On 22 August 2023, the Singapore International Arbitration Centre (SIAC) announced the release of the public consultation period for the Draft 7th Edition of the SIAC Rules (Draft Rules) which is set to conclude on 21 November 2o23. The Draft Rules propose significant reforms to the current SIAC Rules (2016), which since their introduction, have governed upwards of 3,000 international cases involving parties from 106 jurisdictions across a range of seats and governing laws. As put by SIAC, the Draft Rules aim to enhance the user experience and raise the bar on efficiency, expedition and cost effectiveness. Some of the key practical changes include:
- Increasing the existing claims cap on the Expedited Procedure from SGD$6 million to SGD 10 million thereby increasing the range of users and types of disputes that may be able to utilise the benefits of time and cost associated with the Expedited Procedure.
- The Introduction of a new Streamlined Procedure for claims not exceeding SGD$1 million which will allow eligible users to agree to have their claims heard by a sole arbitrator with a final award issued within a 3 month period from the date of the constitution of the tribunal.
- The Introduction of Preliminary Determination, which will allow parties to apply for a Preliminary Determination of issues to facilitate cost and time saving benefits. There will be a 45-day deadline on the tribunal to provide a decision from the date of filing of an application for preliminary determination.
- The introduction of a SIAC Gateway, which is a newly developed electronic case and document management system hosted by SIAC that mirrors court practices across other major jurisdictions and allow case documents to be centralised for clarity and accessibility.
Overall, the reforms represent a major step forward in enhancing user experience, particularly in terms of embracing the use of online platforms and facilitating electronic case management. By way of comparison, we have created the below table which sets out the changes proposed in the Draft Rules, against the current SIAC Rules (2016), and various rules currently in place across other major arbitral institutions.
With the public consultation period on the Draft Rules closing this month on 21 November 2023, supporters, users, and stakeholders are strongly encouraged to submit feedback on the Draft Rules. Comments can be submitted via email to email@example.com and firstname.lastname@example.org, or through the SIAC website directly.
|PROPOSED DRAFT SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC) RULES|
(Draft 7th Edition)
|CURRENT SIAC RULES (2016)||INTERNATIONAL CHAMBER OF COMMERCE (ICC) RULES (2021)||LONDON COURT OF INTERNATIONAL ARBITRATION (LCIA) RULES (2020)||HONG KONG INTERNATIONAL ARBITRATION CENTRE (HKIAC) RULES (2018)||AUSTRALIAN CENTRE FOR INTERNATIONAL COMMERCIAL ARBITRATION (ACICA) RULES (2021)|
|Introduction of the Streamlined ProcedureRule 13 and Sch 2|
The Streamlined Procedure is available where:the parties have agreed to its application;the claim does not exceed 1 million SGD; or“the circumstances of the case warrant the application of the Streamlined Procedure”.According to the procedures stipulated in sch 2, a sole arbitrator will be nominated either by the parties or the SIAC President within three days and a final award will be rendered within three months from the date of the constitution of the tribunal.
|Broadened the availability of the Expedited Procedure|
Rule 14The Expedited Procedure is available where:the parties have agreed to its application;the claim does not exceed 10 million SGD; orthe circumstances of the case warrant the application of the Expedited Procedure.A sole arbitrator will be nominated either by the parties or the SIAC President and a final award will be rendered within six months from the date of the constitution of the tribunal.
|Rule 5The Expedited Procedure is available where:the parties have agreed to its application;the claim does not exceed 6 million SGD; orthe case is of “exceptional urgency”.A sole arbitrator will be nominated either by the parties or the SIAC President and a final award will be rendered within six months from the date of the constitution of the tribunal.||Article 30The Expedited Procedure is available where:the claim does not exceed 2 million USD* (approx. 2.7 million SGD);or 3 million USD** (approx. 4.1 million SGD); orthe parties have agreed to its application.A sole arbitrator will be nominated either by the parties or the ICC Court and a final award will be rendered within six months from the date of the constitution of the tribunal.*This amount applies if the arbitration agreement was concluded on or after 1 March 2017, and before 1 January 2021.**This amount applies if the arbitration agreement was concluded on or after 1 January 2021.||Articles 9AThe Expedited Procedure is available “in the case of exceptional urgency”.||Article 42 (see also Expedited HKIAC Arbitration)The Expedited Procedure is available where:the claim does not exceed 25 million HKD (approx. 4.4 million SGD);the parties have agreed to its application; or“in cases of exceptional urgency”.A sole arbitrator will be nominated, and a final award will be rendered within six months from the date of the constitution of the tribunal.||Article 8Prior to the constitution of the Arbitral Tribunal, a party may apply to ACICA in writing for the arbitration proceedings to be conducted in accordance with the ACICA Expedited Rules where:the amount in dispute determined in accordance with Article 2.2 of Appendix A of these Rules is less than 5 million AUD (approx. 4.4 million SGD);the parties so agree; orit is a case of exceptional urgency.ACICA will consider the views of both parties in determining whether to grant such an application. Unless the parties agree otherwise, Articles 8.1 and 8.2 shall not apply to any consolidated proceedings under Article 16 or 18.|
|Introduction of the Coordinated Arbitration Procedures|
Rule 17Where 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, the tribunal may determine that the coordinated arbitrations be:conducted concurrently or sequentially;heard together and any procedural aspects be aligned; orsuspended pending a determination in any of the other coordinated arbitrations.
