Revised SIAC Rules 2016: what are the proposed changes?

Revised SIAC Rules 2016: what are the proposed changes?

arbitrationOn 18 January 2016 SIAC issued revised draft SIAC Arbitration Rules (6th edition) (SIAC Rules) for consultation. Comments on the draft are invited by 29 February 2016 with the new rules planned to come into force on 1 June 2016 and, unless the parties agree, apply to any arbitration commenced on or after that date.

Note that there is a slight proviso to this in rule 8 regarding consolidation that these provisions only apply to arbitrations where the arbitration agreement was entered into on or after the date on which the 2016 rules come into force (rule 8.5b).

The revised rules contain some key revisions and other more incidental amendments as outlined below. Reference to rule numbers are to those of the proposed 2016 SIAC Rules, save where otherwise stated.

Multiple contracts (rule 4)

Alongside revised provisions for joinder and consolidation, SIAC is making a strong statement that it is the institution of choice for complex multi-party/multi-contract arbitration.

The draft rules provide that:

  • the claimant may commence a single arbitration concerning disputes arising out of or in connection with multiple contracts provided that:
    • the parties to the contracts consent to a single arbitration to be conducted and administered in accordance with the rules
    • the contracts contain arbitration agreements referring such disputes to arbitration to be conducted and administered in accordance with the rules, the arbitration agreements are compatible and the disputes arise out of the same legal relationship, such contracts consist of a principle contract and its ancillary contract or the disputes arise out of the same transaction or series of transactions
  • should a party object to the commencement of an arbitration under rule 4.1 (multiple contracts) combined with rule 3 (Notice of Arbitration) they may do so under rule 27.1 (jurisdiction of the tribunal)

Joinder and Intervention (rule 7)

The draft provides for the president of the SIAC Court of Arbitration, prior to the appointment of any arbitration and on application of a party or non-party to the arbitration, to allow one or more additional parties to be joined as claimant or respondent provided that the party to be joined is a party to the arbitration agreement or where all parties including the party to be joined consent in writing to the joiner (rule 7.1). The procedure for making the application is set out in rule 7.2, giving parties 14 days to respond to the application. The president's decision to refuse an application is without prejudice to a party or non-party's application to the tribunal once appointed and the tribunal's power to subsequently decide any question as to jurisdiction under rule 7.6.

Upon application by a party or non-party to the arbitration, the tribunal may after giving all parties the opportunity to be heard (including the party to be joined) allow one or more parties to be joined to the arbitration provided the additional party is party to the arbitration agreement and has consented in writing to the joinder or where all parties including the party to be joined have consented in writing. Agreement by the party to be joined waives that party's right to participate in the selection of the tribunal and deems that they accept the constitution of the tribunal (rule 7.8).

Consolidation (rule 8)

Alongside the provision for joinder, and as one would expect, the revised rules provide for arbitrations to be consolidated either by the president (rule 8.1) prior to appointment of the tribunal or by the tribunal following appointment (rule 8.3).

The president may consolidate arbitrations where:

  • all parties to the arbitrations have agreed to consolidations, or
  • all the claims in the arbitration are made under the same arbitration agreement, or
  • the arbitration agreements are compatible and the disputes in the arbitrations arise out of:
    • the same legal relationships, or
    • contracts consisting of a principal contract and its ancillary contracts, or
    • the same transaction or series of transactions

Any decision by the president to reject an application is without prejudice to a party's application to the tribunal under rule 8.3.

The tribunal may, on application by a party, also consolidate two or more arbitrations pending under the SIAC Rules into a single arbitration where:

  • all parties to the arbitrations have agreed to consolidation, or
  • the arbitration agreements are compatible, the arbitrations are between the same parties and the same tribunal has been appointed in the pending arbitration and the other arbitration(s), and the disputes arise out of:
    • he same legal relationship(s), or
    • contracts consisting of a principal contract and its ancillary contracts or
    • the same transaction or series of transactions

The consolidation provisions will not apply where:

  • the parties have agreed to opt out of the consolidation provisions, or
  • the president has decided that any of the arbitrations shall be conducted in accordance with the expedited procedure (rule 6), or
  • the parties' arbitration agreement was concluded before the date on which the rules came into force

Representation (rule 22)

The SIAC Rules, in line with the London Court of International Arbitration's (LCIA) amendments to its rules in 2014, provide that after the full constitution of the tribunal, any change or addition by a party to its representatives must be notified promptly in writing to all other parties, the tribunal and the Registrar. The party seeking the change shall not engage a representative that may impact the composition of the tribunal and/or the finality of any award that will be made by the tribunal.

