communications. Added to this, the government and courts have a reputation for integrity and competence that are second to none. Moreover, its courts have proven to be knowledgeable about and supportive of international arbitration.

In short, Singapore is seen as a neutral option for international parties looking to resolve their disputes through arbitration in a geographically convenient location supported by a physical, legal and political infrastructure that is sophisticated, skilled and of high integrity. There are few, if any, other venues in Asia that can claim all of these attributes.

i The Singapore legal regime governing arbitration

There are two parallel legal regimes governing arbitrations in Singapore: the Arbitration Act6 (AA), which governs domestic arbitrations and the International Arbitration Act7 (IAA) which governs international arbitrations.

The AA applies to any arbitration where the place of arbitration is Singapore, in relation to which Part II of the IAA does not apply.8 In turn, Part II of the IAA applies to international arbitrations as well as to non-international arbitrations where parties enter into a written agreement between themselves providing for Part II of the IAA and the Model Law to apply.9 The criteria for determining whether an arbitration is of international nature is set out in Section 5(2) IAA (read with Section 5(3) IAA). Under Section 5(2) IAA, an arbitration is international if at least one of the parties to the arbitration agreement, at the time of the conclusion of the agreement, has its place of business in any state other than Singapore, or if the place of arbitration or any place where a substantial part of the obligations of the commercial relationship is to be performed is outside Singapore.

The IAA adopts the United Nations Commission on International Trade Law (UNCITRAL) Model Law on international commercial arbitration (Model Law), with certain amendments. Section 3(1) of the IAA provides for the Model Law (except for Chapter VIII thereof) to have the force of law in Singapore. Any departures from the Model Law are listed in Part II of the IAA. However, Section 15(1) IAA provides parties an option to opt-out of the Model Law and for the AA to apply to their arbitration. In addition, given that Singapore is a signatory to the New York Convention, this Convention is given the force of law by way of Schedule 2 of the IAA.

The AA seeks to align the domestic arbitral regime with the Model Law as well and applies to arbitration proceedings commenced on or after 1 March 2002. The corollary of this is that where there are similar provisions in the AA and the IAA, 'the court is entitled and indeed even required to have regard to the scheme of the [IAA or the Model Law] for guidance in the interpretation of the [AA]'.10 This is consonant with the legislative intent to align the domestic regime under the AA with the Model Law.

The fundamental difference between domestic and international arbitrations is the degree of curial intervention in respect of these two types of arbitrations. In particular, while the Singapore courts adopt the policy of minimal curial intervention, the AA permits additional remedies against an award such as an appeal on a question of law,11 whereas the only recourse against an award under the IAA is a challenge to the award on certain limited grounds, including those set out in the Model Law.

ii Arbitral institutions in Singapore

The SIAC is a renowned institution both globally and in Asia.12 In 2018, SIAC 'reaffirmed its position as a premier global arbitral institution with one of the world's largest administered caseloads'.13 The international appeal of SIAC continues to grow, with SIAC receiving 402 new cases in 2018 from parties in 65 jurisdictions.14 Of significance is that new procedures introduced by the SIAC in recent years, such as those regarding emergency arbitrators, expedited procedure arbitrations, the early dismissal of claims and defences, and those dealing with multiple contracts and parties such as consolidation and joinder, have been used by parties to SIAC arbitrations very regularly.15

The Singapore Chamber of Maritime Arbitration (SCMA) was originally established in November 2004 as a carve-out of the SIAC.16 In May 2009, due to industry feedback, it was reconstituted and started functioning independently. The aim and focus of the SCMA is to provide a framework for maritime arbitration which is responsive to the needs of the maritime community. The total number of case references received by the SCMA increased from 38 in 2017 to 56 in 2018, its highest caseload since its formation in 2009.17

