An arbitral award is intended to be final. The tribunal has heard the evidence, considered the arguments, and rendered its decision. But finality is not absolute. In limited circumstances, a party may apply to the courts to set aside an award, which is to annul it entirely.
Setting aside is not an appeal. Singapore courts do not re-hear the merits of the dispute or substitute their own judgment for that of the tribunal. The grounds for setting aside are narrow, procedural, and exhaustively defined by statute. This article explains what those grounds are, how the process works, and what to expect if you are considering a setting aside application or defending one.
1. What Is Setting Aside
Setting aside is a court process in which a party asks the supervisory court at the seat of arbitration to annul an arbitral award. If the application succeeds, the award is rendered void. It no longer exists as a binding determination.
Setting aside is available only at the seat. For arbitrations seated in Singapore, including SIAC arbitrations where Singapore is the seat, the Singapore courts have supervisory jurisdiction. An award made in a Singapore-seated arbitration can only be set aside by the Singapore courts.
Setting aside is distinct from:
- Appealing an award. There is no general right of appeal from an arbitral award in Singapore. The tribunal’s findings on the merits are final.
- Resisting enforcement. A party may resist enforcement of an award on certain grounds, but this does not annul the award, but only prevents enforcement in that jurisdiction.
- Correction or interpretation. The tribunal may correct clerical errors or provide interpretation of the award, but this does not involve the courts.
2. Setting Aside vs Refusing Enforcement
These are related but distinct remedies:
| Feature | Setting Aside | Refusing Enforcement |
| Where | At the seat of arbitration | In any jurisdiction where enforcement is sought |
| Effect | Award is annulled and no longer exists | Award remains valid but cannot be enforced in that jurisdiction |
| Who decides | Courts at the seat | Courts where enforcement is sought |
| Grounds | Grounds under International Arbitration Act (IAA) s.24 and Model Law Art. 34 | Grounds under IAA s.31 (for foreign awards) or Model Law Art. 36 (for domestic awards) |
A party who loses an arbitration has a choice: actively challenge the award at the seat (setting aside), or passively resist when the other side tries to enforce (resisting enforcement). The Singapore Court of Appeal addressed this in PT First Media TBK v Astro Nusantara International BV [2013] SGCA 57, holding that a party who fails to challenge an award at the seat may nonetheless resist enforcement, but the failure to pursue setting aside may be relevant to how the enforcement court exercises its discretion.
The strategic calculus depends on where the award creditor’s assets are located. If enforcement will be sought in Singapore, both remedies are available in the same jurisdiction. If enforcement will be sought elsewhere, setting aside in Singapore may (if successful) have persuasive effect in the enforcement jurisdiction, though it is not automatically binding.
3. The Legal Framework
For international arbitrations seated in Singapore, setting aside is governed by:
- The International Arbitration Act 1994 (IAA), specifically Section 24
- The UNCITRAL Model Law on International Commercial Arbitration, which has force of law in Singapore under Section 3 of the IAA, specifically Article 34
Section 24 of the IAA provides additional grounds for setting aside beyond those in the Model Law. The two sources must be read together.
Time limit
An application to set aside an arbitration award in Singapore must be made within three months from the date on which the applicant received the award. This is a strict deadline. Extensions are not granted, and failure to apply in time forecloses the opportunity to apply.
If the applicant has requested a correction or interpretation of the arbitration award under the arbitration rules, the three-month period runs from the date of the tribunal’s decision on that request.
4. Grounds for Setting Aside
The grounds for setting aside are exhaustively defined. If the complaint does not fit within one of the statutory grounds, the award cannot be set aside, regardless of how unfair the applicant considers the outcome.
Grounds under Article 34 of the Model Law
Article 34(2) of the Model Law sets out the grounds on which a court may set aside an award:
Grounds the applicant must prove (Article 34(2)(a)):
- Incapacity or invalid arbitration agreement. A party to the arbitration agreement was under some incapacity, or the agreement is not valid under the law to which the parties subjected it (or, failing any indication, under the law of Singapore).
- Lack of proper notice or inability to present case. The applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case.
- Award beyond scope of submission. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission. (If the excess is severable, only that portion may be set aside)
- Improper tribunal composition or procedure. The composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties (unless that agreement conflicted with mandatory provisions of the Model Law), or, failing such agreement, was not in accordance with the Model Law.
