SJLS A0163 2nd Reading

Singapore Journal of Legal Studies

[2022] 450–463

NON-SATISFACTION OF PRE-ARBITRATION REQUIREMENTS:

MOVING AWAY FROM CONDITIONS PRECEDENT
TOWARDS THE ADMISSIBILITY OF A CLAIM

NWA v NVF

Darius Chan* & Joel Soon**

In earlier cases, the non-satisfaction of pre-arbitration requirements has been analysed by the
Singapore and English courts by reference to the issue of conditions precedent. It was assumed
without argument that, if a requirement was construed as a condition precedent, the failure to satisfy
that requirement would deprive the tribunal of jurisdiction. More recently, English and Hong Kong
case law has focused on a different issue, asking whether the failure to meet the pre-arbitration
requirement affects the tribunal’s jurisdiction or the admissibility of the claim. This case note anal-
yses whether the Singapore courts should follow suit.

I. Introduction

Anecdotally, arbitration agreements are increasingly multi-tiered in nature, in

that they provide for arbitration only after contractually-prescribed procedures or
requirements (such as amicable discussions or mediation) have been attempted.1
When there is a failure by a party to comply with a requirement of the arbitration
agreement that the parties should first seek to mediate the dispute or engage in ami-
cable discussions, and the arbitral tribunal has made a ruling on the consequences of
that failure, to what extent is that ruling susceptible to review by the courts?
The orthodox position in England and Singapore was that any such failure to
comply with a pre-arbitration requirement is to be treated as a potential jurisdictional

* Associate Professor of Law (Practice), Singapore Management University; Arbitrator and Advocate,
Fountain Court Chambers; Director, Breakpoint LLC. The author acknowledges and is grateful for the
support of the Singapore International Dispute Resolution Academy BRI Program.
** LLB (Summa Cum Laude) (Singapore Management University).
1 Gary Born, International Commercial Arbitration, 3d ed (The Netherlands: Kluwer Law International,
2021) [Born, International Commercial Arbitration] at 305. See also Argumedo Piñeiro, “Multi-Step
Dispute Resolution Clauses” in Bernardo María Cremades, Miguel Angel Fernández-Ballesteros &
David Arias, eds, Liber Amicorum (Spain: La Ley, 2010) at 733; Gary Born, International Arbitration
and Forum Selection Agreements, Drafting and Enforcing, 4th ed (The Netherlands: Kluwer Law
International, 2013) at 101–104; Alexander Jolles, “Consequences of Multi-Tier Arbitration Clauses:
Issues of Enforcement” (2006) 72(4) Arbitration 329; Michael Pryles, “Multi-Tiered Dispute Resolution
Clauses” (2001) 18(2) J Intl Arb 159.

A0163.indd 450
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 451

defect on the part of the tribunal. On that premise, the tribunal’s ruling is susceptible
to review. This is legislatively provided for in Singapore under the International
Arbitration Act 1994 (“the IAA”),2 read with Articles 16(3) and 34 of the Model
Law,3 and in England under section 67 of the Arbitration Act 1996 (UK).4 As part of
the exercise of reviewing whether a tribunal has jurisdiction, the English courts in
Emirates Trading Agency LLC v Prime Minister Exports Pte Ltd (“Emirates”)5 and
Tang v Grant Thornton International Limited (“Tang”),6 and the Singapore Court
of Appeal in International Research Corp PLC v Lufthansa Systems Asia Pacific
Pte Ltd (“IRC”)7 considered whether the pre-arbitration requirements constituted
conditions precedent, whether they were sufficiently certain to be enforceable, and
whether substantial compliance is sufficient. The result of these deliberations has
been differing approaches between the English and Singapore courts.
However, the approach has now shifted under English and Hong Kong law.
Absent clear and specific contractual text to the contrary, a tribunal’s ruling on the
consequences of a party’s failure to comply with pre-arbitration requirements is
generally not susceptible to review by the courts. This was the holding in recent
English decisions such as The Republic of Sierra Leone v SL Mining Ltd (“SL
Mining”)8 and NWA v NVF (“NWA”),9 and in Hong Kong decisions such as C v
D,10 and Kinli Civil Engineering Ltd vs Geotech Engineering Ltd (“Kinli”).11 While
the Singapore courts have yet to reconsider this matter in the nine years since IRC,
the authors suggest that Singapore law should generally adopt an approach that is
similar to the approach presently adopted in England and Hong Kong. Specifically,
the Singapore courts should first construe the dispute resolution clause in question.
In the absence of language or evidence to the contrary, the Singapore courts should
presume that commercial parties have intended the arbitral tribunal (as the final tier
in the dispute resolution clause) to be a one-stop shop to resolve all disputes lead-
ing up to the arbitration itself, including disputes over whether the pre-arbitration
requirements have been fulfilled. On that basis, the tribunal’s decision over such
disputes is not susceptible to curial review.

II. The old paradigm: enforceability and compliance

with conditions precedent to arbitration

The twin cases of Tang and Emirates illustrate how the English courts stood divided
on the enforceability of pre-arbitration requirements. Even though the decisions

2 (No 23 of 1994, Sing) [IAA].

3 UNCITRAL Model Law on International Commercial Arbitration.
4 Arbitration Act 1996 (c 23) (UK).
5 [2015] 1 WLR 1145 [Emirates].
6 [2013] 1 All ER 1226 [Tang].
7 [2014] 1 SLR 130 (CA) [IRC].
8 [2021] EWHC 286 [SL Mining].
9 [2021] EWHC 2666 [NWA v NVF].
10 [2022] HKCA 729 [C v D (HKCA)]
11 [2021] HKCFI 2503 [Kinli].

A0163.indd 451
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 SJLS A0163 2nd Reading

452 Singapore Journal of Legal Studies[2022]

differed, both cases focused on the issue of conditions precedent, indicating what a
breach of those requirements would entail.
In Tang, the relevant clauses required amicable discussions and the formation of
a dispute resolution panel before either party could commence LCIA arbitration.
Hildyard J framed the issue as whether the clauses in question had enforceable
contractual effect and operated as a condition precedent such that the tribunal could
not have had jurisdiction, and was wrong in its determination that it had.12 This
turned on whether the content of the clauses was sufficiently precise and certain to
be enforced.13
As a starting point under English law, the orthodox position was that agreements
to negotiate in good faith are (without more) generally unenforceable for lack of
certainty.14 In this case where the clauses contained positive obligations to attempt
to resolve a dispute amicably before arbitration, the test was whether the clauses pre-
scribed a sufficiently certain and unequivocal commitment to commence a process,
from which may be discerned what steps each party must take to put the process
in place.15 This should be clear enough to enable the court to determine objectively
what a party must minimally do, and when or how the process will be exhausted.16
Hildyard J found that the relevant clauses were too equivocal in terms of the pro-
cess required and too nebulous in terms of the content of the parties’ obligations
to constitute an enforceable condition precedent to arbitration.17 The omission to
provide guidance as to the quality or nature of the attempts to be made to resolve the
dispute prevented the court from being able to determine or direct compliance.18 As
the relevant clauses were insufficiently certain to constitute enforceable conditions
precedent to the commencement of arbitration, the court confirmed that the tribunal
did have jurisdiction.19
Tang can be contrasted to the subsequent decision of Emirates. In this case, Teare
J overruled the tribunal’s decision that the relevant pre-arbitration requirements were
not enforceable.20 Teare J found that the relevant clause, which required parties to
first seek to resolve a dispute by friendly discussions in good faith and within a lim-
ited period of time before the dispute could be referred to arbitration, constituted an
enforceable condition precedent to arbitration.21 As those requirements were met,
Teare J held that the tribunal did have jurisdiction.22

12 Tang, supra note 6 at [4].

13 Ibid at [5].
14 Ibid at [57].
15 Ibid at [60].
16 Ibid at [60].
17 Ibid at [72].
18 Ibid at [72]
19 Ibid at [82]. See also Children’s Ark Partnerships Limited v Kajima Construction Europe (UK) Limited
[2022] EWHC 1595 (TCC) finding that, although the court should be slow to deny enforceability, the
relevant provisions in that case did not create an enforceable obligation to commence or participate in
an amicable process to resolve disputes prior to court litigation. In that case, the English High Court
accepted the submissions of both parties that “cases dealing with ADR provisions prior to arbitration”
were not directly applicable to cases which involved ADR provisions prior to court litigation.
20 Emirates, supra note 5 at [6].
21 Ibid at [63].
22 Ibid at [73].

A0163.indd 452
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 453

Teare J echoed the views of Allsop P in United Group Rail Services v Rail
Corporation New South Wales23 in reasoning that the relevant clause was neither
incomplete nor uncertain – an obligation to seek resolution of a dispute by friendly
discussions in good faith meant fair, honest, and genuine discussions.24 Enforcement
of such a requirement when found as part of a dispute resolution clause was in the
public interest because commercial men expected the court to enforce obligations
freely undertaken, the object of which is to avoid expensive and time-consuming
arbitration.25
In coming to this conclusion, Teare J first distinguished both Walford v Miles26
and Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA,27 and found
that there was no precedent which obliged him to hold that the relevant clause was
unenforceable.28 Secondly, contrary to Hildyard J’s suggestion in Tang that good
faith was too open-ended a concept, Teare J relied on case law from ICSID and
Singapore, in which obligations to seek to resolve disputes by negotiation in good
faith had been found to be enforceable.29
Notwithstanding the different conclusions of these two English cases, both cases
showcase how a failure to comply with pre-arbitration requirements was treated,
without contrary argument, as a potential jurisdictional defect on the part of the
tribunal that was subject to review by the English courts under section 67 of the
English Arbitration Act.
The same position was adopted in Singapore. In IRC, the Singapore High Court
first considered an application under section 10 of the IAA to review the tribunal’s
ruling on jurisdiction.30 Similar to the position in England, non-compliance with
conditions precedent to arbitration was treated as a potential jurisdictional defect
under Singapore law. By comparison, however, the Singapore courts have not faced
as much dissonance as the English courts in respect of the issue of enforceability
of clauses requiring parties to negotiate in good faith. Relying on the Singapore
Court of Appeal’s decision in HSBC Institutional Trust Services (Singapore) Ltd
v Toshin Development Singapore Pte Ltd,31 the High Court in IRC ruled that (i) a
clause requiring parties to negotiate in good faith was enforceable; and (ii) it was
a condition precedent to arbitration (which had been satisfied).32 Whilst the High
Court’s decision was overturned by the Court of Appeal, as described below,33 the
apex court did not disturb the High Court’s ruling that a clause requiring parties to
negotiate in good faith was enforceable under Singapore law.34

