Lloyd's Maritime and Commercial Law Quarterly
ARBITRATION WITHOUT PAROL?
David Foxton*
BQP v BQQ
1. Introduction
One of the long-proclaimed benefits of commercial arbitration over court litigation is that what are often termed “the strict rules of evidence” do not apply. As long ago as 1864, in The Matter of an Arbitration between Thomas William Brook, F & A Delcomyn and FJ Badart Freres,1 Byles (of Bills) J said he “should be sorry that anything decided here should give any countenance to the notion that mercantile arbitrators are bound by the strict rules of evidence, or that a non-observance of them will afford grounds for setting aside an award”. The Arbitration Act 1996, s.34(1) states that it “shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter”, and the rules of arbitration institutions routinely provide that the tribunal need not apply the “strict rules of evidence” and are to determine all issues of admissibility of evidence.2 The “strict”3 rules of evidence are rather less easily discerned in Commercial Court litigation now. While there remain some differences between court and arbitration procedure, for example in the taking of evidence of foreign law,4 there has been a considerable convergence in approach in the 150 years since Byles J’s observation.
However, BQP v BQQ,5 a recent Singapore decision by a rightly respected judge, has indicated a rather striking, and with respect surprising, consequence of the different evidential regimes in court and arbitral proceedings: that the parol evidence rule, which precludes access to pre-contractual negotiations or post-contractual conduct for the purposes of ascertaining the meaning of contracts, may be one of those “strict rules of evidence” whose writ does not run in the Alsatia of arbitration.6 What led the court to this conclusion?
* QC.
1. (1864) 16 CB (NS) 403, 418; 143 ER 1184, 1190.
2. Eg, the London Court of International Arbitration Rules 2014, Art.22.1; the SIAC Rules 2013, Rule 16.2; The Hong Kong International Arbitration Centre Administered Arbitration Rules 2013, Art.22.2.
3. Or, indeed, any.
4. See David Foxton, “Foreign Law in Domestic Courts” (2017) 29 Sing Ac LJ 194.
5. [2018] SGHC 55 (Quentin Loh J) (hereafter “BQP”).
6. Cf Czarnikow v Roth, Schmidt & Co [1922] 2 KB 478, 488.
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