Grounds the court may raise on its own motion (Article 34(2)(b)):
- Non-arbitrability. The subject-matter of the dispute is not capable of settlement by arbitration under Singapore law.
- Public policy. The award is in conflict with the public policy of Singapore.
Additional grounds under Section 24 of the IAA
Section 24 of the IAA provides two additional grounds:
- Fraud or corruption. The making of the award was induced or affected by fraud or corruption.
- Breach of natural justice. A breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced.
The natural justice ground is the most commonly invoked basis for setting aside in Singapore. It encompasses:
- The right to be heard (audi alteram partem) — a party must have a fair opportunity to present its case
- The rule against bias (nemo judex in causa sua) — the tribunal must be impartial
| Ground | Source | What It Requires |
| Incapacity or invalid agreement | Model Law Art. 34(2)(a)(i) | Proof that a party lacked capacity or the arbitration agreement is invalid |
| Lack of due process | Model Law Art. 34(2)(a)(ii) | Proof of inadequate notice or inability to present case |
| Excess of jurisdiction | Model Law Art. 34(2)(a)(iii) | Award addresses matters not submitted to arbitration |
| Improper composition or procedure | Model Law Art. 34(2)(a)(iv) | Tribunal or procedure not in accordance with agreement or Model Law |
| Non-arbitrability | Model Law Art. 34(2)(b)(i) | Subject matter not arbitrable under Singapore law |
| Public policy | Model Law Art. 34(2)(b)(ii) | Award conflicts with Singapore public policy |
| Fraud or corruption | IAA s.24(a) | Award induced or affected by fraud or corruption |
| Breach of natural justice | IAA s.24(b) | Natural justice breach that prejudiced a party’s rights |
The Courts’ Approach
Singapore courts interpret these grounds narrowly. The policy is to support arbitration, not to provide a backdoor for re-litigating the merits. Key principles:
- No merits review. The court does not assess whether the tribunal got the law or the facts right. Errors of law or fact, however serious, are not grounds for setting aside.
- Minimal curial intervention. Section 5 of the IAA provides that no court shall intervene in matters governed by the IAA except where so provided. This reflects a policy of minimal judicial interference.
- Real prejudice required. For natural justice grounds, the applicant must show not only a breach but also that the breach caused real prejudice, and that the outcome might have been different.
5. Steps to Set Aside an Award
Step 1: Act immediately
The three-month time limit is strict. Upon receiving an unfavourable award, assess immediately whether there are grounds for setting aside. Do not wait.
Step 2: Identify the ground
Review the grounds under Article 34 of the Model Law and section 24 of the IAA. Your complaint must fit within one of these categories. Common questions to ask:
- Was there a procedural irregularity that affected fairness? (natural justice)
- Did the tribunal decide issues that were not submitted to it? (excess of jurisdiction)
- Was the tribunal properly constituted? (improper composition)
- Was there fraud or corruption? (IAA s.24(a))
If the complaint is simply that the tribunal got it wrong on the law or the facts, setting aside is not available.
Step 3: Assess the evidence
Setting aside applications are decided on affidavit evidence. Consider:
- What evidence supports the alleged ground?
- Can you demonstrate prejudice — that the outcome might have been different?
- Is the evidence available within the time limit?
Step 4: File the application
An application to set aside is made to the General Division of the High Court by originating application. The application must:
- Identify the award
- Set out the grounds relied upon
- Be supported by affidavit evidence
- Be filed within three months of receipt of the award
Step 5: The hearing
The court will hear the application on the basis of affidavits and oral submissions. The court does not re-hear the underlying dispute. The focus is on whether the statutory grounds are made out.
6. If You Are Defending Against a Setting Aside Application
If you have obtained an award in your favour and the losing party applies to set it aside, your objective is to uphold the award.
Common Defences
- The ground is not made out on the evidence. Challenge the factual basis for the alleged breach.
- No prejudice. Even if there was a procedural irregularity, the applicant cannot show that it affected the outcome.
- Waiver. The applicant participated in the arbitration without objection and cannot now complain about matters it could have raised earlier.
- The complaint is really about the merits. The applicant is disguising a merits challenge as a procedural complaint.
The Pro-Arbitration Policy of the Singapore Courts
Remind the court of the policy of minimal curial intervention. Singapore courts consistently uphold awards unless a genuine ground is established. Tactical challenges that seek to delay enforcement are not well received.
