The Singapore International Arbitration Centre (the SIAC) has announced the official release of the 7th Edition of the SIAC Arbitration Rules (the new Rules). SIAC last revised its Arbitration Rules in 2016 (the 2016 Rules).
This time around, the new Rules draw from SIAC’s experience of administering more than 3,000 international cases under the 2016 Rules and from responses to a public consultation. Emphasis is given early in the new Rules that SIAC and any Tribunals appointed “shall act in the spirit of these Rules and shall endeavour to ensure [the] fairness of the proceedings, expeditious and cost-effective conduct of the arbitration proportionate to the complexity of the claim and the amount in dispute; and the enforceability of any award”.
The new Rules present a significant structural overhaul of the existing framework, with 65 Rules (as compared to 41 under the 2016 Rules), organised under 10 newly created Sections (see below) that help users navigate them, and a set of three Schedules (instead of one previously), with Schedule 1 now exclusively pertaining to the Emergency Arbitrator Procedure, Schedule 2 to the newly introduced Streamlined Procedure, and Schedule 3 to the Expedited Procedure. Reference is also made to Practice Notes issued as guidance by the Registrar to supplement and implement said Rules.
In substance, the new Rules introduce a range of procedural tools available to parties and to the Tribunal to optimize the arbitration process (such as streamlined procedures, preliminary determination, and coordinated proceedings). The criteria available for some other existing procedures are modified (such as for expedited procedures and challenge of arbitrators), and more generally, the number of days allocated for several procedural steps have been revisited. The new Rules also enhance scrutiny of some topical arbitration ecosystem players (by introducing third-party funding disclosures, regulating appointment of Tribunal Secretaries, and adding rules for the change of counsel during arbitration proceedings, for example) and expand the powers of the Tribunal. New features also seek to align with developments in technology, security, and the protection of the environment, ensuring that arbitration proceedings conducted in accordance with these new Rules adapt to important evolving trends impacting businesses.
Below, we provide a non-exhaustive overview of some of the key features.
Introductory Rules (Section I)
A new case management system hosted by SIAC, the “SIAC Gateway”, has been introduced and can be used for all written communications, including by the Claimant to file its Notice of Arbitration. The conditions in which communications would be deemed to be received, with or without using the platform, as well as other practical procedural considerations, are outlined in the new Rules.
Commencement of Arbitration (Section II)
The new Rules increase the level of scrutiny in arbitration proceedings and related stakeholders, starting with any third-party funder, which is now defined as “any person, either legal or natural, who is not a party to the arbitration proceedings but who has a Direct Economic Interest [also defined therein] in the outcome of the arbitration proceedings”. Parties are required to disclose the existence of any third-party funding agreement and the identity and contact details of the third-party funder. Any subsequent changes to a third-party funding agreement must be notified to the Tribunal, parties and Registrar. Parties may also have to share details about a funder’s interest in the outcome of the proceedings, and whether the funder has committed to undertake adverse costs liabilities. After the constitution of the Tribunal, a party must not enter into a funding agreement that could give rise to a conflict of interest with any member of the Tribunal. Any change of representatives by a party must also be proposed first to the Tribunal. Under the new Rules, the Tribunal may allow or withhold approval of any proposed change of counsel “where such change could compromise the composition of the Tribunal or the integrity of the proceedings”.
Parties could also be directed by the Registrar to attend a newly proposed administrative conference, prior to the constitution of the Tribunal, to discuss any procedural or administrative directions.
Procedural Applications (Section III)
In the Emergency Arbitrator procedure under the new Rules (set out in Schedule 1), a party can now file an application for emergency interim or conservatory relief before the filing of the Notice of Arbitration. Upon the receipt of such an application by the Registrar, that Party then has 7 days to file its Notice of Arbitration.
The new Rules also offer parties the opportunity to agree on the application of a new Streamlined Procedure (set out in Schedule 2) prior to the constitution of the Tribunal. Alternatively, such procedure will apply where the dispute does not exceed SGD1million unless the President determines otherwise on application by a party. The parties may also exclude the application of the Streamlined Procedure by agreement in writing. Key features include the joint nomination of a sole arbitrator by the parties within 3 days from the date of the SIAC’s Secretariat’s notification to the parties that the Streamlined Procedure applies to the arbitration (or by the SIAC President as soon as practicable), with an equally short period of time allocated to challenge the sole arbitrator appointed under the Streamlined Procedure from the date of receipt of the notice of appointment of the arbitrator, or from the date that the reasons specified became known or should have reasonably been known to that party. Within 5 days of the Tribunal’s constitution, the Tribunal is to conduct a case management conference to discuss the conduct of the proceedings and any interlocutory applications.
