Court of Appeal · Decided 31 October 2013

PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal

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[2013] SGCA 57Case no. Civil Appeals Nos 150 and 151 of 2012

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Sundaresh Menon CJ (delivering the judgment of the court):
Introduction
[1] The central question raised in the present appeals concerns the right of a party to an international arbitration, under the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”), to contend that an award rendered in Singapore should not be enforced against it here on the grounds of an alleged lack of jurisdiction on the part of the tribunal, in circumstances where that party did not take up the avenues that were available to it at an earlier stage to challenge the tribunal’s finding that it did have jurisdiction. The answer to this question depends on the interpretation of the relevant provisions of the IAA and the 1985 Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (“UNCITRAL”) (“the Model Law”) which together govern the enforcement of international arbitral awards made in Singapore.
Facts
Background
[2] The judgment of the High Court judge (“the Judge”) against which the present appeals have been brought is reported as Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others [2013] 1 SLR 636 (“the Judgment”). The background to the substantive dispute has been set out in the Judgment at [19] to [26]. For the purposes of these appeals, it is only necessary to highlight the following facts.
Dramatis personae
[3] The dispute arose out of a joint venture (“the JV”) between on the one side, companies belonging to an Indonesian conglomerate (“the Lippo Group”), and on the other, certain companies within a Malaysian media group (“the Astro Group”), for the provision of multimedia and television services in Indonesia. The vehicle for the JV was to be PT Direct Vision (“DV”) (also the 3 Defendant in the proceedings below).
[4] The Lippo Group’s share in the JV was to be held by PT Ayunda Prima Mitra (“Ayunda”) (also the 1 Defendant in the proceedings below). Ayunda’s obligations were in turn guaranteed by PT First Media TBK (“FM”) (also the 2 Defendant in the proceedings below and the sole appellant in these appeals). The Astro Group’s shareholders in the JV were the 3 and 4 Respondents initially, with the 5 Respondent guaranteeing their obligations. Pursuant to a novation agreement, the 1 and 2 Respondents became the Astro Group’s shareholders in the JV. For ease of reference, we refer to the 1 to 8 Respondents collectively as “Astro”.
The SSA and the dispute
[5] The terms of the JV were contained in a Subscription and Shareholders’ Agreement dated 11 March 2005 (“the SSA”). The parties to the SSA were the first to fifth Respondents, FM, Ayunda and DV. It is common ground that the 6 to 8 Respondents were not parties to the SSA.
[6] The SSA contained a number of conditions precedent upon which the parties’ respective obligations in the JV were predicated. The parties agreed that they would have until July 2006 to fulfil the conditions precedent. Nonetheless, pending such fulfilment, funds and services were provided by the 6 to 8 Respondents to DV to build up the latter’s business from about December 2005.
[7] The conditions precedent were not fulfilled in accordance with the schedule and by mid-August 2007, it became likely, even clear to the parties, that the JV would not close. Nonetheless, the 6 to 8 Respondents continued to provide funds and services to DV even as the parties explored their exit options. A dispute then arose over the continued funding of DV. At the heart of that dispute was whether the 6 to 8 Respondents had separately agreed, either orally or by conduct, that they would continue funding and providing services to DV.
[8] This dispute was brought to a head in September 2008 when Ayunda commenced court proceedings in Indonesia against, amongst others, the 6 to 8 Respondents (“the Indonesian Proceedings”).
The Arbitration proceedings
[9] Relying on cll 17.4 and 17.6 of the SSA, Astro took the position that Ayunda’s commencement of the Indonesian Proceedings amounted to a breach of the arbitration agreement in the SSA. Read together, the two clauses provided that if the parties are unable to resolve any dispute amicably within 30 days, any party could then commence arbitration under the auspices of the Singapore International Arbitration Centre (“SIAC”). In short, parties to the SSA were not permitted to commence court proceedings to resolve any dispute arising thereunder.
[10] Astro therefore commenced Arbitration No 62 of 2008 (“the Arbitration”) at the SIAC on 6 October 2008 against FM, Ayunda and DV. The seat of the Arbitration was Singapore. There was, however, a preliminary hurdle to be cleared, as the 6 to 8 Respondents were not parties to the SSA. To overcome this apparent obstacle, Astro stated in their Notice of Arbitration that the 6 to 8 Respondents had consented to being added as parties to the Arbitration. According to Astro, this was permitted by r 24(b) (sometimes referred to as r 24.1(b)) of the SIAC Rules (3rd Ed, 1 July 2007) (“the 2007 SIAC Rules”) which governed the Arbitration. Accordingly, at the same time that the Notice of Arbitration was filed, an application to join the 6 to 8 Respondents as parties to the Arbitration was also filed by the 1 to 5 Respondents (“the Joinder Application”). This was contested by FM, Ayunda and DV.
[11] On 19 February 2009, the three member tribunal (“the Tribunal”) directed that a preliminary hearing be conducted to determine the Joinder Application. On 7 May 2009, the Tribunal rendered an award (“the Award on Preliminary Issues”). On the Joinder Application, the Tribunal firstly held that on a true construction of r 24(b), it did indeed have the power to join the 6 to 8 Respondents as long as they consented to being joined. It then decided that this power should be exercised. This was because the close connection between the different claims advanced by Astro and the potential defences and counterclaims of FM, Ayunda and DV made the joinder both desirable and necessary in the interests of justice. The Tribunal was also concerned about potential inconsistent findings arising from the Arbitration and the Indonesian Proceedings and, to that end, issued an anti-suit injunction restraining Ayunda from proceeding with the latter.
[12] Thereafter, between 3 October 2009 and 3 August 2010, the Tribunal rendered four other awards, including the interim final award on the merits of the parties’ dispute dated 16 February 2010 (“the Final Award”). For ease of reference, the five arbitral awards awarded in the Arbitration are collectively referred to as “the Awards”.
Procedural history
[13] Against that background, we trace and set out the procedural history leading to these appeals. The proceedings in the High Court began with Astro’s ex parte applications in Originating Summonses No 807 of 2010 (“OS 807/2010”) and Originating Summons No 913 of 2010 (“OS 913/2010”) (collectively, “the Enforcement Proceedings”) for leave to enforce the Awards that had been rendered by the Tribunal. Leave to enforce four awards was given in OS 807/2010 on 5 August 2010, while leave to enforce the remaining award was given in OS 913/2010 on 3 September 2010.
[14] The two orders, which we shall refer to as the “Enforcement Orders”, were purportedly served on FM, Ayunda and DV in Indonesia. After the time for filing an application to set aside the Enforcement Orders had expired without any action having been taken by either FM, Ayunda or DV, Astro entered judgments in Singapore on the Awards against them on 24 March 2011. On 3 May 2011, FM applied to set aside the judgments on the ground that the service of the Enforcement Orders was irregular. Ayunda and DV did not make a similar application. On 22 August 2011, the Assistant Registrar set aside the judgments against FM and granted FM leave to apply to set aside the Enforcement Orders. The Assistant Registrar’s decision was upheld by the Judge on appeal: see the Judgment at [41]–[65].
[15] Consequently, on 12 September 2011, FM caused two summonses to be issued to set aside the Enforcement Orders granted in OS 807/2010 and OS 913/2010 (“SUM 4065” and “SUM 4064” respectively). These were heard by the Judge who dismissed the applications. Civil Appeals Nos 150 and 151 of 2012 are FM’s appeals against the Judge’s decision. At a pre-hearing conference on 20 February 2013, FM and Astro consented to having the two appeals consolidated.
The decision below
