Enforcing arbitral awards in Singapore

The legislative framework for the recognition and enforcement of arbitral awards is based on the Model Law on International Commercial Arbitration (hereinafter “Model Law”) as adopted by the United Nations Commission on International Trade Law (hereinafter “UNCITRAL”). The Model Law (except Chapter VIII on recognition and enforcement of awards) has the force of law in Singapore.

The key legislations are as follow:

• the International Arbitration Act (Chapter 143A) (hereinafter “IAA”)[1];
• the Arbitration Act (Chapter 10) (hereinafter “AA”)[2];
• the Rules of Court (hereinafter “ROC”)[3]; and
• the Arbitration (International Investment Disputes) Act (Chapter 11).

International Arbitration Act

The IAA is divided into two parts—Part II and Part III.

Part II of the IAA applies to international awards. Section 2 of the IAA defines an arbitral award as “a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any orders or directions made under section 12” (which relates to the various powers of arbitral tribunals in making orders and giving directions). Section 5(2) of the IAA (mirroring Article 1(3) of the Model Law) provides that an arbitration is international if:

1. at least one party has its place of business outside Singapore; or
2. one of the following is different from the place of business of at least one party:
   • the seat of arbitration;
   • any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
3. the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.

In contrast, Part III of the IAA applies to foreign awards.  Section 27 of the IAA defines a foreign award as “an arbitral award made in pursuance of an arbitration agreement in the territory of a Convention country other than Singapore”. Section 27 further provides that an arbitral award in Part III of the IAA “has the same meaning as in the [New York] Convention”. In contrast to international awards, section 27 specifies that a foreign award “also includes 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 (i)” of the IAA.

Arbitration Act

The AA applies to domestic awards. Section 3 of the AA specifies that the AA “shall apply to any arbitration where the place of arbitration is Singapore and where Part II of the [IAA] does not apply to that arbitration”.

Rules of Court

The ROC collectively form a single piece of legislation which is found in the Supreme Court of Judicature Act (Chapter 322, Section 80) (hereinafter “SCJA”). The ROC regulate and prescribe the procedure and practice to be followed in enforcement proceedings before the High Court and the Court of Appeal.[4]

Arbitration (International Investment Disputes) Act

The Arbitration (International Investment Disputes) Act, for its part, gives effect to the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention).

[1] “International Arbitration Act” (Singapore Statutes Online) <https://sso.agc.gov.sg/Act/IAA1994> accessed June 24, 2020.

[2] “Arbitration Act ”(Singapore Statutes Online) <https://sso.agc.gov.sg/Act/AA2001> accessed June 24, 2020.

[3] “Rules of Court” (Singapore Statutes Online) <https://sso.agc.gov.sg/SL/SCJA1969-R5> accessed June 24, 2020.

[4] “Rules of Court” (Supreme Court) <https://www.supremecourt.gov.sg/rules/court-processes/rules-of-court> accessed June 24, 2020.

Singapore is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “New York Convention”). It acceded to the New York Convention on 21 August 1986. Singapore has made the reciprocity reservation under Article I (3).

The competent national court for the recognition and enforcement of all awards in Singapore is the High Court (ss. 8(1) & 27(1) IAA; s. 2(1) AA).

As a brief introduction to the Singapore court hierarchy, the Supreme Court is comprised of the High Court and the Court of Appeal. The State Courts are comprised of the District Courts, Magistrates‘ Courts, Coroners‘ Court, Small Claims Tribunals, and the Juvenile Court.

An application for leave to enforce an award must be made to the High Court.

Order 69 rule 14 and Order 69A rule 6 of the ROC are relevant. They set out the detailed procedure in an application for leave to enforce an award. Order 69 applies to the AA; Order 69A applies to the IAA. Both rules are substantially similar and may be discussed together.

First, an application for leave to enforce an award may be made ex parte and must be supported by an affidavit.

For domestic awards, the affidavit must exhibit “the arbitration agreement or any record of the content of the arbitration agreement and the original award or, in either case, a copy thereof”.

For international awards, the affidavit must exhibit “the arbitration agreement or any record of the content of the arbitration agreement and the duly authenticated original award or, in either case, a duly certified copy thereof”.

