The Composite Approach To Issues Of Non-Arbitrability At The Pre-Award And Post-Award Stage: Anupam Mittal V. Westbridge Ventures Ii Investment Holdings [2023] Sgca

Abstract

Subject matter arbitrability is undeniably linked to public policy of a state. Such an issue at the post award stage would normally be determined in accordance with the law of the seat or the law of the place of enforcement. Where a similar issue arises at the pre-award stage, the applicable law to determine such a question is fraught with some uncertainty. The Singapore Court of Appeal in Anupam Mittal v. Westbridge Ventures II Investment Holdings [2023] SGCA 1 took the position that such would be governed by the law of arbitration agreement as agreed by the parties. This article argues that such an approach is unsatisfactory as it effectively directs the courts to apply foreign public policy to a matter before it on the basis of a party’s agreement. The author argues that questions of public policy apply to override party autonomy, and ought not to operate the other way round.