The Singapore International Commercial Court (the “SICC”) supports international arbitration. CMC di Ravenna, Italy (“CMC”) v. Department of Water Supply & Sewerage Management, Kathmandu (“DOW”) and Melamchi Water Supply Department Board (“MB”) [2025] SGHC(I) 16 (the “Judgment”) is noteworthy. It examined the distinction between contractual and non-contractual anti-suit injunctions and looked at whether such injunctions can be granted against State entities.
Context
CMC’s application for an anti-suit injunction (“ASI”) against MB related to an arbitration already commenced under a construction contract between CMC and MB. This provided for arbitration under the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) and to be held in Singapore. DOW challenged the jurisdiction of the Tribunal on the basis that it was not a party to the contract. The Tribunal agreed that DOW was not a party to the arbitration agreement and dismissed the claims against DOW, but on CMC’s application clarified that MB was a party to the proceedings and for the avoidance of doubt, joined MB as a party to the arbitration. DOW applied to the High Court Patan in Nepal to set aside the Tribunal’s order. Later, CMC and MB disagreed as to the Seat of the arbitration, with CMC arguing that it was Singapore and MB arguing that it was Nepal. The Tribunal passed a second order confirming Singapore as the Seat. MB applied to the High Court Patan in Nepal challenging this decision. CMC applied for an ASI in Singapore against MB seeking to restrain it from challenging the Arbitral Tribunal’s decisions in Nepal.
The SICC granted the ASI and held that (1) MB was amenable to its jurisdiction by virtue of the arbitration agreement, (2) MB was in breach of the arbitration agreement by commencing proceedings outside the Seat of the arbitration, (3) there were no strong reasons against granting the ASI, and (4) MB did not enjoy Sovereign Immunity as its actions did not involve the exercise of sovereign authority.
Anti-Suit Injunction
Fundamental principles of ASIs appear well settled under Singapore Law and were particularised by the Singapore Court of Appeal in the case of John Reginald Stott Kirkham and others v Trane US Inc and others [2009] SGCA 32 (“Kirkham”). Although the position is well settled, as the Judgment notes, it is important that the Kirkham factors are not read as requirements of a statute or approached as a box-ticking exercise. The fundamental principles in Kirkham are derived from the Privy Council decision in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871. The position in English law is derived from the Senior Courts Act 1981 and, while in essence is similar, is broader than the Kirkham factors. As noted by Cockerill J (as she then was) in Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm) at [38], under section 37 of the Senior Courts Act 1981, a court may issue an ASI “in all cases in which it appears to the court to be just and convenient to do so”. The principles are similar because both systems recognise the caution with which an ASI is to be ordered. In the context of contractual ASIs, both systems accept that an ASI will be ordered to restrain proceedings in breach of an arbitration clause (unless a defendant shows strong reasons).
The Judgment does not create new law but explains that, in cases of contractual ASIs, the ‘test’ is whether:
- The defendant is amenable to the jurisdiction of Singapore Courts
- Foreign proceedings are in breach of an exclusive jurisdiction clause or arbitration agreement
- There are strong reasons to decline enforcement of the parties’ agreement
In the wider context of international arbitration, the Judgment confirmed that a reference to ‘place’ of arbitration equates to the ‘Seat’. On the second requirement, the Judgment held that an arbitration agreement gives rise to a “negative obligation not to challenge [the Tribunal’s decisions] other than before Singapore Courts.” So, Court of Nepal proceedings were in breach of the arbitration agreement. As to the third point, the SICC held there were no strong reasons to decline enforcement of the arbitration agreement.
State Immunity
If MB was entitled to State Immunity it would be a “knockout blow”. This is because section 15(2) of the State Immunity Act 1979 (“SIA”) in Singapore expressly states that injunctive relief cannot be ordered against State entities. The Judgment differentiates between a State’s “adjudicative immunity” and “enforcement immunity”. As regards adjudicative immunity, the Judgment is clear that even if MB is considered a State, it is not protected by sovereign immunity in light of the exception under section 11 of the SIA [1]. The Judgment is less clear as to when “enforcement immunity” is waived. The Judgment says a “relatively specific reference to a waiver of sovereign immunity” is required and an arbitration agreement alone may not suffice. But the Judgment also notes, with reliance on the English Court of Appeal’s decision in General Dynamics United Kingdom Ltd v State of Libya [2025] 4 WLR 34 (“GDUK”) that in the absence of specific reference to Sovereign Immunity, “the State’s consent to an award being ‘wholly enforceable’ may suffice”. While the SICC appears to accept the English position, it found that no such language existed in the contract. This conclusion of the SICC is interesting. We say this because, while the contract did not include the words “wholly enforceable” in respect of the award, the contract did envisage a SIAC Arbitration –which per Rule 28.9 of the 2013 SIAC Rules or Rule 51.6 of the 2025 SIAC Rules states that the parties shall “undertake to carry out the award immediately and without delay.” In GDUK, the Court of Appeal found such language in arbitral rules whereby parties agree to carry out the award without delay indicates that enforcement immunity has been waived, or as Zacaroli LJ explained – the language in the ICC Rules “reinforces” such a conclusion.
Learning Points
Where an arbitration agreement provides for arbitration in Singapore, the Singapore Courts will – unless there are strong reasons not to do so – readily issue an anti-suit injunction restraining foreign proceedings. But it is important to keep in mind the SICC’s reminders as to the cautious approach to be taken by Judges when applying the so-called Kirkham factors, and Parties seeking an ASI will need to ensure that points which may have a dispositive effect – such as the availability of the Sovereign Immunity defence are cleared out of the judicial path.
[1] Section 11(1), SIA: “[w]here a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts in Singapore which relate to the arbitration.”
