I.

INDEX OF AUTHORITIES
CASES

 International Research Corp v Lufthansa Systems Asia Pacific Pte Ltd and another
[2014] 1 SLR 130
 Aiton Australia Pty Ltd v. Transfield Pty Ltd. (1999) 153 F.L.R. 236.
 HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore
Pte Ltd. [2012] 4 SLR 738
 Sushil Kumar Bhardwaj and Ors. vs. Union of India (UOI) and Ors. 2009 SCC
OnLine Del 4355
 Simpark Infrastructure Pvt. Ltd. vs Jaipur Municipal Corporation 2012 SCC OnLine
Raj 2738
 Tulip Hotels Private Limited v Trade Wings Limited 2009 SCC OnLine Bom 1222
 Sai Wan Shipping Ltd v Landmark Line Co, Ltd [2021] SGHC 8

 SREI Infrastructure Finance Limited v. Tuff Drilling Private Limited (2018) 11 SCC
470

 CEF and CEG v CEH [2022] SGCA 54

 PT First Media TBK v Astro [2013] SCGA 47
 McDermott International Inc. vs. Burn Standard Co., (2006) 11 SCC 181
 Surender Kumar Singhal & Ors. vs Arun Kumar Bhalotia and Ors., (2021) 279 DLT
636
 Rakna Arakshaka Lanka Ltd v Avant Garde Maritime services (Pte) Ltd [2019]
SGCA 33
 Astro Nusantara International BV and others v PT Aunda Prima Mitra and
others[2012] SGHC 212

BOOKS

 Aron Broches, Commentary on the UNCITRAL Model Law (1990), in Lise Bosman
ed., ICCA International Handbook on Commercial Arbitration, ICCA & Kluwer Law
International 2023 (Jan. 1990).
 Gary B. Born, Chapter 25: Annulment of International Arbitral Awards (Updated
December 2023), in International Commercial Arbitration (Third Edition) Kluwer
Law International (2021).
 Paul Tan, Nelson Goh, & Jonathan Lim, Stay of Court Proceedings in Favour of
Arbitration, in The Singapore International Arbitration Act: A Commentary ,Oxford
Academic, online ed. (2023)

REPORT

 Law Reform Committee, Singapore Academy of Law, Report of the Sub-Committee

on “Review of Arbitration Laws” (1993).

ARTICLES
 William W. Park, The Arbitrator’s Jurisdiction to Determine Jurisdiction, in ICCA
Congress Series 13 (2006).
  John Yukio Gotanda, An Efficient Method for Determining Jurisdiction in
International Arbitrations, 40(11) Columbia Journal of International Law (2001)

STATUTES

 Article 25 of UNCITRAL Model law



ISSUE 1 Pre-mature arbitration

 International Research Corp v Lufthansa Systems Asia Pacific Pte

Ltd and another [2014] 1 SLR 130
 Aiton Australia Pty Ltd v. Transfield Pty Ltd. (1999) 153
F.L.R. 236.
 HSBC Institutional Trust Services (Singapore) Ltd v Toshin
Development Singapore Pte Ltd. [2012] 4 SLR 738
 Sushil Kumar Bhardwaj and Ors. vs. Union of India (UOI)
and Ors.
 Simpark Infrastructure Pvt. Ltd. vs Jaipur Municipal
Corporation
 Tulip Hotels Private Limited v Trade Wings Limited

The word "sincerely" implies that the parties must genuinely engage in
negotiations before initiating arbitration. By failing to demonstrate a
meaningful effort to resolve the dispute outside arbitration, the claimant
undermines the contractual dispute resolution process. The only
communication made to resolve the dispute was a telephonic
conversation on 05.02.2024, which failed to reach any agreement. This
single, informal attempt is insufficient to satisfy the requirement of
genuine negotiations. A telephone conversation does not rise to the level
of formal negotiations required by the clause, which implies structured,
written negotiations or meetings aimed at settling the dispute.

In the case of International Research Corp PLC v. Lufthansa Systems,

(Lufthansa Systems), the Singapore Court of Appeal found that an
arbitral tribunal would not have jurisdiction before the condition
precedent to the commencement of arbitration is not adhered to strictly.
If a request for arbitration is before preconditions are complied, it would
be premature and should be dismissed.

