Singapore: Arbitration At Your Option: So Long As You Have Agreed To It

A case study of Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017] SGCA 32


The recent Singapore Court of Appeal judgment in Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd discusses the legal implications of an arbitration agreement of an asymmetrical nature. Such an arbitration agreement is one which confers a unilateral right (i.e. a right which is enjoyed by only one party to the arbitration agreement but not by the other) on one party to elect whether to arbitrate a future dispute.

Due to the unilateral right conferred on one party, it can be said that the arbitration agreement lacks mutuality between the parties. Also, given that one party has the choice of whether to submit the dispute to arbitration or litigation, there is also an element of optionality introduced into the arbitration agreement. However, these two factors did not prevent the court from finding that arbitration agreements of an asymmetrical nature are valid and enforceable.


The dispute arose out of a contract in which Wilson Taylor Asia Pacific Pte Ltd (WTAP) engaged Dyna-Jet Pte Ltd (Dyna-Jet) to install underwater anodes. Among the terms of their contract (the Contract), there was a dispute resolution agreement (the Clause) which gave only Dyna-Jet the right to elect to arbitrate a dispute arising in connection with the contract. The Clause is reproduced in full:

"Dyna-Jet [which is the Respondent] and the Client [which is the Appellant] agree to cooperate in good faith to resolve any disputes arising in connection with the interpretation, implementation and operation of the Contract. Disputes relating to services performed under the Contract shall be noted to Dyna-Jet within three (3) days of the issue arising, thereafter the period for raising such dispute shall expire.

Any claim or dispute or breach of terms of the Contract shall be settled amicably between the parties by mutual consultation. If no amicable settlement is reached through discussions, at the election of Dyna-Jet, the dispute may be referred to and personally settled by means of arbitration proceedings, which will be conducted under English Law; and held in Singapore."  

A dispute (the Dispute) subsequently arose under the Contract. The parties had attempted, but failed to reach a negotiated settlement. Dyna-Jet then commenced court proceedings in the Singapore High Court against WTAP. In doing so, Dyna-Jet had in effect elected not to refer the dispute to arbitration. WTAP then applied to the High Court for the court proceedings to be stayed in favour of arbitration under section 6 of the Investment Arbitration Act (Cap 143A) (IAA).


The main issue in this case was whether the court proceedings should be stayed in favour of arbitration. In determining whether a stay of court proceedings should be granted, the three requirements set out in the landmark case of Tomolugen Holdings Ltd and another v Silica Investors Ltd and another appeals [2016] 1 SLR 373 is instructive. These three requirements are:

  1. there has to be a valid arbitration agreement between the parties;
  2. the dispute in the court proceedings falls within the scope of the arbitration agreement; and
  3. the arbitration agreement is not null and void, inoperative or incapable of being performed.

Validity of asymmetrical arbitration clauses

On the first requirement of there being a valid arbitration agreement between the parties, the Court of Appeal agreed with Justice Vinodh Coomaraswamy's decision in the High Court that there was indeed a valid arbitration agreement.

In the High Court, Justice Coomaraswamy found that an arbitration clause of an asymmetrical nature was nevertheless a valid arbitration agreement within the meaning of section 2A of the IAA. The key element that must be present in a dispute resolution agreement was that parties must manifest a mutual intent to have resort to arbitration. This would mean that both parties envisage that they could, in certain circumstances operating in the future, come under an obligation to arbitrate a dispute. If mutual intent was present, it would suffice to characterise the dispute resolution agreement as an arbitration agreement. The lack of mutuality, as well as the optionality of an arbitration clause would not render the arbitration clause invalid. This point was positively affirmed by the Court of Appeal. The interpretation adopted by Justice Coomaraswamy would also be consistent with section 2A of the IAA in that section 2A of the IAA does not require an arbitration agreement to refer all future disputes to arbitration or to do so unconditionally. Instead, section 2A of the IAA accommodates within its definition arbitration agreements which deal with "certain disputes" only.

Having found that the Clause in question was a valid arbitration agreement, Justice Coomaraswamy then found that the effect of Dyna-Jet electing to refer the Dispute to litigation was to foreclose any possibility that Dyna-Jet could subsequently choose to refer the Dispute to arbitration. As such, the arbitration agreement between WTAP and Dyna-jet was thus regarded as "incapable of being performed" within the meaning of section 6(2) of the IAA. Consequentially, the High Court refused to grant a stay of court proceedings in favour of arbitration.

Whether the dispute falls within the arbitration agreement

However, the Court of Appeal disagreed with Justice Coomaraswamy on the second requirement as to whether the Dispute fell within the arbitration agreement. In the High Court, Justice Coomaraswamy was of the view that if there was a valid arbitration agreement, then it would be undisputed that the subject matter of the current action would be a dispute that falls under the arbitration agreement. On this point, the Court of Appeal was of the view that Justice Coomaraswamy was "led into error by the common but mistaken position that parties took on this point".

As a preliminary point, the Court of Appeal stressed that the onus lies on the applicant to persuade the court of his preferred interpretation of the arbitration clause as this is part of his wider burden to establish that the dispute fell within the scope of the arbitration agreement. The Court of Appeal subsequently found that upon construction of the phrase "at the election of Dyna-Jet", the Clause gave Dyna-Jet alone the option to choose whether any disputes arising in connection with the Contract, whether initiated by WTAP or Dyna-Jet, were to be resolved by arbitration or by litigation. Since Dyna-Jet had chosen to refer the Dispute to litigation, it thus follows that the Dispute never fell within the scope of the Clause. The Dispute could have fallen within the scope of the Clause only if Dyna-Jet had elected to refer the Dispute to arbitration.  

The Court of Appeal drew a distinction between cases cited by counsels for WTAP, in which the clauses therein conferred upon the party a choice to commence proceedings, or not. In these cases, only one party would have had an interest in challenging the decision in question, which would have been made by its counterparty. The party receiving the counterparty's decision did not per se have a right to choose between arbitration and litigation (as was the case in the current appeal). Instead, the relevant contracts gave the party the choice between referring a dispute to arbitration and accepting that it was bound by the counterparty's decision on the dispute. In other words, the arbitration clause in these cases merely provided the mechanics for challenging the counterparty's decision, but did not provide a substantive right as to whether one party could refer a dispute to arbitration or litigation. In the latter circumstances, the option of choosing to refer the dispute to arbitration or litigation would be tantamount to an interpretation as to whether the dispute would be one that falls within the arbitration agreement or not. While the element of optionality did not have the effect of rendering an arbitration agreement invalid, it would have the effect of rendering the dispute to be one which falls outside the arbitration agreement.  

The Court of Appeal also observed that in seeking a stay of court proceedings in favour of arbitration, WTAP was invoking a right that was vested in Dyna-Jet alone, to have the matter referred to arbitration. This was something that WTAP was not entitled to do, since the Clause did not confer upon WTAP such a right. If on the other hand, WTAP was the one who commenced court proceedings against Dyna-Jet, Dyna-Jet could have invoked its option under the Clause to stay the court proceedings and have the matter referred to arbitration. The converse did not hold true in view of the express language of the Clause.

Ultimately, the Court of Appeal found that on a prima facie standard of review, the Dispute could not possibly be said to fall within the scope of the arbitration agreement. The third requirement on whether the Clause was rendered "incapable of being performed" was thus moot.   


The Court of Appeal's judgment confirms that arbitration clauses of an asymmetrical nature can be upheld and enforced. At the end of the day, the Court's role is to look at the agreement of the parties.  If parties have agreed to a clause which allows either party to elect whether to proceed with arbitration, such an agreement ought be upheld.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions