The SIAC Rules 2025 introduce several new procedures and amendments aimed at achieving fair and efficient arbitral proceedings that result in enforceable awards. New features include a Streamlined Procedure (to offer a faster and lower cost alternative to the Expedited Procedure), clarifications of the tribunal’s powers to make a final determination on preliminary issues and a new mechanism for coordinating the resolution of multiple arbitrations. An overview of the SIAC Rules 2025 is available here.
Perhaps the most eye-catching and potentially controversial feature of the SIAC Rules 2025 is the expansion of SIAC’s Emergency Arbitration (“EA”) mechanism to include a new preliminary order application procedure (“PO Procedure”). This will allow a party, prior to the constitution of the tribunal, to make an ex parte application to an Emergency Arbitrator for a preliminary order directing other parties to the arbitration agreement to not frustrate the purpose of the interim relief being sought in those EA proceedings (“Preliminary Order”). Only after the Emergency Arbitrator has made its decision on the Preliminary Order will the other parties to the arbitration be notified of the existence of the EA proceedings.
In summary, Preliminary Orders are binding orders issued by an Emergency Arbitrator ex parte to temporarily preserve the status quo until such time as it decides whether to grant the interim relief requested in the EA proceedings. They are intended to reduce the risk of the purpose of a party’s EA application being frustrated in the period of approximately two weeks between the commencement of the EA and the Emergency Arbitrator’s decision (“Emergency Decision”).
This article compares the SIAC Rules 2025’s ambitious and innovative new EA mechanism to the EA mechanism in the previous edition of the SIAC Rules (“SIAC Rules 2016”) before considering how it may be received by arbitration users.
1. SIAC Rules 2016: A second-generation EA mechanism
The SIAC Rules 2016’s EA mechanism is set out in Schedule 1 of those Rules. That mechanism, which has worked well in practice, enables parties to obtain emergency interim relief from an Emergency Arbitrator in the period before the tribunal’s constitution. It can, depending on the circumstances, provide a useful alternative to obtaining interim relief from national courts.
Upon receiving a party’s application (which must be filed with or after the Notice of Arbitration), the SIAC President will aim to appoint an Emergency Arbitrator within 24 hours.
The Emergency Arbitrator then has 14 days to receive submissions from the parties and issue the Emergency Decision. In these respects, the SIAC Rules 2016’s EA mechanism is similar to ‘first-generation’ EA mechanisms in other institutional arbitration rules of that time.
However, the SIAC Rules 2016’s EA mechanism distinguished itself from other such rules, and thereby established itself as a true ‘second-generation’ EA mechanism, by expressly confirming that Emergency Arbitrators were empowered to grant relief not only in their Emergency Decision (i.e., at the end of the EA proceedings) but also in the intervening period between their appointment and their issuance of the Emergency Decision. Specifically, paragraph 8 of Schedule 1 to the SIAC Rules 2016 provided that “[t]he Emergency Arbitrator shall have the power to order or award any interim relief that he deems necessary, including preliminary orders that may be made pending any hearing, telephone or video conference or written submissions by the parties” (e.g., to temporarily preserve the status quo between the parties during the EA proceedings). This welcome clarification gave Emergency Arbitrators’ confidence that they could grant relief immediately upon, or shortly after, their appointment.
Several other arbitral institutions have recently updated their rules to include similar ‘second-generation’ EA mechanisms (see HKIAC’s Rules 2024 and P.R.I.M.E Finance Arbitration Rules 2022).
2. SIAC Rules 2025: A third-generation EA mechanism
The SIAC Rules 2025 retain the key features of the EA mechanism in the SIAC Rules 2016 described above, subject to two important updates.
First, a party can file an EA Application, as well as an accompanying Preliminary Order application (“PO Application”), up to seven days before filing its Notice of Arbitration (see Schedule 1, paragraphs 2(a) and 6). In contrast, the SIAC Rules 2016 did not permit a party to file an EA Application before filing its Notice of Arbitration. This update is welcome because it may not always be possible for a party to prepare and file a Notice of Arbitration when it requires urgent relief. It furthermore brings the SIAC Rules 2025 in line with EA mechanisms in other institutional rules, including the HKIAC Rules 2024 and ICC Rules 2021.
Second, as mentioned above, the EA mechanism includes a detailed PO Procedure whereby a party can request that the SIAC President appoint an Emergency Arbitrator to grant a Preliminary Order (i.e., “a preliminary order directing a party not to frustrate the purpose of the emergency interim” relief requested by the applicant in the EA proceedings) (see Schedule 1, paragraphs 25-34). The Emergency Arbitrator’s decision on the PO Application is made ex parte (i.e., without hearing from other parties to the arbitration who are not notified that EA proceedings have commenced).
In summary, the PO Procedure provides that:
- A party can, without notifying the other parties, file an EA Application requesting interim measures together with a PO Application.
- If the SIAC President accepts the PO Application, the President shall seek to appoint an Emergency Arbitrator within 24 hours.