Delhi High Court in the judgment of Sushil Kumar Bhardwaj and Ors.
vs. Union of India (UOI) and Ors.[2] while relyingupon the above
judgment of Kerala High Court, has held that the procedure required
before invocation of arbitration is mandatory and not directory. It was
held that before approaching the court seeking appointment of an
arbitrator, a party is required to first exhaust the agreed procedure or
the procedure prescribed by the law.

The Rajasthan High court in the case of Simpark Infrastructure Pvt.

Ltd. vs Jaipur Municipal Corporation[3] has held that where the
parties agreed to a particular procedure for dispute resolution and
prescribed condition precedent for invoking the arbitration clause, the
same is required to be followed. When the particular steps are not
followed by the parties and the aggrieved party file an arbitration
application, then the same is premature.

The Bombay High Court in the matter of Tulip Hotels Private Limited
v Trade Wings Limited[4] dismissed a petition for the appointment of
an arbitrator where the parties had failed to follow the prescribed pre-
arbitral step of conciliation. The court held that where the parties agree
to a specific procedure and mode for settling their dispute by way of
arbitration and prescribe certain pre-conditions for referring the matter
to arbitration, they must comply with those pre-conditions and only then
can they refer the matter to arbitration.

Article 25 of UNCITRAL Model law

An agreement to negotiate in good faith is unenforceable because it is

not sufficiently certain. In Lord Ackner’s words, “[t]he reason why an
agreement to negotiate, like an agreement to agree, is unenforceable, is
simply because it lacks the necessary certainty.” 19 This is in essence a
requirement for the formation of a valid contract. The Court of Appeal,
while acknowledging the theoretical correctness of this view, dismissed
its applicability to the clause in this case. It opined that even though
agreement cannot be guaranteed, parties are obligated to “try as far as
reasonably possible to reach an agreement.”20 The court went on to
draw a parallel between agreements to negotiate in good faith and
agreements to refer a matter to mediation. They also noted the similarity
with ‘best endeavour’ clauses which have been upheld by the High Court
21 and the Court of Appeal.

https://sidra.smu.edu.sg/sites/sidra.smu.edu.sg/files/documents/
A0163.pdf

ISSUE 2: BREACH OF NATURAL JUSTICE

 Aron Broches, 'Commentary on the UNCITRAL Model Law

(1990)', in Lise Bosman (ed), ICCA International Handbook
on Commercial Arbitration, (© Kluwer Law International;
ICCA & Kluwer Law International 2023, Supplement No. 11,
 January 1990), pp. 1 - 202 - Article 25 - Default of a Party- pg
55-56
 Chapter 25: Annulment of International Arbitral Awards
(Updated December 2023)', in Gary B. Born, International
Commercial Arbitration (Third Edition), (© Kluwer Law
International; Kluwer Law International 2021
 Sai Wan Shipping Ltd v Landmark Line Co, Ltd [2021] SGHC
8

 SREI Infrastructure Finance Limited v. Tuff Drilling Private

Limited (2018) 11 SCC 470
 REPORT ON REVIEW OF ARBITRATION LAWS, Singapore
Academy of Law
 CEF and CEG v CEH [2022] SGCA 54

In Sai Wan, the Owner of a vessel brought an ad hoc arbitration against

the Charterer over unpaid hire. The Charterer had failed to participate in
the first part of the proceedings. The Owner then applied for a final
award on the balance sum. Without inviting any submission from the
Charterer on the time it would require, the arbitrator directed that the
Charterer was to provide its defence by a specified date and time, failing
which, the Owner may apply for a final and peremptory order. The
Charterer failed to meet the deadline, and there was correspondence
between the parties’ counsel for an extension of time. Upon review of this
correspondence, the arbitrator proceeded to issue a final and peremptory
order for the Charterer to file its defence by a further set date and time.
The Charterer failed to serve its defence submissions within the time
stipulated. It only did so later the same day, citing internet connectivity
issues as the reason for its delay. The arbitrator considered that he was
bound by the clear terms of his peremptory order, and must exclude the
Charterer’s defence submissions, unless the Owner was prepared to
accept them into evidence. The Owner declined, and the arbitrator
upheld the final and peremptory order.

The Charterer applied to set aside the final award on the basis that a
breach of natural justice occurred, namely that the fair hearing rule was
breached.

Given that this was an arbitration seated in Singapore for which no

arbitral rules had been agreed, the court considered that the Model Law
(which is given force of law by Section 3 of the IAA) applied as to
whether the arbitrator had the power to make or enforce peremptory
orders. Under the Model Law, if a respondent fails to communicate his
statement of defence within the prescribed time, without showing
sufficient cause, the tribunal may continue the proceedings without
treating the failure in itself as an admission of the claimant’s allegation.
The court found that first, the arbitrator should set a procedural
timetable, consulting both parties on the appropriate procedure and
timetable. The arbitrator must be open to reconsidering the time fixed for
submissions. This is even more important in the event no arbitral rules
have been adopted.

Second, when considering whether the party in default has shown

sufficient cause for the failure to communicate its statement of defence,
the arbitrator must hear both parties. The tribunal should give
reasonable opportunity for the defaulting party to explain its failure to
comply. While it is for the arbitrator to determine whether sufficient
cause has been shown, that discretion is subject to the Court’s review to
consider if the arbitrator acted according to what a reasonable and fair-
minded tribunal in the circumstances might have done.

The court found that in the present case, the arbitrator failed to ask for
or consider input from the Charterer on the procedure to be adopted, the
procedural timetable to be imposed, reasons for any non-compliance, or
whether the sanction should be imposed or applied. Further, the terms of
the peremptory order exceeded the arbitrator’s powers under Article 25
of the Model Law. On this basis, the arbitrator failed to give the
Charterer the opportunity to be heard, and the award was set aside.

SREI Infrastructure Finance Limited v. Tuff Drilling Private

Limited (2018) 11 SCC 470

Supreme Court in the matter of SREI Infrastructure Finance Limited v.

Tuff Drilling Private Limited[9] wherein it inter-alia held that there is no
impediment in the power of the arbitrator to accept the cause shown and
permit the Claimant to file its statement of claim subsequent to
termination of proceedings under Section 25(a) of the Act, if the
sufficient cause is shown. In this regard, the Hon’ble Supreme Court
observed that the scheme of Section 25 of the Act clearly indicated that
on sufficient cause being shown, the statement of claim can be permitted
to be filed after the time as fixed by Section 23 of the Act has expired,
and that there is no lack of jurisdiction in the arbitrator to recall its
earlier order terminating the arbitral proceedings if sufficient cause is
shown subsequently. The Hon’ble Supreme Court further observed that
there is no distinction between showing sufficient cause before or after
the proceedings are terminated and if the arbitrator is empowered to
condone default on sufficient cause being shown, it does not matter when
the same is shown. The rationale behind the said approach was that it
would be a pedantic reading of Section 25 of the Act to hold that the
power of the arbitrator in such cases (i.e. post termination) stands
denuded. The Hon’ble Supreme Court affirmed the view taken by Hon’ble
Delhi High Court in the matter of Awasthi Construction Co. (supra) and
Hon’ble Madras High Court in Bharat Heavy Electricals Limited (supra).
https://www.withersworldwide.com/en-gb/insight/read/singapore-
combating-dilatory-conduct-non-participation-in-arbitration-proceedings-
delicate-balance

https://arbitrationasia.rajahtannasia.com/be-careful-what-you-wish-for-
hastily-rendered-award-set-aside-by-singapore-high-court/

https://corporate.cyrilamarchandblogs.com/2020/07/arbitrators-power-to-
recall-its-order-of-termination-of-arbitral-proceeding-part-i/

https://www.google.com/url?
sa=t&source=web&rct=j&opi=89978449&url=https://www.sal.org.sg/
sites/default/files/PDF%2520Files/Law%2520Reform/1993-08%2520-
%2520Review%2520of%2520Arbitration
%2520Laws.pdf&ved=2ahUKEwjfzrab3eCIAxVbXmwGHZCDPQkQFnoEC
CMQAQ&usg=AOvVaw309uX-uifgl4zAflhqdeH-

https://www.aoshearman.com/en/insights/singapore-court-of-appeal-
partially-sets-aside-arbitral-award-for-a-flexible-approach-to-damages

ISSUE 3: JURISDICTIONAL ISSUE

 PT First Media TBK v Astro [2013] SCGA 47

 William W. Park, “The Arbitrator’s Jurisdiction to Determine
Jurisdiction” (2006) 13 ICCA Congress Series 55, at p. 30.
 John Yukio Gotanda, ‘An Efficient Method for Determining
Jurisdiction in International Arbitrations’ (2001) 40(11) Columbia
Journal of International Law.
 Tan, Paul, Nelson Goh, and Jonathan Lim, 'Stay of Court
Proceedings in Favour of Arbitration', The Singapore International
Arbitration Act: A Commentary (2023; online edn, Oxford
Academic), https://doi.org/10.1093/law/9780198828693.003.0007,
accessed 26 Sept. 2024.

