SINGAPORE Trends and Developments Contributed by: Koh Swee Yen SC, Wendy Lin, Tiong Teck Wee and Monica Chong Wan Yee, WongPartnership LLP
Affirming the decision in Westbridge Ventures II Investment Holdings v Anupam Mittal [2021] SGHC 244, the Court of Appeal found that no express choice of law for the arbitration agree- ment was made, and there was also no implied choice for Indian law to govern the arbitration agreement (because the parties intended for all disputes to be resolved by arbitration, choos- ing Indian law would be inconsistent with this intention, as oppression claims are not arbitrable under Indian law). Ultimately, the Court of Appeal determined that the law of the arbitration agreement should be Singapore law as it was the law that had the most real and substantial connection with the arbitration agreement. Given that oppression claims are arbitrable under Singapore law, the institution of the NCLT proceedings was a breach of the arbitration agreement, and the appeal to discharge the anti-suit injunction was therefore dismissed. This decision highlights the importance for par- ties to expressly stipulate the governing law of the arbitration agreement, rather than leave it to the court to determine what the implied choice of the law governing the arbitration agreement should be at a later stage, or what the law with the most real and substantial connection to the arbitration agreement is. Singapore courts reiterate high threshold for setting aside an arbitral award – Swire Shipping Pte Ltd v Ace Exim Pte Ltd [2024] SGHC 211 (“Swire Shipping”) In Swire Shipping, the applicant sought to set aside an SCMA award on the grounds that, among other things, it had been deprived of a reasonable opportunity to present its case and that the arbitrator had failed to apply his mind to the evidence and submissions before him.
Even though the High Court was of the view that the 386-page award was “borderline unin- telligible”, the setting-aside application was dismissed. The Court concluded that the award “had not crossed the line so as to warrant curial intervention” and found that while the arbitrator had presented his views “in a cypher”, he had applied his mind to the relevant evidence and issues “with granularity”, ironically with the pre- dominant aim of avoiding being set aside. In dismissing the application, the Court stressed with respect to the principle of minimal curial intervention that parties must accept that the courts will not rescue them from their choice to resolve their dispute through arbitration (except in limited circumstances set out in the Inter- national Arbitration Act and UNCITRAL Model Law). At the same time, arbitrators who enjoy a measure of immunity from substantive challenge should be mindful that they do not have licence to render awards that “while on their face seem- ingly comprehensive and detailed, are in reality a labyrinthine tome that would test even the most stout-hearted”. The Court also cautioned that arbitrators should not fall prey to “due process paranoia”, as the arbitrator in Swire Shipping did. While arbitrators are to be commended for seeking to be comprehensive in their awards, that should not be an end in itself. Rather, brevity and ease of reading and understanding ought to be the ultimate objectives of any award. Notwithstanding the principle of minimal curial intervention, the Singapore courts will set aside arbitral awards in an appropriate case – DJO v DJP and others [2024] SGHC(I) 24 (“DJO”) The SICC in DJO granted an application to set aside an ICC award in what it called “an unusual and troubling case”.
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