This rule is intended to prevent a situation where a party appoints a representative whose appointment causes a conflict with the tribunal thus disrupting the arbitration.

Other proposed changes

  • small changes to calculation of time periods with serve on the SIAC outside of business hours constituting service on the next business day (rule 2)
  • additional criteria in the notice of arbitration that where a party is commencing a single arbitration under rule 4.1(multiple contracts) they include a brief statement describing how the applicable criteria in rule 4.1 have been satisfied
  • deletion of the option to include a statement of claim with the notice of arbitration or statement of defence or statement of counterclaim in the notice of defence
  • when the expedited procedure is requested, the case may be referred to a sole arbitrator even in cases where the arbitration agreement provides for more than one arbitrator (rule 6)
  • more detailed provisions for challenging an arbitrator (rules 15 and 16)
  • more detailed provisions on removal and replacement of an arbitrator (rule 17.3)
  • provision for a case management conference (rule 19.7)
  • deletion of the requirement for an objection to jurisdiction to be raised not later than the statement of defence or defence to counterclaim (rule 27.3)
  • the tribunal must declare the proceedings closed no later than 30 days after the last hearing or last submissions (rule 30.1)
  • a redacted award may now only be published with the consent of the parties and the tribunal (rule 30.10)
  • provision for the Registrar to direct an additional fee for SIAC's administrative services to be paid over that prescribed in the schedule of fees in exceptional circumstances (rule 32.8)
  • clarification that the deliberations of the tribunal and the court shall be confidential (rule 37.1, 38.1)
  • additional general provision that a party who proceeds with the arbitration without raising any objection to a failure to comply with the rules or any other rules applicable to the proceedings, any direction given by the tribunal or any requirement under the arbitration agreement relating to the constitution of the tribunal or the conduct of the proceedings shall be deemed to have waived its right to object (rule 39.4)
  • provision that if the parties have agreed on the seat of the arbitration that shall be the seat of the proceedings for emergency interim relief. Failing such agreement the seat shall be Singapore without prejudice to the tribunal's determination of the seat (Sch 1, rule 3)
  • provision that the emergency arbitrators award be made within 14 business days of the emergency arbitrators appointment unless the Registrar extends the time (Sch 1, rule 8). Any such award must first be approved by the Registrar as to its form
  • emergency arbitrators fees set at $25,000, unless the Registrar otherwise determines (formerly not less than $20,000) (Sch 2.2)

Missed opportunities?

Looking at developments in institutional rules over recent years, have SIAC missed the opportunity to make other amendments?

  • deadline for providing the award—SIAC already provide for a draft to be delivered to the Registrar within 45 days of closing the proceedings (2013 SIAC, rule 28.2). There is however a 'tightening' of the process in the draft in rule 30.10 providing for proceedings to be closed within 30 days of the last hearing or final submissions
  • emergency provisions—SIAC already has an expedited procedure (2013 SIAC, sch 1)
  • guidance on ethics—the LCIA introduced guidance on ethics into its rules in 2014, but other institutions have not followed suit. It is unclear the extent to which the guidelines have been used,
  • electronic communication—SIAC already provided for notice to be given electronically (2013 SIAC, art 2)

This revision mainly shows a revision of the rules to provide for more complex multi party/multi contract arbitration giving the parties power to apply for and the president and tribunal power to order joinder of parties and/or consolidation of one of more arbitrations. It is hoped that this will streamline the process and make arbitration more cost-effective and efficient. Although, of course, there is the danger that time and money is spent fighting over these applications early in the process thus defeating the potential gains.

 

Subscription Form

Related Articles:
Latest Articles:

Access this article and thousands of others like it free by subscribing to our blog.

Read full article

Already a subscriber? Login