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

658 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
later addition of s 12(7) cannot affect the reasons for including them in the
original Bill. It should also be noted that ss 6 and 7, by themselves, provide
all the interim relief that is necessary to protect the claims of the claimants
until the disposal of the substantive claims. It is not necessary to resort to
s 12(7) for any additional relief or measures to protect his claims pending
the disposal of the arbitral dispute. Hence, for this reason also, the existence
of ss 6 and 7 cannot affect the interpretation of s 12(7) of the IAA.
The decision of this court on the scope of section 12(7) of the IAA
59 In our view, the collective weight of the reasons given in [40] to [58]
above, but in particular the implications of the over-reaching argument of
counsel for Swift-Fortune, we agree with the decision of Prakash J and hold
that s 12(7) was not intended to apply to foreign arbitrations but only
Singapore international arbitrations. For this reason, s 12(7) does not give
power to the court to grant interim measures, including Mareva
interlocutory relief, to assist foreign arbitrations. But for another reason
which is discussed in [60] to [61] below, s 12(7) does not independently
confer on the court any power which it does not have in relation to a cause
of action or proceeding before it.
What is the scope of section 12(7) of the IAA in relation to the court’s
power to grant interim measures?
60 At this juncture, we would like to consider one other issue on
interpretation in connection with the second qualifier in the text of s 12(7)
of the IAA. Prakash J held that s 12(7) is an enabling and not a declaratory
provision, without determining what is being enabled. Ang J however ([4]
supra at [18]) paraphrased s 12(7) to mean that the court has the power to
make for the purpose of and in relation to foreign arbitration orders those
matters (like those under ss 12(1)(g), 12(1)(h) and 12(1)(i)) which it could
have made if the matter referred to arbitration had been tried as a court
action. This meaning carries with it two implications: first, s 12(7) is an
independent source of statutory power for the court to grant the orders or
reliefs set out in s 12(1), and secondly, the arbitral dispute is to be treated as
if it were a cause of action being heard in a court of law. Is this a correct
paraphrase of the second qualifier in s 12(7)? This is not an academic
question. It is an important question because if Prakash J was wrong on this
point, it would have meant that even if Swift-Fortune were to succeed on
the interpretation issue regarding s 12(7), it would still have to cross
another hurdle.
61 It is necessary to take another look at s 12(7). It provides:
The High Court or a Judge thereof shall have, for the purpose of and in
relation to an arbitration to which this Part applies, the same power of
making orders in respect of any of the matters set out in subsection (1)