Professor Franco Ferrari publishes a paper on the importance of the law of the seat in international commercial arbitration

Professor Franco Ferrari, the Center’s Director, has just published a paper entitled “Plures leges faciunt arbitrum” in issue 3/2021 of Arbitration International.

In his paper, Professor Ferrari asserts that in international arbitration the lex loci arbitri has not lost its importance, which is not to say that it operates as the exclusive source of the arbitral process. While it is still the law of the seat that primarily furnishes arbitration its legal framework, in the form of ground rules in accordance with which arbitral activity may validly take place at the arbitral seat, it is not the only law imposing itself upon an international arbitration. In other words, the regulatory sovereignty of the State of the seat of arbitration is not necessarily the only one to be triggered during the different stages of an arbitration’s life-cycle. This is due to the fact that this regulatory sovereignty encounters both subject-matter limitations and territorial limitations, and, therefore, depending on what matter is to be addressed – and when and by whom – may call into play the regulatory sovereignty of States other than that of the seat. Thus, plures leges faciunt arbitrum.

The paper can be downloaded here.

Should courts strain to interpret arbitration agreements in a manner that renders them valid? The Singapore approach in BNA v. BNB

Daniel Gaw


When determining the seat of arbitration and the proper law of an arbitration agreement, is it relevant that the choice of a particular seat and/or law may invalidate the arbitration agreement? In BNA v. BNB,[1] the Singapore Court of Appeal (“SGCA”) reached a result that effectively answered this question in the negative. Specifically, the Court held that the law of the People’s Republic of China (“PRC”) governed an arbitration agreement despite a real risk that the arbitration agreement would be rendered invalid as a result. In doing so, the Court reversed the decision of the Singapore High Court (“SGHC”),[2] which had held that Singapore law governed the arbitration agreement.

This paper takes a closer look at the case and highlights three key takeaways relating to: (a) the express choice of law for an arbitration agreement; (b) the implied choice of law for an arbitration agreement; and (c) the relevance of the validation principle. It concludes that the SGCA’s decision was correct notwithstanding the unsatisfactory outcome for the party that relied on the arbitration agreement.

Summary of the Case


In BNA v. BNB, the Korean sellers commenced arbitration against a Chinese buyer for alleged non-payment of amounts due under a contract for the sale of industrial gases (the “Agreement”). Article 14.1 of the Agreement provided that “[t]his Agreement shall be governed by the laws of the People’s Republic of China”, while Article 14.2 provided for disputes to be “submitted to the Singapore International Arbitration Centre (SIAC) for arbitration in Shanghai, which will be conducted in accordance with its Arbitration Rules”.

The buyer objected to the tribunal’s jurisdiction. It contended that the arbitration agreement was invalid because: (a) the arbitration was seated in the PRC and the arbitration agreement governed by PRC law; (b) PRC law prohibited a foreign arbitral institution like SIAC from administering the arbitration of a domestic dispute; and (c) in any event, even if the dispute had sufficient foreign elements, PRC law nonetheless prohibited a foreign arbitral institution from administering an arbitration seated in the PRC.

The tribunal’s decision

The majority of the tribunal held that it had jurisdiction over the dispute because: (a) the arbitration was seated in Singapore; (b) the arbitration agreement was thereby governed by Singapore law; and (c) PRC law was therefore irrelevant on the question of jurisdiction.[3] In reaching that decision, the majority applied the validation principle and effective interpretation principle, which it summarised as follows: “[I]t makes no commercial or logical sense for parties to intentionally select a law to govern an arbitration agreement which would then invalidate it.”[4] The dissenting arbitrator, however, took the view that the tribunal lacked jurisdiction because: (a) the proper law of the parties’ arbitration agreement was PRC law; (b) the parties’ dispute was classified in PRC law as a domestic dispute; and (c) PRC law prohibited a foreign arbitral institution from administering the arbitration of a domestic dispute.[5]

The SGHC’s decision

Dissatisfied with the tribunal’s jurisdictional decision, the buyer asked the SGHC to decide the issue pursuant to Section 10(3) of the Singapore International Arbitration Act. The SGHC upheld the tribunal’s jurisdiction on the basis of two key findings.

First, the court considered that the arbitration agreement referred not only to Shanghai, but also Singapore, as a potential seat of arbitration. Specifically, the reference to the SIAC Rules included Rule 18.1 thereof, which provided that if the parties did not agree on a seat of arbitration, then it shall be Singapore unless the tribunal determines otherwise.[6] The question was therefore whether the phrase “arbitration in Shanghai” amounted to an agreement by the parties on the seat of arbitration. As a matter of construction, the court held that the reference to Shanghai merely identified the venue of arbitration and not a seat, as Shanghai was a city and not a law district.[7] In contrast, the express reference to the SIAC Rules was “the clearest possible manifestation” of the parties’ intention to have their arbitrations seated in Singapore.[8]

Having found that Singapore was the seat of arbitration, the SGHC turned to determine the proper law of the arbitration agreement, applying the three-stage choice of law analysis set out by the English Court of Appeal in Sulamérica v Enesa Engelharia SA:[9] (a) Have the parties expressly chosen the proper law of their arbitration agreement? (b) If not, have they impliedly done so? (c) If there is no express or implied choice, then with what system of law does the arbitration agreement have its closest and most real connection?[10]

            Under the first stage, the court found that the express choice of law to govern the main contract did not amount to an express choice of law in respect of the arbitration agreement. Proceeding to the second stage, the court accepted that the starting point was that the proper law of the contract (PRC law) would also govern the arbitration agreement.[11] It held, however, that this presumption was displaced in favour of the law of the seat (Singapore law). This was because the choice of PRC law “would defeat the parties’ manifest intention to resolve their disputes through arbitration”.[12] Interestingly, the court did so despite having rejected the validation and the effective interpretation principles as being “nakedly instrumental”.[13]   

The SGCA’s decision

On appeal, the SGCA reversed the SGHC’s decision. The key point of departure for the SGCA was the SGHC’s interpretation of the phrase “in Shanghai” as referring merely to the venue of arbitration and not the seat. In the SGCA’s view, “where parties specify only one geographical location in an arbitration agreement, and particularly where, as here, the parties express a choice for ‘arbitration in [that location]’, that should most naturally be construed as a reference to the parties’ choice of seat”.[14] The fact that Shanghai is not a law district was immaterial as commercial parties often only specify either the city or country in their arbitration agreements.[15] Given that the parties had agreed on the PRC as the seat of arbitration, the default choice of Singapore as the seat under SIAC Rule 18.1 did not apply.

Turning to the proper law of the arbitration agreement, the Court held that the express choice of PRC law to govern the main contract did not constitute an express choice of law for the arbitration agreement.[16] It did, however, amount to an implied choice of law for the arbitration agreement.[17] There was nothing to displace this implied choice because the law of the seat was also PRC law.[18] It followed that the validity of the arbitration agreement was to be determined by the PRC courts applying PRC law.


The SGCA’s decision is noteworthy for three points which are discussed further below. 

Express choice of law for an arbitration agreement

            The SGCA decided that an express choice of law in respect of the main contract does not, in and of itself, also constitute an express choice of the same law in respect of the arbitration agreement. The SGCA’s approach is consistent with the concept that the arbitration agreement is separable from the main contract and more specific words are required to make an express choice of law in respect of the arbitration agreement. 

That said, no absolute rule can be laid down in this regard, and it is ultimately a matter of contract interpretation as to whether the parties have expressly chosen a law for their arbitration agreement. For instance, if the parties define the term “Agreement” in a manner that clearly includes the arbitration agreement therein and then subject the entire “Agreement” to a particular law, then that may amount to an express choice of law in respect of the arbitration agreement.[19] 

Implied choice of law for an arbitration agreement

Common law courts have diverged on the issue of whether the law of the main contract or the law of the seat should be presumed to be the implied choice of law for an arbitration agreement. In Singapore, an Assistant Registrar concluded that it should be the law of the seat,[20] while other High Court decisions have ruled in favour of the law of the main contract.[21] Likewise, in the recent UK case of Enka v. Chubb, the Court of Appeal and Supreme Court arrived at different conclusions on this issue – the former preferred the law of the seat,[22] while the latter held in favour of the law of the main contract.[23] The SGCA’s decision in BNA v. BNB confirms that, as a matter of Singapore law, the law of the main contract will presumptively be the implied choice of law for the arbitration agreement, and the choice of a different seat is insufficient to displace that presumption.

Relevance of validation principle

The SGCA purported not to address the validation principle when determining the proper law of the arbitration agreement, reasoning that it had no scope for operation in a case where both the law of the main contract and the law of the seat was PRC law.[24] In this author’s view, however, the Court had implicitly rejected the validation principle when determining that the seat of arbitration was Shanghai. Specifically, the Court held that the potentially invalidating effect of PRC law was irrelevant when determining whether the phrase “arbitration in Shanghai” referred to the venue or the seat of arbitration. This was because there was no evidence that the parties were aware that the choice of proper law of the arbitration agreement could have an impact upon its validity.[25] The Court’s reasoning here was arguably an implicit rejection of the validation principle, which “rests on the rational assumption that parties would prefer to have an agreement upheld than not”[26] and does not require actual evidence that the parties had actually turned their minds to the issue of validity in a particular case.

It is submitted that the SGCA’s approach was correct. The validation principle cannot be used to override a clear and express term of the contract simply because giving effect to that term would invalidate the contract or part of it. In this case, the natural meaning of the phrase “arbitration in [city/country]” is that the specified location would be the seat of arbitration, as confirmed by numerous cases and commentaries.[27] Had the word “Shanghai” been substituted with another city (e.g. London), a court or tribunal would undoubtedly have no difficulty with interpreting that phrase as designating the seat of arbitration. It would be unprincipled to depart from the parties’ express choice of the arbitral seat simply because that choice results in certain undesirable outcomes that they perhaps might not have foreseen.  


The SGCA decided in BNA v. BNB that the words of an arbitration agreement should be given their natural meaning unless there are sufficient contrary indicia to displace that reading, and “the parties’ manifest intention to arbitrate is not to be given effect at all costs”.[28] The decision was correct as it is not the function of the courts to save the parties from the consequences of poorly drafted or ill-advised arbitration clauses. It underscores the importance of choosing the seat of arbitration and proper law of the arbitration agreement with care. 

Daniel Gaw is an LL.M. candidate (Vanderbilt Scholar) in the International Business Regulation, Litigation and Arbitration program at the NYU School of Law and an Associate in Dechert LLP’s International Arbitration group. He holds a Bachelor of Laws (First Class Honours) from the National University of Singapore and was formerly a Justices’ Law Clerk of the Supreme Court of Singapore.

[1] [2019] SGCA 84.

[2] [2019] SGHC 142.

[3] BNA v. BNB [2019] SGHC 142 ¶ 8.

[4] BNA v. BNB [2019] SGCA 84 ¶ 18.

[5] Id.

[6] BNA v. BNB [2019] SGHC 142 ¶ 104.

[7] Id. ¶ 108.

[8] Id. ¶ 109.

[9] [2013] 1 WLR 102.

[10] BNA v. BNB [2019] SGHC 142 ¶ 17.

[11] Id. ¶ 111.

[12] Id. ¶ 117.

[13] Id. ¶¶ 48 and 53.

[14] BNA v. BNB [2019] SGCA 84 ¶ 65.

[15] Id. ¶ 92.

[16] Id. ¶ 61.

[17] Id. ¶ 62.

[18] Id. ¶ 94.

[19] Kabab-Ji SAL v Kout Food Group [2020] EWCA Civ 6 ¶ 62.

[20] FirstLink Investments Corp Ltd v GT Payment Pte Ltd [2014] SGHCR 12 ¶ 16.

[21] BCY v BCZ [2016] SGHC 249 ¶ 65; Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2016] SGHC 238 ¶ 31.

[22] [2020] EWCA Civ 574 ¶ 91.

[23] [2020] UKSC 38 ¶ 170(iv).

[24] BNA v. BNB [2019] SGCA 84 ¶ 95.

[25] Id. ¶ 90.

[26] Enka v. Chubb [2020] UKSC 38 ¶ 198 (dissenting judgment of Lord Burrows).

[27] BNA v. BNB [2019] SGCA 84 ¶¶ 66-68.

[28] Id. ¶ 104.

Marching Towards a Pro-Arbitration Regime: Indian Supreme Court Upholds the Doctrine of Separability


The doctrine of separability, which provides that the invalidity of the substantive commercial contract does not affect the validity of the arbitration agreement except if the arbitration agreement itself is directly impeached as void ab initio, has been widely accepted in the arbitration jurisprudence.

[1] However, it has been adopted by the Indian Supreme Court (“Court”) only recently. By way of its judgment in N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. & Others (“N.N. Global Judgment”), the Court has for the first time answered in negative – “Whether an arbitration agreement would be non-existent in law, invalid or un-enforceable, if the underlying contract was not stamped as per the relevant Stamp Act?[2]

The N.N. Global Judgment is noteworthy as by applying the doctrine of separability of arbitration agreement from the underlying contract, the Court has undertaken a complete departure from its previous decisions. It has declared that its previous judgments which held that the non-payment of stamp duty on a commercial contract would invalidate even the arbitration agreement and render it non-existent in law and un-enforceable, are bad in law.[3] In fact, since this is the first time the Court has adopted a diametrically opposite view on this issue in complete dismissal of the precedent set by its co-ordinate bench, the issue has now been referred to a Constitution Bench of five judges of the Court so that the law may be authoritatively settled.[4]   

Factual and Procedural Background

Indo Unique had entered into a contract with the Karnataka Power Corporation Ltd. (“KPCL”) pursuant to an open tender. Subsequently, Indo Unique executed a sub-contract, being Work Order dated September 28, 2015 (“Work Order”), with M/s N. N. Global Mercantile Pvt. Ltd. (“Global Mercantile”) for transportation of coal. Clause 10 of the Work Order incorporated an arbitration clause providing for resolution of disputes by an arbitrator appointed by mutual consent. Further, in satisfaction of the requirements of Clause 9 of the Work Order, Global Mercantile had furnished a bank guarantee for INR 33.6 million in favor of the State Bank of India, the banker of Indo-Unique. Thereafter, certain disputes arose between Indo Unique and KPCL. Consequently, Indo Unique invoked the bank guarantee furnished by Global Mercantile under the Work Order.

In response, Global Mercantile filed a commercial suit against Indo Unique and its banker seeking a declaration that Indo Unique was not entitled to fraudulently encash the bank guarantee as the Work Order had not been acted upon and no loss was suffered by Indo Unique as a result. Pursuant thereto, Indo Unique filed an application before the Commercial Court under Section 8 of the Arbitration and Conciliation Act (“Arbitration Act”) seeking reference of the dispute to arbitration. This was opposed by Global Mercantile as not maintainable since the bank guarantee was an independent contract. By way of judgment dated January 18, 2018, the Commercial Court accepted Global Mercantile’s argument and rejected the application while holding that its jurisdiction was not ousted by the arbitration agreement in the Work Order.

Challenging the decision of the Commercial Court, Indo Unique approached the Bombay High Court with a writ petition[5]. The High Court, by way of judgment dated September 30, 2020, set aside the Commercial Court’s judgment. It held that it was the admitted position that there was an arbitration agreement between the parties and therefore the application under Section 8 was maintainable. The High Court further held that the issue that the non-stamping of the Work Order rendered the arbitration agreement unenforceable could be raised by Global Mercantile before a court under Section 11[6] of the Arbitration Act or before the arbitral tribunal. Aggrieved by the decision of the High Court, Global Mercantile approached the Court.

Analysis Of The N.N. Global Judgment

Numerous issues were raised by Global Mercantile before the Court, however this paper concentrates on the findings of the Court on the issue – “Whether an arbitration agreement would be enforceable and acted upon, even if the Work Order dated 28.09.2015 is unstamped and un-enforceable under the Stamp Act?[7]. Global Mercantile argued that the application under Section 8 of the Arbitration Act for reference of disputes to arbitration was not maintainable. It contended non-maintainability on the ground that the Work Order not being stamped as per the relevant Stamp Act could not be received in evidence or acted upon, thus, the arbitration clause contained therein also could not be enforced. On the other hand, Indo Unique contended that non-payment of stamp duty on the Work Order was a curable defect and did not render the Work Order unenforceable. Therefore, opportunity should be granted to Indo Unique to cure the defect by paying the deficient stamp duty.  

The Court, while arriving at its holdings in the N.N. Global Judgment, analyzed the development of the doctrine of separability internationally through judgments delivered in the United Kingdom[8], United States[9] and France[10]. The Court acknowledged that Section 16 of the Arbitration Act recognizes the doctrine of separability and kompetenz-kompetenz in India. Further, Section 5 and Section 11 of the Arbitration Act enshrine the legislative policy of minimal judicial intervention. A conjoint reading of Section 5 and Section 16 of the Arbitration Act reveals that the issue whether the main contract is voidable is to be resolved through arbitration. On a careful perusal of the relevant Stamp Act, the Court opined that stamp duty is not chargeable on an arbitration agreement and is only payable on the main contract. The non-payment of stamp duty on the Work Order did not invalidate it but only created a deficiency which could be cured by payment of the requisite stamp duty.

The Court held that on an application of the doctrine of separability – (a) the arbitration agreement contained in the Work Order being independent and distinct from the underlying contract; and (b) no stamp duty being chargeable on it – the arbitration agreement would survive independent of the Work Order. Arbitration agreement would not be rendered invalid or unenforceable on the ground that the contract containing it cannot be acted upon due to non-payment of stamp duty. The N.N. Global Judgment declared that the previous judgments on this issue are bad in law for not upholding the doctrine of separability. Further as a co-ordinate three-judges’ bench of the Court had previously arrived at a contrary decision, in deference to the doctrine of stare decisis, the issue was referred to a Constitution Bench of the Court for authoritative determination.

