## Facts

- P.T. Garuda Indonesia (Garuda) and Birgen Air (Birgen) entered a 20 Jan 1996 aircraft lease for a DC‑10‑30 to transport pilgrims for the Hajj.
- The arbitration clause provided for ICC arbitration before three arbitrators, with Jakarta as the place of arbitration and Indonesian law governing the contract.
- A dispute arose after Birgen proposed substituting the aircraft; ICC tribunal proceedings commenced.
- Due to instability in Indonesia, the tribunal proposed holding hearings outside Jakarta; the parties did not object and hearings were held in Singapore.
- The tribunal issued a Final Award (21 Nov 2000), an Addendum, and a subsequent Decision concerning the Final Award.
- Garuda filed in the Singapore High Court to set aside the award materials under s 24 of the International Arbitration Act (IAA) and Art 34 of the Model Law (as enacted in Singapore).
- Garuda obtained ex parte leave to serve the setting-aside application out of jurisdiction under O 69A r 4(2) of the Rules of Court; Birgen applied to set that order aside.
- The High Court set aside leave for service out and all subsequent proceedings, citing material non-disclosure and finding service out was not proper; Garuda appealed.

## Issues

1. Whether holding arbitral hearings in Singapore, without objection, changed the juridical seat (place) of arbitration from Jakarta to Singapore.
2. Whether Singapore’s IAA and the Model Law conferred jurisdiction on Singapore courts to set aside an award where the seat was Jakarta.
3. Whether leave to serve the setting-aside application out of jurisdiction was properly granted, including whether Singapore was the appropriate forum for supervisory relief.

## Decision

- The Court of Appeal dismissed Garuda’s appeal.
- The court held the parties did not agree to change the seat from Jakarta; Singapore was only the hearing venue.
- Because the seat remained Jakarta, the Singapore IAA and Model Law did not provide a basis for Singapore courts to set aside the award.
- The court upheld setting aside the ex parte service-out order and the resulting proceedings.

## Legal Principles

- The arbitral “seat” (place) is a juridical concept that determines the applicable arbitration procedural law (lex arbitri) and the courts with supervisory jurisdiction; the physical venue for hearings may differ without changing the seat.
- A change of seat requires clear agreement; silence or non-objection to a tribunal’s proposal to hold hearings elsewhere does not, without more, vary an express seat designation in the arbitration agreement.
- Under Singapore’s IAA framework incorporating the Model Law, setting-aside jurisdiction is territorially linked to Singapore-seated arbitrations, subject only to limited statutory exceptions.
- Procedural rules permitting service out in IAA-related matters do not themselves create substantive supervisory jurisdiction; they operate only where the court otherwise has authority under the governing arbitration legislation.
- Where the arbitration agreement fixes a foreign seat and foreign governing law, Singapore will generally not be the appropriate forum for a setting-aside challenge to the award.

## Conclusion

The Court of Appeal treated Jakarta as the continuing arbitral seat despite hearings in Singapore and, on that basis, held Singapore courts had no supervisory power under the IAA/Model Law to set aside the ICC award; service out to pursue such relief in Singapore was therefore improper.


P.T. Garuda Indonesia v. Birgen Air, [2002] 1 S.L.R. 393 (Sing. Ct. App. 2002)