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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.
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 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).
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:
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:
The consolidation provisions will not apply where:
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
Looking at developments in institutional rules over recent years, have SIAC missed the opportunity to make other amendments?
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.
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