Enforceability of Foreign Emergency Awards in Singapore

An arbit­ral award made by an emer­gency arbit­rat­or sit­ting in Singa­pore is enforce­able in Singa­pore. The law is clear on this.

How­ever, the law is less clear on for­eign emer­gency awards. Are they enforce­able in Singapore?

[Update: The High Court has since con­firmed the view set out here: CVG v CVH [2022] SGHC 249.]

This is import­ant because while Singa­pore may have been the first place where emer­gency arbit­ra­tion took place, it is no longer the only place. The Chinese Arbit­ra­tion Asso­ci­ation Rules, Inter­na­tion­al, among oth­ers, provide for emer­gency arbit­rat­ors by default. The CAAI Arbit­ra­tion Rules apply to arbit­ra­tions seated out­side Taiwan.

Scenario

Let’s say two parties agree to sub­mit their dis­pute to arbit­ra­tion seated in Hong Kong under the CAAI Arbit­ra­tion Rules. How­ever, the respondent’s assets are loc­ated in Singa­pore and the claimant feels the need to attach those 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 cat­egor­ic­ally stated that awards made by emer­gency arbit­rat­ors are enforce­able under Singa­pore law and that this applies to awards and orders made by emer­gency arbit­rat­ors in Singa­pore and abroad.

Unfor­tu­nately, it’s not quite that clear. In par­tic­u­lar, the law is a little ambigu­ous. For the time being, there does­n’t seem to be any rel­ev­ant case law in Singapore.

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

Foreign Award

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

In oth­er words, this sec­tion tells us that 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 is 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).

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

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

How­ever, the assess­ment of cri­terion (i) is less clear. Is our For­eign Inter­im Meas­ure an arbit­ral award?

Arbitral Award

For this we turn again to sec­tion 27(1) IAA. It provides that an arbit­ral award (a) has the same mean­ing as in the New York Con­ven­tion, but (b) also includes an order or dir­ec­tion made or giv­en by an arbit­ral tribunal in the course of an arbit­ra­tion in respect of any of the mat­ters spe­cified in sec­tion 12(1)(c) to (j) IAA. This refers to inter­im meas­ures, includ­ing those to secure the amount in dispute.

Cri­terion (a) does not appear to be worth­while. The concept of emer­gency arbit­ra­tion did­n’t exist when the New York Con­ven­tion was draf­ted. In any event, the New York Con­ven­tion does­n’t con­tain a defin­it­ive defin­i­tion of an arbit­ral award. Rather, its art­icle I.2 merely states that the term arbit­ral award includes not only awards made by arbit­rat­ors appoin­ted for each case, but also awards made by per­man­ent arbit­ral insti­tu­tions to which the parties have submitted.

Cri­terion (b), how­ever, is the fly in the oint­ment. Under sec­tion 27(1) IAA, our For­eign Inter­im Meas­ure is an arbit­ral award if it is an award, order or 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 is an arbit­ral tribunal?

There are two stat­utory defin­i­tions of an arbit­ral tribunal in the Inter­na­tion­al Arbit­ra­tion Act. Unfor­tu­nately, neither is applic­able, at least not directly.

The Part II-Only Definition

The first defin­i­tion is found in sec­tion 2(1) of the IAA. Accord­ing to this pro­vi­sion, for the pur­poses of part II of the Act, an 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 in accord­ance with the arbit­ra­tion rules agreed upon or adop­ted by the parties, includ­ing the arbit­ra­tion rules of an insti­tu­tion or organisation.

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

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

The Model Law-Only Definition

The second defin­i­tion of an arbit­ral tribunal is found in the First Sched­ule to the Inter­na­tion­al Arbit­ra­tion Act, which incor­por­ates the UNCITRAL Mod­el Law on Inter­na­tion­al Com­mer­cial Arbit­ra­tion, 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, the term ‘arbit­ral tribunal’ means a sole arbit­rat­or or a pan­el of arbitrators.

