ABC Co v XYZ Co Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Judith Prakash J
• Judgment Date: 08 May 2003
• Neutral Citation: [2003] SGHC 107
• Citation: [2003] SGHC 107
• Subject Matter: Article 34 of the UNCITRAL Model Law on International Commercial Arbitration,Whether new grounds may be added to originating motion after expiry of prescribed three-month period,Originating processes,Civil Procedure,Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 20 r 5,Interim award,Arbitration,Award,Party seeking to set aside interim award,Application to amend originating motion seeking to set aside arbitration award after relevant limitation period
• Defendant Counsel: Alvin Yeo, SC, with Tay Peng Cheng (Wong Partnership)
• Docket Number: Originating Motion No 600027 of (Summons in Chambers No 601646 of 2002)
• Date: 08 May 2003
• Plaintiff Counsel: VK Rajah, SC, with Allen Choong and Priya Selvam (Rajan & Tann)
• Published date: 02 October 2003

1 This summons in chambers raises an interesting point on the application of Article 34 of the UNCITRAL Model Law on International Commercial Arbitration (‘the Model Law’) which is part of our law by reason of the International Arbitration Act (Cap 143A) (‘the Act’).

2 In respect of an arbitration in Singapore which is an international arbitration within the meaning of s 5 of the Act, the governing legislation is the Model Law as implemented by the Act. As a result, the courts of Singapore have only such jurisdiction over the proceedings as is specifically conferred on them by the Act and the Model Law. The principle of party autonomy is one that is central to the Model Law. It is a principle that must be respected by the courts whenever they have cause to deal with any issues arising in relation to an international arbitration. Thus, the attitude to be adopted when a court is faced with such an issue is to look first to the Model Law for an indication as to how such issue is to be treated and, in the absence of such indication, to apply the applicable principles of the general law in the manner best suited to uphold the parties’ choice of arbitration as the appropriate method of dispute resolution.

3 Article 34 of the Model Law deals with the recourse that a party to an arbitration has when he is not satisfied with an arbitral award. The title of this article is ‘Application for setting aside as exclusive recourse against arbitral reward’ and the Article by ¶ (1) makes it clear that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with ¶ (2) and ¶ (3) of the Article. Paragraph (2) amplifies ¶ (1) by enumerating the grounds which the applicant has to prove in order to succeed in his application to set aside an award. The Model Law provides six such grounds and s 24 of the Act provides two extra grounds for parties to an international arbitration in Singapore. Paragraph (3) of Article 34 sets out the time limit for the making of an application to set aside. It states:

An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.

4 Article 34 does not provide the procedure by which recourse to the courts is to be had. The drafters left this to the domestic law of the various states implementing the Model Law. In our case, the procedure has been provided by O 69A of the Rules of Court 1996. Rule 2(1) of that order provides that every application to the court to set aside an award under s 24 of the Act or Article 34(2) of the Model Law must be made by originating motion to a single judge. By r 2(4), such application has to be made within three months from the date of receipt by the applicant of the award or corrected award. This rule echoes the time limit set by Article 34(3). The references to O 69A are references to that Order as it existed in October 2001. In April 2002, it was amended. These amendments specify that the notice of motion must state the grounds on which the application is made and must be accompanied by an affidavit that exhibits the relevant documents and sets out the evidence the applicant relies on.

The parties and the application

5 The applicants and the respondents here, both foreign companies, were respectively, the claimants and respondents in an international arbitration conducted according to the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The arbitration started in 1998 and took place in Singapore. Both parties put in claims. On 10 September 2001, an interim award (‘the Award’) was issued by the arbitral tribunal. Basically, the claims of the applicants were dismissed and the counterclaims of the respondents were allowed. The Award dealt with issues of liability only leaving issues of causation and quantum to be decided later.

6 On 10 October 2001, well within the time limit specified by the Model Law, the applicants applied by way of originating motion for the award to be set aside ‘insofar as it purports to make the determinations or findings pertaining to the causes of action set out in the schedule attached [thereto], all of which arose prior to 15 November 1994’. The motion stated that the grounds of the application were that:

1 The Arbitral Tribunal had, by their determination that clause 2.1(a) of the Assignment dated 15 November 1994, entered into by the Respondents, assigned absolutely to a consortium of banks all claims that had arisen as at the date of the Assignment, thereby excluded from the scope of the arbitration all the Respondents’ counterclaims set out in the schedule attached hereto, all of which had arisen or accrued prior to 15 November 1994.

2 Notwithstanding such determination, the Arbitral Tribunal had, in excess of their jurisdiction, purported to make determinations and findings in respect of the said causes of action set out in the schedule attached hereto, all of which had arisen or accrued prior to 15 November 1994.

The above description of their grounds made it clear that the applicants were seeking to bring their case within Article 34(2)(a)(iii) which provides that an award may be...