[2007] 1 SLR(R) 629 - Singapore Law

646 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
within its territorial scope of application or in the context of articles 8
and 36.
3. However, the second part of the provision is addressed only to
the courts of State X and declares their measures to be compatible with
an arbitration agreement irrespective of the place of arbitration.
Assuming wide adherence to the model law, these two parts of the
provision would supplement each other and go a long way towards
global recognition of the principle of compatibility, which, in the
context of the 1958 New York Convention, has not been uniformly
accepted.
33 The purpose of Art 9 is clear. It is to declare the compatibility between
arbitrating the substantive dispute and seeking assistance from the courts
for interim protective measures. For this reason, Art 9 can have no bearing
on the meaning and effect of a domestic law providing for interim
measures, such as s 12(7) of the IAA. It can neither subtract nor add to the
meaning and effect of s 12(7) which has to be determined by reference to its
own language and structure, as well as any other relevant extrinsic matters.
We will now examine these matters.
34 As we have stated earlier, the two judges disagree on the scope of
s 12(7). Prakash J was not persuaded that it was intended to assist foreign
arbitration. Ang J was convinced that it was so intended as there is nothing
in s 5(2) of the IAA which limits the definition of “international
arbitration” to arbitrations with their seat of arbitration in Singapore. We
will now examine the respective merits of the two interpretations and set
out our own judgment on these matters.
The purpose of the IAA – why, when and how section 12(7) was enacted
35 In our view, the key to unlocking the true meaning of s 12(7) is to
examine the history of why, when and how s 12(7) came to be enacted.
Prakash J has alluded to this point in her judgment, but she did not
elaborate on or pursue it. Counsel for Magnifica has provided us a great
deal of preparatory and legislative materials to guide us in this search. The
first noteworthy point is that sub-s (7) (then sub-s (6)), when it was
enacted, was inserted as the last subsection of s 12. Unlike the preceding
sub-ss (1) to (5), sub-s (7) was not part of the original s 12. In our opinion,
this is a significant factor in the search of its original intent. We have
mentioned earlier that the original Bill was submitted to the LRC for its
consideration, and later revised by the inclusion of, inter alia, s 12(7) (then
s 12(6)). The Committee has provided an explanatory note on the revisions
called “Supplementary Note on Bill” (“the Note”). The Note highlighted
three main changes to the original Bill, one of which was the inclusion of
sub-s (7). Paragraph 4(c) of the Note provides the explanation for the
inclusion as follows: