A new dawn? SIAC consults on revised arbitration rules

The Singapore International Arbitration Centre (SIAC) announced recently a public consultation on the seventh edition of the SIAC Arbitration Rules (the Draft Rules)¹. As one of the world’s leading arbitral institutions, the publication of revised rules will be of significant interest to clients and practitioners.

Announcing the consultation, Kevin Nash (the SIAC Registrar)² explained the Draft Rules³ draw from SIAC’s experience of administering more than 3,000 international cases and reflect “the past, present and future of SIAC arbitration”. SIAC aims to enhance user experience and raise the bar on efficiency, speed and cost-effectiveness.

Key changes found in the Draft Rules include:

• a new streamlined arbitration procedure and expanded scope for use of the existing expedited arbitration procedure.
• revised requirements for emergency arbitration, including permitting applications to be filed prior to the Notice of Arbitration.
• revised rules regarding the appointment of arbitrators, including a new list procedure and a power for SIAC to avoid unequal treatment of parties potentially affecting the enforceability of awards.
• amendments to the existing rules on consolidation and new rules on coordinated proceedings.
• new rules for preliminary determination.
• a new requirement for parties to disclose certain third-party funding agreements.
• a new online case management system – the SIAC Gateway.
• other practical changes, including: provision for administrative conferences before constitution of the tribunal; rules regarding the use of tribunal secretaries; allowing the publication of anonymized SIAC Court decisions; protection of information security and trade secrets; and, a more stringent case management timeline.

New streamlined arbitration procedure and new threshold for expedited procedure

A new streamlined arbitration procedure will be potentially open to parties⁴, providing an ambitious 3-month timetable for an arbitration from appointment of a sole arbitrator to the handing down of the award, as well as a cap on fees for the tribunal and SIAC.

The streamlined procedure is available where parties agree to its application, in cases not exceeding the equivalent amount of SGD1 million (approximately USD750,000) at the time of an application, or the circumstances of the case warrant its application. SIAC’s President ultimately determines whether the procedure should be used.

While the current SIAC Rules allow parties and tribunals to tailor their proceedings to achieve some of the same aims as the streamlined procedure, in our experience parties rarely do so⁵. It appears to us that providing parties with a framework for a potentially quicker, cheaper procedure for the resolution of their disputes may be attractive for the right disputes and is more likely to result in quick resolutions for appropriate disputes.

In tandem with the introduction of the streamlined arbitration procedure, the threshold for the existing expedited arbitration procedure will be raised from SGD6 million to SGD10 million⁶ and new features are proposed to further improve the efficiencies of this procedure – such as an express power for the tribunal to limit or disallow requests for document production, written submissions and written evidence. The award will be now, by default, be made based on written submissions only, and any hearings required will be conducted virtually.

A comparison of the key features of the new streamlined procedure and revised expedited procedure is available by clicking here.

Revised requirements for emergency arbitration

The rules for emergency arbitration have also been amended in the Draft Rules to allow parties to make an application prior to the filing of the Notice of Arbitration (Draft Rules Schedule 1, paragraph 2). Under the current SIAC Rules, a party may only file an application for emergency interim relief concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the tribunal. The emergency arbitrator will also be required to make their order or award within 10 days (instead of 14 days) from appointment (Draft Rules Schedule 1, paragraph 17). The proposed revisions will potentially enable requests for emergency relief to be dealt with more quickly.

By way of comparison, the ICC Arbitration Rules contemplate the availability of its emergency procedure prior to the submission of the Request for Arbitration, whereas the LCIA Arbitration Rules require an applicant to submit their Request for Arbitration (or Response) with the application for emergency arbitration (if not already filed).

Appointment of arbitrators

The Draft Rules introduce several new amendments regarding the appointment of arbitrators, including:

• New list procedure: Draft Rule 19.8 provides that, upon the request of a party, the President may consider the use of a list procedure under which the President provides the parties a list of five candidates to consider, following which the parties will be entitled to strike one candidate off the list and return the list with their order of preferences within 7 days. The UNCITRAL rules include a similar procedure where the parties are provided with a list of three names which can be ordered by preference with no limit on the number of deletions.

• Risk of unequal treatment: Draft Rule 19.11 provides that if there is the risk of unequal treatment of the parties that may affect the enforceability of the award, the President may, after considering the views of the parties, take any necessary measure to constitute an independent and impartial tribunal. In such a case, each party shall be deemed to have waived its right to nominate an arbitrator or otherwise participate in the constitution of the tribunal and the President may revoke the appointment of any arbitrators. This new provision addresses the long-standing question of whether the parties may agree contractually on an unequal way of forming a tribunal and whether such agreement may affect the enforceability of the award. Over the years, a number of arbitration institutions have made changes to their rules (including the ICC rules in its latest amendments in 2021) to give an express power for the institution to intervene to avoid the risk of unequal treatment. The new provision in the Draft Rules appears to give SIAC very wide powers and may potentially be concerning to some users who view their right to nominate their arbitrator in their preferred way as a fundamental right.

• Compliance with the SIAC Code of Ethics: Draft Rule 20.1 provides that any arbitrator appointed under the Draft Rules must conduct themselves in accordance with SIAC’s Code of Ethics and Practice Notes and sign a Statement of Acceptance, Independence, Impartiality and Availability. In doing so, SIAC has brought compliance within these matters expressly within the scope of the arbitration rules, which should introduce welcome clarity.

• Additional grounds to challenge an arbitrator: Draft Rule 26.1 provides two additional grounds to challenge an arbitrator: (i) where the arbitrator becomes de jure or de facto unable to perform their functions and (ii) where the arbitrator fails to act or perform their functions in accordance with the Rules or within prescribed time limits.

Amendments to rules on consolidation and new rules on coordinated proceedings

Draft Rule 16.1 introduces a new basis on which arbitrations can be consolidated – where the arbitration agreements in two or more arbitrations are compatible and a common question of law or fact arises out of or in connection with all the arbitrations.

SIAC has also tweaked the wording of the existing circumstances in which consolidation may be ordered. Overall, however, the position on consolidation is generally unchanged.

Draft Rule 17 sets out new rules for coordinated proceedings for cases where the same tribunal is constituted in two or more arbitrations (which have not been consolidated) and a common question of law and fact arises. In such cases, the tribunal may determine that the coordinated arbitrations be conducted concurrently, sequentially, heard together, suspended pending a determination of the other or aligning the coordinated arbitrations in any procedural aspects. By way of comparison, ordering the concurrent conduct of arbitrations is already permitted by the LCIA Rules.

Preliminary determination of issues

The Draft Rules include an express preliminary determination procedure for any issue in the arbitration.

Draft Rule 46 states that an application for preliminary determination can be made: (i) where the parties agree; (ii) where the applicant is able to demonstrate that the determination is likely to contribute to a saving of time and cost and a more efficient and expeditious resolution of the dispute; or (iii) if the circumstances of the case warrant the preliminary determination.

If the tribunal allows the application to proceed and permits the parties to make submissions, the tribunal shall make a decision within 45 days from the date of filing of the application.

The preliminary determination procedure is distinct from SIAC’s existing procedure for the early dismissal of claims and defences which are either manifestly without legal merit or manifestly outside the jurisdiction of the tribunal (SIAC Rules, rule 29).

The preliminary determination of issues is a feature of international arbitration practice, even if arbitration rules do not expressly provide for such a procedure. For example, under the LCIA Rules, the tribunal is empowered to decide the stage of the arbitration at which any issue shall be determined (LCIA Rules, Rule 22.1(vii)). However, we consider that the clarity on this issue provided by the Draft Rules is likely to be welcomed by practitioners.

Disclosure of third-party funding arrangements

On 10 January 2017, the Civil Law (Amendment) Bill (38/2016) was passed by the Singaporean Parliament, which abolished the torts of maintenance and champerty and expressly allows third-party funding for arbitration in Singapore. The new regime applies to international arbitration and proceedings connected to international arbitrations. The Bill was published and entered into full effect on 1 March 2017. Further on 22 June 2021, the Singapore Ministry of Law announced that the permission for third-party funding will be extended to domestic arbitration.