Comments On The N.N. Global Judgment

The issue of enforceability of an arbitration agreement contained in an unstamped agreement has previously been addressed by the Court in numerous judgments. The Court in SMS Tea Estates Pvt. Ltd. v. M/s Chandmari Tea Co. Pvt. Ltd.[11] held that until the payment of stamp duty with penalty, a court cannot act upon the contract which means consequently the court cannot act upon the arbitration agreement contained in the contract. This issue also came up for the consideration of the Court in 2019 in Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited[12] wherein it was held that the Stamp Act applies to the whole contract, hence, it is impossible to separate the arbitration clause contained in the contract from the remainder of the contract to give the arbitration clause an independent existence. This position of the Court was further cited with approval by a three judges’ bench in Vidya Drolia & Ors. v. Durga Trading Corporation[13], which held that arbitration agreement presupposes the existence of a valid and enforceable agreement, so it does not exist when a party cannot sue and claim rights based on an unenforceable agreement.

The Court by way of the NN Global Judgment was right in declaring the judgment in SMS Tea Estates Pvt. Ltd. and Garware Wall Ropes Limited as bad in law and doubt the correctness of the view adopted in Vidya Drolia & Ors. as these judgmentscompletely disregard the well-established doctrine of separability.[14]The doctrine of separability is incorporated in Article 16(1) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) which provides that a decision of the arbitral tribunal that a contract is null and void will not automatically render the arbitration clause invalid. The Arbitration Act was codified and implemented in India with a view to implement the Model Law to create a unified legal framework for the fair and efficient settlement of disputes.[15] In fact the doctrine of separability contained in Article 16(1) of the Model Law is codified in Section 16(1) of the Arbitration Act. Therefore, the previous judgments of the SC clearly failed to appreciate that the doctrine of separability is the mandate of the codified law in India and are thus bad in law. 

The legislative policy of promoting arbitration by limiting judicial intervention in arbitration can be gleaned from the 2015 amendment to Section 11 of the Arbitration Act. The Court has interpreted the amendment to reflect the legislative intent that at the pre-reference stage, courts seized of the matter must exercise minimal judicial intervention and only decide on the issue of existence of arbitration agreement.[16] The Court has repeatedly emphasized that under the now amended Section 11(6A) of the Arbitration Act, in deference to the doctrine of kompetenz-kompetenz embodied in Section 16, the scope of court’s examination is limited to determining the existence of the arbitration agreement and all other preliminary / threshold issues are to be decided by the arbitrator.[17] Thus, once a court has prima facie determined that an arbitration agreement exists, issues regarding the invalidity of the agreement due to non-stamping have to be referred to an arbitrator in terms of the arbitration agreement.

Further, the stamp duty is only a fiscal measure to secure revenue and not a weapon of technicality, so there is no bar on an unstamped instrument being acted upon once the defect is cured.[18] In any event, under the Stamp Act no stamp duty is levied on an arbitration agreement. Hence, non-stamping of the main agreement (a) does not affect the validity of the arbitration agreement; and (b) does not render the main agreement void and is only a technical defect which can be cured by payment of stamp duty and penalty. This being the case, a party cannot be permitted to misuse the Stamp Act to deny the other party the pre-agreed remedy of arbitration.  

The N.N. Global Judgment, by accepting the doctrine of separability, has finally brought the Indian arbitration law in line with the international practices. The UK Court of Appeal, while accepting that the principle of separability exists in English Law, had held that if the arbitration clause is not directly impeached it is capable of surviving the invalidity of the contract so that the arbitrator has the jurisdiction to determine the initial validity of the contract.[19] When the validity of the contract is challenged, the arbitration agreement is treated as an autonomous procedural contract and not as an element of a material-legal contract.[20] The internationally accepted doctrine of separability has finally been accepted and applied by India’s apex court.


In recent times, the Court has adopted a policy to promote India as an arbitration-friendly nation. This is evident from its decision in A. Ayyasamy v. Parmasivam & Ors., wherein it held – “The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution.”[21] The N.N. Global Judgment is another in a series of pro-arbitration judgments of the Court aimed at evolving a robust framework of Indian arbitration law, benchmarked against the best international practices. The World Bank’s Doing Business 2020 report reveals that India ranks 63rd in the ‘Ease of Doing Business Rankings’.[22] Promoting India as an arbitration-friendly jurisdiction is vital for attracting more investments and the N.N. Global Judgment is a welcome step in that direction.

Ananya Dhar Choudhury is an LL.M. candidate in the International Business Regulation, Litigation and Arbitration program at the NYU School of Law. Prior to attending NYU, she worked as an Associate with the Litigation and Disputes Resolution team at Cyril Amarchand Mangaldas, a leading full-service law firm in India.

[[1]] Tibor Varady et al., International Commercial Arbitration: A Transnational Perspective 192 (7th ed. 2019).

[[2]] N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. & Others, 2021 SCC OnLine SC 13 at ¶1.

[[3]] Id. at ¶12.

[[4]] Ibid.

[[5]] Under Article 226 of the Constitution of India, every High Court has the power to issue to any person, in its territories, any direction for the enforcement of any of the rights and for any other purpose. Further, Article 227 of the Constitution of India bestows the High Court with supervisory jurisdiction over all courts and tribunals throughout its territorial jurisdiction. Therefore, in this case the Bombay High Court had supervisory jurisdiction over the Commercial Court to pass any direction it deems fit.

[[6]] If the parties fail to agree on the appointment of an arbitrator or tribunal, then either party may approach the court under Section 11 of the Arbitration Act requesting the court to make such an appointment. The decision of the court, pursuant to such a request, is final.

[[7]] N. N. Global Mercantile Pvt. Ltd., supra at ¶2.

[[8]] The House of Lords in Fili Shipping Co. Ltd. and others v. Premium Nafta Products Ltd. and Others, [2007] UKHL 40 held that the main agreement and the arbitration agreement must be treated as having been separately concluded. The arbitration agreement can be invalidated only on a ground which relates to the arbitration agreement and not as a mere consequence of the invalidity of the main agreement.

[[9]] The US Supreme Court in in Buckeye Check Cashing, Inc. v. Cardegna et. al., US SC 440 (2006) held that challenge to the contract does not prevent a court from enforcing a specific agreement to arbitrate contained therein.

[[10]] The French Cour de Cassation in Gosset v. Caparelli, Cass. Civ. Lere, 7 May 1963 (Dalloz, 1963), 545 held that the arbitration agreement is completely autonomous in law and remains unaffected by the possible invalidity of the main contract.

[[11]] (2011) 14 SCC 66 at ¶19.

[[12]] (2019) 9 SCC 209 at ¶19, 22.

[[13]] (2021) 2 SCC 1 at ¶147.

[[14]] N. N. Global Mercantile Pvt. Ltd., supra at ¶6.10, 6.12.

[[15]] Preamble to the Arbitration Act; Harpreet Kaur, The 1996 Arbitration and Conciliation Act: A Step Toward Improving Arbitration in India, 6 Hastings Bus. L.J. 261, 264 (2010).

[[16]] Duro Felguera v. Gangavaram Port Ltd., (2017) 9 SCC 729 (affirmed by a three-judge bench of the Court in Mayavati Trading Pvt. Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714).

[[17]] Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd, (2020) 2 SCC 455 at ¶7.8, 7.10.

[[18]] Hindustan Steel Limited v. M/s Dilip Construction Company, (1969) 1 SCC 597 at ¶7.

[[19]] Harbour Assurance v. Kansa General International Insurance, [1993] 1 Lloyd’s Rep. 455 (CA).

[[20]] Sojuznefteexport v. Joc Oil Limited, 15 Yearbk. Comm. Arb’n 384 (1990).

[[21]] A. Ayyasamy v. Parmasivam & Ors., (2016) 10 SCC 386 at ¶53.

[[22]] World Bank Group, Doing Business 2020, World Bank,

The Russia Federation v. Luxtona: Canada Breaks Away on the Standard of Review for an Arbitral Tribunal’s Jurisdictional Decision


In its recent decision, The Russia Federation v. Luxtona Limited,[1] the Ontario Superior Court addressed the standard of review applicable to a challenge to an arbitral tribunal’s jurisdictional decision under Article 16(3) and 34(2)(a)(iii) of the UNCITRAL Model Law on International Commercial Arbitration. The Court notably dealt with the inclusion of fresh evidence[2] as part of that challenge. The Court ruled that the judicial review of an arbitral tribunal’s jurisdiction takes the form of a review on a “correctness” standard, not a trial de novo. Consequently, while a court may review questions of law to reach the correct decision, it must defer to the arbitral tribunal’s factual findings, unless the challenging party shows the tribunal made a “clear and overriding” error in its appraisal of the facts.[3] As such, parties must obtain leave of the Court to adduce fresh evidence.[4]

This decision breaks from tradition. Ontario case law, like in other Model Law jurisdictions has generally tended more toward a trial de novo approach granting courts unfettered original jurisdiction to determine an arbitral tribunal’s jurisdiction, including the right to make factual findings and rehear witnesses.[5] As such, parties could file fresh evidence as of right.

