A bilateral treaty is an agreement between two states which set outs and governs the obligations they are to perform, and the rights accorded to them. A multilateral treaty is a similar agreement to the aforesaid, but is made among three or more states. Trade agreements are made between two or more states to strengthen economic relations by facilitating the flow of trade and investment.
Singapore has ratified a variety of bilateral and multilateral treaties and trade agreements; for example, bilateral investment treaties (“BITs”) and free trade agreements (“FTAs”) with investment chapters (“FTA Investment Chapters”).
According to Singapore’s Ministry of Trade and Industry, BITs “promote greater investment flows between two signatory countries and set out standards of protection for investments made in one country by inves- tors from the other country”. Similarly, FTA Investment Chapters seek to promote investment by, for example, lowering the barriers to entry for Singapore investors to invest in Singapore’s FTA partners and allowing Singapore investors to enjoy prefer- ential investment commitments from Singapore’s FTA partners.
To date, there are 43 BITs and 21 FTA Investment Chapters in force. See, for example, the Singapore-Myanmar BIT (2020) which was entered into on account of the warm economic rela- tions shared between the states. Its purpose is to “create a more facilitative environment for investors from both [the] countries, and increase the level of protection for bilateral investments”. See also, for example, the Singapore-Indonesia BIT (2021), one of the most recent BITs entered into force. It will “offer greater protection for Singapore investors venturing into the Indonesian market, and vice versa, [be for the purpose of] safeguarding investments and boosting investors’ confidence”.
Please see the following references:
To date, Singapore has signed BITs which have not yet come into force with the following countries:
In addition, to date, Singapore has signed the following Treaties with Investment Provisions which have not yet come into force:
There have been no official reasons published by the Government as to why the aforementioned treaties have not yet come into force.
Please see the following reference: https://investmentpolicy.unctad.org/international-investment-agreements/countries/190/singapore.
Singapore does not base its BITs on a model BIT. Notwith- standing, most of Singapore’s BITs adopt a generally similar format and language. To this end, there are certain clauses which commonly feature in most of Singapore’s BITs; for example, clauses pertaining to fair and equitable treatment (“FET”), expropriation, subrogation and compensation for loss after war or other armed conflict.
If there are diplomatic notes, they usually accompany the text of the treaties – see, for example, the Germany-Singapore BIT (1975) and the Canada/Singapore Bilateral Agreement, Foreign Investment Insurance (1971).
Please see the following reference: https://www.mti.gov.sg/ Improving-Trade/International-Investment-Agreements.
No, the Government does not publish official commentaries concerning the intended meaning of treaty or trade agreement clauses. However, information relating to the purpose and benefits of having treaties and trade agreements in place is accessible for viewing on the websites of selected Government agencies – see, for example, Singapore’s Ministry of Trade, and Industry and Enterprise Singapore.
Singapore is a party to the New York Convention and the Washington Convention, but is not a party to the Mauritius Convention.
Singapore does not have separate laws specifically enacted to govern foreign investment. It has been noted that although Singapore is recognised to be the most successful Association of Southeast Asian Nations (“ASEAN”) country in attracting foreign investment, its approach is consistent with the fact that most developed countries do not have investment laws. Instead, Singapore governs foreign investment through its general laws and sector-specific rules and regulations (see Jonathan Bonnitcha, “Investment Laws of ASEAN Countries: A comparative review” (International Institute for Sustainable Development, 2017)).
Please see the following reference: https://www.iisd.org/publications/investment-laws-asean-countries-comparative-review.
Whether the formal admission of a foreign investment is required in Singapore depends on various factors, which include:
Please see the following reference: https://www.mti.gov.sg/ Improving-Trade/International-Investment-Agreements.
There have been two significant decisions pronounced by the Singapore Court of Appeal in recent years relating to treaty interpretation, namely Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536 (“Sanum”) and Swissbourgh Diamond Mines (Pty) Ltd and others v Kingdom of Lesotho [2019] 1 SLR 263 (“Swissbourgh”). In the aforesaid decisions, the Singapore Court of Appeal recognised that the applicable rules of treaty interpretation were those encapsulated within Articles 31 and 32 of the Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331 (entered into force 27 January 1980) (“VCLT”).
