ReSolution Issue 19, November 2018 | Page 12


The Singapore Court of Appeal further opined (without deciding) that an award debtor’s failure to avail itself of the remedy in Article 16 (assuming a preliminary ruling on jurisdiction) would preclude it from raising a jurisdictional objection at the setting aside stage under Article 34 (post-award).13
Apropos the Singapore Court of Appeal decision, Williams and Kawharu observe that:
[T]he Singapore Court of Appeal issued a surprising decision regarding a party’s right to raise eleventh-hour objections to the tribunal’s jurisdiction. The relevant finding in Astro is that failure to apply under art 16(3) to the High Court following an arbitral tribunal’s preliminary jurisdictional decision is not determinative, or even relevant, as to whether a party has waived its right to challenge the subsequent award for lack of jurisdiction. We disagree with the Singapore Court’s finding. This is because the whole thrust of art 16(3) is to finally determine, as early as possible in the arbitral proceedings, the correctness of any ruling by the arbitral tribunal as to its jurisdiction. The evident object is to avoid the unnecessary cost and waste of time caused by carrying on arbitral proceedings when the tribunal has no jurisdiction to do so.14
With respect, this characterisation of the finding to be derived from the decision is too broad. The ratio decidendi of the decision is limited to the absence of the preclusive effect of Article 16(3) vis-a-vis a challenge to the enforcement of the awards. As far as the setting aside of the awards was concerned, the Court of Appeal was inclined to the (obiter) view that Article 16(3) did have a preclusive effect.15
The Legislative Response
The Arbitration Amendment Bill was introduced on 9 March 2017. Article 16(4) provides that the consequence of failing to apply for court review under Article 16(3) is that the right to later challenge jurisdiction (post-award) is deemed to be waived. As originally drafted, Article 16(4) stated that:
For the avoidance of doubt, it is declared that the failure to submit a timely request to the High Court under paragraph (3) to decide the jurisdictional matter must operate as a waiver of any right later to challenge or call into question the ruling of an arbitral tribunal as to its jurisdiction. 16
Parliament then sought submissions from interested parties. All three submissions that considered Article 16(4) supported its inclusion on the basis of increasing arbitral efficiency and reducing costs. 17
Following the receipt of submissions, the Justice Committee published an Interim Report in April 2018.18 That brief report did little more than annex a Departmental Report authored by the New Zealand Ministry of Justice. The latter Report relevantly recommended that clause 6(1) — which introduces the proposed new Article 16(4) — be removed from the Bill.
With respect, the analysis of Article 16(4) contained in the Departmental Report was extremely disappointing. It was replete with elementary errors and failed to appreciate the