In Swift-Fortune Ltd v Magnifica Marine SA (2007), the Singapore Court of Appeal ruled that a Singapore court has no statutory power under the IAA to grant interim orders or relief to assist arbitrations conducted abroad, unless it involved a dispute that was justiciable in Singapore. To address this lacuna, the Ministry of Law has proposed including a new section 12A that will give the Singapore courts power to grant interim orders in arbitrations held outside Singapore. This includes provision for the discovery of documents during the course of the proceedings as well as orders to freeze the assets of parties. The court will be empowered to make such order whether or not it relates to a matter that is justiciable before a Singapore court.

To address concerns about judicial activism, the amendments propose a new section 12A(2) which makes it clear that the arbitral tribunal plays the central role in arbitrations and that the court will only grant interim orders in limited situations where the tribunal is unable to act effectively. This codifies the approach earlier set out by the Court of Appeal in NCC International AB v Alliance Concrete Singapore Pte Ltd (2008) where—albeit in a case dealing with an arbitration conducted in Singapore—the court made it clear that its powers to make interim orders should only be used in support of arbitration. For parties and potential parties, what this means is that the court will be mindful that its processes are not used to bypass the arbitral tribunal or abused to gain a procedural advantage.

Finally, a new section 12A(3) has been proposed which clarifies that the court has discretion to refuse to exercise its power under the new section 12A if it considers it inappropriate to do so by virtue of the fact that the place of arbitration is outside Singapore or likely to be outside Singapore when it is designated or determined. This is an added safeguard to give the court sufficient flexibility to deal with complicated international disputes.

The move to make the changes proposed by section 12A is in line with legislation in other countries, including the UK and New Zealand.

Currently, section 2(1) of the IAA defines an "arbitration agreement" as an agreement in writing. Although Singapore's Electronic Transactions Act does provide that in the context of the formation of contracts, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of electronic records, an amendment to section 2(1) of the IAA has been proposed to make it clear that this is also specifically applicable to arbitration agreements. Accordingly, the proposed amendment to section 2(1) seeks to modernise the current definition to make it clear that Singapore recognises that an arbitration agreement can be contained in "electronic communications" such as e-mails and electronic data messages.

A new section 19C has been proposed under which the Minister for Law will be empowered to designate entities to authenticate, on a non-mandatory basis, "made in Singapore" arbitration awards. At present, there is no public body in Singapore that can authenticate such awards.

This amendment facilitates the enforcement of such awards in countries which are party to the New York Convention. The amendment has come about as a result of feedback to the Ministry of Law that some parties have faced difficulties in enforcing their Singapore arbitration award overseas because some foreign courts require that the awards be duly authenticated before allowing the awards to be enforced.

A draft bill has been put together for public feedback and consultation. The consultation paper and draft bill can be viewed at www.minlaw.gov.sg and http://app.reach.gov.sg/olcp/asp/ocp/ocp01a.asp. The consultation period ends on 17 August 2009.