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

650 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
out in the Second Schedule as it has for the purpose of and in relation
to an action or matter in the court: … [emphasis added]
The phrase “a reference” in s 27(1) of the AA means a reference to the
arbitrator under the AA. No ambiguity arises from the use of that phrase in
s 27(1) of the AA. However, in the context of the IAA, the only reference
that is relevant for the purpose of the IAA would be a reference to the
arbitral tribunal under Pt II of the IAA. Pursuing this line of reasoning, it
would therefore be natural for the Committee to use the phrase “an
arbitration to which Part II applies” (“the replacement phrase”) in s 12(7) as
a substitute for and to equate it with the original phrase “a reference” in
s 27(1) of the AA, for the purpose of giving concurrent powers to the court.
In our view, this is a reasonable and acceptable explanation for the meaning
of the replacement phrase. That this was the intention of the Committee in
using the replacement phrase is also consistent with the new clause (6)
(sub-s (7)) being placed in a provision, viz, s 12, that deals exclusively with
the powers of arbitral tribunals conducting international arbitrations in
Singapore. In our view, the placement of sub-s (7) in s 12 of the IAA raises a
legitimate question why, if sub-s (7) was not intended to apply only to
arbitral tribunals, it was not enacted as an independent provision to avoid
any ambiguity that might arise as to its intent. Again, in our view, this
argument, by itself, may not be a sufficient answer to the plain meaning of
s 12(7).
Argument from placement
44 Prakash J gave considerable weight to the placement of s 12(7) as an
indication of Parliament’s intention for it not to apply to foreign
arbitrations. As ss 12(1) to 12(6) deal only with the powers of arbitral
tribunals under Pt II of the Act, it would be incongruous for s 12(7) to
travel outside the limits of the preceding subsections. In her view,
construing s 12(7) to give the court concurrent powers would go far beyond
its stated purpose of reinforcing the procedural orders given by arbitral
tribunals under s 12(1). In our view, this is a reasonable conclusion in the
light of one other consideration that Prakash J had already stated, viz, in her
own words ([1] supra at [49]):
If Parliament had intended to effect such a far-reaching change in the
law as would allow our courts to make orders to assist foreign
arbitrations notwithstanding that they would still be powerless to aid
foreign court proceedings, the legislation would have been clearly
worded to effect such a drastic change and it would not be necessary to
imply it from the use of the words “an arbitration to which this Part
applies” or from the fact that Art 9 of the Model Law itself envisages
that courts may make such orders. [emphasis added]
In other words, she considered it most unlikely, in the absence of clear
words, that Parliament would have given the courts power to assist foreign
arbitrations when Parliament had yet to give the court power to assist