23 [2009] NSWCA 177.

24 Emirates, supra note 5 at [64].
25 Ibid at [64].
26 [1992] 2 AC 128.
27 [2013] 1 WLR 102.
28 Emirates, supra note 5 at [59]-[60].
29 Ibid at [53]–[57]; International Research Corp. PLC v Lufthansa Systems Asia Pacific Pte Ltd [2013]
1 SLR 973 (HC); Tulip Real Estate Investment and Development Netherlands BV v Republic of Turkey
(ICSID Case No ARB/11/28) (5 March 2013) at [56]–[72].
30 IRC, supra note 7 at [11].
31 [2012] 4 SLR 738.
32 IRC, supra note 7 at [14].
33 Ibid at [63].
34 Ibid at [54].

A0163.indd 453
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 SJLS A0163 2nd Reading

454 Singapore Journal of Legal Studies[2022]

More critically, IRC is instructive in elucidating the level of compliance required

for pre-arbitration requirements. Influenced by the notion that the “object” of the
clause in question had been met, the High Court held that the conditions precedent to
arbitration had been satisfied, ie, substantial compliance was sufficient.35 The Court
of Appeal reversed, clarifying that actual compliance and not substantial compli-
ance is required.36 As there was no actual compliance with the conditions precedent
to arbitration, the agreement to arbitrate could not be invoked, and, on that basis,
the tribunal did not have jurisdiction. As the court focused on the issue of conditions
precedent throughout its analysis, holding that actual (rather than s­ ubstantial) com-
pliance with a condition precedent is needed, this is understandable. It illustrates
how the focus of juridical analysis regarding pre-arbitration requirements will have
a significant effect on case outcomes.

III. The New Paradigm? Jurisdiction Versus Admissibility

It is apparent from the foregoing discussion that English and Singapore decisions
looking at pre-arbitration requirements had focused on the issue of conditions prec-
edent, but the precise origin and rationale for that focus is not clear. In Tang and
Emirates, parties had framed their cases, from the outset, along the lines of whether
the pre-arbitration requirements operated as conditions precedent such that the
­tribunal could not have had jurisdiction.
In 2018, an alternative issue was drawn out for the first time, ie, a distinction
between a challenge that a claim was not admissible versus a challenge that the
tribunal has no jurisdiction.37 In a case involving the enforcement of an investment
arbitration award in PAO Tatneft v Ukraine, Ukraine argued before the English
courts that the award was not enforceable because, among other reasons, it was an
abuse of rights by the investor to bring the claim in question.38 Butcher J accepted
the investor’s argument that the issue is not jurisdictional, but is instead a matter
going to admissibility, and it is one for the tribunal to decide.39 In 2019, the jurisdic-
tion versus admissibility distinction was held to be crucial in another case involving
the setting aside of an investment arbitration award before Butcher J in Republic
of Korea v Dayyani.40 This time, Butcher J held that a dispute over whether the
investor in question is distinct from the company which directly owns the invest-
ment goes towards the admissibility of the claim, rather than the jurisdiction of the
tribunal.41
The crucial nature of the jurisdiction versus admissibility distinction has become
apparent recently in England, Singapore and Hong Kong not only in the investment
arbitration sphere but also in the commercial arbitration sphere.

35 Ibid at [56]–[59].
36 Ibid at [56]–[62].
37 PAO Tatneft v Ukraine [2018] EWHC 1797 at [8].
38 Ibid at [95].
39 Ibid at [97]–[99].
40 [2019] EWHC 3580 (Comm).
41 Ibid at [83].

