Enforceability of Foreign Emergency Awards in Singapore

An arbit­ral award by an emer­gency arbit­rat­or seated in Singa­pore is enforce­able in Singa­pore. The law is clear about that.

The law is less clear about for­eign emer­gency awards though. Are they enforce­able in Singa­pore, too?

This is rel­ev­ant, because Singa­pore may have been the first place where they did emer­gency arbit­ra­tion, but it is no longer the only place. Among oth­ers, the Chinese Arbit­ra­tion Asso­ci­ation Rules, Inter­na­tion­al provide for emer­gency arbit­rat­ors by default. The CAAI Arbit­ra­tion Rules are applic­able to arbit­ra­tions seated out­side of Taiwan.

Scenario

Let’s say two parties agree to sub­mit their dis­pute to arbit­ra­tion seated in Hong Kong and gov­erned by the CAAI Arbit­ra­tion Rules. But the respondent’s assets are loc­ated in Singa­pore and the claimant feels the need to seize these assets to secure the amount in dis­pute. So the claimant applies to an emer­gency arbit­rat­or in Hong Kong, who orders this inter­im meas­ure. Is this order – let’s call it a For­eign Inter­im Meas­ure – enforce­able in Singapore?

The bet­ter reas­ons speak for it.

The Law

It’s been said cat­egor­ic­ally that awards issued by emer­gency arbit­rat­ors were enforce­able under Singa­pore law, and that this applied to the awards and orders issued by emer­gency arbit­rat­ors in Singa­pore and abroad.

Unfor­tu­nately, it isn’t quite so clear. In par­tic­u­lar, the stat­utory situ­ation is a bit ambigu­ous. There doesn’t seem to be rel­ev­ant Singa­pore case law for the time being either.

One thing’s for sure, though. In Singa­pore, the enforce­ment of for­eign arbit­ral awards and mat­ters con­nec­ted there­with are gov­erned by the Inter­na­tion­al Arbit­ra­tion Act (IAA). This is where we have to look.

Foreign Award

Pur­su­ant to sec­tion 29(1) IAA, a for­eign award may be enforced in a court either by action or in the same man­ner as an award of an arbit­rat­or made in Singa­pore is enforce­able under sec­tion 19 IAA.

In oth­er words, this sec­tion tells us our For­eign Inter­im Meas­ure is enforce­able in Singa­pore if the meas­ure is a for­eign award with­in the mean­ing of sec­tion 29(1) IAA.

So what’s a for­eign award?

Sec­tion 27(1) IAA defines for­eign award as an arbit­ral award made in pur­su­ance of an arbit­ra­tion agree­ment in the ter­rit­ory of a Con­ven­tion coun­try oth­er than Singapore.

The same pro­vi­sion tells us what Con­ven­tion means. It is, of course, the Con­ven­tion on the Recog­ni­tion and Enforce­ment of For­eign Arbit­ral Awards adop­ted in 1958 by the United Nations Con­fer­ence on Inter­na­tion­al Com­mer­cial Arbit­ra­tion at its twenty-fourth meet­ing (New York Con­ven­tion).

Hence, our For­eign Inter­im Meas­ure is a for­eign award if it is (i) an arbit­ral award (ii) made in pur­su­ance of an arbit­ra­tion agree­ment in the ter­rit­ory of a New York Con­ven­tion coun­try oth­er than Singapore.

Cri­terion (ii) there is easy to gauge. The dis­pute in our scen­ario has been sub­mit­ted to arbit­ra­tion by way of party agree­ment. The People’s Repub­lic of China is a sig­nat­ory to the New York Con­ven­tion. There­fore, Hong Kong, as part of the People’s Repub­lic of China, is in the ter­rit­ory of a New York Con­ven­tion coun­try oth­er than Singapore.

The rat­ing of cri­terion (i), how­ever, is less clear. Is our For­eign Inter­im Meas­ure an arbit­ral award?