The Ontario Court’s decision in Luxtona is a welcome evolution. Its outcome achieves an appropriate balance between holding a trial de novo and giving full deference to an arbitral tribunal’s jurisdictional ruling. While the decision regrettably fails to address the strongest arguments from jurisdictions having adopted the trial de novo approach, which opens it up to future challenges, stronger reasons can be offered in support of the “correctness” review approach.


In Luxtona, the plaintiff, Luxtona Limited initiated arbitral proceedings against the Russian Federation pursuant to the Energy Charter Treaty for failing to protect its investment in Yukos, one of Russia’s largest oil companies at one point. While Russia signed the Treaty, it had never ratified it. Luxtona argued that Russia was bound by the Treaty and its arbitration clause,[6] since signatories of the Treaty also agree to its provisional application pending ratification.[7] Russia argued that the provisional application of the Treaty is inconsistent with Russian law and therefore, does not apply. Following an initial arbitration hearing in Toronto in which Russian law experts testified for both sides, the arbitral tribunal determined that it had jurisdiction to hear the dispute.[8]

Russia challenged the ruling in the Ontario Superior Court under Articles 16(3) and 34(2)(a)(iii) of the Model Law, in force in Ontario.[9] In support of its application, Russia filed additional expert evidence. Luxtona objected to its inclusion. A first Superior Court judge, Dunphy J., ruled that the evidence could be admitted as of right,[10] referring to the precedent of United Mexican States v. Cargill, Inc.[11] rendered by the Ontario Court of Appeal in 2011. In Cargill, the Court had stated that correctness review “is consistent with the reasoning in [Dallah Real Estate Holdings v. Pakistan].”[12] In that case, rendered months before Cargill, the Supreme Court of the United Kingdom set aside an arbitral award on the basis that the arbitral tribunal did not have jurisdiction to render an award on the parties’ dispute. In reaching its conclusion, the Court heard additional evidence including expert evidence on French law.[13]

The second judge, Penny J., took over the proceedings and ordered submissions from the parties on the standard of review and admissibility of the fresh evidence. At trial, Penny J. ruled that review on a “correctness” standard applies. As such, the court must consider whether the arbitral tribunal has reached the correct decision on jurisdiction. Normally, this will entail deference to the evidence on the arbitral record and thus, a party must obtain leave of the court to submit fresh evidence on a review of the type found under Article 16(3) of the Model Law.[14] Penny J. ruled that a party seeking to adduce fresh evidence must show that the evidence: (1) “could not have been obtained using reasonable diligence, (2) would probably have an important influence on the case, (3) is apparently credible, and (4) is such that, if taken with the other evidence adduced in the arbitration, it would be expected to have affected the result.”[15] Russia conceded that its evidence would be inadmissible under this test.


Luxtona adopts an appropriately deferential standard of review for a tribunal’s jurisdictional decision. While the decision suffers from its failure to address the strongest arguments for the trial de novo approach, “correctness review” remains appropriate, nonetheless.

First, a review on a “correctness” standard is appropriate to resolve challenges to jurisdictional decisions under Article 16(3) of the Model Law. Under this approach, a court retains the power to overturn an arbitral tribunal while giving deference to the arbitral tribunal’s factual findings. This protects the parties’ consent to arbitrate only disputes agreed upon in advance, while, at the same time, promoting the finality and effectiveness that arbitration seeks to promote.[16]

While the trial de novo approach protects consent to arbitration, this approach overstates the court’s importance in ensuring that the parties’ consent is being respected and devalues the arbitral tribunal’s ability. Indeed, an arbitral tribunal will often be just as capable if not more capable than a court to rule on its jurisdiction. A tribunal is often constituted with three arbitrators who are experts in the subject area of the dispute, whereas a domestic court judge usually sits alone and has no expertise.[17] Reviewing a jurisdictional decision on a “correctness” standard gives proper weight to the arbitral tribunal’s factual findings. It recognizes, first, that the arbitral tribunal has assessed the credibility of witnesses and considered the evidence at length, while at the same time giving the court the power to overturn its decision if it finds legal errors. Second, “correctness” review focuses the court’s analysis on specific challenges to the arbitral tribunal’s legal reasoning. Contrary to a trial de novo, which demands completely rehearing the jurisdictional question, including the factual findings, from a practical point of view, “correctness” review forces the challenging party to point out specific legal errors made by the arbitral tribunal.[18]

Second, while Penny J. regrettably fails to address significant arguments usually put forward by courts applying the trial de novo approach, “correctness” review remains appropriate and can withstand these objections. The most consistently stated argument put forward for adopting the trial de novo approach is that Article 16(3) of the Model Law states that, after an arbitral tribunal has ruled on its jurisdiction, a party may request that a domestic court “decide the matter”.[19] No provision in Article 16 or the Analytical Commentary supports this interpretation.[20]

Another objection is that if the court was limited to a process of review, “it might be reviewing the decision of a tribunal that itself had no jurisdiction to make such a finding.”[21] This argument ignores the arbitral tribunal’s competence-competence, that is, its capacity to “rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement” [our emphasis] enshrined in Article 16(1) of the Model Law. A trial de novo sterilizes this principle and wastes significant party resources. Since, under Article 8 of the Model Law, a court must refer the parties to arbitration at one party’s request, this forces the parties to obtain an initial jurisdictional ruling from the arbitral tribunal, which a court may completely disregard if a party decides to challenge it.

Finally, commentators argue that a court is not in a worse position to make assessments than the tribunal and should therefore be able to examine witnesses in the usual way.[22] As explained earlier, several reasons can make an arbitral tribunal’s factual findings of higher quality.


Luxtona paves the way for future challenges to arbitral jurisdiction being resolved through a review on the “correctness” standard. This is an appropriate break from Model Law jurisdictions which conduct the jurisdictional analysis de novo. While properly ensuring that parties have consented to arbitration, a review leaves space for domestic courts to overturn findings of arbitral tribunals. This promotes the efficiency that makes arbitration desirable in the first place.

Laurent Crépeau is an LL.M Candidate in the International Business Regulation, Litigation and Arbitration specialization at New York University School of Law. He holds a Bachelor of Civil Law and Juris Doctor from McGill University’s Faculty of Law.

[1] The Russia Federation v. Luxtona Limited, 2019 ONSC 7558 (Can. Ont.).

[2] Fresh evidence is evidence that was not submitted during the arbitration but is submitted at the review stage.

[3] In Canada, this has been elaborated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[4] Luxtona, 2019 ONSC 7558, para. 66.

[5] See United Mexican States v. Cargill, Inc., 2011 ONCA 622 (Can.). See also Insigma Technology Co. Ltd. v. Alstom Technology Ltd. [2008] SGHC 134 (Sing.); M/s. Schlumberger Asia Services Ltd. v. Oil & National Gas Corporation Ltd. FAO(OS) No. 712/2006 (India Delhi HC). See also; Bowen Construction Limited (in receivership) v. Kelly’s of Fantane (Concrete) Limited (in receivership) [2019] IEHC 861 (Ir.); S Co. v. B Co., [2014] 6 H.K.C. 1436 (C.F.I.). Contra Government of the Lao People’s Democratic Republic v. Sanum Investment Ltd. [2016] SGCA 57; M/s Emkay Global Financial Services Ltd. v. Girdhar Sondhi, (2018) 9 SCC 49.

[6] Energy Charter Treaty art. 26(3)(a), Dec. 17, 1994, 2080 UNTS 95.

[7] Id. at art. 45.

[8] See Luxtona, 2019 ONSC 7558, para. 1-7.

[9] International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5. See UNCITRAL Model Law on International Commercial Arbitration, arts. 16(3), 34.

[10] The Russia Federation v. Luxtona Limited, 2018 ONSC 2419, para. 28 (Can.).

[11] United Mexican States v. Cargill, Inc., 2011 ONCA 622 (Can.).

[12] Cargill, supra para. 43.

[13] Dallah Real Estate and Tourism Holding Company v. Pakistan[2010] UKSC 46, para. 14.

[14] The Russia Federation v. Luxtona Limited, 2019 ONSC 7558, para. 66. (Can.).

[15] Id., para. 69.

[16] See William W. Park, Why Courts Review Arbitral Awards, in Law of International Business and Dispute Settlement in the 21st century: Liber Amicorum Karl-Heinz Böckstiegel 595, 596 (Robert Briner ed., 2001).

