Singapore Aligns With England and Hong Kong on Preconditions to Arbitration
Singapore Court rules that noncompliance with preconditions to arbitration goes to the admissibility of the claims and not the tribunal's jurisdiction.
The Singapore High Court held in DRO v DRP [2025] SGHC 255 ("DRO") that noncompliance with a precondition to arbitration goes to the admissibility of claims (i.e., whether it is appropriate to hear a case), not the tribunal's jurisdiction (i.e., the tribunal's power to hear a case). This aligns Singapore with the position adopted in England (in Republic of Sierra Leone v SL Mining Ltd [2021] Bus LR 704) and Hong Kong (in C v D [2022] HKCA 729) and the prevailing international arbitration consensus.
In DRO, the applicant sought to set aside a tribunal's jurisdictional ruling, arguing that the respondent's failure to comply with a tiered dispute resolution clause (requiring escalation through project and senior management levels before referral to arbitration) deprived the tribunal of jurisdiction. The applicant relied on the Singapore Court of Appeal's decision in International Research Corp PLC v Lufthansa Systems [2014] 1 SLR 130 ("Lufthansa"), where noncompliance with a precondition to arbitration was considered a jurisdictional issue. In DRO, however, the High Court considered the Court of Appeal's comments on this issue in Lufthansa as obiter (i.e., said in passing) and thus it was not bound by that decision.
The court in DRO went on to rule that preconditions to arbitration are matters of admissibility, not jurisdiction, for the following reasons:
- This approach is consistent with the distinction between jurisdiction and admissibility.
- The Singapore Court of Appeal in BTN v BTP [2021] 1 SLR 276 expressed a similar view (albeit in a different context confirming that the res judicata effect of a prior decision goes to admissibility); and
- This approach is in line with general international consensus.
Takeaways
This decision clarifies that noncompliance with preconditions to arbitration will likely be an admissibility issue, and clears up any doubts on this question that lingered following Lufthansa. The specific drafting of the relevant clause could vary this position.
This is significant as a Singapore-seated tribunal's decision on jurisdiction (as opposed to admissibility) is appealable to the Singapore courts under s 10(3) of the International Arbitration Act 1994.
While parties should continue to exercise care in drafting multi-tiered dispute resolution clauses and comply with any preconditions to arbitration, in many cases, noncompliance will not mean the tribunal is deprived of jurisdiction. Instead, the likely penalty is a stay pending the parties' compliance with the failed step and an associated damages claim, rather than a knockout for lack of jurisdiction.
