The Singapore International Arbitration Centre has just released the fifth edition of its arbitration rules. The 2013 rules came into effect on 1 April and replace the 2010 version.
In many respects, the 2013 rules do not diverge from the earlier version, though there are significant updates. In particular, the revised rules provide for a new governance structure at SIAC and the creation of a new “Court of Arbitration” which will oversee the case administration and arbitral appointment functions of the old SIAC board of directors.
The establishment of the SIAC court seems, to an extent, motivated by necessity. With SIAC’s burgeoning case load, a division of decision- making and executive functions appears to be the most sensible way for the centre to operate. The fact that SIAC announced the imminent launch of the 2013 rules on the same day that it released its case figures for 2012 – which was yet another bumper year – amply highlights this point.
A summary of some of the more significant amendments is set out below:
The SIAC court
The main development in the rules is undoubtedly the creation of the SIAC court. With the latest amendments, the current SIAC board will effectively be divided into two branches. The first retains the title of SIAC board of directors and will oversee the corporate and business development functions of the centre. The SIAC court forms the second branch, which takes over the legal and technical functions of the old SIAC board.
The board is comprised of prominent lawyers and corporate leaders led by Lucien Wong, chairman and senior partner of Singapore law firm Allen and Gledhill. The court comprises 16 leading arbitration practitioners from around the world, including Bahrain, Belgium, China, France, India, Singapore and the UK, and is led by founder president Michael Pryles.
The present CEO and registrar of SIAC, Minn Naing Oo, will continue to have day-to-day oversight of SIAC’s operations.
The main function of the SIAC court would appear to be overseeing the administration of SIAC arbitrations. As stated by SIAC in its press release dated 1 April, the functions of the court include the appointment of arbitrators, the determination of challenges to arbitrators and case management. To this extent, parallels may be drawn to its ICC counterpart, the ICC International Court of Arbitration.
A practice note released by SIAC on 31 April suggests that the SIAC court’s role is a supervisory one, meaning the appointment of its members to tribunals will only be accepted in limited, specific circumstances.
Paragraph 7 of the practice note specifies that the president of SIAC may only appoint a member of the court or SIAC director as arbitrator if they are party appointed, are jointly appointed by the coarbitrators, or need to be appointed because of “exceptional circumstances”, for instance as an emergency arbitrator.
The catch-all ground allowing the president discretion to appoint a SIAC director where it appears “otherwise desirable and appropriate to do so”, which was present in the previous practice note, released in July 2010, has been deleted. In future, it is clear that the appointment of court members will be the exception.
Decisions of the president, SIAC court and registrar are binding on parties and tribunal
Save for the power of the tribunal to determine its own jurisdiction, rule 36.1 of the amended rules provides that the decisions of the president, the SIAC court and the registrar on all matters relating to an SIAC arbitration will be conclusive and binding upon the parties and the tribunal.
Reasons for their decisions need not be provided. In addition, rule 36.2 provides that parties shall be taken to have waived any right of appeal or review to any state court or judicial authority in respect of any decisions of the president, SIAC court or registrar.
The practical effect of rule 36.1 is that decisions in relation to the administration of SIAC arbitrations are likely to be final and binding. This is a development that will lead to greater certainty in the conduct of SIAC arbitrations and is likely to increase user confidence in SIAC.
SIAC embraces investment treaty arbitrations
The new rule 3.1(d), which sets out the requirements for a valid notice of arbitration, specifically recognises that disputes arising out of an instrument “other than a contract”may be referred to SIAC arbitration, with investment treaty disputes given as an example. Obviously, disputes arising out of contracts will continue to be referred to the centre.
Thus far, SIAC has built its reputation as an institution of choice for resolving private commercial disputes. Its move towards embracing treaty arbitration as well is an exciting development, and evidence of SIAC’s ambition and growing confidence as an international arbitration centre of genuine calibre.
More powers for the registrar
The 2013 rules provide the registrar with a greater degree of flexibility to oversee the conduct of SIAC arbitrations. For example, the new rule 2.5 allows the registrar to extend or shorten any timelines prescribed under the 2013 rules.
Rule 3.3 also allows the registrar to deem that an arbitration has commenced, even when the notice of arbitration has not fully complied with the criteria listed in rule 3.1, so long as there has been ‘substantial compliance’.
Other provisions dealing with the registrar’s powers can be found at rules 5.1, 5.2, 9.1 and 25.1 (see below).
Incorporation of the rule in Kempinski
A major development in the 2013 rules is the inclusion of the new rule 24(n).
Those familiar with arbitration in Singapore will undoubtedly be aware of the recent Singapore Court of Appeal decision in PT Prima International Development v Kempinsk i Hotels SA and other appeals.The new rule 24(n) essentially codifies the key finding in Kempinsk i, stating that the tribunal may decide, where appropriate, any issue not expressly or impliedly raised in parties’ submissions filed under rule 17, provided that the issue has been brought to the notice of the other party, who has been given adequate opportunity to respond.
Challenges to jurisdiction before the constitution of the tribunal
Under rule 25.1, any dispute as to the existence or validity of the arbitration agreement or as to the competence of SIAC to administer the arbitration before the tribunal is constituted may be referred by the registrar to the SIAC court.
Nevertheless, rule 25.1 defers to the principle of Kompetenz-Kompetenz by specifying that “(a)ny decision by the registrar or the court is without prejudice to the power of the tribunal to rule on its own jurisdiction.”
Rule 28.7 brings the SIAC rules in line with the amended section 20(1) of Singapore’s International Arbitration Act, insofar as tribunals are no longer restricted to awarding interest in respect of any period “ending not later than the date of the award”.
Accordingly, tribunals may now award interest in respect of any period it deems to be appropriate.
Publication of redacted awards
The new rule 28.10 expressly allows SIAC to publish redacted awards. This is a bold and progressive development that many other prominent international arbitration centres have yet to implement, and brings SIAC in line with the ICC regime.
To this end, SIAC, in collaboration with legal publisher LexisNexis, has recently published a volume entitled Singapore Arbitral Awards 2012, described as the “most comprehensive set of redacted arbitral awards decided in Singapore”.
It is expected that enhanced transparency in the decision-making process will enrich the arbitration jurisprudence of SIAC and provide invaluable assistance to counsel and parties. On the flipside, parties may be put off by the mere fact of having their disputes made public, and see this as an erosion of the fundamental tenet of confidentiality in arbitral proceedings.
This does not appear to have stifled the popularity of the ICC, however. We therefore believe it unlikely to negatively impact the SIAC as a preferred arbitration institution.
Costs of the arbitration
Rule 33 of the 2010 rules, which grants the tribunal authority to award the legal or other costs of one party, has been amended and no longer excludes the costs of the arbitration. Parties may therefore be held liable to pay the fees of the institution and the arbitrators, over and above legal costs. This provides tribunals with greater latitude and control over the conduct of an arbitration.
Too many, too often?
The 2013 rules are SIAC’s third set of arbitration rules in a relatively short time of six years. In contrast, the ICC International Court of Arbitration releases rules sparingly. Its 1998 rules were in use for 14 years, finally being updated in 2012.
The comparatively quick turnover of SIAC’s rules may lead to unforeseen issues. For example, an arbitration clause might provide for “arbitration under the prevailing rules of the SIAC in force”. What rules would apply if the contract were concluded while the 2007 rules were in force, the breach occurred while the 2010 rules were in force and the notice of arbitration was only issued after 1 April this year?
Rule 1.2 of the 2013 rules (which mirrors rule 1.2 of the 2010 rules) provides some clarity by stating that “unless the parties have agreed otherwise, [the 2013 rules] shall apply to any arbitration which is commenced on or after [1 April 2013].” But this may still not be determinative. When the parties concluded the contract, did they “agree” to a SIAC arbitration applying the rules in force on the day that the contract was concluded? Or to apply the rules in force when the arbitration is commenced?
While such issues may arise under other institutional rules (and are usually the product of imprecise drafting), the frequency with which the SIAC rules have been updated may make them more common and erode a measure of the certainty that is otherwise a cornerstone of SIAC arbitration.
But this is arguably a small price to pay in the name of progress.
Viewed as a whole, the new rules are likely to increase confidence in the centre as an international arbitration provider, while the establishment of the SIAC court and the embracing of treaty arbitration suggests a coming of age for SIAC.
Developments on these fronts will be keenly awaited.
PT Prima International Development v Kempinsk i Hotels SA and other appeals  4 SLR 98
This article was first published in the Global Arbitration Review on 4 April 2013.