[16] There were two grounds on which FM sought to set aside the Enforcement Orders. First, there was never any arbitration agreement between FM and the 6 to 8 Respondents. Second, the Award on Preliminary Issues (on the basis of which the Tribunal derived its jurisdiction to issue the subsequent four awards) should not be enforced because the Supreme Court of Indonesia had ruled that it violates the sovereignty of the Republic of Indonesia. It is apposite to clarify that the Awards are not foreign awards governed by Part III of the IAA which gives effect to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”). This was not disputed by the parties. Instead, the Awards are what the Judge termed “domestic international awards”, ie, international commercial arbitral awards made in the same territory as the forum in which recognition and enforcement is sought.
[17] The Judge dismissed FM’s applications without going into the merits of the grounds relied on by FM, having found in favour of Astro on two independent threshold issues. The first was that the grounds raised by FM are not recognised as grounds for resisting enforcement of a domestic international award under the IAA. The second was that FM was precluded from raising the same jurisdictional objections which formed the subject-matter of the Award on Preliminary Issues given that it had not challenged the latter as it was entitled to under Art 16(3) of the Model Law within the prescribed time. By reason of this failure, the Judge found that it was no longer open to FM to resist enforcement in reliance on those grounds which it could have, but did not raise pursuant to Art 16(3). We set out the details of the Judge’s reasoning on these two independent threshold issues below.
Grounds for resisting enforcement of domestic international awards
[18] The Judge held (at [82] of the Judgment) that a domestic international award is either recognised as final and binding and not set aside, or, it is not recognised as final and binding and set aside. Since the timelines for setting aside had expired and FM was only seeking to resist enforcement of the Awards, it followed that the Awards were final and binding with the necessary corollary that enforcement could not be resisted. Second, FM’s argument that there should be no distinction between the enforcement regime for domestic international awards and foreign awards was a “non-starter” (at [88] of the Judgment). This was because while parties could rely on the grounds in Art V(1) of the New York Convention to resist the enforcement of foreign awards, by virtue of s 3(1) of the IAA, Art 36(1)(a) of the Model Law which is contained in Chapter VIII thereof and which sets out the grounds for resisting enforcement of an award made in any jurisdiction (including the seat jurisdiction) does not have the force of law in Singapore. Section 3(1) of the IAA provides:
[19] Article 36(1)(a) of the Model Law (which, as noted above, is contained in Chapter VIII thereof) provides as follows:
Article 16(3) of the Model Law
[20] Turning to the Judge’s second ground as outlined above, she held (at [141] and [151] of the Judgment) that where a tribunal has ruled on a jurisdictional objection as a preliminary ruling, the party wishing to challenge the preliminary ruling “must act” by lodging an application under Art 16(3), which provides as follows:
[21] In other words, the Judge (at [157] of the Judgment) interpreted Art 16(3) as the “exclusive route” through which a preliminary decision on jurisdiction can be challenged. Once the time limit for bringing a challenge under Art 16(3) has elapsed without any application having been made, the preliminary ruling on jurisdiction becomes final and cannot be challenged subsequently, whether by way of a setting-aside application or at the enforcement stage. As FM never challenged the Award on Preliminary Issues under Art 16(3), the Judge held that it had lost its sole and exclusive opportunity to raise its jurisdictional objection before the Singapore courts. It was therefore no longer open to a Singapore court to revisit the jurisdictional objection.
The parties’ submissions on appeal
FM
[22] FM’s principal submission is that there is a clear and indelible distinction between active and passive remedies which is encapsulated in the Model Law’s policy of ‘choice of remedies’. Counsel for FM, Mr Toby Landau QC (“Mr Landau”) submitted that at the first, active, level of court review, parties to an arbitration may take positive steps to invalidate the tribunal’s award, such as by an application to challenge a preliminary ruling on jurisdiction under Art 16(3) or set aside an award on the grounds set out in Art 34(1) of the Model Law. At the second, passive, level of court review, parties may defend themselves against the award by requesting that recognition or enforcement be refused in the jurisdiction where and when the award is sought to be enforced. The Model Law provides for such passive control by Art 36. On the basis that this is the concerted policy of the Model Law, Mr Landau argued that FM was entitled to resist the enforcement of the Awards in Singapore even though it had not actively challenged the preliminary ruling via Art 16(3) or applied to set aside the Awards via Art 34. This was described as its exercise of the ‘choice of remedies’ which the Model Law accords to the parties to an arbitration.
[23] FM’s submissions on ‘choice of remedies’ were situated within a narrative in which the imperatives of the Model Law were to reduce the emphasis on the seat of arbitration. On FM’s case, this policy is so strong that Parliament must, if it wishes to do so, expressly legislate to abolish or remove this ‘choice of remedies’. As such, the inapplicability of Art 36 of the Model Law per se, which is the effect of s 3(1) of the IAA, is not sufficient to alter or displace the underlying policy which permits FM to resist the enforcement of the award as a passive remedy. Mr Landau also pointed out that the stated rationale for s 3(1) was to de-conflict the Model Law regime from the New York Convention in relation to the enforcement of foreign awards. It was therefore argued that s 3(1) should not be construed literally and without regard to its legislative purpose, viz, as having the effect of removing the court’s power to refuse recognition or enforcement of domestic international awards rendered in Singapore on the grounds stated in Art 36 or some analogue thereof.
[24] Mr Landau also submitted that the availability of Art 16(3) did not alter the policy of ‘choice of remedies’ by transforming jurisdictional challenges into a ‘one-shot remedy’. If this were so, Art 16(3) would represent such a singular departure from the underlying policy that it would have been apparent from the travaux préparatoires of the Model Law (or travaux for short). Instead, he submitted that the UNCITRAL Working Group on International Contract Practices (“the Working Group”) discussed Art 16(3) exclusively within the context of its role as an active remedy, leaving the award debtor’s passive remedies unaffected. He submitted that Art 16(3) was designed to allow parties to have quicker access to the courts where a preliminary ruling on jurisdiction had been issued so that the arbitration could then proceed on a more certain footing. Mr Landau also noted that there were sound practical reasons against requiring the adversely affected party to apply to the supervising court every time a preliminary ruling on jurisdiction was made on pain of losing any other right it might have to ventilate its grievances. Such a policy could institute delay and would cut against the legitimate interests of parties not to risk antagonising the arbitrators from the outset by challenging their preliminary ruling and stalling the proceedings.
[25] Mr Landau did acknowledge, however, that there was a difference in views regarding the effect of Art 16(3) on Art 34, viz, whether the availability of the former active remedy precluded recourse to the latter active remedy, or if parties could in fact raise two active challenges to a preliminary ruling on jurisdiction. Nonetheless, FM’s position was that the availability of passive remedies remained entirely separate from the sphere of active remedies, and would not be foregone so long as the affected party had reserved its rights to challenge the tribunal’s jurisdiction. In this regard Mr Landau contended that FM had conducted itself exactly as prescribed in the following passage from Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press, 5th Ed, 2009) at para 5.127:
[26] It should be clarified that it is not FM’s case that ‘choice of remedies’ enables a party to have two bites at the cherry. Rather, Mr Landau characterised the issue as one of alternative remedies, viz, the waiver of a right to rely on an active remedy does not prejudice recourse to a later passive remedy.