|n/a||n/a||n/a||Article 28.1(c)At the request of a party and after consulting with the parties and the arbitrators, the HKIAC has the power to consolidate two or more arbitrations pending under the HKIAC rules where there is:a common question of law or fact;the rights to relief claimed are related to the same transaction; ora series of related transaction sand the arbitration agreements are compatible.||Article 16.1Upon request by a party, and after consulting with the parties and any confirmed or appointed arbitrators, ACICA may consolidate two or more arbitrations pending under these Rules into a single arbitration, if:the parties have agreed to the consolidation;all the claims in the arbitrations are made under the same arbitration agreement; orthe claims in the arbitrations are made under more than one arbitration agreement, a common question of law or fact arises in both or all of the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, and ACICA finds the arbitration agreements to be compatible.|
|Introduction of new arbitrator appointment rulesRule 19Rule 19.5 requires the SIAC President to take into account principles of diversity and inclusion when appointing arbitrators.Rule 19.7 requires the SIAC President to appoint a sole or presiding arbitrator with different nationalities from those of the parties.|
Rule 19.8 provides that the SIAC President may use a list procedure to appoint arbitrators.Rule 19.11 provides that the SIAC President may “take any necessary measure” to constitute an independent and impartial tribunal if the appointment procedure agreed by the parties could lead to a risk of unequal treatment that may affect the enforceability of the award.
|n/aFor general rules on the number and appointment of arbitrators, see rule 9 of the SIAC Rules 2016.||Articles 12 and 13Article 12.9 provides that notwithstanding the appointment procedure agreed by the parties, in exceptional circumstances the ICC Court may appoint each member of the arbitral tribunal to avoid significant risk of unequal treatment and unfairness that may affect the validity of the award.Articles 13.5 provides that where the ICC is to appoint the sole arbitrator or presiding arbitrator, that arbitrator shall be of a nationality other than those of the parties.Article 13.6 provides that in investment treaty arbitrations, no arbitrator shall have the same nationality of any party to the arbitration.||Article 6Article 6.1 provides that a sole arbitrator or the presiding arbitrator shall not have the same nationality as any party unless the parties who are not of the same nationality as the arbitrator agrees in writing otherwise.Articles 6.2 and 6.3 provide additional guidance on determining a person’s nationality.||Article 11.2A sole or presiding arbitrator shall not have the same nationality as any party unless specifically agreed otherwise by all parties.||Article 12Article 12.3 provides that in making the appointment, ACICA shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.Article 12.4 provides that for the purposes of Articles 12.3, 13.2, 16.8, 17.12, 20.3, 21.1 and 22.4, ACICA, the Arbitral Tribunal and the parties may have regard to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration in the version current at the commencement of the arbitration.|
|Introduction of 2 additional grounds of challenge of arbitratorsRule 26.1There are four grounds of challenge of arbitrators:justifiable doubts as to the arbitrator’s impartiality and independence;the arbitrator does not possess any requisite qualification on which the parties have agreed;the arbitrator becomes de jure or de facto unable to perform their functions; orthe arbitrator fails to act or perform their functions in accordance with the Rules or within prescribed time limits.||Rule 14.1There are two grounds of challenge of arbitrators:circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality and independence; orthe arbitrator does not possess any requisite qualification on which the parties have agreed.||Article 14An arbitrator may be challenged on the grounds of lack of impartiality or independence, or otherwise.||Article 10.1There are three grounds of challenge of arbitrators:the arbitrator gives written notice to the LCIA Court of his/her intent to resign;the arbitrators falls seriously ill, refuses or becomes unable or unfit to act; orcircumstances exist that give rise to justifiable doubts as to that arbitrator’s impartiality or independence.||Article 11.6There are four grounds of challenge of arbitrators:circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence;the arbitrator does not possess any requisite qualifications agreed by the parties;the arbitrator becomes de jure or de facto unable to perform his/her functions; orfor other reasons fails to act without undue delay.||Article 21.1There are two grounds of challenge of arbitrators:circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence; orif the arbitrator does not possess any requisite qualification on which the parties have agreed.|