For foreign awards, the affidavit must exhibitthe arbitration agreement and the duly authenticated original award or, in either case, a duly certified copy thereof”.

For all types of awards, the affidavit must also state the name and the usual or last known place of abode or business of both the applicant (hereinafter “award-creditor”) and the person or entity against whom the award is sought to be enforced (hereinafter “award-debtor”). As the case may require, the affidavit must also state either that the award has not been complied with, or the extent to which it has not been complied with, at the date of the application.

Lastly, an order giving leave must be drawn up by or on behalf of the award-creditor and must be served on the award-debtor by delivering a copy to him personally or by sending a copy to him at his usual or last known place of abode or business or in such other manner as the High Court may direct.

There are no specific jurisdictional requirements.

Singapore court fees are dealt within several statutory regulations and are payable at various stages in civil proceedings. Court fees are determined by the amount in dispute, the hierarchy of the court and the number of judges involved. For example, the fees are different in cases where the amount in dispute is up to $1 million Singapore Dollar and those where the amount in dispute is more than $1 million Singapore Dollar. Similarly, a hearing before three judges will cost more than a hearing before a single judge.

Fees are payable for document filing, sealing or provision. Hearing fees are incurred when the parties are ready for the hearing and are usually paid by the plaintiff, the appellant, or the applicant, unless otherwise ordered by the High Court.[1]

Specifically, court fees of S$3,300 are payable upon filing of the originating summons before a single judge (O. 110 r. 47, ROC). For the actual filing of  the originating summons, the applicable filing fee is S$500 (for matters with a value of up to S$1 million) or S$1,000 (for matters with a value of  more than S$1 million) (Appendix B, ROC). For filing the supporting affidavit, the fees are S$2 per page for every page or part thereof (including any exhibit annexed thereto or produced therewith), subject to a minimum fee of S$50 per affidavit (Appendix B, ROC). Additional court fees are payable when applying for execution against the award-debtor’s assets.

Further detailed fee guidelines may be found in Appendix B, Order 90A rules 1 and 3, and Order 110 rule 47 of the ROC.

[1] “Court Fees and Hearing Fees” (Supreme Court) <https://www.supremecourt.gov.sg/rules/court-processes/civil-proceedings/commencement-of-an-action/court-fees-and-hearing-fees> accessed June 24, 2020.

Costs are a matter of court discretion. However, successful applicants will be expected to recover reasonable costs—including the costs of the enforcement proceedings—subject to reasonable conduct.

Enforcement proceedings in Singapore involve two stages:[1]

(a) Ex parte application

An application for leave to enforce an award (domestic and foreign) may be made ex parte.

Once the formal requirements (as discussed above) in Order 69 rule 14 or Order 69A rule 6 are met, the High Court will make an order to grant leave for the award-creditor to enforce.

The order giving leave must be served on the award-debtor by delivering a copy to him personally or by sending a copy to him at his usual or last known place of abode or business or in such other manner as the High Court may direct (O. 69 r. 14(2), O. 69A r. 6(2), ROC).

For all awards, a 14-day time limit (or any other time limit fixed by the High Court for out of jurisdiction service of the enforcement order) for the award-debtor to apply to set aside the enforcement order starts to run upon its effective service. During this time period, the award cannot be enforced. The award may only be enforced after the expiration of this time period (O. 69 r. 14(4), O. 69A r. 6(4), ROC).

If no challenge is effectively mounted against the order within the time limit, a judgment may be entered in terms of the award. The judgment in terms of the award may then be used to enforce against known assets of the award-debtor in Singapore.

(b) Inter partes proceeding in the event of a challenge by award-debtor

However, if the award-debtor manages to challenge the enforcement order within the time limit, the enforcement of the award will be stayed further until the challenge is finally disposed of (O. 69 r. 14(4), O. 69A r. 6(4), ROC).

[1] Lin & Chong, Enforcement of Arbitral Awards in Singapore: Pitfalls and Strategies [2019] SAL Prac 1, paras. 5-8.

For domestic awards, the following documents are required under Order 69 rule 14(1):

• the arbitration agreement or any record of the content of the arbitration agreement or, in either case, a copy thereof; and
• the original award or a copy thereof.

