The new SIAC rules of arbitration
The ever growing competition between international arbitration institutions, so clearly observed during the last decade, forces them to comply promptly with the demands of the world commerce and provide business with adequate alternative dispute resolution services. Among other improvements, the most notable, naturally, concern updating the arbitration rules undergone, in particular, by Vilnius Court of Commercial Arbitration (2013), International Chamber of Commerce (2012), China International Economic and Trade Arbitration Commission (2012), Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic (2012), Arbitration Court at the Bulgarian Chamber of Commerce and Industry (2012) and others.
On 1 April 2013, a new version of Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) came into force introducing some significant changes to the course of arbitral proceedings. The 2013 version has become the 5th after previously issued by the SIAC in 1991, 1997, 2007 and 2010.
Some of the most important amendments are considered below.
Court of Arbitration. The new SIAC arbitration rules set up a Court of Arbitration of SIAC, headed by a President, who from now on shall be in charge of the administrative issues related to arbitral proceedings, previously performed by the Board of Directors of SIAC. The latter will be responsible for corporate and business development matters.
Jurisdiction. According to previous versions of the SIAC arbitration rules the Committee of the Board of Directors was the sole authority to decide on SIAC jurisdiction before the Tribunal was appointed. The new 2013 rules set up a two-stage procedure for challenging jurisdiction of the SIAC. If a party objects to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration 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. At the same time, any decision by the Registrar or the Court is without prejudice to the power of the Tribunal to rule on its own jurisdiction.
Investment disputes. The latest arbitration developments reveal a tendency towards referring investor-State disputes to arbitration institutions other than the International Centre for Settlement of Investment Disputes. The new SIAC arbitration rules reflect this tendency and provide that a notice of arbitration must contain a reference to a contract or another instrument, in particular, an investment treaty, out of which the dispute arises.
Representation of the Parties. Following the basic features of western arbitration practice, the new SIAC arbitration rules have abolished formalities related to proof of a party’s representatives’ authority. It is now only stated that the parties have a right “to be represented by legal practitioners or any other representatives”. Due to the very nature of arbitration proceedings, which are expected to be rather informal as compared to court proceedings, cancellation of such formalities seems to be a logical step. At the same time, it leaves a room for the subsequent claims that the parties’ counsels acted in a way not authorized by their clients.
Witness Interviews. Although no previous versions of the SIAC rules contained any relevant prohibitions, the new SIAC arbitration rules expressly permit interviewing witnesses prior to their appearance at the hearings. It is worth noting that such an approach is well recognized all over the world since examination of witnesses at the hearings is a time and cost consuming process. At the same time, interviewing witnesses prior to their appearance at the hearings allows decreasing arbitration expenses and is expected to benefit the proceedings.
Time Limits. The SIAC Registrar is now empowered, at his discretion, to “extend or shorten any time limits prescribed under” the new rules. In our view, such a novelty was obviously aimed at creating a flexible time framework for arbitral proceedings depending on the circumstances of each case.
Additional Powers of the Tribunal. The new SIAC arbitration rules empower the Tribunal to decide on issues not expressly or impliedly raised in the parties’ submissions, provided that such issues had been clearly brought to the attention of the other party and such other party had been given an adequate opportunity to provide its response to it. In fact, this novelty gives the Tribunal a freedom to comprehensively decide on every issue it deems relevant for the outcome of the dispute.
Post-Award Interests. Unlike its previous versions that permitted awarding interest ending not later than the date of the award, 2013 arbitration rules do not contain such a restriction. Since the respective payments under awards are in many cases delayed, such post-award interests are expected to ensure better protection of the parties’ rights and provide an aggrieved party with an adequate compensation.
Publication of Awards. Finally, 2013 SIAC arbitration rules now envisage that SIAC may publish any award with the names of the parties and other identifying information redacted. We believe this marks another positive change aimed at increasing uniformity of SIAC arbitration practice and providing the parties, their legal counsels and scholars with information on practical approaches to resolving both material and procedural issues in course of arbitral proceedings before this arbitral institution.
Provided by Ievgen Boiarskyi, Junior Associate of AstapovLawyers ILG.