Arbitral Award

For this we turn to sec­tion 27(1) IAA again. There, it provides that arbit­ral award shall (a) have the same mean­ing as in the New York Con­ven­tion, but (b) also include an order or a dir­ec­tion made or giv­en by an arbit­ral tribunal in the course of an arbit­ra­tion in respect of any of the mat­ters set out in sec­tion 12(1)(c) to (j) IAA. This refers to inter­im meas­ures includ­ing those for secur­ing the amount in dispute.

Cri­terion (a) seems to be unre­ward­ing. The concept of emer­gency arbit­ra­tion didn’t exist when the New York Con­ven­tion was writ­ten. In any case, the New York Con­ven­tion doesn’t con­tain a con­clus­ive defin­i­tion of arbit­ral award. Rather, its art­icle I.2 merely states that the term arbit­ral awards shall include not only awards made by arbit­rat­ors appoin­ted for each case but also those made by per­man­ent arbit­ral bod­ies to which the parties have submitted.

Cri­terion (b), how­ever, that’s the fly in the oint­ment. Accord­ing to sec­tion 27(1) IAA, our For­eign Inter­im Meas­ure is an arbit­ral award if it is an award, order or a dir­ec­tion made or giv­en by an arbit­ral tribunal in the course of an arbitration.

Arbitral Tribunal

Is our For­eign Inter­im Meas­ure made or giv­en by an arbit­ral tribunal in the course of an arbit­ra­tion? What’s an arbit­ral tribunal?

There are two stat­utory defin­i­tions of arbit­ral tribunal in the Inter­na­tion­al Arbit­ra­tion Act. Unfor­tu­nately, none of them apply, at least not directly.

The Part II-Only Definition

The first defin­i­tion is found in sec­tion 2(1) IAA. Accord­ing to this pro­vi­sion, in Part II of this Act arbit­ral tribunal means a sole arbit­rat­or or a pan­el of arbit­rat­ors or a per­man­ent arbit­ral insti­tu­tion, and – lo and behold! – includes an emer­gency arbit­rat­or appoin­ted pur­su­ant to the rules of arbit­ra­tion agreed to or adop­ted by the parties includ­ing the rules of arbit­ra­tion of an insti­tu­tion or organisation.

This would include our emer­gency arbit­rat­or in Hong Kong provided he is appoin­ted pur­su­ant to the rules of arbit­ra­tion agreed to or adop­ted by the parties includ­ing the rules of arbit­ra­tion of an insti­tu­tion or organ­isa­tion. Which he is, because the dis­pute in our scen­ario is gov­erned by the CAAI Arbit­ra­tion Rules.

How­ever, this defin­i­tion applies to Part II of the Inter­na­tion­al Arbit­ra­tion Act only. Sec­tion 27(1) IAA isn’t in Part II; it’s in Part III.

The Model Law-Only Definition

The second defin­i­tion of arbit­ral tribunal is found in the First Sched­ule to the Inter­na­tion­al Arbit­ra­tion Act, which con­tains the UNCITRAL Mod­el Law on Inter­na­tion­al Com­mer­cial Arbit­ra­tion as adop­ted by the United Nations Com­mis­sion on Inter­na­tion­al Trade Law on 21 June 1985 (Mod­el Law 1985).

Accord­ing to art­icle 2(b) of the Mod­el Law 1985, for the pur­poses of this Law, arbit­ral tribunal means a sole arbit­rat­or or a pan­el of arbitrators.

This, too, would include an emer­gency arbit­rat­or in Hong Kong. How­ever, sec­tion 27(1) IAA isn’t part of the Mod­el Law 1985.

Statutory Interpretation

What hap­pens if an act of law con­tains two leg­al defin­i­tions of a term, one each for two sep­ar­ate parts of the act, but none of them dir­ectly applies to a third part of the act?