|Introduction of third-party funding rulesRule 38The parties must disclose the existence of a third-party funding agreement and the identity of the third-party funder.After the constitution of the tribunal, the parties must not enter into a third-party funding agreement that would give rise to a conflict of interest of an arbitrator.||n/aAlthough the SIAC Rules 2016 have not provided any rules on third-party funding, the SIAC has adopted Practice Note 01/17 (31 March 2017) to allow for third-party funding in international arbitration.||Article 11.7The parties must promptly inform the IC Secretariat, the arbitral tribunal and the other parties of the existence and identity of any third-party funder.||n/a||Article 44The parties must communicate a written notice to all parties, the arbitral tribunal, any emergency arbitrator and HKIAC of the existence of a funding agreement and the identity of the third-party funder.The notice must be communicated on or before the arbitration commences or if the funding agreement is made after the arbitration commences, as soon as practicable after the funding agreement is made.Any changes to the initial notice must be disclosed.||Article 54Parties are required to disclose third-party funding and are under a continuing obligation to disclose any changes to a third-party funding arrangement. The Tribunal has the power to order a party to disclose the existence and identity of a third-party funder at any time during the proceedings.|
|Introduction of Preliminary DeterminationRule 46The parties may apply for a preliminary determination of “any issue” where:the parties have agreed that the tribunal will determine the issue on a preliminary basis;the determination is likely to contribute to a saving of time and costs and a more efficient and expeditious resolution of the dispute; or“the circumstances of the case warrant the preliminary determination”.Upon approval of an application for a preliminary determination, the tribunal will make the relevant decision, ruling, order or award within 45 days from the filing date of the application.||n/a||n/a||n/a||n/a||n/a|
|Introduction of a presumption of publication of redacted awardsRule 60The parties are deemed to have agreed that SIAC may publish the award and any reasoned decision by the SIAC court, with the party names and other identifying information redacted.Either party may make a written objection to the Registrar within six months after the conclusion of the arbitration.||Rule 32.12SIAC may, with the consent of the parties and the tribunal, publish any award with the names of the parties and other identifying information redacted.||n/aAlthough the ICC Rules does not explicitly deal with the publication of awards, such matter is dealt with in its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (first published in 2019 and then updated in 2021). Section IV C of the Note provides that all ICC awards made as of 1 January 2019 may be published, subject to objection by either party and/or redactions proposed by the parties or ICC Secretariat.||Article 30.3The LCIA does not publish any award or any part of an award without the prior written consent of all parties and the Arbitral Tribunal.||Article 45.5HKIAC may publish any award only if:all references to the parties’ name and other identifying information are deleted; andno party objects to such publication within the time limit fixed for that purpose by HKIAC.||n/aThe ACICA does not expressly mention the publication of awards.|
|Implementation of SIAC’s new electronic case management system, SIAC GatewayRule 4The SIAC Registrar may direct that the parties upload all written communications to the SIAC Gateway.Any written communications shall be deemed to be received if they are:delivered to the contact details designed by the parties or;uploaded to the SIAC Gateway by direction of the Registrar.||n/a||n/a||n/a||n/a||Articles 4, 6 and 7The default position under the 2021 Rules provides for e-filing of a Notice of Arbitration and Answer to Notice of Arbitration by email or through ACICA’s online e-filing system. Notices may also be delivered electronically or by “any other appropriate means that provides a record of its delivery” which reflects evolving practices. The provision on delivery addresses for notices has been extended to include an address “according to the parties’ practice in prior dealings.”As a practical matter, ACICA encourages parties to contact the Secretariat prior to filing to address any questions in relation to filing and payment requirements.|
For further information, please contact:
Jonathon Ellis, Partner, Bird & Bird