[27] Returning to the Judge’s decision which had found FM’s case wanting at the first hurdle of establishing a statutory basis for resisting enforcement, Mr Landau pointed to s 19 of the IAA as the key provision within which Parliament had conferred on our courts the discretion to refuse recognition and enforcement of arbitral awards. The provision bears setting out in full:
[28] The key issue for us, according to Mr Landau, is the calibration of that power. He suggested that the court could take reference from Arts 34(2) and 36(1) of the Model Law, Art V(1) of the New York Convention, or even the English common law on s 26 of the 1950 English Arbitration Act (“1950 EAA”), upon which s 19 of the IAA was modelled to draw the content that would guide the exercise of the aforesaid power. Without committing to any one position, Mr Landau contended that s 19 had to be interpreted with the Model Law in mind, which entailed adopting “internationally accepted minimum standards” as grounds for refusing recognition and enforcement.
Astro
[29] Astro’s case in relation to the question of FM’s right to challenge jurisdiction at this stage of the proceedings has three independent layers. First, Astro contends that there is no general concept of ‘choice of remedies’ under the Model Law. If it is open to a party disaffected by a decision or award to actively attack it, ie, via Art 16(3) or Art 34, it must do so. As part of the Model Law regime, the failure to seek an active remedy precludes recourse to a passive remedy. Since FM did not challenge the jurisdictional ruling under Art 16(3) or set aside the Awards under Art 34, it cannot now resist enforcement of the Awards.
[30] Second, even if there is a general concept of ‘choice of remedies’, a preliminary ruling on jurisdiction under Art 16(3) is governed by a special regime. Mr David Joseph QC (“Mr Joseph”), counsel for Astro, submitted that the nature of Art 16(3) is such that all preliminary rulings on jurisdiction must be challenged within the prescribed 30-day time limit. Failure to do so will deprive the party objecting to the decision of any other chance to subsequently raise the same jurisdictional ground which had been the subject of the ruling, for instance, in setting aside or enforcement proceedings. If the preliminary ruling is challenged but not set aside by the supervisory court, the party objecting to jurisdiction cannot raise the same grounds in resisting enforcement of the substantive award either by a subsequent application to set aside the award before the supervisory court, or by resisting enforcement proceedings before the enforcement court, irrespective of whether the latter is in the same jurisdiction as the supervisory court or elsewhere. In other words, Art 16(3) is a ‘one-shot remedy’.
[31] Third, even if FM could resist enforcement, the grounds on which FM could attempt to do so are extremely limited. While Mr Joseph accepted that the language of s 19 of the IAA imports a residual power to resist enforcement on restricted grounds such as enforcement being contrary to public policy, tainted by corruption or by breach of natural justice, the jurisdictional grounds such as those found in Art 36(1) of the Model Law are unavailable to a party in FM’s position. Like the Judge, Mr Joseph relied on the fact that Parliament, through s 3(1) of the IAA, consciously denuded Arts 35 and 36 of any force of law. He argued that the consequence of this deliberate act of Parliament must be that the court cannot have recourse to the grounds in Art 36(1) to refuse enforcement of a domestic international award. According to Mr Joseph, this was not unusual and Singapore was not alone in adopting a more “focused” regime by excluding Arts 35 and 36. He contended that Mr Landau was trying to shoehorn into s 19 a different regime, in effect introducing Art 36(1) via a backdoor to circumvent a clear legislative act of Parliament. Instead, in interpreting s 19, the court should look to other provisions, such as Art 5 (which curtails the court’s residual powers) and Art 16(3) (which sets out the time limits for challenging a preliminary ruling on jurisdiction), and so adopt a restricted interpretation of s 19.
Issues to be determined in the present appeals
[32] Against this background, it is evident that the threshold question before us remains the same as that before the Judge, viz, whether FM is entitled to raise in SUM 4065 and SUM 4064 its objection to the joinder of the 6 to 8 Respondents which the Tribunal ordered pursuant to the Joinder Application (“the Joinder Objection”). This presents two issues:
(a) Whether the courts have a power to refuse enforcement of an award under s 19, and if so, what the ambit or content of that power is.
(b) Whether Art 16(3) is a ‘one-shot remedy’ with the corollary that FM’s failure to challenge the preliminary ruling in the Award on Preliminary Issues precludes it from raising the Joinder Objection in SUM 4065 and SUM 4064.
[33] Both FM and Astro also made submissions on the merits of the Joinder Objection in the event that we find that FM is entitled to raise the Joinder Objection, as well as on the question of whether FM had waived its rights to raise the Joiner Objection assuming it had merit. We will set out and address their respective submissions in due course.
Our decision on the threshold issues
Ambit of s 19 of the IAA
History of s 19
[34] The history of s 19 can be traced to the 1950 EAA. The approach towards foreign awards and domestic awards under the 1950 EAA is interesting, and in some respects superficially similar to that in the IAA. Like the IAA, the 1950 EAA did not contain a specific provision dealing with the circumstances in which enforcement of domestic awards could be refused. However, it had an entire Part II which dealt with “Enforcement of Certain Foreign Awards”. These foreign awards were those made under the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards (“1927 Geneva Convention”). The New York Convention had not yet come into existence at the time the 1950 EAA was enacted. There was a general provision in the 1950 EAA, s 26, pertaining to enforcement of awards under Part I which was entitled “General Provisions as to Arbitration” which read:
[35] As alluded to above at [28], s 26 is nearly identical to s 19 of the IAA. This is no accident as s 26 is the direct forebear of s 20 of the Singapore Arbitration Act 1953 (Act 14 of 1953) (“the 1953 AA”) (see Singapore Parliamentary Debates, Official Report (5 March 1980) vol 39 at col 605 (Chua Sian Chin, Minister for Home Affairs)). Section 20 of the 1953 AA was, in turn, the direct forebear of s 20 of the Singapore Arbitration Act (Cap 10, 1985 Rev Ed) (“1985 AA”). And this provision was, in turn, reproduced as s 19 of the IAA when the latter was enacted in 1994. As there are no Singapore cases where s 20 of the 1953 AA, s 20 of the 1985 AA or s 19 of the IAA have been relied upon to resist enforcement of awards, the English courts’ interpretation of s 26 of the 1950 EAA (as well as its predecessor, s 12 of the Arbitration Act 1889) is of some importance in aiding our understanding of the operation of s 19.
Power to refuse enforcement under s 26 of the 1950 EAA
[36] In Prodexport State Company for Foreign Trade v E D & F Man Ltd [1973] 1 QB 389, a dispute arose concerning the non-delivery of sugar. The sellers, who did not deliver, claimed that a law which had come into force rendered delivery illegal. The dispute was submitted to arbitration in London and the arbitrator awarded the buyers damages. The buyers sought leave from the English High Court to enforce the award under s 26 of the 1950 EAA. The sellers, on the other hand, applied for leave to extend time to set aside the award as they had exceeded the six-week statutory timeline imposed for setting aside applications. In addition, the sellers applied to have the award set aside under s 23(2), relying on the ground that the arbitrators had misconducted themselves or had acted in excess of their jurisdiction in awarding damages for the non-performance of an obligation which was illegal by the law of the country where the obligation was to be performed.
[37] The court granted the sellers’ application for the extension of time and then considered whether the ground for setting aside was made out. In explaining the interaction between setting aside under s 23 and enforcement under s 26, Mocatta J said (at 398):
[38] Thus, under the 1950 EAA, an award debtor had two options to avoid the consequences of an award: (a) the active remedy of setting aside under s 23; or (b) the passive remedy of resisting enforcement under s 26. This is buttressed by Sir Michael Mustill and Stewart Boyd, The Law and Practice of Commercial Arbitration in England (Butterworths, 1982) (“Mustill & Boyd”), where the authors recognised that there are two categories of remedies available after an award has been released. They termed these two categories as ‘passive remedies’ and ‘active remedies’ and described their operation in the following terms (at p 489):
