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

662 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
the same relief to assist foreign court proceedings. However, it is not clear
from the grounds of decision in Karaha Bodas that this court had also
endorsed this view, as on the facts before the court, this point also did not
arise.
69 In Front Carriers ([4] supra), Ang J took the view that she was not
bound by Karaha Bodas, distinguishing it on the ground that there the
court was not asked to grant a Mareva injunction to support a foreign
arbitration (which had already been completed in Hong Kong), but the
enforcement of the arbitration award (which was in the nature of court
proceedings). On first impression, it would seem that the distinction cannot
be supported in logic or in law. If the court has no power to grant a Mareva
injunction to support foreign proceedings under s 4(10) of the CLA, a
fortiori it could not do so in aid of foreign arbitration proceedings.
However, a closer examination of the facts in Front Carriers shows that
Ang J’s refusal to be bound by Karaha Bodas is justified by a critical
difference of fact between the two cases (which we have earlier pointed out
in [6] above). In Karaha Bodas, the plaintiff did not have an accrued cause
of action against the defendant that was recognisable by a Singapore court.
This is also the factual situation in the present case where Swift-Fortune
also did not have an accrued action recognisable by a Singapore court. This
factual difference would also explain Prakash J’s observation about the
powerlessness of the court to grant a Mareva injunction under s 4(10) in the
present case.
70 In contrast, in Front Carriers, Ang J found as a fact that the plaintiff
had an accrued cause of action against the defendant that was subject to the
jurisdiction of the Singapore court. For this reason, Ang J was not wrong to
distinguish Karaha Bodas on the ground that it was not concerned with a
foreign arbitration. It was therefore open to her to interpret s 4(10) of the
CLA in the light of the decision of the House of Lords in Channel Tunnel
([47] supra). In that case, the accrued cause of action was justiciable in an
English court but had been referred to arbitration in Brussels pursuant to
the underlying contract. In other words, the material facts in both cases are
similar. In Channel Tunnel, the House of Lords held that the English court
had power under s 37(1) of the Supreme Court Act 1981 (c 54) (UK) (“the
English 1981 Act”) (which corresponded to s 4(10) of the CLA) to grant
Mareva interlocutory relief to assist a foreign arbitration so long as it
retained some form of jurisdiction over the substantive claim. In a case
where the parties have agreed to refer the substantive dispute to foreign
arbitration, the retention of a residual jurisdiction would be sufficient to
enable the court to exercise such power. It is on this basis that Ang J held
that s 4(10) of the CLA, read with Art 9 of the Model Law, conferred a
general power on the court to grant Mareva relief in support of foreign
arbitration. We will come back to this issue later (at [86]).