For international awards, the following documents are required under Order 69A rule 6(1):

• the arbitration agreement or any record of the content of the arbitration agreement or, in either case, a duly certified copy thereof;
• the duly authenticated original award or a certified copy thereof; and
• where the award or arbitration agreement is in a foreign language, a translation in the English language.

For foreign awards, section 30 of the IAA requires the following documents to be produced as evidence to the High Court:

• the duly authenticated original award or a duly certified copy thereof;
• the original arbitration agreement under which the award purports to have been made, or a duly certified copy thereof; and
• where the award or arbitration agreement is in a foreign language, a translation in the English language.

Where the award or the arbitration agreement is in a foreign language, a certified translation into English is required. The English translation must be duly certified as a correct translation by a sworn translator or by an official or by a diplomatic or consular agent of the country in which the award was made (for foreign and international awards).

Companies in legal proceedings must normally be represented by qualified lawyers. However, the Supreme Court may allow an application to be made by the company for an officer of the company to act on its behalf in legal proceedings. The court will approve if it is satisfied that the officer has been authorised by the company to do so, and it is appropriate to allow the officer to act on behalf of the company in the circumstances of the case.

As a starting point, service of documents is governed by Order 62 of the ROC. The regulatory framework for service of documents consists of personal service and ordinary service.

Order 62 rule 1 of the ROC provides that personal service is not required “unless the document is one which by an express provision of [the ROC] or by order of the [High] Court is required to be so served.” The High Court also has the discretion to “dispense with the requirement for personal service”.

(a) Personal service

Personal service must be effected by a process server of the High Court or by a solicitor or a solicitor’s clerk fulfilling certain conditions (O. 62 r. 2(1)). Personal service is effected when a sealed copy (for originating processes – which are defined under O. 5 r. 3 as “proceedings by which an application is to be made to the Court or a Judge thereof under any written law”) or a copy of the document (any other case) is left with the person to be served (O. 62 r. 3(1)). Personal service on body corporate is effected when the document is served on the chairman or president of the body, or the secretary, treasurer or other similar officer thereof (O. 62 r.4).

(b) Ordinary service

Ordinary service may be effected by leaving the document at the proper address of the person to be served, by post, by FAX, or in any other manner agreed between the parties or directed by the High Court (O. 62 r. 6(1)). Order 62 rule 6(4) specifically allowed the High Court to direct the service by electronic mail or Internet transmission.

In an interesting development in October 2016, a court in Singapore accepted the notification on a defendant of a civil suit by WhatsApp after failed attempts to serve the court papers on him personally. State Courts deputy registrar Georgina Lum approved the application by R&D Pharmaceuticals to show that the defendant had been served the documents by recognising the transmission by WhatsApp as „sufficient“ for the purpose. [1]

(c) Service to a party outside of the jurisdiction

The general service process out of Singapore is detailed in Order 11 of the ROC. Service out of jurisdiction in domestic arbitral proceedings is governed by Order 69 rule 10 with reference to Order 11, and service out of jurisdiction in the IAA is governed by Order 69A rule 4 with reference to Order 11. Orders 69 and 69A work together to allow originating summons to be served out of Singapore for both domestic and foreign arbitrations with the leave of the High Court.

An application for the grant of leave under either Rule must be supported by an affidavit stating the ground on which the application is made and showing in what place or country the person to be served is, or probably may be found. No such leave shall be granted unless it shall be made sufficiently to appear to the High Court that the case is a proper one for service out of the jurisdiction under either Rule.

Order 11, Rules 3, 4 and 6 apply in relation to any originating summons or order as abovementioned. Order 11 must be read in light of the High Court judgment Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v. PT Humpuss Intermoda Transportasi TBK and another [2015] SGHC 144 (hereinafter “Humpuss”), which effectively lifted the old prohibition against private means of service out of Singapore as decided by Ong & Co. v. Chow YL Carl [1987] SLR(R) 281.

Chong J in Humpuss (paragraphs 58-62) clarified that the number of ways to serve a writ outside Singapore depends on whether the defendant resides in:

1. Malaysia and Brunei (seven methods);
2. a Civil Procedure Convention country (five methods); or
3. a non-Civil Procedure Convention country (six methods).