- The Emergency Arbitrator shall determine the PO Application within 24 hours after its appointment and deliver its order to the SIAC Secretariat.
- The SIAC Secretariat shall transmit the Emergency Arbitrator’s order to all parties to the arbitration; and
- Within 12 hours of this transmission, the applicant shall deliver to all the parties a copy of all the case papers that have been filed, the Emergency Arbitrator’s order, and all communications between the applicant and the Emergency Arbitrator.
The EA proceedings will then continue as normal, with the Emergency Arbitrator having the power to issue an order or award adopting or modifying the Preliminary Order during those proceedings.
SIAC has incorporated several sensible safeguards into the PO Procedure, including that:
- Emergency Arbitrators must provide the parties against whom a Preliminary Order has been issued with an opportunity to present their case at the earliest practicable time.
- Emergency Arbitrators must promptly decide any objection to a Preliminary Order; and
- Preliminary Orders expire 14 days after issuance.
Notably, the SIAC Rules 2025 do not incorporate an equivalent process for parties to request ex parte interim relief from tribunals. This would contravene Rule 25.3: “After the constitution of the Tribunal, a party or its representative shall not engage in any ex parte communications relating to the arbitration with any arbitrator”. This asymmetry in the powers of Emergency Arbitrators and tribunals may reflect concerns that ex parte processes during the main arbitration proceedings, as opposed to EA proceedings, could threaten the enforceability of final awards.
This asymmetry may similarly reflect the fact that Singapore’s national arbitration law, unlike Hong Kong, has not given effect to the underappreciated, and infrequently used, preliminary orders mechanism in the 2006 version of the UNCITRAL Model Law. This mechanism gave tribunals the power to issue preliminary orders ex parte in tightly defined circumstances.
3. Commentary: A revolutionary step?
Arbitration users may be surprised, at least initially, by the new PO Procedure. It was not included in SIAC’s Consultation Draft of the rules. In addition, very few EA mechanisms in other institutional rules permit ex parte relief to date (with one exception being AMINZ’s EA Protocol). This scarcity may reflect due process concerns about denying a party its right to be heard, even if only temporarily. In some quarters, SIAC’s new PO Procedure may even be seen as revolutionary.
But most arbitration users should embrace the PO Procedure. It represents a bold attempt by SIAC to solve a genuine problem: how to ensure that the purpose for which a party commenced EA proceedings is not frustrated in the period before the Emergency Decision is issued? While this issue was partially resolved in the SIAC Rules 2016’s ‘second-generation’ EA mechanism (via the express confirmation of Emergency Arbitrator’s powers during the proceedings, as described above), the ex parte PO Procedure represents an evolutionary step to tackle this challenge head-on.
The PO Procedure can also be said to advance parties’ choice to resolve their disputes by arbitration rather than before the courts. Parties who have elected to enter into an arbitration agreement may prefer to obtain ex parte relief within the arbitral process for the same reasons they have chosen arbitration over litigation in the first place, including confidentiality, expertise, neutrality and reliability. Ex parte relief may also otherwise be unavailable from the national courts where a counterparty or its assets are located overseas.
To reduce the potential for abuse of Preliminary Orders, SIAC has also incorporated safeguards into the PO Procedure (as described above). Moreover, parties who are uncomfortable with the idea of a PO Procedure are free to agree in their arbitration agreement to exclude it.
However, it is important to address the elephant in the room: will Preliminary Orders be useful in practice? The short answer is that they cannot offer the same level of protection as ex parte relief granted by national courts. In particular, they will only bind the parties to the arbitration agreement and not third parties. This may limit their effectiveness in typical situations where ex parte relief is required (e.g., freezing orders over assets held by a third-party bank). Of course, if a national court was prepared to enforce a Preliminary Order (and extend its application to third parties), this limitation would fall away but this would represent an additional step in a process were speed is critical. It will be interesting to see what approach national courts take to the enforcement of Preliminary Orders.
In any case, irrespective of enforcement, Preliminary Orders should have some utility. Non-compliance with them could attract negative consequences from the Emergency Arbitrator or the subsequently constituted arbitral tribunal, including with regard to costs, adverse inferences and damages. These factors may encourage voluntary compliance, as they appear to have done in the context of decisions issued by Emergency Arbitrators, where voluntary compliance is the norm.
4. Conclusion
Singapore, as a world-class seat of arbitration, already offers arbitrating parties a sophisticated and comprehensive regime for obtaining interim relief. Parties can obtain interim relief from Emergency Arbitrators, tribunals, and the Singapore courts. SIAC’s bold and innovative decision to adopt a ‘third generation’ EA mechanism, incorporating a new ex parte PO Procedure in its SIAC Rules 2025, complements this regime.
For further information on resolving disputes in Asia and internationally, including how to obtain interim measures from Emergency Arbitrators, arbitral tribunals, and national courts, please contact our international arbitration team.
