Marrying The Law Of The Seat And The Law Of The Arbitration Agreement In Determining The Arbitrability Of Disputes In Singapore

• Author: Mr Peter Doraisamy and Cathryn Neo
• Law Firm: PD Legal
• Published date: 03 April 2023

Case Note:Anupam Mittal v Westbridge Ventures II Investment Holdings[2023] SGCA 1

IN BRIEF

Parties entering into arbitration agreements must be mindful that arbitrability of a dispute will be dependent on the law of the arbitration agreement and the law of the seat. The Court would apply a "composite approach".

This involves the following steps:

1. Examining the law of the arbitration agreement. The Court of Appeal applied the three-stage test in BCY v BCZ;
2. Whether the disputes fall within the scope of the arbitration agreement; and
3. Where the seat is Singapore, Singapore courts would examine whether it is contrary to public policy. This involves assessing public policy beyond the law of the seat into the public policies of the foreign jurisdiction.

Arbitration agreements are typically negotiated at the last moment before the conclusion of negotiations. It is also common knowledge that arbitral institutions now provide model boilerplate dispute resolution clauses for insertion into transactional contracts. These model boilerplate clauses are useful as a starting point. However, in a situation where a dispute may potentially be non-arbitrable in certain jurisdictions, careful drafting would be necessary to prevent additional hurdles which may prove timely and expensive.

The recent Court of Appeal decision ofAnupam Mittal v Westbridge Ventures II Investment Holdings[2023] SGCA 1 ("Anupam Mittal") highlights a key issue that typical boilerplate clauses would not account for - the law of the arbitration agreement, the law of the seat and its relationship with the arbitrability of a dispute.

BACKGROUND

The case concerns two parties, the founder of Shaadi.com (the "Appellant") a popular matchmaking service and another private equity firm (the "Respondent"). The Respondent invested in the Appellant's company and entered into various agreements including a Shareholders' Agreement (the "SHA") and a Supplementary Subscription-Cum-Shareholders' Agreement (the "SSSA"). Years later, the relationship between the parties deteriorated and was exacerbated by the Respondent's threat of exit. The failings of the relationship culminated in the Appellant filing a petition for oppression (and mismanagement) before the National Company Law Tribunal ("NCLT") in Mumbai, India.

The Respondent applied for a permanent anti-suit injunction in the Singapore High Court restraining the Appellant from pursing its claim in the NCLT. The basis of the Respondent's application was that the...