Legal News & Analysis – Asia Pacific – Singapore – Dispute Resolution

The prevailing wisdom in many arbitration-friendly jurisdictions, including Singapore, is that courts should intervene in the arbitral process only in limited circumstances. This policy of limited ‘minimal curial intervention’, as it is often referred to, has been re-affirmed in two recent decisions in Singapore.¹

However, an exception exists in the context of questions of jurisdiction. In a recent case, the Singapore Court of Appeal has held that a tribunal’s preliminary ruling on its own jurisdiction is subject to a de novo review by the courts, either by way of review of the preliminary ruling or at a later stage when a party seeks to have the ruling recognised and enforced by a court.²

The policy of minimal curial intervention has been rationalised on two broad bases. First, it respects the parties’ decision to opt out of a national litigation process, including rights of appeal. Second, it recognises the autonomy of the arbitral process by encouraging finality.³ It has taken a long time for courts to develop this respect for arbitration. For hundreds of years, there was considerable doubt as to whether a party could even contract out of its right to have its day in court and instead resolve a dispute before a private third party. The English courts reconciled themselves to this possibility in the 17th century but retained the power to review the substantive decisions made by arbitrators until relatively modern times. Even now, certain narrow rights of appeal lie to the English High Court from arbitration awards made there.

In Singapore, the circumstances for court intervention in international arbitrations are more narrowly circumscribed. The 1985 UNCITRAL Model Law on International Commercial Arbitration (Model Law) has force of law. One of the cornerstones of that law is that no appeal lies from a tribunal’s final decision on the merits of a dispute. The courts may only set aside an award if it finds that there have been procedural irregularities in the conduct of the arbitration.⁴ Similarly, the courts will only refuse to recognise and enforce a foreign arbitration award in similarly limited circumstances, as prescribed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The Singapore courts have embraced the concept of minimal curial intervention. They have held that they will not interfere with an award merely because it might have resolved the controversies at stake differently. Errors of law will not be corrected. An award will be read generously and attempts by parties “microscopically” to comb for some
basis to find fault in the arbitral process will not be entertained. In fact, the courts have shown extreme reluctance to interfere with the process.⁵ This represents a sea change from the position 15 years ago when the courts were empowered to intervene in cases where an arbitrator had made a manifest error of law or a special question of law was at issue.⁶

For now then, the principles underpinning the Model Law continue to hold sway. In matters of fact and law, the courts have clearly affirmed their policy of minimum curial intervention. However, arguments as to the tribunal’s jurisdiction will be subject to closer scrutiny of the court, either on a review of a tribunal’s ruling as to jurisdiction or when a party later seeks to recognise and enforce such a ruling.⁷

End Notes:

1 TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] SGHC 186; BLB and another v BLC and others, [2013] SGHC 196.
2 First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others [2013] SGCA 57.
3 Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86.
4 Model Law, Article 34.
5 Soh Beng Tee, at para. 65.
6 Arctic Builders & Co (Pte) Ltd v Tan Tong Meng Co (Pte) Ltd [1983-1984] SLR(R) 447; [1984] SGCA 12.
7 First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others [2013] SGCA 57.

Related:

Party Autonomy: Whither The Pendlum II

For further information, please contact:

Tan Chuan Thye, Director, Stamford Law
[email protected]

Timothy Cooke, Stamford Law
[email protected]