[17] See Emilia Onyema, The Jurisdictional Tension between Domestic Courts and Arbitral Tribunals, in International Arbitration and the Rule of Law: Contribution and Conformity(Andrea Menaker, ed., 2017), 481, 484-85.

[18] See Luxtona, supra note 15, para. 67.

[19] See e.g. Insigma Technology Co. Ltd. v. Alstom Technology Ltd. [2008] SGHC 134, para. 21 (Sing.).

[20] See Ilias Bantekas et al. UNCITRAL Model Law on International Commercial Arbitration: A Commentary (Cambridge University Press, 2020), 312 (stating the lack of clearly indicated standard of review for challenges under Art. 16(3)).

[21] See Insigma at para. 22.

[22] Id.

Professors Franco Ferrari, Friedrich Rosenfeld, and Dietmar Czernich edit a book on “Due Process as a Limit to Discretion in International Commercial Arbitration”

Professor Franco Ferrari, the Center’s Director, has just edited a book entitled “Due Process as a Limit to Discretion in International Commercial Arbitration”, co-edited with Friedrich Rosenfeld, a Global Adjunct Professor of Law at NYU Law in Paris and a lecturer for investment arbitration at the Bucerius Law School in Hamburg, and Dietmar Czernich, an attorney and Adjunct Professor based in Vienna. The book offers a comprehensive study on dueprocess as a limit to arbitral discretion useful to anybody involved in international arbitration. Based on 19 country reports (authored by Julio Cesar Rivera (h), Rafael Alves, Andrea Bjorklund & Benjamin Jarvis, Zheng Sophia Tang, Soterios Loizou, Caroline Kleiner, Dr. Friedrich Rosenfeld, Jennifer Lim & Charlotte Lelong, Aditya Singh & Zehaan Trivedi, Francesca Ragno, Koji Takahashi, Nayla Comair-Obeid & Zeina Obeid, Jacob van de Velden & Abdel Zirar, Giuditta Cordero-Moss, Mikhail Batsura, Jonathan Lim, Simon Hohler, Hattie Middleditch, Ina Popova & Duncan Pickard) and a detailed general report authored by the three editors, the book explores how courts in major arbitration jurisdictions apply due process guarantees when performing their post-award review.

Professor Ferrari publishes a paper on the homeward and outward trends in CISG case law

Professor Franco Ferrari, the Center’s Director, is known for his work on the United Nations Convention on Contracts for the International Sale of Goods (CISG), one of the most successful uniform contract law instruments. In his most recent paper, published in a book edited by Professors Iacyr de Aguilar Vieira and Gustavo Cerqueira  to celebrate the CISG’s 40th anniversary and entitled “La Convention de Vienne en Amérique/The Vienna Convention in America”, Professor Ferrari identifies two trends in recent case law interpreting the CISG: the homeward trend and the outward trend, both of which are disruptive of the goal behind the CISG. The paper analyses the trends and suggests how to tackle them to promote a uniform application of the CISG.

Professor Pedro J. Martinez-Fraga publishes the second edition of “The American Influence on International Commercial Arbitration”

Professor Pedro J. Martinez-Fraga, a leading practitioner in the field of investor-State international arbitration, international commercial arbitration, and transnational litigation, the co-leader of Bryan Cave Leighton Paisner LLP’s International Arbitration Team, and Adjunct Professor at NYU School of Law, has just published the second edition of his acclaimed book entitled “The American Influence on International Commercial Arbitration” with Cambridge University Press. As Professor Jose Alvarez, NYU’s Herbert and Rose Rubin Professor of International Law, states, “Pedro J. Martinez-Fraga begins his masterful work on the United States’ influence on international commercial arbitration with the original vision of arbitration suggested by Goya’s painting ‘Duel with Clubs’ in the Museo del Prado. The idea that arbitration is as blunt an instrument for ‘dispute settlement’ as two men using deadly force against each other – admittedly efficient, expedient, and final – has, he says, been eclipsed by the recognition that arbitration has much in common with judicial proceedings. His book is an argument, driven by a careful examination of history, case law, and statute, that the actions and views of common law courts has had much to do with this change. His is a general (and rare) defense of what some would decry, namely the ‘Americanization’ of international arbitration. Readers should welcome this new up-to-date edition. It continues to be a valuable contribution to a healthy, ongoing debate.’’ According to Gary Born, the chair of WilmerHale’s International Arbitration Practice Group, the book contains a “thoughtful and provocative analysis of a very timely subject – replete with keen observations and original analysis.”

The book traces the contours of select US common law doctrinal developments concerning international commercial arbitration. The new edition supplements the foundational work contained in the first edition in order to produce a broader and deeper work. Professor Martinez-Fraga explores how the US common law may help bridge cross-cultural legal differences by focusing on the need to address these contrasting approaches through the nomenclature and goal of securing equality between party-autonomy and arbitrator discretion in international commercial arbitration. The book thus focuses on the common law development of arbitrator immunity, as well as the precepts of party-initiative and –autonomy forming part of the US common law discovery rubric that may contribute to promoting expediency, efficiency and transparency in international commercial arbitration proceedings. It does so by carefully analyzing, among other things, the International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 USC. §1782 in international arbitration.


– Sonal Jain


When parties expressly include self-invalidating provisions in their arbitration agreements, to what extent can courts extrapolate such provisions and find the agreement valid to give effect to the parties’ intention to arbitrate?

In BNA v. BNB and another, [2019] SGHC 142,[1] the Singapore High Court was tasked to determine the validity of an arbitration agreement. Despite the court’s lengthy elucidation rejecting the “validation principle”[2] as part of Singapore law, the Court effectively rewrote the parties’ arbitration agreement to find it valid. Instead of holding the agreement invalid under the correct applicable law, the court took a one step further– it interpreted an express provision in the arbitration agreement (“arbitration in Shanghai”) to mean an arbitration seated in Singapore with Shanghai merely the “venue” of the arbitration. Although the decision was successfully appealed before the Court of Appeal,[3] its paradoxical nature makes it noteworthy.


In 2016, the Defendants commenced arbitration under a Takeout Agreement. Article 14 of this agreement stated that it would be governed by the law of the People’s Republic of China (“the PRC”). It also provided for the parties’ arbitration agreement. In the arbitration clause, the parties expressly stipulated that their disputes shall be “…finally submitted to Singapore International Arbitration Centre (SIAC) for arbitration in Shanghai…”[4] The Plaintiff challenged the Tribunal’s jurisdiction alleging the invalidity of the arbitration agreement under the applicable law– PRC law– stating that under PRC law, an arbitration between two domestic parties cannot be administered by a foreign arbitration institution.[5] The majority of the Tribunal held the Tribunal had jurisdiction. Thereafter, the Plaintiff applied to the Singapore High Court under §10(3) of the Singapore International Arbitration Act[6] to seek a de novo determination that the Tribunal does not have jurisdiction. The Court held that Singapore law applied to the arbitration agreement rendering it valid, therefore, the tribunal had jurisdiction.

The Court’s Findings

Law Applicable to the Arbitration Agreement

The Court reiterated that Singapore courts have adopted the three-step test formulated by the English Court of Appeal in Sulamérica.[7] This approach requires an inquiry into three questions.

  • Have the parties made an express choice of law to govern the arbitration agreement?
  • In the absence of an express choice, have they impliedly chosen a law? (The law expressly chosen by the parties for the underlying contract is presumptively their implied choice of law for the arbitration agreement. However, the presumption is rebutted if the arbitration agreement is invalid under this law.)
  • If the parties have not made an express or implied choice of law, with which system of law does the arbitration agreement have the closest and most real connection?

Rejection of the Validation Principle

According to the validation principle, while determining the law applicable to the arbitration agreement, courts must always apply the law that would validate the arbitration agreement, rather than potentially applicable choices of law that would invalidate the agreement.[8] Previously, Singapore courts had not expressly dealt with the issue of whether the validation principle is part of Singapore law. Another decision of the High Court[9] was interpreted to accommodate the validation principle in Singapore law.[10] Thus, the Court’s decision in BNA is significant. The Court’s rejection of the validation principle is sound as a matter of principle and practice.

