the world by de-emphasising the importance of the seat of arbitration. Article 34 of the Model Law set out grounds for which an applicant can set aside an award, with Section 24B of the International Arbitration Act (IAA) allowing for additional grounds. An application to set aside an award can only be made in a court in the country of the arbitration seat. Section 19 of the IAA provides for the refusal to enforce or recognise a foreign award. Unlike the setting aside procedure, an application to refuse to enforce or recognise an award can be made in any country where enforcement is sought.
Does Singapore offer a “choice of remedies”? Section 3(1) of the IAA gives effect to the Model Law with the exception of Chapter VIII. This means that Article 36 of the Model Law, which governs the enforcement of arbitral awards, does not have direct force of law in Singapore. However, the Court of Appeal in PT First Media v. Astro4 articulated that it remains open to the courts to align the exercise of discretion under section 19 of the IAA with the grounds under Art 36 of the Model Law. The appellant in PT First Media v. Astro sought to resist enforcement of an award by arguing that the exclusion of Chapter VIII meant that Singapore did not offer a “choice of remedies”. By this, the appellant suggested that the setting aside of jurisdictional challenges (discussed later) were exclusive routes through which a party could challenge an award. “Choice of remedies” refers to the two options a party has against an award. The first is an “active remedy” which consists of taking positive steps to invalidate the award such as by an application to challenge a preliminary jurisdiction ruling under Article 16(3) or setting aside an award on the grounds set out in Article 34(1) of the Model Law. The second is a “passive remedy” against the award by resisting enforcement where and when the award is sought to be enforced. The Court of Appeal in PT First Media v. Astro emphasised that the system of a “choice of remedies” was at the heart of the design of the Model Law5 and that section 3(1) of the IAA could not be understood as derogating from that clear philosophy. It alluded to Parliament’s specific objective in excluding Chapter VIII, which was to enable the enforcement of foreign awards to be governed by only one set of rules, namely, the New York Convention. Furthermore, the Court iterated its pro-arbitration stance it in its interpretation of the IAA. It held that there would be potentially far-reaching implications on the practice and flourishing of arbitration in Singapore if parties were compelled to engage their active remedies for fear of not
4
PT First Media TBK v. Astro Nusantara International BV & others [2014] 1 SLR 372.
5 108
ibid [65].
having a passive remedy.6
Result Of A Successful Claim To Set Aside An Award There can be two possible results that arise from a worthy claim to set aside an award. The court may use its discretion under Art 34(4) to suspend the setting aside proceedings to remit the matter to the arbitral tribunal for amendments, or it may set aside the award. Recent cases have discussed issues relating to both potential outcomes.
The Court of Appeal in BLC v BLB7 dealt with the question of whether a court could exercise its power of remission to the arbitral tribunal where the party had not made use of the opportunity to bring up the matter to the arbitral tribunal itself under Article 33(3). The Court weighed up two sides of the argument. On one hand, Article 33(3) would be rendered toothless if the court could exercise its power of remission despite the party not attempting to first bring up the matter before the arbitral tribunal.8 This would go against the court’s desire to respect the autonomy of the arbitral process by leaving matters to be resolved by the arbitral tribunal where possible. On the other hand, the Model Law placed no obligation on parties to invoke article 33(3) and to derogate from this would impede harmonisation. Eventually a middle ground was found between the two seemingly disparate positions by recognising that whilst a party was not obliged to invoke Art 33(3), he took the risk that the court would not exercise its discretion to set aside any part of the award or invoke the powers of remission under Art 34(4) of the Model Law.9 Where the power of remission is not exercised, a successful claim can lead to the award being set aside. The Court of Appeal in AKN v ALC10 clarified that the consequence of this is that the Court no longer has the power to remit the matter to the same tribunal. Thus, once an award has been set aside, parties must commence fresh proceedings before a new tribunal.
GROUNDS FOR SETTING ASIDE OR NONENFORCEMENT OF AWARD The grounds for setting aside an award under Article 34 essentially mirrors the grounds for non-enforcement or recognition as found in Article 36 of the Model Law.
6 7 8 9
ibid [90].
10
AKN and another v. ALC and others and other appeals [2015]
[116]. SGCA 18.
BLC and others v. BLB and another [2013] 4 SLR 1169. ibid at [110]. BLC and others v. BLB and another [2013] 4 SLR 1169,