[39] The authors’ commentary (at p 488) on the options available to parties with jurisdictional objections is remarkably on point:
[40] If the system of ‘choice of remedies’ is to be interpreted as one which permits parties to defend against an award passively by seeking to resist its recognition and enforcement in the enforcing court even though no active attack had been taken against the award, which is exactly how both Mr Landau and Mr Joseph understood it and how we saw it, it is evident that the features of this system were already part of English arbitration law by the 1970s at the latest.
Content of the power to refuse enforcement under s 26 of the 1950 EAA
[41] It is important to note that s 26 was not a pro forma provision. The English courts were not compelled to enforce awards if they thought that there were good grounds not to do so. Through case law, principles were developed to guide the courts as to when enforcement under s 26 of the 1950 EAA ought to be refused. For example, in Middlemiss & Gould v Hartlepool Corporation [1972] 1 WLR 1643 (“Middlemiss”), Lord Denning MR held (at 1647) that leave to enforce the award should be given “unless there is a real ground for doubting the validity of the award” [emphasis added]. In Dalmia Cement Ltd v National Bank of Pakistan [1975] 1 QB 9, Kerr J described (at 23) the power to enforce domestic awards under s 26 as an exercise of “discretionary jurisdiction”. We have some reservations with describing the power as “discretionary”, as that might convey the wrong impression that the courts had the broad flexibility to determine whether to enforce any particular award. Undoubtedly, it was a discretion that had to be exercised in line with recognised principles as these developed over time.
[42] The authors of Mustill & Boyd stated (at p 489) that the court should refuse enforcement of a domestic award where: (a) the award is so defective in form or substance that it is incapable of enforcement; or (b) the whole or part of the award is so ineffective on the ground that the relief granted lies outside the jurisdiction of the arbitrator. More specifically, albeit in the slightly different context of a common law action on the award, they stated (at p 369):
The “substantive requirements” imposed on the award which, if not complied with, might render the award unenforceable, were: (a) cogency; (b) completeness; (c) certainty; (d) finality; and (e) enforceability: Mustill & Boyd at pp 339–343.
[43] Although the principles appear to be stated with some degree of clarity in the textbooks, the cases lack the same precision. Nonetheless, the general theme in case law is consistent with what had been suggested in the textbooks. It was certainly clear that the invalidity of the award encompassed cases where the award was made without jurisdiction. In Kruse v Questier [1953] 1 QB 669, the defendant argued that as the submission to arbitration became invalid when the main contract was frustrated, the award was made without jurisdiction and was therefore null and void. The court considered this defence but dismissed it on the basis that the submission to arbitration had not become invalid – a principle we would recognise today under the rubric of separability (see Fiona Trust & Holding Corporation and others v Privalov and others [2008] 1 Lloyd’s Rep 254). In Jugoslavenska Oceanska Plovidba v Castle Investment Co Inc [1974] 1 QB 292, the Court of Appeal reversed the High Court’s decision not to allow enforcement of an award on the basis that he was bound by higher authority to hold that an arbitrator generally did not have jurisdiction to make an award in a foreign currency. Lord Denning MR held that English arbitrators did have the “authority, jurisdiction and power” to make such awards and gave leave to enforce the award (at 298).
[44] Given the relationship between s 26 of the 1950 EAA and s 20 of the 1985 AA (see [35] above), it cannot be gainsaid that prior to the enactment of the IAA, a party seeking to passively resist enforcement in Singapore of an award that was made in Singapore could do so notwithstanding that the award had not been attacked actively. In addition, the courts could refuse enforcement if there were substantial doubts as to the validity of the award. Then came the IAA through which the Model Law was received into Singapore’s arbitral framework. Did the philosophy of the Model Law alter the understanding of s 19 of the IAA which had been taken from s 20 of the 1985 AA? There are two parts to this question. The first is whether the court’s power to refuse enforcement in certain circumstances had been removed by the enactment of the IAA. If the answer to this is in the negative and the court’s power was retained under s 19, the second issue is whether the content of that power remained the same and continued to be guided by the English authorities on s 26 of the 1950 EAA or was to be seen and understood differently given the sea change heralded by the enactment of the Model Law.
Whether the court’s power to refuse enforcement was removed
[45] The answer to the first question posed in the preceding paragraph must be a firm negative. This is borne out by three factors. First, save for a few inconsequential words and the positioning of a comma, s 20 in the 1985 AA was reproduced in its entirety as s 19 of the IAA. Moreover, there is nothing in the legislative debates at the time of the passing of the International Arbitration Bill (“the IAA Bill”) (Singapore Parliamentary Debates, Official Report (31 October 1994) vol 63 (Ho Peng Kee, Parliamentary Secretary to the Minister for Law) (“IAA Hansard”)) or in any other legislative aid which suggests that Parliament intended the abrogation of any power hitherto contained in s 20 of the 1985 AA when it was enacted as s 19 of the IAA.
[46] Second, when the IAA was enacted, the 1985 AA was retained for the governance of purely domestic arbitrations which did not fall under the purview of the IAA. The adoption of the Model Law was limited to the IAA; there were no accompanying amendments to the 1985 AA. Therefore, the enforcement regime under the 1985 AA which undoubtedly included the power of the court to refuse enforcement did not change after the enactment of the IAA. If the power to refuse enforcement ceased to exist under the IAA but continued to exist under the 1985 AA, it would have meant that there were two quite different regimes operating concurrently even though they would each be rooted in virtually identical statutory terms. This seems untenable.
[47] Third and perhaps most importantly, as we have shown, the philosophy of ‘choice of remedies’ was available under the 1950 EAA. As we shall explicate below at [65]–[74], this same idea of ‘choice of remedies’ was also fundamental to the Model Law’s philosophy towards the enforcement of domestic (as opposed to foreign) awards. Therefore, there is every reason to think that Parliament, in receiving the Model Law into Singapore, intended to retain for the courts the power to refuse enforcement of domestic international awards under s 19, even if the award could have been but was not attacked by an active remedy.
Present scope and content of the power to refuse enforcement
[48] Thus far, our reasoning might not be controversial as far as the parties are concerned. But this leads us to the next question which is whether the content of this power was affected when it was enacted in the IAA.
[49] The fact that a power to refuse enforcement was retained under s 19 of the IAA does not lead to the necessary conclusion that the scope and content of that power was unchanged and continued to be guided by the English authorities. On behalf of Astro, Mr Joseph argued that the power under s 19 was narrowly circumscribed (see [31] above) and did not admit of a tribunal’s lack of jurisdiction as a ground to refuse enforcement. On behalf of FM, Mr Landau argued that the scope of the court’s power must be calibrated in accordance with internationally accepted minimum standards (see also [28] above). This could entail referencing the grounds in Arts 34 and 36 in the Model Law, Art V of the New York Convention, or perhaps the English common law as it stood in relation to s 26 of the 1950 EAA. As far as Mr Landau is concerned, each of these various yardsticks encompasses different expressions of what is essential to his case, namely that enforcement of an award can be resisted if the tribunal had no jurisdiction.
