The Singapore Court adopts a pragmatic approach in its consideration of various aspects of a jurisdictional challenge

In the case of AQZ v ARA , the Singapore High Court has provided useful guidance and clarification on a number of procedural issues relating to jurisdictional challenges which will be of interest to arbitration practitioners both in Singapore and worldwide. The decision provides clarity in relation to the following points:

  1. Where parties have agreed to arbitration under a particular set of institutional rules without any caveat, they agree to submit to all the provisions contained in those rules, even if some of them conflict with other aspects of their agreement, or certain aspects of the procedure fall within the discretion of an arbitrator or the institution. If parties do not wish to agree to future changes in rules, they should specify which particular the version of the rules they want to apply. Further, if, in the context of the SIAC rules, parties want to have their dispute heard by three arbitrators if the Expedited Procedure is invoked, they should make explicit provision for this in their arbitration clause.
  2. In a jurisdictional challenge, although the Court will undertake a “de novo” hearing of an arbitral tribunal’s decision on jurisdiction, this does not mean that oral evidence and cross-examination will be appropriate in every application, even where there are substantial disputes of fact. This pragmatism is welcome, particularly for those on the receiving end of jurisdictional challenges, as the Court’s willingness to rely on material from the arbitration could save significant time and costs in defending such challenges.
  3. In Model Law jurisdictions, once an award on the merits has been handed down, a party who seeks to set it aside on jurisdictional grounds must do so under Article 34 of the Model Law. Article 16(3) of the Model Law is a separate process that only applies to decisions on preliminary questions. If a party wishes to be able to challenge a tribunal’s ruling on jurisdiction shortly after it is handed down, it must ask for that ruling to be given as a preliminary question which does not also deal with the substantive issues in dispute.

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ISDA releases Arbitration Guide

On 9 September 2013, the International Swaps and Derivatives Association (ISDA) published its long-awaited Arbitration Guide. The Guide comprises an explanatory memorandum which provides an overview of arbitration, together with model arbitration clauses (and guidance notes) for use with the ISDA 2002 Master Agreement and ISDA 1992 Master Agreement (Multicurrency – Cross Border). The model clauses are designed to be included in the Schedule to new Master Agreements, but are readily adaptable for use when amending an existing Maser Agreement to provide for arbitration.

The model clauses provide for a number of different combinations of arbitral rules/institution and seat of arbitration, including the ICC Rules (London, New York or Paris seat), LCIA Rules (London seat), AAA-ICDR Rules (New York seat), HKIAC Rules (Hong Kong seat), SIAC Rules (Singapore seat), Swiss Chambers’ Arbitration Institution Rules (Zurich or Geneva seat), and PRIME Finance Rules (London, New York or The Hague seat). In each case, the governing law of the Master Agreement will be either English or New York law.

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