Singapore Convention on International Settlement Agreements Resulting from Mediation holds Signing Ceremony

The Convention on International Settlement Agreements Resulting from Mediation (commonly known as the Singapore Convention on Mediation) held its signing ceremony in Singapore On August 7,2019. Singaporean Prime Minister Lee Hsien Loong attended the signing ceremony and delivered a speech, while the UN Secretary-General, António Guterres, delivered a speech via video. At present, there are 46 signatories including China, and more than 800 representatives from more than 70 countries participated in the event.

The Singapore Convention on Mediation is an international settlement agreement in the field of mediation, which was adopted at the 73rd UN General Assembly on the 20th of December 2018. It establishes a unified legal framework for the right to invoke settlement agreements and the implementation of settlement agreements.

Temporary Arbitration Fees have been Exempted by HKIAC Rules

The Hong Kong International Arbitration Centre ("HKIAC") has revised the Arbitration Rules for Appointment of Arbitrators and Mediators and the Number of Arbitrators on November 1, 2018. The amendment, which has been implemented since August 1,2019, mainly allows HKIAC to exempt charges in certain temporary arbitrations in Hong Kong.

Since 1997, HKIAC has been the statutory designated body for arbitration in Hong Kong and can decide the number of arbitrators or appoint arbitrators or mediators upon request. The revised Rules allow HKIAC to waive HK$8,000 for exercising any of its functions under the Rules.

New Arbitration Act to be passed by the Macau Legislative Council

According to the country's policy, the Macau Bay Area will be built into a Portuguese-speaking country and regional investment dispute resolution center. In order to achieve this goal, the Macau Legislative Council is currently stepping up the relevant legislation and is working on amending the current Arbitration Law.

Compared with the current arbitration law, the amendments to the new Arbitration Law will now allow the arbitral tribunal the power to rule on cases within its jurisdiction, including any objections to the existence or validity of the arbitration agreement, without referring to the court; and the arbitral tribunal will now have the power to issue urgent measures and preliminary orders designed to maintain the enforcement of the final ruling; and arbitral awards will not be appealed, but the parties have the right to request the judicial court to cancel the arbitral award for a limited period within three months, but these reasons do not allow for a full review of the decision.

Beijing No. 4 Intermediate People’s Court :

The Applicant Claimed that the Agreement of the Arbitration Institution Was Unknown and was Rejected by the Court

Relevant Provision:

Article 18 of the Arbitration Law of the People's Republic of China provides, “Where an arbitration agreement has not specified or has not specified clearly items for arbitration or the choice of an arbitration commission, the parties concerned may conclude a supplementary agreement. If a supplementary agreement cannot be reached, the arbitration agreement shall be void.”

Article 3 of the Interpretations of the Supreme People's Court on Certain Issues relating to Application of the Arbitration Law of the People's Republic of China provides, “Where the name of the arbitration agency provided in the arbitration agreement is inaccurate but is nevertheless identifiable, the arbitration agency shall be deemed to have been selected.”

In Jinji Pharmaceutical Co., Ltd. v CITIC Xincheng Asset Management Co., Ltd., the core issue of this case was whether it is a situation where “the agreement with a term of “Beijing Municipal Ren Arbitration Commission” is unclear and the arbitration clause should be invalid according to law”.

Court’s View:

The Court dismissed the applicant's application for the following reasons:

a)The arbitration agreement (arbitration clause) is the intention of the parties to the contract to submit the dispute to arbitration for settlement. Both parties in this case have the intention to submit the dispute to the arbitration institution for arbitration;

b)In judicial practice, there is indeed a party who does not have a good understanding of the name of the arbitration institution, resulting in inaccurate content of the agreement. The applicant believes that the agreement is actually “Beijing Municipal Arbitration Commission” and this interpretation is reasonable;

c)The “Beijing Municipal Arbitration Commission” and the “Beijing Municipal Ren Arbitration Commission” agreed by the parties, combined with the situation that among all the arbitration institutions that set in Beijing, only the Beijing Arbitration Commission is similar to the agreed arbitration institution.

Singapore High Court:

SIAC Has the Jurisdiction Over the Arbitration Agreement and the Governing Law of the Arbitration Agreement is Singapore Law

Relevant Provision:

Article 18(1) of the Rules of Arbitration of the ICC (International Chamber of Commerce) provides, “The place of the arbitration shall be fixed by the Court, unless agreed upon by the parties.”

Article 20 of the UNCITRAL Model Law on International Commercial Arbitration provides, “(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”

In BNA v BNB [2019] SGHC 142, the core issue of this case was the arbitration jurisdiction dispute. The applicant and the respondent signed an agreement, of which the disputes should be arbitrated by the Singapore International Arbitration Center in Shanghai. The applicant believes that the arbitration agreement is invalid according to the laws of the People's Republic of China, so the dispute should be governed by the courts within the territory of the People's Republic of China. The respondent believed that the arbitration agreement should be valid in accordance with Singapore law.

Court’s View:

The Court thus held that the governing law of the arbitration agreement is Singapore law and held that the tribunal had jurisdiction to arbitrate the dispute in question for the following reasons: 

a)The Court was of the view that the choice of law clause only applied to the substantive aspect of the contract and did not amount to an express choice of law for the parties’ arbitration agreement;

b)In combination with the framework design of the arbitration agreement and the reference to the rules of the Singapore International Arbitration Centre, it can be determined that both parties agree that the dispute in question applies to Singapore law;

c)The Court was of the view of the parties’ arbitration agreement does not refer to the PRC, which is a law district, but to Shanghai, which is a city but not a law district. The Court thus held that even though there was strong indication of PRC law, it was displaced in favor of Singapore law.

Singapore International Commercial Court: 

Arbitration with a Sole Arbitrator Under the Expedited Procedure did not Contravene the Parties’ Arbitration Agreement and Shall not be Revoked

Relevant Provision:

Rule 5.2 of the 2016 SIAC Rules provides, “Where a party has filed an application with the Registrar under Rule 5.1, and where the President determines, after considering the views of the parties, and having regard to the circumstances of the case, that the arbitral proceedings shall be conducted in accordance with the Expedited Procedure, the following procedure shall apply: …b) the case shall be referred to a sole arbitrator, unless the President determines otherwise;…”

Rule 5.3 of the 2016 SIAC Rules provides, “By agreeing to arbitration under these Rules, the parties agree that, where arbitral proceedings are conducted in accordance with the Expedited Procedure under this Rule 5, the rules and procedures set forth in Rule 5.2 shall apply even in cases where the arbitration agreement contains contrary terms.”

In BXS v BXT [2019] SGHC(I) 10, the core issue of this case is that the applicant believes that the arbitral award BXT is made by a sole arbitrator, which is in violation of the arbitration agreement clause of arbitrating by three-member-tribunal. Therefore, it is invalid and the application shall be revoked.

Court’s View:

The Court dismissed the applicant's application for the following reasons:

a)The court was of the view that according to Rule 5.2 of the 2016 SIAC Rules, the SIAC President can direct an arbitration to use the Expedited Procedure under a sole arbitrator.

b)The court was of the view that according to Rule 5.3 of the 2016 SIAC Rules, where both parties agreed on Rule 5.2 of the 2016 SIAC, arbitration within the Expedited Procedure under a sole arbitrator was acceptable and valid even when the arbitration agreement contained clause of arbitrating by three-member-tribunal.

c)The court was of the view that the dispute arbitration was conducted in accordance with the Expedited Procedure, and although it was in violation of the agreement on the form of the arbitral tribunal, it shall be valid and not be revoked.