Issue 1:

Whether to confer on the court the power to make costs orders for the arbitral proceedings following a successful setting aside.

Issue 2:

Whether separate costs principles are necessary in setting aside applications.

Issue 3:

Whether to introduce a leave requirement for appeals to the Court of Appeal following an unsuccessful application to set aside an arbitral award in the High Court.

Issue 4:

Whether the time limit to file a setting aside application should be reduced.

Issue 5:

Whether a right of appeal (including variations of the same) on questions of law is desirable.

Issue 6:

How to ascertain the governing law of the arbitration agreement.

Issue 7:

Whether the review of the tribunal’s jurisdiction should be conducted by way of an appeal or a rehearing.

Issue 8:

Summary disposal.

Issue 1:

We recommend enacting an express provision in the IAA giving the courts the discretion to make an order in respect of only the costs of the arbitration proceedings following a successful set-aside application; the courts’ discretion will extend to apportioning, but not varying, the arbitral tribunal fees and institutional fees. We further recommend that the courts should also have the discretion to remit the issue of the costs of the arbitration proceedings, but remission should only be ordered as an exceptional remedy when (a) all parties to the award agree to the remission; and (b) it is in the interests of justice to do so.

Issue 2:

We do not recommend any reform to the IAA. Separate costs principles are not necessary for unsuccessful applications to set aside international arbitral awards in Singapore. The costs regime in the SICC typically allows a successful respondent in a setting-aside application to recover more than what it would if costs were assessed at the High Court on a standard or indemnity basis. As the SICC grows to hear more international arbitration-related disputes, the issue of whether indemnity costs should be imposed as a default for setting-aside applications will become less relevant.

Issue 3:

We recommend a more straightforward rule where parties must obtain permission of the appellate court to appeal against any decision of the High Court on both setting aside and resisting enforcement applications (whether successful or otherwise). The appellate court shall grant any permission to appeal without a hearing unless it is of the view that a hearing is required.

Issue 4:

We do not recommend reducing the three-month time limit for setting aside applications. We also do not recommend giving the courts general discretion to extend the time limit. However, we recommend enacting a new provision in the IAA giving the courts discretion to extend the time limit in setting aside applications involving fraud or corruption under section 24(a) of the IAA.

Issue 5:

We recommend that the IAA should be amended to provide parties with an opt-in right to appeal to the court on points of law. The Ministry of Law’s 2019 proposal should be adopted with modifications, such as:

1. expressly requiring appeals to be decided on the basis of the findings of fact in the award;
2. defining questions of law to expressly include questions of foreign and international law;
3. preventing an automatic waiver of the right of appeal under institutional rules;
4. making provision for the costs of the court and arbitral proceedings; and
5. providing that applications for permission to further appeal from the High Court shall be determined by the appellate court.

Issue 6:

We recommend that Singapore should enact a new statutory choice of law approach for determining the governing law of an arbitration agreement to replace the existing Singapore common law approach. The new provision should provide as follows:

Issue 7:

On the standard of review, we recommend that a tribunal’s ruling on jurisdiction should continue to be subject to a rehearing before the courts (instead of an appeal), without any deference granted to the tribunal’s findings. Insofar as the scope of review is concerned, parties should not have an unfettered right to introduce new evidence. Instead, the court should have the discretion to decide what evidence to receive and how the evidence is to be received, whether by way of affidavit or viva voce. Whilst we do not recommend any changes to the IAA, we recommend the introduction of new Rules of Court requiring parties to identify new arguments and new evidence sought to be introduced before the courts.

Issue 8:

We recommend that section 19A of the IAA should be amended to expressly provide that the arbitral tribunal has the power to summarily dispose of matters in dispute by way of an award, unless the parties agree that the arbitral tribunal shall not have such a power, along the following lines: