Summary and implications
The Singapore International Arbitration Centre (SIAC) is gaining profile as a forum for the effective resolution of disputes in the construction and engineering field. SIAC have recently introduced a new (4th) edition of their rules (the Rules) to introduce certain new features.
The overarching rationale for the Rules is to:
- Increase the efficiency of the arbitral process; and
- Give parties, and the arbitral tribunal, increased flexibility during the arbitral process.
Whilst the Rules have introduced a number of minor amendments to the 3rd Edition of the SIAC Rules, the stand-out changes concern the availability of arbitrators, the expedited procedure, and the interim and emergency relief procedure. These changes should be welcomed by clients and practitioners alike because, separately and together, they provide users of the Rules with increased flexibility and efficiency.
Availability of arbitrators
One of the major issues that is frequently raised by users of arbitration is the non-availability of arbitrators. There are many examples of an arbitral institution selecting an arbitrator to an arbitral tribunal who is simply unable to devote sufficient attention to the issues involved from the outset of the arbitration, and in particular to properly case manage the arbitrator. The ICC have sought to address this concern by introducing a “Statement of Acceptance, Availability and Independence” which obliges arbitrators to confirm that they have the necessary time to conduct the proceedings “… diligently, efficiently, and in accordance with the time limits in the Rules”.
The SIAC have followed suit.
Article 1.1 of the SIAC Code of Practice which sits alongside the Rules, states that “A prospective arbitrator shall accept an appointment only if …[s]he is able to give to the arbitration the time and attention which the parties are reasonably entitled to expect”. Article 1.1 is complemented by Rule 10.3 which states that “The Chairman shall also consider whether the arbitrator has sufficient availability to determine the case in a prompt and efficient manner appropriate to the nature of the arbitration”.
It is hoped that these two new provisions will ensure that when arbitrators are selected then they have the necessary availability from the very outset of the arbitral proceedings.
Increasingly, arbitral institutions are amending their rules in order to cater for a situation where the nature of the dispute is such that it is unnecessary for the matters to be resolved in a prolonged – and thereby expensive – process. The SIAC have introduced, at Rule 5, an expedited procedure which given that certain criteria are met, allows a dispute to be resolved by arbitration within six months of the constitution of the tribunal.
The criterion that needs to be met is set out in Rules 5.1 and 5.2, and are:
- The amount in dispute does not exceed S$5m (which is equivalent to circa US$3m); or
- The parties agree to adopt the expedited procedure; or
- In the case of exceptional urgency.
If any of the above criteria is met then provided the chairman is satisfied that the expedited procedure should be used then the arbitration will be resolved within six months.
Interim and emergency relief
The final key feature of the Rules is the interim and emergency relief procedure that has been introduced by Rule 26. Rule 26 provides that either party to an arbitral agreement can apply to the SIAC for a separate emergency arbitrator prior to the constitution of the tribunal. Invariably this procedure – which, we understand, has been used at least once since the Rules came into force – is used by a party in circumstances where the other party is removing assets from a jurisdiction and the like; there needs to be a pressing need for emergency relief. Th e procedure for the emergency relief is set out at Schedule 1 of the Rules and is:
- The Chairman determines whether SIAC accepts the application, and if so, the emergency arbitrator will be appointed within one business day;
- Any challenge to an emergency arbitrator must be made within one business day of the appointment;
- The emergency arbitrator is obliged to as soon as possible, but in any event, within two business days, establish a schedule for consideration of the application; and
- The emergency arbitrator has the power to order any interim relief that he deems necessary.