SINGAPORE Trends and Developments Contributed by: Koh Swee Yen SC, Wendy Lin, Tiong Teck Wee and Monica Chong Wan Yee, WongPartnership LLP
Nuanced application of the Doctrine by a seat court faced with a prior decision of an enforcement court – Sacofa Sdn Bhd v Super Sea Cable Networks Pte Ltd and another [2024] SGHC 54 (“Sacofa”) In India v DT, the Court of Appeal left open the question of whether the Doctrine would equally apply in the reverse situation – where a seat court is faced with a prior decision of an enforce- ment court. That question was considered by the High Court in Sacofa. The claimant applied to set aside an SIAC award in Singapore, following a failed attempt to resist enforcement of the same award in proceedings before the Malaysian courts. In the Malaysian proceedings, the claimant had argued unsuccessfully that (among other things) the award contravened Malaysian law and was contrary to Malaysian public policy (“Illegal- ity Argument”). In the Singapore setting-aside proceedings, the claimant rehashed the same Illegality Argument and argued that, by virtue of international comity, the award (which was con- trary to Malaysian public policy) was also con- trary to the public policy of Singapore. The High Court held that the Doctrine applied to preclude the claimant from raising the Illegal- ity Argument, which was “founded upon Malay- sian law and public policy” and had already been considered and rejected by the Malaysian courts. The Doctrine did not, however, preclude the claimant from raising its other jurisdictional objections (which ultimately still failed on their merits), even though those objections had also been raised and rejected in earlier Malaysian proceedings. In adopting this nuanced approach, the High Court held that a distinction should be drawn between “objections that specifically implicate
the enforcement jurisdiction’s own statutes, public policy and other domestic interests” (eg, the claimant’s Illegality Argument) for which deference would be given to the enforcement forum’s decision, and other forum-neutral issues (eg, the claimant’s jurisdictional objection) that a subsequent seat court is entitled to consider afresh in line with the parties’ “implicit agree- ment to favour the supervisory jurisdiction of the seat court over the jurisdiction of other enforce- ment courts”. A composite approach will be taken to determine the arbitrability of a dispute – Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 349 In another first-of-its-kind decision, the Court of Appeal held that the arbitrability of a dis- pute should be determined using a composite approach. The arbitrability of the dispute would first be determined based on the law of the arbi- tration agreement. However, notwithstanding the arbitrability of the dispute under the law of the arbitration agreement, the court will also con- sider whether the dispute is arbitrable under the law of the seat. The appellant sought to set aside an anti-suit injunction that was granted by the High Court to restrain him from commencing a shareholder oppression claim before the National Company Law Tribunal in India (NCLT), as the High Court had found that the commencement of the NCLT proceedings was in breach of the arbitration agreement. The appellant argued that there was no breach of the arbitration agreement as the dispute related to oppression and the misman- agement of a company, which were non-arbi- trable under Indian law, and which the appellant contended was the law of the arbitration agree- ment.
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