Two recent developments in Singapore may require parties seeking to arbitrate in Singapore to look even more closely at their arbitration agreements.
The first relates to a November 2022 decision by the Singapore Court of Appeal in Senda International v Kiri Industries, in which the Court of Appeal found that recovery of "reasonable costs" under the Singapore International Commercial Court ("SICC") regime shall follow international practice, such that full costs can be recoverable, deviating from the domestic court costs guidelines.
Moreover, on 12 January 2023, an SICC Model Jurisdiction Clause for International Arbitration Matters was launched. The clause allows parties to international arbitration seated in Singapore to opt into the SICC as the venue within Singapore for curial matters related to their Singapore-seated arbitration. This gives such parties certainty that they will benefit from the SICC not only in terms of the new cost recovery regime deriving from Senda International, but more generally the less stringent procedural rules governing proceedings before the SICC and the SICC's more diverse bench, which includes International Judges from various jurisdictions, including currently three from civil law jurisdictions. Without such an express choice of SICC clause in their arbitration agreement, the parties may have to rely on a transfer of curial matters by the General Division of the High Court, which is not necessarily a given even in international arbitration matters.
The wording of the SICC Model Jurisdiction Clause for International Arbitration Matters can generally be added to any arbitration agreement, including those referring to ICC or SIAC arbitration with the arbitral seat being Singapore, the latter having included the new model clause on its website.
The second development is that the Singapore Court of Appeal held on 6 January 2023 in Anupam Mittal v Westbridge Ventures that when deciding on the arbitrability of a dispute subject to arbitration in Singapore at the pre-award stage, the Court will first look to the law governing the arbitration agreement to determine whether the dispute is arbitrable. If that is not the case, the arbitration cannot proceed in Singapore, even if the dispute is arbitrable under Singapore law.
This further underscores the importance of expressly stipulating the law governing the arbitration agreement (in addition to the law governing the contract) in arbitration agreements referring disputes to arbitration in Singapore, an issue that may be less important if the seat of arbitration is elsewhere, depending on the arbitration law and rules on arbitrability there.
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