{"id":283030,"date":"2024-11-04T19:09:16","date_gmt":"2024-11-04T18:09:16","guid":{"rendered":"https:\/\/dailyjus.com\/?p=283030"},"modified":"2024-12-19T15:50:01","modified_gmt":"2024-12-19T14:50:01","slug":"2023-arbitration-year-in-review-singapore","status":"publish","type":"post","link":"https:\/\/dailyjus.com\/index.php\/2024\/11\/04\/2023-arbitration-year-in-review-singapore\/","title":{"rendered":"2023 Arbitration Year In Review – Singapore"},"content":{"rendered":"\n
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This article was featured in Jus Mundi<\/a>‘s 2023 Arbitration Year in Review<\/strong>, in collaboration with VYAPs, a yearly collection of articles from jurisdictions all around the globe updating you on arbitration-related developments from the previous year.<\/p>\n\n\n\n

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Download now<\/a><\/div>\n<\/div>\n<\/blockquote>\n\n\n\n
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THE AUTHOR:<\/strong>
Sunita P. Advani<\/a>, <\/strong>Arbitral Assistant to Mr. Michael Lee<\/a> of Twenty Essex<\/a><\/strong><\/p>\n\n\n\n

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This article highlights the key developments in international arbitration in Singapore in 2023, and in particular analyses four recent arbitration-related decisions from the Singapore courts.<\/p>\n\n\n\n

Determining the Arbitrability of a Dispute<\/span><\/strong><\/h2>\n\n\n\n

In Anupam Mittal v Westbridge Ventures II Investment Holdings, the Singapore<\/a> Court of Appeal (\u201cCA<\/strong>\u201d) adopted a \u201ccomposite\u201d approach to determining the arbitrability of a dispute at the pre-award stage.<\/p>\n\n\n\n

A dispute arose out of a shareholders\u2019 agreement (the \u201cSHA<\/strong>\u201d) between the appellant\u2019s company (the \u201cCompany<\/strong>\u201d) and its investor, the respondent. As a result, the respondent commenced proceedings in the National Company Law Tribunal in Mumbai, India<\/a>, for corporate oppression (the \u201cNCLT<\/strong> Proceedings<\/strong>\u201d). The SHA was governed by Indian law and contained an arbitration clause stipulating a Singapore-seated arbitration under the ICC Arbitration Rules. The parties had not explicitly specified the governing law for the arbitration clause.<\/p>\n\n\n\n

Justice Judith Prakash, delivering the judgment of the CA, dismissed the appeal and thereby upheld the permanent anti-suit injunction against the appellant granted by the Singapore High Court (the \u201cHC<\/strong>\u201d). In particular, she held that the arbitrability of a dispute is, in the first instance, determined by the law governing the arbitration agreement. She further elucidated that if the governing law is foreign and provides that the subject matter of the dispute cannot be arbitrated, the Singapore<\/a> court will not allow the arbitration to proceed because it would be contrary to public policy, albeit foreign public policy, to enforce such an arbitration agreement. She noted that it is common ground that claims of corporate oppression can be arbitrated under Singapore law but not under Indian law, under which they can only be resolved by the NCLT. She added that because of the operation of s 11 of Singapore\u2019s International Arbitration Act (\u201cIAA<\/strong>\u201d) (which states that \u201c[a]ny dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so\u201d), where a dispute may be arbitrable under the law of the arbitration agreement but Singapore law as the law of the seat considers that dispute to be non-arbitrable, the arbitration would not be able to proceed.<\/p>\n\n\n\n

While the SHA was governed by Indian law, the CA found that Singapore Sunita P. Advani Arbitral Assistant to Mr. Michael Lee of Twenty Essex law was the proper law of the arbitration agreement, besides being the law of the seat. The CA found that virtually all the complaints made by the appellant in the NCLT Proceedings were related to the management of the Company or the SHA in some way and were thus encompassed by the arbitration agreement. It further elaborated that the fact that all these allegations might eventually support a finding of oppression cannot take them out of the categories of disputes that the SHA specifically stipulated should be submitted to arbitration. The CA, therefore, found that in commencing the NCLT Proceedings, the appellant had breached the arbitration agreement and that there was no ground to discharge the anti-suit injunction, thereby dismissing the appeal.<\/p>\n\n\n\n

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Availability of Sealing Orders in Arbitration-Related Court Proceedings<\/strong><\/span><\/h2>\n\n\n\n

In the Republic of India v Deutsche Telekom AG<\/a>, the CA was faced with determining whether to grant a sealing order for enforcement proceedings by Deutsche Telekom (\u201cDT<\/strong>\u201d) against the Republic of India<\/a> relating to a US$132 million arbitral award.<\/span><\/p>\n\n\n\n

Sundaresh Menon CJ stated that the purpose of a sealing order under ss 22 and 23 of the IAA is to protect the confidentiality of the arbitration and that imposing a cloak of privacy on court proceedings is an exceptional measure that departs from the general rule that such proceedings are subject to the principle of open justice. He then held that where the confidentiality of the arbitration has been lost, the principle of open justice would weigh strongly in favour of lifting the cloak of privacy.<\/p>\n\n\n\n

Menon CJ concluded that, in this case, confidentiality had been lost, and there was no basis for maintaining the confidentiality of the enforcement proceedings. In particular, he noted that, among others, the Interim and Final Awards issued in the Arbitration were accessible on third-party websites.<\/p>\n\n\n\n

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Confidentiality of Arbitral Deliberations<\/strong><\/h2>\n\n\n\n

In <\/span>CVG v CVH [2022] SGHC 249<\/span><\/a>, the Singapore High Court held that that an interim award made by an emergency arbitrator in a foreign seated arbitration was, in principle, enforceable in Singapore. In this case, the emergency interim award of the emergency arbitrator was made in Pennsylvania, <\/span>United States<\/span><\/a>, in <\/span>International Centre for Dispute Resolution<\/span><\/a> (\u201c<\/span>ICDR<\/span><\/b>\u201d) arbitration proceedings. The defendant had been the claimant\u2019s franchisee in Singapore, Malaysia, Taiwan, and the Philippines. The dispute arose out of the termination of various agreements which governed the Singapore franchise business. <\/span><\/p>\n\n\n\n

The SICC noted the established public policy reasons for this implied obligation, in particular:<\/p>\n\n\n\n