Singapore's Apex Court Sets Out Approach for Determining the Law Governing Subject Matter Arbitrability at the Pre-Award Stage
On January 6, 2023, the Singapore Court of Appeal released its decision in Anupam Mittal v. Westbridge Ventures II Investment Holdings  SGCA 1 (“Anupam v. Westbridge (CA)”) in which it considered, for the first time, the question of what law governs subject matter arbitrability at the pre-award stage. The Singapore Court of Appeal held that the proper law governing subject matter arbitrability at the pre-award stage should be the law governing the arbitration agreement.1 This approach stands in contrast to that taken by national courts from the U.S. and various European countries, which apply the law of the forum (typically the law of the seat) to determine subject matter arbitrability at the pre-award stage. The Singapore Court of Appeal also recognised that in Singapore-seated arbitrations, Singapore law could still be an additional obstacle to subject matter arbitrability in that local public policy could bar disputes from proceeding to arbitration even if those disputes would have otherwise been arbitrable under the law of the arbitration agreement.2 Separately, the Singapore Court of Appeal also provided guidance on what law governs an arbitration agreement which does not contain an express choice of law.3
This decision highlights two key considerations for parties. First, in deciding the applicable law, parties should carefully consider how the proposed law of the arbitration agreement and the proposed law of the seat will impact the arbitrability of potential disputes arising under the underlying contract. Second, parties should expressly stipulate the governing law of the arbitration agreement, lest they risk the courts applying a system of law that the parties did not contemplate to the arbitration agreement. It is currently not common practice in arbitration clauses to state the governing law of the clause, separate from the underlying contract’s governing law clause. In light of Anupam v. Westbridge (CA), clauses that select Singapore as the seat or the Singapore International Arbitration Centre’s arbitration rules should explicitly state the governing law of the clause as well. This practice note is accordingly relevant to both arbitration practitioners and transactional lawyers.
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