Principally, the rules of contractual interpretation in Singapore directly conflict with the “nakedly instrumental” objective of the validation principle.[11] The Court of Appeal has previously held that arbitration agreements, like any other commercial contracts, should be interpreted in light of the words used by the parties, although to give effect to the parties’ intention to arbitrate.[12] In this vein, the Court in BNA rightly stated that analysis under the three-step test is driven by a desire to give effect to the parties’ intention to arbitrate insofar as the language chosen by them makes it possible.[13] The purpose of the analysis is not to achieve a predetermined objective of validating the agreement regardless.[14]

Practically, if arbitration agreements are construed without actually giving effect to the parties’ intentions by interpreting the words chosen (as may be the case when applying the validation principle) there is a serious possibility that the award may not be enforced if the enforcing court finds that the arbitration agreement was invalid under the law applicable to it.[15]

The Court’s Decision in BNA

Law Governing the Arbitration Agreement– The Three-step Test

The Court applied the three-step test to Article 14 of the Takeout Agreement and concluded the following:

  1. the parties had not made an express choice of law for the arbitration agreement; the choice of PRC law to the Takeout Agreement was insufficient to constitute an express choice of law to the arbitration agreement.
  2. PRC law presumptively applied to the arbitration agreement as parties’ implied choice. However, this presumption was rebutted because the arbitration agreement would be invalid under PRC law. Since the arbitration was seated in Singapore, the law of the seat– Singapore law– applied.
  3. there is no need to proceed to the third step having concluded Singapore law applies on the second step; assuming the inquiry under the third step ought to be conducted, Singapore law will still apply to the arbitration agreement.

Seat of Arbitration

The Court concluded that the seat of arbitration was Singapore notwithstanding the reference to Shanghai in the arbitration agreement. The parties expressly chose to conduct their arbitration according to the arbitration Rules of SIAC (“SIAC Rules 2013”). Rule 18.1 of the SIAC Rules 2013 (“Rule 18.1”) provides that the default seat of arbitration is Singapore, absent a contrary agreement of the parties or a contrary determination by the tribunal.[16] The Court found that the arbitration agreement referred to two geographical locations– Singapore and Shanghai. It held that reference to Shanghai did not constitute a contrary agreement as contemplated in Rule 18.1, because “there


nothing in the words chosen by the parties to refer to Shanghai which compels the construction that the PRC is to be the seat.”[17] Then, it justified itself by stating that out of the two geographical locations in the parties arbitration agreement, Singapore is a law district whereas Shanghai is merely a city.


As commendable the Court’s reasoning is for the rejection of the validation principle, its application of the three-step test to the facts of the case has failed to garner the same degree of fidelity. Particularly, the Court’s analysis on the seat of the arbitration is not only incongruent but also fraught with several difficulties.

To begin with, it is apparent from a plain reading of the arbitration agreement that there is a reference to only one geographical location in the agreement– Shanghai. Relying on the Court of Appeal’s decision in PT Garuda,[18] the Court itself reckoned that “if an arbitration agreement provides for any future arbitration to take place in a single geographic location, that location will be the seat of the arbitration unless the parties otherwise agree.”[19] There are other authorities that have interpreted such geographical references to mean a parties’ choice of “seat of arbitration”. In Naviera,[20] the English Court of Appeal opined that the phrase “arbitration in London” is the “colloquial way of referring to London as the seat of the arbitration.”[21] The Court should have concluded its inquiry in favor of Shanghai as the seat of the arbitration.

Likewise, the Court’s interpretation of Rule 18.1 is incoherent. As per Rule 18.1, first, the parties have a right to agree on a seat of arbitration. The default seat provision comes into effect only if at this first step there is no agreement between the parties.[22] Instead, the court interpreted Rule 18.1 inversely. To determine if the phrase “arbitration in Shanghai” constituted a contrary agreement, the Court assumed first that there is no such agreement, consequently, the arbitration agreement referred to two geographical locations– Singapore and Shanghai. This is logically inconsistent. Accordingly, the Court should have first determined if the words “arbitration in Shanghai” constituted an agreement between the parties on the seat of arbitration, independent of the default seat provision.

Additionally, it is ambiguous which law the Court applied to interpret the arbitration agreement. The Court’s decision is devoid of any conflict-of-laws analysis to determine the law applicable to the interpretation of the arbitration agreement. Either PRC law or Singapore law could have applied to is (as the law governing the underlying contract or the lex fori, respectively). Assuming the Court applied Singapore law, its application of the law was erroneous due to a clear departure from the existing precedent.[23] As regards PRC law, it may very well have been that PRC law would interpret “arbitration in Shanghai” to mean an arbitration seated in PRC. This would have been a question of foreign law, to be determined by way of expert evidence.[24]

This case may also be understood to have created a presumption that lack of the word “seat,” or merely referring to a city (as opposed to a country) in the arbitration agreement, will not constitute a choice of seat. Such a presumption would open the floodgates for jurisdictional arguments on the question of choice of seat, as it is not uncommon for parties to fail to designate the geographical location as “seat,” or simply refer to a city while choosing the seat.[25]

From the foregoing, the seat of the arbitration should have been decided as the PRC. Had the Court proceeded on that basis, it would have concluded on the second step of its three-step analysis that neither the law governing the underlying contract nor the law of the seat (both being PRC Law) would have applied to the arbitration agreement. The Court would have had to proceed to the third step and identified the law with which the arbitration agreement had the closest and most real connection. At this stage too, the Court should have concluded that PRC law governed the arbitration agreement because the proper law of the Takeout Agreement was PRC law and the seat of the arbitration was Shanghai. With this analysis, the court would have no alternative but to conclude that the arbitration agreement was invalid, and the tribunal lacked jurisdiction.

Accordingly, it is evident that the Court’s analysis in BNA was guided with the objective of finding the arbitration agreement valid. There is a clear dissonance between the Court’s jurisprudential discussion on the inapplicability of the validation principle in Singapore and its analysis in the present case. The Court effectively took the approach that would validate the arbitration agreement, despite the agreement’s apparent invalidity.

Closing Remarks

Although the Court’s decision is understandable due to Singapore’s pro-arbitration policy,[26] the Court of Appeal rightly reversed the Court’s decision finding that PRC law applied to the arbitration agreement. In one of its conclusory remarks, the Court noted that the three-step inquiry may operate arbitrarily due to the mere choice of arbitral rules. In this author’s opinion, it is not arbitrary, although it may have been an “unintended effect”.[27] Suppose the parties’ dispute arose just a year later and the SIAC Rules 2016[28] applied vis-à-vis SIAC Rules 2013, the parties’ arbitration agreement would have been invalid. Conversely, suppose PRC laws changed before the parties commenced their arbitration, the agreement would have been valid. These hypothetical outcomes do not reflect the arbitrariness of the judicial approach of determining the law applicable to the arbitration agreement. Instead, they remind the parties to survey their local laws before including self-invalidating provisions in their arbitration agreements and also to pay closer attention to drafting the clauses generally. After all, courts do not and should not be in the business of rewriting contractual bargains.[29] Though the Court in BNA erred in its findings, it correctly stated that “there is only so much which the law can do to save an inapt and inept arbitration agreement.”

[This article was written when the Singapore Court of Appeals had not issued the written grounds of decision. The grounds of decision were released on 27 December 2019. This article should not be construed as a summation of the Court of Appeals decision.]

Sonal Jain is an LL.M. Candidate in the International Business Regulation, Litigation and Arbitration Program at NYU School of Law.  Prior to enrolling at NYU, Sonal got her first degree in law from ILS Law College, Pune (India).

[1] BNA v. BNB and another, [2019] SGHC 142 (Singapore High Court) (Decision of July 1, 2019).

[2] See, Gary Born, International Commercial Arbitration(2nd ed., 2014) at p. 545.

[3] The grounds of appeal are awaited. See, Tom Jones, No Singapore seat for Chinese dispute, rules appeal court, Global Arbitration Review (22 October 2019), available at

[4] BNA, supra n.1at [3] (emphasis added).

[5] However, this position is somewhat unclear. See, Arthur Ma et. al., GAR Know How: Commercial Arbitration: China: Infrastructure, ¶5 (last updated 2 May 2019), available at; see also, Martin Rogers & Noble Mak, Foreign Administered Arbitration in China: The Emergence of a Framework Plan for the Shanghai Pilot Free Trade Zone, Kluwer Arbitration Blog (6 September 2019), available at

[6] International Arbitration Act Cap. 134A (revised ed., 2002).

[7] Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia SA, [2013] 1 WLR 102 (English Court of Appeal); see, BCY v. BCZ, [2016] SGHC 249 (Singapore High Court).

[8] See, Born, supra n.2.

[9] BCY, supra n.7.

[10] See, Leong & Tan, The Law Governing Arbitration Agreement: BCY v. BCZ and Beyond, (2018) 30 SAcLJ 70.

[11] See, BNA, supra n.1 at [53].

[12] Insigma Technology Co. Ltd. v. Alstom Technology Ltd.,[2009] 3 SLR(R) 936, at [30], [31] (Singapore Court of Appeal).

[13] BNA, supra n.1 at [55].

[14] Id. at [53].

[15] Under the New York Convention, Article V(1)(a) courts may refuse enforcement of an award if the parties’ arbitration agreement was invalid under the law parties have subjected it to. This clause includes both parties’ express and implied choice of law. See, Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation (1981) at p. 282.

[16] SIAC Rules (5th ed., 2013), available at

[17] BNA, supra n.1 at [109].

[18] PT Garuda Indonesia v. Birgen Air, [2002] 1 SLR(R) 401 (Singapore Court of Appeal).

[19] BNA, supra n.1 at [103] (emphasis supplied).

[20] Naviera Amazomica Peruana SA v. Compania Internacional de Seguros del Peru, [1988] 1 Lloyd’s Rep 116 (English Court of Appeal).

[21] Id. at 119; a similar interpretation ensued in ABB Lummus Global Ltd. v. Keppel Fels Ltd, [1999] 2 Lloyd’s Rep 24 (English High Court) (finding that “arbitration in London” or “arbitration in New York” is the ordinary language used to describe the seat of the arbitration); see also, Shagang South-Asia (Hong Kong) Trading Co. Ltd. v. Daewoo Logistics, [2015] All ER (Comm) 545 (English Commercial Court) (finding that an arbitration clause with the phrase “arbitration in London” refers to a choice of seat of arbitration).

[22] Rule 18.1 reads, “the parties may agree on the seat of arbitration Failing such agreement, the seat of arbitration shall be Singapore…”, supra n.16.

[23] See, PT Garuda, supra n.18.

[24] See, BNA, supra n.1 at [116].

[25] See, Born, supra n.2 at pp. 2074, 2075 (citing cases wherein arbitration clauses making references merely cities, without any context, were held to be the seat of arbitration).

[26] Singapore Parl. Debates, Vol 63, Sitting No 7, Title: International Arbitration Bill, Cols. 625-627 [31 October 1994], available at; See also Harisankar K.S., International Commercial Arbitration in Asia and the Choice of Law Determination, (2013) 30 J. Int. Arb. 621 at p. 625.

[27] BNA, supra n.1 at [122].

[28] SIAC amended its rules in 2016 and eliminated the default seat rule in order to present a more global reach. See, Rule 21.1 SIAC Rules (6th ed., 2016), available at; See also, Olga Boltenko and Priscilla Lua, The SIAC Rules 2016: a watershed in the history of arbitration in Singapore, Kluwer Arbitration Blog (July 12, 2016), available at

[29] TMT Co. Ltd v The Royal Bank of Scotland plc, [2017] SGHC 21, at [68] (Singapore High Court).

Mainland China’s Courts May Order Interim Measures in Aid of Arbitral Proceedings in Hong Kong

Xin MA

The Supreme People’s Court of the People’s Republic of China (SPC) and the government of Hong Kong Special Administration Region (HKSAR) signedthe Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administration Region (hereinafter Arrangement) on April 2, 2019. This Arrangement came into force on October 1, 2019 both in Mainland China and in the HKSAR. The SPC promulgated it in the form of Judicial Interpretation,[1] according it national mandatory force.[2] This Arrangement for the first time allows the People’s court to order interim measures in aid of commercial arbitral proceedings[3] outside Mainland China,[4] though limited to those seated in Hong Kong.

Up to now, the SPC and the HKSAR have already signed six arrangements[5] in relation to mutual judicial assistance in civil and commercial matters. In addition to this Arrangement, the SPC intends to strengthen Hong Kong as a unique seat for Sino-related alternative dispute resolution in the Asia-Pacific area. This short article tries to clarify several implications of this Arrangement for foreign parties, in the context of negotiating and drafting arbitration clauses with a Sino party, and in the context of seeking court-ordered interim measures in a People’s court against a Sino party.

What Interim Measures Can Be Ordered by A People’s Court?

While the HKSAR is a common law jurisdiction and has adopted the Model Law, Mainland China is a civil law jurisdiction and its arbitration law does not resemble the Model Law. Thus, “Interim Measure” as defined in the Model Law, does not exactly correspond to its Mainland China counterpart.

Article 1 of this Arrangement defines Interim Measure in Mainland China as “property preservation, evidence preservation, and conduct preservation.”[6] If because of one party’s conduct, or for other reasons, enforcing an arbitral award becomes difficult, or any other damage may be caused to the applicant, the applicant may apply for the preservation of that party’s property, or for an order compelling that party to perform certain conduct or abstain from certain conduct.[7] If there is a likelihood that evidence may be destroyed, or lost, or difficult to obtain later, the applicant may apply for the preservation of evidence.[8] Parties can apply for such interim measures before or after the relevant arbitral institution or permanent office has accepted the arbitration case.[9] However, applications before the start of the arbitral proceedings face stricter judicial review in regard to the urgency of the circumstances.[10]

Ad hoc vs. Institutional Arbitration & Which Arbitral Institution to Choose?

Two issues should be considered when negotiating an arbitration clause in light of this Arrangement. First, Mainland China has not yet allowed ad hoc arbitration in its own jurisdiction.[11] Its attitude towards ad hoc arbitration is also reflected in this Arrangement: only institutional arbitral proceedings seated in Hong Kong are qualified to seek court-ordered interim measures in a People’s court. Though the award of ad hoc arbitration seated in Hong Kong could be enforced by a People’s court,[12] if a foreign party intends to fully benefit from Hong Kong’s preferential arrangements with Mainland China, institutional arbitration in Hong Kong would be a more valuable choice than ad hoc arbitration.

Shanghai Marine Court granted the first application pursuant to this Arrangement on October 8, 2019 for a settlement agreement enforcement arbitration submitted to HKIAC.[13] Notice, however, that the parties initially conducted an ad hoc arbitration to solve the original contract dispute and reached that settlement agreement agreeing upon HKIAC arbitration thereof. If such an institutional arbitration clause had not been negotiated and included in that settlement agreement, this application could not have been granted.  

Second, the choice of arbitration institution should be deliberately considered because not all of the institutional arbitration seated in Hong Kong is entitled to such court-ordered interim measure aid. The arbitral institutions or permanent offices which administer “arbitral proceeding in Hong Kong” for the purpose of this Arrangement have to satisfy certain requirements,[14] then apply to the HKSAR government and obtain mutual confirmation from both the SPC and the HKSAR government to be qualified.[15] The first confirmed arbitral institutions have been promulgated[16] and other arbitral institutions can be confirmed upon application in the future. Of those first six arbitral institutions or permanent offices, CIETAC Hong Kong office and SCIAC (Hong Kong) are permanent offices of arbitral institutions which are organized and registered in Mainland China. They excel in Chinese arbitration practice. Compared to ICC Asia Office and HKIAC, however, they may be less attractive because they are from the same jurisdiction as Sino parties. 

Practical Concerns When Seeking Interim Measures in A People’s Court

Some specific and practical concerns should also be addressed when seeking interim measures in a People’s court. Procedural as they may be, they can affect the success of the application. The first concern is to decide to which court to apply. The applicant may apply to the Intermediate People’s Court of the place of residence of the party against whom the application is made, or to the Intermediate People’s Court of the place where the property or evidence is situated.[17] However, this Arrangement requires that the People’s court which accepts the interim measure application be the same as the one to accept the enforcement application.[18] This requirement comes out of consideration for judicial efficiency; the ultimate purpose of interim measures is to guarantee the enforcement of the arbitral award.[19] Thus, there may be a trade-off between one court that is more advantageous for ordering interim measures and another that is more convenient for enforcing the arbitral award. Considering the urgency required for the interim measure, it might be practical to apply to the court where the interim measure can be directly implemented, since it has no need to ask for further assistance from another court, which may prolong the implementation process.      

The second concern is with regard to the notarization and authentication requirement. A foreign applicant’s documents of identity, as part of the materials for the interim measure application,[20] must be notarized and authenticated before their submission. The People’s Court bears a fairly rigid judicial attitude towards evidence formed outside Mainland China, requesting that all such evidence, including documents of identity, be notarized and authenticated.[21] Note that although notarization and authentication are a matter of formality, failing to complete those steps in a timely manner would jeopardize an application.

Another concern is with regard to security provision. The People’s courts may at their discretion require the foreign applicant to provide security for ordering property preservation or conduct preservation. Further, if such application is made before the relevant institution or permanent office has accepted the arbitration case, security must be provided.[22] Though there are legitimate policy justifications for requiring security provision, and Sino applicants face the same requirement,[23] it may in reality constitute an obstacle to the application’s success. Once required by the People’s court, failure to provide security may lead to the refusal to grant an interim measure.[24] Nevertheless, the foreign applicant may own no property in Mainland China, or the value of such property located in Mainland China may be not sufficient to satisfy the security requirement. Thus, a practical solution may be to ask a local or national guarantee company to provide security at some consideration; however, to do so entails hasty and expeditious negotiations at costs. It still remains to be seen how the People’s courts will exercise their discretion pursuant to this Agreement in regard to security provision. However, it is wiser for foreign applicants to prepare themselves in advance for such a security provision request.

