Starting an arbitration proceeding
What is needed to commence arbitration?
Unless otherwise agreed by the parties, proceedings are considered to have commenced on the date that the respondent receives the claimant’s request that the dispute be referred to arbitration (Article 21 of the UNCITRAL Model Law).
For arbitrations conducted under the Singapore International Arbitration Centre (SIAC) Rules, in order to commence arbitration, the claimant must file its notice of arbitration with the SIAC registrar, together with the prescribed fee. The notice sets out the party’s case, which may be supplemented by a later statement of claim. Under the SIAC Rules, the respondent must send the claimant a response to the notice of arbitration within 14 days of receipt.
Are there any limitation periods for the commencement of arbitration?
The Singapore Limitation Act (Cap. 163) applies to arbitration proceedings in the same way as Singapore court proceedings (Section 8A of the International Arbitration Act (Cap 143A). Therefore, for cases founded on contract or tort, the statutory limitation period for the commencement of claims is six years.
The Singapore Foreign Limitation Periods Act 2012 provides that questions of limitation are substantive (as opposed to procedural) issues and therefore determined by reference to the law of the contract, not the law of the seat. Therefore, in a Singapore-seat arbitration concerning a dispute to be determined by a foreign law, any question arising as to limitation periods, will be determined by application of the foreign law.
Are there any procedural rules that arbitrators must follow?
The Singapore International Arbitration Act, which incorporates the UNCITRAL Model Law as modified, governs all international arbitrations which are seated in Singapore. However, parties are free to adopt any rules they wish to govern the proceedings, failing which the tribunal may conduct the arbitration in such manner as it considers appropriate (Article 19 of the Model Law).
Are dissenting opinions permitted under the law of your jurisdiction?
Yes. There is no prohibition under Singapore law which prevents an arbitrator from giving a dissenting opinion
Can local courts intervene in proceedings?
The local courts have supervisory powers which they will only exercise to support the arbitration process in specific instances. For example, a court can:
- decide applications to remove an arbitrator for failure or impossibility to act (Article 14(1) of the UNCITRAL Model Law);
- review a tribunal’s decision made in response to a challenge to an arbitrator’s appointment or a challenge to the tribunal’s jurisdiction (Article 13(3) of the Model Law and Section 10(3) of the International Arbitration Act respectively); and
- grant interim relief if the tribunal is unable to do so.
Can the local courts assist in choosing arbitrators?
Section 9A of the International Arbitration Act provides that default appointment of arbitrators will be made by the ‘appointing authority’. Pursuant to Sections 8(2) and 8(3) of the International Arbitration Act, either the president of the Singapore International Arbitration Centre Court or any other individual appointed by the Chief Justice shall play this role.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can they compel parties to arbitrate? Can they issue subpoenas to third parties?
If a party chooses not to participate in the arbitration, Article 25 of the UNCITRAL Model Law gives the tribunal the power to continue the proceedings regardless and to issue an award on the evidence before it.
The Singapore High Court has the power to order third parties to testify or produce documents pursuant to a subpoena under Section 13 of the International Arbitration Act.
In what instances can third parties be bound by an arbitration agreement or award?
A non-contracting third-party beneficiary may be treated for the purposes of the International Arbitration Act as a party to the arbitration agreement where there is dispute between itself and the party against which it is seeking to enforce a substantive term of the contract (Section 9 of the Contracts (Rights of Third Parties) Act (Cap 53B)).
It is a well-established principle of law in Singapore that entities cannot be compelled to arbitrate pursuant to an arbitration agreement to which they are not parties. There are however certain situations in which non-signatories may be considered a party to the arbitration agreement, including:
- by incorporation by reference of the arbitration agreement;
- by an assumption of rights or liabilities to a contract with an arbitration clause (eg. assignment or novation);
- where the arbitration agreement is entered into by an agent;
- piercing of the corporate veil on the basis of the alter ego principle; and
- where the claims alleged by the non-signatory against a party to a contract containing the arbitration clause are so intertwined with that contract that the doctrine of equitable estoppel applies to prevent the party to the contract from denying the non-signatories a right to participate in the arbitration.
Non-signatories may also be joined as parties to the arbitration if all the parties have expressly or impliedly consented to the joinder.
Default language and seat Unless agreed by the parties, what is the default language and location for arbitrations?
Absent agreement between the parties, the seat of arbitration shall be determined by the tribunal having regard to the circumstances of the case, including the convenience of the parties (Article 20 of the UNCITRAL Model Law). The tribunal is also empowered to determine the language or languages to be used in the proceedings (Article 22 of the Model Law). This determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the tribunal. The tribunal may also order that any documentary evidence be accompanied by a translation into the language or languages agreed upon the parties or determined by the tribunal.
For arbitrations conducted under the Singapore International Arbitration Centre (SIAC) Rules, in the absence of an agreement between the parties, the seat of the arbitration will be Singapore, unless the tribunal determines, having regard to all the circumstances of the case, that another seat is more appropriate (Rule 18.1). The tribunal in a SIAC arbitration also has the power to determine the language to be used in the proceedings, in the absence of an agreement between the parties (Rule 19.1).
Hearings in a Singapore-seat arbitration can be held in whatever country and venue the parties agree, failing which the tribunal will decide.
How is evidence obtained by the tribunal?
Evidence is presented to the tribunal by the parties as part of the adversarial process, normally by way of exhibits to pleadings and/or witness statements. Unless the parties have agreed otherwise, a tribunal does have the power, under Section 12(3) of the International Arbitration Act, to adopt inquisitorial processes, though this would in practice be very unusual.
What kinds of evidence are acceptable?
There are no rules of evidence which automatically apply to an international arbitration in Singapore. Parties may choose to adopt specific rules of evidence; commonly it is agreed that the International Bar Association Rules on the Taking of Evidence will be adopted as a guide. Absent agreement between the parties, by virtue of Article 19 of the UNCITRAL Model Law, a tribunal will have the power to determine the admissibility, relevance, materiality and weight of any evidence submitted in arbitration proceedings. The tribunal has relatively broad and unfettered discretion in this regard.
Is confidentiality ensured?
There is an implied duty of confidentiality in Singapore arbitration proceedings, subject to the normal exceptions recognised in common law.
For arbitrations conducted under the Singapore International Arbitration Centre (SIAC) Rules, parties and the tribunal are expressly required to treat all matters relating to the arbitration proceedings and the award as confidential (Rule 35.1), subject to some limited rights of disclosure (see Rule 35.2).
Where an application is made to the Singapore High court in support of arbitration, either party can apply to the court for an order that the application be heard in camera (pursuant to Section 22 of the International Arbitration Act), and that the court’s decision be reported on an anonymous basis (Section 23(4) of the International Arbitration Act). Otherwise, the arbitration-related court proceedings will be heard in open court.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Only if the parties to the arbitration proceedings consent or a court orders that such information be disclosed. If an award is registered as a judgment for enforcement purposes, the information will enter the public domain.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
There is currently no mandatory code of ethics applicable to all practitioners in Singapore. Foreign law-qualified practitioners will be subject to the codes of ethics and/or professional standards of the jurisdictions in which they are qualified and Singapore-qualified counsel must act in accordance with the rules and standards of the Singapore Law Society. However, the Legal Profession (Amendment) Act 2014 which came into force in January 2015 will extend the existing disciplinary regime applicable to Singapore-qualified lawyers, also to foreign- qualified lawyers.
The Singapore International Arbitration Centre (SIAC) Code of Ethics for an Arbitrator applies to all arbitrators presiding in SIAC arbitrations.