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SGCA Judgement: Applicable law for issues regarding arbitrability

In Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 the Singapore Court of Appeal took an approach that deviates from court decisions in the US and also various European countries regarding arbitrability. The Singapore Court of Appeals held that two sets of laws must be considered when determining arbitrability. I.e. a dispute must be arbitrable under both the law of the seat and also the law of the arbitration agreement before the arbitration agreement can be upheld in a pre-award context (e.g., application for stay of court proceedings or for an anti-suit injunction).

In order to determine the law of the arbitration agreement the Court followed the three steps developed in BCY v BCZ [2017] 3 SLR 357. Courts will first look whether parties have expressly chosen a law to govern their arbitration agreement. Should there be no express choice, Courts will determine whether there is an implied choice of law. Should there neither be an express nor an implied choice, courts will determine the system of law with the closest and most real connection to the arbitration agreement.

In sum, if Singapore is the seat of arbitration, a dispute would be found to be arbitrable only if the subject matter of the dispute is arbitrable under both (a) the law of the seat, and also (b) the law of the arbitration agreement.

Key takeaways
The SGP Court of Appeal adopted a “composite approach”. The Court held that the law of the arbitration agreement applies in addition to the law of the seat to determine this question of arbitrability. Therefore when drafting arbitration clauses it would be prudent to specify not only the law governing the main contract, but also the law governing the arbitration agreement.

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