Tang Boon Jek Jeffrey v Tan Poh Leng Stanley

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 22 June 2001
• Neutral Citation: [2001] SGCA 46
• Date: 22 June 2001
• Subject Matter: When arbitrator functus officio,Powers,Meaning of "final award",Power to revisit and reverse previous award,UNCITRAL Model Law on International Commercial Arbitration,Arbitration,Arbitral tribunal,International Arbitration Act (Cap 143A)
• Docket Number: Civil Appeal No 107 of 2000
• Published date: 19 September 2003
• Defendant Counsel: Philip Jeyaretnam and Yip Wai Lin Jamie (Helen Yeo & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Alvin Yeo Khirn Hai SC and Tan Kay Kheng (Wong Partnership)

JUDGMENT:

Curia Advisari Vult

1. This appeal raises a general question of law as to the power or jurisdiction of an arbitrator under the International Arbitration Act (Cap 143A) (IAA) and the UNCITRAL Model Law on International Commercial Arbitration (the Model Law) to revisit or reverse an award he has made. UNCITRAL is the acronym for United Nations Commission on International Trade Law. The Model Law is set out in the First Schedule to the IAA. At the hearing below, the judge set aside the further award rendered by the arbitrator on the ground that, when he made that further award, he was functus officio.

The facts

2. We shall first briefly set out the background facts giving rise to the application to set aside the further award. In 1994, the appellant, Mr Jeffrey Tang (Tang) and the respondent, Mr Stanley Tan (Tan), together with their respective group of investors, formed a joint venture corporation called Dynasty Pacific Group (DPG). Dispute arose between them which led to litigation in Australia. Pursuant to mediation, a Settlement Agreement dated 24 January 1998, was reached. In the Settlement Agreement there was an arbitration clause for the settlement of disputes arising thereunder. The DPG had basically two main lines of business property development and hotels. Under the Settlement Agreement, the businesses were duly divided between Tang and Tan and their respective associates. It also set out the details on how the division should be carried out.

3. However, disputes arose between the parties as to the obligations each party should fulfil under the Settlement Agreement. The disputes were referred to Mr Giam Chin Toon SC as arbitrator (the Arbitrator). There were two sets of disputes giving rise to two separate arbitration proceedings. We are here concerned with only the second arbitration. Before the Arbitrator, Tang was the respondent and Tan, the claimant. There were claims and counterclaims between the parties. One of the counterclaims brought by Tang was for a sum of A$1,375,762.64 (hereinafter referred to as the "A$1.3 million counterclaim"). On 10 January 2000 the Arbitrator made a reasoned award, with the following concluding results:-

"1. The claimants (Tans) claim be dismissed

2. The respondents (Tangs) counterclaim be dismissed.

3. This award is final save as to costs."

4. Two days later, on 12 January 2000, the solicitors for Tang wrote to the Arbitrator, pointing out that, although he had dismissed Tangs counterclaim, it would appear that an aspect of the counterclaim of Tang relating to cash deposits were left out by the Arbitrator and that the award in dismissing Tangs counterclaim did not refer to these cash deposits. Tangs solicitors accordingly asked the Arbitrator to make an additional award, pursuant to Article 33 of the Model Law.

5. On 17 January 2000, the Arbitrator issued an additional award wherein he acknowledged that he had omitted to address Tangs counterclaim relating to the seven cash deposits and duly made the award in respect thereof. However, as regards Tangs A$1.3 million counterclaim, the Arbitrator re-affirmed the 10 January 2000 award and refused to make any award in respect of that counterclaim because he did not think that Tang was entitled to it. The Arbitrator gave his reasons.

6. Following the delivery of this additional award, on 21 January 2000, Tangs solicitors wrote again to the Arbitrator raising two points. First, they sought further arguments before the Arbitrator relating to the A$1.3 million counterclaim on the ground that the Arbitrator appeared to have decided the matter on the basis of a point which was not argued before him. Second, they sought clarification as to whether Tang would be entitled to interest on the cash deposits which were to be refunded to him under the additional award of 17 January 2000.

7. The Arbitrator acceded to the request of Tang for further arguments and heard the parties on 31 January 2000. On 6 March 2000, the Arbitrator rendered "Additional Award II" wherein he dealt with not only the counterclaim for A$1.3 but also the question of interest on the cash deposits and the question of costs, which question was reserved under the award of 10 January 2000. On the A$1.3 million counterclaim, the Arbitrator stated that his previous interpretation of the relevant provision of the Settlement Agreement as set out in his Additional Award of 17 January 2000 was erroneous. He thus changed his mind and gave an award in respect of the A$1.3 million counterclaim with interest. This award will hereinafter be referred to as the "March award".

