Singapore

Guide to Arbitration Rules and Procedures in Singapore

Our Country Chapters set out key aspects of the arbitration framework of each jurisdiction highlighted in our website, covering basics like judicial hierarchy and domestic arbitral institutions to substantive issues such as conflicts of laws and the extent of adoption of the UNCITRAL Model Law.

1. Legal System and Framework

Singapore’s legal system is based on the English common law system. Singapore has a mix of (a) judge-made law, which arises from precedents set by court judgments; (b) statutory law, which arises from legislations enacted by parliament; and (c) subsidiary legislation, which is made by ministers, government agencies and statutory boards. The Ministry of Law (“MinLaw“) oversees the policy for development, promotion, and regulation of Singapore’s legal system.

The Judiciary in Singapore comprises the Supreme Court and the State Courts.

The Supreme Court consists of the High Court and the Court of Appeal.

  • The High Court consists of the General Division of the High Court (“General Division“) and the Appellate Division of the High Court (“Appellate Division“), together with the Family Division and the Singapore International Commercial Court (“SICC“).
    • The General Division exercises original and appellate jurisdiction in civil and criminal cases. It also exercises revisionary jurisdiction over the State Courts in criminal cases.
    • The Appellate Division hears all civil appeals that are not allocated to the Court of Appeal under the Sixth Schedule of the Supreme Court of Judicature Act (“Sixth Schedule“) and any civil appeal that is provided by any written law to lie to the Appellate Division. The Appellate Division has no criminal jurisdiction.
    • The Family Division hears first instance cases involving important questions of law or if it appears to the High Court or Family Courts that a case should be tried in the High Court.
    • The Singapore International Commercial Court (“SICC“) is a division of the High Court and part of the Supreme Court of Singapore. It is designed to deal with transnational commercial disputes, and generally has the jurisdiction to hear and try an action if: (a) the claim in the action is of an international and commercial nature; (b) the parties to the action have submitted to SICC’s jurisdiction pursuant to a written jurisdiction agreement; and (c) the parties to the action do not seek any relief in the form of a prerogative order.
    • The Court of Appeal hears all criminal appeals against decisions made by the General Division in the exercise of its original criminal jurisdiction, as well as prescribed categories of civil appeals (set out in the Sixth Schedule) and appeals to be made to the Court of Appeal under written law.

For international arbitration, an application made under the International Arbitration Act (“IAA”) may be heard by the High Court or, if the conditions are met, the SICC. If the arbitral tribunal rules on the issue of its jurisdiction as a preliminary question, or at any stage of the arbitral proceedings rules that it has no jurisdiction, a party may apply to the High Court to decide the matter. An appeal to the Court of Appeal on this issue is permitted with leave of the High Court; the decision of the High Court refusing to grant leave to appeal to the Court of Appeal is not appealable.

If a party seeks to set aside or enforce an arbitral award, it does not require leave to make an application to the Court. An appeal against the High Court’s decision arising from these applications does not require leave to appeal to the Court of Appeal.

Under the IAA, a party may not appeal against an award.

The International Arbitration Act (Cap. 143A, Rev Ed 2002) (“IAA“) is the main source of law in Singapore for international arbitration.

Under section 3 of the IAA, the UNCITRAL Model Law, with the exception of Chapter VIII (Recognition and Enforcement of Awards), has the force of law in Singapore.

Under Singapore law, a distinction is drawn between international and domestic arbitration.

International arbitration is defined under section 5(2) of the IAA as an arbitration where:

  • at least one of the parties to an arbitration agreement, at the time of the conclusion of the agreement, has its place of business in any State other than Singapore; or
  • one of the following places is situated outside the State in which the parties have their places of business:
    • the place of arbitration if determined in, or pursuant to, the arbitration agreement,
    • any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
  • the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

Domestic arbitration is governed by the Arbitration Act (Chapter 10) 2002 and applies to any arbitration where Part II of the IAA does not apply.

