In general, only the parties to an arbitration may participate in proceedings to enforce the resulting arbitral award. Are there exceptions to this? If so, under what circumstances can a third party apply to be added to the enforcement proceedings? What legal test should be applied under Singapore's new Rules of Court 2021 ("ROC 2021")? If the third party is unsuccessful in its application, when should the Court exercise its discretion to allow the third party to be added as an interested non-party instead?
These issues arose for consideration in DFD v DFE and another [2023] SGHCR 23, where an unsecured creditor ("Trustee") of a party to the arbitration sought to be added to proceedings to resist enforcement of an arbitration award ("Enforcement Challenge Application"). The addition was opposed by the claimant, i.e. the party which had successfully obtained permission from the High Court to enforce the award on an ex parte basis.
The Court considered the approach to be taken under the ROC 2021, finding that the existing case law relating to the Rules of Court 2014 (ROC 2014) continued to be relevant. It therefore had to determine whether it was "just and convenient" for the Trustee to be added, which involved whether the Trustee had a sufficient legal interest in the present proceedings. Ultimately, the Court held it was not appropriate to allow the addition of the Trustee as either a party or an interested non-party to the Enforcement Challenge Application.
The Claimant was successfully represented by Kelvin Poon, SC, Head of the International Arbitration Practice, and Devathas Satianathan from the same Practice, as instructed counsel.
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