Spe­cific­ally, what if there are two stat­utory defin­i­tions of arbit­ral tribunal in the Inter­na­tion­al Arbit­ra­tion Act, but there’s no stat­utory defin­i­tion of arbit­ral award in and for the pur­pose of Part III of this Act? Does this mean there’s no chance our For­eign Inter­im Meas­ure has been made by an arbit­ral tribunal with­in the mean­ing of sec­tion 27(1) IAA?

The Singa­pore courts haven’t addressed this ques­tion yet.

Where it’s unclear how to read a pro­vi­sion of law, and where there’s no rel­ev­ant case law either, we need to inter­pret this pro­vi­sion. There’s an act of law for that, the Inter­pret­a­tion Act.

The Interpretation Act

Sec­tion 9A(1) of the Inter­pret­a­tion Act says that in the inter­pret­a­tion of a pro­vi­sion of a writ­ten law, an inter­pret­a­tion that would pro­mote the pur­pose or object under­ly­ing the writ­ten law (wheth­er that pur­pose or object is expressly stated in the writ­ten law or not) shall be pre­ferred to an inter­pret­a­tion that would not pro­mote that pur­pose or object.

Simply put, it says when we inter­pret the law, we must do so in line with the pur­pose or object for which the law was made.

In so inter­pret­ing a pro­vi­sion of a writ­ten law, accord­ing to sec­tion 9A(2)(b)(i) of the Inter­pret­a­tion Act con­sid­er­a­tion may be giv­en to mater­i­al not form­ing part of the writ­ten law to ascer­tain the mean­ing of the pro­vi­sion when the pro­vi­sion is ambigu­ous or obscure, if such mater­i­al is cap­able of assist­ing in the ascer­tain­ment of the mean­ing of the provision.

Simply put, when we inter­pret the law, we may look at mater­i­al out­side of this law.

In par­tic­u­lar, accord­ing to sec­tion 9A(3)(c) of the Inter­pret­a­tion Act the mater­i­al that may be so con­sidered shall include the speech made in Par­lia­ment by a Min­is­ter on the occa­sion of the mov­ing by that Min­is­ter of a motion that the Bill con­tain­ing the pro­vi­sion be read a second time in Parliament.

Simply put, when we inter­pret the law, we may look at the Minister’s par­lia­ment­ary speech when the law was made.

Here we go.

The Speech in Parliament

The stat­utory acknow­ledg­ment and inclu­sion of emer­gency arbit­rat­ors, albeit dir­ectly applic­able to Part II of the Inter­na­tion­al Arbit­ra­tion Act only, came into effect on 1 June 2012. This happened at the same time that the defin­i­tion of arbit­ral award in sec­tion 27(1) IAA was exten­ded to include inter­im meas­ures such as those for secur­ing an amount in dispute.

In Par­lia­ment, Law Min­is­ter K Shan­mugam had this to say (Second Read­ing Speech by Min­is­ter for Law on the Inter­na­tion­al Arbit­ra­tion (Amend­ment) Bill on 9 April 2012):

20. Emer­gency arbit­rat­ors provide urgent inter­im relief to parties before the arbit­ral tribunal is constituted.

This appears to speak against the legislator’s will to include emer­gency arbit­rat­ors in the defin­i­tion of arbit­ral tribunal. How­ever, this might have been a start­ing point only. Because the Min­is­ter con­tin­ued (ibid.):

21. They are a fairly recent innov­a­tion in inter­na­tion­al arbit­ra­tion. The Singa­pore Inter­na­tion­al Arbit­ra­tion Centre was one of the first in the world to intro­duce them. Oth­er arbit­ral insti­tu­tions have now fol­lowed suit.

22. With the amend­ments, there will be clear legis­lat­ive sup­port for emer­gency arbit­rat­ors. They will be able to exer­cise the full range of powers avail­able to the tribunal under the Act. Their awards will be enforce­able in our courts in the same way as awards by any oth­er arbit­ral tribunal.

