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Kanishka Bhukya, From inconsistency to coherence: examining the SGCA’s quest for a comprehensive approach to determining pre-award arbitrability, Arbitration International, Volume 41, Issue 1, March 2025, Pages 203–211, https://doi.org/10.1093/arbint/aiaf001
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Abstract
This article critically examines the Singapore Court of Appeal’s (SGCA) innovative ‘composite’ approach to determining pre-award arbitrability, as established in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023]. The SGCA’s two-tiered approach considers both the law governing the arbitration agreement and the law of the seat. While this method attempts to balance party autonomy with public policy considerations, the article identifies several challenges, including conceptual tensions with public policy principles, potential paradoxes in application, and conflicts with established arbitration frameworks. The author proposes a comprehensive reform centred on a ‘Materially Close Connection’ test, to be applied consistently at both pre-award and post-award stages. This proposal includes revising the UNCITRAL Model Law to incorporate this test, aiming to create a more unified and coherent framework for arbitrability determinations in international arbitration. The article argues that this approach would promote consistency, accommodate diverse international disputes, and balance party autonomy with legitimate public policy interests.