SINGAPORE Law and Practice Contributed by: Randolph Khoo, See Chern Yang, Tan Ei Leen and Sharon Ki, Drew & Napier
4.5 Costs and Time Taken to Enforce Arbitral Awards An uncontested application to enforce an arbitral award is a relatively straightforward and quick pro - cess. Costs would begin to escalate if the award debt - or challenges the order granting permission to enforce the award. The costs of a fully contested application can be quite substantial and may typically be several times the costs incurred for an undefended applica - tion to enforce an arbitral award. The entire process for an uncontested enforcement may take less than six months, depending on the availability of the court’s hearing dates. However, if an award debtor chooses to resist enforcement of the arbitral award, the second stage of the enforcement process will usually result in the award creditor incur - ring substantial time and costs in dealing with such resistance. If the outcome of the challenge to enforce - ment is appealed to a higher court, it could take a few years to reach a definitive conclusion of the overall process of enforcement. 4.6 Challenging Enforcement of Arbitral Awards Choice of Remedies Doctrine An award debtor has a choice to pursue an active strategy against enforcement by applying to pre- emptively invalidate the award through filing a setting- aside application at the place where the arbitration is seated. Alternatively, the award debtor can adopt a passive approach of resisting enforcement of the award by the award creditor in a country where its assets may be located. A party is not compelled to pursue the active remedy. Its rights to pursue a pas - sive approach are not waived or rendered unavailable just because the pre-emptive strategy is not pursued. Nature of the Award Consistent with Singapore’s reputation as an arbi - tration-friendly jurisdiction, Section 27 (1) of the IAA defines an “arbitral award” very broadly to include “an order or a direction made or given by an arbitral tri - bunal in the course of an arbitration”. This approach facilitates the enforceability of an award as to interim measures. Policy considerations to develop Singapore as a hub for international arbitration have also given impetus to legislative amendments to include emer -
• states either that the award has not been complied with or the extent to which it has not been com - plied with at the date of application to the court. Upon permission to enforce being granted by the court, the order granting permission to enforce is served on the award debtor. Within 14 days of service of the order (or such other period fixed by the court), the award debtor may apply to set aside the order granting permission to enforce. An award cannot be enforced until after the expiry of the period fixed by the court. If the award debtor does not contest the order, the award creditor can proceed to enforce the award like a court judgment, after the expiry of the applicable time limit. If the award debtor applies to set aside the order granting permission to enforce within the time stipu - lated in the order, the second stage of the enforce - ment process is engaged, which entails substantive arguments over whether there are grounds for resist - ing enforcement. Second Stage The court considers whether there are grounds for refusal of recognition and enforcement At the second stage, the award debtor must show that one of the grounds for resisting enforcement exists (as stated in 4.3 Categories of Arbitral Awards Not Enforced). The standard of proof is that of a balance of probabilities ( Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte Ltd (2014) 1 SLR 814 at (48)). At this stage, if the chal - lenge to enforcement is jurisdictional in nature, the court will conduct a de novo review of the arbitral tri - bunal’s decision on the question of jurisdiction. The court would otherwise not interfere with the tribunal’s decisions on the merits of the dispute ( Bloomberry Resorts and Hotels v Global Gaming Philippines LLC (2020) SGHC 113 at (38)). If the court rejects a challenge against enforcement, the award creditor will then obtain a judgment of the Singapore courts in terms of the arbitral award, as provided for under Section 46 of the AA and Sec - tions 19 and 29 of the IAA. That judgment becomes enforceable like a regular Singapore court judgment.
429 CHAMBERS.COM
Powered by FlippingBook