Singapore Court of Appeal affirms strict adherence to defined scope of remission of arbitral awards in cases where set aside applications have been suspended

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Arbitration Analysis: The Singapore Court of Appeal decision of CKH v CKG [2022] SGCA(I) 6 addresses the issue of the scope of a tribunal’s powers to consider matters falling outside the scope of an order for limited remission made under Article 34(4) of the Model Law. Art 34(4) empowers a court hearing a setting aside application to suspend the proceedings to give the 'arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside'. The Court of Appeal held that the scope of remission is specifically defined by the terms of the court order ordering remission. Accordingly, there was no basis for a party or the tribunal to seek to re-open or expand the subject matter of the award or arbitration beyond the scope of remission. The tribunal’s original award renders it functus officio save to the extent the order for remission gives it revived power.

What are the practical implications of this case?

This case addresses the issue of whether and how far a party may, on a remission under Article 34(4) of the UNCITRAL Model Law on International Commercial Arbitration ('Model Law') (scheduled to Singapore’s International Arbitration Act 1994) go outside the scope of the order for remission. The Court of Appeal affirmed the decision of the judge hearing the application below that an arbitral tribunal’s role should be strictly limited to the order for remission, and any further points which a party claimed to raise were not open to the tribunal on such remission. In particular, the parameters of the remission were not open to being revisited by the tribunal. The order of remission cannot be misused to bring into the arena before the tribunal matters that clearly fall outside the scope of the limited remission.

What was the background?

This case arose from a strongly contested arbitration where the tribunal issued a final award with two memoranda of corrections sometime between August to November 2020. In earlier proceedings to set aside the award, the Court of Appeal upheld the decision of the judge that the award failed to take into account the existence and quantum of a debt and interest owing by the appellant to the respondent.

The judge exercised the court’s power under Art 34(4) to suspend the set aside application to give the “arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside”. The judge issued an order of court on the remitted matters with a set terms of reference.

When the matter was returned to the tribunal, the appellant claimed to raise a number of points relating to the debt (and interest) which the respondent contended fell outside the scope of the remission ordered. The tribunal indicated that it was necessary for the parties to revert to the judge for a decision. The judge confirmed that the tribunal’s role was strictly limited to the exercise defined in the order, and that the further points raised by the appellant were not open to be before the Tribunal.

The appellant appealed against the Judge’s decision under Order 21 rule 20 of the Singapore International Commercial Court Rules 2021.

What did the court decide?

The court dismissed the appeal, stating that while the power conferred upon the court under Art 34(4) is relatively broad, the scope of remission is necessarily defined by the terms of the order ordering the remission. A carefully defined order specifies precisely what the tribunal can and should do. Apart from the remission ordered, there is no basis on which a party or the tribunal can seek to re-open or expand the subject matter of the award or arbitration. The tribunal’s original award renders it functus officio, save to the extent the remission order gives it revived power. The Tribunal’s jurisdiction is only revived to the extent of the remission ordered.

In particular, the court dismissed the appellant’s challenge to the recitals of the order, which were integral aspects of the remission ordered and were res judicata. All that was open before the court were issues pertaining to the interpretation of the meaning and the scope of the remission which was ordered.

This article was first published on Lexis®PSL on 8 September 2022.