Essentially, the Singapore Court of Appeal in Swissbourgh held that the court is obliged to interpret a treaty in accordance with the ordinary meaning of the terms of the treaty, having regard to the context of the treaty and in the light of its object and purpose (Article 31(1) VCLT). When considering the context of the treaty, the court may have regard to the text of the treaty (including its preamble and annexes) together with any instrument or agreement that was made in connection with the conclusion of the treaty (Article 31(2) VCLT). The court is also permitted to consider any subsequent agreement between the parties regarding the interpre- tation of the treaty, or any subsequent practice in the application of the treaty that establishes such an agreement, or any relevant rules of international law (Article 31(3) VCLT). Finally, Article 32 of VCLT allows the court to have regard to supplementary means of interpretation, including the travaux préparatoires of the relevant treaty, to either confirm the meaning of a treaty term obtained from the exercise under Article 31 of the VCLT, or to clarify the meaning of a term that might remain ambiguous or obscure or where its plain meaning would be manifestly absurd or unreasonable.
Beyond the aforesaid principles of treaty interpretation which have been recognised to reflect customary international law, the Singapore Court of Appeal in Swissbourgh (at [61]) also mentioned, especially in the international investment law context, that investment treaties “should be interpreted neither liberally nor restric- tively”. Further, the Singapore Court of Appeal in Swissbourgh also highlighted (at [63]) that since an investment treaty reflects the balance that has been struck between investor protection and the state’s interests (generally following a considered period of negotiations between two or more states), neither an unequiv- ocally pro-investor nor pro-state approach should be adopted in interpreting the provisions of an investment treaty.
In a written answer by Singapore’s Minister for Law, Mr. K. Shanmugam, to a parliamentary question on proposed reforms to Singapore’s investor-state arbitration regime, it was stated that the “Ministry of Law works closely together with [Singapore’s] partners in the legal industry to steer Singapore’s overall development and growth as a hub for international dispute resolution, including in the area of investment arbitration”.
To this end, Singapore has sought to address in its recent trade and investment treaties concerns such as the independence of arbitrators and the lack of a mechanism to dismiss unfounded claims early. Singapore has also been actively participating in international dialogues on the structural reform of the current investor-state dispute settlement framework.
In addition, the Singapore International Arbitration Centre (“SIAC”) has positioned itself as one of the prominent global institutions administering investor-state arbitration involving direct state parties and commercial parties. In 2017, SIAC evinced its clear intention to move into the space of investment arbitration by promulgating the first edition of its Investment Arbitration Rules.
Please see the following references:
In most Singapore investment agreements, it is common to find most favoured nation (“MFN”) and FET clauses.
MFN clauses are usually worded to cover establishment and post-establishment phases and to require that a contracting state accord investors of the other contracting state with treatment no less favourable than the treatment it accords, in like circum- stances, to investors of other states. Also, they generally include exceptions to their operation with respect to matters relating to customs, economic union, monetary union, or taxation – see, for example, Article 4 of the Singapore-Kuwait BIT (2013).
FET clauses are typically worded to require that investments be accorded “fair and equitable treatment” and shall “enjoy full protec- tion and security”.
Transparency clauses exist in a few of Singapore’s invest- ment agreements. See, for example, Article 16 of the Singapore- Jordan BIT (2005), which requires each contracting state to “ensure that its laws, regulations and administrative rulings of general application respecting any matter cover by the [Singapore-Jordan BIT] are promptly published or otherwise made available in such a manner as to enable interested persons or the other contracting state to become acquainted with them”; see also, for example, Article 27 of the Singapore- Myanmar BIT (2020).
Additionally, an example of a clause dealing with measures against corruption may be seen in the recently replaced investment agreement between Singapore and Indonesia (2021). Article 13 therein reaffirms parties’ recognition of the detrimental effect that corruption can have on investment activities and preserves parties’ rights to undertake measures to “prevent and combat bribery and other forms of corruption in any investment activities within its territory, provided that such measures are not inconsistent with [the investment agreement]”.
To date, Singapore has not given any notice to terminate any BITs or similar agreements.
Sanum and Swissbourgh are two significant decisions which have contributed to Singapore’s jurisprudence in respect of investor- state cases in recent years. In Sanum, disputes arose between a Macanese investor, Sanum Investments Limited (“SIL”), and the Lao Government which concerned claims that, amongst others, the Lao Government had deprived SIL of the benefits to be derived from its capital investment through the imposi- tion of unfair and discriminatory taxes. This culminated in SIL commencing arbitral proceedings against the Lao Government under the BIT between the People’s Republic of China (“PRC”) and the Lao People’s Democratic Republic (“Laos”) (the “PRCLaos BIT”). One of the issues that arose before the Singapore Court of Appeal was whether the PRC-Laos BIT applied to Macau notwithstanding the fact that the PRC-Laos BIT had been entered into before the PRC resumed sovereignty over Macau; this had an impact on whether the arbitral tribunal had jurisdiction to hear the dispute. The Singapore Court of Appeal reaffirmed the arbitral tribunal’s ruling that the arbitral tribunal had the jurisdiction to hear the dispute because the PRC-Laos BIT was applicable in the circumstances presented.