[50] In our judgment, the scope of s 19 of the IAA must be interpreted by reference to the rules governing statutory interpretation in Singapore. Section 4(2) of the IAA reminds us that the Interpretation Act (Cap 1, 2002 Rev Ed) – s 9A in particular – is the appropriate starting point. In interpreting any provision of legislation, the court should embrace an interpretation which promotes the purpose or object underlying the legislation over one which does not. Given that s 19 is found in a statute with the primary objective of enacting the Model Law in Singapore, we are satisfied that Parliament intended that the power to refuse enforcement under s 19 be exercised in a manner which is compatible with the overarching philosophy of the Model Law on the enforcement of awards. Parliament did not legislate how that power ought to be exercised, and so must be taken to have left it to the courts to determine the appropriate content of the power under s 19. In this regard, the content of that power cannot be properly determined without an understanding of the purpose of the provision, and more generally, of the IAA and of the adoption of the Model Law in Singapore.
(1) Commitment to Model Law philosophy
[51] The IAA was enacted to create an omnibus regime for international arbitration. One of the key architectural pillars of that regime was the incorporation of the Model Law and the New York Convention. This is reflected in the preamble to the IAA which reads:
[52] However, as the Model Law was never intended to be an international convention, much less one that was exclusive and self-standing, national arbitration laws play an important complementary function. Indeed, the Model Law was devised as a model legislation and not, for example, as a convention like the New York Convention, so that it would be easier to assimilate into national arbitration laws which were never contemplated to be replaced as such by the Model Law: Howard M Holtzmann and Joseph E Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Kluwer Law and Taxation, 1989) (“Holtzmann & Neuhaus”) at p 11.
[53] The purpose and function of the Model Law in Singapore was fully articulated in the Second Reading of the IAA Bill, the instrument through which the IAA was enacted. Then Parliamentary Secretary to the Minister for Law, Associate Professor Ho Peng Kee (“Assoc Prof Ho”), stated in moving the IAA Bill that the IAA would provide a consolidated legal framework that would include not only the Model Law but also give effect to the New York Convention to govern the resolution of international commercial disputes by arbitration. He also explained that the IAA Bill was one of the products of the review of Singapore’s laws generally to ensure “adequate legal support for Singapore’s regionalisation drive”: IAA Hansard at col 624. Assoc Prof Ho (at cols 625–628) also briefly elaborated on the genesis of the Model Law, its core features, the widespread acceptance of the Model Law since its promulgation, and the benefits of adopting the Model Law in Singapore. Noting some dissatisfaction with the arbitral framework in existence then, Assoc Prof Ho concluded (at col 627):
[54] The IAA Hansard illuminates the considerations which were at the forefront of Parliament’s deliberations. First, the Model Law was to form the cornerstone of the IAA. However, the Model Law was not intended to stand alone, at least where the enforcement of foreign awards is concerned. To that end, the New York Convention provisions and its attendant principles were to be subsumed within the IAA to address enforcement of foreign awards. Second, the consolidation of the Model Law and the New York Convention into a single legislation was the product of a thoughtful review of Singapore’s arbitration landscape which was intended to ensure adequate legal support for Singapore’s regionalisation drive. Third, the Model Law, which was crafted in such a way as to be acceptable both to common and civil law systems, was to herald a paradigm shift in the Singapore arbitral framework which had until then been guided by the English arbitration regime.
[55] In the light of the above, it is clear that the scope of the power to refuse enforcement in s 19 could no longer draw direct and complete inspiration from the English authorities once the IAA came into force. The context of the 1950 EAA and the IAA were, to put it simply, informed by different considerations. The adoption of the Model Law was a game changer which necessitated an ‘update’ of the content of the power under s 19. In short, the construction of the power to refuse enforcement under s 19 now had to be consonant with the underlying philosophy of the Model Law on the enforcement of all awards generally and more specifically, domestic international awards.
The Model Law and the New York Convention
[56] UNCITRAL’s general mandate was to promote the “progressive harmonization and unification of the law of international trade”: UN General Assembly Resolution 2205, 21 UN GAOR Supp (A/6594, 17 December 1966). One of UNCITRAL’s aims through the Model Law was to reduce the divergences which might result from each State’s interpretation of its obligations under the New York Convention: Note of Secretariat on Further Work in Respect of International Commercial Arbitration (A/CN.9/169, 11 May 1979) at paras 6–9. The mechanism of a model law was intended to create uniform rules to eliminate local peculiarities which stood in the way of international consistency: see John Honnold, “The United Nations Commission on International Trade Law: Mission and Methods” (1979) 27 Am J Comp L 201.
[57] Thus, from the outset, the enforcement regime of the Model Law was intended to be aligned with the New York Convention, save that it would apply not just to foreign awards but also domestic awards arising out of international commercial arbitrations: Holtzmann & Neuhaus at pp 1055–1056. Initially, the first draft of the Model Law had separate but closely connected sections for the enforcement of foreign and domestic awards. For foreign awards, the Model Law followed the New York Convention. As for domestic awards, the UNCITRAL Secretariat recommended that the same conditions and procedures as laid down in the New York Convention be adopted: Note by the Secretariat: Model Law on International Commercial Arbitration: Draft Articles 37 to 41 on Recognition and Enforcement of Award and Recourse Against Award (A/CN.9/WG.II/WP.42, 25 January 1983) reproduced in (1983) Yearbook of the United Nations Commission on International Trade Law, 1983, Vol XIV at pp 92–93, footnotes 3 and 12.
[58] At its Sixth Session, the Working Group decided to consolidate the hitherto separate sections on the recognition and enforcement of foreign and domestic awards into what became the current Art 35 of the Model Law which states:
[59] The consolidation was recommended because the Working Group felt that “there were no cogent reasons for providing different rules for domestic awards and for foreign awards”: Report of the Working Group on International Contract Practices on the Work of its Sixth Session (A/CN.9/245, 29 August–9 September 1983) (“Report of the Sixth Session”) at para 139. This was not entirely surprising given that in its first session to discuss the Model Law, the Working Group had noted as follows (Report of the Working Group on International Contract Practices on the Work of its Third Session (A/CN.9/216, 23 March 1982)) at para 103:
[60] The Working Group noted in the Report of the Working Group on the Work of its Seventh Session (A/CN.9/246, 6–17 February 1984) (“Report of the Seventh Session”) that there was a view which preferred that the Model Law omit any mention of foreign awards completely, for the following reasons (at para 142):
[61] However, the prevailing view was for a combined Article to cover both foreign and domestic awards, with the main reason being (Report of the Seventh Session at para 143):
[62] This trend towards the uniform treatment of awards generally in fact began with the New York Convention which did away with the double exequatur rule prescribed in the 1927 Geneva Convention, under which leave for enforcement (exequatur and the like) was required from both the court of the seat of arbitration and the court of enforcement (when the place of enforcement is different from the seat of arbitration). The seat of arbitration which was influential because of the double exequatur rule therefore became less significant under the New York Convention. In fact, one delegate at the New York Conference considered the New York Convention a “very bold innovation” because of its impact on the double exequatur rule (see Summary Record of the Thirteenth Meeting (E/CONF.26/SR.13, 28 May 1958) at p 3). As Emmanuel Gaillard observed in “International Arbitration as a Transnational System of Justice” in Arbitration – The Next Fifty Years (Albert Jan van den Berg gen ed) (International Council for Commercial Arbitration, Kluwer Law International, 2012) at p 71:
