To analyze this question we have published an article on the Kluwer Arbitration Blog
Is the law of the arbitration agreement the law of the seat or the law of the underlying contract? Already in 2010 English and French courts have reached fundamentally different decisions to answer this question
In the case of China Machine New Energy Corporation v Jaguar Energy Guatemala LLC and another [2020] SGCA 12, the Singapore Court of Appeal enunciated that a balance must be struck between genuine due process concerns and the arbitral Tribunal’s legitimate duty to ensure a prompt and efficient resolution of the dispute at hand.
In PUBG Corp v Garena International I Pte Ltd and others [2020] SGCA 51, the Singapore Court of Appeal deliberated that a stay of the parties’ ongoing Court proceedings should be granted on “case management” grounds, in favour of arbitration proceedings stemming from a settlement agreement that was entered into between the parties in the midst of the Court Proceedings.
In Carlsberg Breweries A/S c CSAPL (Singapore) Holdings Pte Ltd [2020] SGHC(I) 5 the Plaintiff sued for the repayment of a loan extended to the Defendant under a loan agreement. The repayment was triggered by the Defendant’s breach of Clauses 2(a) and 2(c) of their Deed of Undertaking, some of which were constituted by breaches of the Amended Shareholders’ Agreement. The issues arose from an Amended Shareholders' Agreement and were, by common consent, to be determined in the conjoined references to arbitration.
In BYL and Anor v BYN [2020] SGHC(I) 6 the Plaintiffs sought to set aside a Partial Award obtained through an ICC Arbitration by citing two grounds:
It is trite that the notion of Calderbank offers denotes that a Court has the discretion to make an adverse costs order against a party if he refuses an offer to settle proceedings for a particular sum which is more than the sum granted in the final judgment. The application of Calderbank offers remains the same in an arbitration governed by Singapore law.
Saudi Arabia’s ratification was effected on 5 May 2020 and the Convention will enter into force for Saudi Arabia on 5 November 2020. Saudi Arabia became the fourth State Party to the United Nations Convention on International Settlement Agreements.
Date: 26.05.2020
The outbreak of the COVID-19 virus had a severe impact on all industries worldwide, the international arbitration scene certainly being no exception. The pandemic has achieved what 89 % participants of the 2018 Queen Mary (“The Evolution of international Arbitration”)
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Date: 26.05.2020
Since its inception, arbitration has been known as a flexible and adaptable mechanism which can assist participants in solving their disputes and achieving practical solutions.
Major arbitral institutions have responded swiftly and proactively to adapt to the demands of remote working and virtual hearings since the outbreak of the virus. Some examples:
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Date: 26.05.2020
Under the GDPR, any host of a video conference (i.e. the organiser of the video conference) is highly likely to be considered as a “data controller”. This means that the organiser of the conference (i.e. the Tribunal) will have to consider how the data should be processed so that no data protection laws will be breached. On the other hand, the video conferencing provider/platform will be considered as “data processor” under the GDPR. This menas that the video conferencing providers must also take into account and adhere to the parameters of GDPR if any of the participants are domiciled in the European Union (“EU”) or when the provider is established in the EU.
Date: 26.05.2020
It is settled law that a party to a contract can apply for a stay of court proceedings when there is an agreement to arbitrate. However, it remained unclear if such a stay could be applied by a third party. Recently in January, the Singapore High Court (“the Court”) had the chance to clear the ambiguity in the case of Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd [2020] SGHC 20 (https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/os-83-2018-hai-jiang-final-24012020-pdf.pdf). This marks the first time that a local court has ratified the principle that a non-party to a contract which contains an exclusive jurisdiction clause (or arbitration clauses) can obtain an anti-suit injunction against a person that had commenced proceedings abroad against him.
Date: 26.05.2020
It is settled law that a debtor company needs to raise triable issues or establish a bona fide dispute in order to obtain a stay or dismissal of the winding-up application. The exception to this rule is evinced in the English case of Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2015] Ch 589. The court therein held that, if the dispute with regards to the debt is subject to an arbitration agreement, the prima facie standard of review ought to apply. Nevertheless, there have been conflicting approaches in the common law jurisdictions when deciding the applicable standard of review in such cases.
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Date: 26.05.2020
In the case of BXH v BXI [2020] SGCA 28, (https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/-2020-sgca-28-pdf.pdf) the Singapore Court of Appeal allowed an appeal to set aside a substantial part of an arbitral award under Article 34(2)(a)(i) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). In coming to its decision, the Court of Appeal considered a number of novel issues arising from the assignment, novation and reassignment of the legal right to arbitrate over to certain debts.
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Date: 21-11-2019
Amendments to the AA and IAA – that came into effect on 21.11.2019) now clarify that IP disputes are capable of being settled by arbitration in SGP and that an award concerning IP rights shall not be contrary to public policy. Such disputes were also arbitrable before the legislative changes and just clarify the current position.
Date: 21-11-2019
Queen Mary University of London / Pinsent Mason published a survey on International Construction Disputes (https://www.pinsentmasons.com/thinking/special-reports/international-arbitration-survey). The key findings are that while arbitration is still regarded by construction companies as the preferred method for resolving disputes on international construction projects, there is scope for improved efficiency and flexibility at all stages of the arbitral process.
Date: 18-11-2019
In "ST Group Co Ltd and others v Sanum Investments Limited and another appeal" [2019] SGCA 65 the Singapore Court of Appeals recently ruled that once an arbitration is incorrectly seated (i.e. in a seat not chosen by the parties), in the absence of a waiver by the parties, any subsequent award would not be recognised and enforced by the courts (https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ca-113-2018-j---sanum-pdf.pdf).
Date: 27-10-2019
The process of allowing experts or other witnesses to make their statements together can be difficult to handle. Recent developments in this area are therefore very welcome, especially since there are hardly any regulations for this procedure so far.
Date: 03-10-2019
In the judgement (“BXS v BXT [2019] SGHC(I) 10”) the Singapore International Commercial Court (“SICC”) decided whether it has the power to extend the period within which an action may be brought against an award.
Date: 02-10-2019
Article 16 of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) provides a means for the early settlement of disputes concerning the jurisdiction of an arbitral tribunal.
Date: 02-10-2019
The “Convention on International Settlement Agreements Resulting from Mediation” (“the Singapore Convention or the Convention ”) was signed on August 7, 2019 in Singapore by 46 states including the US, China, India, Laos, Malaysia, Philippines, Republic of Korea, Sri Lanka, Brunei and Singapore.
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