The courts in Singapore are empowered to support and assist arbitral proceedings. They have adopted a pro-arbitration policy and are inclined towards minimal curial intervention. Under the IAA, a party to an arbitration agreement may take out a subpoena to testify or a subpoena to produce documents. In addition, and only if or to the extent that the arbitral tribunal or institution has no power or is unable for the time being to act effectively (section 12A(7), IAA), the courts can assist by: (a) granting a freezing order; (b) granting an interim injunction or any other interim measure; (c) securing the amount in dispute; and (d) preserving and ordering the interim custody of any evidence (section 12A, 1AA).

The courts are likely to take a dim view of any party that makes frequent and unmeritorious court applications for the purpose of delaying proceedings or frustrating an agreement to arbitrate. In Prometheus Marine Pte Ltd v King Ann Rita [2017] SGCA 61, the Court of Appeal ordered personal costs against counsel for forwarding and maintaining various untenable positions on his client’s behalf in the context of an application to set aside an arbitral award.

The courts do not intervene to frustrate arbitration and will only intervene to grant interim relief to the extent that the arbitral tribunal is unable to grant relief.

2. Arbitral Institutions

The Singapore International Arbitration Centre (“SIAC“) is the most significant and popular arbitral institution in Singapore. SIAC has an experienced international panel of over 400 expert arbitrators from over 40 jurisdictions, a multinational Secretariat of experienced lawyers, and the SIAC Rules which provide a state-of-the-art procedural framework for the efficient and enforceable resolution of international disputes.

Apart from SIAC, there is also the Singapore Chamber of Maritime Arbitration. Additionally, the International Chamber of Commerce (“ICC“), the Permanent Court of Arbitration (“PCA“), and the International Centre for Dispute Resolution (“IDCR“) have also opened offices in Singapore.

3. Confidentiality

Singapore common law recognises an implied duty of confidentiality in an arbitration. This duty of confidentiality is binding on the parties and the arbitrators. Additionally, the most recent changes to the International Arbitration Act (passed on 5 October 2020) explicitly recognise the powers of the arbitral tribunal and High Court to enforce confidentiality obligations between parties arising from three sources: (a) a written agreement between the parties, whether in the arbitration agreement or any other document; (b) any written law or rule of law including at common law; or (c) under the rules of arbitration (including institutional rules) agreed to or adopted by the parties.

If there are court proceedings which arise out of the arbitral proceedings (for e.g., setting aside or enforcement applications), a party can apply to seal the court documents in the matter and have the parties’ names redacted from any published judgment. However, this general rule of confidentiality has exceptions. In AZT and others v AZV [2012] 3 SLR 794, the Court held that in deciding whether to seal court documents, the principle of open justice had to be weighed against the need to preserve confidentiality in arbitration. In AAY and others v AAZ [2011] 2 SLR 528, the court held that where a judgment is of “major public interest”, the judgment should be published with the appropriate redactions made.

4. The Law of the Arbitration and Conflicts of Law

The basic approach of the UNCITRAL Model Law, and therefore the position adopted in Singapore, is that the law applicable to each arbitration will be the law of the place where that arbitration takes place, and the selection of a particular place (seat) of arbitration will ordinarily result in the arbitration being conducted in accordance with that jurisdiction’s legal framework (PT Garuda Indonesia v Birgen Air [2002] 1 SLR(R) 401).

There are three stages in determining the law applicable to the substance of the parties’ dispute. The first stage is to examine the contract itself to determine whether it states expressly what the governing law should be. In the absence of an express provision one moves to the second stage, which is to see whether the intention of the parties as to the governing law can be inferred from the circumstances. If this cannot be done, the third stage is to determine with which system of law the contract has its most close and real connection. That system would be taken, objectively, as the governing or proper law of the contract (Overseas Union Insurance Ltd v Turegum Insurance Co [2001] SGHC 147).