A0163.indd 454
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 455

In particular, in relation to pre-arbitration requirements, the English and

Hong Kong courts have moved away from the traditional approach of asking
whether they constitute conditions precedent to arbitration. Instead, the English
and Hong Kong courts have held that unless there is clear contractual text to the
­contrary, a tribunal’s finding on the consequences of a party’s non-compliance with
pre-arbitration requirements is generally not reviewable by the courts in the first
place. This is because those are issues affecting the admissibility of the claim rather
than the jurisdiction of the tribunal.
Specifically, the English High Court in SL Mining observed that there exists a
distinction between a challenge that a claim was not admissible before the tribunal
(admissibility), and a challenge that the tribunal had no jurisdiction to hear a claim
(jurisdiction).42 Only the latter challenge is available to a party under section 67 of
the Arbitration Act (UK), which would render the tribunal’s finding susceptible to
curial review.43
In SL Mining, the relevant clauses provided that parties can commence ICC
arbitration after 3 months have elapsed from a written notice of dispute seeking
amicable settlement. The claimant in the underlying arbitration in that case filed
for arbitration before the 3-month timeframe elapsed. The question was whether
the premature nature of the Request for Arbitration was a challenge to the substan-
tive jurisdiction of the tribunal under section 67. Notably, the English High Court
rejected any reliance on Emirates and Tang on the basis that, in those earlier cases,
the difference between jurisdiction and admissibility had not been canvassed.44
Apart from commentators and international authorities which were “plainly over-
whelmingly in support of a case that a challenge such as the present does not go to
jurisdiction”, Sir Michael Burton also cited the Singapore Court of Appeal decision
of BBA v BAZ,45 and agreed that:

if the issue relates to whether a claim could not be brought to arbitration, the
issue is ordinarily one of jurisdiction … whereas if it relates to whether a claim
should not be heard by the arbitrators at all, or at least not yet, the issue is ordi-
narily one of admissibility, [and] the tribunal decision is final.46

In SL Mining, the court, citing Fiona Trust v Privalov,47 reasoned that, since the
contention was about whether the claim was presented too early, the tribunal was
in the best position to decide such an issue,48 and that would in turn give effect to
the choice of the parties. The court concurred with the tribunal’s conclusion that “if
reaching the end of the settlement period is to be viewed as a condition precedent at
all … it could therefore only be a matter of procedure, that is, a question of admissi-
bility of the claim, and not a matter of jurisdiction” [emphasis in original].49

42 SL Mining, supra note 8 at [8].

43 Ibid at [8].
44 Ibid at [13].
45 [2020] 2 SLR 453 (CA) [BBA v BAZ].
46 SL Mining, supra note 8 at [18].
47 Ibid at [20]; [2007] 1 AER 951.
48 SL Mining, ibid at [18].
49 Ibid at [21].

A0163.indd 455
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 SJLS A0163 2nd Reading

456 Singapore Journal of Legal Studies[2022]

After SL Mining, the English High Court in NWA was confronted with the issue
whether non-compliance with the requirement for prior mediation precluded sub-
sequent access to LCIA arbitration.50 In that case, the relevant agreement provided
that, in the event of a dispute, the parties should first seek settlement by mediation,
and if the dispute were not settled by mediation, the dispute should be referred to
LCIA arbitration. When a dispute arose, one party commenced LCIA arbitration,
and thereafter made repeated proposals that the parties go for mediation. The coun-
terparty did not accept the proposals for mediation. Eventually the LCIA tribunal
proceeded to issue a decision affirming its jurisdiction to proceed notwithstanding
the parties’ failure to mediate the dispute. The tribunal’s decision was the subject of
challenge in NWA.
Relying on ordinary principles of contractual interpretation,51 and principles
­specific to arbitration clauses,52 Calver J held that it was clear “that what the parties
as rational businessmen consensually agreed and intended was that any dispute aris-
ing out of or in connection with their agreement should be referred to arbitration”
[emphasis in original in italics, emphasis added in bold italics].53 That there was no
intention for disputes to be litigated was buttressed by the parties’ express waiver of
any right of recourse to national courts.54
On the failure to comply with the mediation procedure, Calver J observed, that:

[if] Party A refuses to mediate with Party B … I do not consider that there is
any obligation upon Party B … to continue to seek settlement of the dispute by
mediation … [i]t cannot be the case that in these circumstances the tribunal does
not have jurisdiction … That would be absurd and would not give the clause busi-
ness common sense; nor would it give it a construction that rational businessmen
would have intended.55

Calver J concluded that the relevant clause should be construed in light of the objec-
tive intention of the parties, which was to obtain a swift and final determination of
their dispute.56 In concurring with SL Mining, Calver J held that the objection that
parties have not yet sought to settle the dispute by mediation concerns the admissi-
bility of the claim, rather than whether the arbitrator has jurisdiction to determine
the claim at all.57 Consequently, it is for the arbitrator to determine the consequences
of any alleged breach of the pre-arbitration requirement.58
Under this new approach, it is not the case that discussion about whether par-
ticular terms of an agreement are too vague to be enforceable, or about whether
they constitute conditions precedent which must be fulfilled, is no longer relevant.
Rather, it is the tribunal that, must decide the issue, and the tribunal’s decision is not

50 NWA v NVF, supra note 9 at [28].

51 Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Limited [2018] EWHC 163 (Comm).
52 Premium Nafta Products Limited & others v Fili Shipping Company Limited [2007] UKHL 40.
53 NWA v NVF, supra note 9 at [34].
54 Ibid at [34].
55 Ibid at [40].
56 Ibid at [47].
57 Ibid at [45]–[47].
58 Ibid at [55]–[57].

