Tan Poh Leng Stanley v Tang Boon Jek Jeffrey

• Judge: G P Selvam J
• Judgment Date: 30 November 2000
• Neutral Citation: [2000] SGHC 260
• Citation: [2000] SGHC 260
• Defendant Counsel: Alvin Yeo, Tan Kay Kheng and Emily Yeow (Wong Partnership)
• Published date: 19 September 2003
• Plaintiff Counsel: Philip Jeyaretnam (Helen Yeo & Partners)
• Date: 30 November 2000
• Docket Number: Originating Motion No 14 of 2000
• Court: High Court (Singapore)
• Subject Matter: art s 16 & 34 UNCITRAL Model Law on International Commercial Arbitration,Arbitrator,Whether application made out of time,Whether court can remit null award to arbitrator,Arbitration,Whether arbitration has power to recall and reverse previous final award,art 34 (4)UNCITRAL Model Law on International Commercial Arbitration,Powers of arbitrator,Arbitral tribunal,Award,Application to set aside,International Arbitration Act (Cap 143A),Time limit for making application

: The final award

The question for determination in this case is whether an arbitrator has the power to revisit and reverse a final award he made disallowing a claim. The chain of events that brought the parties before me are as follows.

On 10 January 2000 the arbitrator made a final award. I shall call it `the January award`. It ended with four lines of conclusion:

I find hold award and adjudge as follows:

1 The claimants` claim be dismissed.

2 The respondents` counterclaim be dismissed.

3 The award is final save as to costs.

[Italics here and hereafter added by me.]

Those lines of conclusion were at the end of a 37-page award. It contained a two-page introduction and a body of 136 paragraphs. He gave it this title: Arbitrator`s Award (Arbitration 2). There was an earlier award which does not concern me.

Seven days later, on 17 January 2000, the arbitrator added something to the award mentioned above. He gave it this title `Additional Award (Arbitration 2)`. I shall call this `the clarification award`. Paragraph 10 made this clarification:

For the avoidance of any doubt, with regard to the issue of the US$2.6m deposit (of which a sum of A$1,375,762.64 is an item of the respondents` counterclaim being the amount in excess over A$3,000,000 pursuant to cl 2(A)2(b) of the SA), I agree with the claimants that cl 2(A)2(b) of the SA must be read literally as applying to the case where DA instructs ANZ Bank (Hong Kong) to transfer cash deposits in United States Dollars deposited by DA with ANZ Bank (Hong Kong) to Dynasty Pacific Group Pty Ltd (`DPG Pty Ltd`). Here the respondents admit in para 111 of the respondents` closing written submissions that it was STA who procured the appropriation of this deposit in partial satisfaction of DPG Pty Ltd`s liability. This approach is not inconsistent with the literal approach adopted by me in Arbitration 1 in dealing with cl 2(C) of the SA. I reiterate the general position that I have taken in my awards in Arbitration 1 and Arbitration 2, which is, that if a claim falls foul of the wording of the SA, that claim cannot be allowed. This item of counterclaim has been dismissed in my award of 10 January 2000.

The clarification award contained the arbitrator`s decision on another matter which he had omitted. I am not concerned with it either.

The matter did not end there. On 31 January 2000 the arbitrator at the request of the respondent before me had a fresh hearing with counsel for the parties concerned. The parties before me are Stanley Tan Poh Leng, one of the seven claimants before the arbitrator and Jeffrey Tang Book Jek, one of the two respondents before the arbitrator. The other parties were not concerned with the matter at issue. At the fresh hearing Jeffrey Tang wanted the arbitrator to make a reversal of the January award which the arbitrator said was a final award. Counsel for Stanley Tan objected to the arbitrator revisiting the decision by dismissing Jeffrey Tang`s claim. Stanley Tan`s contention was that the arbitrator had completed and terminated the hearing by making a final award. He was functus officio. He had exhausted his mandate. Accordingly it was outside the arbitration agreement which conferred the arbitration power on the arbitrator. All the same the arbitrator went ahead with the hearing. On 6 March 2000 he made another award. He called it `Additional Award II`. I shall call it the `March Award`. By this award the arbitrator made a volte facie and made this award:

I find hold award and adjudge that the claimants pay the respondents the sum of A$1,375,762.64 together with interest at the rate of 6% per annum from the date of the award dated 10 January 2000 to the date of payment.

The March award included matters which do not concern me. Stanley Tan on 29 April 2000 filed the notice of OM 14/2000 which is before me. By that notice of motion Stanley Tan asked for the following principal order:

That paras 19 to 34 of Additional Award II (Arbitration 2) delivered on 6 March 2000 by the arbitrator in an arbitration between the applicant and the respondent pursuant to an arbitration agreement contained in a settlement agreement dated 24 January 1998 and a supplemental agreement contained in or evidenced by an exchange of letters between the respective parties` solicitors dated 6 April 1999 be set aside.

Preliminary point on procedure

Before I consider the merits of the motion there is a preliminary procedural matter to decide. This was a contention on behalf of Jeffrey Tang that the motion was filed out of time. It was contended for Jeffrey Tang that it should have been made within 30 days.

To understand this procedural and the substantive issue it is necessary to take in the relevant provisions of the International Arbitration Act (Cap 143A). I shall call it `the Act`.

The Act provides a code for the conduct of international commercial arbitrations based on the Model Law on International Commercial Arbitration. The Model Law was adopted by the United Nations Commission on International Trade Law and Conciliatory Proceedings.

The Act defines `Model Law` as follows:

The UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21st June 1985, the text in English of which is set out in the First Schedule.:

The Model Law deals with the constitution and powers of the arbitral tribunal and regulates the process of arbitration. It is not a complete body of law. Provisions in the Act complement the powers of the arbitration tribunal. They also empower the High Court to stay court proceedings, set aside an award made in the purported jurisdiction of the arbitration tribunal and for applications to the High Court.

The preliminary point calls for a consideration of art 16 of the Model Law. It reads as follows:

Article 16: Competence of arbitral tribunal to rule on its jurisdiction.

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this Article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specified in Article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.`

On a plain reading of art 16, the stipulation of 30 days for appealing to the High Court on the issue of jurisdiction applies only when the arbitral tribunal rules as a preliminary question that it has jurisdiction. Furthermore, the tribunal cannot be compelled to make a preliminary ruling on the jurisdiction issue. Additionally, the right to request the High Court for a decision on the...