Singapore Court of Appeal enforces provisional award despite jurisdictional objection

The Singapore Court of Appeal ("CA") confirmed in DFM v DFL [2024] SGCA 41 ("DFM v DFL") that a party may accept the jurisdiction of an arbitral tribunal to determine an interim relief application while maintaining its reservation to the jurisdiction of the same tribunal to determine the arbitration in a pending challenge.

The respondent sought an enforcement order permitting the claimant to enforce an interim award that had been set aside in the Singapore High Court. Contrary to the parties' arbitration agreement, the interim award was rendered in an arbitration commenced and conducted under the DIAC Rules. The respondent argued, and the Singapore High Court agreed, that the DIAC arbitration was not in accordance with the parties' agreement to arbitrate under the DIFC LCIA. Nevertheless, the court held that the interim award should be upheld because the defendant had accepted the court's jurisdiction and had forfeited its right to challenge it by participating in the application for the interim award. The respondent's attempt to have the enforcement order set aside was rejected by the High Court of Singapore. In particular, the High Court held that a party that has entered into a contractual arbitration agreement cannot be compelled to submit to arbitration under a set of rules to which it has not agreed. The Singapore Court of Appeal agreed with this reasoning in the decision presented here.

In addition, the Singapore Court of Appeal held that the claimant had waived its right to object. It noted that under Singapore law, a waiver of the right to challenge the jurisdiction of an arbitral tribunal may be found where a challenging party fails to raise a timely objection to the jurisdiction of the arbitral tribunal. Thus, if a party fails to raise an objection to the jurisdiction of an arbitral tribunal at the time it takes the first procedural step in challenging the merits of a matter in respect of which it challenges the jurisdiction of the arbitral tribunal, it loses the right to raise that objection before the arbitral tribunal or, subsequently, before a court. However, the claimant did not raise such objections. The tribunal concluded that, by challenging the merits of the request and failing to raise jurisdictional objections during these proceedings, the appellant had effectively submitted to the jurisdiction of the tribunal for the purposes of the interim relief request. The appellant was therefore considered to have forfeited its right to challenge the jurisdiction of the Tribunal in this particular case during the enforcement phase.

At the same time, the Court of Appeal noted that there is no general inconsistency in a party submitting to the jurisdiction of a tribunal with respect to a request for interim relief while maintaining its objection to that jurisdiction with respect to the remainder of the arbitration.