SINGAPORE Law and Practice Contributed by: Chou Sean Yu, Wendy Lin, Monica Chong Wan Yee and Frank Oh Sheng Loong, WongPartnership LLP
hear it”). For example, issues relating to the interpre - tation and application of the arbitration clause would be jurisdictional, while the issue of time-bar would go towards admissibility. (See CYY v CYZ [2023] SGHC 101 at [41]; BBA and Others v BAZ [2020] 2 SLR 453 at [76]–[78]). The courts will undertake a de novo review for ques - tions of jurisdiction (see CBX at [11]). On the other hand, the courts will not intervene in the tribunal’s admissibility determinations (even if they are, in the court’s view, wrong) as such determinations engage the merits of the case and are within the sole purview of the tribunal (see CYY at [53]). 5.5 Breach of Arbitration Agreement Under Section 6 IAA, parties may apply to stay court proceedings in Singapore that are commenced in breach of an arbitration agreement, at any time after filing and serving a notice of intention to contest or not contest, and before delivering any pleading (other than a pleading asserting that the court does not have jurisdiction in the proceedings) or taking any other step in the proceedings. The IAA requires that upon such application the court “is to make an order” staying the proceedings unless it is satisfied that the arbitration agreement is “null and void, inoperative or incapable of being performed”. Generally, the courts tend to take a supportive approach, and will uphold arbitration agreements that are workable and clearly evince the intention of parties to resolve a dispute by arbitration (see HKL Group Co Ltd v Rizq International Holdings Pte Ltd [2013] SGHCR 5). Notably, a different standard applies to arbitration agreements that fall under the scope of the AA. Under Section 6 AA, the court “may” (rather than “is to”) make an order staying the proceedings, if satisfied that: • there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement; and • the applicant was, at the time when the proceed - ings were commenced, and still remains ready
and willing to do all things necessary to the proper conduct of the arbitration. 5.6 Jurisdiction Over Third Parties Non-signatories to an arbitration agreement may be regarded as parties to the arbitration agreement in certain situations. For example, in Jiang Haiying v Tan Lim Hui [2009] 3 SLR(R) 13, the court appeared to accept that, in situations where the non-signatory is a party to a collateral contract (ie, an agreement dis - tinct from the main contract) and the claim against the non-signatory is based on the collateral contract, the non-signatory might be bound by the arbitration agreement (see at [50]–[55]). Also, in Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd and Another [2006] 3 SLR(R) 174, the court appeared to accept that a non-signatory could be bound by an arbitration agreement on the basis of theories such as alter ego and agency (see at [76]). In these scenarios, the law does not appear to have drawn a distinction between domestic and foreign non-signatories. Under Section 12 (1) IAA and Section 28 (2) AA, a tri - bunal has powers to make orders for (among others): • security for costs; • discovery of documents and discovery of facts; • giving of evidence by affidavit; • preservation and interim custody of any evidence for the purposes of the proceedings; and • taking of samples and conducting of experiments on property that is the subject matter of the dis - pute. In addition, under Section 12 (1) IAA (but not the AA where such matters are only in the court’s purview, unless otherwise agreed by the parties), a tribunal also has powers to make orders for securing the amount in dispute (ensuring that any award which may be made is not rendered ineffectual by the dissipation of assets by any party) or for an interim injunction or other interim measure; the tribunal is empowered to 6. Preliminary and Interim Relief 6.1 Types of Relief
718 CHAMBERS.COM
Powered by FlippingBook