OTC derivatives contracts reporting regime under the SFA
PT Asuramsi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597, court’s supervisory power should be exercised only in cases where “the upholding of an arbitral award would ‘shock the conscience’… or is ‘clearly injurious to the public good or...wholly offensive to the ordinary reasonable and fully informed member of the public’…or where it violates the forum’s most basic notion of morality and justice’…”
International comity
AJT
22 In the light of the Tribunal's finding that the Concluding Agreement was valid and enforceable, public policy was prima facie not engaged for the obvious reason that there was (according to the Tribunal) no illegality in either the terms or the performance of the agreement. Hence, the critical issue before the Judge was whether the court, in dealing with an application to set aside an arbitral award founded on a contract which had been held by an arbitral tribunal to be valid and enforceable, could reopen the arbitral tribunal's findings of fact and/or law and decide for itself whether the contract in question was illegal. In this regard, the Judge held, after examining a number of decisions from England, Australia and Singapore as well as a textbook commentary on the IAA, that the court could do so in an appropriate case. He said at [24] of the HC Judgment:
In an appropriate case, the court, in exercising its supervisory jurisdiction, may examine the facts of the case and decide the issue of illegality. While there is a need to uphold the public interest in ensuring the finality of arbitral awards, the court must also safeguard the countervailing public interest in ensuring that its processes are not abused by litigants. [emphasis added]
36 In this connection, we note that the authors of Singapore Arbitration Legislation ([23]supra) take the view that the threshold for invoking public policy to resist enforcement of a foreign arbitral award (pursuant to s 31(4)(b) of the IAA) is more stringent than that for invoking
International comity
AJT
22 In the light of the Tribunal's finding that the Concluding Agreement was valid and enforceable, public policy was prima facie not engaged for the obvious reason that there was (according to the Tribunal) no illegality in either the terms or the performance of the agreement. Hence, the critical issue before the Judge was whether the court, in dealing with an application to set aside an arbitral award founded on a contract which had been held by an arbitral tribunal to be valid and enforceable, could reopen the arbitral tribunal's findings of fact and/or law and decide for itself whether the contract in question was illegal. In this regard, the Judge held, after examining a number of decisions from England, Australia and Singapore as well as a textbook commentary on the IAA, that the court could do so in an appropriate case. He said at [24] of the HC Judgment:
In an appropriate case, the court, in exercising its supervisory jurisdiction, may examine the facts of the case and decide the issue of illegality. While there is a need to uphold the public interest in ensuring the finality of arbitral awards, the court must also safeguard the countervailing public interest in ensuring that its processes are not abused by litigants. [emphasis added]
36 In this connection, we note that the authors of Singapore Arbitration Legislation ([23]supra) take the view that the threshold for invoking public policy to resist enforcement of a foreign arbitral award (pursuant to s 31(4)(b) of the IAA) is more stringent than that for invoking