Arbitration in Shanghai Provides For Singapore Seat Says Singapore High Court

Morrison Foerster review the 1 July 2019 decision from the Singapore High Court in BNA v BNB [2019] SGHC 142, where in an application under section 10(3) of Singapore’s International Arbitration Act – which permits parties to apply to the High Court to decide jurisdictional matters where a tribunal rules, as a preliminary question, that it has jurisdiction – the Court interpreted an express provision for “arbitration in Shanghai” to be an agreement to Singapore-seated arbitration with hearings in Shanghai, thereby upholding the validity of the arbitration clause and the jurisdiction of the tribunal.

In reaching its decision, the High Court considered the decisions in Sulamérica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 and BCY v BCZ [2017] 3 SLR 357 (concerning the proper law of the parties’ arbitration agreement), and Insigma Technology Co Ltd v Alstom Technology [2009] 3 SLR(R) 936 (concerning the interpretation of arbitration agreements).

The authors observe that the logic behind the High Court’s application of Rule 18.1 of the SIAC Rules (2013) (which provides that Singapore shall be the seat of arbitration absent contrary agreement) is strained and threatens to have unintended consequences for future cases, and further that:

“Given that Singapore prides itself on being a pro-arbitration jurisdiction, the High Court’s inclination to find a means to affirm the tribunal’s jurisdiction is understandable. However, in doing so, the High Court has tied itself in knots and relegated the parties’ intentions to a secondary consideration.  Its interpretation of Singapore as the seat of arbitration and Singapore law as governing the arbitration agreement simply does not sit well with the plain language of the Takeout Agreement, which shows clear choices of Shanghai as the place of arbitration and PRC law as the governing substantive law.”

The High Court has granted the plaintiff leave to appeal its decision to the Singapore Court of Appeal.

See also the following reviews of this case:

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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