Establishment of the Court of Arbitration of SIAC

The most noteworthy change made under the 2013 SIAC Rules, and the one inspiring the development of new rules, is a new governance structure. The Board of Directors will no longer have functions under the rules, and will instead be solely responsible for corporate and business development functions.

The Court of Arbitration of SIAC, as it will be known, will oversee the case administration work of the SIAC Secretariat, perform quasi-judicial functions (such as deciding challenges to arbitrators and objections to the prima facie jurisdiction of SIAC), and determine matters of arbitration policy. The President of the Court will perform the roles previously assigned under the old rules to the SIAC Chairman. The former Chairman of SIAC, Professor Michael Pryles, has been named as the first President of the Court. Mr Lucien Wong will chair the Board of Directors.

Unlike the International Court of Arbitration of the ICC, the Court will not be responsible for the scrutiny of awards (which will remain the responsibility of the Registrar), nor will it appoint arbitrators (which will be done by the President, in consultation with Court members) or fix the costs of an arbitration (which will continue to be done by the Registrar).

Rule changes

The 2013 SIAC Rules also introduce a number of important procedural changes, as described below. 

  • Investment treaty cases. The jurisdiction of SIAC has been extended expressly to cover disputes arising under an investment treaty or other instrument conferring jurisdiction upon SIAC. 
  • Tribunal powers. Consistent with the recent Singapore Court of Appeal decision in PT Prima International Development v. Kempinski Hotels SA [2012] SGCA 35, tribunals may now decide any issue expressly or impliedly raised in the parties’ submissions. 
  • Prima facie review of jurisdiction. The Registrar will now first determine whether an objection to the existence or validity of an arbitration agreement or the competence of SIAC to administer an arbitration should be referred to the Court (previously, a Committee of the Board of Directors). If the Registrar determines that the objection has sufficient merit to be considered by the Court, the Court will then determine if it is prima facie satisfied that a valid arbitration agreement under the SIAC Rules may exist. 
  • Advance on Costs. Separate advances on costs may be fixed for the claimant and respondent when a counter-claim is filed. 
  • Post-award interest. In line with recent amendments made to the Singapore International Arbitration Act allowing tribunals to grant post-award interest, the prohibition on post-award interest in the 2010 SIAC Rules has been removed. 
  • Publication of redacted awards. Consistent with SIAC’s recent practice, the new rules expressly provide that SIAC “may publish any award with the names of the parties and other identifying information redacted.” 
  • Decisions of the President, Court and Registrar. All decisions of the President, the Court and the Registrar are now binding upon the parties and the tribunal, and the parties agree to waive any right of appeal or review in respect of such decisions.

Retrospective amendments to the 2007 and 2010 SIAC Rules

The new rules make certain retrospective amendments to the 2007 and 2010 SIAC Rules. As the Chairman of the Board under the new structure will not necessarily be an arbitration specialist, ‘Chairman’ is redefined to mean ‘President’. Similarly, the term ‘Committee of the Board’ is redefined to mean ‘Court’.

There should be little difficulty applying the rule changes to any new arbitrations commenced under the 2007 or 2010 SIAC Rules (see Black & Veatch Singapore Pte Ltd v. Jurong Engineering Pte Ltd [2004] SGCA 30 and Car & Cars Pte Ltd v. Volkswagen AG et al [2009] SGCA 233).

As a matter of principle, changes to procedure can also apply to pending arbitrations. The English Court of Appeal once noted: “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done”: Republic of Costa Rica v. Erlanger 1874 C. 113 at 69 (Mellish LJ).

The application of that proposition in an arbitration context was considered in Rizhao Steel Holding Group Co Ltd v. Koolan Iron Dre Pty Ltd and Mount Gibson Mining Limited [2012] WASCA 50. The Commercial Arbitration Act of Western Australia was the lex arbitri at the time the arbitration began. During the course of the arbitration, however, the International Arbitration Amendment Act 2010 was introduced which, among other things, significantly reduced the grounds for challenging an award. The Court held that “it is to be presumed that the amended law does not apply so as to alter the contractual rights and obligations of the parties to agreements entered into before its commencement, at least where those rights have crystallised by the commencement of arbitral proceedings, in which the parties have vested rights and interests”. (Emphasis added.)

The changes made to the 2007 and 2010 SIAC Rules, however, are of a vastly different nature to those considered in the Rizhao Steel case. Indeed, changes to the titles of those performing functions under the 2007 and 2010 SIAC Rules could hardly be said to 'fundamentally alter' the procedure or lead to 'capricious results', which the Western Australian Court of Appeal feared would be the case if the entire arbitral regime applicable to an existing arbitration were to change.

Conclusion

SIAC’s new organisational structure reflects its success. The new Court will allow the SIAC Secretariat and President to call upon a broader range of arbitration expertise when performing their functions under the SIAC Rules. The new structure, combined with fine-tuning of the rules, will also ensure that users receive an improved service with greater flexibility, thereby reinforcing SIAC’s position as the most widely used institution for international arbitration in South East Asia and the fifth most popular globally.