Singapore International Arbitration Centre puts innovation at heart in latest developments

The SIAC is in the process of finalising the 7^th edition of the SIAC Rules (‘the Draft Rules’), which look to enhance the user experience and raise the bar on efficiency and cost-effectiveness.

The year 2023 saw the SIAC expand its secretariat, appoint new board and court members with a focus on India, and restructure its Young SIAC (YSIAC) Committee to a global YSIAC Council comprising regional committees.

The SIAC Secretariat comprises 16 lawyers who are qualified in 13 jurisdictions, including India.

The representation of India on the SIAC committee reflects the volume of Indian arbitrations which choose SIAC as their institutional rules.  India continues to be the highest contributor of SIAC’s caseload, according to its 2022 Annual Report (18-page PDF/7.2MB), followed by the US and China. In the last 10 years, SIAC has seen over 2,000 Indian parties involved in SIAC arbitrations and over 1,300 cases involving Indian parties.

Notable features of the draft 7th edition of the SIAC Rules

The SIAC is in the process of finalising the 7th edition of the SIAC Rules, following the conclusion of a public consultation on the draft rules in November 2023.

A key feature of the Draft Rules is the introduction of the “Streamlined Procedure”. The new procedure is introduced for low-value disputes, designed to be determined on a documents-only basis within a three-month timeframe – half the duration of an arbitration under Expedited Procedure – and may apply on application by a party where the amount in dispute does not exceed S$1m (approx. US$740,000). However, it contains a fallback provision which empowers the arbitral tribunal to order that the arbitration will no longer be conducted under the Streamlined Procedure at any stage during the process. Arbitrations under this procedure are heard by a sole arbitrator and, unless the tribunal decides otherwise, shall be decided on the basis of written submissions only. There shall be no document production and no party shall be entitled to file any fact or expert witness evidence.

Meanwhile, the threshold for application of the “Expedited Procedure” increases to S$10m from S$6m. Under the Draft Rules, both the Streamlined Procedure and the Expedited Procedure may apply where "the circumstances of the case warrant the application of the streamlined [or the expedited procedure]". This raises the possibility that parties may apply for the arbitration to be conducted under the streamlined procedure or the expedited procedure even for higher value disputes which are nonetheless deemed to be relatively straightforward and amenable to compressed timelines.

Perhaps pre-empting this, the SIAC has inserted a ‘safety net’ where the president of its Court of Arbitration retains discretionary power to apply or deny the request after considering various factors such as the overall quantum involved in the dispute, the parties’ agreement to its application, and whether the dispute is exceptionally urgent and complex to reach a ‘fast track' conclusion.

There is a risk that a refusal could be construed as overriding party autonomy which may lead to non-enforcement of the resulting award.  Although there is no rationale offered for this it is likely the SIAC thought to insert this discretionary power to strike a balance and protect parties from disadvantaging themselves by electing to opt for procedures that would otherwise benefit from the full suite of its administered services.

In line with developments over the past decade and the increasing deployment of online services during the Covid-19 pandemic, the draft rules also offer a new digital solution hosted by the SIAC known as the SIAC Gateway, which is designed to provide a centralised case filing platform and is expected to significantly ease the burden of case administration. The claimant will be able to file the Notice of Arbitration online through the SIAC Gateway. It also offers parties the option to hold hearings virtually or on a hybrid basis following successful practices and remote working practices adopted during the pandemic.

In an effort to give parties a greater stake in the constitution of the tribunal, a new draft rule provides that the SIAC may, upon the request of a party, use a ‘list’ procedure to appoint arbitrators when appointing a sole arbitrator, a presiding arbitrator, or where the claimant or the respondent parties have failed to make a joint nomination. The list procedure will see the president of the Court communicate to the claimant and respondent an identical list of arbitrator candidates containing at least five names. The parties then rank the candidates in order of preference and are entitled to object to one candidate. The president will appoint the arbitrator "in accordance with the mutual order of preference of the parties".

Another new rule requires the president to bear in mind principles of diversity and inclusion, where appropriate, when making arbitrator appointments.

A new provision regarding third party funding requires parties to disclose third party funding agreements and the identity of any funder. Although the SIAC Rules 2016 do not contain any rules on third party funding, the SIAC adopted a practice note in March 2017 to allow for third party funding in international arbitration following its legalisation in the jurisdiction.

Another notable feature will set the default position on publication of redacted awards. The default now leans towards publication, with party and identifying information redacted, unless either party objects within six months after the conclusion of the arbitration.

Important Singapore case law on international arbitration

In addition to the new rules, several recent cases have also provided important guidance on key issues, such as deliberate secrecy and the law determining arbitrability, in relation to international arbitration in Singapore.

In the High Court case of CZT v CZU, the Singapore International Commercial Court issued an important decision concerning deliberative secrecy in international arbitration. The decision made clear when an arbitral tribunal's notes and deliberation records are producible on a challenge to an award. The court noted that tribunal deliberations are presumptively confidential. However, an exception to deliberative secrecy arises, in extremely rare cases, where the “interests of justice in ordering the production of records of deliberations outweigh the policy reasons for protecting the confidentiality of deliberations”.

In the case of Anupam Mittal v Westbridge Ventures II Investment Holdings, the Singapore Court of Appeal considered a previously undecided point of law in Singapore: the law which determines the arbitrability of a dispute, with the key question being whether the issue of arbitrability be considered under the law governing the arbitration agreement or the law of the seat of the arbitration. The court ruled that the arbitrability of a dispute will be determined using a novel “composite” approach: by both the law that governs the arbitration agreement as well as Singapore law.

Co-written by Chen Han Toh of Pinsent Masons.