## Facts

- Insigma Technology Co. Ltd. (PRC) and Alstom Technology Ltd. (France) entered a Singapore-law licence agreement (8 Dec 2004) for use of Alstom’s wet flue-gas desulfurisation technology in China.
- The agreement contained a “hybrid” arbitration clause requiring disputes to be resolved by arbitration before the Singapore International Arbitration Centre (SIAC) in accordance with the International Chamber of Commerce (ICC) Arbitration Rules; seat Singapore; language English.
- A dispute arose over royalty payments.
- Alstom first commenced arbitration with the ICC; Insigma objected that the clause required arbitration before SIAC (though applying ICC Rules).
- Alstom withdrew the ICC case and commenced arbitration at SIAC; SIAC agreed to administer the arbitration applying the ICC Rules and constituted a three-member tribunal.
- SIAC administered the case by having its internal organs perform functions analogous to those assigned to ICC organs under the ICC Rules.
- Insigma then challenged the clause as invalid for uncertainty and argued SIAC lacked jurisdiction because ICC Rules could only be administered by ICC.
- The tribunal issued a jurisdictional ruling affirming jurisdiction; the High Court refused to set it aside; Insigma appealed.

## Issues

1. Whether an arbitration clause requiring arbitration “before SIAC” while applying “ICC Rules” was invalid or inoperative for uncertainty.
2. Whether SIAC could administer an arbitration under ICC Rules notwithstanding ICC Rules’ references to ICC institutional bodies.
3. Whether treating SIAC bodies as functional substitutes for ICC bodies impermissibly rewrote the parties’ agreement and deprived Insigma of alleged ICC institutional attributes.

## Decision

- The Court of Appeal dismissed the appeal and upheld the tribunal’s jurisdictional ruling and the High Court’s refusal to set it aside.
- The court held the hybrid arbitration agreement was valid and workable and reflected a clear intention to arbitrate in Singapore.
- The court accepted SIAC’s administration of the arbitration under ICC Rules, including functional substitution for ICC organs where necessary to operate the chosen rules.
- The court awarded indemnity costs against Insigma.

## Legal Principles

- Where parties show a clear intention to arbitrate, courts should interpret arbitration agreements to give effect to that intention and should not readily find them void for uncertainty.
- If an arbitration clause is capable of more than one construction, courts should prefer the construction that makes the clause effective and commercially sensible.
- A clause designating one arbitral institution to administer an arbitration under another institution’s rules is not, without more, invalid; such “hybrid” drafting can be enforceable if administratively workable.
- Nothing inherent in institutional arbitration rules necessarily makes it legally impossible for a different institution to administer proceedings under those rules, provided the parties so agree and the administering institution is willing and able to perform the required functions.
- A party’s inconsistent conduct in invoking and then attacking the agreed arbitral mechanism may weigh against a later jurisdictional challenge, particularly where the counterparty relied on the earlier position.

## Conclusion

The court enforced the parties’ hybrid SIAC/ICC arbitration clause, holding it sufficiently certain and workable, and confirmed that SIAC could administer a Singapore-seated arbitration under ICC Rules through functional administration consistent with the parties’ expressed choice of SIAC as the administering institution.


Insigma Tech. Co. v. Alstom Tech. Ltd., [2009] SGCA 24, 3 Sing. L. Rep. 936 (Sing. Ct. App. 2009)