Appeal or Setting Aside of Arbitration Awards

The Appeal and/or Setting Aside of arbitration awards is often a complicated issue for the lay persons. Our Specialised Arbitration Practice ("SAP") had prepared a note on the processes in an easily digestible manner for interested parties.

1. Setting aside (s 48) - within 3 months of date of Award.

• Grounds - incapacity, invalid AA, no proper notice of arbitration or not able to present case, breach of natural justice

“natural justice required that the parties should be heard. It did not require that they be given responses on all submissions made, provided that the tribunal at least considered those submissions. Furthermore, it would not be a breach of natural justice for the tribunal to reject the applicant’s arguments without the existence of countervailing arguments by the respondent”: [102], [108] in Kempinski Hotels SA v PT Prima International Development [2011] 4 SLR 633 (HC)

2. Appeal under the AA (s 49) - within 28 days of Award.

• only if agreed or court grants leave.

• Grounds - question of law, and only if (a) it substantially affects the rights of the parties, (b) is a question the tribunal was asked to determine, (c) the tribunal’s fact is obviously wrong or is one of general public importance, (d) despite the parties’ agreement to resolve this in arbitration, it is just in the circumstances for the court to determine the issue.

• Court has power to remit back to tribunal for reconsideration, and tribunal must issue a fresh award within 3 months of the remission. Remission is the alternative to setting aside an award. If set aside, there can no more remission. Its mutually exclusive ([66] of BZW)

• Court will only set aside (also one of the remedies under this appeal section) if satisfied that it is inappropriate to remit.

• On whether you can remit to the same tribunal, cases suggest this is possible, and the issue is more on whether it can be remitted back to the tribunal if the award is set aside – you cannot, as once its set aside the tribunal is functus officio. Also, remission and setting aside are mutually exclusive remedies.

AKN v ALC [2016] at [37] – “the remedy where an application is upheld is the setting aside of the award. However, the court may as an alternative remit the award to the same arbitrators for further consideration. If the court is of the view that the arbitrators are unfit to continue the hearing, the correct approach is the setting aside of the award and the appointment of a fresh tribunal. If the court decides to remit the matter to the arbitrators, it is a matter for them to decide how to proceed”

BZW [2022] (CA) – once an award is set aside, it will not be remitted back to the same tribunal, it is a fresh arbitration. If tribunal was not functus officio.

• Added restrictions under s 50 - cannot appeal under s 49 unless all other remedies exhausted (review, appeal, or correction of award under s 43)

3. No appeal under IAA, only an app to set aside, unless parties opt out of the IAA and agree for AA provisions to bind. If so, then appeal process is under s. 49 AA.

4. Enforcement

• S 47 AA, parties need the court’s permission to enforce an award as if it were a judgment.

• Ex parte application

Disclaimer: The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.