While the Tribunal has the power to conduct the streamlined proceedings as it considers appropriate, it must take into account the timelines set out in Schedule 2. These include that a final award be made within 3 months from the date of the constitution of the Tribunal. Other features of the streamlined proceedings include that an award will only contain summary reasons (unless the Parties have agreed that no reasons are necessary) and that the dispute is to be decided based on written submissions and any accompanying documentary evidence (noting that document production and fact or expert witness evidence are not permitted unless the Tribunal determines otherwise, after considering the views of the parties). Time limits can nevertheless be amended by the Registrar and, the Registrar, in conjunction with the Tribunal, has the power to order that the proceedings should no longer be conducted under the Streamlined Procedure. In such cases, proceedings would continue to be conducted under the new Rules by the same Tribunal. Both the Tribunal’s fees and SIAC administrative fees in arbitrations under the Streamlined Procedure have been capped at 50% of the maximum limits under the Schedule of Fees.
The new Rules also modify the application of a pre-existing mechanism under SIAC Rules, that of the Expedited Procedure. SIAC Annual Reports show that SIAC’s Expedited Procedure was an increasingly popular choice amongst users, with statistics showing applications filed rising from 20 in 2010, 69 in 2015, 88 in 2020 and 94 in 2023. Amendments to the Expedited Procedure (set out in Schedule 3) change the criteria that a party should meet to apply for it. Under the new Rules, the procedure can be used if the amount in dispute does not exceed SGD10m at the time of the application (instead of SGD6m under the 2016 Rules) but exceeds SGD1m or if the amount in dispute does not exceed SGD1m and the President has determined that the Streamlined Procedure is not applicable, or where the circumstances of the case would warrant the application of the Expedited Procedure (replacing the “cases of exceptional urgency” threshold).
The new Rules also propose to run “coordinated proceedings” where the same Tribunal is constituted in two or more arbitrations, and a common question of law or fact arises out of or in connection with all the arbitrations. A party to the arbitrations may apply to the Tribunal for the arbitrations to “be coordinated” while remaining separate proceedings. The Tribunal, in consultation with the parties, and abiding by obligations of confidentiality, shall determine whether these arbitrations should be conducted concurrently or sequentially; or be heard together or at least have some procedural aspects aligned as between them; or whether one should be suspended pending determination of another.
Constitution of the Tribunal (Section IV)
The new Rules confer additional powers on the SIAC President in nominating arbitrators in specific circumstances. The President is able to take any necessary measure to constitute an independent and impartial Tribunal, in the event of substantial risk of unequal treatment that could affect the validity or enforceability of the award. Although the President has to consider the views of the parties before taking “any measure”, he does not have to agree with those views. If the President exercises this power, the Parties are deemed to have waived their right to nominate an arbitrator or otherwise participate in the constitution of the Tribunal, and the President may even revoke arbitrators already appointed.
Rules dedicated to the appointment, disclosure requirements, removal, and challenge of a Tribunal Secretary, are also introduced. Importantly, the new Rules make it clear that the “Tribunal shall not delegate any of its decision-making functions to the Tribunal Secretary,” who acts “on behalf of, and under the supervision of, the Tribunal”.
Challenge, Removal and Replacement of Arbitrators (Section V)
The new Rules introduce an additional ground upon which an arbitrator can be challenged, namely if that arbitrator became de jure or de facto unable to perform their functions. The Rules provide that the parties are deemed to have agreed that a decision of the SIAC Court on a challenge may be published with appropriate redactions. Should an arbitrator be replaced under these Rules, the remaining members of the Tribunal will decide whether hearings previously held should be repeated, considering the parties’ views. The default position being that any hearings previously held relating solely to a decision, ruling, order, or award shall not be repeated and the decision, ruling, order, or award shall remain in effect.
The Proceedings (Section VI)
The new Rules incorporate several changes in relation to arbitration proceedings. For instance, parties and Tribunals are expressly encouraged to discuss, from the commencement of the arbitration, the potential to settle, including through the SIAC-SIMC Arb-Med-Arb Protocol. Parties are also encouraged to consider the adoption of any environmentally sustainable procedures for the arbitration. The new Rules also incorporate various references acknowledging the increased adoption of virtual and hybrid methods of communication, including for hearings, and also provide guidance on Tribunal deliberations.