 McDermott International Inc. vs. Burn Standard Co., (2006) 11

SCC 181
 Surender Kumar Singhal & Ors. vs Arun Kumar Bhalotia and Ors.,
(2021) 279 DLT 636
 Rakna Arakshaka Lanka Ltd v Avant Garde Maritime services (Pte)
Ltd [2019] SGCA 33
 Astro Nusantara International BV and others v PT Aunda Prima Mitra and others[2012] SGHC
212

In PT First Media TBK v Astro [2013] SCGA 47, The Singapore Court of Appeal underlined
the existence of “active” and “passive” remedies available to an award debtor under the
scheme of the Model Law.

Under this classification:

(a) Articles 16/34 are “active” remedies, in that they provide for the award debtor to take a
positive step in challenging the jurisdiction of an arbitrator; while
(b) Article 36 involves a “passive” remedy, in that the award debtor can wait until the award
creditor brings an enforcement application, and at that stage challenge the jurisdiction of
the arbitral tribunal.21

The Singapore Court of Appeal held that the fact that the award debtor had not applied under
Article 16(3) to review a preliminary ruling on jurisdiction did not prevent it from resisting
enforcement of the award under Article 36 22. In other words, the fact that the award debtor
had not availed itself of an active remedy did not deny it of a passive remedy.

The Singapore Court of Appeal opined (without deciding) that a failure by an award debtor to
avail itself of the remedy in Article 16 (assuming a preliminary ruling on jurisdiction) would
preclude it from raising a jurisdictional objection at the setting-aside stage under Article 34
(post award)23 . Subsequently, the Singapore High Court has decided that an award debtor
cannot reserve its jurisdictional objection to the setting-aside stage, if it has not objected to an
arbitrators’ preliminary ruling on jurisdiction. According to Quentin Loh J, to allow a
respondent to reserve its objection to the setting-aside stage (post award) may allow it to
“indulge in tactics which result in immense delays and cost”.24

Professor Doug Jones has criticised the active – passive remedy dichotomy on the grounds
that it promotes inefficiency in the arbitral process. 25 This is particularly so if the respondent
continues to participate in the arbitration following a ruling on jurisdiction against it, thus
drawing out the process and escalating costs. (the issue has to be decided "prior to making the
final arbitral award", not in the final award itself.)

McDermott International Inc. vs. Burn Standard Co. 1, the Hon'ble Supreme Court observed that the
jurisdictional question under Section 16 is "required to be determined as a preliminary ground."

Surender Kumar Singhal & Ors. vs Arun Kumar Bhalotia and Ors.

https://www.mondaq.com/india/arbitration-dispute-resolution/1226306/whether-the-arbitral-
tribunal-is-bound-to-decide-jurisdictional-questions-under-section-16-at-the-threshold-or-
can-they-be-decided-post-recording-of-evidence-or-along-with-the-final-award

Rakna Arakshaka Lanka Ltd v Avant Garde Maritime services (Pte) Ltd [2019] SGCA 33

https://www.allenandgledhill.com/sg/publication/articles/11278/court-of-
appeal-finds-party-who-fails-to-participate-in-arbitration-proceedings-can-
raise-jurisdictional-objection-after-issue-of-final-award

https://www.herbertsmithfreehills.com/notes/asiadisputes/2018-09/be-on-
time-to-preserve-your-right-to-active-remedies-the-singapore-high-court-
considers-a-partys-duty-to-apply-promptly-when-challenging-the-
jurisdiction-of-an-arbitral-tribunal

https://www.herbertsmithfreehills.com/notes/arbitration/2012-12/
singapore-court-refuses-to-entertain-a-jurisdictional-objection-to-the-
enforcement-of-domestic-international-arbitration-awards