Who has the final say on an arbitral tribunal’s jurisdiction—the tribunal itself or the courts? This question has long been a point of contention in international arbitration, particularly when a tribunal declines jurisdiction. In Singapore, judicial review of such negative rulings was made possible by a 2012 amendment to the International Arbitration Act (IAA), yet for over a decade, no challenge had successfully overturned a tribunal’s decision—until now. This article examines the recent landmark ruling in Frontier Holdings Ltd v Petroleum Exploration (Pvt) Ltd., where the Singapore International Commercial Court (SICC) broke new ground by overturning a negative jurisdictional ruling. It explores the significance of this decision, its impact on party autonomy, and what it means for the future of arbitration in Singapore.
1. The Origin
What happens when an arbitral tribunal wrongly decides that it lacks jurisdiction? Should parties be bound by such a ruling, or should there be an avenue for judicial intervention? The question of who has the final say on jurisdiction—the tribunal or the courts—has long been a debated issue in international arbitration. While most jurisdictions recognize the principle of kompetenz-kompetenz, allowing tribunals to decide their own jurisdiction, the extent to which courts can review such determinations varies.
Singapore, as a leading arbitration hub, has continuously refined its legal framework to balance tribunal autonomy with judicial oversight. One of the most contentious aspects of this balance has been the treatment of negative jurisdictional rulings—instances where a tribunal declines to hear a case due to a perceived lack of jurisdiction. Unlike positive jurisdictional rulings, which have clear pathways for judicial review, negative rulings have historically left parties without recourse.
The UNCITRAL Model Law on International Commercial Arbitration 1985 (Model Law), widely recognized as a cornerstone of modern arbitration practice, has been adopted by or influenced the arbitration legislation of 93 states across the globe, including Singapore. By enacting the International Arbitration Act 1994 (IAA) [1], Singapore gave the Model Law the force of law within its jurisdiction, with the notable exception of Chapter VIII, which governs certain provisions on court assistance in taking evidence.
However, Singapore has not rested on its laurels. As a leading hub for international arbitration, it has periodically amended the IAA to reflect the evolving needs of the arbitration community and to maintain its reputation as a forward-looking arbitration-friendly jurisdiction. These amendments have ensured that Singapore stays at the forefront of developments in arbitration practice, including issues of jurisdiction, procedural efficiency, and party autonomy.
A. Negative Ruling on Jurisdiction under the Model Law
An arbitration agreement is an independent agreement, and the arbitral tribunal derives its authority from this agreement to determine its own jurisdiction—a principle known as kompetenz-kompetenz.[2] This concept allows the tribunal to rule on its jurisdiction.
A tribunal’s preliminary ruling on jurisdiction can result in either a positive or negative decision. A positive ruling confirms that the tribunal has jurisdiction, whereas a negative ruling signifies that it does not. Under the Model Law, judicial intervention against a positive jurisdictional ruling is addressed in Article 16(1), with provisions for judicial review detailed in Articles 16(3) and 34(2)(a)(iii) and (iv).However, challenges arise when the tribunal issues a negative decision, concluding that it lacks jurisdiction. According to the 18th Session UNCITRAL Report on the Model Law, Article 16(3) does not permit judicial review of negative jurisdictional decisions and this approach stems from the legislators’ belief that compelling a tribunal to proceed when it has already determined it lacks jurisdiction would be inappropriate and contrary to the principles of arbitration.[3]
B. Interplay between Model Law and IAA
By adopting the Model Law, the IAA did not allow judicial review of a tribunal’s negative ruling on jurisdiction. The Model Law intentionally established this stance. According to the Model Law’s travaux, once a tribunal decides it lacks jurisdiction, it is inappropriate to force the same arbitrators to continue with the proceedings.[4] This strict adherence to the Model Law created a significant gap in Singapore’s arbitration framework, as it conflicted with the established judicial principle that courts retain the power to review jurisdictional determinations, including instances where a tribunal declines jurisdiction. Singapore courts have long exercised supervisory authority over such decisions to ensure that parties are not unfairly deprived of their chosen forum, whether in litigation or arbitration.[6]
Therefore, after adopting the Model Law, Singapore courts were no longer able to review challenges to a tribunal’s negative jurisdictional ruling in arbitration, unlike in litigation where such challenges remain subject to judicial scrutiny.