A0163.indd 456
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 457

susceptible to review by the courts on the basis that these issues go towards “admis-
sibility” of the claim, rather than the tribunal’s jurisdiction.59
The Hong Kong courts have followed suit. In C v D, the Hong Kong Court of
First Instance had to ascertain the effect of alleged non-compliance with the relevant
pre-arbitration requirement, which required the parties to attempt in good faith to
resolve any disputes by negotiation and provided the option of referring disputes
to the respective Chief Executive Officers.60 The court analysed the issue using
the admissibility versus jurisdiction distinction.61 After surveying leading academic
works and cases from England, Singapore, and the United States, the court cited
SL Mining and opined that the “generally held view of international tribunals and
national courts is that non-compliance with procedural pre-arbitration conditions
such as a requirement to engage in prior negotiations goes to admissibility of the
claim rather than the tribunal’s jurisdiction” [emphasis added].62 The court gave
two reasons for accepting this position as part of Hong Kong law.
First, although the pre-arbitration requirement is regarded as going to admissibil-
ity and not jurisdiction, it does not mean it is denied contractual force or rendered
unimportant.63 Rather, the tribunal has jurisdiction and may deal with the question
as it sees fit; for instance, by ordering a stay of the arbitral proceedings pending
compliance with the pre-arbitration requirement. As multi-tiered dispute resolution
clauses are potentially complex in their operation, according to the court the tribu-
nal chosen by the parties will typically be better placed to consider and determine
what must be done procedurally – including whether it would be futile to compel
parties to “go through the motions” – having regard to commercial realities and
practicalities.64
Secondly, this approach would be “entirely consistent with the policy in Hong
Kong law which respects the parties’ autonomy in choosing arbitration as the means
to resolve their disputes with its incident of speed and finality as well as privacy”.65
Accordingly, under Hong Kong law, questions of the construction and fulfilment
of pre-arbitration requirements should be left to be decided by the arbitral tribunal,
without de novo review by the courts.66
In another Hong Kong Court of First Instance decision in Kinli, the relevant
clause provided that arbitration shall not be conducted before either the comple-
tion of the main contract or the determination of the subcontract, unless otherwise
agreed by both parties.67 The court also held that such questions relating to whether
the requirements as to the exercise of the right to arbitration had been satisfied are
for the tribunal to decide; the court has no role in deciding such questions.68

59 BBA v BAZ, supra note 45 at [73]; BTN v BTP [2021] 1 SLR 276 [BTN v BTP] at [68].
60 C v D [2021] HKCFI 1474 [C v D (HKCFI)] at [21].
61 Ibid at [26].
62 Ibid at [42], citing SL Mining at [16].
63 Ibid at [48]–[49].
64 Ibid at [49].
65 Ibid at [50], citing China International Fund Ltd v Dennis Lau & Ng Chun Man Architects & Engineers
(HK) Ltd [2015] 4 HKLRD 609.
66 C v D (HKCFI), ibid at [48]–[54].
67 Kinli, supra note 11 at [3].
68 Ibid at [33].

A0163.indd 457
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 SJLS A0163 2nd Reading

458 Singapore Journal of Legal Studies[2022]

C v D went on appeal. The appellant argued that the award should be set aside
under Articles 34(2)(a)(iii) and (iv) of the Model Law. In dismissing the appeal,
the Hong Kong Court of Appeal confirmed after a comparative review of case law
and academic writing that the distinction between jurisdiction and admissibility
was well-established.69 The appellant first argued that the distinction should not be
adopted because it is not borne out in the text of the Model Law itself.70 However,
the court opined that it did not mean that the distinction was irrelevant.71 The court
agreed with the Hong Kong Court of First Instance that:

the distinction between jurisdiction and admissibility is … a concept rooted in

the nature of arbitration itself, and may properly be relied upon to inform the
construction and application of [Article 34 of the Model Law] even though the
Ordinance does not in terms draw such a distinction [emphasis in original].72

The court opined that recognising the distinction would (i) likely give effect to the
agreement of parties, who as rational businessmen are likely to intend that any dis-
pute arising out of their relationship would be decided by the same tribunal; (ii) be
in line with the general trend of minimizing judicial interference; (iii) further the
object of the Hong Kong Arbitration Ordinance to facilitate the fair and speedy
resolution of disputes without unnecessary expense; and (iv) ensure that Hong
Kong does not fall out of line with major arbitration centres such as London or
Singapore.73
Further, the appellant argued that even if the distinction exists, the objection was
jurisdictional in nature because the relevant pre-arbitration requirement was a con-
dition precedent.74 However, the Hong Kong Court of Appeal held that:

it [was] an over-simplification to say that where a reference to arbitration is sub-

ject to some condition precedent, an arbitral tribunal’s decision on whether the
condition precedent has been fulfilled must necessarily be a jurisdictional deci-
sion, or one which is open to review by the court under Art 34(2)(a)(iii). The true
and proper question to ask is whether it is the parties’ intention (or agreement)
that the question of fulfilment of the condition precedent is to be determined by
the arbitral tribunal, and thus falls ‘within the terms of the submission to arbitra-
tion’ under Art 34(2)(a)(iii).75

