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6. The tribunal made an award that it had jurisdiction over the subject matter and had the power under r.24(b) of the SIAC Rules 2007 to join P6 to P8 (the “Jurisdiction Award”). The Defendants made a clear decision not to appeal against the Jurisdiction Award under Art.16 of the Model Law, and proceeded to defend the substantive issues in the arbitration. The Defendants did, however, qualify in their Statement of Defence that their actions were “without prejudice to the Respondents’ position that any tribunal which is constituted has and will have no jurisdiction over any of the matters, claims and reliefs …”.
7. The tribunal subsequently made 4 four further awards in favour of the Plaintiffs. The Jurisdiction Award together with these 4 four awards will collectively be referred to as the “Singapore Awards”. The Singapore Awards were considered “domestic international awards” in the sense that they were international commercial arbitral awards made in the same territory as the forum in which recognition and enforcement is sought, i.e. Singapore.
8. The 2nd Defendants (“FM”) did not take steps to set aside any of the other Singapore Awards under Art.34 of the Model Law.
4.1. There is no right to choose between setting aside or resisting recognition and enforcement of a domestic international award.
4.1.1. Art. 36 of the Model Law has no force of law in Singapore. The intention of parliament in excluding Arts.35 and 36 of the Model Law (which deal with the recognition and enforcement of awards) was to have enforcement of foreign awards governed separately under the New York Convention, with domestic international awards governed by S.19 of the IAA. This was to enhance enforceability of foreign awards on the grounds of reciprocity for commercial interests.
4.1.2. There is therefore a distinction between international domestic awards and foreign awards under the IAA.
4.2. The effect of S.19B of the IAA, read with Art. 34 of the Model Law, is that a party must take positive steps to set aside the Singapore Awards on one of the specified grounds and within the prescribed time period of 3 months.
4.3. Insofar as the ground being invoked to resist enforcement was lack of jurisdiction, the Court opined that jurisdictional challenges must be brought as early as possible in the interest of finality. It was held that the effect of failing to challenge, pursuant to Art.16, the Jurisdiction Award (which was made prior to a hearing on the merits) is that a party is taken to accept the finality of the Jurisdiction Award and cannot later challenge the award at the setting aside stage or enforcement stage. This is notwithstanding any express reservation of rights.
5. FM was given the opportunity to object to the Jurisdiction Award, was notified of their right to object to the Jurisdiction Award, had taken notice of the said rights but chose not to object and proceeded with the arbitration. The Court thus dismissed FM’s application to set aside the Enforcement Orders.