COT v COU and others and other appeals 2023 SGCA 31 - 11 October 2023
Country
Year
2023
Summary
The policy of minimal curial intervention in arbitral proceedings is well settled in our arbitration jurisprudence (BLC and others v BLB and another [2014] 4 SLR 79 at [51]). This policy is engendered by considerations of party autonomy and the finality of the arbitral process, dictating that the courts should act with a view to "respecting and preserving the autonomy of the arbitral process" (Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 ("Soh Beng Tee") at [59]). Thus, curial intervention is warranted only on limited grounds. In Singapore, the grounds on which the seat court can set aside an arbitral award are exhaustively prescribed in s 24 of the International Arbitration Act 1994 (2020 Rev Ed) ("IAA") and Article 34 of the UNCITRAL Model Law on International Commercial Arbitration, as adopted in Singapore by virtue of s 3(1) read together with the First Schedule of the IAA ("the Model Law").
Critically, the seat court has no jurisdiction to examine the substantive merits of the arbitration. As this court stated in AKN and another v ALC and others and other appeals [2015] 3 SLR 488 ("AKN") at [37], an integral feature and consequence of party autonomy is that parties choose their arbitrators and are bound by the decisions of their chosen arbitrators.
It has been observed that this minimal-intervention policy reflects the expectation that courts "should supervise with a light touch but assist with a strong hand" (Michael Hwang, "Commercial Courts and International Arbitration - Competitors or Partners?" (2015) 31 Arbitration International 193 at 194). But how, then, should the courts toe this fine line?
This case presents the challenge of determining the limits of curial intervention where the jurisdictional challenge bleeds into the merits of the arbitral award. When the jurisdictional challenge is raised on the premise that no arbitration agreement was concluded, it is inevitable for the seat court to conduct a limited review of the merits of the underlying dispute - in particular, the issue as regards the existence of the contract containing the arbitration agreement. Therein lies the tension in determining the line between a jurisdictional and a substantive challenge.
In their respective applications to set aside the arbitral award ("the Award"), the three appellants contended that the arbitral tribunal ("the Tribunal") lacked jurisdiction because there was no concluded contract and hence no binding arbitration agreement. Specifically, the appellants claimed that there was no concluded contract since there had been no consensus ad idem on the terms of the contract. The question before this court is whether it is open to the appellants to dispute the existence of certain terms and obligations of the contract in the event the court decides that a valid arbitration agreement was reached between the parties. This issue provides a fitting opportunity for this court to expound on the tension we have identified above, and to explain where the line should be drawn and why it should be so drawn to ensure that the exercise of the seat court's supervisory jurisdiction is kept within its limited statutory remit.
The appellants raise three discrete bases to challenge the Award: (a) there is no valid arbitration agreement between the parties; (b) the Tribunal exceeded the scope of its jurisdiction; and (c) there was a breach of natural justice. Nevertheless, the common thread in each of the three bases is the existence or lack thereof of a contract containing an arbitration agreement. As we will explain below, our decision on this has consequences on the remaining bases of challenge.
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