SINGAPORE Law and Practice Contributed by: Chou Sean Yu, Wendy Lin, Monica Chong Wan Yee and Frank Oh Sheng Loong, WongPartnership LLP
3.3 National Courts’ Approach The Singapore courts will apply a three-stage test to determine the law governing the arbitration agreement (see Anupam Mittal at [62]): • stage 1 – whether parties expressly chose the proper law of the arbitration agreement; • stage 2 – in the absence of an express choice, whether parties made an implied choice of the proper law to govern the arbitration agreement, with the starting point for determining the implied choice of law being the law of the contract; and • stage 3 – if neither an express nor implied choice can be discerned, the system of law with which the arbitration agreement has its closest and most real connection will be applied. The courts have indicated that, given the inherently private and consensual nature of arbitration, the courts will ordinarily respect the principle of party autonomy and give effect to and enforce (workable) arbitration agreements, subject only to any public policy con - siderations to the contrary (see Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936 at [34]). 3.4 Validity The separability doctrine has the force of law in Sin - gapore – ie, that an arbitration clause forming part of a contract is to be treated as an agreement independent of the other terms of the contract, and a decision by the tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause (Article 16 ML, Section 23 (2) and (3) AA). However, the courts have also commented that the principle of separability cannot guarantee the surviv - al of the arbitration clause in all circumstances, and, where a challenge to the validity of the underlying con - tract is raised, it is crucial to determine whether this is an attack on the arbitration agreement. For example, if the allegation is that the entire contract was entered into without authority, this may well be an attack on the validity of both the underlying contract and the arbitration agreement. On the other hand, if the chal - lenge is that the underlying contract is void or voidable for misrepresentation, the arbitration agreement may survive where the parties’ intention to arbitrate is not
agreement or contract has been concluded orally, by conduct or any other means. In addition, where in any arbitral or legal proceedings the existence of an arbitration agreement is asserted by a party in a pleading, statement of case or any document in circumstances that call for a reply, and this assertion is not denied, there is deemed to be an effective arbitration agreement as between parties to Under Singapore law, any dispute that the parties have agreed to submit to arbitration under an arbi - tration agreement may be determined by arbitration unless it is contrary to public policy to do so. In Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 349, the Court of Appeal held that the arbitrability of a dispute is determined in the first instance by the law governing the arbitration agreement, and, where it is a foreign governing law and such law provides that the subject matter of the dispute is non-arbitrable, the 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. Further, even if a dis - pute may be arbitrable under the law of the arbitra - tion agreement, where Singapore is the seat and the dispute is non-arbitrable under Singapore law, the arbitration would not be able to proceed (see at [55]). There is no exhaustive list of matters that are non-arbi - trable, but courts have noted that issues which “may have public interest elements” – such as citizenship or legitimacy of marriage, grants of statutory licences, or validity of registration of trade marks or patents, copyrights, winding-up of companies, bankruptcies of debtors or administration of estates – may not be arbitrable (see Larsen Oil and Gas Pte Ltd v Petroprod Ltd [2011] 3 SLR 414 at [29]). In BAZ v BBA and Oth- ers [2020] 5 SLR 266, the court held that the principle of protecting the interests of minors in commercial transactions is part of the public policy of Singapore. the proceedings. 3.2 Arbitrability
715 CHAMBERS.COM
Powered by FlippingBook