The proposal focuses on cross-institution cooperation where an application is filed to consolidate multiple international arbitration proceedings.
On December 19, 2017, the Singapore International Arbitration Centre (SIAC) proposed a protocol for leading arbitral institutions to consider adopting and incorporating into their institutional arbitration rules. The proposed protocol would be applicable in circumstances where an application has been filed to consolidate multiple international arbitration proceedings involving two or more arbitral institutions.
Current Consolidation Framework
At present, the existing consolidation rules of most leading arbitral institutions (such as the SIAC, International Chamber of Commerce (ICC), Hong Kong International Arbitration Centre (HKIAC), London Court of International Arbitration (LCIA), and China International Economic and Trade Arbitration Commission (CIETEC)) typically allow for the consolidation of multiple arbitral proceedings if all claims are made under the same arbitration agreement. In circumstances where the claims involve different arbitration agreements, the arbitration agreements must be “compatible” and incorporate the same institutional arbitral rules.
As such, an SIAC arbitration may only be consolidated with other SIAC arbitrations but not with HKIAC or LCIA arbitrations. Similarly, an LCIA arbitration may only be consolidated with other LCIA arbitrations but not with SIAC or HKIAC arbitrations.
The SIAC proposes a consolidation protocol to address matters relating to the consideration of consolidated applications and the administration of consolidated proceedings where two or more arbitral institutions are involved.
In terms of the consideration of consolidation applications, the consolidation protocol addresses certain key issues, which include
- the appropriate decisionmaker to determine the consolidation applications,
- the timing of consolidation applications and status of existing tribunal appointments,
- the applicable standards for consolidation, and
- whether reasoned decisions should be provided.
Following consolidation of proceedings, the arbitration will be administered by one arbitral institution applying its own rules. The proposed framework suggests various objective criteria to determine the appropriate institution to administer the consolidated arbitration proceedings, which include
- the arbitral institution with the larger number of proceedings in the consolidation application,
- the arbitral institution with the higher aggregate value of disputes,
- the arbitral institution incorporated in the arbitration agreement of the proceedings that commenced first,
- the subject matter of the dispute, and
- the nationality and domicile of the parties.
The proposal also suggests a revision of the current arbitral rules of participating arbitral institutions to adopt and include the agreed consolidation protocol. Parties that incorporate the revised institutional arbitration rules in their arbitration agreement would be deemed to have consented to the application of the agreed consolidated protocol.
The SIAC has invited the public to comment on its proposal by January 31, 2018. A copy of the proposal is enclosed in the memorandum issued by the SIAC.