No U-Turns Ahead: Singapore Court of Appeal holds that commencement of court proceedings may lose you the right to later rely on arbitration agreements

In the recent landmark decision of Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd [2018] SGCA 63, the Singapore Court of Appeal held that the commencement of court proceedings notwithstanding the existence of a binding arbitration agreement and without any explanation or qualification is in and of itself sufficient to constitute a prima facie repudiation of the arbitration agreement. Counterparties who have accepted the court’s jurisdiction would correspondingly be deemed to have accepted the repudiatory breach, and will also no longer be entitled to insist on adherence with the arbitration agreement.

The Singapore Court of Appeal’s decision is noteworthy as it departs from longstanding authority that the mere commencement of litigation proceedings would not constitute repudiation of the arbitration agreement. The Court also provides important guidance to parties to Singapore seated arbitrations on whether (and when) it is appropriate to commence litigation in circumstances where an arbitration agreement exists, and how to react if a counterparty does so.  We analyse the decision below.

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Cukurova v Sonera: Privy Council dismisses backdoor attempt to challenge tribunal’s findings at the enforcement stage

In the case of Cukurova Holdings AS v Sonera Holding BV [2014] UKPC 15, the Privy Council considered an appeal from the Court of Appeal of the BVI. The appellant (Cukurova) argued that permission to enforce an ICC arbitration award as a judgment should be set aside on the following grounds: (i) the tribunal lacked jurisdiction to grant the relief awarded to the claimant (Sonera); (ii) Cukurova was unable to present its case; and (iii) enforcement of the award would be contrary to public policy of the BVI.

In a pro-enforcement decision, the Privy Council dismissed Cukurova’s appeal on all three grounds and restated that the role of an enforcing court is not to evaluate whether or not, based on the reasons given, the arbitral tribunal got it right.

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