Case Commentary
Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1
By Leonard Loh (Selvam LLC)
Takeaways: Parties must properly consider and expressly provide for the law of the arbitration agreement, and not merely treat it as a given that the proper law of the arbitration agreement would invariably be the proper law of the contract as expressly chosen by the parties.
Summary
On 6 January 2023, the Singapore Court of Appeal, being the highest Court level in Singapore, issued an illuminating judgment in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 (“Anupam Mittal”) on a key question that has not been dealt with definitively. The question posed to the Court of Appeal is as follows: what system of law determines, at the pre-award stage, whether a dispute is arbitrable or not.
The Singapore Court of Appeal endorsed the “composite approach”. The question of arbitrability is “in first instance, determined by the law that governs the arbitration agreement”. Notwithstanding, if the law of the seat regards a dispute as being non-arbitrable, the said law of the seat will also be applied to render the dispute non-arbitrable (at [55]). A Singapore court is allowed take cognisance of both the law of the arbitration agreement and the law of the seat because, in the Court of Appeal’s view, section 11(1) of the International Arbitration Act 1994 (the “IAA”) requires a Singapore court to have regard to local and foreign public policy. Continue reading “Re-Emphasis on Early Recourse to Legal Counsel to Avoid Pitfalls in Arbitrability and Governing Law”
