When a party submits that a dispute is not arbitrable, an important threshold question arises: should the issue of arbitrability be considered under the law governing the arbitration agreement or the law of the seat of the arbitration? The distinction is vital as there is no global consensus on the exact scope of what constitutes non-arbitrable disputes.
The Singapore Court of Appeal has answered this question in the landmark decision of Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1, issued earlier this year. The Court adopted a “composite approach”, which effectively requires the matter to be arbitrable under both the law of the arbitration agreement and the law of the seat. The court would first look to the law of the arbitration agreement to determine if the dispute is arbitrable. If the law of the arbitration agreement is foreign law, and the dispute is arbitrable under the foreign law, the court would then look to the law of the seat – a dispute that is not arbitrable under Singapore law as the law of the seat would also not be allowed to proceed.
This Update provides a summary of the Court of Appeal’s decision and highlights the key holdings in the judgment.
For more information, click here to read the full Legal Update.