The Singapore Institute of Arbitrators (SIArb) is an independent professional body established in 1981 that focuses on the training of arbitration practitioners and arbitrators and the promotion of arbitration in Singapore.18 Of significance is the release in 2018 of guidelines formulated by SIArb for party-representative ethics (an amalgam of overarching principles common to jurisdictions based on reviews) to aid in the creation of a consistent standard governing the conduct of counsel and representatives in international arbitration, which has become ever more important with the growing complexity and volume of international arbitration proceedings conducted worldwide.19


i Developments affecting international arbitration

In 2019, in response to a parliamentary question regarding whether the Ministry of Law would consider providing an avenue of appeal to the courts where there are errors of law in an award, the Singapore Minister for Law K Shanmugam disclosed that the Ministry of Law was reviewing the IAA, and that one of the amendments being considered is to allow parties to maintain an appeal to courts on questions of law arising out of an arbitration award.20 By way of background, the IAA as it stands now only allows for an arbitration award to be set aside on limited grounds relating to issues of jurisdiction, procedural irregularity, fraud, corruption or public policy.21 To stem the number of awards that could potentially be appealed and to prevent frivolous or vexatious appeals, this is likely to be an opt-in mechanism.22 This is a departure from most jurisdictions (although notably, the UK and Hong Kong do provide for such an avenue), which restrict as much as possible any right to appeal awards, the finality of arbitration being one of the main tenets of arbitration.23 Moving forward, the Ministry of Law will be conducting a public consultation on the proposed amendment.

On 24 April 2018, the International Court of Arbitration of the International Chamber of Commerce inaugurated its new case management office in Singapore, which will further contribute to Singapore's position as a leading dispute resolution hub.24 The establishment of the office in Singapore follows existing ICC case management teams in Hong Kong, New York and Sao Paulo, and is perhaps on account of the fact that Singapore has been the most selected seat in ICC arbitrations based in Asia.

On 9 January 2018, the Supreme Court of Judicature (Amendment) Bill was passed in Parliament, which extends the jurisdiction of the Singapore International Commercial Court (SICC) to hear proceedings relating to international commercial arbitration under the IAA. The amendments came into force on 1 November 2018. Previously, only the Singapore High Court had jurisdiction to hear matters relating to international commercial arbitration awards. The extension of jurisdiction of the SICC to hear international commercial arbitration cases would mean that parties would be able to benefit from both local and international judges who sit on the bench of SICC. Moreover, unlike the rules that govern the SICC, a pre-action certification is not required. However, only Singapore-qualified lawyers would be able to appear before the SICC in IAA-related matters.

It is also pertinent to mention in brief an amendment to the Civil Law Act on 1 March 2017,25 which abolished the torts of maintenance and champerty in Singapore and provides for legalising third-party funding agreements for international arbitration proceedings in Singapore. This step is expected to further increase the attractiveness of Singapore as a seat for international arbitration.

ii Arbitration developments in local courts

In this section, we deal with some recent Singapore case law on issues in international arbitration.

Circumstances in which a party to an arbitration agreement commencing court proceedings may be held to have lost its right to refer the same dispute to arbitration

In Marty Ltd v. Hualon Corp (Malaysia) Sdn Bhd,26 the respondent (receiver of the company) had commenced BVI court proceedings in July 2014 against the appellant, a company incorporated in the BVI that was wholly owned by two former directors of the respondent.

The underlying dispute concerned the respondent's shareholding in its subsidiary in Vietnam, which the respondent claimed that the former directors had wrongfully deprived the respondent of by breaching their fiduciary and statutory duties, and that the appellant had dishonestly assisted them and knowingly received shares in the Vietnam subsidiary to which it was not entitled. The appellant challenged the BVI court's jurisdiction on the ground of forum non conveniens, but this challenge was dismissed by the court. The respondent subsequently commenced arbitration at SIAC in March 2015, adopting the same position as it did in the BVI court. The receiver's explanation was that he had only discovered the arbitration clause in the revised charter of the Vietnam subsidiary at the end of February 2015. The appellant then applied to the BVI court for summary judgment or to strike out the BVI proceedings. Court and arbitration proceedings continued to run in parallel until the BVI proceedings were struck out in March 2016. In April 2016, the arbitral tribunal held that it had jurisdiction over the dispute. The appellant then challenged that decision in the Singapore High Court in May 2016 pursuant to Section 10(3) IAA. By way of background, under Section 10(3) IAA, an arbitral tribunal's ruling on an issue of jurisdiction may be appealed to the High Court within 30 days. Singapore is one of the few Model Law jurisdictions that permit appeals from both positive and negative rulings on issues of jurisdiction.

