The judge dismissed the appeal, on the following grounds.
* # The court has an unfettered discretion to impose terms and conditions upon a stay of court proceedings for arbitration. Section 6(2) of the Singapore International Arbitration Act states that when an application is made by a party in accordance with s.6(1), the court must order a stay of court proceedings unless the arbitration agreement is "null and void, inoperative or incapable of being performed" but may impose "such terms or conditions as it may think fit".
* # The justice of the case demanded the imposition of the condition that the Defendants waive the defence of time bar in the English arbitration proceedings especially in light of:
** ## The uncertainty and confusion surrounding the identity of the charterparty referred to in the Bill of Lading. It would have been unreasonable to expect the Plaintiffs to comply with an arbitration agreement found in a charterparty, of the identity of which the shipowners themselves were not certain. In fact, the Plaintiffs were only informed of the identity of the relevant charterparty after the expiry of the one-year time limit for instituting proceedings (bearing in mind that the Plaintiffs were not privy to any charterparty).** ## There appearing to be no bona fide intention by the Defendants to have the Plaintiffs’ claim arbitrated. Rather, by their conduct in the case, the Defendants appeared to be trying all ways and means to avoid an adjudication of the matter.
Comment
The wording of section 6(2) of the Singapore International Arbitration Act is different from that in the comparable provision in section 9 of the Arbitration Act 1996 (UK). As the English statute does not expressly empower the court to impose conditions upon a stay, the view has been expressed that in England, if the criteria for a stay of court proceedings in favour of arbitration are made out, the court is obliged to stay proceedings for arbitration without conditions.