In line with the change to local legislation, Draft Rule 38 requires a party to disclose the existence of any third-party funding agreement and the identity of the third-party funder in its Notice of Arbitration, Response to Notice of Arbitration or immediately upon concluding a third-party funding agreement, and to notify the tribunal, the parties and the Registrar of any changes to the third-party funding agreement. The tribunal may also order the disclosure of the details of the third-party funder’s interest in the outcome of the proceedings and whether the third-party funder has committed to undertake adverse costs liability.

Other arbitral institutions have taken different approaches to this issue in their rules. For example, the LCIA does not require such disclosure; the ICC requires disclosure not under its arbitration rules but under its Notes to Parties and Arbitral Tribunals on the Conduct of ICC Arbitrations; and, under the ICDR Rules, parties may be required to disclose such information (ICDR, Article 14.7)).  

The SIAC Gateway to a more digital future

Another new feature of the Draft Rules is the SIAC Gateway, an online case management system hosted by SIAC (the Gateway).

The current SIAC Rules are beginning to look and feel quite analogue compared to the rules of some other leading arbitral institutions. Some of SIAC’s biggest rivals have already updated their arbitration rules to reflect the pandemic-driven increase of in technology in international arbitration proceedings. SIAC appears to be keen to catch up with, and perhaps overtake, its rivals in this regard by introducing the Gateway.

There is little publicly available information about the Gateway, although we anticipate guidance on its features and intended use is forthcoming. What we do know is that SIAC is partnering with Opus2 to deliver the Gateway, which the legal technology provider claims will “revolutionise user experience by offering ease of online case filing, centralised, real-time access to ongoing SIAC proceedings and accessible electronic payment options”⁷.

The process of using the Gateway under the Draft Rules is as follows:

• A claimant may file a Notice of Arbitration online through the Gateway (Draft Rule 6.1).
• Once commencement of an arbitration is notified, the Registrar may direct that the parties shall be required to upload all written communications to the Gateway (Draft Rule 4.2). As currently drafted, this is a discretionary power for the Registrar, which indicates such a direction will not be appropriate in all cases. For example, in a case where all parties, counsel and the tribunal don’t have consistently reliable access to the Gateway, arguably use of the SIAC Gateway would not be appropriate. We expect that any reasonable objections to the use of the Gateway should be raised with SIAC as soon as possible.
• The Draft Rules also provide that upload to the Gateway (following a direction from the Registrar) will amount to deemed receipt of any written communication (Draft Rule 4.3).

We do not anticipate that the final seventh edition of the SIAC Rules will include much more information about the Gateway but look forward to learning more about the system and how it may benefit parties, counsel and arbitrators in SIAC arbitrations.

SIAC is not the first international arbitration institution to offer an online platform or online filing portal. For example:

• the LCIA has long offered an online filing solution allowing parties to, for example, file requests for arbitration and pay filing fees online⁸. We also understand⁹ that in recent years the LCIA has deployed a technology developed by LexisNexis to improve its back office legal workflow and case management system. While the institution has, unofficially, remarked in the past that it does not intend to offer an enhanced case management platform, it remains to be seen whether such a facility will be demanded by users.

• The ICC launched “ICC Case Connect” in October 2022, which is described as the institution’s “first phase” online case management platform. In another Opus2 tie-up, the ICC announced earlier this year that the “new” ICC Case Connect is expected to launch in 2024¹⁰. The current version of ICC Case Connect is offered free of charge to users, and its use is encouraged by the ICC rather than mandated. A full assessment of the advantages and limitations of the platform is outside the scope of this article, but some benefits include:
  
  
  • streamlined communication and file-sharing between the parties, tribunal and ICC case management team; and
  • the central, secure, storage of case-related information, including ready availability of documents for hearings.
    
    

  Negatives include:

  • the absence of an integrated payments facility;
  • direct correspondence on the platform between the parties only is not possible, requiring users to resort to email;
  • there are some reported issues of notifications being classified as spam by organisations’ IT systems; and
  • the voluntary use of the system means inconsistent take up.
    