As to the conduct of the arbitration proceedings, the Tribunal is to use reasonable efforts to identify the issues to be determined in the arbitration and to record them in a procedural order. This is likely to substantially improve the efficiency with which disputes are resolved. The new Rules also contain expanded provisions on potential consequences of non-participation and non-compliance by a party to the arbitration.
With regards to witness preparation, the new Rules provide that parties and representatives should “seek to ensure that the evidence of fact witnesses reflects their own account of the relevant facts, and the evidence of experts reflects their genuinely held opinions”.
Powers of the Tribunal (Section VII)
Under the new Rules, parties can apply for interim or conservatory relief, including by way of emergency interim relief or by filing an ex parte application for a protective preliminary order to be decided within 24 hours after appointment of the Emergency Arbitrator (set out in Schedule 1). In case of an ex parte application, the applicant needs to show that the relief requested is necessary so that the purpose of the emergency interim or conservatory measure is not frustrated.
A party can also apply to the Tribunal for a final and binding preliminary determination of any issue that arises for determination in the arbitration where the parties agree that the Tribunal may determine the issue(s) on a preliminary basis, or where the applicant is able to demonstrate that the determination would likely contribute to savings of time and costs and a more efficient and expeditious resolution of the dispute, or that the circumstances warrant such preliminary determination. Parties would be given the opportunity to be heard, and should the application be allowed, the Tribunal would make a ruling/decision/award/order with reasons within 90 days from the date of filing of the application.
Notably, the Rules highlight the Tribunal’s inherent powers to determine issues at an early stage. The procedure for applications pertaining to security for costs, and security for claims, are also set out for in more detail under the new Rules.
The Award (Section VIII)
A draft award is to be submitted by the Tribunal to the SIAC Secretariat no later than 90 days from the date of submission of the last directed oral or written submission (replacing the “45 days from the date on which the Tribunal declares the proceedings closed”). Prior to that, within 30 days of the date of submission of the last directed oral or written submission in respect of the matters to be decided in an award, the Tribunal will now have to provide an estimate of the time within which it proposes to submit the draft award for scrutiny. The new Rules also envisage the circumstances in which a court remits an award to a SIAC Tribunal, including by providing that the said Rules would apply as appropriate.
Deposits and Costs (Section IX)
As with the predecessor 2016 Rules, the parties are jointly and severally liable for the costs of the arbitration. Under the new Rules, if a party does not pay the deposits as directed, the Registrar may direct the other party to make payment of the deposits on its behalf. The conduct of the parties during the proceedings may be taken into account by the Tribunal when determining legal and other costs.
General Provisions (Section X)
The final Section of the new Rules sets out some general provisions pertaining to further safeguards. They provide, among other things, that a Tribunal can take measures to protect trade secrets, that with agreement in writing of all parties, duly redacted versions of any decision, ruling, order, or award of the Tribunal may be published, that information security measures should be employed as soon as practicable after the commencement of the arbitration, and that SIAC will maintain an archive of all arbitration proceedings administered under the new Rules for a minimum period of 6 years after which it can dispose of the files without notice.
Conclusion
Based on more than a decade of practical experience since its last edition and with the benefit of significant contributions from practitioners through its public consultation, there is little doubt that the new Rules go a long way into addressing topical and important issues in the arbitral process. These rules contain important updates to the existing provisions, whilst also introducing innovative features for users. For example, the introduction of coordinated proceedings is an important development, which will facilitate the coordinated and therefore effective resolution of disputes in multi-party, multi-contract disputes, where different arbitral tribunals are constituted pursuant to different instruments. Likewise, the recognition of and provision for the modern day stakeholders such as third party funders and tribunal secretaries is a welcome addition. With Singapore being such an important global arbitration hub, and with SIAC a pre-eminent arbitral institution in Singapore, Asia and worldwide, the adoption of these new Rules will offer users the assurance that they are signing up to a modern, fit-for-purpose offering that reflects learnings on the back of a diverse and dense SIAC caseload. Practice will now show how the new Rules will serve to effectively enhance fairness of the proceedings, efficiency in the conduct of the arbitration proportionate to the amount and complexity of issues in dispute, and enforceability of awards.