Moreover, the legal distinction between an arbitral award and a jurisdictional ruling further contributed to the lack of judicial recourse for negative jurisdictional decisions. Section 2 of IAA defines “award” as is a final and binding decision on the substantial issues. In contrast, a tribunal’s determination on jurisdiction is considered a ruling or order rather than an award. Since courts have the power to set aside only arbitral awards,[7] a negative jurisdictional ruling—being a procedural determination rather than a final resolution of the dispute, was not subject to judicial review under the IAA before the 2012 amendment.
This point was clarified by the Singapore Court of Appeal in PT Asuransi,[8] where the Court categorically held that a tribunal’s negative decision on jurisdiction cannot be set aside as it does not constitute an “award,” despite being titled as such. The Court emphasized that the substance of a decision, rather than its form or title, determines its legal character. In this case, the tribunal had declined jurisdiction over a claim brought by the claimant, PT Asuransi, on the basis that the arbitration agreement was invalid. PT Asuransi sought to set aside the decision, arguing that it amounted to an arbitral award. However, the Court of Appeal held that since the tribunal’s ruling did not resolve any substantive issues of the dispute, it was not an “award” within the meaning of the International Arbitration Act. Consequently, it was not subject to judicial review under the provisions applicable to awards.[9]
2. Bridging the Gap: Recourse to Judicial Review
The limitation imposed by the Model Law and upheld in PT Asuransi[10] left parties without recourse to judicial review in cases of erroneous negative jurisdictional rulings. This created an imbalance, as parties affected by a positive jurisdictional ruling could seek judicial intervention under Articles 16(3) and 34 of the Model Law, while those adversely affected by a negative ruling had no similar recourse. The absence of judicial oversight in such cases raised concerns about access to justice and fairness in arbitration proceedings.[11]
Thereafter, the Law Reform Committee (LRC) of the Singapore Academy of Law published its report in January 2011,[12] advocating for the introduction of judicial review of negative jurisdictional rulings. LRC’s report highlighted the inadequacy of the Model Law’s approach.[13] Comparative analysis revealed that other Model Law jurisdictions, such as New Zealand and India had amended their laws to address this gap.[14] LRC emphasized that failing to provide judicial oversight risked undermining confidence in Singapore as a preferred arbitration seat.
Furthermore, industry stakeholders, including the Singapore International Arbitration Centre (SIAC) and other prominent arbitration institutions, voiced strong support for reform. They emphasized that allowing judicial review would align Singapore’s arbitration framework with its reputation as a fair and efficient hub for international arbitration.[15]
It was only after the 2012 amendment to Section 10(3)(b) of the IAA, which introduced judicial review of negative jurisdictional rulings, that party autonomy was fully reinforced in Singapore’s arbitration framework. By allowing courts to review a tribunal’s decision declining jurisdiction, the amendment ensured that parties were not unfairly deprived of their agreed dispute resolution mechanism due to an erroneous ruling. This safeguard not only preserved party autonomy by upholding arbitration agreements as intended but also enhanced efficiency by preventing disputes from being prematurely dismissed without proper adjudication.
A judicial review under Section 10 IAA will be characterised with the following features:
A. De Novo Review under IAA
The judicial review of a tribunal’s jurisdiction, whether positive or negative, is conducted de novo by the court, meaning the court reassesses the issue independently. Its jurisdiction is original rather than appellate, allowing full reconsideration of the tribunal’s authority.[16]
In Titan Unity,[17] the court confirmed that while a tribunal decides its own jurisdiction first, its ruling is not final. Courts retain the power to review jurisdiction in full rather than merely checking for errors. Though Titan Unity suggested courts might defer to a tribunal’s ruling, it is now established that no automatic deference applies, ensuring a uniform standard of review for both positive and negative jurisdictional rulings. [18]
Given this, parties have sought to frame unfavourable rulings as “negative jurisdictional rulings” to trigger judicial review under Section 10 of the IAA. Unlike arbitral awards or interim orders, which are not subject to de novo review, negative jurisdictional rulings can be reconsidered in full. By doing so, parties have attempted to bypass limits on judicial intervention. As a result, until recently, no case had successfully established a tribunal’s negative jurisdictional ruling as reviewable under Section 10.
