Case in Brief Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017]
John Green
A recent decision by the Singapore Court of Appeal in Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017] SGCA 32, confirmed that the Singapore courts will enforce a unilateral or ‘one-way’ arbitration agreement which gives only one party the option to arbitrate.
Singapore High Court confirms validity of unilateral arbitration clause Background Wilson Taylor had engaged Dyna-Jet in April 2015 to install underwater anodes on the island of Diego Garcia in the Indian Ocean. A dispute arose in 2015, after which Dyna-Jet suspended work and recalled its divers to Singapore. That, in tum, led to Wilson Taylor engaging another contractor to replace Dyna-Jet and complete the installation. The two companies had included a dispute resolution provision in their Contract providing that only Dyna-Jet could decide whether to refer any disputes to arbitration. Dyna-Jet elected not to refer the dispute to arbitration and commenced proceedings in the Singapore High Court instead. Wilson Taylor then applied for a stay of the court proceedings to compel Dyna-Jet to submit the matter to arbitration in accordance with the dispute resolution clause. At first instance, the application was dismissed by an assistant registrar on the basis that the dispute resolution agreement was an arbitration agreement and since Dyna-Jet had not elected to arbitrate the dispute, the arbitration agreement was incapable of being performed. In the Singapore High Court, Justice Vinodh Cooramaswamy upheld the assistant registrar’s decision and dismissed the appeal. After an extensive survey of modern Commonwealth authority, the Judge accepted that a dispute resolution agreement which confers which confers an asymmetric right (in other words, a right enjoyed by only one party to the agreement but not by the other) to elect whether to arbitrate a future dispute is properly regarded as an arbitration agreement. His Honour observed that there was no requirement for mutuality in respect of election to arbitrate and the only element of mutuality required for a valid arbitration agreement was the mutual consent of the parties at the point when they entered into the dispute resolution agreement. Dissatisfied with the outcome of the High Court proceedings, Wilson Taylor appealed the decision in the Singapore Court of Appeal. The court rejected Wilson Taylor’s appeal and its application for a stay of Dyna-Jet’s court proceedings in favour of arbitration under Section 6 of Singapore’s International Arbitration Act (IAA).