BXS v BXT: Setting Aside Arbitration Award - Time Limit Extension & Arbitrator Composition

In BXS v BXT, the Singapore International Commercial Court addressed applications by both parties: BXS sought to set aside an arbitration award, while BXT applied to strike out BXS's application as an abuse of process due to being filed outside the three-month time limit stipulated by Article 34(3) of the UNCITRAL Model Law. The court, presided over by Anselmo Reyes IJ, dismissed BXS's application, holding that the three-month time limit for recourse against an arbitral award is not extendable and that the grounds for setting aside the award were without merit. Consequently, the court allowed BXT's striking out application.

1. Case Overview

1.1 Court

Singapore International Commercial Court

1.2 Outcome

Plaintiff's application for an extension of time and for the Final Award to be set aside, is dismissed. The Defendant’s striking out application succeeds.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court dismisses BXS's application to set aside an arbitration award against BXT, holding that the three-month time limit is not extendable.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
BXSPlaintiffCorporationApplication DismissedLost
BXTDefendantCorporationStriking Out Application SucceedsWon

3. Judges

Judge NameTitleDelivered Judgment
Anselmo ReyesInternational JudgeYes

4. Counsels

Counsel NameOrganization
Koh Choon Guan DanielEldan Law LLP
Ng Wei YingEldan Law LLP
Er Hwee Lee Danna Dolly (Yu Huili)Eldan Law LLP
David Isidore Tan Huang LoongRajah & Tann Singapore LLP
Pang Yi ChingRajah & Tann Singapore LLP
AlessaRajah & Tann Singapore LLP
Tan Beng Hwee PaulRajah & Tann Singapore LLP

4. Facts

  1. The Plaintiff and Defendant were parties to a Share Purchase Agreement (SPA) which contained an indemnity clause.
  2. A dispute arose regarding the Defendant’s liability to indemnify the Plaintiff against tax claims by the Thai tax authority.
  3. The SPA contained an arbitration clause referring disputes to the SIAC with three arbitrators.
  4. The Defendant applied for the arbitration to be conducted by a sole arbitrator under the Expedited Procedure pursuant to Rule 5 of the SIAC Arbitration Rules.
  5. The SIAC President decided that the arbitration would follow the Expedited Procedure under a sole arbitrator.
  6. The Arbitrator issued a Final Award dismissing the Plaintiff’s claim.
  7. The Plaintiff applied to the Singapore court to set aside the Final Award more than three months after the award was issued.

5. Formal Citations

  1. BXS v BXT, , [2019] SGHC(I) 10
  2. BXS v BXT, Originating Summons No 1 of 2019, Originating Summons No 1 of 2019
  3. BXS v BXT, Summons No 1035 of 2019, Summons No 1035 of 2019

6. Timeline

DateEvent
Defendant entered into an Agreement for the sale of its shares in two companies to certain purchasers.
Plaintiff notified the Defendant that there was a possibility that the Defendant may have to indemnify the Plaintiff against additional tax.
Thai Supreme Court decided the pending case against the taxpayer.
Thai tax authority demanded that the Plaintiff pay additional tax.
SIAC Arbitration Rules (6th Ed) came into effect.
Plaintiff paid the additional tax.
Plaintiff commenced an arbitration under the auspices of the Singapore International Arbitration Centre against the Defendant.
Defendant submitted its Response to the Plaintiff’s Notice of Arbitration.
SIAC President decided that the arbitration would follow the Expedited Procedure under a sole arbitrator.
Plaintiff’s lawyers wrote to the SIAC stating that the Plaintiff would proceed with the arbitration but “under protest”.
SIAC President appointed a sole arbitrator.
Arbitrator issued the Final Award, dismissing the Plaintiff’s claim to be indemnified by the Defendant.
Plaintiff initiated proceedings before the Thai Central Intellectual Property and International Trade Court to set aside the Arbitrator’s Final Award.
Plaintiff applied to the Singapore court to set aside the Final Award.
Case management conference before the judge.
CIPITC dismissed the Plaintiff’s application on the basis that it lacked power to set aside the Final Award.
Singapore court granted a permanent injunction preventing the Plaintiff from proceeding with its CIPITC application or commencing fresh court proceedings in Thailand in connection with disputes arising out of the SPA.
Judgment reserved.
Judgment issued.

7. Legal Issues

  1. Extension of Time Limit for Setting Aside Arbitral Award
    • Outcome: The court held that it lacked the power to extend the three-month time limit stipulated in Article 34(3) of the UNCITRAL Model Law for applying to set aside an arbitral award.
    • Category: Procedural
    • Related Cases:
      • [2003] SLR 546
      • [2012] 4 SLR 1157
  2. Composition of Arbitral Tribunal
    • Outcome: The court held that the arbitration by a sole arbitrator under the Expedited Procedure did not contravene the parties’ arbitration agreement.
    • Category: Substantive
  3. Scope of Submission to Arbitration
    • Outcome: The court held that the award did not deal with matters outside the scope of submission.
    • Category: Substantive
  4. Public Policy
    • Outcome: The court held that the award did not breach Singapore public policy.
    • Category: Substantive

8. Remedies Sought

  1. Setting aside of arbitral award
  2. Extension of time to apply to set aside arbitral award

9. Cause of Actions

  • Breach of Contract
  • Application to set aside arbitral award

10. Practice Areas

  • Arbitration
  • Commercial Litigation

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
ABC Co v XYZ Co LtdHigh CourtYes[2003] SLR 546SingaporeCited for the interpretation of Article 34(3) of the UNCITRAL Model Law, specifically that the words “may not” must be interpreted as “cannot”.
PT Pukuafu Indah and others v Newmont Indonesia Ltd and anotherHigh CourtYes[2012] 4 SLR 1157SingaporeCited for the interpretation of Article 34(3) of the UNCITRAL Model Law, specifically that the words “may not” must be interpreted as mandatory and impose a time bar.
Government of the Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd and anotherCourt of AppealYesCivil Appeal No W-02(NCC)-1287-2011MalaysiaCited for the proposition that the court has an unfettered discretion to grant an extension of time in respect of s 37(4) of Malaysia’s Arbitration Act, which is in similar terms to Article 34(3).
Kembang Serantau Sdn Bhd v Jeks Engineering Sdn BhdHigh CourtYes[2016] 1 AMR 261MalaysiaCited as a Malaysian High Court case that has not followed the decision in Government of the Lao People’s Democratic Republic.
Triumph City Development Sdn Bhd v Kerajaan Negeri Selangor Darul EhsanHigh CourtYes[2017] 8 AMR 411MalaysiaCited as a Malaysian High Court case that has not followed the decision in Government of the Lao People’s Democratic Republic.
Sun Tian Gang v Hong Kong & China Gas (Jilin)Court of First InstanceYesHCCT 46 of 2015 (21 September 2016)Hong KongCited for the analysis of the time period in Article 34(3) and the suggestion that the court has a discretion to decide whether or not to permit the application to set aside to be made after the period of 3 months specified.
Astro Nusantara v PT Ayunda Prima Mitra and othersCourt of Final AppealYes[2018] HKCFA 12Hong KongCited for the retrospective extension of time for First Media to set aside an order for the enforcement of a Singapore award, but distinguished as the case does not concern the time limit for setting aside an award in the seat of arbitration.
Ali Allawi v The Islamic Republic of IranHigh CourtYes[2019] EWHC 430 (Comm)England and WalesCited for the factors considered by the English court in deciding whether to grant an extension of time to bring a setting aside application, but distinguished as the approach by the English court to the time limit in the 1996 UK Act cannot be a guide to this court’s approach to Article 34(3) as a matter of Singapore law.
Terna Bahrain Holding Company WLL v Bin Kamil Al ShamsiHigh CourtYes[2012] EWHC 3283 (Comm)England and WalesCited for the factors considered by the English court in deciding whether to grant an extension of time to bring a setting aside application.