[63] A clear elaboration of the implications of the New York Convention on whether and how the pursuit of active remedies in the seat of arbitration might be relevant to enforcement proceedings can be found in the recent decision of the UK Supreme Court in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763 (“Dallah (SC)”). There, Lord Mance JSC noted that Art V(1)(e) of the New York Convention (see [76] below) accorded some deference and importance to the seat of arbitration, but went on to say (at [28]) the following, with which we are in agreement:
[64] The drafters of the Model Law, in aligning the Model Law with the New York Convention, were plainly desirous of continuing this trend of de-emphasising the importance of the seat of arbitration. However, there was and is one significant difference between the New York Convention and the Model Law. Unlike the New York Convention which only dealt with enforcement of awards, the Model Law also dealt with the setting aside of awards made in the seat of arbitration by the courts of that seat. This other avenue to challenge domestic awards resulted in the possibility that the enforcement of awards originating from within the jurisdiction of the supervisory court would be treated differently from that of foreign awards. This is where ‘choice of remedies’ becomes significant and forms the crux of this dispute.
‘Choice of remedies’
[65] Notwithstanding Mr Joseph’s vigorous submissions, we are satisfied that ‘choice of remedies’ is not just a facet of the Model Law enforcement regime; it is the heart of its entire design. The Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration (A/CN.9/264, 25 March 1985) (“Analytical Commentary”) states clearly (at p 71) that:
[66] Indeed the Analytical Commentary deliberately couples the term ‘recourse’ with attacks on the award so as to create a clear distinction from remedies which act as defences to enforcement (ibid):
[67] This distinction was delineated after doubts were raised as to whether the word ‘recourse’ might be misleading since other ‘recourses’ could also be found in Art 36(1) and Art 16(2) (see Analytical Compilation of Comments by Governments and International Organisations on the Draft Text of a Model Law on International Commercial Arbitration (A/CN.9/263, 19 March 1985) (“Analytical Compilation”) at p 47):
[68] The drafters’ specificity of language is also manifested in the overall structure of the Model Law. Article 34, which provides for applications to set aside an arbitral award, falls under Chapter VII, entitled “Recourse Against Award”. Articles 35 and 36, on the other hand, fall under the next Chapter, entitled “Recognition and Enforcement of Awards”. It is therefore evident to us that the Model Law recognises both a substantive and linguistic division between active and passive remedies.
[69] The question is whether these remedies exist as a menu of choices for the award debtor to choose from. The controversy surrounding choice of remedies was very much alive in the discussions and deliberations amongst members of the Working Group. In its Seventh Session, the Working Group considered a proposal to insert the following paragraph in the draft Art 36 (Report of the Seventh Session at para 153):
[70] Not only was the question of ‘choice of remedies’ squarely before the Working Group, a specific proposal to limit the grounds for resisting enforcement to Arts 36(1)(a)(i), (v) and (2)(b) when an application for setting aside was not made was put before it. Most critically, that proposal was rejected. The ensuing commentary explaining the rejection is instructive and enlightening (Report of the Seventh Session at paras 153–154):
[71] Mr Joseph contended that the description of Art 34 as an “exclusive recourse” (see the extract at [65] above) against an award is inconsistent with the notion of ‘choice of remedies’. We disagree. At the Seventh Session, the Working Group made the very same observation which Mr Joseph made before us, and queried whether this would give the wrong impression that Art 34 “disregard[ed] the right of a party under article 36 to raise objections against the recognition or enforcement of an award” (Report of the Seventh Session at para 130). The Working Group in fact “agreed that, for the sake of clarity, paragraph (1) [of Art 34] should make reference to that other type of recourse [ie, Art 36]” [emphasis added] (ibid). Ultimately, the Working Group declined to make the amendment that was originally recommended not because they changed their mind about ‘choice of remedies’, but rather for a linguistic reason as it explained in the Report of the Seventh Session at para 197:
Thus, in our view, the travaux make it clear beyond argument that the Model Law provides for the system of ‘choice of remedies’, and that this system applies equally to both foreign and domestic awards which are treated uniformly under the Model Law. It follows that under the Model Law, parties that do not actively attack a domestic international award remain able to passively rely on defences to enforcement absent any issues of waiver.
[72] Before leaving this point, there is one interesting reference in the travaux which might on the face of it be read as supporting Mr Joseph’s position and which therefore merits addressing. In the Report of the Sixth Session, it was noted (see paras 128, 137, 138, 150 and 156) that ‘choice of remedies’ for the purposes of domestic awards was unacceptable. At the time of the Sixth Session, there were separate provisions for recognition and enforcement of domestic and foreign awards. As this was later amalgamated into the current Arts 35 and 36 which drew no distinction between domestic and foreign awards, the view espoused in the Sixth Session became nothing more than a footnote. A suggestion was made in that session to delete the provisions on enforcement of domestic awards such that the only remedy would be in the setting aside provisions (Report of the Sixth Session at para 128):
[73] It is worth clarifying that the language used in this section of the travaux was “double-control”, which we understand in the context of the travaux as a whole as referring to the system of alternative remedies found in Arts 34 and 36, ie, the ‘choice of remedies’ (which also coheres with the basis upon which arguments were canvassed before us – see [40] above). Had the proposal been accepted, the only remedy open to a party seeking to challenge a domestic award would be the active remedy of setting aside. That would support Astro’s case. However, this suggestion was not adopted because (ibid at para 157):
[74] Whichever way we look at it, Mr Joseph’s arguments on ‘choice of remedies’ cannot be sustained. Fundamentally, the thrust of Mr Joseph’s argument was that under the scheme of the Model Law, the party objecting to jurisdiction would lose its right to raise the same jurisdictional objection in enforcement proceedings before the supervisory court if it had foregone an opportunity to actively attack the award either under Art 16(3) if there was a preliminary ruling on jurisdiction, or under Art 34. This is diametrically opposed to the concept of ‘choice of remedies’.
A wider notion of ‘double-control’
[75] At this point we depart from the main trunk of our analysis on the underlying philosophy of the Model Law and specifically on the ‘choice of remedies’ to acknowledge that a wider meaning could also be ascribed to the language of ‘double-control’ used in the travaux. ‘Double-control’ could also be regarded as a content-neutral rubric which simply sets out the distinction between active and passive remedies without more. Interstitial doctrines would in turn then be required to modulate the relationship between these two remedial layers and, by extension, the relative roles of the supervisory and enforcing courts. It is clear, from our foregoing analysis, that both the New York Convention and the Model Law recognise the ‘choice of remedies’ as one such interstitial doctrine, so that a party is not precluded from resisting the enforcement of an award by virtue of its failure to utilise an available active remedy. There is also authority that the New York Convention permits a party to resist enforcement even after an unsuccessful active challenge, save and except for the operation of any issue estoppel recognised by the enforcing court (see Dallah Estate and Tourism Holding Company v Ministry of Religious Affairs of the Government of Pakistan [2009] EWCA Civ 755 at [90] per Rix LJ and Dallah (SC) at [98] and [103]–[104] per Lord Collins of Mapesbury JSC; Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109 at [55]–[65]). In so far as this is accurate of the New York Convention we see no reason to regard the Model Law as any different, given that the objective of uniform treatment of international arbitral awards is common to both instruments. The underlying theme is that ‘double-control’ endorses what Lord Mance JSC described in Dallah (SC) (at [28]) as “ordinary judicial determination” in the court of enforcement; it is generally for each enforcing court to determine for itself what weight and significance should be ascribed to the omission, progress or success of an active challenge in the court of the seat.
