An arbitration award can be registered and enforced under section 38 of the Arbitration Act 2005 even if it is declaratory, as long as procedural requirements are met.

[1] This appeal arose out of the decision of the learned High Court Judge who, on 3 September 2014 dismissed the appellant's application (encl 6) to set aside the ex parte Order dated 4 March 2014 (the said ex parte Order) for the recognition and enforcement of a Final Award made in favour of the respondent in arbitration proceedings. The order for recognition and enforcement was made in accordance with s 38 of the Arbitration Act 2005 ( AA ) and under O 69 r 8(2)(b) of the Rules of 2012 (ROC).

[2] We had, after hearing submissions by counsel for both the appellant and the respondent, by a majority (Justice Nallini Pathmanathan dissenting) dismissed the appellant's appeal. Our reasons appear below.

[3] The appellant and the respondent will be referred to as they were referred to in the High Court.

[4] This appeal involves essentially a question of law, viz.

(a) Section 38 of the AA ;

(b) Section 39 of the AA ; and

(c) Order 69 r 8(2) of the Rules of 2012 (ROC).

To fully appreciate the issue at hand, it is perhaps necessary to set out a brief background of the facts leading to the present appeal. For this purpose, we adopt with some modification the brief background facts as set out by the learned judge in her judgment.

Brief Background Facts

[5] On 23 December 2008, a Shareholders' Agreement (SA) was entered into between the plaintiff and the defendant together with several other parties. The SA contained an arbitration clause (cl 16.1).

[6] A dispute arose between the parties and pursuant to cl 16.1, the dispute was referred to arbitration. The said arbitration clause, the scope of which is not disputed, is reproduced below for completeness.

"If any controversy, claim or dispute arises out of or in relation to this Agreement (including any question regarding its existence, validity or termination) or with respect to any breach thereof, the Parties shall seek to resolve the matter amicably through discussions between the Parties or by way of mediation. Only if the Parties fail to or compromise within sixty (60) days from the date of written notice of the dispute, the aggrieved Party shall seek arbitration as set forth in this cl 16."

[7] The arbitration proceedings commenced before a single arbitrator, Mr Samuel Wong Chat Chor. After a full hearing, the learned arbitrator issued the Final Award in favour of the plaintiff in the following terms.

"(1) The claimant's claim for a declaration that the respondent is not entitled to remain on the Board of the claimant is dismissed;

(2) The respondent was/is not in 'Material Breach' of any term of the Shareholders' Agreement; and

(3) The relief of "Compulsory Transfer Notice" under cl 10 of the Shareholders' Agreement is denied.

(4) As to costs, the usual order of costs to follow the event is adopted and the claimant shall bear the respondent's costs of this arbitration and costs of the award, to be taxed if not agreed. And I reserve taxation to myself if that becomes necessary."

[Emphasis Added]

[8] As we shall see later in the judgment, it was the aforesaid terms of the Final Award (above) that forms the basis of the defendant's application to set aside the said ex parte Order adverted to earlier. Following the issuance of the Final Award, the plaintiff applied by way of Originating Summons for the said Award to be recognised as binding and be enforced by entry as a judgment in accordance with s 38(2) of the AA .

[9] As stated earlier, the learned judge on 4 March 2014 granted the said ex parte Order.

[10] On 7 April 2014, the defendant applied to set aside the said ex parte Order vide encl 6. The learned judge dismissed encl 6 on 3 September 2014 thus giving rise to the pres