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

652 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
However, we are of the view that this argument in the way it has been
expressed may not by itself, be sufficient to prevail over the plain meaning
of s 12(7).
47 In our view, this argument in favour of giving effect to the plain
meaning of s 12(7) of the IAA would have taken on a different complexion
if s 12(7) of the IAA were concerned solely with the power of the court to
grant interim measures and nothing more. In that situation, s 12(7) may be
said to operate only intra-territorially and would not intrude into the
powers of the foreign arbitral tribunal (which would be the legitimate
concern of the relevant foreign state). As explained by Lord Mustill in
Channel Tunnel Group Ltd v Balfour Betty Construction Ltd [1993] AC 334
(“Channel Tunnel”) at 365:
The purpose of interim measures of protection … is not to encroach
on the procedural powers of the arbitrators but to reinforce them, and
to render more effective the decision at which the arbitrators will
ultimately arrive at on the substance of the dispute.
In such a situation, there should be no reason for a foreign state to object to
s 12(7) providing assistance to international arbitrations conducted in its
territory. However, serious objections would arise if s 12(7) has a greater
reach than merely provide non-intrusive assistance to foreign arbitration.
We consider this argument next.
Argument against interfering with rights of parties and intruding into powers
of foreign arbitral tribunals
48 Prakash J alluded to this issue in her grounds of decision where she
questioned whether Parliament had intended for Singapore courts to
intervene in foreign arbitrations with respect to its powers in ss 12(1)(a) to
12(1)(i). However, she did not pursue this question further. The nature of
this objection can be appreciated if we posit a scenario in which Swift-
Fortune had applied under s 12(7) for an order that the parties give
evidence by affidavits or that Magnifica give full discovery of documents or
answer interrogatories pursuant to s 12(1) of the IAA. On Swift-Fortune’s
interpretation of s 12(7), the court would have power to make such orders.
This result has two implications. First, it will mean that these statutory
powers have been impliedly incorporated into the arbitration agreement
between the parties, whether or not they had agreed to them. Secondly, the
exercise of such powers may cut across or intrude into the powers of the
foreign arbitral tribunal conducting the arbitration under a foreign law.
Given these implications, the question that naturally arises is whether
Parliament intended s 12(7) to have this effect.
49 A similar issue arose in Channel Tunnel in connection with s 12(6)(h)
of the 1950 Act ([23] supra). The appellants made two arguments that an
English court had the power to grant an interim injunction in aid of an