In this connection, the respondent argued that an objection based on an alleged fail-
ure to observe pre-arbitration procedural requirements should be presumed, unless
a clear and unequivocal intention of the parties to the contrary is shown, to be an
objection going to the admissibility of the claim, rather than the jurisdiction of the

69 C v D (HKCA), supra note 10 at [28]–[43].

70 Ibid at [44].
71 Ibid at [45].
72 Ibid at [45].
73 Ibid at [46].
74 Ibid at [52].
75 Ibid at [61].

A0163.indd 458
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 459

tribunal, and thus judicial intervention in the arbitral tribunal’s decision on such
objection is excluded. The court held that it was not necessary to consider the merits
of the presumptive approach that was advanced but considered it significant that the
appellant’s objection was not that the substantive claim could never be referred to
arbitration or be arbitrated at all.76
The Hong Kong Court of Appeal also held, for the sake of completeness, that
even if the distinction between jurisdiction and admissibility were to be disregarded,
the court would still reach the same conclusion that the question of the fulfilment
of the pre-arbitration procedural requirement was a dispute falling within the terms
of the submission to arbitration. The court reasoned that the scope of the arbitration
clause in question was drafted very widely and there was no reason to exclude dis-
putes on whether pre-arbitration procedural requirements have been met.77 In the
Hong Kong Court of Appeal’s view, the question of whether pre-arbitration proce-
dural requirements have been fulfilled:

is a question intrinsically suitable for determination by an arbitral tribunal, and is

best decided by an arbitral tribunal in order to give effect to the parties’ presumed
intention to achieve a quick, efficient and private adjudication of their dispute by
arbitrators chosen by them on account of their neutrality and expertise.78

IV. Should Singapore follow the same approach?

The court in SL Mining had cited the Singapore Court of Appeal in BBA v BAZ for
the distinction between jurisdiction and admissibility.79 In BBA v BAZ, the Court
of Appeal also endorsed the “tribunal versus claim” test, which asks “whether the
objection is targeted at the tribunal (in the sense that the claim should not be arbi-
trated due to a defect in or omission to consent to arbitration), or at the claim (in that
the claim itself is defective and should not be raised at all)”.80
The admissibility versus jurisdiction distinction, which had initially featured in
the Singapore Court of Appeal’s decision of Swissbourgh Diamond Mines (Pty) Ltd
and others v Kingdom of Lesotho,81 an investor-state case concerning the exhaustion
of local remedies, has since been applied in Singapore to non-investor state cases
concerning time bars,82 res judicata,83 and subject matter arbitrability.84 Indeed in
BBA v BAZ, the Singapore High Court explained as follows:85

76 Ibid at [60].
77 Ibid at [61].
78 Ibid at [63].
79 SL Mining, supra note 8 at [18]. See also C v D (HKCFI), supra note 61 at [37]–[38].
80 BBA v BAZ, supra note 45 at [77].
81 [2019] 1 SLR 263 [Swissbourgh] at [207].
82 BBA v BAZ, supra note 45 at [74].
83 BTN v BTP, supra note 59 at [68].
84 Westbridge Ventures II Investment Holdings v Anupam Mittal [2021] SGHC 244 at [39].
85 BBA v BAZ [2018] SGHC 275 at [128].

A0163.indd 459
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:40
 SJLS A0163 2nd Reading

460 Singapore Journal of Legal Studies[2022]

In determining what is considered a jurisdictional challenge under Art 34 of

the Model Law, it is instructive to have regard to the difference between the
concepts of jurisdiction of tribunal and admissibility of claim. The distinction
is often considered in the context of investment treaty arbitration, but the con-
cept of admissibility is found outside the International Centre for the Settlement
of Investment Disputes Convention, and is relevant to non-investment treaty
­arbitrations as well…

To the extent that the recent approach in England and Hong Kong is adopted in
Singapore, a case like IRC would likely be decided differently, in that the failure to
comply with procedural requirements to arbitration would affect the admissibility
of the claim, and not the jurisdiction of the tribunal. This is because the object-
ing party is fundamentally not asserting that the tribunal has no jurisdiction at all;
instead, the objecting party is asserting that certain procedural requirements (such
as amicable discussions or mediation) should have been complied with before the
claim was brought. Applying the “tribunal versus claim” test, such a contention
goes towards admissibility, and not jurisdiction, because the argument is not that the
claim could not be brought to the particular forum seized, but rather that the claim
should not be heard yet.86 On that basis, a tribunal’s ruling on the consequences of a
party’s failure to comply with such conditions is final, and would not be susceptible
to de novo review by the courts.
This, however, should not be taken to mean that the admissibility versus juris-
diction divide is always clear or easy to draw.87 For instance, while the failure of a
claimant to exhaust local remedies has traditionally been regarded as a matter that
renders the claim inadmissible,88 the Singapore Court of Appeal in Swissbourgh
Diamond Mines v Kingdom of Lesotho found in that case that the exhaustion of local
remedies was a jurisdictional requirement because it was a pre-condition for the
state’s consent to arbitration.89 The difficulty in distinguishing between jurisdiction
and admissibility in certain cases has unsurprisingly led to commentators suggest-
ing eradication of the divide, and shifting the focus to whether an objection is juris-
dictional or non-jurisdictional. Specifically, Hwang and Lim have suggested that
the jurisdictional versus admissibility distinction does not tell one how to ascertain
whether a pre-arbitration requirement goes towards jurisdiction or admissibility. In
their view, instead of asking whether a pre-arbitration requirement is procedural,
aspirational, or mandatory, one should interpret the dispute resolution clause in

86 Jan Paulsson, “Jurisdiction and Admissibility” in Gerald Aksen et al, eds, Global Reflections on
International Law, Commerce and Dispute Resolution (France: ICC Publishing, 2005) at 616–617.
87 Ibid at 603, citing Methanex Corporation v United States of America, Partial Award on Jurisdiction and
Admissibility, 7 August 2002, 7 ICSID Reports 239 at 271; see also Harshal Morwale & Mohamed
Elnaggar, “The Curious Case of Annulment of Jurisdictional Award in the UAE: Jurisdiction,
Admissibility and Practical Considerations” (2022) 2 NUJS Journal on Dispute Resolution 36.
88 Swissbourgh, supra note 81 at [206], citing Chittaranjan Felix Amerasinghe, Local Remedies in
International Law, 2d ed (United Kingdom: Cambridge University Press, 2004) at 294; The Panevezys-
Saldutiskis Railway Case (Estonia v Lithuania) [1939] PCIJ (ser A/B) No 76 at 22; Interhandel
Case (Switzerland v United States of America) Preliminary Objections [1959] ICJ 6 at 27. See also
RosInvestCO UK Ltd v The Russian Federation SCC Case No V079/2005, Award on Jurisdiction
(1 October 2007) at [153].
89 Swissbourgh, ibid at [209].

A0163.indd 460
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:41
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 461

question, looking at, inter alia, the ordinary meaning of the clause in light of its
context, object and purpose.90
It is agreed that the starting point of analysis must be to undertake a proper
construction of the dispute resolution clause in question. Accordingly, if the clause
expressly provides that failure to abide by a pre-arbitration requirement means
that the tribunal does not have jurisdiction, the agreement of the parties should be
respected. The difficulty, however, is that most clauses often do not state the impor-
tance or consequences of a failure to meet any pre-arbitration requirement, and there
is typically little negotiation over the clause in question. The task of contractual
interpretation is therefore a formidable challenge.
It is suggested here that, as a practical approach, in the absence of language
or evidence that parties intended non-fulfilment of a pre-arbitration requirement
to negate the tribunal’s jurisdiction, the Singapore courts should not automatically
assume that to be the case (as appears to have done in IRC). Instead, in interpret-
ing the dispute resolution clause in question, the Singapore courts should (as the
respondent in C v D argued) presume that, in the absence of language or evidence
to the contrary, parties have intended pre-arbitration requirements to be part of the
overall dispute resolution procedure culminating with arbitration as the “final” tier.
These requirements typically involve issues concerning timing of the arbitration,
such as cases involving (i) a claim that has been submitted for arbitration before a
“cooling off” period has fully elapsed (SL Mining); or (ii) a claim that has been sub-
mitted for arbitration before amicable discussions or mediation take place (NWA; C
v D). In the absence of language or evidence to the contrary, the Singapore courts
should presume that commercial parties have intended the arbitral tribunal (as the
final tier in the dispute resolution clause) to be a one-stop shop to resolve all dis-
putes leading up to the arbitration itself.91 In the absence of language or evidence
to the contrary, one should presume that issues concerning the non-fulfilment of
pre-arbitration requirements should be decided by the arbitral tribunal.
In this connection, the practical guidance that can be gleaned from NWA is note-
worthy. If a tribunal is faced with a dispute in which a party has not complied with
certain requirements to arbitration, and the non-compliance can be overcome, a
tribunal could consider granting a stay of the arbitration to enable the parties to
comply with those requirements.92 In the court’s view, this finds support in section
9(2) of the Arbitration Act 1996 (UK), which provides that “[a]n application [to stay
legal proceedings in favour of arbitration where the parties have agreed to arbitrate]
may be made notwithstanding that the matter is to be referred to arbitration only
after the exhaustion of other dispute resolution procedures”.93 What section 9(2)
evinces is that the English courts will enforce the parties’ intention to have disputes