[76] We would add one caveat to this general position, which is that we entertain serious doubt as to whether ‘double-control’ extends to the recognition and enforcement of an award which has been set aside in the seat by the court of a foreign jurisdiction. We note that French arbitration law appears to have moved down that path. French law appears to recognise a system of ‘transnational’ or ‘supranational’ arbitral awards, whereby awards do not derive their validity and legitimacy from a particular local system of law. Thus, in Hilmarton Ltd v Omnium de traitement et de valorisation (1995) XX Yearbook Comm Arb 663–665 (“Hilmarton”), the Cour de Cassation affirmed the decision of the Cour d’Appel de Paris which declared that the subject award was enforceable in France even though it had been set aside in Switzerland. The Swiss court had annulled the award on the basis that it had misconstrued what constituted an affront to morality in Swiss law (see Omnium de Traitement et de Valorisation – OTV v Hilmarton (1994) XIX Yearbook Comm Arb 214–222). The apex French court held that the Swiss award, being an international award, was not integrated into the legal order of the seat and therefore continued to exist notwithstanding that it had been set aside. The recognition of the award in accordance with French law was not, therefore, contrary to international public policy. The same result and reasoning also features in the Cour d’Appel de Paris’ decision of The Arab Republic of Egypt v Chromalloy Aeroservices, Inc (1997) XXII Yearbook Comm Arb 691–695. France, of course, is not a Model Law jurisdiction and as the Cour de Cassation stated in Hilmarton, the relevant French legislation (Art 1502 of the New Code of Civil Procedure) does not contain the equivalent of Art V(1)(e) of the New York Convention (the wording of which is identical to Art 36(1)(a)(v) of the Model Law), which provides:
[77] While the wording of Art V(1)(e) of the New York Convention and Art 36(1)(a)(v) of the Model Law arguably contemplates the possibility that an award which has been set aside may still be enforced, in the sense that the refusal to enforce remains subject to the discretion of the enforcing court, the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce. What else could it mean to set aside an award? If this avenue of recourse would only ever be of efficacy in relation to enforcement proceedings in the seat court, then it seems to have been devised for little, if any, discernible purpose. As such, we do not think that in principle, even the wider notion of ‘double-control’ can encompass the same approach as has been adopted by the French courts. The refusal to enforce awards which have not been set aside at the seat court may therefore constitute one of the outer-limits of ‘double-control’. However, as this specific issue is not directly engaged in the present appeal, we offer no further comment beyond these tentative thoughts.
Germany and Québec
[78] It is apposite to discuss briefly the enforcement regimes of Germany and Québec which the Judge considered and relied on heavily. According to the Judge, these two Model Law jurisdictions do not recognise the policy of ‘choice of remedies’. Turning first to Québec, we respectfully disagree with the Judge’s construction of Québec law. She said (at [83] of the Judgment):
[79] We agree with Mr Landau’s submission that the phrase “the only possible recourse … is annulment” is to be understood as an ‘attack’ against the award through setting aside or, where permissible, an appeal. The language in Art 947 tracks Art 34(1) of the Model Law which, although as we have shown incorporates the policy of ‘choice of remedies’, at the same time provides that setting aside under Art 34(1) is the exclusive recourse against an award. There is no clearer explanation of this than that provided in the Analytical Commentary on Art 34(1) which we have extracted and reproduced above at [65] and [71].
[80] Indeed, in our view, Québec law is no different from Singapore law in that the courts have a power to refuse the enforcement of a domestic international award. The relevant provision, which is Art 946 and not Art 947 which the Judge referred to, reads:
[81] While the court may not examine the merits of the dispute (Art 946.2), it may nevertheless refuse homologation on proof that (Art 946.4):
[82] We turn then to the position in Germany. We agree with the Judge that Germany has abandoned the ‘choice of remedies’ and this is reflected in its legislation. However, Germany has not just excluded the operation of Arts 35 and 36 of the Model Law. It has, in addition, legislated extensively for an enforcement regime that is distinctly different from that of the Model Law. This regime is governed by s 1060 of the German Zivilprozessordnung (Tenth Book on the Code of Civil Procedure) (Germany) (“ZPO”) which prescribes:
[83] In these circumstances, it is difficult to see how the German position can be said to be representative of the approach under the Model Law. Indeed, the authority cited by the Judge (at [82] of the Judgment), Jean-François Poudret & Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell, 2nd Ed, 2007) at para 864 recognised that the German position departs from what has been described as “‘dual control’ of a domestic award”. We do not read this as endorsing the German approach as the appropriate representation of the enforcement regime under the Model Law.
(2) Populating the power to refuse enforcement under s 19
[84] As we have held, the content of the power to refuse enforcement under s 19 must be construed in accordance with the purpose of the IAA which, as we have stated, is to embrace the Model Law. Given that de-emphasising the seat of arbitration by maintaining the award debtor’s ‘choice of remedies’ and alignment with the grounds under the New York Convention are the pervading themes under the enforcement regime of the Model Law, the most efficacious method of giving full effect to the Model Law philosophy would, in our view, be to recognise that the same grounds for resisting enforcement under Art 36(1) are equally available to a party resisting enforcement under s 19 of the IAA.
[85] But what of Mr Joseph’s submission that reference may not be made to Arts 35 and 36 because Parliament, by s 3(1) of the IAA, had expressly decided that those articles shall not have the force of law? To begin with, the conclusion that the grounds set out in Art 36(1) are available to guide the discretion conferred by s 19 is not the same as saying that Art 36 has the force of law in Singapore. On our reading of s 3(1), that section in no way constrains the power of the court to determine the grounds upon which it would refuse enforcement of domestic international awards under s 19 and it remains open to the courts to align the exercise of that discretion with the grounds under Art 36. This alone is sufficient to negative Mr Joseph’s argument. Nevertheless and in any event, an analysis of the legislative object in excluding Arts 35 and 36 by s 3(1) of the IAA is revealing in that it readily becomes evident that this had nothing to do with constraining or limiting the content of the court’s power to refuse enforcement under s 19. Instead, as the background to s 3(1) shows, it was intended only to avoid conflict with the New York Convention regarding the enforcement of foreign awards.
(3) Effect of exclusion of Arts 35 and 36 by s 3(1)
[86] The drafting of the IAA was the result of wide consultation. It was first prepared by a sub-committee of the Singapore Academy of Law’s Law Reform Committee (IAA Hansard at col 627). The sub-committee was appointed by the Attorney-General in 1991 to examine the existing laws relating to commercial arbitration in Singapore and to make recommendations for their reform or revision. In the sub-committee’s report, published in Sub-Committee on Review of Arbitration Laws (Academy, 1993) (“the LRC Report”), it was recommended (at paras 39 and 40) that Arts 35 and 36 should be excluded so that there would not be any conflict between these provisions and the provisions of the New York Convention which are premised on the concept of reciprocity. The IAA Bill contained in the LRC Report was subsequently adopted (with amendments which are irrelevant for the present purposes) by the full Law Reform Committee and eventually passed by Parliament as the IAA. It is therefore evident that the specific object of Parliament in excluding Chapter VIII of the Model Law, ie, Arts 35 and 36 of the Model Law, was to enable the enforcement of foreign awards to be governed by only one set of rules, namely, the New York Convention and not have to deal with the question of how to address the matter of reciprocity if Arts 35 and 36 were retained.
