27 This case was used by Mr Loh to substantiate the proposition that whether an arbitration agreement existed had to be decided on the basis of Singapore law. This reliance does not, however, take him very far. The court in the Hålogaland case held that “the contents of the E-mails appear obscure and incomplete and reflect just fragments of an agreement”. Obviously, these documents did not even satisfy the formalities for the enforcement of an award as they did not constitute an arbitration agreement in writing as required by Arts II and IV of the Convention. The Singapore court too would look at the document produced as the arbitration agreement under which the award had been made and consider whether under our law such document is capable of constituting an arbitration agreement. This would be a fairly formalistic examination as stated in [39] below. Applying the Hålogaland case would not require me to undertake a re-examination of the Arbitrator’s decision on its merits.

…

39 The arguments put forward on behalf of Mr Chiew were rejected by the assistant registrar who considered that it was sufficient for the purpose of satisfying O 69A r 6 of the Rules for AVA to prove that Mr Chiew was mentioned in the arbitration agreement that was exhibited by AVA and that the arbitral tribunal had made a finding that Mr Chiew was a party to the arbitration agreement. His conclusion was that the examination that the court must make of the documents under O 69A r 6 is a formalistic one and not a subtantive one.

…

41 After carefully considering the arguments, I have come to the conclusion that the assistant registrar was correct. In the present case, there was a contract, the Agreement, between Asianic and AVA that contained an arbitration clause. The Agreement was signed by Mr Chiew on behalf of Asianic and it is not disputed that Mr Chiew had set up Asianic and was active in running its business with AVA pursuant to the Agreement. The provisions of the Agreement evidenced that the parties had agreed to disputes relating to the business established by that contract being resolved by arbitration and it was therefore capable of being considered as “an agreement in writing under which the parties undertake to submit to arbitration … differences which have arisen” within the meaning of that term in Art II of the Convention for an arbitration involving not only Asianic and AVA but also Mr Chiew himself. There can be no doubt that at the time he signed it, Mr Chiew anticipated that disputes arising from the business under the Agreement would be settled by arbitration although, probably, he was not contemplating that he himself would personally be a party to the arbitration proceedings. This holding is in line with the views expressed in Proctor v Schellenberg ([17] supra).

42 The approach adopted by the assistant registrar is also supported by authority. The idea that the enforcement process is a mechanistic one which does not require judicial investigation by the court of the jurisdiction in which enforcement is sought was expressed in Robert Merkin, Arbitration Law (LLP, 1991) (Service Issue No 42: 5 December 2005) at para 19.48 as follows:

 [emphasis added in italics]

The reference in Aloe Vera to a “mechanistic process” referred to the first stage and not the second stage. With regard to the second stage, it is clear from the express wording of s 31(2) that a party ought to prove the grounds relied on a balance of probabilities, as was held in Strandore. The comments made in Strandore endorsed the above bifurcated analysis, and standards required in each stage ought not to be conflated with each other. I agree.

140 It can be seen from Assoc Prof Ho’s speech in the Second Reading of the Amendment Bill (see [137] above) that Parliament’s intention to align the effect of interim awards with that of final awards was driven by its object of providing that all awards – interim and final – should reflect the principle of finality. What this meant was that an award, once issued, was to be final and conclusive as to the merits of the subject-matter determined under that award; and it could thereafter only be altered in the limited circumstances provided for in Arts 33 and 34(4) of the Model Law. This is nothing more than another way of saying that the issues determined under the award are res judicata. This was also how Gloster J interpreted the equivalent provision in the 1996 English Arbitration Act, s 69, in Shell Egypt West Manzala GmbH v Dana Gas Egypt Limited (formerly Centurion Petroleum Corporation) [2009] 2 CLC 481. Section 69 provides that “[u]nless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings”. As the right of appeal under s 69 can be contracted out, the award creditor submitted that cl 14.3 of the arbitration agreement which states that the award shall be “final, conclusive and binding on the parties” manifested the parties’ intention to do so.

…

142 In our view, it is clear that s 19B(1) had everything to do with res judicata of issues which results in the tribunal being functus officio in relation to awards already made, and nothing to do with the availability of curial remedies. While s 19B(4) does talk about curial remedies, its effect was misconstrued by the Judge. We disagree that s 19B(4) imposes a positive obligation on the award debtor to challenge the award in an active manner, viz, setting aside, if it wishes to extricate itself from the otherwise “final and binding” consequences of the award. The point of s 19B(4) is a negative one. As Gloster J pointed out, although issues determined under the award are res judicata, it was important to dispel the misconception that the award then becomes unimpeachable. On the contrary, it may still be challenged in accordance with the available processes of appeal or review of the award permitted by the law governing the arbitration. In short, s 19B(4) in fact clarifies what “final and binding” does not amount to.

[emphasis added in italics]

12 As for the Respondent’s reliance on s 89(2)(f) of the Ordinance, and the ground that the Award has not yet become binding on the parties, the mere existence of some challenge made in the supervisory court does not automatically mean that the Award has become not binding. It depends on the nature of challenge which is available under the law of the country in which the Award was made (Guo Shun Kai v Wing Shing Chemical Co Co). An appeal to set aside an award is to be distinguished from an appeal on the merits. An arbitral award is not binding only if it is open to appeal on the merits before a judge or an appeal arbitral tribunal…

13 Under Article III of the New York Convention (Convention), each contracting state shall recognise arbitral awards as ‘binding’ and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the Convention. ‘Binding’ is used, rather than ‘final’, the intention being that party is entitled to apply for recognition and enforcement of an award once it was issued by the arbitral tribunal. The fact that there are proceedings in the Bahamian court to set aside the Award on grounds of irregularities, and not on the merits, does not render the Award invalid or not binding.

[emphasis in italics]

Other authorities hold that an award can be “binding” even if it is subject to a pending action to annul in the place where it was made… This conclusion is decisively supported by Article VI of the Convention, which permits national courts to discretionarily stay recognition proceedings pending the resolution of applications to annul an award in the arbitral seat (i.e., “[i]f an application for the setting aside or suspension of the award” has been made). It is impossible to reconcile Article VI’s grant of discretion to suspend recognition proceedings, based on a pending annulment action, with an interpretation of Article V(1)(e) that would treat awards subject to annulment as non-binding; the premise of Article VI is that an award is subject to recognition, and therefore “binding,” even if it is subject to an annulment action, and instead that recognition may be suspended as a consequence of the annulment proceeding.

[emphasis in italics]

The language in s 31(5) [which is in pari materia to Article 36(2) of the Model Law] makes clear that an adjournment pursuant to this provision can only be made at the second stage of enforcement. The adjournment application is likely to be heard at the same time as the application to challenge the ex parte leave order (ie, where a court is asked to refuse enforcement of a foreign award under s 31 of the IAA). Significantly, after a judgment on the foreign award is affirmed, the enforcing court has no power to adjourn under s 31(5)(a). After entry of judgment, the judgment is much like any other judgment rendered by the court and the plaintiff would seek an execution order. The other party seeking a stay of the execution order would have to turn to the procedural principles of stay of execution of a civil judgment.

[emphasis added in italics]