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.
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.
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.
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?
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.
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.
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.
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.
29. Sir, I beg to move.
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.
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.