[87] The LRC Report and the subsequent parliamentary debates never touched on the issue of whether the exclusion of Arts 35 and 36 would also thereby entail that the High Court would be unable to refuse the recognition and enforcement of domestic international awards which, by definition, are outside the ambit of the New York Convention. In the process of de-conflicting the enforcement regimes under the Model Law and the New York Convention (see [60] and [86] above), Parliament gave no hint of any intention to exclude the ‘choice of remedies’ in relation to domestic international awards where enforcement proceedings are brought in Singapore. However, the effect of the legislative device that was employed in order to enable the enforcement of foreign awards to be governed by the New York Convention was that domestic international awards were left to be regulated by s 19 of the IAA. The contention that this was meant to and in fact did have the effect of excluding domestic international awards from the scheme of the ‘choice of remedies’ would require the conclusion that Parliament intended domestic international awards which had not been set aside to be enforceable by default in Singapore. In light of the history and clear policy of the Model Law outlined above at [56]–[71], there are at least three reasons to conclude that this was never the case.
[88] First, the primary object of the IAA is to give effect to the Model Law. It is therefore clear to us that if there was a shift in 1995 when the IAA came into force, it must be a shift towards rather than away from the Model Law. Given the centrality of ‘choice of remedies’ and the alignment in the treatment of foreign and domestic awards to the philosophy of the Model Law read with the New York Convention, we do not accept that the enactment of s 3(1) was for a completely different purpose and, by that device, that the legislative omission of Art 36 is sufficiently indicative of a legislative intention to deprive award debtors under a domestic international award of passive remedies before the Singapore courts.
[89] The second reason is related to the first. A policy of default enforcement for any Singapore awards which have not been set aside would be a significant innovation and if this was the legislative object, then in the context of a detailed Second Reading speech one would have expected to find some express acknowledgement or reference. Of this, there is no trace. When viewed in the context of the pre-1996 English arbitration regime and the pre-1995 Singapore arbitration regime, as well as the policy of the Model Law, default enforcement of domestic international awards must entail a positive decision: (a) to change the previously prevailing position; and (b) to depart from the Model Law. We do not think that such a development in relation to domestic international awards was ever contemplated, much less intended, and we are unwilling to accept this as an incidental consequence of Parliament’s preference that the New York Convention continue to regulate the enforcement of foreign awards. The fact that a clear reason was ascribed for the exclusion of Arts 35 and 36 which has nothing to do with treating foreign and domestic awards differently strengthens our view that there was never an intention to simultaneously introduce an unstated policy of default enforcement for domestic international awards. Of course, we are not suggesting that States cannot modify the Model Law to their own preferences. Indeed, the German example shows not only what is possible but also how it should be done if modification is desired. But it is only sensible in the end that significant policy decisions which depart not only from international norms but also the avowed purpose of the statute should not be too easily read into the margins of legislative provisions.
[90] Moreover, significant practical ramifications would follow if we were to interpret s 3(1) of the IAA as having the effect of excluding the application of ‘choice of remedies’ from domestic international awards. Parties involved in international arbitrations in Singapore would be compelled to engage their active remedies in the Singapore courts, ie, by challenging a preliminary ruling under Art 16(3) or initiating setting aside proceedings under Art 34, because the option of exercising a passive remedy of resisting enforcement here would not be open to them. This can have potentially far-reaching implications on the practice and flourishing of arbitration in Singapore. Without venturing into the realm of public policy, the basic point to be made here is that Parliament should not be taken to have silently, and even incidentally, undertaken such a singular and signal decision.
[91] We return here to the Working Group’s meeting in the Sixth Session where the issue of excluding foreign awards altogether from the Model Law was discussed (see [58]–[60] above). The prevailing view at the time was for the provisions on recognition and enforcement of foreign awards to be included in the Model Law, in addition to those dealing with domestic awards. The general discussion of the Working Group reflects two separate concerns with Art 36 – one pertaining to the overlap with the New York Convention for foreign awards, and the other relating to ‘choice of remedies’. It is telling – particularly since Singapore had a representative in the travaux discussions and was therefore apprised of the debates – that Parliament, in excluding Arts 35 and 36, referenced only the former concern and made no mention at all of the latter.
[92] Last but not least, we note that the legislature in other states such as Ireland, Austria, Bangladesh, Croatia and Germany have either combined the setting aside regime with the enforcement regime for domestic international awards or have limited the grounds for resisting enforcement of those awards to public policy and non-arbitrability. In the paragraphs that follow, we set out our reasons for rejecting Mr Joseph’s submission that the Singapore Parliament would therefore not have been alone or acting radically in intending through s 3(1) to contract out of the Model Law philosophy of treating the enforcement of all awards uniformly and preserving the ‘choice of remedies’.
[93] First, given our view that s 19 of the IAA is the controlling provision, a view with which Mr Joseph agrees, the only sources of authority which the court should look at are the parliamentary materials against the backdrop of the history and origin of s 19, which we have done (see [34]–[55] above). As a result of that exercise, it is evident that Parliament did not intend to reject or exclude the ‘choice of remedies’ policy of the Model Law. Unless there is evidence to suggest that Parliament had been motivated by the position adopted in the foreign jurisdictions referred to by Mr Joseph, we do not find reference to such jurisdictions to show how they might have weighed their policy choices to be of any significant value. In any event, there might have been various reasons why those states excluded Arts 35 and 36. We must therefore resist the urge to reason by analogy without first scrutinising the respective legislations and their background to determine the specific rationale for the exclusion.

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PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal

Laws this judgment relies on

Grounds of decision

Introduction

Facts

Background

Dramatis personae

The SSA and the dispute

The Arbitration proceedings

Procedural history

The decision below

Grounds for resisting enforcement of domestic international awards

Article 16(3) of the Model Law

The parties’ submissions on appeal

FM

Astro

Issues to be determined in the present appeals

Our decision on the threshold issues

Ambit of s 19 of the IAA

History of s 19

Power to refuse enforcement under s 26 of the 1950 EAA

Content of the power to refuse enforcement under s 26 of the 1950 EAA

Whether the court’s power to refuse enforcement was removed

Present scope and content of the power to refuse enforcement

(1) Commitment to Model Law philosophy

The Model Law and the New York Convention

A wider notion of ‘double-control’

Germany and Québec

(2) Populating the power to refuse enforcement under s 19

(3) Effect of exclusion of Arts 35 and 36 by s 3(1)