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

Statutory Interpretation

What do you do when a piece of legis­la­tion con­tains two leg­al defin­i­tions of a term, one for each of two sep­ar­ate parts of the legis­la­tion, but neither applies dir­ectly to a third part of the legislation?

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

The Singa­pore courts haven’t addressed this issue yet. [Update: they have now. On 7 Octo­ber 2022, the High Court con­firmed the view set out here in CVG v CVH [2022] SGHC 249.]

If it’s unclear how a leg­al pro­vi­sion should be read, and there’s no rel­ev­ant case law, we have to inter­pret that pro­vi­sion. There’s a law for that, the Inter­pret­a­tion Act.

The Interpretation Act

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

Put simply, it means that when we inter­pret the law, we must do so in accord­ance 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 can look at mater­i­al out­side that law.

In par­tic­u­lar, under 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.

Put simply, when we inter­pret the law, we can look at the min­ister­’s speech in Par­lia­ment when the law was made.

Here we go.

The Speech in Parliament

The stat­utory recog­ni­tion and inclu­sion of emer­gency arbit­rat­ors, although dir­ectly applic­able only to part II of the Inter­na­tion­al Arbit­ra­tion Act, came into force on 1 June 2012. At the same time, the defin­i­tion of an arbit­ral award in sec­tion 27(1) of the IAA was expan­ded to include inter­im meas­ures, such as those to secure an amount in dispute.

In Par­lia­ment, Law Min­is­ter K Shan­mugam said (Second Read­ing Speech by the Law Min­is­ter 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 seems to argue against the legis­lat­or’s inten­tion to include emer­gency arbit­rat­ors in the defin­i­tion of the arbit­ral tribunal. How­ever, this may only have been a start­ing point. For the Min­is­ter went on to say (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 declar­a­tions express legis­lat­ive sup­port for emer­gency arbit­rat­ors in inter­na­tion­al arbit­ra­tion. In par­tic­u­lar, they express the legis­lat­or’s wish that emer­gency arbit­rat­ors should have the same powers as an arbit­ral tribunal. This is a declar­a­tion of qual­it­at­ive equal­ity between emer­gency arbit­rat­ors and arbit­ral tribunals.

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

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

Compatibility with Other Law

The above pur­pos­ive inter­pret­a­tion of sec­tion 27(1) of the IAA – namely, its defin­i­tion of the arbit­ral tribunal – is not incon­sist­ent with either art­icle 2(b) of the Mod­el Law 1985 or the New York Con­ven­tion. These are laws that pred­ate the concept of emer­gency arbit­ra­tion. There’s simply no point of incompatibility.

Foreign Emergency Arbitrators

How­ever, the ques­tion remains as to wheth­er the above pur­pos­ive inter­pret­a­tion also sup­ports for­eign emer­gency arbitrators.

In this respect, 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) of the IAA, that is, the emer­gency arbit­rat­ors are appoin­ted in accord­ance with the arbit­ra­tion rules agreed upon or adop­ted by the parties, includ­ing the arbit­ra­tion rules of an insti­tu­tion or organisation.

On the oth­er hand, it seems to speak against for­eign emer­gency arbit­rat­ors that they are only recog­nised and included in sec­tion 2(1) of the IAA, that is, for part II of this Act, but nowhere in part III, which deals with for­eign awards. How­ever, this is a sys­tem­at­ic approach to inter­pret­a­tion which sec­tion 9A(1) of the Inter­pret­a­tion Act does not per­mit us to favour if it does not pro­mote the object or pur­pose of the Act.

Conclusion

A pur­pos­ive inter­pret­a­tion of the law sup­ports the view that our emer­gency arbit­rat­or in Hong Kong is an arbit­ral tribunal with­in the mean­ing of sec­tion 27(1) of the IAA. This is all the more so as it does­n’t con­flict with any oth­er applic­able law, namely the Mod­el Law 1985 or even the New York Convention.

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