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

656 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
orders, such as a Mareva injunction, to assist foreign arbitrations which do
not intrude upon the powers of foreign arbitrators or the foreign arbitration
itself. A Mareva injunction merely enhances the efficacy of foreign
arbitrations and does not regulate, restrict, stifle or otherwise control the
conduct of the foreign arbitration. Ang J also referred to Lord Mustill’s
reasoning in reaching the same conclusion: see Front Carriers ([4] supra) at
[27]. However, this argument ignores the critical proviso to Lord Mustill’s
statement at 365, ie:
Provided that this and no more is what such measures aim to do, there
is nothing in them contrary to the spirit of international arbitration.
54 In our view, the proviso cuts the ground under Swift-Fortune’s case as
a plain reading of s 12(7) of the IAA would also give power to the court to
grant any of the orders and reliefs mentioned in s 12(1) to any party to an
international arbitration. It is true that Swift-Fortune is only seeking a
Mareva injunction under s 12(1)(i) read with s 12(7). But if s 12(7) allows
this, it must also allow the court to grant the other orders or reliefs in
s 12(1). We do not think that Parliament could have intended s 12(7) to
have such an exorbitant reach by the use of the inaptly drafted phrase “an
arbitration to which this Part applies”. If s 12(7) were applicable only to or
could be read only to apply to the power in s 12(1)(i) the appellant might
have a stronger card on its hands. Ang J appears to recognise this weakness
in her reasoning as is evident from the limitation she placed on the kind of
measures the court may grant under s 12(7): see Front Carriers at [26]. But
this is not possible. As matters stand, Swift-Fortune’s interpretation of
s 12(7) leaves it holding too many bad cards. The argument is ultimately
self-defeating in over-reaching itself.
55 Finally, apart from the intrusive effect that s 12(7) would have were it
given a plain meaning, we would still have great difficulty in accepting an
argument that implies that Parliament had enacted s 12(7) with the
intention of permitting the courts to become universal providers of
procedural orders and reliefs to assist all anticipated or ongoing
international arbitrations (as defined in s 5(2) of the IAA) in any country in
of the world, whether or not they are Model Law states or signatories to the
New York Convention.
Sections 6 and 7 of the IAA
56 Counsel for Swift-Fortune has also contended that since ss 6 and 7 of
the IAA (which are in Pt II) apply to all international arbitrations as defined
in s 5(2) of the IAA, Pt II would be internally inconsistent unless s 12(7) is
read to apply to all international arbitrations. Such a result should be
avoided, and this can be done if the provisions were read harmoniously.
Magnifica’s response, a contrario, is that ss 6 and 7 are exceptional
provisions designed to cater to two specific situations as recommended by
the Committee. It is further argued that ss 6 and 7 are consistent with