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte LtdCourt of AppealYes[2007] 3 SLR(R) 86SingaporeCited for the principle that Article 2A(1) has been followed by Singapore case law.
Tjong Very Sumito and others v Antig Investments Pte LtdCourt of AppealYes[2009] 4 SLR(R) 732SingaporeCited for the finality and conclusiveness of the arbitral process.
PT Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appealCourt of AppealYes[2014] 1 SLR 372SingaporeCited for the finality and conclusiveness of the arbitral process.
Renouf v RAC Finance (No 2)Federal Circuit CourtYes[2018] FCCA 182AustraliaCited for the interpretation of the words “may not” as importing a prohibition on the activity concerned.
Kyburn Investments Ltd v Beca Corporate Holdings LtdCourt of AppealYes[2015] NZCA 290New ZealandCited as a case indicating that in New Zealand the time limit of three months is regarded as absolute and not capable of extension.
Todd Petroleum Mining Co Ltd v Shell (Petroleum Mining) Co LtdCourt of AppealYes[2014] NZCA 507New ZealandCited as a case indicating that in New Zealand the time limit of three months is regarded as absolute and not capable of extension.
Noble Resources International Pte Ltd v Shanghai Xintai International Trade Co LtdShanghai No.1 Intermediate People’s CourtYes(2016) Hu 01 Xie Wai Ren No.1ChinaCited for the court refusing to enforce a Singapore award which had been decided by a sole arbitrator under SIAC’s Expedited Procedure, because the parties’ arbitration agreement expressly provided for three arbitrators.
AQZ v ARAHigh CourtYes[2015] 2 SLR 972SingaporeCited for the conclusion that, even under the 2013 Rules, the SIAC President was empowered by Rule 5.2 to override a stipulation for three arbitrators and direct that the Expedited Procedure with a sole arbitrator be followed in a given case.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 69A r 2(4)
SIAC Arbitration Rules (6th Ed, 1 August 2016) Rule 5
SIAC Arbitration Rules (6th Ed, 1 August 2016) Rules 5.2
SIAC Arbitration Rules (6th Ed, 1 August 2016) Rules 5.3
SIAC Arbitration Rules (4th Ed, 1 July 2010)
SIAC Arbitration Rules (5th Ed, 1 April 2013)

14. Applicable Statutes

Statute NameJurisdiction
International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore
International Arbitration Act (Cap 143A, 2002 Rev Ed) s 3(1)Singapore
International Arbitration Act (Cap 143A, 2002 Rev Ed) First ScheduleSingapore
International Arbitration Act (Cap 143A, 2002 Rev Ed) First Schedule Article 34(2)(a)(iv)Singapore
International Arbitration Act (Cap 143A, 2002 Rev Ed) First Schedule Article 34(2)(a)(iii)Singapore
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)Singapore
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 18Singapore
Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) First Schedule paragraph 7Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Arbitration
  • Setting aside
  • Time limit
  • Expedited Procedure
  • Sole arbitrator
  • UNCITRAL Model Law
  • International Arbitration Act
  • Singapore International Arbitration Centre
  • SIAC Rules
  • Share Purchase Agreement
  • Indemnity

15.2 Keywords

  • Arbitration
  • Setting aside
  • Time limit
  • Extension of time
  • Sole arbitrator
  • Singapore International Commercial Court

17. Areas of Law

Area NameRelevance Score
Arbitration95
Setting aside90
Recourse against award90
Time Limit Extension70
Recognition and Enforcement of Foreign Arbitral Awards60
Jurisdiction40
Contract Law30
Estoppel20
Interpretation of contractual terms20
Henderson v Henderson doctrine10

16. Subjects

  • Arbitration
  • Civil Procedure
  • Contract Law