In the case, the appellant challenged jurisdiction on the grounds that the respondent could not rely on the arbitration clause in the revised charter while challenging the validity of the revised charter as a whole for lack of authority, and that the respondent had by its actions in a foreign court waived its right to submit its disputes to arbitration or had repudiated the arbitration agreement that the appellant had accepted, and accordingly, the dispute did not fall within the scope of the arbitration clause. The High Court dismissed the appellant's challenge.

On appeal, the Court of Appeal held that the tribunal had no jurisdiction to hear the dispute. The Court found that an arbitration agreement may be repudiated like any other contract, giving the innocent party the right to accept the breach and bring the agreement to an end. One way to determine if the breaching party had such a repudiatory intent is whether it has an explanation for commencing litigation other than its rejection of the arbitration agreement. If the breaching party can provide a satisfactory explanation then the court would be slow to infer repudiatory intent. The issue of whether an arbitration agreement has been repudiated is an objective inquiry. Thus, any explanation given by the breaching party for commencing litigation would only be relevant if it is manifested in the breaching party's conduct such that it would be apparent to a reasonable person in the position of the innocent party – it would not be able to justify what would otherwise have been repudiatory conduct using an explanation that only it knew about and the innocent party would not have been able to infer.

The Court of Appeal was of the opinion that commencement of court proceedings is itself a prima facie repudiation of the arbitration agreement, as parties who enter into a contract containing an arbitration clause would reasonably expect that there was a contractual obligation to resolve disputes arising from the contract by arbitration. If a party commences court proceedings without any explanation and the relief sought will resolve the dispute on the merits, the defending party can take the view that the party commencing litigation no longer intends to be bound by the arbitration clause. However, the Court did not need to decide on this basis solely, as it found that the respondent had repudiated the agreement when it challenged the validity of the revised charter, which contained the arbitration clause. With regards to acceptance of repudiation by the appellant, the court rejected the argument that acceptance of repudiation was when the appellant challenged the jurisdiction of the BVI court. This was because this was on the basis of forum non conveniens, which the Court held was too equivocal to constitute acceptance of repudiation. Rather, the Court was of the opinion that if the appellant had submitted, or undertaken to submit, to the jurisdiction of the courts of Malaysia and Vietnam (which the appellant contended was the more appropriate jurisdiction), this might have been an unequivocal acceptance of the repudiation. Nonetheless, the Court found that the appellant had accepted the repudiation by applying to the BVI court for summary judgment. Such an application clearly engaged the jurisdiction of the Court, as it requested the Court to determine the claim on the merits – this unequivocally indicated that it was willing to accept the invitation to litigate rather than arbitrate the merits of the claim.

Issues of fraud or corruption in the underlying contract not relevant for setting aside under Section 24(a) IAA

In Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services,27 the parties were Sri Lanka-incorporated companies that had entered into various agreements relating to maritime security-related projects.

Subsequently when a dispute arose, the claimant (AGMS) commenced arbitration. Although the respondent (RALL) asked for various extensions of time and copies of communications and documents, it did not participate in the arbitral proceedings. Subsequently, the tribunal issued a final award in favour of AGMS. RALL then commenced proceedings in the High Court to set aside the award. One of the grounds relied upon by RALL was that the master agreement on which the arbitration was based was procured by and was a means of furthering bribery and corruption in Sri Lanka, and an arbitral award enforcing the terms of such a contract would be in conflict with the public policy of Singapore and should be set aside under Article 34(2)(b)(ii) of the Model Law read with Section 24 IAA.

The Court held that these allegations do not fall within Section 24(a) IAA, which contemplates a situation where the award itself (rather than the contract between the parties) is tainted or induced by fraud or corruption. Thus, the setting aside application was dismissed.

Not challenging preliminary jurisdiction ruling precludes setting aside an award for lack of jurisdiction

Another pertinent point Rakna Arakshaka clarified was that where a tribunal decides an issue of jurisdiction as a preliminary issue, a party cannot choose between a Section 10(3) IAA challenge to a jurisdictional ruling and an application to set aside the final award for lack of jurisdiction under Article 34(3) Model Law stemming from the arbitral tribunal's preliminary ruling on jurisdiction.

