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  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.
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.
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.
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?
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.
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.
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  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.
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.
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.