The four universal methods are:

1. personal service without contravening the law of the foreign jurisdiction (r. 3(1) & r. 3(2));
2. substituted service with leave of court without contravening the law of the foreign jurisdiction (r. 3(1) & r. 3(2));
3. service by a method specifically authorised by the law of the foreign jurisdiction for the service of foreign process (r. 3(3)); and
4. service through a Singapore consular authority without contravening the law of the foreign jurisdiction (r. 4(1)(b) & r. 4(2)(b)).

If the award-debtor resides in Malaysia or Brunei, the three additional methods are:

1. service through the government of Malaysia or Brunei (r. 3(8)(a) & r. 4(2)(a));
2. service by a method recognised in either Malaysia or Brunei for the service of domestic process issued by the Malaysian and Bruneian courts without contravening Malaysian or Bruneian law (r. 3(8)(a) & r. 4(2)(c)); and
3. by post from the Registrar of the Singapore court to the judicial officer exercising civil jurisdiction in the territory in which the defendant resides (r. 3(8)(b)).

If the award-debtor resides in a country with which Singapore has concluded a Civil Procedure Convention, the additional method is (next to the four universal ones mentioned above) service through the judicial authorities of the foreign jurisdiction (r. 4(1)(a)).

If the award-debtor resides in a country with which Singapore has not concluded a Civil Procedure Convention, the two additional methods are (next to the four universal ones mentioned above): (i) service through the government of the foreign jurisdiction (r. 4(2)(a)); and (ii) service by a method recognised by the law of the foreign jurisdiction for the service of domestic process issued by the courts of that country without contravening the law of that country (r. 4(2)(c)).

[1] Vijayan KC, “Court Nod for Civil Suit Papers to Be Served via WhatsApp” (The Straits Times October 19, 2016) <https://www.straitstimes.com/singapore/courts-crime/court-nod-for-civil-suit-papers-to-be-served-via-whatsapp> accessed June 24, 2020.

Partial and interim awards are enforceable in Singapore. Section 2 of both the IAA and AA define an award to mean “a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award” but excludes any order or direction made under section 12 of the IAA and section 28 of the AA. These two sections describe the powers exercisable by arbitral tribunals in international arbitrations and domestic arbitrations respectively.

Likewise, under section 27 of the IAA, foreign partial and interim awards may be recognized.

The grounds for refusing recognition of arbitral awards are set out in section 48(1) of the AA and section 31 of the IAA. They are the same grounds as the ones contained in Article V of the New York Convention.

Furthermore, section 24 of the IAA states that notwithstanding Article 34(1) and in addition to Article 34(2) of the Model Law, the High Court may set aside the award if the making of the award was induced or affected by fraud or corruption, or a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.

As both the IAA and the AA incorporate the UNCITRAL Model Law, there is no difference in the requirements to refuse recognition of an award between domestic, international, and foreign awards.

As a preliminary note, Singaporean public policy applies regardless of whether an award is domestic, international or foreign. Both section 48(1)(b)(ii) of the AA and section 31(4)(b) of the IAA state that the High Court may refuse to enforce the award if it finds that the enforcement of the award would be contrary to the public policy of Singapore.

Former Chief Justice Chan in the Singapore Court of Appeal decision PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597 held that the concept of public policy under the IAA encompassed a narrow scope. He wrote at paragraph 59 that “[public policy] should only operate in instances where the upholding of an arbitral award would ‘shock the conscience’ … or is ‘clearly injurious to the public good or … wholly offensive to the ordinary reasonable and fully informed member of the public’, … or where it violates the forum’s most basic notion of morality and justice.”

Thus, the threshold is very high. 

Under sections 19 and 29 of the IAA and section 46 of the AA, any award on an arbitration agreement may, by leave of the High Court or a Judge thereof, be enforced in the same manner as a judgment or an order to the same effect and, where leave is so given, judgment may be entered in terms of the award.

Subject to the provisions of the SCJA, any party that is unsatisfied with a decision made by the High Court in a civil matter may appeal to the Court of Appeal to set aside or vary the decision.[1]

[1] “Appeals from a High Court Decision to the Court of Appeal” (Supreme Court) <https://www.supremecourt.gov.sg/rules/court-processes/civil-proceedings/the-appeal-process/appealing-from-a-high-court-decision-to-the-court-of-appeal> accessed June 24, 2020.