On the other hand, certain conveniences related to the “pass-on” requirement in light of this Arrangement are noteworthy. Article 3 paragraph 2 of this Arrangement requires interim measure application materials produced by the applicant to be passed on to the relevant arbitral institution or permanent office, together with a pass-on letter addressed by such relevant arbitral institution or permanent office to the People’s court.[25] However, in practice, the SPC allows applicants submitting the interim measure application materials with the pass-on letter to proceed directly to the relevant People’s court, considering that the rigidity of the pass-on requirement may, given the urgency of the circumstances, jeopardize the application since Hong Kong is located outside Mainland China.[26] In the first application under this Arrangement, this is how HKIAC and the applicant proceeded.[27]


In light of this Arrangement, institutional arbitration is recommended. Parties should deliberately consider the suitable arbitration institution during arbitration clause negotiation, and choose the suitable court among the competent People’s courts for granting an interim measure. Besides other procedural concerns this article has mentioned, an applicant should prepare well in advance for how to satisfy the possible security provision requirement to ensure a successful application. Nevertheless, this Arrangement’s importancefor Sino-related arbitration “cannot be overstated”,[28] as Sarah Grimmer, Secretary-General of HKIAC has commented. Hong Kong will surely become a more attractive arbitration seat henceforth. 

[1] Judicial Interpretation2019No.14

[2] As the highest court in the People’s Republic of China, the SPC also functions as a de-facto rule-making power holder. Its judicial interpretation has played an important role directing judicial practice in Mainland China. Regarding the legal status, functions and limits of the SPC’s Judicial Interpretation, please see Li Wei, Judicial Interpretation in China, 5 Willamette J. Int’l L. & Dis. Res. 87 (1997).

[3] Investment arbitrations between a state party and a private party are not covered by this Arrangement.

[4] Please see Part One of<最高人民法院关于内地与香港特别行政区法院就仲裁程序相互助保全的安排>的理解与适用》(The Interpretation and Application of the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administration Region), (Sep. 26, 2019),

[5] The Arrangement on Mutual Entrustment in Service of Judicial Documents in Civil and Commercial Matters 1998; the Arrangement Concerning Mutual Enforcement of Arbitral Awards 1999; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters Pursuant to Choice of Court Agreements between Parties Concerned 2006; the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters 2016; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (signed in January 2019, but has not come into force yet. The Choice of Court Arrangement will be superseded upon its commencement). Another arrangement is the Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases 2017.

[6] See Interim Measure Arrangement, Article 1, “Interim measure” referred to in this Arrangement includes, in the case of the Mainland, property preservation, evidence preservation and conduct preservation.

[7] See Article 100 of the Civil Procedure Law of PRC.

[8] See Article 81 ofthe Civil Procedure Law of PRC.

[9] See Id. Article 81, Article 100.

[10] See Wang, Shizhou, Civil Procedure in China 159 (2014).

[11] Article 16 of the Arbitration Law of PRC requires that an arbitration agreement must contain a designated arbitration commission; otherwise the agreement will be invalid. Regarding the consensus that ad hoc arbitration is not admitted in Mainland China, please see Shahla F. Ali & Tom Ginsburg, International Commercial Arbitration in Aisa 88-90 (2013).

[12]最高人民法院关于香港仲裁裁决在内地行的有关问题的通知法[2009415 (Notice of the Supreme People’s Court on Issues concerning the Execution of Hong Kong Arbitral Awards in the MainlandNo. 415 [2009]).

[13] See 全国首例!上海海事法院裁定准香港仲裁程序中的保全申, (the First Instance! Shanghai Marine Court Granted an Interim Measure Application in Aid of A Hong Kong Arbitral Proceeding), (Oct. 9, 2019),

[14] See Interim Measure Arrangement, Article 2 paragraph 1.

[15] See Interim Measure Arrangement, Article 2 paragraph 2.

[16] These arbitral institutions are: Hong Kong International Arbitration Centre, China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center, The Asia Office (Hong Kong) of the International Chamber of Commerce (ICC) International Court of Arbitration, Hong Kong Maritime Arbitration Group, South China International Arbitration Center (Hong Kong) and eBRAM International Online Dispute Resolution Centre.

[17] See Interim Measure Arrangement, Article 3 paragraph 1.

[18] See Supra note 4, (4) of Part Two.

[19] Id.

[20] See Interim Measure Arrangement, Article 4 paragraph 1, paragraph2.

[21] Wang, Shizhou, Supra note 10, at 23-24.

[22] Id. at 159-160.

[23] Id. at 160.

[24] Id.

[25] See Article 272 of the Civil Procedure Law of PRC.

[26] See Supra note 4, (2) of Part Five.

[27] “HKIAC Receives Five Applications under Hong Kong-Mainland Arrangement on Interim Measures”, (Oct.11, 2019),

[28] Id.

Professor Franco Ferrari publishes commentary on the Rome Regulation on the Law Applicable to Contractual Obligations (Rome I)  

Professor Ferrari, who joined NYU full-time in 2010, after serving as full professor of law at Tilburg University (the Netherlands), Bologna University (Italy) and Verona University (Italy), has just edited an article-by-article commentary on the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, of which he is also the co-author.

As Professor Ferrari writes in the Preface to the book, parties to any transaction require predictability and legal certainty, as it is the predictability and legal certainty that allow the parties to assess the legal and economic risks involved in the transaction and, thus, allows them to decide whether to enter into the transaction at all. This need is felt even more strongly where the transaction is not a purely domestic one but is linked to more than one country. To reach the desired predictability and legal certainty in an international context, various approaches have been resorted to. The drafting of uniform rules of private international law is one such approach. It aims at guaranteeing that courts in the States where such uniform rules are in force will apply the same substantive rules no matter what court a dispute is brought before, thus reducing transactions costs by requiring a party to make provision for one law only. The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) sets forth such a set of uniform private international law rules for (most of) the member states of the EU. The book provides students and practitioners with a concise and instructive article-by-article commentary which explains the underlying concepts and suggests solutions for problems that have arisen or may arise in the application of the Regulation.

Professor Franco Ferrari on International Sales

Professor Franco Ferrari, Director of the Center for Transnational Litigation and Commercial Law, has just published the second edition of his book entitled “Contracts for the International Sales of Goods”. This book provides an examination of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Extensively referenced, the volume focuses on three issues, which, due to particular attention from courts and arbitral tribunals, are considered “typical” of CISG related disputes. These include the exact determination of the CISG’s sphere of application; both the non-conformity of delivered goods and the notice of non-conformity; and the determination of the rate of interest on sums in arrears. The  analysis helps readers understand the broader context in which these issues are embedded, and ultimately illustrates how the CISG is interpreted and applied in different jurisdictions.

Atlas of Comparative Private Law

Professor Franco Ferrari co-edited (with Professor Fracnesco Galgano et al.) and co-authored the fifth edition of a book in Italian entitled “Atlas of Comparative Private Law”. The book collects articles on twenty topics in the area of private law, ranging from transfer of property to tort law, from contract formation to bankruptcy.

The Relationship between International Uniform Law Conventions

Professor Franco Ferrari published a paper (in Portuguese) entitled “The Relationship between international uniform law conventions and the need for an interconventional interpreation”, in Estudio de direito comparado e de direito internacional privado (I. de Aguilar Vieira ed., Curitiba, 2011).

Getting to the law applicable to the merits in international arbitration

Professors Linda Silberman and Franco Ferrari publish a paper entitled “Getting to the law applicable to the merits in international arbitration and the consequences for getting it wrong”, in Conflict of Laws in International Arbitration (F. Ferrari and S. Kröll eds., 2010)

Consumer Protection in International Private Relationships

Professor Ferrari publishes a paper (with Dr. Francesca Ragno) entitled “Consumer Protection in International Private Relationships. European Union”, in Consumer Protection in International Private Relationships/La protection des consommateurs dans les relations privées internationales (D.P. Fernandez Arroyo ed., 2010)

Unification of the Law of Receivables Financing

Professor Ferrari publishes a paper on the unification of the law of receivables financing, entitled “Die Vereinheitlichung des Abtretungsrechts als Spiegel der Vereinheitlichung des internationalen Handelsrechts im Allgemeinen”, in Europäisches Kreditsicherungsvertragsrecht. Ulrich Drobnig zum 80. Geburtstag (J. Basedow et als. eds., 2010).

Professors Gillette and Ferrari publish a paper entitled “Warranties and ‘Lemons'” under the Article 35(2)(a) CISG” in German law review (Internationales Handelsrecht 2010, 2). For the full text of the paper click here.

Professor Silberman publishes a paper entitled “The New York Convention After Fity Years: Some Reflections on the Role of National Law” in the Georgia Journal of International and Comparative Law (38 Ga. J. Int’l & Comp. L. 25 (2009)).

The Sources of the Law of Contracts

Professor Ferrari publishes a book entitled “The Sources of the Law of Contracts for the International Sale of Goods” (2009) in Spanish. For more information click here.

Professors Silberman and Choi publish a paper entitled “Transnational Litigation and Global Securities Class-Action Law-Suits” in the Wisconsin Law Review (2009 Wis. L. Rev. 465 (2009)). For the abstract click here.