Originally from Iura Novit Curia in International Arbitration

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I. INTRODUCTION

The principle of iura novit curia provides that a judicial body may determine questions of law arising in any dispute ex officio and that it is not restricted by the submissions presented to it by the parties. As a common law jurisdiction which espouses the adversarial system, it is perhaps unsurprising that there has not been any express judicial recognition of this principle in the Singapore courts. Indeed, the Singapore Court of Appeal had emphasised the importance of pleadings in setting the boundaries of a dispute in a civil litigation, which includes the setting out of allegations of fact and the applicable points of law in support of their case.  

Increasingly, however, iura novit curia has started to receive consideration in the arbitration context, thereby giving rise to the derivative principle of iura novit arbiter. This article considers the scope and extent of the power of an arbitral tribunal in Singapore to determine and apply the applicable law and legal principles independently, in the absence of any agreement between or submissions by the parties. In this regard, the reference to the principle of iura novit arbiter is descriptive of, inter alia, the following powers of an arbitral tribunal:

a) the tribunal’s power to make its own legal inferences from the factual basis that was proven by the parties;

b) the tribunal’s power to apply the governing law to interpret, construe, supplement or correct the contract; 

c) the tribunal’s power to apply the legal sources it deems applicable, even if they do not belong to the law chosen or pleaded by the parties; and

d) the tribunal’s power to order, independently from the parties’ pleadings, the remedies that follow from the sources of law the arbitral tribunal deems applicable.