The only remedy available against a High Court decision refusing to recognize an arbitral award is a regular appeal against that award in the Court of Appeal by leave of the High Court. An automatic right of appeal exists where the High Court refuses to grant leave to appeal against a judgment or an order of the High Court (O. 57 r. 2A, ROC).

Yes. Pursuant to the ROC (O. 18 r. 17), employing a set-off claim as a defence in enforcement proceedings is possible.

Section 31(2)(f) of the IAA (reflecting Article V(1)(e) of  the New York Convention) provides that the High Court may refuse enforcement of a foreign award if the award has not yet become binding on the parties to the arbitral award or has been set aside or suspended by a competent authority at the seat of the arbitration.

In the landmark Court of Appeal case PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV and others and another appeal [2013] SGCA 57, Menon CJ expressed “serious doubt” (albeit only as an obiter comment) as to whether the courts in Singapore would enforce an award that has already been set aside at the seat of arbitration.

Courts in Singapore have wide-ranging powers to order interim measures against assets, whether specifically in the arbitration context or beyond.

The High Court has the power under section 12A(2) of the IAA and section 31(1) of the AA to order:

• the preservation, interim custody or sale of any property which is or forms part of the subject-matter of the disputes;
• samples to be taken from, or any observation to be made of or experiment conducted upon, any property which is or forms part of the subject-matter of the dispute;
• the preservation and interim custody of any evidence for the purposes of the proceedings;
• securing the amount in dispute;
• ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and
• an interim injunction or any other interim measure.

It should be noted that although the High Court has extensive powers as mentioned above, it may refuse to make an order if the fact that the seat of arbitration is outside Singapore makes it inappropriate to make such interim orders (s. 12A(3) IAA, s. 28(3) AA).

There are a few situations where a security for costs may be requested.

Under section 7 of both the AA and IAA, where a court has already stayed proceedings under section 6 and where property has been arrested or bail or other security has been given, then the court may order that the property arrested be retained as security, or that the stay be conditional on the provision of equivalent security.

Section 31(5) of the IAA also envisages the scenario where enforcement of a foreign award is sought. If the High Court is satisfied that an application for the setting aside or for the suspension of the award has been made to a competent authority of the seat of arbitration, then it may adjourn the proceedings, and order the award-debtor to give suitable security.

The COVID-19 (Temporary Measures) Act (hereinafter “CTMA”) was enacted on 7 April 2020. The CTMA seeks to offer temporary relief to businesses and individuals who are unable to perform their contractual obligations due on or after 1 February 2020 because of COVID-19. The CTMA covers relevant contractual obligations that are to be performed on or after 1 February 2020, for contracts that were entered into before 25 March 2020.[1]

The CTMA prohibits the counterparty to the contractual obligation from taking a list of actions, which include the enforcement against a notifying party or its guarantor or surety of a judgment of a court or an arbitral award.

The prohibition will continue until any one of the following three conditions is met.

1. The first condition is the expiry of a prescribed period for the CTMA to be effective. The CTMA is preliminarily effective for a period of six months from 20 April 2020 up to and including 19 October 2020. It may be extended or shortened by a period determined by the Minister for Law or the Minister for Finance. In any case, the CTMA will not last beyond one year.
2. The second condition is that the notification for relief is withdrawn by the award-debtor. To benefit from the CTMA, the award-debtor must serve a notification for relief on the counterparty to the contract and any guarantor or surety for its obligation in the contract.
3. The last condition relates to where the assessor has determined that the CTMA does not apply to the issue in question. As part of the CTMA, a group of assessors are appointed by the Minister for Law to resolve disputes arising from the application of the CTMA. The assessors will decide whether the case in question falls within the ambit of the CTMA. They have the power to grant reliefs that are just and equitable in the circumstances. The decisions will be final and not appealable. Legal representation by lawyers is not permitted and each party must bear its own costs for the determination proceedings before the assessors.

Therefore, when any one of the above conditions is met, the enforcement of arbitral award is possible again.

[1] “About the COVID-19 (Temporary Measures) (Amendment) Bill 2020” (Ministry of Law) <https://www.mlaw.gov.sg/covid19-relief/> accessed June 24, 2020.