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POLICY EXPLANATION: Revised Rules of Arbitration for SIAC
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altThe Singapore International Arbitration Centre (SIAC) has become one of the most popular neutral venues for investment and commercial dispute resolution involving international investors in China or international businesses trading with China, as well as Chinese counter-parties. SIAC boasts good reputation, common law tradition, multi-lingual speaking staff, culture diversity, flexibility and arbitration-friendly legal regime. The past few years have witnessed continued growth of the institution’s caseload involving parties from around the world. SIAC registered 235 cases during 2012 (the largest number of filings ever) involving parties from 39 jurisdictions and was handling a total of 525 active cases at the year’s end. A significant number of the filings are from parties based in China or parties investing or trading with China which is now the largest foreign jurisdiction for SIAC in terms of source of cases. 
 
SIAC has recently released a 5th edition of the SIAC Arbitration Rules (the “New Rules”), which entered into force on 1 April 2013. While the changes do not reflect a significant overhaul of the prior version of the institution’s rules, they do contain important changes of which interested international businesses and legal practitioners should be aware. 
 
Court of Arbitration
The New SIAC Rules creates a Court of Arbitration (the “Court”) comprising of 16 leading arbitration practitioners from around the world, is responsible for oversight of case administration ,the determination of challenges to arbitrators, jurisdictional challenges and arbitral appointment functions of SIAC. These functions were previously under the power of SIAC’s Board of Directors (the “Board”), which now focuses on corporate and business development matters and its compliance with applicable laws. The Court is now led by Dr. Michael Pryles, serving as the Founder President of the Court. The new Board is made up of prominent lawyers and corporate leaders from around the world. Both the new Board and the Court assumed office on 1 April 2013.
 
The President of the Court now performs the roles previously assigned under the old rules to the SIAC Chairman. The President of the Court has responsibility for determining applications for expedited procedures (Rule 5) and appointment of arbitrators (Rules 6-10) and emergency arbitrators (Schedule 1). 
 
According to the new rules, the President is defined to include the Vice President and the Registrar. The Registrar, in turn, is defined to include any Deputy Registrar. The Court is defined to include a Committee of the Court. Committee is in turn defined to mean any committee consisting of at least two of the 16 members of the Court. These definitions will be of particular interest in cases of challenges to the identity of the arbitrator, the existence or validity of the arbitration agreement or the competence of SIAC to administer the arbitration before the tribunal is appointed
 
altJurisdiction Challenges
The new Rule 25.1 has been amended to create a two-stage procedure for jurisdiction challenge of SIAC prior to the constitution of a tribunal. If a party objects to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration verdict before the tribunal is appointed, the Registrar shall determine if reference of such an objection is to be made to the Court. If the Registrar so determines, the Court shall decide if it is prima facie satisfied that a valid arbitration agreement under the Rules may exist. The proceedings shall be terminated if the Court is not so satisfied. Any decision by the Registrar or the Court is without prejudice to the power of the tribunal to rule on its own jurisdiction. Such a two-stage procedure may help to improve SIAC’s efficiency when dealing with jurisdiction challenges.
 
The previous rule had a one-step process, i.e., a Committee of the Board decided the matter without having a preliminary decision made by the Registrar. 
 
Expansion of power of the Court and Tribunal
The new rules have expanded the power and discretion of the Court and Tribunal in order to streamline the arbitration proceedings as well as enhance its efficiency.
 
Rule 36 under the revised new rules of SIAC states that decisions of the President, the Court and the Registrar with respect to all matters relating to an arbitration are binding upon the parties and the arbitral tribunal, subject to the tribunal’s competence to rule on its own jurisdiction under rule 25.1. Rule 36 also provides that the parties are deemed to have waived any right to appeal or review in respect of any decisions of the President, the Court or the Registrar to any state court or other judicial authority. Furthermore, the President, the Court and the Registrar shall not be required to provide reasons for such decisions. 
 
Under the new Rule 2.5, the Registrar may at any time extend or shorten any time limits prescribed under the rules. This gives the Registrar the ability to grant extensions of time without the need to refer such matters to an arbitral tribunal, or before a tribunal has been constituted.
 
Under Rule 24(n), the tribunal has the power to decide any issue not expressly or impliedly raised in the parties’ submissions, as long as such issues were clearly brought to the notice of the other party and that other party had been given adequate opportunity to respond. This enables the tribunal to consider issues not specifically raised in the pleadings, whom nonetheless might be of significance to both parties.
 
altUnder rule 3.3, a Notice of Arbitration can be deemed to be complete if the Registrar determines that there has been substantial compliance with the requirements listed in rule 3.1. This allows the Registrar, at its full discretion to determine when an arbitration has commenced. 
 
Under Rule 28.7, the limitation on the tribunal’s power to award interest only up to the date of its award has been removed. Under the new rules, the tribunal is now empowered to award post-award interest in line with the latest legal developments in Singapore, namely the recent amendments made to the Singapore International Arbitration Act. This may serve to better protect the interest of the non-breaching party of a dispute.
 
Under Rule 28.10, the SIAC may publish any award with the names of the parties and other indentifying information redacted. One interesting outcome would be whether this may prompt legal practitioner to refer to previous awards, for precedents albeit non-binding. It will also be interesting to see how the parties will react to such amendments and who might be sensitive to the issue of confidentiality. 
 
In a multi-party scenario, the new Rule 9 give parties 28 days or a time period set by the Registrar to make a joint appointment (failing which the arbitrators may be appointed by the President) calculated from the date on which the Registrar received the notice of arbitration rather than the date of the filing of the notice of arbitration as had been the case in previous version of SIAC rules. 
 
Expansion of Jurisdiction
With an aim to be a pre-eminent global arbitral institution, Rule 3.1(d) of the new SIAC rules notes that the Notice of Arbitration must include a reference to the contract “or other instrument [e.g. investment treaty]” underlying the dispute. Thus the jurisdiction of SIAC has been extended expressly to cover disputes arising under an investment treaty or other instrument conferring jurisdiction upon SIAC. 
 
Conclusion
The recent new governance structure of the SIAC, with the establishment of a Court of Arbitration and the separation of the SIAC’s business and legal functions, has been widely considered as a positive development giving rise to more flexibility and efficiency. Some of the changes therein are of interest to international businesses and investors and deserve continuing attention on how they will be applied in practice. 
 

by Simon Bai
 
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