This is because where the tribunal decides jurisdiction as a preliminary issue, parties are expected to bring a challenge within 30 days and utilise the early avenue for parties to promptly and finally resolve jurisdictional challenges. It would then defeat this purpose to allow a party to reserve jurisdictional challenges until an application is made to set aside the final award. Thus, if a party does not proceed with the Section 10(3) challenge, it would be found to have waived its right to set aside a subsequent award on this ground. However, even if a party had failed to bring a challenge within the 30 days as stipulated in Section 10(3) IAA and Article 16(3) Model Law, this does not affect the party's passive right to resist enforcement on the grounds of lack of jurisdiction. It only affects the party's active right to bring setting aside proceedings.

Do confidentiality protections concerning document production result in breach of natural justice?

China Machine New Energy Corp v. Jaguar Energy Guatemala28 is the first Singapore case to discuss confidentiality protections ordered for document production in the arbitration context, and if such protections result in a breach of natural justice such that the non-disclosing party would be unable to present its case fully.

In this case, the dispute between parties arose from a project for the engineering, procurement, equipment and construction of a coal-fired power generation plant located in Guatemala. The arbitral tribunal had made an 'attorneys' eyes-only' (AEO) order that was to apply to certain documents disclosed by one party which contained sensitive information, such as the identity of the party's contractors and the full addresses of witnesses. In this connection, a two-stage process had been ordered regarding the disclosure of these documents: they would first be exposed to external counsel of the non-disclosing party only, and secondly the non-disclosing party would be entitled to apply to the tribunal for its employees to be given access to AEO-designated material for the purposes of giving instructions to counsel.

The Singapore High Court declined to set aside the award, and held that there was no breach of natural justice due to the AEO order. This is because the tribunal had found that there was a possibility that disclosed documents could be used for ulterior and improper purposes that could interfere with the project or the arbitration. There was also distrust and acrimony between the parties, and thus it could not be said that the tribunal had no basis for imposing the AEO regime. The second stage of the AEO regime also safeguarded the non-disclosing party's interest, as access could be granted to specific employees upon application for the purposes of taking instructions; however, the non-disclosing party never made such an application. The Court also held that the tribunal was entitled to impose an AEO order under the ICC Rules 1998 and under its case management powers. Although the non-disclosing party complained that it did not have sufficient time to review the documents, the arbitration clause in the contract required for the arbitration to be conducted expeditiously. Hence, the Court held that due process had to be followed within the strictures that the parties had placed on the tribunal, and there was no breach of natural justice.

Do proceedings in an enforcement court create an issue estoppel or res judicata in setting aside proceedings commenced in a seat court?

In BAZ v. BBA,29 the plaintiff sought to enforce a Singapore-seated ICC award in Singapore, and the defendants sought to set the award aside. The arbitration arose out of a transaction in which the plaintiff bought shares in a company owned by the defendant. The plaintiff commenced arbitration proceedings against the defendant for fraudulent misrepresentation, on the grounds that the defendant had concealed information on scandals and regulatory breaches, which had reduced the true value of the shares. The plaintiff was successful in the arbitration and obtained an award in its favour. The plaintiff then commenced enforcement proceedings in India, which largely succeeded, except against certain defendants who were minor children at the time, on the ground of public policy. In the Singapore proceedings, the defendant raised arguments that were similar to the ones that they raised in the Indian proceedings, and the plaintiff asserted that the defendants were barred from raising the same arguments in the Singapore proceedings that had already been rejected in enforcement proceedings in India on the basis of issue estoppel and res judicata.

The court was of the view that Article V(1)(e), Article VI of the New York Convention and Section 31(5) of the IAA evidenced that primacy was to be given to the seat court.30 In contrast, there is no similar provision directing a seat court to consider a judgment from a foreign enforcement court. Although finality in litigation was to be encouraged, this consideration was more applicable in enforcement proceedings given that they could take place in multiple jurisdictions and the same challenges to enforcement could be re-litigated in each jurisdiction. In contrast, such a consideration would not feature as strongly in the case of a seat court, as it is the only court that has the power to set aside an award. It was also pointed out that an issue estoppel does not apply to questions of arbitrability and public policy in a setting aside application because these grounds were unique to each state. In any event, setting aside was a de novo review by the seat court and thus could not give rise to issue estoppel.

