New rules of the Singapore International Arbitration Centre in force from 1 April 2013

The Singapore International Arbitration Centre (SIAC) has published the fifth edition of its arbitration rules, which came into force on 1 April 2013 (the 2013 Rules).  The 2013 rules will apply to arbitration proceedings commenced on or after 1 April 2013 unless the parties have agreed otherwise.

Key amendments include:

• introduction of a new governance structure, which separates SIAC's business and governance functions from its legal and technical ones, in order to address the centre’s increased caseload and expansion plans (SIAC recently announced it plans to open offices in Seoul, Mumbai and the Gulf).
• expansion of the powers and discretion of the Registrar, including the power to review jurisdictional challenges before they are referred to the Court.
• express power of the arbitral tribunal to consider issues not specifically raised in the parties' pleadings, in line with recent case law in Singapore.
• power of the tribunal to award post-award interest, in line with the latest legal developments in Singapore and the rules of other institutions.
• express authorization for SIAC to publish redacted awards.
• clarification of certain rules, including referring to instruments other than contracts in the Notice of Arbitration, and the timing of the commencement of the arbitration.

These changes demonstrate again that SIAC seeks to retain its position as a modern international arbitration institution at the forefront of international best practice and ensure that parties arbitrating under the 2013 Rules enjoy as efficient a process as possible.  However, it is noteworthy that SIAC has not introduced any provisions governing the consolidation of two or more arbitrations, unlike the changes made to the ICC rules (which came into force on 1 January 2012) and the anticipated changes to both the LCIA and HKIAC rules later this year.

New governance structure

SIAC has created a new Court of Arbitration (the Court) which will oversee all of its legal and technical functions, including case administration, challenges to arbitrators and jurisdictional challenges.  The Court is distinct from the Board of Directors, which used to handle all of SIAC's functions but will now only oversee SIAC's corporate and business functions.  This is a similar model to that of the ICC, which is comprised of the ICC Court and the Secretariat.

The President of the new Court will be responsible for the appointment of arbitrators, determination of applications for the expedited procedure and appointment of Emergency Arbitrators.  The first President will be Professor Michael Pryles, who used to be the Chairman of the Board of Directors.

The scope of the Registrar's powers has also been extended, as set out below.

This revised governance structure is bolstered by the new rule 36, which states that the decisions of the President, the Court and the Registrar are binding upon the parties and the arbitral tribunal, subject to the tribunal's competence to rule on its own jurisdiction as made clear in rule 25.1.  Rule 36 also states that the parties are taken to have waived any right to appeal or review in respect of any decisions of the President, the Court or the Registrar.

Powers and discretion of Registrar

The Registrar has been afforded greater power and flexibility in the arbitral process.  These powers now include:

1. 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 discretion to grant extensions of time without the need to refer such matters to an arbitral tribunal, or before a tribunal has been constituted;
2. Under 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; and
3. In a multi-party scenario, under rules 9.1 and 9.2, the Registrar may now set the time limit within which parties may jointly nominate an arbitrator, failing which the arbitrators may be appointed by the President.

These provisions seek to ensure a more streamlined process.  The Registrar's new discretion regarding time limits may also serve to prevent parties from relying on technical arguments regarding compliance with deadlines in order to frustrate the progress of proceedings.  It is also noteworthy that it is the Registrar, rather than the Court, which has the power to scrutinize the award (rule 28).

Jurisdictional challenges

Importantly, under rule 25.1, the Registrar shall determine whether a party's objection to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration shall be referred to the SIAC Court.  The Court shall then decide if it is prima facie satisfied that a valid arbitration agreement exists before the arbitration proceeds.  This therefore creates a two-stage process, whereby the Registrar takes on a more substantive role, potentially acting as a filter for unmeritorious objections before they are considered by the Court, in order to improve SIAC's efficiency when dealing with such challenges.

Power of tribunal to decide any issue not expressly or impliedly raised in submissions

The 2013 Rules contain a new rule 24(n) whereby an arbitral tribunal may decide any issue not expressly or impliedly raised in the parties' submissions, provided such issue has been clearly brought to the notice of the other party and that other party has been given adequate opportunity to respond.

This reflects the recent decision of the Singapore Court of Appeal in PT Prima International Development v Kempinski Hotels SA and other appeals [2012] SGCA 35, which held that the crucial considerations are: 1) whether any new issues which arise in the course of an arbitration are within the scope of the parties' submission to arbitration, and 2) whether the parties have been provided with sufficient opportunity to respond to the new issues raised.  This case clarified that if these questions are answered in the affirmative then there is no need for the new issues to be specifically pleaded. 

Post-award interest

Under rule 28.7, a tribunal can now award interest in respect of any period which it deems appropriate, including post-award interest.  This brings the 2013 Rules in line with section 20 of the Singapore International Arbitration Act, which was enacted in June 2012 and which specifically allows a tribunal to award interest on sums awarded by the tribunal.  This also reflects similar provisions in the rules of other institutions, including the LCIA (rule 28.4) and ICDR (rule 26.6).

Publication of awards

SIAC is now expressly authorized to publish arbitration awards with the names of the parties and other identifying information redacted.  Although many other institutions provide for the publication of redacted awards (such as rule 30.3 of the LCIA rules and article 44.3 of the Swiss Rules), this is usually expressed to be subject to the agreement of the parties and conditional on there being no objection raised.  This provision, as it is currently worded, therefore represents a departure from the other arbitration rules.  It remains to be seen whether in practice the SIAC will consult the parties before publication of the award, and if not, whether this will be a factor which will influence parties' decision to adopt the new rules.

Costs

Rule 30.2 has been amended to clarify that the Registrar may fix separate advances on costs for claims and counterclaims respectively. 

Rule 33, which grants the tribunal authority to decide that the legal or other costs of one party shall be paid by another party, has also been amended, and  no longer excludes the costs of the arbitration.  This makes it clear that a party can be held liable to pay the fees of the institution and the arbitrators, plus the costs of any other expert advice or other assistance required by the tribunal, in addition to legal costs.

Clarifications/minor amendments

The 2013 Rules also amend and clarify certain provisions of the 2010 Rules, as follows:

• to reflect the fact that a Notice of Arbitration may refer to an instrument other than a contract, such as an investment treaty (rule 3.1(d));
• to specify that in a multi-party scenario, the President can appoint the arbitrators within 28 days of receipt by the Registrar of the Notice of Arbitration, rather than within 28 days of the filing of the Notice of Arbitration (rules 9.1 and 9.2);
• to tidy up the language of rule 12.1 to make it clear that where parties have agreed on any qualifications required of an arbitrator, a party may challenge the arbitrator's appointment for failing to meet these qualifications, within 14 days after receipt by that party of the notification of the nomination of the arbitrator;
• to include "the removal" of an arbitrator as an event upon which a substitute arbitrator may need to be appointed (rule 14.1);
• to delete the requirement that the Registrar or the tribunal may require proof of authority of a party's legal or other representation (rule 20);
• to amend rule 22.5 to make it clear that that it shall be permissible for any party or its representatives to interview any witness or potential witness prior to his appearance at any hearing.  This rule is no longer expressed to be subject to the mandatory provisions of any applicable law, and brings the 2013 Rules in line with article 4(3) of the 2010 IBA Rules on the Taking of Evidence in International Arbitration; and
• to amend the wording of rule 25.1 to refer to "the competence of SIAC to administer an arbitration" rather than to the jurisdiction of SIAC.  This draws a distinction between the jurisdiction of an arbitral tribunal and the competence of SIAC to administer a dispute.