Multi-tiered dispute resolution clauses carry a familiar debate as to what happens when a claimant initiates arbitration without complying with escalatory steps. Are these matters of jurisdiction preventing the Tribunal from adjudicating the claims, or matters of admissibility (i.e. whether it is appropriate for the Tribunal to hear the case)? The implications on the level of review provided by a supervisory Court are at play. FIDIC based contracts also give rise to questions whether a multi-tier clause requires a decision from a Dispute Adjudication Board (DAB) before an arbitration can be started. The Singapore High Court in DSR v DSQ [2026] SGHC 67 has found that the standard FIDIC multi-tier provision does not go to jurisdiction.  Readers should note that this does not mean that all multi-tier clauses will go to admissibility.  As the Court at [87] noted:

“… I would couch this as a general proposition, because there may be cases where the general rule is displaced, and a precondition to arbitration is a matter of jurisdiction rather than admissibility.”

Principal Facts

A Design and Build Contract contained the standard FIDIC multi-tier dispute resolution mechanism, Clause 20 whereby disputes “shall be adjudicated” by a Dispute Adjudication Board (DAB). If the DAB failed to give a decision or either Party was dissatisfied with the DAB’s decision, arbitration could be commenced after a specified time period and upon serving appropriate notices. There were three sets of disputes:

• The “AEB Dispute”;
• Disputes 1-4; and
• Disputes 5-6.

An ad hoc DAB was constituted for the AEB Dispute. Before a decision was rendered on the AEB Dispute, the Contractor submitted Disputes 1-4 to the DAB. The DAB declined Disputes 1-4 on the basis that it was constituted only to decide the AEB Dispute. The Contractor followed the timelines in Clause 20 and referred Disputes 1-4 to Arbitration without constituting a further ad hoc DAB. Disputes 5-6 were referred to the Arbitration directly without being referred to a DAB.  During the arbitration, the Employer challenged the Tribunal’s jurisdiction on the basis that the pre-arbitral procedure had not been followed. The Tribunal decided, as a preliminary matter in Procedural Order No 5, that the multi-tier clauses had been followed and so the Tribunal had jurisdiction to determine all Disputes. The Employer did not contemporaneously challenge the Procedural Order before the Singapore Courts but maintained its objection in subsequent submissions. Following the Final Award, the Employer raised the same jurisdictional objections to set aside the Award.

The Singapore High Court

Preclusion under Art 16(3) of the UNCITRAL Model Law

Subject to the provisions of the Singapore International Arbitration Act, Singapore has adopted the UNCITRAL Model Law (Model Law). Article 16(3) of the Model Law relates to cases in which a Tribunal “rules as a preliminary question that it has jurisdiction” and provides that “any party may request, within thirty days after having received notice of that ruling, the court specified in Article 6 to decide the matter”.[1] The Contractor argued that the Employer was precluded from raising jurisdictional objections when seeking to set aside the Final Award because it had not raised the challenge within 30 days of the Tribunal’s “ruling” as contained in Procedural Order No 5.  The High Court rejected the Employer’s arguments that a final ruling on jurisdiction was only contained in the Final Award. Further, relying on the Court of Appeal’s decision in Rakna[2] the High Court held that process in Article 16(3) of the Model Law had preclusive effect.

Admissibility or Jurisdiction

The Contractor argued that the jurisdictional objections based on non-compliance with pre-arbitral procedure go towards admissibility of the Disputes which the Contractor referred to Arbitration, rather than towards the jurisdiction of the Tribunal. The Employer argued that the jurisdictional objections go towards the Tribunal’s jurisdiction and not admissibility. This debate on admissibility versus jurisdiction has been live in Singapore since the 2014 decision in Lufthansa.[3]  In Lufthansa, the Court of Appeal (Sundaresh Menon CJ, VK Rajah JA, and Quentin Loh J) held that non-fulfilment of conditions precedent to arbitration meant that the tribunal did not have jurisdiction.[4] In DRO v DRP [2025] SGHC 255, the High Court limited Lufthansa’s application since the Court of Appeal had proceeded on the uncontested premise that non-compliance with pre-arbitral procedure was a matter going to admissibility rather than jurisdiction.  In the present case, the High Court emphasised that this general proposition was not universally applicable and would depend on the facts of each particular case. In certain circumstances, ‘pre-conditions’, or ‘conditions precedent’ to arbitration can be a matter of jurisdiction. As an example, the Judge cited the Swissborough case in which the Kingdom of Lesotho’s consent to arbitrate was conditional upon Swissborough exhausting all local remedies.[5] Having regard to the nuanced facts in DSQ v DSR, the Singapore High Court found that the issues raised by the Employer on the standard FIDIC multi-tier clause went to matters of admissibility.

The DAB

The Singapore High Court also upheld the Tribunal’s jurisdictional ruling on the basis that:

• Although the Contract did not provide for a standing DAB, the Contractor was entitled to refer Disputes 1-4 to the DAB before the DAB had concluded its review of the AEB Dispute.
• The DAB was incorrect to refuse to hear Disputes 1 to 4. Its refusal rendered the DAB mechanism unworkable and because the Contractor had followed the dispute resolution mechanism, it did not need to constitute a new ad hoc DAB.
• Counsel for the Employer conceded in the Arbitration that if the Tribunal were to find that Disputes 1-4 were to be submitted to Arbitration, Disputes 5-6 could also be submitted to the same arbitration due to the overlap in Disputes 1-4 and Disputes 5-6.

The crux of the Tribunal’s findings related to whether the AEB DAB could only adjudicate the AEB Dispute or, whether it should have adjudicated Disputes referred to it before it had completed its adjudication of the AEB Dispute. The Tribunal found that as a matter of Contract, the AEB DAB was required to and should have considered other Disputes referred to it if those Disputes were referred prior to the DAB’s decision on the AEB Dispute. The Singapore High Court, upon reviewing the relevant contractual provisions and FIDIC Guide endorsed the Tribunal’s reasoning.

Context

DSR v DSQ is an important Judgement. Whilst it considered a bespoke factual matrix, and the standard FIDIC multi-tier clause, it provides wider compelling guidance on Arbitration seated in Singapore:

• A “final ruling” on jurisdiction can be in the form of a Procedural Order. A Singapore High Court may not be persuaded by arguments that Procedural Orders merely record procedural matters and that substantive issues of Jurisdiction are to be found only in Partial or Final Awards.
• The Singapore High Court’s view of admissibility and jurisdiction is in line with the predominant view[6] that a failure to follow pre-arbitral step(s) does not halt an arbitration in its tracks. However, the Court has left open what is to happen in non-standard FIDIC multi-tier clauses and when a condition precedent to arbitration exists.
• The Singapore High Court reinforced the view that an ad hoc DAB should not adopt restrictive interpretations of a DAB’s mandate.

---

^[1] Article 16(3), UNCITRAL Model Law; Section 10(3), Singapore International Arbitration Act.

^[2] RaknaArkshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131.

^[3]  International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2013] SGCA 55.

^[4]  International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2013] SGCA 55, at [63].

^[5]  Swissborough Diamond Mines (Pty) Ltd v Kingdom of Lesotho [2019] 1 SLR 263.

^[6]  For example, in England & Wales with the decision in Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm) and in Hong Kong with the decision in C v D HKCFA 16.