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

666 SINGAPORE LAW REPORTS (REISSUE) [2007] 1 SLR(R)
(b) a similar contract but where one party is a national of a foreign
state: the arbitration agreement ceases to be domestic, but the cause of
action is still “potentially justiciable” by the English court, and will be
adjudicated upon if there is no stay; and
(c) a contract with an arbitration agreement calling for arbitration
abroad.
78 With respect to the first two illustrations, Lord Mustill said that the
The Siskina restrictions on the grant of an interlocutory injunction did not
apply. In the case of the third illustration, his Lordship (after stating that an
arbitration agreement providing for arbitration in London justified the
inference of English law as the substantive proper law of the contract, and
hence giving the court jurisdiction over the cause of action), said (at 363):
If the seat of arbitration is abroad this source of jurisdiction is cut off,
and the inhibitions created by the Siskina authorities will preclude the
grant of an injunction. Nevertheless, if the facts are such that the court
has jurisdiction in some way other than the one just described I can see
no reason why the additional foreign element should make any
difference to the residual jurisdiction of the court over the dispute, and
hence to the existence of the power to grant an injunction in support.
So also in the present case. [emphasis added]
79 After Channel Tunnel and until the enactment of the UK Arbitration
Act 1996, the position in England was that the court had power to grant
Mareva injunctions in aid of foreign court or arbitral proceedings if the
substantive claim was justiciable in an English court. Channel Tunnel
clarified and circumscribed the doctrine in The Siskina to the extent stated,
but the prerequisite that the court must have jurisdiction over the cause of
action, even if on a residual basis, remained intact.
80 It seems clear to us that the House of Lords in Channel Tunnel was
strongly influenced not only by their own worldview of the role of the
English courts in international dispute resolution, but also by the judicial
philosophy that curial assistance should be given to foreign court or arbitral
proceedings to ensure that justice was done. In Channel Tunnel, Lord Goff
of Chieveley said (at 341):
I add a few words of my own on the submission that the decision of
this House in [The Siskina] would preclude the grant of any injunction
under section 37(1) of the Supreme Court Act 1981, even if such
injunction were otherwise appropriate. If correct, this submission
would have the effect of severely curtailing the powers of the English
courts to act in aid, not only of foreign arbitrations, but also of foreign
courts. Given the international character of much contemporary
litigation and the need to promote mutual assistance between the
courts of the various jurisdictions which such litigation straddles, it
would be a serious matter if the English courts were unable to grant
interlocutory relief in cases where the substantive trial and the ultimate