That being said, the court found that the decision of the Indian enforcement court could have persuasive effect, especially because the proper law of the arbitration agreement was Indian law. Further, res judicata is also wholly inapplicable to a court's review of an arbitral award or setting aside proceedings as this principle only prevents arguments on substantive merits of a matter from being litigated more than once. In this regard, a setting aside court is already prevented from reviewing the merits of an award by the principle of minimal curial intervention.

Can a stay application be taken out against the enforcement of an award pending the outcome of a setting aside application?

Man Diesel & Turbo SE v. IM Skaugen Marine Services31 is the first reported instance in which a Singapore court decided on an adjournment application pending the outcome of a setting aside application in the seat court.

Here, arbitration proceedings had been commenced in Denmark and the plaintiff has obtained an award in its favour. The plaintiff applied to the Singapore High Court to enforce the award in Singapore pursuant to Section 29 IAA and Order 69A of the Rules of Court, and leave to enforce the award was given. The defendant filed an application in the Danish courts to set aside the award on the following grounds:

  1. that it was denied the opportunity to present its case fully as its disclosure and expert evidence applications were denied;
  2. that the tribunal had violated its mandate for similar reasons; and
  3. that the award was contrary to public policy due to various arguments based on fraud.

At the same time, the defendant took out an application before the Singapore High Court under Section 31(5) IAA to stay the enforcement of the award pending the determination of the challenge in the Danish courts.

The Singapore High Court dismissed the defendant's application to adjourn the enforcement proceedings. The Court held that an adjournment application under Section 31(5) of the IAA gave wide discretion to the Court. As to the factors that the Court would consider to exercise its discretion, the Court held that it was empowered to consider the merits of the setting aside application in the foreign jurisdiction. In assessing the grounds on which the defendant had sought setting aside in Denmark, the Singapore Court was of the opinion that the defendant's setting aside application in Denmark lacked merit as the tribunal had already dealt extensively in its decision to reject the defendant's disclosure and expert evidence applications, and had failed to demonstrate that the tribunal acted outside the bounds of its discretion. The Court was also not convinced by the defendant's other arguments based on fraud. The Court further held that it could consider the consequences of adjournment, and whether it would unduly deprive the award creditor of the fruits of an award (e.g., length of delay). The setting aside proceedings in Denmark could take several years, and this risked unfairly prejudicing the plaintiff; the defendant faced no risk of prejudice since the setting aside application lacked merit, anyway. There was also a risk of dissipation of assets from Singapore and hence, if the adjournment was granted, enforcement would be more difficult for the plaintiff. Further, genuineness was doubted: the defendant had only filed its setting aside application after the plaintiff tried to enforce the award in Singapore. Moreover, before applying to set aside the award, the defendant had started a new arbitration on another point on the basis that the original award was valid. After considering the above factors, the Court exercised its discretion, and the application for an adjournment was denied. This is one of very few cases decided globally on the effect of a setting aside application on enforcement proceedings in a foreign jurisdiction, and the factors that an enforcing court would take into consideration when asked to hold its hands pending a decision on the challenge to an award at the seat of the arbitration.

Would procedural irregularity enable a party to resist an application for the enforcement of an arbitral award?

In Sanum Investments Limited v. ST Group Co,32 Sanum, ST Group, Sithat, ST Vegas Co and ST Vegas Enterprise entered into a master agreement for the formation of three joint ventures, one of which concerned the operation of slot clubs. Separately, Sanum and ST Vegas Enterprise entered into the participation agreement to execute the joint venture for the slot clubs. There was a third slot club, Thanaleng Slot Club, which was not part of the slot club joint venture. Nonetheless, the master agreement envisaged that Sanum would take over the Slot Club in the future. Three agreements were entered into in relation to this club. It later transpired that ST Vegas Co did not turn over the club to Sanum. After being unsuccessful in seeking relief through the Lao Organisation of Economic Dispute Resolution (OEDR) and the Lao court system, Sanum eventually commenced arbitration proceedings at SIAC seeking damages for breaches of the master agreement and the participation agreement. The defendants objected to the SIAC arbitration on the basis that arbitration was to be commenced in Macao according to the dispute resolution clause in the master agreement and not at SIAC, and accordingly did not participate in the proceedings. An award was subsequently rendered in favour of the plaintiff, the plaintiff obtained leave to enforce the award from the Singapore court and judgment was entered. The defendants then brought an application for the refusal of enforcement of the award pursuant to Article 36(1) Model Law and argued that, among other things, the composition of the tribunal and the seat of the arbitration were not in accordance with the agreement of the parties.