23. In addi­tion, clause 10 amends the defin­i­tion of for­eign arbit­ra­tion awards in sec­tion 27(1).

24. The amended defin­i­tion will then encom­pass inter­im meas­ures made by an arbit­ral tribunal, such as orders for the pre­ser­va­tion of prop­erty. Such inter­im meas­ures will now be enforce­able in our courts.

Purposive Interpretation 

These state­ments express legis­lat­ive sup­port for emer­gency arbit­rat­ors in inter­na­tion­al arbit­ra­tion. In par­tic­u­lar, they express the legislator’s wish that emer­gency arbit­rat­ors be able to have the same range of powers as an arbit­ral tribunal. This is a declar­a­tion of qual­it­at­ive equal­ity of emer­gency arbit­rat­ors and arbit­ral tribunals.

These state­ments also speak for the legislator’s wish that emer­gency awards be enforce­able in the same way as awards by any oth­er arbit­ral tribunal. This is a declar­a­tion of ter­min­o­lo­gic­al equal­ity of emer­gency arbit­rat­ors and arbit­ral tribunals.

All this speaks of the Singa­pore legislator’s pur­pose to sup­port emer­gency arbit­ra­tion fully. To be in line with this, arbit­ral tribunal in sec­tion 27(1) IAA would have to be inter­preted so as to include our emer­gency arbit­rat­or in Hong Kong.

Compatibility with Other Law

The above pur­pos­ive inter­pret­a­tion of sec­tion 27(1) IAA – namely its defin­i­tion of arbit­ral tribunal – is neither incom­pat­ible with art­icle 2(b) of the Mod­el Law 1985 nor with the New York Con­ven­tion. These are bod­ies of law which pred­ate the concept of emer­gency arbit­ra­tion. There’s just no point of con­tact for incompatibility.

Foreign Emergency Arbitrators

How­ever, the ques­tion remains wheth­er the above pur­pos­ive inter­pret­a­tion also speaks in sup­port of for­eign emer­gency arbitrators.

Inso­far, the Min­is­ter said (ibid.):

28. The pas­sage of this Bill will sig­nal to the inter­na­tion­al arbit­ra­tion com­munity our con­tin­ued com­mit­ment to provid­ing the fullest legis­lat­ive sup­port for inter­na­tion­al arbitration.

Not some, not full, but the fullest legis­lat­ive sup­port for inter­na­tion­al arbit­ra­tion. This sounds very much like sup­port for for­eign emer­gency arbit­rat­ors, at least to the extent that they are sim­il­ar to an emer­gency arbit­rat­or with­in the mean­ing of sec­tion 2(1) IAA, which is to say the emer­gency arbit­rat­ors are appoin­ted pur­su­ant to the rules of arbit­ra­tion agreed to or adop­ted by the parties, includ­ing the rules of arbit­ra­tion of an insti­tu­tion or organisation.

On the oth­er hand, it would seem to speak against for­eign emer­gency arbit­rat­ors that they are only acknow­ledged and included in sec­tion 2(1) IAA, which is to say for Part II of this Act, but nowhere in Part III, which deals with for­eign awards. How­ever, this is a sys­tem­at­ic approach to inter­pret­a­tion, some­thing which sec­tion 9A(1) of the Inter­pret­a­tion Act doesn’t allow us to prefer if it doesn’t pro­mote the pur­pose or object of the law.

Conclusion

A pur­pos­ive inter­pret­a­tion of the law speaks in favour of con­sid­er­ing our emer­gency arbit­rat­or in Hong Kong an arbit­ral tribunal with­in the mean­ing of sec­tion 27(1) IAA. This is even more true since it does­n’t con­tra­dict oth­er law applic­able, namely the Mod­el Law 1985 or even the New York Convention.

In con­clu­sion, it appears that our For­eign Inter­im Meas­ure, made by an emer­gency arbit­rat­or in Hong Kong under the CAAI Arbit­ra­tion Rules, is enforce­able in Singa­pore, pur­su­ant to sec­tion 29(1) of the IAA.