7. Key Singapore Cases
Several Singapore cases illustrate how the courts approach setting aside applications:
The Right to a Full Opportunity: China Machine New Energy Corp v Jaguar Energy Guatemala LLC [2020] SGCA 12
The Court of Appeal clarified the scope of a party’s right to a “full opportunity” to present its case under Article 18 of the Model Law:
- Not an Unlimited Right: The term “full opportunity” is impliedly limited by considerations of reasonableness and fairness.
- The Reasonable Tribunal Test: The court asks whether the tribunal’s conduct fell within the range of what a reasonable and fair-minded tribunal might have done.
- No Hindsight Review: A tribunal’s decisions are assessed based only on what was known to it at the material time; parties cannot complain about issues they failed to bring to the tribunal’s attention.
Witness-Gating and Procedural Fairness: CBS v CBP [2021] SGCA 4
This case defines the limits of a tribunal’s case management powers regarding witness evidence:
- Mandatory Hearings: Unless parties explicitly agree to a documents-only arbitration, a tribunal is generally required to hold a hearing for the presentation of witness evidence if requested.
- Improper “Gating”: The court found a breach of natural justice where an arbitrator excluded all of a party’s witnesses simply because they failed to provide written witness statements in advance.
- Natural Justice Over Efficiency: While tribunals have broad discretion to ensure an “expeditious” process, they cannot sacrifice the fundamental right to be heard for the sake of efficiency.
The Standard for Prejudice: L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd[2013] SGCA 35
This case remains the leading authority cited in recent cases for the requirement of prejudice:
No Setting Aside for Technicalities: Technical or inconsequential breaches that would not have altered the final outcome do not justify annulling an award.
The “Real Chance” Test: An applicant must show that the procedural breach denied them the benefit of arguments or evidence that had a “real as opposed to a fanciful chance” of making a difference to the tribunal’s deliberations.
8. What Happens If the Award Is Set Aside
If the court sets aside the award, the award is annulled. It no longer exists as a binding determination.
What happens next depends on the nature of the defect:
- If the arbitration agreement remains valid, the parties may (in principle) commence a new arbitration on the same dispute.
- If the award was set aside only in part (e.g., the excess portion of an award that went beyond the submission), the remainder of the award stands.
- If the setting aside was based on tribunal composition or procedural defects, a reconstituted tribunal may be able to hear the dispute afresh.
Costs
An unsuccessful setting aside application typically results in costs being awarded against the applicant. The costs of the application — including the respondent’s legal fees — may be substantial.
Effect on enforcement elsewhere
A Singapore court’s decision to set aside a Singapore-seated award is binding in Singapore. In other jurisdictions, the effect depends on local law. Under the New York Convention, an award that has been set aside at the seat may be refused enforcement in other Convention states — though some jurisdictions retain discretion to enforce even set-aside awards in exceptional circumstances.
9. When Setting Aside Is and Is Not Worth Pursuing
Setting aside is appropriate when:
- There was a genuine procedural defect that fits within the statutory grounds
- The defect caused real prejudice
- The evidence to support the application is available
- The applicant has realistic prospects of success
Setting aside is not appropriate when:
- The complaint is really about the merits (the tribunal got the law or facts wrong)
- There was no prejudice, thus the outcome would have been the same
- The applicant failed to object during the arbitration and has waived the right to complain
- The application is tactical, aimed at delaying enforcement
Setting aside applications in Singapore succeed relatively rarely. The courts’ pro-arbitration stance means that only applications based on genuine, well-evidenced grounds are likely to succeed. A weak application not only fails but also delays finality, increases costs, and may attract adverse costs consequences.
Before filing, obtain a realistic assessment of the prospects. If the complaint does not fit squarely within one of the statutory grounds, or if prejudice cannot be demonstrated, the application is unlikely to succeed.
Conclusion
Setting aside is a remedy of last resort. It exists to address genuine procedural defects, not to re-open the merits of an arbitration. Singapore courts interpret the grounds narrowly, in line with the policy of supporting arbitration and minimising judicial intervention.
For parties with a genuine ground for setting aside, the remedy is available, but the three-month time limit is strict, the evidentiary requirements are demanding, and the courts expect more than generalised complaints about unfairness.