It is pertinent to note that the dispute resolution clause in the master agreement had a provision that stated that where one of the parties was unsatisfied with the results of the OEDR and Lao People's Democratic Republic courts, arbitration should be commenced at an internationally recognised arbitration company in Macao. Under the participation agreement, there was a similar provision, but prescribing arbitration at SIAC. The tribunal had proceeded on the basis that the underlying dispute arose out of the master agreement and the participation agreement, and thus the tribunal was rightfully constituted under the SIAC Rules. The court found that, on the contrary, the underlying dispute had arisen out of the master agreement alone, and thus the agreement to arbitrate was found at clause 2(10) of the agreement. Therefore, the tribunal had made an error in determining the seat instead of adhering to the choice of seat of arbitration expressly provided under clause 2(10) of the master agreement regarding Macao. However, this irregularity was not a ground for refusal of enforcement under Article 36(1)(a)(iv) of the Model Law because there is a need to show material prejudice. Here, the applicant did not show what prejudice arose out of the procedural irregularities in the award (e.g., evidence of how adopting a wrong seat would have affected the arbitration procedure) and did not demonstrate the seriousness of the error by the tribunal. Further, it was noted that in an enforcement application, a wrong choice of seat is less relevant than it would be in a setting aside application because an enforcement application can be brought in any court, but setting aside can only be brought in the court of the seat.

iii Investor–state disputes

Swissbourgh Diamond Mines (Pty) Ltd v. Kingdom of Lesotho33 concerned an appeal from the 2017 Singapore High Court decision wherein the Singapore Court of Appeal affirmed the decision to set aside the award. This was the first case in which the Singapore courts set aside an award made in an investor–state arbitration.

The case concerned investors (appellants) who alleged that their investments (mining leases) in Lesotho had been unlawfully expropriated due to Lesotho (respondent) implementing various measures that allegedly hindered the appellants from exercising their mining rights under the mining leases, resulting in losses of profit (the expropriation dispute). The appellants then sought relief from the South African Development Community (SADC) tribunal. However, the SADC tribunal was shut down before the expropriation dispute was resolved. The respondent was among the parties that had approved the resolutions that led to the dissolution of the SADC tribunal. There was also no alternative forum provided to hear and determine any of the pending claims before the SADC tribunal.

The appellants then brought a claim before an investment treaty tribunal administered by the Permanent Court of Arbitration (PCA) on the basis that Lesotho had breached its obligations under the SADC Treaty and Annex 1 of the SADC Protocol on Finance and Investment by participating in the shutting down of the SADC tribunal (the shuttering dispute). The PCA tribunal, which chose Singapore as the seat of arbitration, found in favour of the appellants and issued an award directing, among other things, that the parties constitute a new tribunal to hear the expropriation claim.

The respondent filed an application to set aside the award, which the Singapore High Court allowed by using its powers under Article 34(2)(a)(iii) of the Model Law on the ground that the PCA tribunal lacked jurisdiction. The appellants maintained that the relevant dispute that was before the PCA tribunal was not the expropriation dispute but the shuttering dispute.

The central issue before the Singapore Court was the interpretation of Article 28 of Annex 1 to the Investment Protocol, which stated the following:

Disputes between an investor and a State Party concerning an obligation of the latter in relation to an admitted investment of the former, which have not been amicably settled, and after exhausting local remedies shall, after a period of six (6) months from written notification of a claim, be submitted to international arbitration if either party to the dispute so wishes.

The relevant investment in this case was the mining leases. However, the claim in the PCA arbitration was brought with respect to the shuttering dispute. The Singapore Court thus found that this would not fall within the definition of investment pursuant to Article 28 of Annex 1 to the Investment Protocol.