    
• The HKIAC also offers an online case management platform called (wait for it) “HKIAC Case Connect”, which is powered by Thomson Reuters’ HighQ system. HKIAC Case Connect was launched in 2021.
• The SCC Arbitration Institute launched the “SCC Platform” in 2019¹¹, another online case management platform powered by HighQ, which allows parties, counsel and arbitrators to communicate and upload materials, among other features. The SCC Arbitration Institute also offers an equivalent platform for use in non-administered ad hoc arbitrations¹².

It will be interesting to see how the Gateway compares to SIAC’s competitors’ platforms.

Other practical amendments

Other more practical changes found in the Draft Rules include:

• Administrative conference: Draft Rule 11.1 provides that the Registrar may direct the parties to attend an administrative conference to discuss and make directions for any procedural application before the constitution of the tribunal. The conference may be conducted virtually.

• Tribunal secretary: Draft Rule 24 sets out the new rules for the appointment of a tribunal secretary including the mechanism to appoint and challenge a tribunal secretary.

• Publication of SIAC Court decisions: Under Draft Rule 60, the parties are deemed to have agreed that SIAC may publish any decision, ruling, order or award and any reasoned decision by the SIAC Court with the names of the parties and other identifying information redacted.

• Protection of information security and trade secrets: Draft Rules 59.5 and 61 allow the tribunal to discuss information security measures with the parties and take measures to protect trade secrets (Rule 59.5 and Rule 61 of the Draft Rules)

• More stringent case management timeline: The timeline for the tribunal to make awards and decisions has been shortened. For instance, the tribunal is required to make a decision for early dismissal within 45 days (instead of 60 days) (Draft Rule 47.4) and the tribunal is required to submit a draft award not later than 30 days (instead of 45 days) from the closure of proceedings (Draft Rule 53.1).

Concluding remarks

The proposed amendments to the rules are substantial, but many of the changes are not unexpected as they respond to recent legislative changes and how practice has shifted due to the COVID-19 pandemic, with a view to the institution remaining at the forefront of best practice.

The changes made to improve the efficiency of SIAC arbitrations are significant and bold, and certainly demonstrate that SIAC is committed to solidifying its global popularity by ensuring that SIAC arbitrations are cost effective and efficient. It will be interesting to see how these new changes – for instance the introduction of a new streamlined procedure to provide another fast lane for small claim arbitration and the use of new online case management system – will change the landscape for arbitrations in Singapore and globally.

The consultation period on the Draft Rules runs until 21 November 2023 and comments may be submitted by email or via SIAC’s website.

If you would like to discuss the rules revision project or any other arbitration-related matters, please contact the authors of this article.

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The authors of this article would like to thank and recognise Queenie Chan for her contributions to this article.

¹ The current edition of the SIAC Arbitration Rules has been in force since 2016. By comparison, the London Court of International Arbitration (LCIA) last updated its arbitration rules in 2020, the International Court of Arbitration of the International Chamber of Commerce (ICC) in 2021, the Swiss Arbitration Centre (SAC) in 2021, the International Centre for Dispute Resolution of the American Arbitration Association (ICDR) in 2021, and the Hong Kong International Arbitration Centre (HKIAC) in 2018.
² Registrars-Report-Public-Consultation-on-the-Draft-7th-Edition-of-the-SIAC-Rules.pdf
³ Draft-7-Edition-of-the-SIAC-Rules-Consultation-Draft.pdf
⁴ Draft Rule 13 and Schedule 2.
⁵ This can be for a variety of reasons.
⁶ Draft Rules Article, 14.1.
⁷ SIAC announces SIAC Gateway, a digital solution powered by Opus 2
⁸ LCIA Online Filing
⁹ London Court of International Arbitration Invests in LexisNexis® Visualfiles™ to Enhance Quality of Service, Boost Efficiency and Augment Global Competitiveness | Visualfiles (lexisnexis-es.co.uk)
¹⁰ ICC to partner with Opus 2 to shape future of dispute resolution - ICC - International Chamber of Commerce (iccwbo.org)
¹¹ Case management | Hem - Stockholms Handelskammares Skiljedomsinstitut (sccarbitrationinstitute.se)
₁₂ Ad Hoc Platform | Hem - Stockholms Handelskammares Skiljedomsinstitut (sccarbitrationinstitute.se)