B. Ruling and Award Difference
A challenge to the jurisdiction of the tribunal can only be heard by a court if the challenge is against a ‘ruling’ under section 10(3) of the IAA and Article 16(3) of Model Law. A decision will be a ruling on jurisdiction, which is capable of challenge under section 10, if it deals solely with the challenge to the jurisdiction and does not rule on the merits of the case.[19]
In AQZ v ARA[20], the Singapore High Court while considered the drafting history of Article 16(3) of Model Law, and Section 10(3) of the IAA, concluded that Section 10(3) is not intended to apply to an award that deals with the merits of the dispute, however marginally the merits are dealt with.[21]
III. Giving Effect to Section 10 (3) IAA
Following the 2012 amendment to the IAA, the Singapore International Commercial Court (SICC) in 2024 upheld an appeal against a tribunal’s negative jurisdictional ruling for the first time, filling a void after almost 12 years from the amendment coming into force. In Frontier Holdings Ltd v Petroleum Exploration (Pvt) Ltd,[22] the SICC held that the arbitral tribunal had jurisdiction, overturning the tribunal’s earlier decision. This case is a landmark in affirming the recourse available under the amended IAA for parties affected by such rulings.
A. Factual Scenario
The dispute in Frontier Holdings Ltd v Petroleum Exploration (Pvt) Ltd arose from agreements governing exploration and development of two oil and gas fields in Pakistan: the Badin South and Badin North blocks. Frontier Holdings Ltd (FHL), a Bermuda-incorporated company, held a 27.5% working interest in the projects, while Petroleum Exploration (Pvt) Ltd (PEL), a Pakistani company, held a 47.5% interest, with the remainder interest held by a third party. The parties operated under a framework of Petroleum Concession Agreements (PCAs) and Joint Operating Agreements (JOAs), which regulated their rights and obligations.[23]
The PCAs provided for arbitration under the rules of the International Chamber of Commerce (ICC) in cases involving disputes with foreign working interest owners (FWIOs). The JOAs, however, incorporated the arbitration clause from the PCAs mutatis mutandis, creating ambiguity about whether disputes involving both FWIOs and Pakistani working interest owners (PWIOs) fell within the scope of ICC arbitration or domestic arbitration in Pakistan.
In 2023, disputes arose after PEL initiated forfeiture proceedings against FHL for failing to meet cash calls related to both blocks. FHL commenced ICC arbitration in Singapore, claiming breaches of the JOAs. However, PEL challenged the tribunal’s jurisdiction, arguing that the arbitration clause did not apply to disputes between FWIOs and PWIOs, limiting its application to disputes involving the Pakistani state or disputes solely between foreign entities. In its jurisdictional ruling, the arbitral tribunal, by a 2:1 majority, held that it lacked jurisdiction over the matter.[24]
B. Minority Opinion in the Arbitration Award
The dissenting arbitrator took a contrary view, emphasizing the holistic interpretation of the arbitration agreements. They argued that the language of the JOAs, read in conjunction with the PCAs, reflected a clear intent to subject FWIO-PWIO disputes to ICC arbitration. The arbitrator highlighted that the phrase mutatis mutandis in the JOAs was intended to adapt the arbitration clauses from the PCAs to the JOAs without altering their substantive effect.[25]
The dissenting opinion also drew on the commercial context of the agreements, noting that the parties’ decision to include ICC arbitration for disputes involving FWIOs suggested an intent to ensure a neutral and independent forum for resolving disputes.[26] The arbitrator criticized the majority’s reliance on domestic arbitration provisions under Pakistani law, arguing that such an approach subordinated party autonomy and was inconsistent with the overall structure of the agreements.
C. Final Decision of the Court of Appeal
The SICC undertook a de novo review of the dispute under Section 10(3) of IAA, examining both the tribunal’s decision and the relevant agreements to determine jurisdiction. The Court’s analysis began with the framework established by the JOAs and the PCAs. It scrutinized the incorporation of the arbitration clause from the PCAs into the JOAs through the mutatis mutandis clause, which the tribunal’s majority had found ambiguous.
The SICC emphasized that the mutatis mutandis clause did not merely replicate the PCA provisions but adapted them to the JOA framework without altering the substance of the arbitration agreement. It held that this clause should be interpreted to ensure consistency with the parties’ intent, as evidenced by the agreements’ commercial purpose and drafting history. The court rejected the tribunal majority’s narrow interpretation, which relied heavily on domestic arbitration rules under Pakistani law, and instead adopted a contextual approach that considered the entire contractual framework.
In conclusion, the SICC overturned the tribunal’s ruling and affirmed that it had jurisdiction to hear the dispute.
IV. Conclusion
For over a decade, the 2012 amendment to the IAA remained a theoretical safeguard—an untested legal provision designed to ensure fairness but never applied successfully. The Frontier Holdings judgment has finally breathed life into this provision, demonstrating its practical significance and reaffirming Singapore’s commitment to maintaining a fair, arbitration-friendly legal framework.
But why did it take 12 years for the first successful challenge? Perhaps parties hesitated to test the limits of judicial intervention in arbitration, or tribunals were cautious in their jurisdictional determinations. Whatever the reason, Frontier Holdings has set a crucial precedent: tribunals do not have the final say when they wrongly decline jurisdiction. Judicial oversight now prevents unjust denials of arbitration while preserving arbitral autonomy.
Other jurisdictions should take notice. The ability to challenge negative jurisdictional rulings is essential for maintaining party autonomy and confidence in arbitration. Those that rigidly follow the Model Law’s original framework risk discouraging arbitration users, particularly foreign investors who rely on predictable enforcement of agreements.
As Singapore continues to refine its arbitration framework, one thing is clear: party autonomy must not be compromised by erroneous tribunal decisions. Frontier Holdings ensures that arbitration remains a reliable, party-driven process, where jurisdictional challenges are met with fairness and judicial scrutiny. It may have taken over a decade, but as the saying goes, better late than never.
[1] International Arbitration Act (Cap 143A, 2002 Rev Ed)
[2] Lawrence G S Boo and Lim Wei Lee, “Chap 04, International and Domestic Arbitration, Singapore Law Watch”, (last update: July, 2018) available at https://www.singaporelawwatch.sg/About-Singapore-Law/Overview/ch-04-international-and-domestic-arbitration-in-singapore.
[3] Report of the UNCITRAL , 18th Sess, A/40/17 (1985) at para 163.
[4] Darius Chan, Paul Tan and Nicholas Poon, The Law and Theory of International Commercial Arbitration in Singapore (Singapore: Academy Publishing, 2022).
[5] Ibid.
[6] Ibid.
[7] Section 24 at Supra note 1 and Article 34(2) UNCITRAL Model Law.
[8] PT Asuransi Jasa Indonesia (Persero) v Dexia Bank S.A. [2006] SGCA 41 at para 66-70.
[9] Ibid at para 66-70
[10] Ibid.
[11] Jae Hee Suh, Harrison Chung, “A Tale of Two Seats: How Do Legislations on Arbitration in Hong Kong and Singapore Differ, and Do These Differences Matter?”, Wolters Kluwer (April, 2024), available at: https://arbitrationblog.kluwerarbitration.com/2024/04/07/a-tale-of-two-seats-how-do-legislations-on-arbitration-in-hong-kong-and-singapore-differ-and-do-these-differences-matter/.
[12] Law Reform Committee of the Singapore Academy of Law, Right To Judicial Review Of Negative Jurisdictional Rulings (Singapore: Singapore Academy of Law, 2011) [Report], available at: https://www.sal.org.sg/sites/default/files/PDF%20Files/Law%20Reform/2011-01%20-%20Judicial%20Review%20of%20Negative%20Jurisdictional%20Rulings.pdf.
[13] Singapore Academy of Law, Right to Judicial Review of Negative Judicial Rulings, available at: https://www.sal.org.sg/Resources-Tools/Law-Reform/Negative-Jurisdictional-Rulings.
[14] Supra note 12 at Annex-A providing list of countries permitting and not permitting judicial review of negative jurisdiction. See also, Supra note 11 for a comparative narrative with Hong Kong which does not permit judicial review of negative jurisdiction decisions.
[15] Supra note 12.
[16] Insigma Technology Co. Ltd v Alstom Technology Ltd [2008] SGHC 134.
[17] The ʻTitan Unityʼ [2013] SGHCR 28 at 31.
[18] Goh, Nelson, Jonathan Lim, and Paul Tan, The Singapore International Arbitration Act: A Commentary (2023; online edn, Oxford Academic), https://doi.org/10.1093/law/9780198828693.001.0001.
[19] Supra note 4.
[20] AQZ v ARA [2015] 2 SLR 972 at 69.
[21] Supra Note 18.
[22] Frontier Holdings Ltd v Petroleum Exploration (Pvt) Ltd [2024] SGHC(I) 34.
[23] Ibid at 2-13.
[24] Ibid at 28-43.
[25] Ibid at 47, 51.
[26] Ibid at 48.