That being said, the Court accepted that an investment could encompass a bundle of rights, comprising not just the primary right to exploit an investment but also a secondary right to seek remedies and vindicate the primary right. However, there had to be a territorial link with the host state in line with the broader context surrounding the definition of investment (i.e., each host was to promote investments in its territory). In this case, the shuttering dispute (i.e., the right to refer a dispute to the SADC tribunal) did not have sufficient territorial nexus given that the SADC tribunal could have been dissolved by a majority of the SADC Member States, and Lesotho acting alone would not have been able to prevent this. The SADC claim also only existed as a matter of international rather than domestic law, and fell outside Lesotho's enforcement jurisdiction. Therefore, the PCA tribunal lacked jurisdiction to hear and determine the appellants' claim. As a result, the PCA found that it did have jurisdiction to set aside the award under Article 34(2)(a)(iii) of the Model Law, pursuant to which an award may be set aside if it deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.


Singapore is expected to maintain its position as a key dispute resolution hub and to solidify its position as an arbitral seat, with the SIAC continuing to burgeon and having the support of other institutions such as the SCMA and SIArb.

Equally, the legislative and judicial landscape in respect of international arbitration is constantly evolving in line with the commercial expectations of parties, which appears to bode well for the attractiveness of Singapore as an arbitration destination.


1 Margaret Joan Ling and Vivekananda N are partners at Allen & Gledhill LLP. The authors wish to thank Dhivya Rajendra Naidu, LLB Law (Hons), University of Sheffield, for her considerable assistance in the preparation of this chapter.

2 Report of 2018 Queen Mary University of London and White & Case International Arbitration Survey, p. 9.

4 Ibid.

5 Singapore Law Watch, 'Asian lawyers prefer Singapore as venue for dispute resolution: poll', 18 April 2019: https://www.singaporelawwatch.sg/Results/asian-lawyers-prefer-spore-as-venue-for-dispute-resolution-poll.

6 Cap 10 (2002 Rev Ed).

7 Cap 143A (2002 Rev Ed).

8 Section 3 AA.

9 Section 5(1) IAA.

10 LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2013] 1 SLR 125 (CA) at [33]-[34].

11 Section 49, AA.

12 Refer to footnote 2.

13 Ibid.

15 Ibid, p. 14.

17 SCMA 2018 Year in Review, p. 3: https://www.scma.org.sg/scma/126/2969/4175/About-Us.

18 SIArb – About Us: https://www.siarb.org.sg/about-us.

19 SIArb – Party Representative Ethics: https://www.siarb.org.sg/resources/party-representative-ethics.

20 Global Arbitration Review, 'Singapore considers allowing appeals on questions of law', 15 April 2019: https://globalarbitrationreview.com/article/1190225/singapore-considers-allowing-appeals-on-questions-of-law.

21 Section 24 IAA.

22 Refer to footnote 17.

23 Global Arbitration Review, 'Challenging awards on a point of law: is Singapore moving against the trend', 18 April 2019: https://globalarbitrationreview.com/article/1190322/challenging-awards-on-a-point-of-law-is-singapore-moving-against-the-trend.

24 International Chamber of Commerce, 'ICC Court case management team begins operations in Singapore', 23 April 2018: https://iccwbo.org/media-wall/news-speeches/icc-court-case-management-team-begins-operations-singapore/.

25 Section 2 of the Civil Law (Amendment) Act 2017.

26 Marty Ltd v. Hualon Corp (Malaysia) Sdn Bhd [2018] SGCA 63.

27 Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services [2018] SGHC 78.

28 China Machine New Energy Corp v. Jaguar Energy Guatemala [2018] SGHC 101.

29 BAZ v. BBA [2018] SGHC 275.

30 Under Article V(1)(e) of the New York Convention, recognition and enforcement of an award may be refused where it has been set aside or suspended by a competent authority of the country in which the award was made. Under Article VI of the New York Convention, if the application for setting aside or suspension of an award has been made to the competent authority referred to in Article V(1)(e), the authority before which the award is sought to be relied upon may adjourn the decision on the enforcement of the award. Similarly, Section 31(5) IAA states that where there are proceedings for the enforcement of a foreign award and the court is satisfied that an application for setting aside has been made to a competent authority of the country where the award was made, the court may adjourn the enforcement proceedings.

31 Man Diesel & Turbo SE v. IM Skaugen Marine Services [2018] SGHC 132.

32 Sanum Investments Limited v. ST Group Co [2018] SGHC 141.

33 Swissbourgh Diamond Mines (Pty) Ltd v. Kingdom of Lesotho [2019] 1 SLR 263.