Particularly, the underlying dispute in Sanum has spawned multiple decisions by the Singapore courts. See, for example, a recent decision pronounced in September 2021 by the Singapore International Commercial Court (“SICC”) in Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] SGHC(I) 10, which was the SICC’s first hearing on investor-state disputes. The SICC was required to decide on, amongst other issues, whether an arbitral award made under the PRC-Laos BIT could be set aside on grounds that, amongst others: (a) the arbitral tribunal exceeded its juris- diction and dealt with matters beyond the express scope of the parties’ submission to arbitration; and (b) the arbitral procedure in the arbitration conducted was not in accordance with the parties’ express agreement.
To date, there has been no reported investor-state award made against Singapore.
To date, in relation to International Convention on the Settlement of Investment Disputes between States and Nationals of other States (“ICSID”) cases, Singapore has not sought annulment proceedings.
To date, there has been no satellite litigation arising in relation to an investor-state arbitration wherein Singapore was a respondent state.
It can be seen that notwithstanding the complexity of issues arising in investor-state cases, the Singapore courts have demon- strated their willingness and technical expertise to take on the same. Singapore’s competence in this respect is further enhanced by the establishment of the SICC. As alluded to in question 4.1 above, the SICC most recently heard its first investor-state dispute.
Yes. In 2017, the Civil Law (Amendment) Act and the Civil Law (Third-Party Funding) Regulations 2017 were passed to facili- tate third-party funding for international arbitrations and court and mediation proceedings related to them. In its amended form, the Civil Law Act (“CLA”) abolished maintenance and champerty as torts, while preserving these doctrines as grounds for vitiation of a contract as being contrary to public policy or otherwise illegal.
In tandem with the aforesaid, bodies such as the Singapore Institute of Arbitrators, the Law Society of Singapore, and SIAC have also issued their respective guidelines related to the use and practice of third-party funding for reference amongst arbitrators, legal practitioners, third-party funders and other interested parties.
In the specific context of funding of investor-state claims, this issue has yet to be brought before the Singapore courts for consideration to date.
There are no official figures published by the Government in respect of the number of litigation or arbitration cases that have received third-party funding,
However, there are reported decisions in Singapore pertaining to third-party funding in an insolvency context – see, for example: Re Vanguard Energy Pte Ltd [2015] 4 SLR 597 (“Re Vanguard”); Solvadis Commodity Chemicals Gmbh v Affert Resources Pte Ltd [2018] 5 SLR 1337 (“Solvadis”); and Re Fan Kow Hin [2019] 3 SLR 861 (“Re Fan”).
In Re Vanguard and Solvadis, both cases concerned litigation-funding agreements which the Singapore courts approved of; specifically, arrangements whereby a liquidator assigned the causes of action (see Solvadis) or the fruits of a cause of action (see Re Vanguard) of a company undergoing liquidation to a third- party litigation funder. Notably, the Singapore courts recognised that the liquidator’s statutory power of sale was a statutory exception to the doctrine of maintenance and champerty. Indeed, such funding arrangements allowed insolvent companies to pursue meritorious claims and did not prejudice creditors.
Of further significance was the holding in Re Fan that the 2017 amendments to the CLA, in permitting third-party funding for international arbitrations and related proceedings, were not to be understood as limiting the development of the law on champerty and maintenance. On the contrary, the Singapore courts were not precluded from developing the law as needed, and Parliament had left the issue of the extent to which the rule against champerty and maintenance continued to operate to the Singapore courts.
In addition, in a press release by the Ministry of Law in June 2021, it was recognised that businesses have an increasing appe- tite for additional options of financing litigation. In view of the positive responses received from funders and the business, legal and arbitration communities after the introduction of the framework for third-party financing in 2017, commencing from 28 June 2021, Singapore’s third-party framework was extended to cover domestic arbitration proceedings, certain proceedings in the SICC, and related mediation proceedings. This further strengthens Singapore’s position as an international commercial dispute resolution hub.
Please see the following reference: https://www.mlaw.gov.sg/news/press-releases/2021-06-21-third-party-funding-frame-work-permitted-for-more-categories-of-legal-preceedings-in-singapore#fn1.
To date, there have been no reported decisions made by the Singapore courts pertaining to this issue.
The policy of minimal curial intervention in arbitration proceedings is the mainstay of the Model Law and the International Arbitration Act (“IAA”) (see AKN and another v ALC and others and other appeals [2015] 3 SLR 488 at [37] and BBA and others v BAZ and another appeal at [41]). As such, the Singapore courts do not usually intervene to deal with procedural issues arising out of an arbitration. It is only in limited circumstances as specified in the IAA that the Singapore courts may do so. See, for example, section 12A of the IAA, which provides for court-ordered interim measures in aid of arbitration upon an application by a party; such court orders include the preservation of evidence or assets and securing the amount in dispute in cases of urgency, or when the arbitral tribunal has no power or is unable for the time being to act effectively.
In Singapore, the IAA gave effect to the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Arbitration (the “Model Law”) (save for Chapter VIII thereof and albeit with certain modifications) and governs the enforcement of proceedings for international arbitration. Section 6 of the IAA mandates a stay of court proceedings in favour of arbitration for any matter which is the subject of an international arbitration agreement.
Pursuant to section 25 of the IAA, an arbitrator shall not be liable for: (a) negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and (b) any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making of an arbitral award. Pursuant to section 25A of the IAA, a similar form of immunity is also extended to the appointing authority, or an arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator.
Under Articles 10(1) and 11(2) of the Model Law, parties are free to determine the number of arbitrators and the procedure of appointing the arbitrator or arbitrators.
Yes, there is a default procedure provided for under Article 11(4) of the Model Law read with section 8 of the IAA. This procedure allows any party to request the General Division of the High Court in Singapore, the President of the Court of Arbitration of SIAC or any other person appointed by the Chief Justice to exercise the powers of the President of the Court of Arbitration of SIAC to take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment.
Yes. Singapore has adopted the challenge procedure pursuant to Article 13 of the Model Law. Parties are free to agree on a procedure for challenging an arbitrator. Failing such agree- ment, a party who intends to challenge an arbitrator can refer his challenge to the arbitral tribunal for a decision. If there is an unsuccessful challenge under any procedure agreed upon by the parties or upon a decision of the arbitral tribunal, the chal- lenging party may request that the General Division of the High Court decide on the challenge.
Singapore’s Arbitration (International Investment Disputes) Act (“AIIDA”) gives effect to the ICSID. Pursuant to section 2(1) of the AIIDA, an “award” is defined as any decision interpreting, reversing or annulling an award, being a decision pursuant to the ICSID, and any decisions as to costs which under the ICSID is to form part of the award. Pursuant to section 4(1) of the AIIDA, any person seeking recognition or enforcement of an award rendered pursuant to the ICSID shall be entitled to have the award registered in the General Division of the High Court, subject to proof of any matters that may be prescribed and to the other provisions of the AIIDA.
Non-ICSID international arbitration awards are governed by the IAA. Pursuant to section 2(1) of the IAA, an “award” is defined as the decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award, but excludes any orders or directions made by the arbitral tribunal with the powers granted to them under section 12 of the IAA. Other formal requirements of an award, such as it having to be made in writing, are provided for in Article 31 of the Model Law. Pursuant to section 19 of the IAA, an award on an arbitration agreement may, by leave of the General Division of the High Court, be enforced in the same manner as a judgment or an order to the same effect and, where leave is so given, judgment may be entered in terms of the award.
For ICSID awards, the AIIDA does not prescribe any provisions that modify or replace section 6 of the ICSID, which provides the procedure for recognition and enforcement of an award.
Non-ICSID awards are governed by the IAA. Specifically, arbitral awards made in a Singapore-seated arbitration may be set aside on grounds specified under Article 34(2) of the Model Law, namely if:
Further, pursuant to section 24 of the IAA, the General Division of the High Court may, in addition to the grounds set out in Article 34(2) of the Model Law, set aside the award of the arbitral tribunal if: (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.
As for arbitral awards made in arbitrations seated in foreign countries that are contracting states to the New York Convention (i.e., a foreign award), the grounds for refusal of enforcement under the IAA are similar to those in such Convention.
In this regard, pursuant to section 31(2) of the IAA, a court so requested may refuse enforcement of a foreign award if the person against whom enforcement is sought proves to the satis- faction of the court that:
Further, pursuant to section 31(4) of the IAA, the court may refuse to enforce the foreign award if it finds that:
To date, there have been no reported decisions by the Singapore courts pertaining to this issue.
To date, the Singapore courts have yet to consider this issue, since it has not arisen in any disputes brought before them.
Published and reproduced with kind permission by Global Legal Group Ltd, London.
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