90 Michael Hwang & Si Cheng Lim, “Chapter 16: The Chimera of Admissibility in International
Arbitration” in Neil Kaplan & Michael J. Moser, eds, Jurisdiction, Admissibility and Choice of Law in
International Arbitration (The Netherlands: Kluwer Law International, 2018) at 265–288.
91 See SL Mining, supra note 8 at [14].
92 NWA v NVF, supra note 9 at [51], citing Chartered Institute of Arbitrators, “Jurisdictional Challenges”
(International Arbitration Practice Guideline, 2015) <https://www.ciarb.org/media/4192/guideline-3-ju-
risdictional-challenges-2015.pdf>. See also Morwale & Elnaggar, supra note 87 at 40.
93 NWA v NVF, ibid at [58], citing Arbitration Act 1996 (c 23) (UK).

A0163.indd 461
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:41
 SJLS A0163 2nd Reading

462 Singapore Journal of Legal Studies[2022]

referred to arbitration even though they have also agreed that another dispute reso-
lution mechanism, such as mediation, should first be exhausted.94
In the Singapore context, whilst there is no equivalent of section 9(2) of the
Arbitration Act 1996 (UK), section 6(2) of the IAA allows the court to grant a stay
upon such terms or conditions as it thinks fit. The guidance in NWA that a court or
tribunal could consider granting a stay (as the case may be) can be applied to a case
like Heartronics Corporation v EPI Life Pte Ltd.95 In that case, the Singapore High
Court refused to grant a stay of court proceedings in favour of arbitration because,
in its view, the first defendant had committed a repudiatory breach of the arbitration
agreement by conveying that it had no interest in performing its obligation under the
relevant med-arb clause to participate in mediation.96 The first defendant delayed
matters, failed to pay the relevant fees for mediation, and alleged that it had cash-
flow issues which were not substantiated. Under those circumstances, the court held
that the first defendant’s repudiatory breach was accepted by the plaintiff, thereby
rendering the med-arb clause inoperative.97
However, Heartronics could arguably have been handled differently. In the face
of an apparent failure by the first defendant to satisfy a pre-arbitration requirement,
the court could have granted a stay of court proceedings simpliciter, and let the
tribunal decide the consequences of the first defendant’s failure to participate in
mediation.
That a stay in favour of arbitration should be ordered was the outcome of a
recent New South Wales Supreme Court decision in WCX M4-M5 Link AT Pty
Ltd v Acciona Infrastructure Projects Australia Pty Ltd (No 2).98 In that case, the
multi-tiered dispute resolution clause required negotiation, then expert determi-
nation, then arbitration. The court held that failure to complete preliminary steps
in a multi-tiered dispute resolution clause did not make the clause “inoperative”
for the purposes of Article 8 of the New South Wales Commercial Arbitration Act
2010 (which is in pari materia to Article 8 of the Model Law). The court explained
that finding the clause “inoperative” would undermine the object of the New South
Wales Commercial Arbitration Act, depart from the interpretation of the term “inop-
erative” more widely, and enable a party to bypass their contractual bargain to sub-
mit their disputes to arbitration by commencing proceedings before all preliminary
steps have been completed. Accordingly, a stay in favour of arbitration was granted
by the court.99
Even though the case of Heartronics featured a plaintiff that itself had tried to
comply with the pre-arbitration requirements (as distinct from a case where the
plaintiff sought to bypass those requirements), it is arguable that the consequences
of the defendant’s refusal to participate in the pre-arbitration mediation process
should have been referred to arbitration. After all, there was no evidence that the
defendant was not prepared to arbitrate the dispute. The tribunal, in turn, could

94 NWA v NVF, ibid at [58].

95 [2017] SGHCR 17.
96 Ibid at [153]–[169].
97 Ibid at [168]–[169].
98 [2022] NSWSC 505.
99 Ibid at [146].

A0163.indd 462
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:41
 2nd Reading  SJLS A0163

Sing JLS Non-Satisfaction of Pre-Arbitration Requirements 463

have ordered a stay of the arbitration for the parties to attempt mediation first.
Alternatively, the court could have granted a stay of the court proceedings on the
condition that the defendant seeking the stay participate in mediation (followed by
arbitration if mediation is unsuccessful). Such an approach arguably better gives
effect to the objective intention of the parties in choosing arbitration as part of the
arb-med clause to resolve their dispute, instead of finding that the clause in question
was inoperative.100

100 NWA v NVF, supra note 9 at [34]. See also Born, International Commercial Arbitration, supra note 1
at 306 (“Even where an agreement provides for arbitration only after a lengthy process of other dispute
resolution mechanisms, it still remains an arbitration agreement. Arbitration delayed is not, so to speak,
not arbitration.”).

A0163.indd 463
Electronic copy available at: https://ssrn.com/abstract=4301700 11-24-22 17:48:41