Background
At the heart of this dispute lie the questions of whether a conditional award can be a final award, and whether, if an arbitral tribunal has not made an express reservation of jurisdiction, it may yet be found that it has done so by implication.
Whether a conditional award may constitute a final award
“award” means a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any order or direction made under section 28.
[13.029] A final award refers to an award which the tribunal issues at the conclusion of the arbitral proceedings and which deals with all the remaining issues in dispute. [13.030] If it is the tribunal’s only award, it will deal comprehensively with all the substantive issues in dispute and costs. If partial awards had been rendered earlier in the course of proceedings, the final award will address all remaining issues, including costs. [13.031] After issuing the final award, the tribunal’s mandate comes to an end and arbitral proceedings are terminated.The Court referred to its own decision in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364, where it held: [6]
51 The term “final” award can be understood in a number of ways. First, it can refer to an award which resolves a claim or matter in an arbitration with preclusive effect (ie, the same claim or matter cannot be re-litigated)… 52 Second, it can refer to awards that have achieved a sufficient degree of finality in the arbitral seat … this would most obviously be so in cases where the award … is no longer susceptible to being appealed against or being subject to annulment proceedings in the arbitral seat … 53 Third, it can refer to the last award made in an arbitration which disposes of all remaining claims. This is a “final” award in the sense used in Art 32(1) of the Model Law.And then advised the key inquiry to determine whether the award is final as follows: [7]
We see no reason for thinking that a conditional award may not constitute a final award in the third sense as laid down in PT Perusahaan. The key inquiry is whether the conditions in such an award make it necessary for the tribunal to reopen or reconsider the matter. A conditional award may constitute a final award if it disposes of all outstanding claims and if an enforcement court will be able to assess whether the conditions in the award have been satisfied.On that last point, the Court noted that an arbitrator’s award could still be final and definite despite some potential uncertainty as to an appellant’s liability because the assessment of the extent to which any liability had accrued would fall within the remit of the enforcement court. It observed that in the case it was considering, even if difficulties arose around what sums were paid as consideration for settlement of the conditional award amount (which it indicated in this case would be the result of the way a subsequent settlement agreement between the parties had been drafted), that would not justify a finding that [the] Arbitrator’s jurisdiction could be resuscitated after a final award had been delivered and he had been rendered functus officio. This finding then raised the question of whether the Arbitrator had reserved his jurisdiction.
Reservation of jurisdiction “by implication”
The Arbitrator had accepted in the 2021 Ruling that he had not expressly reserved his jurisdiction. The question Voltas was asking the Court to answer was whether there could have been an implied reservation of jurisdiction by the Arbitrator. The Court was quick to respond “no”, on the basis it is not possible for a tribunal to impliedly reserve its jurisdiction in the first place.
In its analysis of this issue, the Court started by noting that a tribunal no longer has any jurisdiction once it renders an award determining the issues, so it cannot reconsider the merits of the parties’ dispute.
Conclusion
Where an award is conditional, enforcement of the condition or a decision on whether the condition has been performed is a matter for the enforcing court, unless the arbitrator has explicitly reserved jurisdiction on the issue. Once an arbitral award is issued, the arbitrator’s jurisdiction is at an end and cannot be resuscitated. As with many things in life and death, Monty Python can be relied upon to succinctly sum things up. When it comes to a final award and an arbitrator’s jurisdiction: this parrot is no more!
References
[1] Voltas Limited v York International Pte Ltd [2024] SGCA 12 at [1].
[2] Functus Officio: The doctrine of functus officio (that is, having performed the office) holds that once an arbitrator renders a decision regarding the issues submitted, he or she lacks any power to re-examine that decision. This principle is well established in international arbitration, and is accepted in many national laws <https://uk.practicallaw.thomsonreuters.com/3-581-9126> accessed 17 July 2024.
[3] Singapore Arbitration Act 2001 (2020 Rev Ed).
[4] Section 28 sets out the general powers that are exercisable by the arbitral tribunal for the purposes of and in relation to the arbitral proceedings, such as orders for security for costs, evidence by affidavit and preservation of property.
[5] Citing Sundaresh Menon CJ ed-in-chief Arbitration in Singapore: A Practical Guide (2nd ed, Sweet & Maxwell, Singapore, 2018).
[6] Voltas Limited, above n 1, at [36].
[7] Voltas Limited, above n 1, at [42].
[8] The “slip rule” in New Zealand for correction of accidental slips or omissions in court proceedings is set out at HCR 11.10 of the High Court Rules 2016. Article 33 of Schedule 1 of the New Zealand Arbitration Act 1996 provides the exceptions for errors in arbitral awards and for a party to request an additional award as to claims presented but omitted from the award. The equivalent provision under the Act (Singapore) is section 43: Correction or interpretation of award and additional award.