The laws permit an arbitral tribunal seated in Singapore to recognise that the law of another jurisdiction may be agreed by the parties to be the substantive law governing the parties’ obligations with respect to the subject matter of the dispute.

There are generally no mandatory rules of substantive law which would apply to the parties’ rights and obligations solely due to the arbitration being seated in Singapore.

Singapore law applies the “double actionability rule” (Rickshaw Investments Ltd v Nicolai Baron v Uexkull [2007] 1 SLR(R) 377) for a tort to be actionable in Singapore. This rule requires the tort to be actionable both under the law of the jurisdiction in which the tort was committed and under the substantive law of the lex fori. While there exists a flexibility exception – under which either requirement may be disapplied if injustice or unfairness would otherwise result – it should be stressed that this exception is not easily invoked.

To ascertain where the tort took place, the “substance test” is applied. This “looks at the events constituting the tort and asks where, in substance, the cause of action arose” (JIO Minerals FZC and others v Mineral Enterprises Ltd [2011] 1 SLR 391). 

Following the decision in BCY v BCZ [2017] 3 SLR 357, the courts will draw a distinction between (a) the proper law (i.e. the law governing the arbitration agreement), which regulates the substantive rights and duties of the parties to the contract from which the dispute has arisen, and (b) the procedural law (i.e. the law applicable to the arbitration), which governs the relationship between the parties and the arbitrator in the conduct of the arbitration.

The Singapore Foreign Limitation Periods Act 2012 provides that questions of limitation are substantive (as opposed to procedural) issues and therefore determined by reference to the law of the contract, not the law of the seat. Therefore, in a Singapore-seated arbitration concerning a dispute to be determined by a foreign law, any question arising as to limitation periods will be determined by application of the foreign law.

Where the substantive law governing the dispute is Singapore law, an action founded on contract or tort must be brought within six years from the date on which the cause of action accrued (section 6, Limitation Act).

Where the substantive law governing the dispute is not Singapore law, the limitation period stipulated by the applicable foreign law will apply (section 3, Foreign Limitation Periods Act 2012).

5. Arbitration Agreements

The only formal requirement is that the arbitration agreement must be in writing. An arbitration agreement is deemed to be in writing if its content is recorded in any form (section 2A, IAA).

The main substantive requirement is that the parties had a clear intention to arbitrate their dispute. While the Courts will generally strive to give effect to the parties’ intentions to arbitrate, it will not do so at all costs (BNA v BNB and Anor [2019] SGCA 84).

Electronic arbitration agreements are recognised if the information contained therein is accessible so as to be useable for subsequent reference (section 2A(5) of the IAA).

Whether an arbitration agreement has been incorporated by reference turns on ascertaining the parties’ objective intentions gleaned from their correspondence and conduct in light of the relevant background as disclosed by the evidence. The relevant background includes the industry in which the parties are in, the character of the document which contains the terms in question as well as the course of dealings between the parties (R1 International Pte Ltd v Lonstroff AG [2015] 1 SLR 521).

Any dispute that 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 (section 11(1), IAA).

There is a presumption in English case law that arbitration agreements should be construed generously. This has been incorporated into Singapore law in Larsen Oil and Gas Pte Ltd v Petroprod Ltd [2011] 3 SLR 414 (“Larsen“). In practical terms, this means that all disputes between parties to an arbitration agreement are assumed to fall within the scope of that agreement, unless shown otherwise. However, where there are compelling reasons, commercial or otherwise, that may displace any assumed intention of the parties that claims of a particular kind are to fall within the scope of an arbitration clause, the court should be slow to conduct the exercise of contractual construction from that starting point.

Singapore law recognises the separability of arbitration agreements. An arbitration clause that forms part of a contract is treated as an agreement independent of the other terms of the contract. Therefore, a decision by the arbitral tribunal that a contract is null, and void does not in and of itself mean that the arbitration clause contained therein is invalid (Article 16, UNCITRAL Model Law).

Please contact the editorial team of Arbitration Asia at arbitrationasia@rajahtannasia.com.