ABC Co. v. XYZ Co.
DMC Rating Category: Developed
This Case Note was contributed by Ang & Partners, the Website’s International Contributors for Singapore
2. Article 34 of the Model Law provides six grounds for setting aside an award and section 24 of the IAA provides two extra grounds. Article 34(3) sets out the time limit of three months from the date of receipt of an award by the applicant for making the setting aside application. Article 34 does not provide the procedure by which recourse to the courts is to be had. The procedure has been provided by Order 69A of the Rules of Court 1996.
3. Article 34 does not state that the ground on which the award is being challenged has to be stated in the application. This requirement must, however, be inferred since it is plain from Article 34 that only proof of one or more of the grounds enumerated in that paragraph will entitle a court to set aside an award. The proper interpretation of Article 34(3) must be, therefore, that a party seeking to set aside an award must, within the three months period, file an application which states the ground or grounds he intends to rely on.
4. The question whether a party may to amend the application to add an additional ground after the three month period is not answered by Article 34. Order 69A rule 2(1) of the Rules of Court 1996 prescribes that applications to set aside awards under the Model Law are to be made by originating motion. Order 20 is the rule dealing with amendment of court documents. Order 20, rule 5(1) empowers the Court "at any stage of the proceedings" to allow the plaintiff to amend his writ (or originating motion). But Order 20, rule 5(5) provides that an amendment may be allowed "notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
5. The applicant argued that Order 20, rule 5(1) applied. It asserted that "grounds" and "causes of action" were distinct and one could not apply the limitation on adding new causes of action imposed by rule 5(5) to the addition of new grounds in this case. The judge held that, although the matters quoted in Article 34 and section 24 have been described as "grounds", that in itself could not stop them from also constituting "causes of action" because they displayed all the characteristics of causes of action. They related to facts or grievances which entitled a party to claim a remedy from the court. The matters stated were statutorily created causes of action. Therefore, the judge agreed with the respondent that Order 20, rule (5) governed the application to amend the originating motion. Accordingly, the judge held that she was only able to allow such amendment if the new grounds proposed to be added arose out of the same facts or substantially the same facts as the grounds specified originally. Only one new ground satisfied these criteria.
An arbitration in Singapore is governed by either the Arbitration Act (Cap 10, Revised Edition 2002) or the IAA. The IAA applies to international arbitrations and section 5 defines an international arbitration in terms comparable (but not identical) to Article 1(3) and (4) of the Model Law. The Arbitration Act is meant to apply to domestic arbitrations but "domestic" is not defined. The Arbitration Act acts instead as the default regime whenever an arbitration in Singapore falls outside the reach of the IAA. The Arbitration Act will also apply where parties to an international arbitration, which is otherwise subject to the Arbitration Act, opt out of the IAA.
The Singapore High Court held that it is able to allow such amendment only if the new grounds proposed to be added arise out of the same facts or substantially the same facts as the grounds specified originally. Only one ground satisfied this criteria and was allowed. The application to add the other proposed amendments was dismissed.
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