8. Accordingly, Tan applied by way of a motion to have the March 2000 award set aside.

Reasons given by Arbitrator

9. In the March award, the Arbitrator expressly addressed the question whether he had the jurisdiction or power to recall an award and alter it. We will now quote the relevant paragraphs of the award where he gave his reasons why he could do that:-

It is not in dispute that in the case of judgments pronounced by the courts, the Judge has the power to re-consider his verdict so long as the judgment has not been entered or perfected. There is no such procedure in an arbitration award. So, a judge can, like in the case of Lim Yam Teck v Lim Swee Cheng (1979) 1 MLJ 162 change his mind after giving further consideration to the matter. There is, therefore, a period in which a judge is permitted to re-consider the matter. Thereafter, if a decision is wrong, it would have to be rectified by a Court of Appeal.

Unfortunately, the position is less clear in an international arbitration award where the arbitrator desires to re-consider the matter. There are no direct authorities on the point. If an error is made, there are no express provisions whereby the decision could be rectified in a court of law. Great injustice would be caused in such a case. It is inconceivable that the law or public policy would permit such a situation.

In addition, it has been submitted by Counsel for the Respondent that since there is no procedure of registration or perfection of the Award, the equivalent period for an arbitrator could be when enforcement proceedings are applied for. I agree with this.

I am therefore of the view that an arbitrator can re-consider the award not only on the terms of Article 33(1) of the Model Law but under the general powers given to him to determine the rules and procedure of the tribunal which would include the power to re-consider an award before enforcement if the arbitrator so decide. If I have good reasons to re-consider the matter, I should be allowed to do it. Otherwise, an injustice would be perpetuated.

10. It will be seen that essentially the basis upon which the Arbitrator felt he had the jurisdiction or power to reconsider an award already delivered is the overriding consideration of justice so long as the award had not yet been enforced.

Court below

11. The judge below was of the view that the March award was a nullity because the Arbitrator was functus officio when he made that award. Having rendered an award, the powers which an arbitrator still possesses would only be those which were reserved under Article 33 of the Model Law. That article does not empower an arbitrator to recall an award with a view to reversing it.

12. As regards Tangs alternative argument, that the court should exercise the discretion conferred upon it under article 34(4) of the Model Law and afford the Arbitrator an opportunity to resume the hearing so that the ground to set aside the award could be eliminated, the judge said:-

Article 34(4) can be invoked only when there are irregularities in the award and not when the award is a nullity. Furthermore, the power to remit does not apply to an award made after the Arbitrator became functus officio.

Appeal

13. Counsel for Tang, Mr Alvin Yeo, put the issues which we are required to consider in this appeal under the following four heads:-

a. Whether the judge erred when he decided that the Arbitrator was functus officio when he made the Arbitration 2 Award;

b. If so, whether the Arbitrator had the jurisdiction to reconsider the Arbitration 2 Award as regards the claim for A$1,375,762.64 and to make the March Award;

c. whether the Respondent had successfully made out a case for setting aside under Article 34 of the Model Law;

d. In the alternative, whether the judge erred when he refused to remit the March Award to the Arbitrator pursuant to Article 34(4) of the Model Law.

14. As we see it, there is really only one main issue: was the Arbitrator functus officio vis--vis the A$1.3 million counterclaim when he made the March award. If he was, then the March award is a nullity and we do not think Article 34(4), which gives the court the discretion to remit a case back to the Arbitrator either to give the Arbitrator an opportunity to resume the arbitral proceedings or to take such other actions as will eliminate the grounds for setting aside, can be applied to a case such as this. Here, remitting the case back to the Arbitrator will not eliminate the problem.

Relevant Provisions

15. It is common ground that the proceeding before the Arbitrator was an international arbitration, governed by the IAA. By s 3 of the IAA, the Model Law (except Chapter VIII) is to have the force of law. The relevant provisions are Articles 32-34 of the Model Law which provide:-

Article 32

(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this Article.

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when:

(a) --- Not relevant

(b) --- Not relevant

(c) --- Not relevant

(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of Articles 33 and 34(4). (Emphasis added).

Article 33

(1) Within thirty days of...